Posted by: Maggie Hoffman, Tyler Holyfield, Bryce Johnson, Dominic Kearns, Brian Kehoe, Eun Hyung Kim
How would you feel if you were legally forced to report to the federal government where you live, how old you are, how tall you are and how much you weigh? What if you were forced to inform the government anytime you moved your residence or switched jobs? What if you learned that the government had published this information for the whole world to see? These are the requirements the government has placed on sex offenders to report and have published this personal information to comply with the federal requirements of the Sex Offender Registration and Notification Act (SORNA).
Due to the tracking of sex offenders, after they have served their sentence, SORNA has triggered many questions and objections to its constitutionality. What allows the federal government to regulate intrastate travel of a sex offender? How can a person who has only been convicted of a state sex offense be punished by a federal statute? How does the necessary and proper clause constitutionally authorize a sex offender registry? These questions the Supreme Court has been forced to answer in United States v. Comstock and United States v. Kebodeaux, both challenging the constitutionality of the Sex Offender Registration and Notification Act (SORNA). SORNA has been found constitutional under both the Commerce Clause and Necessary and Proper clause located in Article 1, Section 8 of the Constitution but objections to the constitutionality remain.
What is SORNA?
Created in 2006 by the passage of the Adam Walsh Child Protection and Safety Act. SORNA established a comprehensive and national sex offender registry. The act was created to help protect children from exploitation including child pornography as well as to reduce child abuse and keep children safe from child abuse and violent crime.
Under SORNA, sex offenders in all 50 states, District of Columbia and principal United States. territories must register where they reside, and any change of registered residence must occur within three days of moving. SORNA expanded the number of sex offenders and sex offenses which require registration. The Act established minimum registration periods based on the seriousness of the prior offense and likelihood of a future offense.
Further, sex offenders must from time to time make in-person appearances to verify their registration information and released more information to the public regarding the offenders to help keep neighborhoods safe. One of the constitutionally challenged provisions of SORNA is that sex offenders who fail to register or update their information can be punished even if only convicted of a state sex offense if they have traveled in interstate commerce. Sex offenders who fail to register or update their registration under SORNA or knowingly fail to report interstate travel can be punished through fines or incarceration for up to ten years. However, if uncontrollable circumstances that were not caused by the offender’s own volition prevented the offender from complying and the offender complied once these circumstances ceased to exist, this constitutes an affirmative defense against failing to register or report travel.
Evolution of the Sex Offender Registry
The federal government has required states to track sex offenders upon their release from incarceration since the Wetterling Act of 1994. However, over time, Congress has amended the Wetterling Act and passed new legislation creating stricter requirements leading to the passage of the Adam Walsh Law Child Protection and Safety Act in 2006.
In 1991, Minnesota became the first state to implement a state sex offender database after a young boy, Jacob Wetterling, was kidnapped and disappeared. This law provided law enforcement authorities with a comprehensive list of sex offenders in the state. The success of this idea led to the Wetterling Crimes against Children and Sex Offender Registration Act being passed in 1994 to ensure that each state has a specific program to register sex offenders and that law enforcement could track their activity. However, one key provision missing in this Act was the requirement for this information to be accessible to the public.
In 1996, the Wetterling Act was amended by Megan’s Law and the Pam Lychner Sex Offender Tracking and Identification Act. Megan’s Law expanded who receives the sex offender listed in any community so that parents know where convicted sex offenders live and what areas children should avoid. State and local enforcement had to release relevant information about these offenders but did not specify what particular information this includes. The Lychner Act created a national database including all offenders even those from states without sufficient sex offender registry databases. This act required some offenders to register for life depending on their previous crime and the likelihood of a future offense.
Over the next several years leading up to the Adam Walsh Act, several more acts were passed to improve the sex offender registry. The requirements of the acts included directing all states to participate in the national sex offender registry, requiring sex offenders to inform higher institutions they attend of their sex offender status, and requiring states and the national government to maintain websites containing the registry information. However, despite all of these acts, many sex offenders still failed to comply with the sex offender registration leading to the passage in 2006 of the Adam Walsh Child Protection and Safety Act, which included SORNA. SORNA was created as a federal mandate to track sex offenders since sex offenders may move from one state to another and the original sentencing state thereafter would no longer be able to track the offender. SORNA created uniformity among the states to ensure that sex offenders would stay registered as an offender even if they moved from one state to another.
Breadth and Burden Concerns with SORNA
Since its enactment, SORNA successfully created harsh disincentives for potential sex offenders, but some experts worry that the Act exceeds Constitutional limitations. The numbers unanimously show that the number of registered offenders have increased exponentially in state registries. In Wyoming, that number went from 125 to 1,450 after the state shifted from its own risk assessment system to SORNA’s broader three-tier risk system.
