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April 12, 2013

Terrific SCOTUSblog preview of Kebodeaux and SORNA

A helpful reader reminded me not only that the Supreme Court has a last few criminal justice cases slated for oral argument the next few weeks as its term winds down, but also that one sex offender case, US v. Kebodeaux, due to be argued next week raises a host of intricate legal issue. Helpfully, Steven Schwinn sorts through Kebodeaux via this terrific (and very lengthy) post at SCOTUSblog  titled "Argument preview: Can Congress punish a former sex offender for failure to register?".  Here are highlights from the analysis section of the preview:
This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here)....

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

April 12, 2013 at 10:26 AM | Permalink


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here is a related question emanating from kebodeaux, which I'm sure won't be discussed, but one that I find intriguing. The def was convicted and his punishment set before the registration requirement was enacted. Would the requirement to register therefore violate the ex post facto punishment clause?

If the answer is no, as I'm confident would be the answer, then the basis has to be that registration is not criminal punishment. If it were, it would definitely violate the ex post facto clause.

So, what are the consequences of a decision that imposition of a registration requirement is not criminal punishment? In my opinion, there are three consequences. First, Failure to Register is not a crime in the Sixth Amendment sense and therefore a jury is not required to hear the case. Second, a "conviction' of failing to register, while it can carry punishment in and of itself, cannot be used to trigger enhanced punishment under a three strike statute, because it is not a substantive crime.

Finally, a conviction of the charge cannot be used for prior record level points unless specifically authorized by statute. In other words, again, it is not a crime and can't be counted for level points as a prior criminal conviction.

Thoughts anyone?


Posted by: bruce cunningham | Apr 12, 2013 10:53:06 PM


Except I can think of other cases where a brand new duty is imposed (and one of them carrying a civil registration requirement that simply did not exist prior to the new law) and that carries criminal penalties for failure to comply. (That example being the various incarnations of the military draft). Other new duties that carry civil requirements -- even ones that come mighty close to registration schemes -- couple with criminal penalties would be many taxes. I realize that the power to impose a draft or levy taxes flow from different Congressional powers than that used to monitor criminals but I honestly don't think the Court would see a real difference. The court will say (just as it has before) that the registration is civil in nature and thus not an ex post issue and that just like with so many other civil requirements it can be back with the threat of prosecution.

Posted by: Soronel Haetir | Apr 13, 2013 2:54:22 AM

We can argue all we want about semantics, but I find this case to be trifling compared to the issue of registration as a whole. As stated, this ruling is very narrowly defined, but I suspect the real issue of sex offender registration will not be argued until SCOTUS accepts a case with regard to the evolution of registration since the 2003 Smith v. Doe verdict rendering registration, in itself, regulatory and not punitive.

As such, registration was originally ruled regulatory because justices inferred that registration contained no liberty deprivations such as residency restrictions, employment restrictions, and Internet restrictions, and did not include any fees, exclusionary zones, and forced mailings every three months to neighbors. In addition, some registrants are classed differently from others, including their own selves, simply by moving from another state.

For instance, a registrant with a 10-year requirement from one state moved to another state with lifetime requirement for all registrants, then moved back to the original state. He was forced to register lifetime upon his return, because states have a "ratchet effect" policy: registration requirements can be ratcheted upward, but not go downward at any time.

Kobedeaux is only a tiny, tiny cog in the entire scheme which will not allow full resolution until Smith v. Doe is significantly challenged based upon punitive attachments to an ostensibly-adjudicated regulatory scheme.

Posted by: Eric Knight | Apr 13, 2013 5:55:54 PM

I agree Eric. Unfortuantley that also depends on the judges being honest. These are not even close. Othersise at some point in the last decade they would have stopped this shit. But they are in fact and in law helping it along. Therefore when the time comes as it always does and the ball swings the other way. I pray i'm there to see the suprised looks in thier faces as it hits them!

Posted by: rodsmith | Apr 13, 2013 9:25:57 PM

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