December 13, 2011
Eleventh Circuit addresses interesting SORNA and ex post facto issues
The Eleventh Circuit has an interesting decision today on federal sex offender registration rules and ex post facto concerns in US v. WBH, No. 09-13435 (11th Cir. Dec. 13, 2011) (available here). The unanimous panel ruling begins this way:
The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901, et seq., which was enacted in 2006, requires criminals who have been convicted of a sex offense to register as sex offenders. In 1987, nearly 20 years before that Act was enacted, the defendant in this case was convicted of first degree rape. If he had ended his criminal career back then, he might not have had to register under SORNA. Instead of giving up crime, however, the defendant branched out into another field of criminality and in 2009 was convicted in this case for conspiracy to violate federal drug laws. Because of the defendant’s earlier youthful offender adjudication on the rape charge, in sentencing him on this federal drug charge the court imposed as a condition of supervised release that he register as a sex offender under SORNA. This is the defendant’s direct appeal from that sentence, challenging the requirement that he register as a sex offender.
The issue is whether it violates the Ex Post Facto Clause to require a defendant who is convicted of a post-SORNA crime that is not a sex offense to register as a condition of supervised release because of a pre-SORNA, Alabama Youthful Offender Act conviction that is a sex offense. See U.S. Const. Art. I, § 9, cl. 3. The answer, as we will explain, depends on whether the SORNA registration requirements are civil or criminal in nature for ex post facto purposes. As we will also explain, those registration requirements are, on the whole, civil in nature.
December 13, 2011 at 05:57 PM | Permalink
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If it's "civil in nature" then WHY is a CRIMINAL sanction imposed for failure to register (for a civil offense)???????????
Posted by: Book38 | Dec 13, 2011 10:13:16 PM
well i see the nazi wantabee traitor's on the bench are in FINE form today! Now if a roid from the sky could be in fine form ON THEIR HEADS!
Posted by: rodsmith | Dec 14, 2011 12:59:36 AM
The Catch 22 is that if a defendant argues that registration is ex post facto punishment, then the courts say that the procedure is civil. If the defendant argues that a charge of Failing to Register as a Sex Offender can't be used to trigger application of the habitual felon law because it is civil, then the courts rule that the charge is criminal.
Posted by: bruce cunningham | Dec 14, 2011 2:46:12 PM
yep bruce...typical two-faced LIES from the nazi wannabee crooks who now run this country!
what makes it especialy telling is that one of the two ORIGINAL states in the ussc court case in 2002 that make the registry and all it's illegal derivities LEGAL has now went back and said the USSC screwed the pooch in 2002 and that the registry has in FACT and IN LAW become an illegal after the fact punishment and is now ILLEGAL when applied to anyone who's crime predates it's enactment!
Posted by: rodsmith | Dec 14, 2011 6:00:42 PM
How do these bastards sleep at night?
O Yeah, most are ex federal district attorneys and therefore, finished at the bottom of their Law Class.
Posted by: albeed | Dec 14, 2011 10:16:17 PM
book38: "If it's "civil in nature" then WHY is a CRIMINAL sanction imposed for failure to register (for a civil offense)???????????"
me: maybe because its the duty to register which is "civil in nature" and because much of the criminal law can be seen as punishing violations of civil duties. See, Book38 - its like this - the laws of your state require you to register your car and get a driver's license. If you fail to do so, you will be punished - in that case, the lack of registration will be an infraction which is a very, very minor crime and at least where I live driving without a license is a misdemeanor which is a criminal offense. In that case, your criminal offense arose from your failure to follow what was a civil duty.
Perhaps the best example where criminal offenses result from the violation of civil duties are child abuse and especially the neglect cases. See, if you are a parent you have a legal duty to care for - and not abuse or molest - your children. If you fail to provide care you could be found guilty of child neglect a criminal offense which arose from the civil duty of a parent to care for a child Child support cases also can lead to crimes being committed from the violation of a civil duty.
Hence, there is nothing unusual about the sex offender registration being seen as civil because it imposes a duty on a certain population to affirmatively do something - that is much closer in concept to obtaining a driver's license than sending someone to prison. Your attempt at gotcha simply fails because if one sees crimes as creating a duty to not do something, it is easy to understand that criminal sanctions for violating a "civil duty" occur all of the time.
