Kebodeaux and the Supreme Court

Kebodeaux and the Supreme Court

There is a case currently pending review by the United States Supreme Court (SCOTUS) regarding the federal sex offender registry (SORNA). The case is U.S. v. Kebodeaux (12-418). The SCOTUS docket page can be found here, and the 5th Circuit ruling below can be found here.

Here is the short story of Kebodeaux: As a US Air Force Airman, 21-year-old Kebodeaux was convicted in military court of having sex with a 15-year-old girl. He was sentenced to 3 months’ confinement and a bad conduct discharge. After serving this sentence, he moved home to Texas as civilian. He registered as a sex offender and in 2007 he updated his registry information because he moved from San Antonio to El Paso. Later, he moved back and didn’t bother telling anybody about it. Thus began his federal prosecution for failing to register as a sex offender.

After the 5th Circuit Court of Appeals ruled against Kebodeaux, they decided to hear the case as a full panel and reversed, saying what happened to the defendant amounted to, “[U]nending criminal authority over him.”

This blog post is a review of two things. First, it reviews the last decade of sex offender registry laws and lower court decisions since Smith v. Doe, 538 U.S. 84 (2003).

Second, it reviews the Defendant’s legal brief in opposition to Cert review by SCOTUS and why such review may be indicative of larger change to come in the high court’s opinion of sex offender registries. Specifically, the notion that registries are still a “Civil regulatory scheme,” as they were for Smith v. Doe in 2003.

Smith v. Doe, A Decade Later

This case is the last instance of a case where the Supreme Court took a broad look at an individual state’s sex offender registry to determine if the conditions imposed by that registry were punishment or civil and regulatory. This distinction is vitally important to the way both states and the federal government execute their respective registry requirements.

If a registry is punishment, it must be part of a sentence imposed using the full due process of law afforded by the U.S. Constitution which cannot be changed later to be more restrictive. If it is changed this way, it violates the Ex Post Facto Clause of the U.S. Constitution.

On the other hand, if a registry is just civil and regulatory,1 it can be changed at any time to be made more strict without any legal concern. Any new changes can therefore be applied retroactively to everybody these laws target.

The ruling in Smith v. Doe defined Alaska’s sex offender registry as civil (not punishment) and could therefore be applied to anybody with a sex offense, no matter how long ago their crime was. In effect, this gave all states a “Green Light” to make nearly any restriction on sex offenders without concern for its constitutionality. Worse still, these restrictions can be imposed on all former offenders.2

Examples of the effect of Smith v. Doe can be seen all over the country. States like Louisiana have enacted laws prohibiting sex offenders from participating in any holiday that involves constumes. Texas and California have laws that require registration for life, no matter the severity of the underlying offense. States that have tried to align their registries to meet federal minimum standards constantly re-classify sex offenders into higher levels, increasing their terms of registration by years or even decades. The list is much longer, but a growing list of tighter restrictions around the country make sex offender registries ripe for another review of Smith v. Doe.

Shifting Tides

In recent years, there has been a change in how state and federal courts have been viewing registry restrictions. Restrictions on registered sex offenders, as discussed above, have been getting progressively tighter over the last decade. In just the last 2 years, courts have held that restrictions on free speech and warrant-less searches of registrants homes violate both state and federal constitutional protections to all citizens.

Examples of this are from Indiana, where the 7th Circuit Court of Appeals struck down a statute banning sex offenders from social networking sites on free speech grounds. See a similar decision out of Louisiana. The Ohio Supreme Court has thrice found that the restrictions from meeting federal minimum requirements for registries are unconstitutional when applied retroactively (here, and here). Laws violating free speech and search and seizure protections were struck down in Nebraska in 2012. In that case, the defendants were actually awarded almost $300,000 in attorney’s fees used to fight their case.

While each of these decision do not strike at the core issues of sex offender registries, they put the writing on the wall that judicial opinions are changing with the stricter provisions of registry laws which have run rampant since Smith v. Doe.

Back to Kebodeaux

By all accounts, the scope of the Kebodeaux case is very small. After losing in the 5th Circuit Court of Appeals, the government applied to SCOTUS for their review. The defense team filed a motion to oppose this review, citing the limited impact its decision would have.

Both sides of this argument agree that the practical effect of a SCOTUS ruling in this case is small:

The Fifth Circuit Court of Appeals decided Kebodeaux on “narrow grounds,” based on Kebodeaux’s “unusual circumstances,” as well as “the specific and limited facts” presented by his case. For that reason, the case will have limited practical effect, as the Government concedes. Accordingly, the questions presented in Kebodeaux’s case are not of sufficient importance to warrant this Court’s review. Nor does the case embody a conflict among the lower courts, or present a matter affecting the interests of the nation. (Internal citations omitted)

The defense brief also points out that their case is of little importance and doesn’t deserve the court’s valuable time:

Because SORNA applies to Kebodeaux by virtue of a federal regulation, the Fifth Circuit’s ruling does not invalidate SORNA’s statutory language. By its terms, SORNA imposes an initial registration requirement on federal offenders who were in custody, or being sentenced at the time of SORNA’s passage. . .These initial registration requirements, which did not apply to Kebodeaux because he satisfied his federal sentence in 1999, remain intact.

