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, ((like registering a vehicle with the DMV)) 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. ((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.))
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.
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. ((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))
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.