Now Bruce makes an excellent point regarding the how the scheme is arguably not a "civil registration" scheme in nature because it looks like punishment for a crime - although in this case, even if it was punishment for a crime, the registration requirement was imposed as punishment which means no ex post facto issue here (and really means that the court can just call it what it is and admit that they are finally doing what Alabama should have done a long time ago and actually punish this defendant for participating in the gang rape a woman. At the risk of sounding like Bill Otis, maybe had Alabama not given him a total joke of a sentence which amounted to slap on the wrist and a walk in the park on the original rape, the defendant would have gotten the message to not violate laws).
I mean, if you want to direct outrage at something direct it at the Alabama state court which let a rapist off with a three year probation sentence. Someone who participates in the gang rape of a woman and then after being given an undeserved break on the sentence continues to thumb his nose at the state by violating the law is not deserving of sympathy./ He already received misplaced sympathy once and look how he repaid Alabama - by continuing to break the law. Blama Alabama for this situation thanks to letting a rapist off without meaningful punishment. Only an extremely perverse person who has serious issues with women would see the rapist who got a slap on the wrist for a gang rape as any sort of a victim here.
Oh and Book38 - you failed to respond to my proposal for Erika's Law where you and your icky perv and rapist friends could escape the "Communist Facist" sex offender registry by opting for the nice democratic option - of physical castration (does anyone doubt that the slice and dice treatment for rapists and icky pervs would receive a large majority of support in this country regardless of what that pesky 8th Amendment says). One could also say given Biblical teachings, it is also the Biblical option since the Bible says that if a body part leads you to sin, you should chop it off - hence I figure that with this Biblical gambit, Erika's Law now has it all to get state legislatures support - beginning with having the name of a cute young woman (and you better agree with the cute part! But its still none of your business whether I have ever been sexually assaulted.) which is obviously a requirement for laws going against sex offenders.
Now I realize that supporting the court's opinion here makes me a nethandral facist communist but whatever. IT is absolutely not an injustice to make this rapist register as a sex offender. It is quite deserved even - and since it was imposed as a punishment for a crime, yes not sex related, but still a criminal act, it doesn't even have ex post facto concerns even if it was punishment and not a civil registration requirement like the court has ruled.
There is enough real injustice in this world to be concerned about some rapist who was given a slap on the wrist by a misguided court years ago on grounds of his youth having to register as a sex offender. But again, if the sex offender registry is so awful, why do I have the feeling that if Erika's Law was passed, no sex offenders would opt for having their private parts chopped off over the sex offender registry? Maybe because living in the community while listed on the sex offender registry really isn't as bad as the Book38's of the world make it out to be.
Posted by: virginia | Dec 15, 2011 7:08:38 AM
Thank you Virginia for your brief and insightful comment......NOT!!!!!!
Firstly, don't blame me because your a victim. I don't care what happened in your past. I had no part in it.
Secondly and most importantly, let me explain to you WHY I fight against this particular Unconstitutional Act....
"Because it's not lawful according to the Supreme Law of our land....The United States Constitution."
And WHY I fight is because.....
"If the lawmakers will take away the rights of one group, they will take away the rights of ALL U.S. Citizen's"
All American's now know that this is a true statement. Just look at what the politician's have done to our country and to our freedom.
Do you like apples Virginia? I just tore up your personal statements above by telling you, and everyone else who reads this comment, the truth. HOW DO YOU LIKE THEM APPLES???
Posted by: Book38 | Dec 15, 2011 9:51:07 AM
sorry virginia but you lost your argument right here!
"me: maybe because its the duty to register which is "civil in nature" and because much of the criminal law can be seen as punishing violations of civil duties."
when that DUTY as you call it was placed because of an conduct in the past....it's ILLEGAL. Unless your saying it would be perfectly legal to tell all left handed red heads they are now REQUIRED by LAW to now register once a month on pain of PRISON for failure to do so! just because at some point in the past...in this case BIRTH they became left handed red heads!
Posted by: rodsmith | Dec 15, 2011 10:06:32 AM
virginia is right on the law here. And, under the law, Congress could make failure to comply with the new civic duty to buy health insurance a crime as well. Interesting...
