Fifth Circuit Holds Federal Retroactive Sex Offender Registration Statute Sometimes Exceeds Article I Powers

The case is United States v. Kebodeaux (5th Cir. July 6, 2012) (en banc):

While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government when Congress enacted a statute that, as interpreted by the Attorney General, required Kebodeaux to register as a sex offender. When he failed to update his state registration within three days of moving from San Antonio to El Paso, he was convicted under 18 U.S.C. ยง 2250(a) (also enacted in 2006) and sentenced to a year and a day in prison….

Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military…. We do not call into question Congress’s ability to impose conditions on a prisoner’s release from custody, including requirements that sex offenders register intrastate changes of address after release. After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution. Some other jurisdictional ground, such as interstate travel, is required.

This finding of unconstitutionality therefore does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it applies only to those federal sex offenders whom the government deemed capable of being unconditionally released from its jurisdiction before SORNA’s passage in 2006.FN4 Moreover, even as to those sex offenders, it means only that Congress could treat them exactly as all state sex offenders already are treated under federal law. It also has no impact on state regulation of sex offenders.

The Court in the process distinguishes United States v. Comstock (2010), in which the Court held that “Congress has the Article I power to enact a civil-commitment statute that authorizes the Department of Justice to detain mentally ill, sexually dangerous federal prisoners beyond when they would otherwise be released.” “Kebodeaux’s facts go beyond those in Comstock … because this case is not merely about whether Congress can regulate the activity of someone still in federal custody past the expiry of his sentence. Importantly, it raises the further question whether Congress can regulate his activity solely because he was once convicted of a federal crime. The ‘considerations’ that the Court found important in Comstock are not expansive enough to subject Kebodeaux to federal criminal sanctions under the unusual circumstances that he presents.”

While the practical impact of the opinion is limited, I suspect that if the federal government petitions for certiorari, the U.S. Supreme Court will likely agree to hear the case: Since decision striking down federal statutes involve a split among the branches — the judiciary striking down what the legislative has enacted and what the executive is enforcing — the Court tends to be inclined to view the cases as certworthy. The interesting question is whether the federal government will indeed ask the Supreme Court to hear the case.

Thanks to Howard Bashman (How Appealing) for the pointer.

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