West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          In the two cases of United States of America vs. Powers and United States of America vs. Buckius, both Mr. Powers and Mr. Buckius were indicted for failing to register as sex offenders as required by the Sex Offender Registration and Notification Act (otherwise known as "SORNA").  After being indicted, both defendants filed motions asking a United States District Judge from the Middle District of Florida to dismiss the charge of failing to register as a sex offender on the ground that SORNA was unconstitutional.  Both defendants argued that SORNA was unconstitutional because it violated the Commerce Clause of the U.S. Constitution insofar as SORNA did not regulate activities that substantially affected interstate commerce and thus was beyond the scope of Congress's power under the Commerce Clause.

          Although it is rare for a judge to declare a law unconstitutional, the judge in both Powers's and Buckius's cases did just that!  Not surprisingly, however, the U.S. Attorney's Office for the Middle District of Florida decided not to go down without a fight.  It appealed both decisions to the United States Court of Appeals for the Eleventh Circuit.  That particular appellate court, which tends to be very conservative, overruled both Powers and Buckius and in so doing relied upon another Eleventh Circuit appellate case--United States of America v. Ambert--which was issued just twenty days before Powers and Buckius were decided.

          In the Ambert case, the defendant, like defendants Powers and Buckius, was indicted for failing to register as a sex offender pursuant to SORNA.  Ambert subsequently filed a motion asking a federal district judge to dismiss the charge against him on the following six grounds:

          1.  He was not bound by the criminal provisions of SORNA because his relevant travel dates occurred before the United States Attorney General decided on February 28, 2007 that SORNA's registration requirements apply to all offenders convicted before July 27, 2006;

          2.  SORNA is unconstitutional because it violates the Non-delegation Doctrine of the U.S. Constitution;

          3.  SORNA is unconstitutional because it violates the Ex Post Facto Clause of the U.S. Constitution;

          4.  SORNA is unconstitutional because it violates the Commerce Clause of the U.S. Constitution;

          5.  SORNA is unconstitutional because it violates the Due Process Clause of the U. S. Constitution; and

          6.  SORNA is unconstitutional because it violated Mr. Ambert's right to travel.

          Unfortunately for Mr. Ambert, the federal district judge from the Northern District of Florida who decided his case did not find any of his arguments persuasive and therefore denied the motion to dismiss the charge pending against him.  Eventually, the Eleventh Circuit Court of Appeals not only agreed with the lower-court judge that Ambert's case should not be dismissed but also relied upon Ambert in overturning Powers and Buckius.

          The decisions in Ambert, Powers, and Buckius are just three examples of how tough the law is today in the United States when it comes to the issue of sex offenders and the registration requirements for such individuals.

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          On July 25, 2008, the Alaska Supreme Court declared Alaska's Sex Offender Registration Act unconstitutional.  In a blog that I posted on this website on June 5, 2008 entitled "Sex Offender Registration:  Is It Punishment?," I observed that "[i]n the case of Smith v. Doe, the [United States Supreme] Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a 'civil, nonpunitive regime.' " I concluded that posting by opining that although courts may call sex offender statutes nonpunitive, they certainly seem punitive to me (and apparently to many others based upon the response that I have had to that posting).

          It appears that the Alaska Supreme Court shares my view because it recently declared Alaska's Sex Offender Registration Act ("ASORA") unconstitutional in the case of John Doe v. State of Alaska.  In John Doe, Alaska's High Court stated in relevant part that:

          We first ask “[w]hether the sanction involves an affirmative disability or
restraint.”  The state argues that ASORA involves neither because it imposes no
physical restraint, has obligations less harsh than occupational debarment — which the
Supreme Court has held to be non-punitive — and, in the Supreme Court’s words,
“restrains [no] activities sex offenders may pursue but leaves them free to change jobs
or residences.”

          But even though the statute imposes no physical restraints, we agree with Justice Stevens’s dissenting comments in Smith that ASORA “impose[s] significant affirmative obligations and a severe stigma on every person to whom [it] appl[ies].”  First, ASORA compels affirmative post-discharge conduct (mandating registration, reregistration, disclosure of public and private information, and updating of that information) under threat of prosecution.  The duties are significant and intrusive, because they compel offenders to contact law enforcement agencies and disclose information, some of which is otherwise private, most of it for public dissemination.
Furthermore, the time periods associated with ASORA are intrusive.  Sex offenders convicted of an aggravated sex offense or two or more sex offenses must re-register quarterly for the rest of their lives; all other offenders must re-register annually for fifteen years.  All sex offenders who change residences must notify the state trooper office or municipal police department closest to their new residences within one working day.  As we stated in Doe v. State, Department of Public Safety (Doe A), “ASORA thus treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.”

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Sex offender registration statutes are fairly recent, however, and some registered sex offenders have argued that they should not have to register with FDLE because they committed their crimes before the sex offender statute was passed into law in the 1990's.  What difference does that make you might ask?  There is a concept in the law called ex post facto which means that a law cannot ordinarily punish conduct that was committed before that law went into effect.  For example, if someone committed a sex crime in 1990 but the sex offender registration did not go into effect until 1993, such a person might well argue that he should not have to register as a sex offender because he committed his crime before the sex offender registration law went into effect.

Although I personally find this argument to be persuasive, the United States Supreme Court does not.  In the case of Smith v. Doe, the High Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a "civil, nonpunitive regime."

Since Smith v. Doe was decided in 2003, several Florida appellate courts have cited to that particular case in ruling that Florida sex offenders must also register with FDLE even if the crimes for which they were convicted were committed before the Florida sex-offender registration law went into effect.

In spite of all these cases to the contrary, Florida sex offender registration requirements still seem like punishment to me.

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