February 10, 2009
States Complain about Federal Sex Offender Registration Act
The NYT reported yesterday on states' complaints about requirements under the federal Adam Walsh Child Protection and Safety Act and on sex offenders' claims that the registration requirements violate constitutional rights.
But officials in many states complain about the law's cost and, in some instances, contend their laws are more effective than the federal one. The states also suggest that the federal requirements violate their right to set their own policies and therefore may be unconstitutional [under the Tenth Amendment], at least in part. . . .
Other lawsuits have challenged the requirement that adults whose crimes were committed before the law's passage appear on public registries for longer than they had been led to expect. Some lawyers say that amounts to changing an offender's penalty after the fact, a potential [violation of the Ex Post Facto and Due Process Clauses].
The Tenth Amendment claim has not gained traction in the courts; in fact, it's been uniformly rejected. Courts--all district courts, as far as I can tell--have held that the Act does not require state officers to do anything more than they already do under state laws; thus there's no commandeering.
But the Ex Post Facto and Due Process arguments have gained some small measure of traction. For example, the Seventh Circuit ruled just over a month ago in late 2008 in U.S. v. Dixon that a conviction for failing to register ran afoul of both clauses, where the defendant's failure to register occurred before the Act took effect (i.e., within a reasonable period after the date he was required to register under the Act). But the court in that same case also held that another conviction did not violate the clauses, where this second defendant admitted to not registering a full five months after the date he was required to register under the Act. Timing quite obviously matters.
Commerce Clause claims have gained more traction and divided the courts. The Eighth Circuit--the most recent circuit court to rule--in U.S. v. Howell held that the registration requirements did not exceed Congressional authority under the Commerce Clause and the Necessary and Proper Clause. (The Howell court specifically augmented the Commerce Clause with the Necessary and Proper Clause in its holding, distinguishing other cases that ruled the Act exceeded Commerce Clause authority (alone).)
Other claims are based on the right to travel and the nondelegation doctrine; these claims haven't gone anywhere.
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