Sex Crimes

Around the Web

Crime and Consequences points us to a Poughkeepsie Journal report that "a convicted sex offender who violated the terms of probation less than an hour after he left the courtroom in July received 1 1/2 to five years prison sentence today ." The man had been placed on probation after he admitted he had failed to notify police he had changed his address, as required by state law for most sex offenders. The original story may be viewed here.

Last week, the Iowa Supreme Court reversed a man's conviction for indecent exposure, "because neither of the female victims saw Ronnie James Isaac's genitals." FindLaw has more.  You may view the opinion here. H/T: How Appealing.

Two federal district judges in Montana have "reached opposite conclusions about the constitutionality of a federal law that requires sex offenders to register with local authorities when they move to another state."  District Judge Richard Cebull ruled last week that the Adam Walsh Act and the included Sex Offender Registration and Notification Act (SORNA) are constitutional, but District Judge Donald Molloy  ruled in June that the act didn't pass constitutional muster.  According to the article, "[t]he contradictory rulings mean the U.S. 9th Circuit Court will have to resolve the matter." The big question is whether a Circuit split will eventually emerge to get the Supreme Court's attention.

A New Jersey lawmaker, Assemblywoman Linda Greenstein, wants to require sex offenders "to divulge their personal e-mail addresses and share their passwords."  The new restrictions would allow parole officers to monitor convicted sex offenders' e-mail use.

A convicted Nevada sex offender will be tried in October "on charges he attempted to light the Nevada Supreme Court Building on fire in June to protest a change to sex offender registry laws."  The man pled not guilty to fourth-degree arson last week.  According to court records, the man told investigators he was "upset about changes made during the 2007 Legislative session in the sex offender tier system." The fire caused minor damage.

Around the Web

CrimProf Blog directs us to an article on Law.com discussing "[a] steadily increasing number of courts across the United States are prohibiting witnesses and victims from uttering certain words in front of a jury, banning everything from the words 'rape' to 'victim' to 'crime scene.'"  According to the article, prosecutors and victims' rights advocates claim that "courts are going too far in trying to cleanse witness testimony, all to protect a defendant's right to a fair trial."  The ABA Journal has similar coverage.

ZDNet reports that Wisconsin Gov. Jim Doyle is "backing off of a bill he signed requiring lifetime GPS monitoring of child sex offenders." According to the article, Gov. Doyle  intends to use passive monitors that cost much less than the real-time devices and delay implementation of the law he promoted on the campaign trail to save money.  Even under the new plan, the program would cost over $11 million.  The Milwaukee Journal Sentinel has more.

South Carolina Gov. Mark Sanford has "signed a bill that makes it illegal for sex offenders to live within 1,000 feet of schools, day care centers and playgrounds."  Sex offenders who violate the new law could be charged with a misdemeanor on the first offense and face up to 30 days in jail and a $500 fine.

The town of Weymouth, Massachusetts is "joining a growing number of communities across the Commonwealth by banning Level 3 sex offenders - those deemed most likely to re-offend - from living within 1,500 feet of any school, park, daycare center, or recreational facility."  The move makes it nearly impossible for Level 3 sex offenders to actually live in town.  According to the article, "[w]ithout a state law restricting where sex offenders can or cannot live, municipalities are increasingly ... drawing up maps that hem sex offenders into tiny pockets of town or forbid them from visiting public places like libraries."

U.S. Attorney Bill Mercer (District of Montana) says his office will "withhold federal prosecution against offenders within the Missoula District," in light of a ruling (which we previously mentioned here and here) that found constitutional problems with the Adam Walsh Act.  The U.S. Attorney however did state that sex offenders whom fail to register in Montana will still be prosecuted, but not within Missoula District; his office will forward on prosecutions within the other districts.  Of note, the U.S. Attorney did note that he expects the Justice Department to appeal the decision to the 9th Circuit or defend the law as Constitutional in another court.