Posted by: lawyer | Dec 15, 2011 1:30:33 PM
I agree with you. Even if Registration was actually a "civil regulatory scheme", I don't see an issue with criminal sanctions for violating it. There are plenty of civil laws like that. Try not paying your taxes and see what happens.
Who the heck is Erika though? I guess you but I haven't read much about your proposed "Erika's Law". Are you suggesting that a person could choose to be dismembered instead of listed on a Registry? That a person would not choose to be dismembered because maybe "living in the community while listed on the sex offender registry really isn't as bad as the Book38's of the world make it out to be."? Because someone would not choose something terrible, then the other thing must not be that bad? What nonsense.
I think that if you haven't lived as a Registered person then you really can't appreciate so much what it's about. I truly believe that it does actually transform most people on it into people who basically hate other people. I feel that if you treat people a certain way then you are going to get something pretty close to that.
Here's my main issue with Registration. I KNOW that it does nothing significantly beneficial. That wouldn't be so bad except that it absolutely is a harassment scheme. It is a mechanism that is used by all kinds of different criminal governments and other entities to deliver new punsishments/harassments very, very frequently.
If the Registries were just used to "inform" the helpless people, then they wouldn't be so bad. But they are used for so much other adjunct idiocy. And most of that stuff is so asinine that the Registries are really just an affront and assault to all intelligent people. And if some new punishment/harassment is not an assault to all intelligent people, then it is likely an assault to any real American. Registration has enabled and cultivated so much BS that truly no decent American can support. In the whole, it is just a complete assault on all real, intelligent Americans. Unfortunately, the vast majority of U.S. citizens are not intelligent and a huge percentage are not real Americans. Real Americans will not sacrifice American ideals and will protect the rights even of people they hate.
This is how Registration could be more moral:
1) Criminal governments collect whatever information they want about whomever they want (we'll call them "the targeted people"). They can publish whatever they like. With just that, the original lies of the Registries will be fulfilled - people will be "informed".
2) The targeted people cannot just be "SEX OFFENDERS!!!!!!!". They must include all deserving felons, etc.
3) The targeted people are not required to do anything. They are not required to give any information to the criminal governments or do anything else.
4) The Registries are not allowed to be used by any entity to classify people to apply special rules upon.
5) The targeted people are not liable in any way to ensure that the information is correct. There are no civil or criminal penalties for any of it.
If all that were done, the Registries could be close to moral. Who could argue against that? That is what Registry terrorists should be pushing for. Or do we not think our criminal governments are capable of it? They have to "keep tabs" on Registered people anyway and "verify" all the information they are handed. So just collect the information in the first place. The terrorists can help them. They are the ones who want and "need" that information.
BTW, every day that goes by without the rest of the Registries in place, the terrorists lose more and more credibility.
Posted by: FRegistryTerrorists | Dec 15, 2011 2:47:11 PM
i'm with you FR. Plus virginia i'm still trying to figure out just WHAT would be removed to comply with "erika's law" for those who's crime was
watching a computer monitor
holding a photo
talking on a phone
or those who HAD NO REAL VICTIM at all!
Posted by: rodsmith | Dec 16, 2011 1:52:49 AM
frt: "Who the heck is Erika though? I guess you"
me: your guess would be correct.
Its really a placeholder name though if it ever hopes to develop into a proposal which will attract the attention of state legislatures. My thought was that because state legislatures pass any law with a woman's name and displaying the picture of a pretty girl or woman which restricts sex offenders, they would jump to support Erika's Law. But the more I think about it, the more I realize that it won't actually work with my name and picture - see, I'm a living dark complexioned brunette and hence no matter how pretty I am, the media just wouldn't care enough to fan the flames of hysteria to get my law passed. Stupid prejudiced media only cares about unquestionably White blonde victims and doesn't care about brunettes of undetermined racial backgrounds :(
I won't complain about the discrimination against the living however. Living is better than the :)
FRT: "Are you suggesting that a person could choose to be dismembered instead of listed on a Registry?"
me: yes, exactly. Although my ideal Erika's Law would if it wasn't so obviously in violation of that pesky 8th Amendment allow the court to order both registration and castration in forcible rape and child molestation cases.
