Sex Crimes

Carr v. United States - Initial Thoughts

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can "correct" the outcome whenever it wants. So, it isn't much of a decision against SORNA or the AWA in any meaningful way.

I have to say that I was more than a little disappointed that Justice Alito, who had to address the Ex Post Facto issue in his dissent, disposed of it in a single footnote paragraph which lacked any substance. Here was his argument on the issue:

Petitioner makes the additional argument that interpreting §2250(a)(2)(B) to reach pre-enactment travel renders the statute anunlawful ex post facto law. See U. S. Const., Art. I, §9, cl. 3. Petitioner remained unregistered in Indiana five months after the promulgation of the regulation making SORNA applicable to persons with pre-SORNA sex-offense convictions. For essentially the reasons explained by the Court of Appeals, see United States v. Dixon, 551 F. 3d, at 585– 587, I would reject petitioner’s ex post facto argument.

Even though it isn't a majority opinion, that treatment is just sad. Judge Posner's lower court opinion of the Ex Post Facto Clause claim was based upon lower court cases that were inapplicable (because they applied in instances where Congress specifically declared that the crime was a "continuining offense"). To just adopt such a poorly developed argument without engaging any of the briefing on the issue seems weak.

Of course, everyone has noted the odd alignment of the Justices as Thomas, Alito, and Ginsburg formed the dissenting group. I think if more were at stake in the case, such a grouping would have been unlikely.

There is plenty of coverage around the legal blogosphere and I should have more later.

Should Tennessee Teens Be Included In Sex Offender Registry?

Tennessee state legislators are debating whether to include juvenile information (such as names and photographs) into the state sex offender registry. From the Jackson Sun:

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape.

The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

H/T: Sentencing Law & Policy.

CA Bill Would Ban Sex Offenders From Social Networking Sites

A California legislator has recently introduced a bill that would ban sex offenders within the state from utilizing social networking sites (such as MySpace and Facebook). But some have already questioned the constitutionality of such a proposal. From the San Francisco Chronicle:

Sex offenders in California would be barred from using social networking Web sites such as Facebook and MySpace under a proposed law aimed at making the Internet safer for children as more and more of them flock to the Web.

Citing horrific cases in which children were sexually assaulted by men they met online, Assemblywoman Norma Torres, D-Pomona (Los Angeles County) introduced the bill last month, which would make it a crime for Californian's 63,000 registered sex offenders to use any social networking site. The proposed law defines those as a Web site "designed with the intent of allowing users to build networks or connect with other people and that provides means for users to connect over the Internet."

Assembly Bill 2208 is similar to legislation passed last year in Illinois, but doesn't go quite as far as a New York state law that additionally requires sex offenders to register their e-mail addresses and online aliases with state authorities, who can then turn over the names to the companies that run the social networking sites. After the New York law passed, 3,500 sex offenders were purged from MySpace and Facebook by the Internet companies.

The number of users on social networking sites has doubled since 2007, Torres said, and many of those users are children. She noted that just last month, a 33-year-old man lured a 12-year-old girl to a hotel in Anaheim, where she was sexually assaulted.

Oral Argument in Carr

The oral argument not particularly noteworthy in terms of argument advancement. I was surprised at several points where the justices didn't seem to know some basic points about the background of the case. Justice Breyer didn't know that every state had a sex offender registry even though that was the case when the Court decided Smith v. Doeyears ago. And everyone was focusing on the purposes of SORNA in a very basic sense. I think the most interesting exchange in the argument was when Justice Scalia was pressing the government:

JUSTICE SCALIA: I don't know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That's the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that -- that would later justify registration. It seems to me you are just making up the -- the prior act that -- that triggers the interstate travel requirement.
MR. GANNON: Well, I don't think that we are making it up, Justice Scalia.
JUSTICE SCALIA: Well, what text do you base it on? One says "is required to register," and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it's after you commit the offense that you must travel on interstate. Where do you get that from?
MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders.