Sentencing Law and Policy reports that the New Hampshire Supreme Court has "upheld the state's practice of charging convicted sex offenders $34 a year to pay for the state's sex offender registry."  The appellant, who was convicted in 2000 of five counts of felonious sexual assault on a 15-year-old girl, challenged the twice-a-year $17 fee convicted sex offenders must pay each time they register their address and other particulars with their local police department. According to the article, "[t]he money covers the cost of registering sex offenders: $15 of it goes toward the costs of maintaining the statewide sex offender registry. The remaining $2 goes to the local police department for work registering offenders."  The Boston Globe has more.

An Ohio man, who police say was caught on tape having sex with a picnic table, will now spend six months behind bars.  The man has pleaded no contest to several misdemeanor charges.  County police report that a neighbor secretly taped the man "walking out onto his back deck in broad daylight, at times completely naked, standing at a round, metal table on its side and having sex with it."

US v. Waybright

As previously mentioned in a couple of previous posts, a district court in Montana struck down the AWA's registration provisions on Commerce Clause grounds. Sentencing Law & Policy has graciously uploaded the opinion and I finally had a chance to read it. Here are some of the interesting details regarding the Commerce Clause analysis (the excerpted section is quite long to give a full flavor of the argument):

Waybright argues Congress exceeded its power under the Commerce Clause by enacting two specific provisions of SORNA—18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. Section 2250(a) creates a federal offense where an individual (1) is required to register under SORNA; (2) travels in interstate commerce; and (3) knowingly fails to register or update a registration as required by SORNA. Section 16913 imposes registration requirements on all sex offenders in the United States regardless of whether they travel in interstate commerce....

Although § 2250(a) contains a jurisdictional element requiring a sex offender to travel in interstate commerce, Waybright maintains this element is insufficient to bring the Act within Congress’ Commerce Clause power because the Act does not relate the purpose of the travel to the failure to register. Waybright further notes § 2250(a) does not specify when the travel must have occurred. According to Waybright, upholding § 2250(a) without requiring a temporal connection between the travel and failure to register would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life....

Waybright’s assertion that § 2250(a) does not require sex offenders’ interstate travel to be linked to their failure to register is accurate. The statute does not, for example, require sex offenders to cross state lines for the purpose of evading registration laws. It is thus distinguishable from other federal criminal statutes that have been upheld against constitutional challenges based on their requirement of a direct link between the criminal act and travel in interstate commerce....

Section 2250(a)’s failure to require a connection between the jurisdictional element of travel and the criminal act of failing to register, however, is not fatal. As an initial matter, the Supreme Court’s formulation of the second category of activity subject to regulation under the Commerce Clause explicitly includes the activity criminalized by § 2250(a). Under this category, Congress may regulate “persons . . . in interstate commerce, even though the threat may come only from intrastate activities.” Lopez, 514 U.S. at 558. This language encompasses § 2250(a) because the statute regulates sex offenders who travel in interstate commerce even though the threat Congress was attempting to address—failure to register as a sex offender—is an intrastate activity....

Waybright asserts, even if § 2250(a) is a valid exercise of Congress’ Commerce Clause power, he cannot be convicted under the statute because he should not have been required to register under § 16913 in the first place....

Unlike § 2250(a), its requirements are not limited to only those sex offenders who travel in interstate commerce. By its terms, § 16913 does not regulate the use of the channels of interstate commerce or the instrumentalities of interstate commerce.  Therefore, it cannot be upheld under either of the first two categories of activity subject to regulation under the Commerce Clause. Instead, if it is to be sustained under the Commerce Clause it must fall within the third Lopez category, i.e., regulation of “activities that substantially affect interstate commerce.”6 514 U.S. at 558.

The court's reasoning is fascinating in how different it is than the court's opinion in Powers. In Powers, the district court found section 2250(a) to be an unconstitutional exercise of constitutional power by Congress. I have argued in support of the Powers opinion on this ground. However, the court here in Waybright concludes that, under Lopez, Congress is free to regulate "persons ... in interstate commerce" including sex offenders who don't register. This fits 2250(a) under a different Lopez category than the nexus argument upon which I have focused.

