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June 24, 2013

Big SCOTUS majority blesses congressional power to go after sex offenders through SORNA

Though Supreme Court anticipation now is mostly about matters tangential to the interest of truly hard-core sentencing fans, there was one last case dealing with federal regulation of sex offenders that SCOTUS handed down this morning.  Here is the early report via SCOTUSblog:

U.S. v. Kebodoeux. The Fifth Circuit is reversed and remanded.  Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause.

Justice Breyer has the opinion for hte Court. Vote is 7-2.  Chief Justice files a concurring opinion (in the judgment only) joined by Alito; Justice Scalia dissents, for himself; Justice Thomas dissents in an opinion joined in part by Justice Scalia.

SORNA is the Sex Offender and Registration Notification Act....  Here is the opinion in Kebodeaux, the SORNA case.

June 24, 2013 at 10:21 AM | Permalink


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This decision is (or at least should be) expected, based on 2010's U.S. v. Comstock. The breakdown in votes is identical, J. Alito wrote a concurrence in both (which are quite similar in tone), and J.J. Thomas--Scalia were the dissenters in both. The Chief's concurrence is much appreciated, too (especially because I disagree with the majority opinion in most respects), and Thomas's dissent reads identical to his from Comstock.

Interesting stuff, for sure, but the specificity of the opinion leaves many questions unanswered. (What about non-exservicemen offenders; what power of Congress governs their hold to SORNA's requirements? What about one not subject to the Wetterling Act? What about one in a state with materially distinguishable conditions of registration? And so on. The dissent also asks many of these questions, implicitly.)

Posted by: Ryan | Jun 24, 2013 1:15:14 PM

What is notable is that Thomas and Scalia are the only justices that actually see the blatant constitutional violation that this decision has incurred. While many law and order types and conservatives may be cheering this decision, it is the first decision that the court has ever administered, in my opinion, that created a situation that favored the federal government over the individual despite the fact that all violations occurred intrastate. The only federal connection had been the violation itself, but registration had ONLY been ruled constitutional because it was a state matter, and regulatory, NOT punitive. In short, this decision has justified the fears that Smith v. Doe originally provided in dissent. I'm sure even Thomas and Scalia, who had voted for the registry in the first place, have now recognized the irreversibility of this decision.

Sex offender issues have always been the bellwether, or the canary in the mine, of American constitutional issues. This is, by far, the most anti-constitutional court in modern history, and certainly will create a serious reinterpretation of the US Constitution as we know it. To that end, the canary has died; how long before the rest of the citizens suffer the same fate is to be determined.

Posted by: Eric Knight | Jun 24, 2013 1:23:48 PM

I'm sure even Thomas and Scalia, who had voted for the registry in the first place, have now recognized the irreversibility of this decision.

Thomas and Scalia are two pretty bright guys. I would hesitate ever to suggest that they do not recognize the implications of what they voted for.

Posted by: Marc Shepherd | Jun 24, 2013 3:23:42 PM

sounds to me like it's long long long past time that those on the registry see the handwriting on the wall and arm themselves and discuss this continual criminal action in a langues these hatefilled nazi wannabee's understand good old fashioned VIOLENCE. IE a necktie party!

or as the people in the 1800's used to say "the only good indian is a dead one!"

now can be changed to

"the only good politican is a DEAD one"

Posted by: rodsmith | Jun 24, 2013 4:38:54 PM

of course they do marc the problem is t hey are too chicken to go back and say sorry we told you in 2002 that as set it did NOT resemble probation/parole. But what we now have IS in fact and LAW an ILLEGAL retroactive LIFETIME parole.

Therefor it's GONE!

It's not going to happen till a pistol barrel is up thier nose and they are forced to stop the lies!

Posted by: rodsmith | Jun 24, 2013 4:41:14 PM

Thomas and Scalia are two pretty bright guys. I would hesitate ever to suggest that they do not recognize the implications of what they voted for.

I cannot follow your logic. You are implying that Thomas and Scalia voted for registration in the 2003 decision because they recognized that the implications of registration were malevolent, yet, because of said malevolence, they voted to dissent in the case that precisely defines the reasons for the mess that exists today vis a vis SORNA.