I wished Justice Scalia had pushed the point one step further. Why exactly is it an anomaly for state and federal sex offenders to be treated in a different manner? If the only difference is based upon a different element which is jurisdictional in nature, a difference is not an anomaly - it is the essence of America's system of federalism. Of course, this is one of the problems with the Court only reviewing the statutory issue and Ex Post Facto claim (although the Ex Post Facto claim was barely mentioned in the argument). If the Court were also considering the Commerce Clause claim, the government would be in a pickle at the point of discussing the anomaly. However, Gannon was able to make an argument that seemed to quiet the Justices that he might not have otherwise been able to make.

Overall, I think Carr's side conceded an awful lot about the role of SORNA in our system. I understand why, since the claim they were focusing on was a statutory interpretation issue. However, the conflation of 2250(a) and the national registry really made the government's overall position easier to make. My prediction is a big loss for Carr on the statutory interpretation issue. Although I was an author of the Ex Post Facto brief, nothing from the hearing gave me any indication of how the Justices would approach that issue. I'm inclined to believe, though, that following the normal pattern the sex offender will lose and the Court will push the Ex Post Facto Clause a bit further to the side.

Carr Transcript is Available

You can download it here. I'll be teaching soon, but hope to read it after class and post a summary with commentary.

Sex Offender Day at SCOTUS

I took an unplanned hiatus from blogging to complete a couple of writing projects, but I will definitely be blogging today about the Supreme Court oral arguments (particularly about Carr). I will be interested to see where the Justices focus.

Ohio Supreme Court Hears Four Cases On AWA Implementation

Speaking of the Adam Walsh Act, the Ohio Supreme Court recently heard four separate cases concerning the implementation of the Walsh Act. The Columbus Dispatch has more. You may view video of all four oral arguments and the online docket using the links below.

• State v. Bodyke, Case No. 2008-2052 (online docket)
• Chojanki v. Ohio Attorney General, Case No. 2009-0091 (online docket)
• In Re Adrian R., Case No. 2009-0189 (online docket)
• In the matter of Darian J. Smith, Case No. 2008-1624 (online docket)

Why Comstock Matters

While the facts in Comstock are about at least one very bad person who will be diverted to a civil commitment facility, the importance of the case extends well beyond the fate of Graydon Earl Comstock, Jr. Among the constituencies and issues that might be affected, there are at least five potentially important results that could come out of the SCOTUS opinion.

First, as the first post-Raich case that might concern Commerce Clause doctrine, Comstock is obviously notable. If the Court retreats from the jurisprudence led by Justice Rehnquist in Lopez and Morrison, then it is quite likely the Commerce Clause will revert to being a meaningless bar to federal jurisdiction. In the alternative, the Court might continue its ideological pattern with Commerce Clause cases wherein liberal statutes (gun control and the Violence Against Women Act) get struck down while more conservative laws (drug laws and sex offender civil commitment) are upheld.

Second, if the Court wants to avoid meddling in the messy area of the Commerce Clause, it might pin a decision for the government on an expansive view of the Necessary and Proper Clause (as the government brief has asked the Court to do). Given the limited role of the Clause in recent decades, a reinvigoration of it could have even greater effects in expanding federal jurisdiction than a purely Commerce Clause opinion. Because the Necessary and Proper Clause applies to any of the enumerated powers, a Comstock opinion based upon it could end up super-charging claims of federal jurisdiction in a variety of contexts.

Third, if the Court decides for Comstock, the rest of the AWA might be reexamined under the Commerce Clause. As I have argued elsewhere, the Commerce Clause basis for SORNA is tenuous (although stronger than that of the civil commitment provisions at issue in Comstock). While a large number of district courts dismissed SORNA prosecutions on the argument that the Commerce Clause could not support such prosecutions, every appellate court so far has gone the other way. A defendant victory in Comstock would reopen the federal jurisdiction issues in such cases.