The rest of the defense’s arguments against SCOTUS review of this case rest on the fact that there is no conflict between lower courts concerning this issue, and that this case makes a poor vehicle for deciding these issues as the details aren’t as clear-cut as they could be to create a broad ruling to a wide-range of potential defendants down the road.

The Writing on the Wall

So why, then would SCOTUS grant review in this case? There are many reasons for this review, but only two are interesting enough to follow this case more closely.

First, this case could be one more decision from SCOTUS that mirrors other minor decisions like Reynolds v. U.S. (10-6549). More to the point, a decision in this case could be one more chip in the protective wall SCOTUS created to protect state and federal registries by Smith v. Doe. The changing opinions of the judiciary on sex offender issues is reflected by these small decisions.

Second, and more promising, is the chance that SCOTUS may use this case as a vehicle to revisit their own decision in Smith v. Doe. Similar to the circumstances surrounding the case of United States v. Booker, 543 U.S. 220 (2005), the high court can use a case that may not specifically address an issue-head on, but creates a vehicle to decide broader issues and decisions.3

So can, and will, the Supreme Court use the Kebodeaux as a vehicle to make a decision that has broader implications than what this case presents on face-value? Only time will tell. A decision on this case is expected for late June, and this blog will be updated when new information comes to light.

  1. like registering a vehicle with the DMV []
  2. A quick note. Any punishment that isn’t considered Cruel and Unusual under current 8th Amendment standards can be imposed at sentencing. The issue surrounding sex offender registries is not these restrictions can be imposed, but whether or not they can be imposed to offenders convicted before a law’s enactment without triggering ex post facto violations. []
  3. In Booker, enhanced sentencing based on facts found outside of a jury was at issue. However, the effect of this decision also rendered unconstitutional the mandatory nature of the Sentencing Guidelines published by the United States Sentencing Commission []

9th Circuit Restricts Computer Fraud Prosecutions

As reported by The Recorder, the 9th Circuit Court of Appeals has done much to narrow the scope of the Computer Fraud and Abuse Act. In their article about this circuit decision, the Recorder reports that you cannot be criminally prosecuted for checking out Facebook or football scores at work.

“We shouldn’t have to live at the mercy of our local prosecutor”

Below is an excerpt from the original article at law.com:

Don’t worry: it’s not illegal to read this article at work.

In a highly anticipated test of the Computer Fraud and Abuse Act, the U.S. Court of Appeals for the Ninth Circuit construed the law narrowly Tuesday, saying prosecutors can’t use it to go after someone who checks sports scores from a work computer or fibs on Facebook. The 1984 law is an anti-hacking statute, not a tool to make federal criminals of anyone who violates employer computer policies or a website’s terms of service, the en banc panel said in a 9-2 opinion in U.S. v. Nosal, 10-10038.

“The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer,” Chief Judge Alex Kozinski wrote for the majority. “This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.”

In splitting from other circuits and reversing the panel decision, the court said the plain language of the statute prohibiting someone from “exceeding authorized access” to a computer does not extend to violations of use restrictions. The majority said there are other laws the government can use to prosecute someone who steals confidential information, and that a narrow interpretation of the CFAA is necessary because “we shouldn’t have to live at the mercy of our local prosecutor.”

The ruling affirms San Francisco U.S. District Judge Marilyn Hall Patel, who junked five counts in the government’s case against David Nosal. He is the former employee of an executive search firm accused of having colleagues access a confidential database to get information for his new competing business. “Because Nosal’s accomplices had permission to access the company database and obtain the information contained within, the government’s charges fail to meet the element of ‘without authorization, or exceeds authorized access,'” Kozinski wrote.

The court illustrated its point with a series of alarmist scenarios: Under the government’s view of the law, the “short and homely” person’s claim on Craigslist to be tall, dark and handsome could earn the poster a “handsome orange jumpsuit.” Vast numbers of teens who used Google could have been deemed “juvenile delinquents” since until last month the company’s use agreement technically barred minors from using its services.

For the government, the case was not about white lies and people goofing off at work. . Nosal, they argue, was up to no good, and the statute requires an “intent to defraud.” The dissenting judges make that point.

“This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values,” Judge Barry Silverman wrote, with Judge Richard Tallman joining. “It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts.”

Prosecutors have taken an aggressive posture in this case, appealing even when many criminal counts remained intact at the trial level and bringing in a lawyer from Main Justice, Jennifer Ellickson, to argue. Nosal’s appellate counsel Dennis Riordan said in light of that, he expects there to be a push inside the department to file cert. However, he said, the Solicitor General’s office, which makes the call, may think twice about pursuing this particular CFAA case, considering Kozinski’s “very, very powerful and well reasoned opinion.”

