Commerce Clause Enables SORNA Convictions

The Sixth Circuit is full of sex offender appeals lately.

Earlier this month, we told you about a Sixth Circuit Court of Appeals decision finding that a person can be found guilty of a Sex Offender Registry and Notification Act (SORNA) violation, even if SORNA wasn’t implemented in his state at the time of the violation. This week, the Cleveland-based appellate court upheld a SORNA conviction after the defendant challenged the law under Commerce Clause.

Defendant Jimmy Coleman was convicted of sexual battery in 2002. As a result of his conviction, he is required to register as a sex offender under Ohio law.

Three days before his release from prison in 2005, Coleman signed a notice acknowledging his duty to register personally in each county in Ohio, or any other state where he resided, within five days of arriving there. He did not register in Ohio. Before SORNA went into effect, Coleman moved permanently to Kentucky. Again, he did not register.

In 2009, Coleman was arrested for a parole violation. Coleman had made occasional trips from Kentucky to West Virginia between May 2008 and mid-February 2009, including several after SORNA became effective on August 1, 2008. He subsequently entered a conditional guilty plea to traveling in interstate commerce and failing to register as a sex offender.

In addition to the SORNA's-an-ex-post-facto-law defense that we're used to seeing, Coleman threw in a Commerce Clause defense in his SORNA conviction appeal. He claimed that SORNA is unconstitutional because it regulates conduct that falls outside the scope of Congress's power under the Commerce Clause. The Sixth Circuit Court of Appeals disagreed.

In U.S. v. Lopez, the Supreme Court outlined three broad categories of activity that Congress may regulate under its Commerce Clause authority:

1. The use of the channels of interstate commerce.
2. Instrumentalities of interstate commerce, or persons or things in interstate commerce, (even when they are only threatened by intrastate activities).
3. Activities having a substantial relation to interstate commerce.

Here, the Sixth Circuit concluded that "SORNA fits comfortably within the first two Lopez prongs."

First, the court ruled that SORNA is valid regulation of the use of the channels of interstate commerce because "commerce" may encompass "using the channels of interstate commerce to bring the spread of any evil or harm to the people of other states from the state of origin."

Second, the court noted that SORNA is a valid regulation of the "instrumentalities of interstate commerce," which can include "persons or things in interstate commerce." Here, the court found that Coleman became a person in interstate commerce when he traveled across state lines.

Finding that SORNA fit squarely within Congress's commerce power, the Sixth Circuit Court of Appeals affirmed the ruling.

What do you think? Is SORNA an easy sell under the Commerce Clause, or did the Sixth Circuit stretch to justify the law?

Related Resources:

• U.S. v. Coleman (Sixth Circuit Court of Appeals)
• State SORNA Implementation Not Required for SORNA Conviction (FindLaw's Sixth Circuit Blog)
• SORNA Trumps Juvenile Delinquent's Privacy Concerns (FindLaw's Ninth Circuit Blog)
• Commerce Clause (LawBrain)