Fourth, if the government wins, the due process issues that were a second basis for the district court opinion will still need to be resolved. The government has sought a much lower burden of proof for civil commitment than has been tested before. If that lower burden is ultimately upheld, it might effectively end sex offender treatment in prisons (because statements in treatment by offenders are used for commitment proceedings and virtually assure commitment). Further, the burden of proof holding could extend to other areas of non-criminal commitment and preventive detention. 

Fifth, if Comstock loses regardless of jurisdictional basis, there is a genuine risk of some ugly bootstrapping scenarios using the civil commitment provisions or similar laws. Consider a situation where government wants to incarcerate someone, has evidence for an arrest (or depending upon how "custody" is interpreted, merely an interrogation), but not nearly enough for a prosecution and conviction. Or there might be an instance where there is evidence for a petty crime, but not for the higher crime that the government wants to prosecute. In either scenario, the government could bring someone into custody and then divert them to civil commitment with less procedural protections and a far lower burden of proof. Further, the diversion could end up lasting for a lifetime far in excess of the potential duration of criminal penalties. It really would allow an end-run around the normal due process protections in place during criminal arrests and trials.

KY AG Asks SCOTUS To Hear Residency Case

After losing in the state Supreme Court, Kentucky Attorney General Jack Conway has asked the U.S. Supreme Court to decide whether Kentucky's sex offender residency restrictions may be applied retroactively. You may view the petition for a writ of certiorari here. In an October 2009 opinion, the state Supreme Court ruled 5-2 that the law could not be applied retroactively without running afoul of state and federal constitutional prohibitions on ex post facto laws. You may view that opinion here. The decision is Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009). From the Courier-Journal:

The Kentucky Supreme Court ruled 5-2 in October that the statute was improperly imposed on people convicted before the law went into effect because both the U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law's enactment.

Conway's office filed a petition Wednesday asking the U.S. Supreme Court to hear the case. The court receives about 10,000 requests a year to review cases and decides only about 80. But the question of the retroactive application of sex-offender laws has arisen in several states, making it more likely that the high court will accept the case.

The 2006 statute subjected all convicted sex offenders to the residency requirements, while the old law applied only to about 1,200 offenders who were on probation or parole.

The Courier-Journal has reported that there were about 5,800 registered sex offenders when the law went into effect, although some of them may no longer be required to register.

Victims' advocates said they were disappointed with the state Supreme Court's ruling.

But experts said research has shown that sex-offender registries and residency restrictions don't deter future crimes. And some criminal justice officials said Kentucky's law makes it so difficult for some offenders to find a place to live that they stop reporting their addresses to authorities.

Ohio Shorthanded in Its Efforts to Monitor Sex Offenders

Ohio might be the only state in compliance with the Adam Walsh Act, but it is also entirely shorthanded in its mission to monitor local sex offenders. From Cleveland.com:

Cuyahoga County has the most sex offenders in Ohio, but only two full-time deputies regularly check on the 1,416 people considered the worst offenders.

Other large Ohio counties have fewer offenders than Cuyahoga's 3,300 but use more deputies to perform the state-mandated address verifications for Tier III offenders such as rapists. Franklin County uses five; Summit and Hamilton counties each use four.

Residents on Imperial Avenue in Cleveland never knew Anthony Sowell was a convicted sex offender until police unearthed 11 bodies from his property.

Neighbors questioned why they weren't notified by the Sheriff's Office about Sowell's violent past. He served 15 years in prison for attempted rape. Those residents never knew because Sowell moved into the house after getting out of prison in 2005 -- three years before a law took effect that would have notified neighbors about his past.

Sowell was required to register his address with deputies every three months. He did it most recently on Sept. 2. A deputy verified it Sept. 22 -- eight hours before prosecutors say Sowell attacked a woman in his home.

The two Cuyahoga County deputies who knock on doors nearly every day said the law requires them to spend considerable time checking low-level offenders instead of the most dangerous offenders.