June 16, 2008
More on the Waybright decision finding federal SORNA provision unconstitutional
As first noted in this post, U.S. District Judge Donald Molloy last week found constitutional problems with provisions of the Adam Walsh Act in US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008). I just received from a friendly reader, and now have made available for download below, the full text of the opinion. Here is how it starts:
Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.
Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends: (1) Congress exceeded its power under the Commerce Clause in enacting SORNA’s registration requirements and making it a federal crime to fail to register; (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA; (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state; (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively; (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment; (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and (7) Waybright’s conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright’s motions took place on June 4, 2008.
No court of appeals has addressed Waybright’s arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright’s arguments, except one, lack merit. I agree with Waybright’s claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the Constitution. I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.
June 16, 2008 at 02:54 PM | Permalink
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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 [Read More]
Tracked on Jun 18, 2008 11:44:43 PM
Hopefully this will set the stage for the circuit split that will send this issue to the USSC. I would guess that the 11th will reverse Power/Buckius and the 9th will affirm Waybright. Even though the reasonings are different, something should be done to determine whether the act is enforceable or not, and hopefully the USSC will answer that call.
Posted by: CJ | Jun 18, 2008 11:28:14 AM
July 26, 2008
Alaska : Whole Case Decision and info on cfcamerica.org Downloads section.
Because ASORA compels (under threat of conviction) intrusive affirmative
conduct, because this conduct is equivalent to that required by criminal judgments,because ASORA makes the disclosed information public and requires its broad dissemination without limitation, because ASORA applies only to those convicted of crime, and because ASORA neither meaningfully distinguishes between classes of sex offenses on the basis of risk nor gives offenders any opportunity to demonstrate their lack of risk, ASORA’s effects are punitive. We therefore conclude that the statute violates Alaska’s ex post facto clause.160
Posted by: justadadathome | Jul 28, 2008 6:48:45 PM
HI IM BERNARDS DAUGHTER I HAVE ONLY MET HIM ONE TIME WHEN I WAS ABOUT 18 OTHER THEN THAT I WAS A CHILD AND DIDNT KNOW HE WAS MY FATHER AT THE TIME I SEEN HIM I FOUND OUT HE WAS MY FATHER WHEN I WAS ABOUT 16 YRS OLD. WHEN I HEARD ABOUT WHAT HE HAD DONE I JUST DONT KNOW WHAT TO THINK ABOUT IT ALL. IM NOW 31 AND HAVE 2 GIRLS OF MY OWN I WANTED TO GET IN TOUCH WITH HIM AND TO GET TO KNOW HIM AND FOR HIM TO KNOW HIS GRAND KIDS. I DIDNT EXPECTED TO FIND ALL OF THIS OUT ABOUT HIM. I WAS MOLESTED AS A CHILD BY ONE OF HIS BROTHERS WHEN I WAS YOUNG AND NOTHING WAS DONE ABOUT IT HIS MOTHER WAS VERY ABUSIVE WITH HER KIDS WHEN THEY WERE GROWING UP I DO NOT CARE FOR THE FAMILY I DONT SEE THE FAMILY I GROW UP IN FOSTER HOMES ALL MY LIFE FROM AGE 9 AND UP.AND I NOT SAYING HIS MOM IS THEY BLAME FOR HIS ACTIONS TO ME ITS HIS PROBLEMS NOT ANY ONE ELSES. BUT I WOULD HAVE LIKE TO KNOW MY FATHER IN A BETTER WAY....
Posted by: april nice | Sep 5, 2009 5:08:42 PM
Waybright must be dismissed with prejudice.
Posted by: Henry | Dec 2, 2009 7:11:59 PM