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Federal sex offender registration law applies to person discharged from his sentence before passage of law

United States v. Anthony James Kebodeaux, USSC No. 12-418, 6/24/13

United States Supreme Court decisionreversing U.S. v. Kebodeaux, 687 F.3d 232 (5th Cir. 2012)

The Court holds that the federal Sex Offender Registration and Notification Act (SORNA) applies to a person despite the fact he was convicted (at a court martial), and completed service of his sentence, before passage of the Act. The Fifth Circuit concluded Congress had no power under the Constitution’s “necessary and proper” clause to make Kebodeaux register under SORNA because he had been “unconditionally” discharged from his sentence and was subject to no further federal control.  (Slip op. at 2-3).

The Supreme Court concludes that even though Kebodeaux was no longer in custody, under supervision, or in the military when SORNA was enacted, he had from the time of his conviction been subject to the sex offender registration requirements under the Wetterling Act, which had been enacted before his conviction. (Slip op. at 3-6). No one claims the Wetterling Act falls outside the “necessary and proper” clause, “[a]nd it is difficult to see how anyone could persuasively do so.” (Slip op. at 6). In addition, Congress could make Kebodeaux subject to the Wetterling Act under the “military regulation” clause, Art. I, §8, cl. 14. (Slip op. at 7-8). Thus, at the time SORNA was enacted, Kebodeaux was already subject to federal registration requirements that were valid exercises of federal power. Because Kebodeaux does not dispute SORNA was itself a necessary and proper means for furthering the federal government’s preexisting registration ends, he was subject to its requirements. (Slip op. at 10-12).

Chief Justice Roberts concurs in the judgment, agreeing Congress had the authority to subject Kebodeaux to SORNA under both the “necessary and proper” and “military regulation” clauses, but abjuring the majority’s discussion of the public benefits of sex offender registration as “irrelevant to our purposes” and expressing fear “incautious readers” might interpret the language as finding there is a “federal police power,” which does not exist. (Concur. at 3-4). Justice Alito concurs separately, too, based on Congress’s power under the “military regulation” clause only. (Concur. at 1).

Justices Scalia and Thomas dissent. In Justice Scalia’s words, the “lynchpin” of the majority’s reasoning is Kebodeaux’s being subject to the Wetterling Act, but that does not establish that the Wetterling Act’s registration requirements were a valid exercise of federal power or that SORNA was designed to carry the Wetterling Act into execution: “The former proposition is dubious, the latter obviously untrue.”

As predicted in our post on the cert grant, the case has no impact on Wisconsin law. As for federal practitioners, its interest will be limited to those defending the subset of persons charged with failing to register under SORNA who were convicted and discharged before the Act took effect and hoped to take advantage of the Fifth Circuit’s decision. The fractured opinions regarding the extent of the federal government’s power will interest readers following the Court’s continuing skirmishes over that issue. If you’re looking for more on that topic, see Steven Schwinn’s Scotusblog piece, “A modest ruling, or vast federal authority?”

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