Another federal district judge finds constitutional problems with Adam Walsh Act

Though I am still thinking about what to think about Chief Judge Alex Kozinski's kinky computer activities (basics here and here), there is a much more consequential federal sex offense story brewing concerning the SONRA provisions of the Adam Walsh Act.  Specifically, as detailed in this local story, another federal district judge has found constitutional problems with the Act:

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.  “The U.S. Attorney's Office will be recommending to the Office of the Solicitor General that we do appeal Judge Molloy's decision,” Fehr said Friday. The U.S. Attorney's Office must receive authorization from the solicitor general before appealing a decision.

According to Molloy's order, no other appellate court has ruled on the issue, and his decision could potentially clear the way for other similar indictments to be dismissed on the same grounds.  “If the factual scenario fits in other cases, we will try to get those cases dismissed,” said Tony Gallagher, executive director of the Federal Defenders of Montana. “It's a big decision and it's a highly tactical point.  We went after the indictment full bore with three motions to dismiss. We raised everything we possibly could, and Judge Molloy ruled that Congress went beyond its authority under the Commerce Clause in this particular scenario.”

The scenario at hand involves Bernard L. Waybright, 58, who in May 2004 was convicted of a misdemeanor sex crime in a West Virginia state court. As part of his sentence, he was required to register under the federal Sexual Offender Registration and Notification Act, which keeps track of where sex offenders reside. He then traveled to Montana on several occasions, but did not re-register with local law enforcement authorities, as required by federal law.

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.”

I cannot yet find a copy of Judge Molloy's 44-page opinion in Waybright, but I will post it as soon as I get my hands on an electronic version.

Some recent related posts:

• District Judge finds AWA registration provision unconstitutional
• Sex offenders and the city states: the AWA's many (trivial?) pursuits
• Notable Adam Walsh Act ruling from Eleventh Circuit