There are several controversial aspects of SORNA, all of which raise constitutional concerns. First, one can argue that registration requirements are unjustified by the Commerce Clause because sex crimes are not economic activities that affect interstate commerce. For example, a juvenile sex offender committing a local sex crime must register in the system his entire life.
Offenders also need to notify officials at least three days before engaging in interstate travel, which is problematic if said travel is not a commercial transaction that substantially impacts interstate commerce. A defendant could argue that the Federal Government cannot infringe on states’ 10th Amendment rights to govern issues that are local in nature.
Many offenders also have legitimate ex post facto concerns under SORNA, as the act retroactively applies to all sex offenders. In Ohio, a man committed suicide after being reclassified as a Tier III criminal in 2008 for a crime committed in 1994. He had served ten years in prison and only needed to register annually after his release. In SORNA’s aftermath, Tier III classification requires offenders to check in with officers every 90 days, Tier II offenders must check in every 180 days, and Tier I offenders check in once a year.
Additionally, defendants could claim that the Privileges and Immunities Clause protects individuals from having their right to travel be overburdened. Under the clause, citizens of one state cannot treat citizens of another state in a discriminatory manner. In Zobel v. Williams, Justice O’Connor and the Supreme Court majority recognized a right of interstate travel within the Privileges and Immunities Clause.
Under SORNA, offenders must inform officers they will travel at least three days before crossing state borders or leaving the country. This requirement applies to all sex offenders, for both Tier III offenders who recently raped someone and Tier I offenders who committed lesser crimes as juveniles 40 years prior. In fact, offenders remain subject to SORNA, even if their convictions are expunged.
These burdens could potentially be overbroad regarding qualifying offenses and punishment. If SORNA’s regulations are considered criminal sanctions inconsistent with his prior punishment, the act would be unconstitutional under the Privileges and Immunities Clause and Ex Post Facto grounds.
Others would argue that SORNA is not a part of criminal punishment, but a civil regulation to ensure public safety. If that argument holds, the Ex Post Facto analysis becomes irrelevant. Moreover, if courts conclude that SORNA is a civil regulation to ensure public safety at large, the Privileges and Immunities claim would likely be defeated, because the good of the public outweighs any minor burdens placed upon offenders. Particularly because offenders are still permitted to travel across state and international borders.
No matter how one looks at it, a growing number of offenders are burdened by SORNA’s broader regulations. If those burdens are viewed by a court as retroactive criminal sanctions under SORNA, rather than as civil regulation, that court would find the act unconstitutional.
Congressional Power to Enact SORNA Under the Commerce Clause
Under Article 1, §8, cl. 3: Congress shall have the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.” Since the enactment of SORNA in 2006, the Supreme Court has continued to hold that SORNA is a valid exercise of Congress’s power under the Commerce Clause. In Lopez, the court defined the power of Congress under the Commerce Clause to include the authority to regulate (1) “the use of the channels of interstate commerce,” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) “those activities having a substantial relation to interstate commerce. Thus, the courts have deemed that the government can regulate intrastate activities as a means to the constitutional end of regulating interstate commerce.
In United States v. Ambert, a sex offender moved states but did not register as a sex offender in the new state. The defendant argued that even though he had broken the law by not registering, SORNA was unconstitutional under the Commerce Clause because requiring a sex offender to register when moving between states reached beyond what Congress could regulate. However, under the Lopez analysis, the court found that a national sex offender registration was constitutional under the Commerce Clause because it fell within the first two categories of Lopez. These two categories allow Congress the power to regulate sex offender registration because the sex offenders use the channel and instrumentalities of interstate commerce. The Court explained that the use of the instrumentalities of interstate commerce, i.e., using any channel to travel, would fall under the Commerce Clause because the act forces sex offenders to register only where the offender “travels in interstate or foreign commerce or was convicted of a federal sex offense.”
Further, in Caminetti v. United States the court held that Congress has “the authority . . . to keep the channels of interstate commerce free from immoral and injurious uses” such as transporting women across state lines in violation of the White Slave Traffic Act. Similar to the intent of Congress in enacting the White Slave Trade Act, Congress has enacted SORNA to keep the channels of interstate commerce free from immoral and injurious uses by sex offenders. In preventing sex offenders from failing to register when they travel between states Congress has alleviated the public concern by protecting the public from federal sex offenders.
In selecting which means to use to accomplish a legitimate constitutional end, Congress must only show that there is a rational relationship between the federal statute and the constitutionally enumerated power. See Gonzales v. Raich. The choice of means is left to the judgment of Congress, “if it can be seen that the means adopted are calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”See Burroughs v. United States.
