In the ABA Journal, there is an interesting piece in this month's issue about the problems with the AWA registry system embodied in SORNA. The article quotes Wayne Logan who has written extensively and persuasively about sex offender policy and John Badalamenti who scored a major victory before the 11th Circuit in a SORNA case. Here is an excerpt from the article:
“Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.
Also up for grabs is the future of the U.S. Supreme Court’s line of federalism cases, a darling of the court under former Chief Justice William H. Rehnquist. The court trimmed back its press for state rights toward the end of Rehnquist’s tenure—he died in 2005. However, under his successor, John G. Roberts Jr., the court could get its chance to renew those federalism issues, this time with high-profile sex offender registration and notification laws.
“The issue will go to the U.S. Supreme Court, par ticularly with the composition of the court changing in recent years,” with the addition of Roberts and Justice Samuel A. Alito Jr., says John L. Badalamenti, appellate attorney for the federal public defender’s office in Tampa, Fla....
But the Walsh Act is the most far-reaching and may present the perfect opportunity for the Supreme Court to sink its teeth into such laws, Logan says.
The act “represents a ze nith in federal demands on states with re spect to registration and community notification,” he says. “Among other things, the law significantly expands the scope of registration eligibility and requires, for the first time, use of in-person verification and a conviction-based registration classification scheme. The states are expected to make major changes to their regimes, at significant trouble and cost.”
Badalamenti says, “I do not understand Congress’ intent on regulating a purely state issue. When Mr. Pow ers came into Florida, he, at most, committed a Florida crime in failing to register, and the decision to prosecute him should rest entirely with the Florida state government. But it shouldn’t be a federal crime.”
And when it to gets the Supreme Court, as Badala menti predicts, “I really do see the court revisiting the federalism issue as it did in Lopez and Morrison.”
I strongly agree with both Logan and Badalamenti. As I have argued, the Commerce Clause arguments really have a strong chance of success before the USSC if the Court stays true to its established constitutional doctrine.
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