Eighth Circuit Issues New SORNA Opinion

I was a bit disappointed with the Eighth Circuit's opinion in United States v. May because it didn't address in depth the legitimate constitutional arguments against SORNA prosecutions. To some degree the court's opinion in United States v. Howell cures the deficiencies of May. The focus of the Howell opinion was almost entirely the Commerce Clause arguments. Ultimately, the Eighth Circuit found in favor of the government, but the opinion is a more sophisticated discussion of the issues involved than has been offered in prior federal appellate court opinions. At the outset, the Howell court was bound by the May opinion which prevented a finding that 2250 (the crime of failing to register) was an unlawful exercise of federal jurisdiction: 

Thomas and Howell first contend § 2250 does not have a sufficient nexus to interstate commerce to be authorized by the commerce clause. This court has previously held § 2250 is constitutional under the commerce clause. See United States v. May, 535 F.3d 912, 921–22 (8th Cir. 2008). Thus, we adhere to that holding. See United States v. Wilson, 315 F.3d 972, 973–74 (2003) (“this Court’s precedent . . . prohibits any three-judge panel of the Court from overruling a previous panel opinion”).

As a result, the Howell court only considered whether 16913 (the registration requirements) were not supported by Commerce Clause jurisdiction (which I think is a tougher argument for the defense):

A narrow discussion which only analyzes § 16913 under the three categories of Lopez casts doubt on the constitutionality of § 16913. Lopez, 514 U.S. at 558–59. On its face, § 16913 does not have a jurisdictional “hook” to fit under the first two prongs of Lopez, and there is little evidence in this record to show intrastate sex offender registration substantially affects interstate commerce.

I think that is exactly right and I'm happy to see the court accepted that basic proposition. Where the court turned next is interesting: 

However, an analysis of § 16913 under the broad authority granted to Congress through both the commerce clause and the enabling necessary and proper clause reveals the statute is constitutionally authorized. To reach this conclusion, we first address whether SORNA is furthering a legitimate end under the commerce clause.... We believe Congress enacted SORNA to track the interstate movement of sex offenders. The language of § 16913 evidences Congress’s focus on monitoring this interstate movement of sex offenders by emphasizing the movement of sex offenders from jurisdiction to jurisdiction. The statute requires sex offenders to “register, and keep the registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a) (emphasis added). Subsection (c) focuses on the movement of sex offenders by requiring the offenders to update registration “in at least 1 jurisdiction” within three days of a change identified in subsection (a). 42 U.S.C. § 16913(c). Finally, the statute is concerned with interjurisdictional reporting of sex offender movement by requiring the jurisdiction where the offender updates his or her registration to notify “all other jurisdictions” where the offender must register. Id. This language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.

The last statement is definitely true, but it is also important to recognize that SORNA does much more. The national registry component of the AWA (which is surely constitutional) serves the entire function of tracking the interstate movement of sex offenders. 16913 and 2250 regulate intrastate and interstate conduct. If a sex offender is a day laborer, he or she must change registration information every day even if he or she never crosses a state line. An intrastate move similarly triggers re-registration requirements. Even if an offender stays within a state and never changes jobs, periodic reporting requirements are still in place. If an offender grows a beard, he must also report to change his registry information because of the change in appearance. The scope of SORNA goes far beyond wholly intrastate activities. However, the Eighth Circuit saw the requirements of SORNA very differently: 

Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce. 18 U.S.C. § 2250(a)(2). With this limitation, a resident of Iowa who has been convicted of a state sex offense and who does not leave Iowa would never be subject to federal sanctions if he fails to register. The Iowa resident could only be punished under Iowa law for failure to register. A wholly intrastate offender would never be reached by federal enforcement power. This limitation demonstrates Congress’s intention to punish only interstate offenders.

I'm not sure I understand the basis of this portion of the decision. There have been several defendants across the country whose travel was unrelated to the SORNA prosecution. In many cases the interstate travel was before the passage of the act. I outlined the facts of just one troublesome case in my recent article on the subject which should be out soon.

Ultimately, I think the Eighth Circuit has pushed the ball forward in discussing the Commerce Clause status of SORNA. However, I think the court has read into the statute an interstate commerce connection that goes beyond the text of the statute. Too many cases across the country illustrate that prosecutors consider any prior interstate travel wholly unrelated to a failure to register as a sufficient basis for federal jurisdiction. I think the Eighth Circuit should consider an en banc review of some of the SORNA cases in order to resolve the status of 2250(a) and 16913 once and for all. These cases are only going to become more common and soon the Eight Circuit will encounter a lot of fact patterns which illustrate the asserted broader scope of SORNA.

Although Judge Melloy was not the author of the opinion, he did join in it, so I should mention that I clerked for him.