It is difficult to imagine why the dissenting opinion here did not see the ‘slippery slope’ of unintended consequences if the en banc decision of the Ninth Circuit were to have gone the other way.

It reminds me of the Supreme Court’s decision in Gonzales v. Raich which didn’t go as well as this case. In Raich, the Supreme Court decided that marijuana grown for legal, personal use inside a California residence could be federally prosecuted as interstate commerce. This may be confusing to the non-lawyer because the represented facts of the case were neither interstate nor commerce.

I am encouraged when I see appellate decisions that actually curtail federal prosecuting authority, rather than expanding them. Kudos to the 9th!

Federal Judges Need Empowerment

Why the Circuits and U.S. Supreme Court Need to Delegate More Effectively

In a recent ninth circuit decision, judge Diarmuid F. O’Scannlain wrote a 10-page concurring opinion on a moot finding. In this opinion, O’Scannlain lectured the judge from the lower court (Hon. Judge Phillips: Riverside, CA) and the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s 2003 decision in Lawrence v. Texas. The per curiam opinion, including O’Scannlain’s opinion is available here.

There is a problem here. The opinion of the Circuit found the case moot, but that didn’t seem to be enough for one of its judges. The issue there was a now-famous lower court decision by Judge Phillips which called the Congressionally enacted “Don’t Ask, Don’t Tell” policy unconstitutional. Because this policy has now been repealed by Congress, the case is moot.

This, however, didn’t stop O’Scannlain from blasting the lower court’s decision. From SCOTUS Blog:

“Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress.”

The Core Problem

The problem here is not the constitutional application of a now-dead policy. It has much less to do with the rights of homosexuals as it does the rights of the rest of the American population. There is a culture within the judiciary that seems to neuter federal judges in District courts from making many landmark decisions.

Most huge decisions are, understandably, made by the Supreme Court. This occurs when issues arise of Circuit splits, constitutional interpretation questions, and other case-specific reasons the United States Supreme Court (SCOTUS) uses for granting Cert. The deferment to Supreme Court authority is a necessary part of the check-and-balance process of American law.

That said, federal judges at the District level appear afraid to rule anew on any major issue for the exact reason here. If a judge sticks his or her neck out on an issue they believe is blatantly unconstitutional, they risk being publicly admonished by their Circuit brethren for over-stepping their bounds.

This Sounds Familiar

The military had this problem in Vietnam. Specific targets had to be affirmed by high-ranking generals and sometimes even the President before being hit. Sometimes this decision was made, for or against, whilst a bombing pilot was en-route to the target.

The idea of delegating this authority to lower-ranking commanders came about because of the absolute inefficiency of these missions, and the “war” as a whole.

Large issues remain undecided out there today because SCOTUS won’t hear or re-hear cases. District courts often seem afraid to blaze new ground. Making big decisions needs to be less scary for lower courts.

Case in Point

To illustrate this problem, one need to look no further than SORNA laws. The Sex Offender Registration and Notification Act1 (part of the Adam Walsh Act of 20062 mandated States to comply with federal minimum guidelines for implementing Sex Offender Registries. Sounds like a good idea.

Problems arise, however, when the language of the Act makes the laws they spur unconstitutional. SCOTUS ruled in Smith v. Doe, 538 U.S. 84, that SORNA laws were civil regulatory schemes and not punitive in nature. Thus, SORNA laws are not unconstitutional violations of the ex post facto clause in the U.S. Constitution.3

Justice Souter, in a concurring opinion, commented that his tip toward constitutionality (ie. the laws were regulatory and not punitive in nature) of the statute from Alaska was premised on the presumption of constitutionality afforded to the State.

However, Alaska answered by finding that same law unconstitutional in its own Supreme Court.4 This would, inherently, shift SCOTUS’s opinion (at least the opinion of Justice Souter) the other direction.

Unfortunately, Smith v. Doe has opened the door for 8 years of State laws that continue to get harsher and more punitive in nature because of the carte blanche perceived from this decision. Whats worse, SCOTUS has yet to grant Cert for any new case that questions the constitutionality of newer, harsher laws made for SORNA-compliance.

Empower Federal Judges in the Districts

If federal judges at the district level felt less constrained to make rulings on constitutional issues, matters like the example above would have resolutions more swiftly. The unintended effect of empowering District judges would be an increase of conflicting opinions that need to be heard by the Circuits. However, that seems to be the purpose of the Circuits in the first place.

Whats best for the American people may not be what is easiest to process by the courts. Empowering District judges to make tough decisions without fear of Circuit reprisal might create a large case load for the Circuits, but would greatly change the dynamic and speed at which facially unconstitutional laws are able to be tossed out.

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  1. Sex Offender Registration and Notification Act []
  2. The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act” or “Act”) []
  3. Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. []
  4. Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional []