“The Department of Justice cannot find a single authority * * * for the proposition that it can reassert jurisdiction over someone it had long ago unconditionally released from custody just because he once committed a federal crime.” The en banc U.S. Court of Appeals for the Fifth Circuit today issued a ruling, by a vote of 10-to-6, that declared unconstitutional one aspect of the federal sex offender registration requirement imposed under the federal law known as the Sex Offender Registration and Notification Act.

Circuit Judge Jerry E. Smith wrote the majority opinion, which observes that “After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution.” The majority opinion also includes a very interesting evaluation and rejection of the federal government’s Commerce Clause justification for the particular registration requirement at issue.

Today’s en banc Fifth Circuit ruling may not be the final word on this controversy. Because the appellate court has partially invalidated a federal law, the likelihood of U.S. Supreme Court review would seem high should the Solicitor General’s Office file a petition for writ of certiorari.

En Banc Circuit Says Sex Offender Rules Erred
Date Filed: 07/06/2012
(CN) – After a sex offender is unconditionally released from prison, the U.S. government cannot make him register in-state address changes, the full 5th Circuit ruled.
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 recently moved from San Antonio to El Paso and failed to update his state sex offender registration within three days, the government 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 the court then vacated its decision to rehear the case en banc.
A majority of the New Orleans-based federal appeals court reversed and dismissed Kebodeaux’s conviction Friday.
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 his movement even after his sentence expired, and he has been unconditionally released.Judge Jerry Smith and his colleagues in the majority rejected this argument.
“To say that Congress continues to have a ‘direct supervisory interest’ over such persons like – Kebodeaux – is to announce that it has an eternal supervisory interest over anyone who ever committed a federal sex crime,” Smith wrote. “And that is no different from saying that Congress has such an interest over anyone who ever committed any federal crime, because there is nothing that is constitutionally special about sex crimes.”
SORNA’s registration requirements are “merely an effort to protect the public from those who may be dangerous because they once were convicted of a sex offense,” the 35-pager lead opinion states.
“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,” Smith added. “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 panel majority that upheld Kebodeaux’s conviction, disagreed with the majority in an 11-page dissent.
“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.
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