Wednesday, June 25, 2008

US v. Waybright - Re-Registry Provision Struck Down

A very interesting federal case comes from the unlikeliest of places when it comes to de novo judicial review - Missoula, Montana. Yet Big Sky country is the situs of one of the more intriguing decisions regarding sex offenders to come from the district court level this year. In a potential precedent-setting case, US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008), a district court judge may have found a constitutional problem with the Adam Walsh Act.

The defendant, Bernard L. Waybright, had been convicted in May 2004 of a misdemeanor sex crime in a West Virginia state court. As part of his sentence, he was required to register with the federal Sex Offender Registry (SORNA), 42 US § 16901 et seq., which keeps track of where offenders reside. He then traveled to Montana several times but failed to register with local law enforcement, which is a violation of another portion of SORNA, 18 USC § 2250(a). The statute reads:

Whoever--
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of
any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender
Registration and Notification Act; shall be fined under this title or imprisoned not more
than 10 years, or both.


Waybright challenged the constitutionality of this statute in several ways, most of which failed, but the key successful claim he made was that the portion of SORNA that requires offenders to register and keep their registration current (42 US § 16913) was a violation of the Commerce Clause.

Waybright argues Congress exceeded its power under the Commerce Clause by enacting two specific provisions of SORNA—18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. [...] Section 16913 imposes registration requirements on all sex offenders in the United States regardless of whether they travel in interstate commerce.[...] Waybright asserts, even if § 2250(a) is a valid exercise of Congress’ Commerce Clause power, he cannot be convicted under the statute because he should not have been required to register under § 16913 in the first place. According to Waybright, the registration requirements found at § 16913 also exceed Congress’ power under the Commerce Clause. Waybright contends § 16913 is unconstitutional because Congress lacks the power to force citizens who have been convicted of purely local offenses under state law to register as sex offenders.


District Judge Molloy quickly determined that the only way § 16913 could be appropriately upheld under the Commerce Clause would be under the Lopez (514 US 549) theory that there must be a nexus between the statute and regulation of "activities that substantially affect interstate commerce." Given that threshold, the US then argued that there was a substantial connection between the government's economic interest in regulating child pornography (as part of the Adam Walsh Act) could be undercut by not allowing registration of offenders. Molloy easily dismissed this argument:

Section 16913 has nothing to do with commerce or any sort of economic enterprise; it regulates purely local, non-economic activity. While certain sex offenses may be commercial or economic in nature (e.g., child pornography), sex offenders themselves are not necessarily engaged in commercial or economic activity. Even though the Adam Walsh Act regulates some sex
offenses that are commercial (e.g., the distribution of child pornography), its regulation of sex offenders is not indispensable to the success of its other provisions. [...] But, any effect on
interstate commerce from requiring sex offenders to register is too attenuated to survive scrutiny under the Commerce Clause.


Molloy then rejected an alternative argument made by the government based on the Necessary and Proper clause. Finding no other possible way for the government to justify this Congressional power, Molloy then stated:

Section 16913 is not a valid exercise of any of the congressional powers enumerated in the Constitution. As a consequence, Section 16913 is unconstitutional. To obtain a conviction under § 2250(a), the government must first prove Waybright was required to register under § 16913. Because §16913 is unconstitutional, the government cannot satisfy its burden of proof with respect to § 2250(a). Accordingly, the Indictment must be dismissed.


This is the first district court decision that has declared a portion of the Adam Walsh Act unconstitutional. The government, obviously, plans to appeal to the 9th Circuit Court of Appeals, but we find Molloy's argument to be compelling. Section 16913 has as much to do with interstate commerce as us registering with the local VFW.

One thing to watch for if the government ends up losing its appeal, however, is what Molloy alluded to in his footnote on the constitutionality of the provision. He basically gave Congress a roadmap by which to make the statute constitutional.

In declaring § 16913 unconstitutional, the Court expresses no opinion about the wisdom or necessity of creating comprehensive, national standards for the registration of sex offenders. Nor does the Court mean to suggest Congress could not have achieved the purposes of SORNA in a manner consistent with its enumerated powers. To the contrary, the Court acknowledges § 16913 could be made constitutional by limiting the registration requirement to sex offenders who travel in interstate commerce or by amending § 16913 to encourage the states to enact laws requiring all sex offenders to register.


So far, this case hasn't received much in the way of national legal coverage, but there are a few tidbits floating around:

KXMB.com - Molloy: Sex Offender Registry Rule Unconstitutional
Missoulian.com - Molloy: Sex Offender Registry Rule Unconstitutional
Sentencing Law and Policy - More on the Waybright Decision
US v. Waybright Decision

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