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SORNA Requirements Don't Apply to Certain Pre-Act Offenders

By Robyn Hagan Cain on July 09, 2012 | Last updated on March 21, 2019

The Fifth Circuit Court of Appeals has scaled back the reach of the congressional authority in the Sex Offender Registration and Notification Act (SORNA).

Friday, the appellate court issued an en banc ruling reversing Anthony Kebodeaux's SORNA conviction for knowingly failing to update his sex offender registration after his intrastate change of residence. While the court found that SORNA sometimes exceeds congressional commerce power, it is a narrow ruling.

Anthony Kebodeaux was sentenced in 1999 to 3 months in prison for having consensual sex with a 15-year-old. He served his 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 SORNA in 2006.

Kebodeaux was subsequently convicted of knowingly failing to update his sex offender registration after he moved from El Paso to San Antonio, Texas.

Last year, a panel majority rejected Kebodeaux's argument that Congress lacked power to criminalize his failure to register because it cannot constitutionally reassert jurisdiction over intrastate activities after unconditional release from federal custody.

After en banc rehearing, however, the Fifth Circuit agreed with Kebodeaux that, under the specific and limited facts of the case, his commission of a federal crime was an insufficient basis for Congress to assert unending criminal authority over him.

Judge Jerry Smith, writing for the majority, clarified, "The federal requirement that sex offenders register their address is unconstitutional on narrow grounds. 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."

The appellate court noted that the most analogous Supreme Court decision to Kebodeaux's case is United States v. Comstock, in which the Court upheld a civil commitment statute authorizing the Justice Department to detain mentally ill, sexually dangerous federal prisoners beyond when they would otherwise be released.

Kebodeaux's facts, according to the Fifth Circuit, go beyond those in Comstock, because this case was not merely about whether Congress can regulate the activity of someone still in federal custody past his sentence. Instead, Kebodeaux raised the question of whether Congress could regulate his activity solely because he was once convicted of a federal crime. The Fifth Circuit reasoned that the considerations that the Supreme Court found important in Comstock were not expansive enough to subject Kebodeaux to federal criminal sanctions under the unusual circumstances in his case.

Eugene Volokh at the Volokh Conspiracy is predicting that the feds will petition the Supreme Court for review since the Kebodeaux decision creates a circuit split on the issue. Do you think the Nine would reach the same conclusion?

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