Deference is to be given to Congressional acts if Congress can show that the statute was a reasonable means to protect the public safety. The Supreme Court has given great deference to Congress in allowing the SORNA act because there is ample evidence that sex offenders are increasingly more likely to be repeat offenders and thus, pose a greater threat to the public safety. Because of this threat, the Supreme Court has concluded that SORNA is within the scope of Congress’s constitutional powers to protect the public from sex offenders who exploit weak state registration or otherwise slip through the cracks by moving between states. The Supreme Court has found that despite the fact that there is contradicting evidence of recidivism, when there are well known diverging opinions, Congress is given the discretion to weigh the evidence and deference will be given by the court to their decision.
A defendant may be able to argue that SORNA does not regulate a commercial activity or contain a requirement that the registration connects to interstate commerce, and thus, the act of Congress is not constitutional. Two of the Supreme Court’s most recent cases striking down the Commerce Clause may bolster a defendant’s claim that SORNA is unconstitutional. In Morrison, the court struck down a statute which provided a civil remedy for the victims of gender-motivated violence on the ground that Congress lacked the authority to enact the statute under either the Commerce Clause or U.S. Const. amend. XIV, § 5. The court rejected petitioners’ argument that statute was a regulation of activity that substantially affected interstate commerce. In addition, the court held that gender-motivated crimes of violence are not an economic activity, and therefore, the Commerce Clause did not vest Congress with the authority to enact a statute regulating such. In addition in Lopez, the court held that the GFSZA was invalid because it was beyond the power of Congress under the Commerce Clause. The GFSZA had nothing to do with commerce or any economic activity, and, therefore, could not be sustained as a regulation of activity arising out of or connected with a commercial transaction, which when viewed in the aggregate, substantially affected interstate commerce.
Similarly, here in the case of SORNA, Congress may lack the authority to enact the subject statute under the Constitution because the statute does not involve an economic activity or interstate commerce. The statute regulates local activity—the registration of sex offenders—thus, the statute falls within category three as described in Lopez. While the Eleventh Circuit Court of Appeal, in Ambert, ruled that SORNA fell into the first two categories of Lopez, a defendant may be able to argue that these activities are not commercial or economic in nature, and thus, the act oversteps the bounds of Congressional power.
In addition to the activity being non-economic, SORNA contains no specific findings tying the failure to register to an effect on interstate commerce. The only existing links between failure to register and any effect on interstate commerce are too attenuated since demonstrating a connection relies on the similar nature of arguments, such as costs of crime or lower economic productivity arguments that were made unsuccessful in both Lopez and Morrison.
If the defendant can show that SORNA is not a valid exercise of Congress’s powers under the Commerce Clause, the act will not be allowed under the Necessary and Proper Clause. The Necessary and Proper Clause is not an independent power of Congress’s and must be used only in support of another congressional power.
In Kebodeaux, Justice Scalia and Justice Thomas dissented, disagreeing with the majority’s opinion that SORNA was proper under the Necessary and Proper Clause to enforce the national sex offender registry under the Wetterling Act. Justice Scalia stated that although the Necessary and Proper Clause “authorized Congress to modify the requirement as in SORNA and to apply the modified requirement to Kebodeaux,” that does not establish, that the Wetterling Act’s registration requirement was itself a valid exercise of any federal power or that SORNA is designed to carry the Wetterling Act into execution. In sum, a defendant may be able to argue that SORNA is not a regulation of activity connected with a commercial transaction which substantially affects interstate commerce, and that is thus beyond the power of Congress to enact under the Commerce and Necessary and Proper Clauses.
In addition, the enforcement provision of SORNA can be seen as constitutionally deficient because it applies whenever a sex offender travels in interstate commerce. This deficient provision is not the kind of jurisdictional element that the Lopez Court concluded could save a statute from being unconstitutional. The requirement does not condition federal jurisdiction on when or for what purpose the sex offender travels; whether it is a brief shopping trip or a relocation to a new state. Accepting this absurd rationale would mean the government could regulate every single aspect of a person’s existence so long as they once travel in interstate commerce. In Lopez court, accepting the rationale would imply that gun possession in a school zone would be constitutional if the defendant had traveled in interstate commerce without a gun and for lawful purposes at any point prior to his arrest with a gun in a school zone. Using this same unreasonable rationale, the federal government would be able to regulate marriages and divorces of persons who have traveled in interstate commerce, in effect giving the Congress a limitless authority over non-economic local activities, including those traditionally regulated by the states
SORNA Dual v. Cooperative Federalism and Commandeering Analysis
Sex offenders may argue that SORNA is unconstitutional for violating the 10th amendment by Congress exceeding the limits on interference with the state’s legislative and executive processes through the enaction of SORNA. In New York v. the United States, the court defines that the federal government oversteps its congressional power when it 1) compels a state legislature to enact or enforce a particular law or type of law or 2) compels a state/local executive official to perform federally specified administrative task. See Printz v. United States. Sex offenders can argue federalism is dual and not cooperative meaning that since the federal government cannot require the state government to enforce SORNA since it is a federal act. Under this anti-commandeering principle, states do not have to be active participants in the enforcement of federal acts or regulatory principles.