FRT: "Because someone would not choose something terrible, then the other thing must not be that bad?"
me: my hope is that you put things in perspective - I could be wrong about this, but I believe that the sex offender registries have kept even more harsh sentencing laws from being passed. See, the alternatives to registration in the community are longer prison sentences for sex offenses, "civil commitment," or as you put it dismemberment (I guess that so called "chemical castration" is also an option). Erika's Law is also what a truly unconstitutional law looks like - my guess is that even if "voluntary" chopping off body parts still violates the 8th Amendment. And obviously nonvoluntary chopping off the body parts of rapists is unconstitutional no matter how much they may deserve it.
FRT: "If the Registries were just used to "inform" the helpless people, then they wouldn't be so bad"
me: in all seriousness, one of hte biggest reasons why I support having public sex offender registries is to stop unscrupulous people from selling infomration which is already legally public since there is unquestionably a demand for that information. I'm also in general supportive of public records being more readily available. The fact that someone has a sex offense conviction is already in the public domain.
FRT: "And if some new punishment/harassment is not an assault to all intelligent people, then it is likely an assault to any real American"
me: but, but, but - the registries specifically say that using the information to harass someone is a crime - you mean that isn't effective? ;)
FRT: "Real Americans will not sacrifice American ideals and will protect the rights even of people they hate."
me: on the other hand, I believe that the public has the right to know what is in a public record. That is also an American ideal.
FRT: "The targeted people cannot just be "SEX OFFENDERS!!!!!!!". They must include all deserving felons, etc."
me: I actually agree with that - I mean, I know how to access the government public record databases where I could make sure that the cute guy I just met isn't a convicted conman, but the general public doesn't necessarily have that info. But at least women would be able to learn if that cute guy they just met is a convicted rapist and that is worth something. I would agree that people who commit thefts and frauds should also be listed. But the fact that other people should be listed on public registries doesn't mean that sex offeners shouldn't.
rodsmith: "Plus virginia i'm still trying to figure out just WHAT would be removed to comply with "erika's law" for those who's crime was watching a computer monitor"
me: plucking eyeballs out is too cruel and unusual to even consider even as a "voluntary" punishment.
Book38: "Firstly, don't blame me because your a victim. I don't care what happened in your past. I had no part in it."
me: don't blame me because you're a convicted sex offender. Its not my fault that you couldn't take no for an answer or resist from having sex with children. Its not the fault of the media or state legislatures that you are on the sex offender registry - its your fault. Quit blaming others and depending upon what your original offense was maybe I'd even think that its possibly an injustice you're on there. but your hostility towards me indicates that no injustice took place in your case.
And of course, the law is not unconstitutional - especially as applied to people who have new criminal convictions.
Posted by: virginia | Dec 16, 2011 7:43:16 AM
Virginia: "but your hostility towards me indicates that no injustice took place in your case."
Me: I think your a hate filled lunatic that has decided to be a professional victim for the rest of her life.
Virginia: "don't blame me because you're a convicted sex offender."
Me: Who told you that I was a convicted sex offender? I might just be a relative who knows that the system was rigged from the start and I want that fact known to the public. You, Virginia, don't know how the AWA really came about. I do!
Think before you open your mouth next time.
Posted by: Book38 | Dec 16, 2011 10:31:36 AM
your wrong again virginia!
"Its not the fault of the media or state legislatures that you are on the sex offender registry - its your fault."
for the HUNDREDS OF THOUSANDS of people on the registry that DIDN'T EXIST when their crime happend it is IN FACT and IN LAW the fault of the media and the STATE!
Posted by: rodsmith | Dec 16, 2011 3:59:27 PM
Virgina: "maybe because its the duty to register which is "civil in nature" and because much of the criminal law can be seen as punishing violations of civil duties. See, Book38 - its like this - the laws of your state require you to register your car and get a driver's license. If you fail to do so, you will be punished"
The problem with that analogy, Virgina, is that driving a car is a privilege - not a constitutional right. If you Choose not to drive your car, you are not punished for not having a license plate on that car. If you Choose not to own a car and have a valid drivers license, you are not punished for diving a car registered to another driver [e.g. a family member]. Furthermore, drivers licenses and car registrations are not civil duties placed on a minority of the population [e.g. non-residents]. Every resident, and any non-resident visitor to the state, MUST have a valid drivers license to drive, and MUST have current registration and insurance for the vehicle they are operating. If a state passed a law that required ONLY black people to get a drivers license and/or register their vehicles, would that violate Article 1, sections 9 & 10? Would it be OK if states required you to have a valid drivers license even if you don't want one, don't want to drive or unable to drive?
