Sunday, December 7, 2008

The Sunday Reader: Yung on Federal Sex Offender Registration

Professor Corey Rayburn Yung (John Marshall (Chicago) and editor of the Sex Crimes Blog) posted a pair of articles on ssrn on the constitutionality of the federal Sex Offender Registration and Notification Act ("SORNA"):  Sex Offender Registration and Notificat Act and the Commerce Clause (forthcoming in the Federal Sentencing Reporter); and One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions (forthcoming in the Harvard Journal on Legislation). The latter article is a substantial expansion on the constitutional arguments in the former and includes a review and analysis of state efforts.

These'll well supplement your lessons on the Commerce Clause (and the Ex Post Facto and Due Process Clauses) in the unique context of the SORNA--an excellent case study in Congress's authority under the Commerce Clause, and in restrictions upon Congress's authority under the Ex Post Facto and Due Process Clauses.  I highly recommend them both for profs and students alike.  (Judges might also take a look.)

The SORNA, enacted under authority of the Commerce Clause, requires convicted sex offenders to register, and to update their registration anytime they move, in a new federal registry.  (It also conditions federal crime funds on states' cooperation in establishing the federal registry.)  The SORNA:

(a) In General. -Whoever-

(1) is required to register under the [SORNA];

(2)(A) is a sex offender as defined for the purposes of the [SORNA] by reason of a conviction under Federal law . . . the law of the District of Columbia, Indian tribal law, or hte law of any terrirotry or possession of the United States; or

(B) travels in interstate or foreign commere, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or to update a registration as required by the [SORNA]; shall be fined under this title or imprisoned not more than 10 years, or both.

Lower courts have been, well, outright confused in analyzing the registration requirement under the Commerce Clause.  Most have upheld the requirement with little substantive analysis.  Others have upheld or overturned it with just a little more scrutiny into whether sex offenses (or sex offenders' travels?) "substantially affect" interstate commerce.  And, surprisingly, some have analyzed it as a "channel" or "instrumentality" of interstate commerce.  This is clearly an area for some clarifying scholarship.

And Yung does a wonderful job getting us started.  Yung looks at the SORNA through the "substantial effects" test--the most obvious Commerce Clause theory upon which SORNA rests.  But he shows how (2)(B)--the interstate component of the SORNA, the "jurisdictional element"--is an insufficient Commerce Clause hook, because it is temporally removed from the underlying sex crime.  As a result, "a sex offender can travel between states years before they have failed to register and still be prosecuted . . . ."  And: "sex offenders can be prosecuted for failing to update a registry after switching employers within a state even though such a change was unconnected to the alleged interstate travel which may have occurred years previous." 

In other words:  The interstate travel element of SORNA has no necessary relationship to the underlying sex crime.

As Yung argues, this theory pushes Congress's Commerce Clause authority well beyond the restrictions in Lopez (overturning the possession limitation in the Gun Free School Zone Act) and Morrison (overturning the civil damages remedy in the Violence Against Women Act).  If SORNA were upheld, Congress could merely add "who travels in interstate commerce" to any federal criminal law--whether the travel were related to the underlying act or not--and put it within the Commerce Clause power.  (A related problem:  the SORNA also lacks Congressional findings on the substantial effect on interstate commerce.)

As to (2)(A)--the registration requirement for those convicted of federal sex crimes--Yung argues that it creates a

flypaper theory of the Clause whereby any person who entered federal jurisdiction for just a moment was committed to such jurisdicition for life.  This notion is antithetical to the notion of a limited federal government.  A person cannot be forever subject to federal jurisdiction simply by having entered federal control at a prior date.  In no other context has such a flypaper concept of the Commerce Clause been suppported by a federal court.

In his second article, Yung also look at the Ex Post Facto Clause and Due Process Clause problems with the SORNA, and he examines state registration laws.

Yung concludes by arguing that Congress needs to go back to the drawing board to cure the constitutional problems with SORNA.

These are both wonderful articles on this important and emerging area of Congressional authority.  They are good for the classroom and, hopefully, good for the courts.  I highly recommend them both.


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