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Friday, April 12, 2024 | Back issues
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Sex Offender Rules Will Go Before Supreme Court

WASHINGTON (CN) - The Supreme Court said it will decide whether sex offenders who are unconditionally released from prison must register in-state address changes.

Anthony Kebodeaux had consensual sex with a 15-year-old girl when he was a 21-year-old member of the U.S. military.

He was sentenced to three months in prison in 1999 for the crime, and the government then cut all ties with him after he served the sentence.

But when Kebodeaux moved from San Antonio to El Paso, he failed to update his state sex offender registration within three days. Federal prosecutors then charged him with violating the Sex Offender Registration and Notification Act, or SORNA.

He was convicted and sentenced to one year and one day in prison.

A three-judge panel of the 5th Circuit affirmed in 2011, but a majority of the full court eventually sided with Kebodeaux after a rehearing.

The case hinges on the 2006 passage by Congress of SORNA, which states that a sex offender must register in each jurisdiction where he lives, works and studies.

Offenders are also required to keep their registration current, but Kebodeaux argued that the government applied SORNA's registration requirements to him unconstitutionally because the government had unconditionally released him before SORNA became law.

The government, however, claimed its power to criminalize sex offenses includes the authority to regulate movement even after an expired sentence and unconditional release.

This claim brought scorn from the appellate majority.

"By that logic, Congress would have never-ending jurisdiction to regulate anyone who was ever convicted of a federal crime of any sort, no matter how long ago he served his sentence, because he may pose a risk of re-offending," Judge Jerry Smith wrote. "Indeed, that logic could easily be extended beyond federal crimes: Congress could regulate a person who once engaged in interstate commerce (and was thereby subject to federal jurisdiction) on the ground that he now poses a risk of engaging in interstate commerce again." (Parentheses in original.)

Judge James Dennis, who was a member of the original panel that upheld Kebodeaux's conviction, dissented.

"The majority opinion offers no valid reason that SORNA is not a reasonable adaptation of Congress' spending power, commerce power, and power to enact criminal laws to further and protect its enumerated powers, for the legitimate end of establishing a comprehensive national sex offender registration and notification system. Accordingly, in my view, SORNA is not unconstitutional as applied to Kebodeaux," Dennis wrote, joined by Judge Carolyn Dineen King.

King and three others also joined a dissent authored by Judge Catharina Haynes.

Pointing to sex-offender registry laws Congress had enacted before SORNA passed in 2006, these judges said Kebodeaux was subject to these laws even when he was released from prison.

"It makes little sense to contend that Congress lost its power or 'jurisdictional hook' over Kebodeaux simply because it updated the national sex-offender registration system laws," Haynes wrote.

Judge Priscilla Owen authored a concurring opinion in which she disputed "the majority's analysis of Kebodeaux's obligations under federal law to register as a sex offender at the time he completed his sentence."

There were 16 judges who heard the case en banc.

Per its custom, the Supreme Court did not issue any comment in granting the government certiorari on Friday. It also granted Kebodeaux leave to proceed in forma pauperis.

The appeal will address "whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender."

It will also consider "Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted."

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