We now have added "Informational Posts" which are tidbits of information that may come in handy at some point.

One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions (Draft)

January 2009:

Abstract:
In 2003, the United States Supreme Court issued its only two opinions regarding the constitutionality of sex offender registration and notification statutes. The two opinions, Smith v. Doe (“Smith”) and Connecticut Department of Public Safety v. Doe (“DPS”), upheld the Alaska and Connecticut registry and notification laws against Ex Post Facto Clause and due process challenges. Three years later, the federal Sex Offender Registration and Notification Act (“SORNA”) was passed as part of the Adam Walsh Child Protection and Safety Act. The federal statute was very different from the state statutes that the Court reviewed. Most notable among the differences was the creation of the federal crime of “failure to register” which was punishable by up to ten years imprisonment. Despite the significance of the disparities between the state and federal laws, district courts across the country have virtually rubber stamped the criminal provisions of SORNA as constitutional. The district courts’ reasoning has been almost entirely based upon superficial, mechanical applications of the Court’s decisions in Smith and DPS. This article contends that most district courts have been severely misguided in reading the two Court opinions and the statutory provisions of SORNA. Consequently, this article concludes that either Congress should amend SORNA or courts should strike down portions of SORNA on Ex Post Facto Clause, due process, and Commerce Clause grounds. ..Source.. by Corey Rayburn Yung

1 comment:

Kevin McManus said...

The crime of "failure to register" also includes failure to report changes to information "required by regulations developed by the Attorney General". Couldn't the same logic be used to argue that the SORNA regs are Unconstitutional? That Congress exceeded its authority by giving the Attorney General the power to codify criminal law - a power reserved in the Constitution for the Legislature. Since violation of the AG imposed regulations carry criminal sanctions, Congress has Unconstitutionally allowed the AG to codify criminal law.

The old argument, upheld by the Supreme Court, was that registration statutes were non-punitive in "intent" and therefore do not violate Ex Post Facto provisions. Today's SORNA "punishes" an offender with up to 10 years in prison for not shaving for two weeks while bedridden with the flu, and "not reporting" his "change in appearance".

The new argument is that the "effect" of registration statutes IS punitive, and therefore a violation of the Ex Post Facto provision (and others).