What does the supreme court ruling mean for sex offenders?

I wonder if Obama knew this decision was forthcoming? Could it have played a part in his choice for a Supreme ourt Justice? Also remember that, Solicitor General Elena Kagan has no prior judicial experience.

5-18-2010 Washington DC:

The Supreme Court ruled May 17 that those inmates deemed “sexually dangerous” can be held indefinitely — even after their prison terms are complete.

The court’s ruling in the United States v. Comstock upholds a 2006 law signed by President George W. Bush that authorized the civil commitment of sexually dangerous federal inmates. That law, formally known as the Adam Walsh Child Protection and Safety Act (named for the son of “America’s Most Wanted” host, John Walsh), was challenged by four men who have been kept behind bars for the potential risk they pose to society, though they were due to be released from prison more than two years ago. Prison officials say the men, who were each sentenced to terms ranging from three to eight years for possessing child pornography, are at risk of committing sexually violent acts or child molestation if released.

I suppose the Bureau of Prisons were also able to prove, what color socks these men would wear in the future. These men had -no contact- crimes and to my knowledge there is no research proving that -possession of child porn will result in a future contact sex offense-, should anyone know of such research please forward links to eAdvocate.

But the question before the court had little to do with sex offenders and more to do with states’ rights. The Court was charged with determining whether Congress overstepped its bounds with the 2006 law. It’s a gray area: While protecting the public’s health and safety is a concern typically left to the states, the federal government is ultimately responsible for the criminal justice system. In the 7-2 majority opinion, Justice Stephen Breyer asserted the federal government’s right to govern prisons. He wrote: “The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose.”

Really, why do states have courts and criminal statutes? Also, Justice Breyer had this to say: "We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

That was the legal quandary. But the real question for the rest of us who care more about predators lurking in our backyards and less about legal jargon, was what does this case mean for sex offenders? Does this ruling essentially allow the government to lock up sex offenders and throw away the key? Yes and no. The ruling only applies to those inmates who are both sexually dangerous and mentally ill. Which means in order to detain an inmate for longer than their original sentence, the government must prove the prisoner has both previously “engaged or attempted to engage in sexually violent conduct or child molestation” and that they suffer from a “serious mental illness, abnormality or disorder” and would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.” Those prisoners who meet the criteria and are committed can request a regular reevaluation every six months, but there is essentially nothing that prohibits inmates from being continually denied release at each reevaluation.

I wonder how they proved the four men were "sexually dangerous" when all they did was "Possess" child porn, it is a quantum leap by someone very prejudiced against sex offenders. As to had a "Mental Illness/Abnormality" that is a legislative definition, not a definition from any psychological evidence or research. Lawmakers are not qualified to make such determinations and need to be challenged.

Currently, fewer than 100 federal inmates nationwide have been identified for further detention after having served their sentences.

Interesting side note: The ruling is also a victory for President Obama’s Supreme Court nominee, Solicitor General Elena Kagan, who argued the case. ..Source.. Time

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Molloy: Sex offender registry rule unconstitutional

6-13-2008 Montana:

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."

Because Molloy dismissed the indictment "without prejudice," federal prosecutors can re-allege the charges against Waybright if they find another legal hook to do so.

Federal defender John Rhodes of Missoula filed the motions to dismiss the indictment, asserting seven different legal grounds that he argued during a hearing earlier this month.

Molloy denied a majority of those arguments, but ruled in favor of Rhodes' assertion that Congress overreached its authority and violated the Interstate Commerce Clause.

"It is evident that the same or similar arguments have been raised in district courts around the country," Molloy wrote in his opinion. "These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright's arguments, except one, lack merit."

The exception is Waybright's claim that enactment of a particular provision requiring all sex offenders to register, regardless of whether they travel in interstate commerce, is not a valid exercise of Congress' power under the U.S. Constitution. Molloy therefore declared the provision unconstitutional. ..Source.. TRISTAN SCOTT

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Putting a Stop to Congressional Overreach

11-13-2009 National:

by Damon W. Root

In early September, Fox News host Andrew Napolitano asked Rep. James Clyburn (D-S.C.), the third-ranking Democrat in the House of Representatives, precisely what part of the Constitution authorized Congress to enact health care legislation. "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do," Clyburn replied. "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

It was a rare flash of honesty from an elected official, revealing not only Clyburn’s ignorance of the Constitution but his overt hostility to the document’s system of checks and balances. And Clyburn is hardly alone. In legislation dealing with everything from crime to education, Congress routinely oversteps its constitutional bounds. As Napolitano later remarked, Clyburn seems “to have conveniently forgotten that the federal government has only specific enumerated powers.”

Later this term, the U.S. Supreme Court will have a great opportunity to remind Clyburn and his colleagues of those limits when it hears oral arguments in the case of U.S. v. Comstock. At issue is the Adam Walsh Child Protection and Safety Act of 2006, which empowers federal officials to order the indefinite civil commitment of "sexually dangerous" persons who have finished serving a federal sentence, or who are currently in the custody of the attorney general because they were found mentally incompetent to stand trial. In other words, the government isn’t willing to let these people back on the streets.

In its brief to the Supreme Court, the government argues that Congress possesses this authority under the Constitution’s Necessary and Proper Clause, which grants Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

Yet as the text itself clearly specifies, any law passed under the Necessary and Proper Clause must also be tied to a specifically enumerated constitutional power, either one of the "foregoing powers" listed in Article I, Sec. 8, or one of the "other powers vested by this Constitution." As James Madison told the Virginia ratifying convention, the Necessary and Proper Clause "only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause."

So where among the "foregoing Powers, and all other Powers vested by this Constitution" did Congress happen to find an explicitly enumerated power to indefinitely detain "sexually dangerous" prisoners?

The answer is: Nowhere. The Constitution provides no such authority. Indeed, as a superb friend of the court brief filed in the case by Georgetown law professor Randy Barnett makes clear, "However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons....The Necessary and Proper Clause is not an independent source of Congressional power."

Nor may Congress rely on the Commerce Clause—another favored source for sweeping federal power. Under that clause, which the government has briefly raised as a justification in the case, Congress possesses the authority "to regulate commerce...among the several states," a power the Supreme Court has controversially extended to cover intrastate commerce as well as commerce "among the states." Most recently, in Gonzales v. Raich (2005), the Court permitted the federal government to regulate the local cultivation of medical marijuana in California on the extremely dubious grounds that such cultivation also affected the nationwide market.

Yet the law at issue in Comstock fails to meet even the Court’s notoriously generous Raich interpretation—something the Barnett brief is careful to explain. As Justice Antonin Scalia held in his Raich concurrence, "Congress may regulate noneconomic intrastate activities only where the failure to do so 'could...undercut' its regulation of interstate commerce." Since overturning the law in Comstock would in no way undercut any legitimate federal regulation of commercial activity, neither Raich nor the Commerce Clause apply.

Which brings us back to Rep. Clyburn and his colleagues. With so many members of Congress either unwilling or unable to abide by the clear limitations imposed by the plain text of the Constitution, the time has come for the Supreme Court to rein them in. Enforcing the Necessary and Proper Clause is a great way to start. ..Source..

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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

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The Sex Offender Registration and Notification Act and the Commerce Clause

11-25-2008

Abstract:
In 2006, the Sex Offender Registration and Notification Act ("SORNA") created a new federal crime of "failure to register" which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent. ..Source.. by Corey Rayburn Yung, John Marshall Law School, Chicago

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