So much for comparing registration "as inconsequential as filling out a Price Club application." (as quoted by pre-Supreme Court Justice / State Attorney John Roberts, Smith v. Doe).

Posted by: Eric Knight | Jun 25, 2013 3:23:21 AM

I love it that Thomas and Scalia get lashed in the comments section, when the heavy lifting that got this case decided the way it did came from the liberal bloc, not a single one of whom gets mentioned, much less criticized.

Liberals do protect their own.

Posted by: Bill Otis | Jun 25, 2013 9:48:58 AM

LOL guess that proves again that i'm not a liberal. Since i pretty much want to collect the entire american govt from the local to federal lvl including judges, cops and the rest of them in one spot preferably somewhere in the middle of nowhere in the desert in the southwest and then NUKE the spot!

Then we can start over! with a new crop the major requirment being that you have NEVER been in govt service before!

Posted by: rodsmith | Jun 25, 2013 1:45:35 PM

I know very little about SORNA. But I do know that the criminal regimes that run Registration schemes deserve disrespect and scorn.

I've had such a busy summer already but I'm going to use the continued activities of the criminal regimes as the motivation to completely double down on ensuring that the Registries are not just worthless, but much, much worse. Only naive fools support the Registries.

Posted by: FRegistryTerrorists | Jun 25, 2013 5:47:38 PM

rodsmith -

"Then we can start over! with a new crop the major requirement being that you have NEVER been in govt service before!"

It won't do any good. The ones who want to get in are even worse than the ones already there, hard though that is to believe.

Posted by: Bill Otis | Jun 26, 2013 9:12:39 AM

My disappointment is from the back end, noevidence of efficacy, just government make work. The lack of external validation makes them unfair, in violation of Fifth Amendment Due Process.

Neither Jesica nor Megan would have been helped. Megan was taken after opening the door to her neighbor. Jessica was asleep in her bed when taken. What would have saved these beautiful innocent little girls?

123D. Kill the child rapist atthe erliest age palatable. Why does the VFL protect the serial girl rapist? He generates lawyer jobs. Little girls generate nothing, and may rot in their garbage bags, buried alive.

Thank a laawyer if you enjoy the burial of beautiful little girls in garbage bags.

Posted by: Supremacy Claus | Jun 26, 2013 10:37:06 AM

Rod: Agree with Bill. Nor do I see any difference in rent seeking between the parties.

Posted by: Supremacy Claus | Jun 26, 2013 11:14:58 AM

sure it would bill, SC.

becasue of a couple of details.

fist you could no longer make govt work a career. one term and that's it. You don't get paid. State picks up your expenses while in office. After that you go home!

second we've had almsot a century of professional politicians. NOBODY could be as fucked up as they are. ANYTHING would be an improvement.

third the new crew would have positive proof that if they screw up they are DEAD!

Posted by: rodsmith | Jun 26, 2013 12:21:15 PM

If the government pays me for a sack of flour, and I never dekliver it, if I bill Medicare for a surgical operation I never performed, what is that called?

What about starting an expensive registry followed by more child sexual abuse, more child porn sites, more strnager abductions, rapes, and murders of little girls, what is that called?

Posted by: Supremacy Claus | Jun 26, 2013 2:26:32 PM

This argument is a bit out of whack. Murderers of little girls will never be registered and living in the communities, and should be executed, no matter if sexual contact happened or not. Other such reprobates are increasingly being given multiple decade sentences, so they won't be getting out anytime soon either. The majority of sex offenders, though, are not of the same mold.

That said, my foray into this argument was not just limited to sex offender registration impact. It was a diss of the Court's fundamental mission: to rule with regard to the US Constitution, as written, and NOT to creatively interpret it to the whims and vagaries of a contemporary majority. Even an advance legal layman such as myself can state the obvious.

Posted by: Eric Knight | Jun 26, 2013 3:16:46 PM


I would be fine with a Court that would be willing to state that sex offender registries are unconstitutional so long as they were also willing to admit that the entire line of 8th amendment cases based upon "evolving standards of decency that mark the progress of a
maturing society " are complete bullshit. But if the court is going to stretch the document in ways you like you can't very well complain when it does so in ways that you do not.

Posted by: Soronel Haetir | Jun 27, 2013 2:27:23 AM

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