Sex Crimes

Is SORNA Going to the Supreme Court?

SCOTUSblog's recent Petitions to Watch post, which lists cases that might be heard by the U.S. Supreme Court, includes a case raising constitutional issues with SORNA. The case, which we previously blogged about, is from the Seventh Circuit with an opinion by Judge Posner. You may view the opinion here and the petition for writ of certiorari here. From the "reasons for granting the petition" section:

The Court should settle whether Congress meant SORNA to apply retroactively to persons whose underlying offense and interstate travel both predated enactment of the statute. The Seventh Circuit’s holding on this point conflicts with decisions of other courts of appeals (as the court below acknowledged) and of numerous district courts. And that holding is wrong: It departs from the plain statutory text; misstates the congressional purpose; and disregards the presumptions against retroactivity, and in favor of lenity and the avoidance of constitutional questions, that have been consistently applied by this Court. Review of the decision below accordingly is warranted.

Because the Seventh Circuit decided the question of statutory interpretation as it did, it was required to resolve the important constitutional question whether retroactive application of SORNA’s criminal penalties violates the Ex Post Fact Clause. Its decision on that question also warrants review. The district courts are deeply divided on the question--although the government has managed to suppress creation of a conflict in the courts of appeals by failing to appeal in those cases where it has been unsuccessful. Particularly in light of substantial flaws in the Seventh Circuit’s constitutional analysis, this Court’s guidance on the issue is essential.

While I do think that the USSC should chime in as to SORNA's constitutionality, I'm not sure the Justices will be interested in hearing these particular issues. The Ex Post Facto issue related to travel before the enactment of the AWA will disappear over time and only affects a small number of defendants. Still, the petition bears watching.

Seventh Circuit Skeptical of Indiana Law Restricting Adult Businesses

The Seventh Circuit, via Chief Judge Easterbrook, has issued an interesting opinion in Annex Books v. City of Indianapolis, a challenge to an Indianapolis ordinance that restricts when "adult entertainment business" may operate. The Appellate Court ruled that the city needs some compelling purpose to curtail the adult business. You may read the opinion here. You may also listen to the oral argument before the three judge panel, held five years ago today, here. From the Indianapolis Star:

Adult businesses selling books, movies and sex paraphernalia in Indianapolis will be able to open on Sundays -- and 24 hours a day -- unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

A federal appeals court ruling issued Thursday casts serious doubts on the future of key parts of a 2003 city ordinance that more strictly regulates "adult entertainment businesses" in Indianapolis.
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Unless the city can prevail on appeal or in a new evidentiary hearing, adult businesses not only could operate anytime, they also could provide booths or stalls with doors, where patrons can privately view movies on the premises.

"It is a pretty significant defeat for the city," said Richard Kammen, an attorney representing the four adult businesses that sued the city.

Indiana Supreme Court Declines To Hear Ordinance Challenge

The Chicago Tribune is reporting that the Indiana Supreme Court has declined to review an appellate court decision which upheld an ordinance banning registered sex offenders from parks in the suburb of Plainfield. From the Tribune:

The court declined to hear the case by a 4-1 vote, letting stand without comment a state Court of Appeals ruling upholding the 2002 ordinance.

The American Civil Liberties Union of Indiana had sought a ruling to clarify the court's stand on such local ordinances. The court has generally declined to strike down laws restricting the activities of sex offenders but has found constitutional problems with enforcement in certain cases.

Plainfield town attorney Mel Daniel said officials were pleased with the decision released on Thursday.

ACLU attorney Ken Falk said the group might now drop a lawsuit over a similar ordinance in Greenwood. 

Justice Department's SMART Case Law Update #25

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #25:

Doe v. Department of Public Safety, 2009 Md. App. LEXIS 56 (May 12, 2009)

Doe challenged the conclusive presumption of dangerousness (and the attendant registration and notification requirements for a “sexually violent offender”) that flowed from a conviction for rape.  This presumption was permissible.  In addition, his privacy, due process, and equal protection challenges were rejected.
 
Wallace v. State, 2009 Ind. LEXIS 401 (April 30, 2009) (link)
 
Relying in part on the decision in Doe v. State, 189 P.3d 999 (Alaska 2008), the Indiana Supreme Court held that the state’s sex offender registration and notification scheme was punitive under the Mendoza-Martinez factors and, as such, application of its requirements to an offender convicted and sentenced prior to the initial passage of the law was unconstitutional.
 