TORT cases are civil actions, are they not? Why is it that passing a retroactive TORT law is unconstitutional, but SO laws are not? Why? TORT laws are applied civilly, whereas SO laws are only "intended" to be applied civilly - the intention is a smoke screen to obnubilate the unconstitutionally of the SO laws.
Virgina: "Oh and Book38 - you failed to respond to my proposal for Erika's Law where you and your icky perv and rapist friends could escape the "Communist Facist" sex offender registry"
Don't think its fair to assume that someone is an SO because they may be posting here, or are against the SO laws. Even if Book38 is, what does that have to do with an authoritarian government? You seem to be against federal enforcement of drug laws, and the war on drugs in general over social issues.
I don't remember the Boston Tea Party having anything to do with the flavor of tea they were being forced to buy.
Posted by: Huh? | Dec 16, 2011 4:51:08 PM
Virgina: "in all seriousness, one of hte biggest reasons why I support having public sex offender registries is to stop unscrupulous people from selling infomration which is already legally public since there is unquestionably a demand for that information."
Hmmm... so you are against anyone from profiting from the SO laws?
Posted by: Huh? | Dec 16, 2011 4:54:51 PM
FRegistryTerrorists: 1) Criminal governments collect whatever information they want about whomever they want (we'll call them 'the targeted people').
That sounds a lot like the Jacob Wetterling Act. I am for that!
Virgina: "but, but, but - the registries specifically say that using the information to harass someone is a crime - you mean that isn't effective?"
C'mon Virginia. What law that is effective? It be nice if laws actually deterred crime, but... it would also be nice if the SO registries actually did what they [you] claim they do.
Virgina: "But at least women would be able to learn if that cute guy they just met is a convicted rapist and that is worth something."
What if that cute guy just hasn't been caught yet? Who you going to blame then?
Posted by: Huh? | Dec 16, 2011 5:06:39 PM
huh?: "so you are against anyone from profiting from the SO laws?"
me: I'm against unscrupulous con artists charging exorbinate rates to access public information. Especially public information which is given away for free. What many of you fail to recognize is that the information aboutwhether someone is a convicted sex offender is already public information - its part of a public record. Because there is a demand for people to receive that public information, I do believe that hte government should provide it as a public service.
huh?: "What if that cute guy just hasn't been caught yet?"
me: how stupid do you think I am? its not like I'm going to look at the sex offender registry and say "this man isn't on there so I'm not going to take precautions around him" - but if he's not on there, I'll give him a chance while always being smart and avoiding high risk actions with someone who is essentially a stranger. If I look and see that a man is on the sex offender registry, then the conversation is over and he has absolutely no chance with me. And yes, the same thing does hold true if I look him up and discover that he has theft convictions or drug convictions or what have you. I may represent felons, but I'm not going to date them :P
huh?" "Who you going to blame then?"
me: the rapist. Okay, if I would be foolish enough to go to a strange guy's house and he raped me, I would blame myself for being stupid. But the rape is still the rapist's fault.
huh?: "what does that have to do with an authoritarian government?"
me: your problem is thinking that the sex offender registration is authoritarian - it is not, it is the product of democracy. I would actually argue that it is democratic in impulse because it is the product of an open government. The fact of a conviction is public knowledge - the inclusion of addresses and photos are necessary to avoid cases of mistaken identity. The sex offender registry merely provides publishing in a more assessible form that which was already a public record. You have no right to keep a public record confidential absent some compelling reason which would result in the record being sealed. When you rail against the public sex offender registries you are actually against open government and supporting closed government. No one has a general right to keep the fact of their conviction private. Because the sex offender registries are merely making what is already public records more public and easily assessible it is easy to see why they are purely civil and have been found Constitutional.