Sex offenders can argue that compelling the states to enforce this act will be projecting the federal government’s responsibility for enacting the statutes onto the states, leading people to believe this is a state statute since they will not be likely to read the statute. Further, a sex offender can argue this is an issue of state sovereignty enshrined in the tenth amendment. They may base their argument on the history of the Articles of Confederation and Federalist 15, with Hamilton’s writing of “the vice of the Confederation was that it legislated on the States in their corporate capacities” and that states should be allowed to act as individuals and not required to enforce federal acts such as SORNA.
An argument based on the anti-commandeering principle may hold the most weight for the act being unconstitutional. SORNA may be viewed as requiring states to enforce a federal act despite the fact the act would benefit the safety of the state’s citizens. Since the need for uniformity in the tracking of sex offenders to protect the welfare of the people being is a pressing national concern, the state enforcement of SORNA may be held unconstitutional with the rest of the act being constitutional. However, a different court may not agree with New York by rejecting basing a constitutional principle on whether we have uninformed voters and decide SORNA in its entirety is constitutional. The fact that a citizen may not read a federal statute and think that it is the state’s legislature has no effect on whether something is constitutional or not. Also, the court may interpret Martin v. Hunter Lessee different than the majority in New York by viewing states as being allowed to control state officials when they are not cooperating with the enforcement of a federal act.
However, a dual federalism argument will not hold much weight. A liberal court would likely find that SORNA is a product of cooperative federalism approach adopted from Champion which says Congress can prohibit or regulate something for the purpose of guarding the welfare of the people even if it is not an enumerated federal power. The Supreme Court has found that SORNA requirements accommodate, not invade state interests. By requiring registration of all sex offenders, Congress has created a necessary and proper means to accomplish the goals of the Commerce Clause in punishing sex offenders who cross state lines and fail to update their registration. Registration is a means of protecting the public safety by making sure that states are aware of dangerous sex offenders who enter their borders. States would not be able to accomplish this end themselves as state’s registration bases are not shared with other states. The SORNA requirements are not a general police power, which is denied to the federal government because the requirements are limited in scope and only apply to a small fraction of prisoners already in the custody of the Federal Government. See United States v. Comstock.
Ex Post Facto
A defendant will have a better chance of prevailing on Ex Post Facto grounds if the court views SORNA as imposing a criminal sanction, as an Ex Post Facto defense is limited to criminal and not civil sanctions. The court must analyze whether the application of a new law further punishes someone for a crime they have already been convicted or whether it is merely a civil and nonpunitive regulatory scheme of the state.
SORNA violates the Ex Post Facto Clause when it punishes an individual for committing a crime that was not a crime at the time of their actions or adds punishment to a prior conviction. Retroactive convictions are prohibited under the Ninth and Tenth Sections of Article One of the Constitution. SORNA passed through Congress in July 2006 but was not fully implemented until July 27, 2011. If a defendant is charged with failing to update his registration before moving or traveling, and the failure occurred before the 2011 federal enactment date, said individual would have a potentially valid constitutional defense for retroactively increasing punishment violates the Ex Post Facto Clause of the Constitution.
However, the Ex Post Facto Clause may not be violated if the court interprets a national sex offender registry as a civil regulatory measure designed to protect public safety and not as an additional punishment to their criminal charge. For example in Smith v. Doe, the retroactive requirements of Alaska’s sex offender act were upheld as constitutional. The court held that the intention of the requirement was not meant to be punitive but rather an extension of the state’s regulatory scheme to create a civil program to protect the public.
Overall, Ex Post Facto arguments against the unconstitutionality of a sex offender registry have been unsuccessful since Courts give deference to the legislative intent of a state and will only override that deference with clear proof that the civil remedy is instead a criminal penalty. However, there would be a better chance for an Ex Post Facto argument to succeed today as the increased strictness and burden of the requirements of sex offender registries may have tipped the scale to the act no longer being of a civil nature and amount to essentially punishing them twice.
The verdict… SORNA is Generally Constitutionally Valid
With a majority of Commerce Clause precedent on the government’s side, and a lack of precedent for valid Ex Post Facto defenses under SORNA, the convicted sex offenders’ only chance to bring a constitutional defense that courts would find valid would be through an anti-commandeering argument.
That does not mean the defendant lacks any constitutional defense against SORNA’s constitutionality. If the facts in a particular case support a finding of an Ex Post Facto arrest, the defendant can win a favorable ruling solely on that fact. Alternatively, he can raise constitutional defenses on the commerce clause, anti-commandeering principle and dual federalism concerns regarding the 10th Amendment.
However, for a multitude of previously discussed reasons, one can conclude that SORNA’s guidelines for a current registration are generally deemed constitutionally valid by contemporary courts.