Jensen v. State, 2009 Ind. LEXIS 400 (April 30, 2009) (link)
 
Where petitioner was convicted and sentenced in 2001, and the only changes to the sex
offender registration and notification scheme since that time could fairly be characterized as
‘civil and regulatory’ under the Mendoza-Martinez factors, retroactive application of those
amended provisions was not a violation of the Ex Post Facto clause.
 
Commonwealth v. McBride, 2009 Ky. LEXIS 52 (April 23, 2009)

McBride was convicted of a sex offense in Tennessee and registered as a sex offender
there.  He subsequently moved to Kentucky, and failed to register as a sex offender as required
by Kentucky law.  Even though he was not specifically notified of his registration obligations in
Kentucky, the Court held that failure to register was a strict liability offense, and that he had an
absolute duty to register as a sex offender once he became a resident of Kentucky.

Justice Department's SMART Case Law Update #23

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #23:

Hansen v. Marr, 2009 U.S. Dist. LEXIS 5239 (D. Neb. January 26, 2009)

Petitioner filed a Habeas Petition, claiming that he was “in custody” for Habeas purposes because he was required to register as a sex offender.  The court disagreed, stating that “where sex offender registration statutes are remedial, rather than punitive, the registration requirements…do not satisfy the ‘in custody’ requirements” for a Habeas Petition.

Ward v. Tennessee, 2009 Tenn. Crim. App. LEXIS 43 (Jan. 14, 2009)

In this Habeas petition, the court found that the requirement to register as a sex offender is a collateral consequence of the underlying criminal conviction. The trial court did not commit plain error by failing to advise him of the requirement.

People v. Mosley, 168 Cal. App. 4th 512 (Nov. 19, 2008)

Mosley was convicted by a jury of assault, but acquitted at trial of committing a sex offense against a minor.  The trial court, based on its own fact-finding, ordered him to register as a sex offender, and thus submitting him to the residency restrictions in place in California.  The Court of Appeals held that the residency restriction is punitive (per Mendoza-Martinez) and, therefore, Apprendi requires a hearing where facts supporting the imposition of the residency requirement are proven beyond a reasonable doubt to a jury.

Obama Nominates District Judge in Indiana to Seventh Circuit

President Obama has nominated federal district judge David F. Hamilton (of the Southern District of Indiana) to the Seventh Circuit. Judge Hamilton received some notoriety last year for striking down an Indiana law requiring sex offenders to consent to a search of their computer at any time. For more coverage, check out Volokh, Sentencing Law & Policy, and the Marquette Faculty Blog. From the Indianapolis Star:

Federal judge David F. Hamilton of Indiana could be President Barack Obama’s first nominee to the federal appellate bench, the New York Times reported today.

The paper, citing unnamed administration officials, reported that Hamilton is expected to be nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.

Interest groups already have reacted to the news. The president of People for The American Way, a liberal advocacy group, called Hamilton an ideal choice.

“Throughout his career, he has demonstrated a willingness to put principle ahead of politics and bring an open mind to every case,” Kathryn Kolbert said. “Judge Hamilton has shown a deep commitment to the rule of law and core constitutional principles of liberty, equality, and justice for all Americans.”

Kolbert said she is also encouraged that, according to the Times story, Hamilton is backed by Indiana Sens. Evan Bayh, a Democrat, and Richard Lugar, a Republican.

Hamilton is the nephew of former Indiana Democratic Rep. Lee Hamilton, who supported Obama in last year's presidential campaign. He was appointed U.S. District Judge for the Southern District of Indiana in 1994. Before that he was a partner at the Indianapolis-based firm of Barnes & Thornburg, and he served from 1989-1991 as counsel to Bayh when Bayh was governor.

Recent 7th Circuit Cases

Michael O'Hear does a great job in rounding up the 7th Circuit criminal law cases at the Marquette University Law School Faculty Blog (which has become my favorite faculty blog and I definitely recommend checking out). Recently, he covered a few cases which might be of interest to you all. First, he posted about two enticement of minors cases that really stretches the bounds of attempt law:

Earlier this year, the Seventh Circuit addressed the question in another enticement case, United States v. Gladish, 536 F.3d 646 (7th Cir. 2008).  Gladish was caught in an Internet sting.  A government agent posing as a fourteen-year-old girl encountered Gladish in an Internet chat room.  After engaging in sexually graphic communications, the two “agreed” to have sex, resulting in Gladish’s arrest.  However, the Seventh Circuit determined that Gladish’s plan did not proceed far enough to support an attempt conviction: despite the agreement to have sex, there was never any specific time or place determined for the tryst.  Without something more than graphic Internet communications and a vague agreement, there was no “substantial step” and, hence, no attempt liability.
The two new opinions, both authored by Judge Wood, elaborate on the meaning of Gladish, but still leave the “substantial step” line more gray than black and white.
The first was United States v. Davey (No. 07-3533).  Davey was caught in an Internet sting much like the one that nabbed Gladish.  Davey encountered an undercover agent posing as a fifteen-year-old girl in a chatroom.  However, their “agreement” to have sex was much more specific than Gladish’s.  Later that day, Davey drove to South Bend, Indiana, where the two were supposed to meet.  He was arrested shortly after calling the undercover agent from a pay phone. 
Davey initially pled guilty to attempted enticement, but then sought to withdraw the plea, asserting that it lacked an adequate basis in fact.  The district court judge denied the motion and sentenced Davey to 126 months in prison.  Davey appealed, arguing (among other things) that he had not taken a substantial step.  In affirming the conviction, though, the Seventh Circuit had little difficulty distinguishing Gladish: Davey’s agreement was not only much more specific than Gladish’s, but he also actually traveled to the intended rendezvous point.
The second case, United States v. Zawada (No. 08-1012), was harder to distinguish.  Like Gladish and Davey, Zawada was caught in an Internet sting.  Like Gladish (and unlike Davey), Zawada did not travel to a rendezvous point and did not even establish a firm time and place for meeting the undercover officer.  However, Zawada did not raise the “substantial step” issue in the district court, and so was found to have forfeited the issue on appeal.  As a result, he could only prevail if the evidence fell so short of the Gladish requirements that his conviction amounted to “plain error.”  Holding that Zawada could not meet this standard, the Seventh Circuit affirmed his conviction.
Because it relied on the highly deferential plain error standard, the court did not have to (and did not) squarely address whether the facts in Zawada were distinguishable from Gladish. 

Readers might remember that I found the decision in Gladish useful enough to integrate into my Criminal Law class. I also added it to my syllabus for my new Sex Crimes seminar that I am teaching this semester. These two new cases provide even more helpful fact patterns for examining this really tricky area of law.

In a more recent post, O'Hear wrote about a case concerning abusive sexual conduct against a minor. From the post:

In the first, United States v. Osborne (No. 08-1176), the court considered the scope of 18 U.S.C. §2252(b)(1), which imposes a fifteen-year mandatory minimum sentence on certain child pornography defendants who have a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.”  Osborne, convicted of a qualifying pornography offense in federal court, had a prior conviction in Indiana state court for “fondling or touching” a person age fourteen or fifteen “with intent to arouse or . . . satisfy sexual desires.”  Thus, Osborne plainly had a prior conviction for sexual conduct involving a minor, but was it “abusive”?  The district court thought so, but the Seventh Circuit (per Chief Judge Easterbrook) rejected a broad interpretation of “abusive” that would result in all sexual conduct with a minor qualifying – such an approach would essentially write the word “abusive” out of the statute. 
Section 2252 does not define “abusive,” but other federal statutes define “abuse” for other purposes.  The court reasoned that such other statutes should be consulted to determine whether a prior state conviction counts as “abusive sexual conduct.” 
Based on its review of other statutes, the court indicated that mere sexual contact (as opposed to a sexual act) with a fourteen- or fifteen-year old would not qualify as abusive, at least without an age difference of at least four years.  (Cases of force, fraud, or intrafamilial sexual contact might be treated differently.) 
The Indiana statute that defined Osborne’s prior offense was broad enough to include nonqualifying sexual touching between, say, a high school sophomore and a senior, but also included acts that would plainly count as “abusive.”  In other words, examining the formal elements of the offense itself could not answer the question of whether Osborne’s prior offense constituted “abuse.”  The Seventh Circuit thus remanded for the district court to consider the charging documents and guilty-plea colloquy in the earlier case to determine whether Osborne’s offense should count as “abusive.”

Very interesting.

7th Circuit Rules on SORNA Constitutionality

The Seventh Circuit, in U.S. v. Dixon, joined the Eighth and Tenth Circuits in reaching the constitutional issues that arise in failure to register prosecutions under SORNA. The opinion is especially notable because it was written by Justice Posner. There is a lot to discuss about the opinion, but overall I am disappointed in the way certain issues were addressed. It seems like something may have been lost in translation in regards to some of the issues involved. In reviewing the Commerce Clause argument, for example, this is what Judge Posner wrote: 

The remaining arguments made by Dixon (other than a frivolous argument based on the Administrative Procedure Act) are based on the Constitution. Most of them have no merit, such as his contention (made only at oral argument) that the movement of a person as distinct from a thing across state lines is not “commerce” within the meaning of the Constitution’s commerce clause. Dixon’s lawyer must in the heat of argument have forgotten the Mann Act, 18 U.S.C. §§ 2421 et seq.