There is no right for an icky perv or rapist to keep the fact that they are an icky perv or rapist secret. Whether it serves a public interest to make that information more assessible is a matter of debate - but one based on facts such as the fact that the sex offender registries are both under and over inclusive. Not based upon demonization of those who support the registries. I do favor fixing the registries to make them more useful - but I support them in principle because I beleive in open government and because I think tht while flawed they are useful to the public. If you have been convicted of rape, i have the right to know that because that is a public record and i have the right as an American to know what is in a public record. You do not have the right to conceal your criminal past from me - and ultimately that appears to be the primary objection here to the sex offender registries - they keep rapists and icky pervs from hiding their pasts.
Rodsmith, see above what i am saying about public records - the fact that there was no registry doesn't alter the fact that the convictions have always been a public record. What right is there to hide a truthful public record?
book38: "Who told you that I was a convicted sex offender?"
me: I had believed that you had said that you were on the sex offender registry before. I apologize if I remembered things incorrectly. And in any case, if you do have a relative on the sex offender registry, maybe you should be blaming your relative for committing a sex offense rather than blaming individual voters who support having a public sex offender registry. I thought you right wingers were all about personal responsibility.
I've repeatedly told you that its none of your business whether I have ever been sexually assaulted. For you to call me a professional victim is ludicrous on its face. I'm not saying anything about it because its none of your business.
But regardless, you seem to have a lot of hate in your life and much of it seems to be directed towards women. Please, for your sake, seek counseling.
Posted by: virginia | Dec 19, 2011 4:56:52 PM
incidentially, when I original introduced my proposed Erika's Law (and given that I've revealed that my name is Erika, you can call me Erika) most of my point was that a truly totalitarian governmetn would at the minimum castrate sex offenders - long prison sentences are also likely - maybe kill them. A totalitarian government would not allow sex offeners to live in their own homes and work.
If you want to oppose something as being authoritarian ralted to sex offeners, look at infinite civil commitment of sex offenders based upon nothing more than a guess. Of course, I oppose civil commitment of sex offenders, but its not really authoritarian - but at least there you do not sound totally foolish because at least its closer to what an actual totalitarian government would do. The sex offender registry isn't - its simply publishing already public information.
Posted by: virginia | Dec 19, 2011 5:19:34 PM
I don't have time right now to read even your response to me. However, I did scan a few of the last postings here and please, please stop saying that the "SEX OFFENDER!!!!!!" Registry is "simply publishing already public information". As I said, if that was all it was, it wouldn't be so bad. But then of course, the criminal governments would have even less than zero excuses for not "publishing" all the convictions which are already public information.
Also, the Registries ARE the fault of the governments and the zealot terrorists who support it. People are going to commit sex crimes. It is the governments' choice how to react to it. What they choose and how they reacted was the idiotic Registries. They CHOOSE something experts told them was barely useful and counterproductive. They did that. Their choice. They could have done something intelligent and useful. We see what they did.
Posted by: FRegistryTerrorists | Dec 20, 2011 9:12:04 AM
Ericka: your problem is thinking that the sex offender registration is authoritarian - it is not, it is the product of democracy.
It is authoritarian because the SO laws favor absolute obedience to authority against individual freedom. If every crime had to be published as the SO crimes do, I would agree with you.
Erika: If you have been convicted of rape, i have the right to know that because that is a public record and i have the right as an American to know what is in a public record.
You have that right, and there has always been a process in place for you to obtain that information that did not require indefinite publication. Newspapers publish that information, don't they?
Erika: You do not have the right to conceal your criminal past from me - and ultimately that appears to be the primary objection here to the sex offender registries - they keep rapists and icky pervs from hiding their pasts.
If you are too lazy to do the work required to be an informed citizen, then you don't deserve the right to know. Pleading ignorance is no excuse, and this country is full of people who are too lazy and ignorant. Its always better to pass a law that suggests it will protect our kids, but does nothing more than require ISP's to track your Internet activity while compiling a list of your bank and credit card numbers for ANONYMOUS to hack into.
Posted by: Huh? | Jan 17, 2012 11:22:36 PM
what is the full form of SORNA
Posted by: steven | Feb 2, 2012 1:28:57 AM