Kebodeaux Discussion Preview on SCOTUSblog

A week before the arguments are heard by the United States Supreme Court, the folks at SCOTUSblog have this commentary on the case, and what it all means. Below are some notable excerpts of the article.

This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).

Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

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 []

How Far is Too Far? Trading Freedoms for the Children

What are We, as Americans, Putting up With?

“‘The state must declare the child to be the most precious treasure of the people.’ .. as long as the government is perceived as working for the benefit of children, the people will happily endure almost any curtailment of liberty and almost any deprivation. It is truly heartwarming to see how well this lesson has been learned by the American government. In the name of children, incursions into the private lives of American citizens have been made that we Nazis would have gazed at with open-mouthed admiration.”
— Mein Kampf, Adolph Hitler, Page 403

For the Children

One of the easiest vehicles a politician can use to push an unpopular bill through congress is using the excuse of “protecting the children”. As one can see in the quote above, this is not a new concept. Trading freedoms for security is a very popular theme in today’s culture in America. Look at the Traffic Safety Administration: the TSA can overtly grope a traveler’s groin or label them a terrorist if they refuse or complain about the molestation.

In the name of protecting children, the civil rights of entire portions of the United States population are infringed, trampled, or stripped away entirely. I am referring to, of course, Sex Offenders. Ah, the dreaded Sex Offender…

To be objective, there are admittedly monsters out there who are predators and prey on children. They kidnap and kill them after committing unspeakable sexual assaults on the victim. The news is chalk full of the most twisted, sensationalized stories in the U.S. regarding these unconscionable monsters. There is no excuse for these actions and predators like this are absolutely un-defensible. However, these are the exception, not the rule.

Sex Offender Registries became prevalent in State laws in the 1990’s, and focused on keeping tabs on violent, predatory, and repeat offenders. Back then there were 11 crimes that were worthy of such administrative monitoring (rape, aggravated sexual assault on a minor, kidnapping a minor, etc.).

There are now, on average, 1891.

Many laws being passed make lives more difficult for sex offenders. The presumption is that these laws are aimed protecting the community and directed at the predators who are guilty of the 11 heinous crimes referenced above. That presumption is usually false. Many laws that place higher restrictions on sexual offenders, do so across the board to anybody registered as a sex offender. Take Nebraska’s law, LB-2852, for example. Among other things, this law changed the State’s web site to include anybody and everybody on its sex offender registry. Good idea, or bad idea?

Does a man who had a baby with his girlfriend when she was 1 month away from the age of consent, really need to be on the same website as a pedophile-kidnapper? Before you balk at this for being irrational, ask yourself this: if you’ve ever looked up a sex offender locating website, can you tell who are the predators and who aren’t? Do you immediately lump everybody on that website into the same group of gutter-scum?

Can you tell the difference between crime codes? The man above is real, and his crime is Attempted 1st Degree Sexual Assault. Would you know what that means? He is now in his thirties and has been on the registry since the 1990’s. Most would assume now, because of his current age, that his crime was that of a pedophile.

Lets look at this from another angle. A real teenage boy in Georgia receives a ‘Sext’ from a girl he went to high school with. Catastrophe strikes and he is put on probation for possessing child pornography. That is 25 years on Georgia’s sex offender registry. When this kid is 40, he will still be on the registry with a child pornography conviction. Would you assume he was a teenager when he was charged, or would you immediately be afraid of him?

With over 728,0003 people now registered as sex offenders in the United States, the state of fear is gripping the average American citizen. In States like Nebraska there are three levels of sexual offenders4.

  • The first level is misdemeanor crimes like public indecency (flashing at Mardi Gras, pissing in the alley behind the bar), child pornography cases like the kid described above, and non-contact crimes.
  • The second is for non-aggravated contact crimes, and more severe crimes with no contact.
  • The third is a lifetime registration for aggravated contact/assault crimes, repeat offenders, and violent predators.

The law cited above, LB-285, puts all of these classes together online on Nebraska’s Sex Offender web site. Many ordinary people without a law degree would tend to believe that anybody bad enough to be on that website is dangerous and should be avoided. It’s a common misconception.

Back to the issue at hand: unconstitutional laws that are tolerated by the People under the guise of protecting our children.

Constitutional issues:

Ex Post Facto violations – Legally this means punishment after the fact. Somebody is charged, convicted, sentenced, and later punished again beyond their sentence. Sometimes called double-jeopardy, this is unconstitutional. People that were never on the sex offender registry because their crime was not a registrable offense at the time of conviction get put on a registry after the fact because of laws like LB-285. The Supreme Court considers sex offender registries legal because it does not believe being placed on a registry is a punishment (only civil administrative action). Would you feel punished if you were subject to these laws? (Some registrable crimes are not even sexual in nature like kidnapping or using a misleading domain name on the internet.)

Fourth Amendment5 violations – This means a search and seizure of property without proper cause. Many laws make provisions for State Police agencies to enter the home of a sex offender at any time and conduct a search. Fortunately, at this time, these portions of law have been held unconstitutional, but that doesn’t keep states from trying.

Eighth6 and Fourteenth7 Amendment violations – These are Due Process of Law and Excessive, Cruel, and Unusual punishment. In Colonial times, an individual convicted of an unpopular crime would be forced to wear a sign around their neck and stand in the town square to be publicly mocked. Others were branded like cattle with a letter like ‘M’ for murder, ‘T’ for Thief, or ‘A’ for Hester Prynne8, to shame these individuals and drive them away from communities. The US Supreme Court doesn’t make the connection between these laws (which it considers as violating the Eighth Amendment) and sex offender registries.