I took that to mean that the Commerce Clause issue was not even briefed. However, the first comment at Sentencing Law & Policy was from the defense attorney in the case who seemed to believe the Commerce Clause argument was his best position. So, I'm at a loss to explain how Judge Posner could so summarily dismiss the key argument from the defense attorney while stating it was only made at oral argument. I must be missing something.

Posner's reference to the Mann Act is distinguishable because a Mann Act crime only occurs when a person enters interstate commerce. However, SORNA necessitates no temporal or factual connection between the interstate travel and the violation. A person can travel years before the failure to register and still be subject to prosecution under SORNA (which is certainly not the case under the Mann Act). Indeed, in Dixon's case, his travel occurred before the passage of the Act, as Posner notes in discussing the retroactivity issues. Further, the disconnect between SORNA's requirements and interstate travel is exhibited in other situations as well. If an offender changes address or employer within a state, even to one across the street, he or she must re-register to avoid serious prison penalties under SORNA. In such a case, the prosecutor would merely have to allege interstate travel at some prior date (or potentially some date after) which was unrelated to the change in status that triggered an obligation to update registry information. As I have noted elsewhere, the Commerce Clause basis for SORNA is far from clear. I only hope that the Dixon opinion does not foreclose other 7th Circuit panels from reaching a different outcome as to the Commerce Clause issues involved. 

While Judge Posner was completely unimpressed with many of Dixon's constitutional arguments, he at least gave some credence to the Ex Post Facto claim: 

Dixon has one good argument, however, and that is that his conviction for failing to register violated the Constitution’s ex post facto clause. This is part of the original Constitution, not the Bill of Rights, and is foundational of liberty. Marks v. United States, 430 U.S. 188, 191-92 (1977). It both enforces the principle that legislation is prospective, whereas punishment—the job assigned by the Constitution to the judicial branch—is retrospective, and gives people a minimal sense of control over their lives by guaranteeing that as long as they avoid an act in the future they can avoid punishment for something they did in the past, which cannot be altered.

Nonetheless, the Judge Posner did not find an Ex Post Facto violation. Like many other courts, the 7th Circuit conflates obligations to register with states with the obligations to register with the federal government. There are important differences, however, in when those obligations apply, the information that must be provided, and the penalties for violation. 

In the end, however, Judge Posner does reach an outcome for one of the defendants on statutory grounds. However, the reasons for the 7th Circuit's conclusions are confusing. Professor Michael O'Hear at the Marquette Law Faculty Blog offered this helpful explanation:

The failure-to-register law punishes the combination of three acts: (1) the underlying sex offense, (2) interstate travel, and (3) failure to register after the interstate travel.  (Query whether #3 is truly an “act” — but the Seventh Circuit assumed as much without discussion.)  For Dixon and Carr, the first and second acts occurred before passage of the Walsh Act.  So, the only real question was whether their failure to register occurred after the effective date of the law (which, for them, was February 28, 2007, when the Attorney General first made the law applicable to them).  The court noted, though, that it would not be permissible to deem their failure to register to have occurred on February 28 itself; rather, there must be a “reasonable time” given for registering. 
So, as happens so often in the law, we are left to decide what it means to be “reasonable.”  The court declined to provide any bright-line test, but did hold that Dixon must be acquitted, while letting Carr’s conviction stand.  The difference?  Dixon was charged with failing to register “from on or about February 28, 2007 to on or about April 5, 2007.”  Carr, on the other hand, admitted that he had still failed to register “on or about July, 2007″ — about five months after the Attorney General’s regulation was issued.  “Five months is a sufficient grace period. . . . Carr had a reasonable time within which he could have registered. . . . [H]is rights under the ex post facto clause were not violated.”  Thus, while the Seventh Circuit has limited the reach of the Walsh Act a bit in Dixon, there is a clear outer bound: sex offenders must have registered within five months of the law’s effective date (and, as future cases may decide, perhaps even sooner).

I think it can be said that Judge Posner views the world in a way different than most. This unique reasoning for finding for the defendant in a SORNA case is consistent with his unique outlook. I'm not sure if any other court will follow his lead. It's also unclear if the holding has any real importance since a prosecutor can simply change an indictment to avoid the "reasonable time" issue by alleging a later date for "failing to register."

Notably, in the opinion, Posner took a very different view than the Tenth Circuit in Husted concerning whether SORNA applies to interstate travel before the act. For this reason, Berman and O'Hear wondered whether this "split" would attract Supreme Court attention. I'm inclined to think otherwise. While Judge Posner takes a different approach to interpreting SORNA, it is not an essential finding for the ultimate holding. Further, the issues involved are likely transitory in nature as cases alleging travel before the act are likely to disappear as time moves forward.

Constitutionality of Park Ban Upheld in Indiana

A judge has upheld the constitutionality of a city ordinance which prohibited convicted sex offenders from using the city's parks. From The Courier-Journal:

The ruling last week by Superior Court 1 Judge Vicki Carmichael came in a lawsuit brought by Eric Dowdell against the city for preventing him from attending his son’s baseball games in the city’s Little League Ballpark.

The ordinance, enacted in 2006 and amended last year, says convicted sex offenders can’t use city parks but provides an appeal process in City Court for those who believe they deserve an exemption

Dowdell sought an exemption from the city court twice, arguing that he was no longer required to register on the state sexual offender registry for his 1997 conviction of sexual battery and that he posed no risk if he was allowed in the park.
But he was denied the exemption based largely on convictions of battery and domestic violence since his 1997 sexual battery conviction.

Carmichael’s ruling wasn’t specifically on Dowdell’s request for an exemption from the ordinance, but was on whether the ordinance was constitutional.

Ken Falk, legal director of the Indiana ACLU, argued for Dowdell that the Jeffersonville ordinance violated his right to use public parks. Falk cited federal law protecting fundamental rights and state law protecting the use of parks as a “core value.”

But Carmichael ruled that entering parks was not “a fundamental right.” She also said that because Dowdell had the right to seek an exemption but was denied one, the ordinance protected his legal right to due process. And she said the ordinance was not unduly punitive because it didn’t ban Dowdell from all public areas but only from parks, which she said the city has the right to regulate.

Gavin Rose, a lawyer with the state ACLU who has worked on the case, said today the organization hadn’t yet received a copy of Carmichael’s ruling and thus hadn’t decided whether to appeal.

ACLU Asks Indiana Supreme Court to Review Town's Park Ban

The ACLU has asked the Indiana Supreme Court to review an appellate court decision which upheld one town's ban of a sex offender from its parks.  From The Indianapolis Star:

Attorneys for the American Civil Liberties Union warn that if Plainfield's ban on convicted sex offenders in the town parks is allowed to stand, similar bans and permanent punishment could spread across the state.

The ACLU, representing a Marion County man identified only as John Doe, have asked the state's highest court to review a September ruling by the Indiana Court of Appeals that upheld Plainfield's ban.

The state's high court is expected to decide by mid-November whether to accept the case or allow the appeals court decision to stand.

Plainfield's Town Council adopted an ordinance in 2000 that prohibits anyone on the Indiana registry of sex offenders from being in the town parks or recreation center.

In 2005, Plainfield police saw an Indianapolis man they recognized as a convicted sex offender in one of the town park facilities. He was with his young son. Police later told the man about the town's ordinance and told him not to return.

Court rulings have allowed Doe to remain anonymous even though his real name and criminal history are public and listed on the registry online. He has completed a prison term and probation.

The ACLU sued Plainfield in November 2005. Since then, the town's ordinance banning convicted sex offenders from town parks has been upheld in Hendricks Superior Court and the state Court of Appeals. So Doe and other sex offenders are still prohibited from Plainfield parks.

ACLU Legal Director Kenneth J. Falk said in the recent 19-page filing with the Supreme Court that Plainfield's ordinance, if allowed to stand, has the potential for far-reaching and statewide impact.

Greenwood, Lafayette and Michigan City have enacted similar bans. The ACLU has a suit pending against a Jeffersonville ordinance.

An Indianapolis ordinance passed two years ago was struck down in court as being too broad because the geographic areas of the ban covered most of the city.

Falk said the central issue in the appeal of the Plainfield lawsuit is whether access to the parks and recreational facilities is a legally defined "core value" for everyone in a community.

Plainfield claims convicted sex offenders do not have that right.

The ACLU claims that a permanent ban, even after an offender has completed prison and probation, is excessive punishment.