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Archive for September 30, 2009

SCOTUS to Hear SORNA Commerce Clause Case

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Sentencing Law & Policy : SCOTUS cert grants.
Google/AP : Court asked if old offenses can get new penalties.

Docket: 08-1301 Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

The Supreme Court will decide whether sex offenders who didn’t register with state officials before harsher punishments went into effect can still be sentenced to extra time in prison. (with regard to Interstate Commerce)

The high court on Wednesday agreed to hear an appeal from Thomas Carr, who pleaded guilty to sexual abuse in Alabama. When released from prison in 2004, he moved to Indiana but didn’t register with that state’s sexual offender database.

The Sex Offender Registration and Notification Act, which increased penalties for not registering, was not passed until 2006. But when Carr was arrested in 2007, he was charged using that law and sentenced to 37 months in prison. Carr appealed, saying prosecutors should not have used a law that wasn’t in existence when he committed his crime.

But the 7th Circuit Court of Appeals in Chicago said that when the law was passed, Congress did not say it did not apply retroactively.

Other courts have said that the law — SORNA — cannot be applied retroactively, and Carr wants the high court to resolve the conflict.

Federalism Challenges to the Adam Walsh Act

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Social Science Research Network : Federalism Challenges to the Adam Walsh Act.
by Robin Morse

Boston University Law Review, Forthcoming

Abstract:
This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders. Part I provides background information on the Adam Walsh Act and these two provisions. Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause. This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue. Part III argues that neither provision is justified independently by the Commerce Clause. Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws. This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes. This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses. Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.

WA Appeals Court : Man Relieved of Registration

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Court of Appeals Division III – State of Washington
Opinion Information Sheet (readers are urged to read this entire important opinion)
PDF version here.

Docket Number: 27475-6 – Title of Case: State of Washington v. Brian A. McMillan
File Date: 09/17/2009

Excerpts of Opinion:
Brown, J. – The trial court, exercising its fact-finding discretion, relieved sex offender, Brian A. McMillan, of his duty to register. The State appeals, contending Mr. McMillan failed to show by clear and convincing evidence that continued registration no longer served the purpose of the registration statutes. Finding no error, we affirm.

On September 9, 2008, the trial court relieved Mr. McMillan of his duty to register, finding he had been in the community for over 10 years without being convicted of any new offenses and his likelihood to reoffend was low. The court partly relied on the declaration of Dr. Clark Ashworth, a clinical psychologist. Dr. Ashworth opined that Mr. McMillan did not pose “any significant risk of sexual re-offending.” Clerk’s Papers (CP) at 100. In his oral ruling, the judge discussed the registration statute, set forth the factors in deciding whether to relieve an offender’s registration requirement, and commented on the factors. The judge did not make a written finding that the purpose of the registration statutes would no longer be met if Mr. McMillan was required to continue to register. The State appealed.

Mr. McMillan complied with all SSOSA requirements. Over the last 10 years, Mr. McMillan has complied with probation, community supervision, community custody and worked with Dr. Ashworth, who opined that Mr. McMillan was at a low risk to reoffend. The judge stated, “as a matter of policy . . . . if I don’t grant it in this situation, a petition to drop the registration requirement, then when do I? In other words, if you don’t reward a probationer for having successfully done something ordered by the court, then the whole process becomes illusory.” RP at 11.

In sum, the trial court exercised its fact-finding discretion in deciding the evidence rose to the clear and convincing standard. In other words, Mr. McMillan proved to the trial court by clear and convincing evidence that the purpose of the registration statutes was no longer being met by continuing to require him to register.

This is an important court ruling because it sets precedent for those on registries across the nation to petition the court for relief of registration requirements. Any person who is appealing their cases to State Appeals Courts, should consider including this argument in their appeals. See “How to file Court of Appeals Brief”. Any legal professionals who read this blog are asked for their input on this matter.

Nov. Oral Arguments in Ohio Supreme Court

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Related to Ohio’s Senate Bill 10 / Adam Walsh Act/ Sex Offender Registration and Notification Act,
the following four consolidated cases will be heard before the Ohio Supreme Court on Wed, Nov 4, 2009, according to the Ohio Supreme Court Calendar:

Wednesday Nov. 4, 2009, 9 a.m. :

Case Number
08-0991/
08-0992

Roman Chojnacki v. Marc Dann, Ohio Atty. General [Richard Cordray], in his
Official Capacity – Warren County
Certified conflict: “Whether a decision denying a request for appointment of counsel in a reclassification hearing held pursuant to Ohio’s version of the Adam Walsh Act, Senate Bill 10, is a final appealable order.”

On March 23, 2009, the Court ordered the parties to brief the following issues:

  • Whether sex offender reclassification hearings conducted pursuant to the provision of Am.Sub.S.B. 10 are criminal or civil proceedings.
  • Whether sex offenders are entitled to the appointment of counsel for Am.Sub.S.B. 10 reclassification hearings if those proceedings are civil in nature.

08-1624
In the Matter of: Darian J. Smith, Alleged Delinquent Child – Allen County

PropLaw I: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Ex Post Facto Clause of the United States Constitution.

PropLaw II: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Retroactivity Clause of the Ohio Constitution.

PropLaw III: The application of SB 10 violates the United States Constitution’s prohibitions against cruel and unusual punishments.

PropLaw IV: A juvenile court has no authority to classify a juvenile, adjudicated delinquent for a sex offense, as a juvenile sex offender registrant when the statutory provisions governing such a hearing were repealed at the time the hearing was conducted.

08-2502
State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E.
Phillips – Huron County
PropLaw I: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Ex Post Facto Clause of the United States Constitution.

PropLaw II: Application of S.B. 10, Ohio’s version of the version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Retroactivity Clause of the Ohio Constitution.

PropLaw III: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who were classified under Megan’s Law effectively vacates valid judicial orders, and violates the Separation of Powers Doctrine embodied in the Ohio Constitution.

PropLaw IV: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who have previously been sentenced for sex offenses violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.

PropLaw V: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who have previously been subject to the provisions of either the 1996 or 2003 version of Megan’s Law violates Due Process and constitutes cruel and unusual punishment as prohibited by the Ohio and United States Constitutions.

PropLaw VI: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who, pursuant to agreement with the Prosecutor and before the Act’s effective date, entered pleas of guilty or no contest impairs the obligation of contracts as protected by the Ohio and United States Constitutions.

09-0189
In re: Adrian R., Delinquent Child – Licking County
PropLaw I: The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the juvenile’s right to Due Process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.