Real Danger to Children

Fear makes many citizens want to lock up sexual offenders and throw away the key. However, lets look at the dangers:

According to a 1994 study by the Bureau of Justice Statistics9, slightly over 5% of all sex offenders re-offend sexually, over 90% of sexually offenses happen from first-time offenders, and the recidivism rate of sexual offenders (returning to prison for any reason) was 25% lower than the average rates of any other crime (43% v. 68%). The recidivism rate of sexual offenders is the lowest of any offense type except for murder/homicide.

The natural proclivity of some sex offenders (i.e. predators, untreated addicts, etc.), however, shows that a convicted sex offender is four times more likely to commit a sex crime in the future than somebody convicted of another type of crime. This may scare some people, but think to yourself: how much more likely is a bank robber to commit another bank robbery than an average citizen who has never robbed a bank? Statistics show they are much higher than four times more likely than the average non-bank-robber citizen of America to repeat that crime.

The study above showed that 90% of all sexual offenses occurred by a non-registered, first-time sexual offender. A child, or anybody for that matter, is more likely to be sexually assaulted by somebody who is not on the registry at all (first-time offenders are obviously not on the registry). Logically, then, this means that the registered sex offender in your neighborhood is statistically SAFER than your non-registered neighbors.

The Nation, and its States, spend a huge amount of time and money on sexual offender registries to protect our children. But how are we protecting our children?

  • Jaycee Dugard was kidnapped by a level 3 sex offender, under the harshest conditions of sex registry, but nothing in the registry protected her from Phillip Gurrido.
  • Dru Sjodin was kidnapped and murdered by a registered sex offender, but nothing in the registry requirement could have prevented her murder.
  • Michael Devlin kidnapped two boys, one of them for 5 years. He had no criminal record and will never have to register as a sex offender (he received 3 life sentences).
  • Adam Walsh was abducted from a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981, and later found murdered and decapitated. Adam’s Father, John, was the force behind the Adam Walsh Act10.

In all of these cases, the kidnapper traveled well out of his way to abduct his victim. Nothing in any State’s sex offender registry could have prevented these crimes. These men were sick, pathological, focused on finding a victim, and the rarest of sexual offenders. Yet, how could registries have prevented these crimes? Answer: the crimes could not have been prevented by sexual offender registries.

In this new decade, sex registries are required to be compliant with the federal Adam Walsh Act, which lists every level of sex offender are actually counter-productive to their stated cause. By listing all levels of offenders online, the violent and predatory offenders can hide within the masses of the online databases.

“The registry is not being used as it was intended, so let’s get rid of it and focus on the 10,000 violent offenders and track them.”
-John Walsh

What kills children?

The following is from the CDC and the American Journal of Psychiatry on the top causes of deaths to minors in 200211:

  • A child is 1,400% more likely to hang themselves than to be kidnapped and killed by a Sex Offender
  • A child is 1,500% more likely to shoot themselves than to be kidnapped and killed by a Sex Offender
  • A child is 3,200% more likely to murdered by a firearm from somebody besides a Sex Offender
  • A child is 4,000% more likely to shot, stabbed, burned alive or poisoned than kidnapped and killed by a Sex Offender
  • A child is 15,300% more likely to killed in a car accident than to be kidnapped and killed by a Sex Offender

So really, how bad is it to be a Sex Offender?

Besides being virtually unemployable, and subject to vigilantism and harassment, all Sex Offenders:

  • Cannot use FEMA storm shelters
  • Cannot travel without prior approval
  • Cannot stay in hospital overnight without approval

and can be:

  • Barred from living with their family/children
  • Barred from gyms
  • Barred from children’s events
  • Barred from tourist destinations
  • Barred from public parks
  • Barred from student loans and continuing education
  • Barred from any type of scholarship
  • Barred from FHA loans
  • Barred from Small Business Loans
  • Barred from Tax Credits
  • Barred from Section 8, public housing, homeless shelters.

Would you choose this life for violent, predatory sexual assailants? I would. What about low-risk men and women who made stupid choices and never touched a child or another human being in a sexual way?

How far will things go before the American public takes a stand against trampling the Constitutional rights of a group of people in the name of a greater cause? This is a very slippery slope of government subtly trading freedoms away under the guise of protecting children.

Three examples:
Sexual Offender Laws (America) – cause: child safety
TSA molestation and profiling (America) cause: public safety from terrorists

. . .and eventually. . .

Genocide (Nazi Germany, ca. 1930’s) – cause: racial purity

This might seem like a huge jump, but consider the quote, and I’ll end with that:

“First they came for the Socialists,
and I did not speak out because I was not a socialist.
Then they came for the trade unionists,
and I did not speak out because I was not a trade unionist.
Then they came for the Jews,
and I did not speak out because I was not a Jew.
Then they came for me,
and there was no one left to speak for me.”
– Pastor Martin Niemöller
Interned from 1941-1945 at the Nazi Concentration Camp in Dachau

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  1. Taken from the aggregate of all federal penal codes identified under SORNA []
  2. Full text of LB-285 []
  3. Source is an NCMEC study on the geographical locations of sex offenders. []
  4. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking []
  5. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. []
  6. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. []
  7. Full text of the Fourteenth Amendment to the United States Constitution []
  8. Main character in Nathaniel Hawthorne’s classic novel The Scarlet Letter []
  9. Recidivism of Sex Offenders Released from Prison in 1994 []
  10. The Adam Walsh Child Protection and Safety Act of 2006 []
  11. CDC study for all deaths in 2002 []