Yesterday, I blogged about the challenge to the Adam Walsh Act in North Carolina. Today, I'm posting the filings from a challenge in Oklahoma to the same statute, although this case is not about the civil commitment provisions of the Act. These filings are actually older than the North Carolina ones, but I couldn't post them before due to "technical difficulties" (which is my way of saying I couldn't figure out how to do it right before). Anyway, here is the motion to dismiss, the response to the motion to dismiss, and the order denying motion to dismiss. The motion to dismiss contained six major challenges:
Darrell L. Templeton moves this Court to dismiss the indictment filed December 6, 2006. Mr. Templeton presents six arguments in support of this motion. First, Mr. Templeton contends the indictment is insufficient in that it fails to state the subsection Mr. Templeton’s 1989 Arizona sexual abuse conviction allegedly meets. Second, he contends the there is no federal subject matter jurisdiction for this prosecution because the federal failure to register as a sex offender statute violates the Commerce Clause of the Constitution. Third, he argues that he was no longer required to register as a sex offender pursuant Arizona law and not required to register federally. Fourth, Mr. Templeton’s 1989 Arizona sexual abuse conviction occurred at a time that is not covered by the Sex Offender Registration Notification Act and the federal failure to register as a sex offender statute. Fifth, the Sex Offender Registration and Notification Act and the federal failure to register as a sex offender statute violate the Ex Post Facto Clause. Lastly, Mr. Templeton posits that the Sex Offender Registration and Notification Act and the federal failure to register as a sex offender statute violate Due Process.
Ultimately, though, the district court rejected the defendant's motion to dismiss in its entirety. Here is a snippet from the discussion of the retroactivity issue:
Further, the Court finds that the federal failure to register as a sex offender statute does not violate the Ex Post Facto Clause. Article I, § 9 of the United States Constitution states: “No Bill of Attainder or ex post facto Law shall be passed.” A law violates the Ex Post Facto Clause only if it (1) punishes as a crime an act that was not criminal when it was committed; (2) makes a crime’s punishment greater than when the crime was committed; or (3) deprives a defendant of a defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). Having
carefully reviewed the federal failure to register as a sex offender statute, the Court finds that the federal failure to register as a sex offender statute does not serve to punish defendant for an act that was not a crime when allegedly performed, does not make the punishment greater for a crime committed before the law’s enactment, and does not deprive defendant of a defense available before its enactment. Therefore, the Court finds that the federal failure to register as a sex offender statute does not violate the Ex Post Facto Clause.
The district court's handling of each of the issues is brief, so it makes for a quick read if you are interested in the subject. With the Oklahoma and North Carolina challenges, I think the federal public defenders are doing a good job in identifying and arguing the key legal arguments against the Adam Walsh Act. However, they haven't had any success yet. I won't be surprised if district and, eventually, circuit courts split on the statute because of the issues raised are close calls.
These laws are hard to understand, the reasoning in relation to the Constitution, I mean, though the foundation seems to rest on Buck v. Bell, an opinion that should probably be overturned and rejected. I'm not a lawyer, but let me throw something against the wall on the broader sex offender law scale to see what, if anything, sticks. Hopefully those more familiar with the law will point out flagrant flaws or, perhaps, how it might have potential.
There are freedoms enforced by Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), and many of these new laws amount to virtual sterilizations of sorts in violation of the equal protection clause. Who wants to marry and have children, or not have children, with a sex offender even if the offense was not against a child? Their home would be labeled and posted on the Internet. It is even possible for a mother to face arrest if dating or living with a sex offender. In some circumstances, this could be good public policy, while in others, it could be overreaction and irrational.
More important, as a matter of law under PERNELL v. SOUTHALL REALTY, 416 U.S. 363 (1974), there should be a trial by jury when a person is deprived of property, which many of the banishment laws do. There is some history of the King's power in U S v. LEE, 106 U.S. 196 (1882) (the taking of Arlington). What's more, the government can only take property, and the person need not own it per Pernell, in situations of "immediate danger" (MITCHELL v. HARMONY, 54 U.S. 115 (1851)).
Given the above, doesn't it seem a person has a right to a trial by jury under the Seventh Amendment regarding some of these laws? And wouldn't the jury have to find a (fairly) immediate danger before the government can boot him/her around at his/her expense?
Under this reasoning, the government would have to find, though trial by jury, either an immediate danger, maybe enough to require civil commitment, or not, and some of these new laws should not be enforceable without trial under the Seventh Amendment.
If this is possible, it could take this trend out of the strictly administrative arena and put some of it it under the Seventh Amendment. The current unlimited legislative power without any check or balance has no end to it, and our Founders were too wise to allow that.
A counter-argument might be the quarantine opinions, but there was an immediate threat in those circumstances, not a statistically probable, or improbable, one. "But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils." (Quoted from PHILADELPHIA v. NEW JERSEY, 437 U.S. 617, 629-630 (1978)).
Case law apparently does not condone an all encompassing "maybe dangerous" without due process and requires an immediate threat. Under many of these new laws, a jury trial should be required to determine that.
Is this a bad reading of the Seventh Amendment and the surrounding case law?
Posted by: George | February 17, 2007 at 06:09 PM