Fifth Circuit Declares SORNA Unconstitutional in Certain Cases, Reversed by Supreme Court

by Matt Clarke

The full Fifth Circuit Court of Appeals held in July 2012 that Congress did not have the power to enact criminal penalties for failing to register as a sex offender following an intrastate move, as applied to a defendant who had been unconditionally released from a federal prison sentence and military service prior to the enactment of the registration law. Thus, the Court declared the Sex Offender Registration and Notification Act (SORNA) and accompanying statutes and rules, 42 U.S.C. § 16913, 18 U.S.C. § 2250(a) and 28 C.F.R. § 72.3, unconstitutional under those narrow circumstances. The Supreme Court disagreed, however, and reversed the appellate ruling.

In 1999, Anthony James Kebodeaux, 21, was in the military when he was convicted of having sex with a fifteen-year-old girl and sentenced to three months in prison. After serving his sentence, he was no longer in the military; his release from both prison and military service was unconditional.

SORNA requires all federal sex offenders to register with state registration authorities within three days of moving. Texas law requires registration within seven days of moving. When Kebodeaux failed to register his move from San Antonio to El Paso within three days, he was charged, convicted and sentenced to 366 days in federal prison. He appealed.

A panel of the Fifth Circuit upheld his conviction but the en banc court reversed, finding that application of SORNA under those circumstances exceeded Congress’ authority. The appellate court held that,
“[a]bsent 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.”

In a lengthy opinion, the Fifth Circuit held that SORNA, as applied in this case, did not “rationally relate” or “reasonably adapt” to one of the powers of Congress set forth in the Constitution. The application of SORNA was novel and did not reasonably extend well-established laws; it also did not properly account for state interests and was too sweeping, or at least too broad.

Noting that “[t]he Department of Justice cannot find a single authority, from more than two hundred years of precedent, 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 Court of Appeals held that Congress had no power to do so under the Necessary and Proper Clause of Article I of the Constitution.

Congress also lacked authority under the Commerce Clause, as an intrastate move by a federal sex offender did not affect interstate commerce. The panel opinion had held that a sex offender might drop off the radar by making an intrastate move prior to making an interstate move, but the Fifth Circuit noted that if the reasoning of the panel was adopted, “it would confer on the federal government plenary power to regulate all criminal activity,” including those areas traditionally reserved to the states.

“Neither this court nor the Supreme Court, however, has ever extended Congress’s ‘police power’ over those who use the channels of interstate commerce to punish those who are not presently using them, but might do so,” the Court of Appeals wrote.

Therefore, the appellate court reversed Kebodeaux’s conviction and ordered the dismissal of the charges against him, with the decision based in part on the fact that he had been released from federal prison prior to SORNA’s enactment. See: United States v. Kebodeaux, 687 F.3d 232 (5th Cir. 2012).

The U.S. Supreme Court granted certiorari, then reversed the Fifth Circuit’s ruling in a split decision in June 2013. The Court held “that the SORNA changes as applied to Kebodeaux fall within the scope [of] Congress’ authority under the Military Regulation and Necessary and Proper Clauses,” and remanded the case. Accordingly, after remand, the Court of Appeals affirmed Kebodeaux’s conviction on August 13, 2013. See: United States v. Kebodeaux, 133 S.Ct. 2496 (2013).

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