MD- Appeal tests sex-offender restrictions

1-27-2009 Maryland:

The 4th U.S. Circuit Court of Appeals is set to hear a challenge to a federal law that imposes wide-ranging new restrictions on sex offenders.

Today’s oral arguments come just two-and-a-half weeks after a 4th Circuit panel struck down a different part of the Adam Walsh Child Protection and Safety Act.

In its Jan. 12 decision, U.S. v. Comstock, the court found that Congress exceeded its power to regulate interstate commerce when it allowed “sexually dangerous” sex offenders to be kept in jail past the end of their sentences.

At arguments before the 4th Circuit today in Richmond, Va., appellant Brian L. Gould’s lawyer also is expected to raise a Commerce Clause argument against the Sexual Offender Registration and Notification Act, which Congress passed as part of the Walsh Act in 2006.

“If this interpretation of [the Sexual Offender Registration and Notification Act] is accepted, the Act lies beyond Congress’s authority under the Commerce Clause,” the attorney, assistant federal public defender Paresh S. Patel, wrote in a letter to the 4th Circuit earlier this month. “Comstock leaves no room for this Court to find that SORNA’s registration requirement is authorized under the Commerce Clause.”

SORNA expands the number of people required to register as sex offenders, increases the information governments must collect about registrants and the information they can disclose to the public, and toughens penalties for failing to register.

Under the terms of the law, states must pass SORNA-compliant laws before July 27, 2009, or lose some federal funding. Despite the ultimatum, Maryland and other states have adopted some, but not all, of SORNA’s provisions.

According to briefs filed in the Gould case, Gould was convicted in Washington, D.C., of armed assault with intent to commit sodomy and was released from prison in 2002.

In 2007, after moving to Maryland, Gould was indicted for failure to register.

In U.S. District Court in Baltimore, Gould moved to dismiss the charges. When he lost that bid, he pleaded guilty but reserved his right to appeal.

Comstock distinguished

U.S. Attorney Rod J. Rosenstein said Tuesday that he expects the 4th Circuit to side with the government.

“It’s an important case because the defendant is challenging the constitutionality of the Sexual Offender Registration and Notification Act,” said Rosenstein, who will argue the case personally. “Challenges to SORNA have been filed all over the country and so far, most courts and, in fact, all of the appellate courts that have ruled on it have upheld the statute.”

Rosenstein, like Patel, addressed Comstock in a letter to the court. Registration laws, unlike civil commitment laws, do affect interstate commerce, he wrote.

The registration provision is “distinguishable from civil commitment because it is part of a comprehensive national program to track the interstate movement of sex offenders and maintain an accurate nationwide database accessible over the internet,” Rosenstein wrote.

In the appellant’s brief, Patel makes several arguments in addition to the Commerce Clause argument. For example, he argues that Gould is not subject to SORNA until Maryland implements it and that he did not “knowingly” violate SORNA’s registration requirements because he was not informed of them.

There is at least one more Maryland case similar to Gould in the pipeline. The appellant in that case, Michael E. Kennedy, also is represented by Patel. Kennedy’s wife, Sandy Kennedy, said she expects her husband’s case to move forward if Gould’s challenge fails. ..News Source.. by CARYN TAMBER, Daily Record Legal Affairs Writer