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Federal judge rules sex offender residency law unconstitutional

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] A judge in the US District Court for the Eastern District of California ruled this week that the Sex Offender Registration and Notification Act of 2006 (SORNA), which makes it a federal crime for a sex offender to attempt to move to another state while failing to register in a nationwide database, is unconstitutional. In the cases of Mark Anthony Valverde, and Nedde Max Murphy Jr., Judge Lawrence Karlton held that the statute violates the Commerce Clause of the US Constitution. Valverde had pleaded guilty to sexual assault charges in 2002 in California, and after being paroled in 2008, he was arrested when he fled to Montana before registering as a sex offender. In his order dismissing Valverde's indictment, Karlton relied in part on the US Supreme Court cases of United States v. Lopez and United States v. Morrison, saying: 2250 does possess a purportedly jurisdictional element, as it penalizes a person who is required to register under SORNA and knowingly fails to do so or to update his or her registration and who travels in interstate commerce. In this way, unlike the statutes considered in Lopez and Morrison, the section limits the class of those who can be penalized to only those who have traveled in interstate commerce. The problem, however, is that this jurisdictional hook still creates a class that is too broad for Commerce Clause purposes. Under the statute, a person may be prosecuted for failing to register in his home state, then crossing state lines and registering in the next state. The harm, therefore, may be entirely intrastate. Were this a sufficient jurisdictional element, there would be no limit to Congress's ability to penalize any crime whatsoever, so long as the defendant at some point in the course of his life traveled across state lines. This appears to be a plain usurpation of the state's police power; as the Court expressed in Morrison, there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” As such, the jurisdictional language in 2250 cannot alone render the statute valid under the Commerce Clause.While the ruling is the minority position concerning SORNA, other District Courts have also found the statute unconstitutional on Commerce Clause grounds, including the Southern District of Florida and the Northern District of New York. Sex offender laws have been increasingly criticized for limiting residence options and for promoting ostracization.

Full post as published by JURIST - The Paper Chase on February 14, 2009 (boomark / email).