Nonetheless, the court in Waybright finds the statute unconstitutional because section 16913 does not have any jurisdictional limitation. Thus, the statute is not supported by the Commerce Clause.

I have to admit that I'm a bit confused on the court's distinction between 2250(a) and 16913. The focus seems to be that 16913 does not have a jurisdictional limitation. However, the court found that the 2250(a) limitation was defective. If the Lopez "persons" category makes the defective 2250(a) jurisdictional limitation irrelevant, why does it not accomplish the same feat in regards to 16913? After all, just like 2250(a), 16913 concerns persons traveling in interstate commerce.

So, while I agree with outcome, I am struggling to put together the reasoning of the court in this opinion. I think the court could have made a strong argument that the Lopez "persons" category doesn't apply because it really isn't the case that persons in interstate commerce are being regulated - it is actually actions subsequent to travel at some later date that are being punished. Still, this decision will force a circuit court to deal with yet another wrinkle in this complex discussion of the Commerce Clause in regards to the AWA's registration provisions.

Around the Web

The Minneapolis Star Tribune has an editorial discussing the "horrors" of the Minnesota Sex Offender Program.  According to the editorial, "Minnesota has abdicated the responsibility of telling the difference" between those people who "should never be allowed to walk freely in society again" and those who should be.

Sentencing Law and Policy has more on the decision of a federal judge in the District of Montana (which we previously mentioned) who recently found "constitutional problems with provisions of the Adam Walsh Act."  Berman was also able to get a copy of the opinion from a friendly reader, which is available here. I'll have more on this opinion once I've had a chance to read it.

CNN has an article discussing a recent raid by the U.S. Marshals Service to apprehend a suspected sex offender who has been on the run for more than two years.  The article mentions a 95 mile per hour chase through downtown Atlanta and a chase on foot which ultimately ends with a peaceful surrender.  The 25 year old man had been accused of exposing himself to a 10-year-old boy in a Wal-Mart bathroom and masturbating in front of him.  He pleaded guilty to one count of child molestation on in 2005, but he subsequently skipped town before a sentencing hearing.

Another District Court Finds AWA Registration Provisions Unconstitional

And the holding was apparently based upon Commerce Clause grounds. Sentencing Law & Policy is covering the story. Like Berman, I couldn't find the opinion (the District of Montana's website has a link for opinions that is under construction). Here is a media account of the decision:

A federal judge in Missoula this week ruled that a provision of the national Sexual Offender Registration and Notification Act is unconstitutional and dismissed a felony indictment accusing one sex offender of failing to register in Montana.

In a 44-page opinion issued Wednesday, U.S. District Judge Donald W. Molloy ruled that Congress cannot federally criminalize a sex offender's failure to register in a state-run database. Congress therefore exceeded its authority under the Interstate Commerce Clause by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction, Molloy wrote.

Jessica T. Fehr, a spokeswoman for the U.S. Attorney's Office in Montana, said the government intends to appeal the decision to the 9th U.S. Circuit Court of Appeals....

In his order, Molloy dismissed the indictment without prejudice, ruling that the provision “would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life.”

Because Molloy dismissed the indictment “without prejudice,” federal prosecutors can re-allege the charges against Waybright if they find another legal hook to do so.

Federal defender John Rhodes of Missoula filed the motions to dismiss the indictment, asserting seven different legal grounds that he argued during a hearing earlier this month.

Molloy denied a majority of those arguments, but ruled in favor of Rhodes' assertion that Congress overreached its authority and violated the Interstate Commerce Clause.

As was apparent the last time a district court ruled this way, this is a very controversial ruling. As I've championed this argument for a while, I'm happy to see another district court on board. This decision means the 9th Circuit will join the 11th Circuit in having to evaluate this argument. And it only takes 2 circuits to form a split.