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Kebodeaux v. U.S., USSC 12-418, cert. granted 1/11/13

Question presented:

1. Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender.

2. Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

Lower court opinion (U.S. v. Kebodeaux, 687 F.3d 232 (5th Cir. 2012))


Scotusblog page

It does not appear that this case will have any impact on Wisconsin law, as the questions presented are limited to the power of Congress to create a crime under Article I of the U.S. Constitution (i.e., the “necessary and proper” clause or commerce clause) and the interpretation of the statute creating the crime. As the lower court states its holding and the consequences of that holding:

Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military.

The federal requirement that sex offenders register their address is unconstitutional on narrow grounds. We do not call into question Congress’s ability to impose conditions on a prisoner’s release from custody, including requirements that sex offenders register intrastate changes of address after release. 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. Some other jurisdictional ground, such as interstate travel, is required.

687 F.3d at 234-35 (emphasis in original). Thus, the lower court concluded its decision has no effect on federal sex offenders in prison or on supervised release when the statute was enacted in 2006 or convicted since then, and “has no impact on state regulation of sex offenders.”

The Seventh Circuit has apparently not addressed the scenario raised in this case, and given its limited application to prosecution of a subset of federal sex offenders, the case will be of interest only to federal practitioners who might be faced with cases with similar specific and limited facts.

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