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 Update Express is provided by the National Center for Prosecution of Child Abuse to help child abuse professionals keep abreast of new legislation, case law, and relevant news.
| This publication was prepared under Grant No. 2003-CI-FX-K008 from the Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. This information is offered for educational purposes only and is not legal advice. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position of the United States Department of Justice, the National District Attorneys Association or the American Prosecutors Research Institute. |
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Retroactivity of the Sex Offender Requirements of the Adam Walsh Act: United States v. Madera
The Adam Walsh Child Protection and Safety Act 1 which was enacted on July 27, 2006, included the Sex Offender Registration and Notification Act (SORNA). SORNA expanded the definition of the term “sex offense” to include any crime involving “sexual contact with another” or certain “specified” crimes against minors such as possession of Child Pornography or online solicitation of a minor2. There are no distinctions between felony and misdemeanor offenses in this expanded definition.
Any person convicted of such a “sex offense” under SORNA (now codified at 42 U.S.C. §16911) is required to comply with its sex offender registry provisions, found in 42 U.S.C. §16913. Subsection (d) of 42 U.S.C. §16913 provides that the Attorney General has the “authority to specify the applicability of the requirements of this title to sex offenders convicted before” its enactment3. As of the writing of this article, no such guidance has been forthcoming from the Attorney General.
On January 16, 2007, the first appellate case to address the issue of the retroactivity of the sex offender registry requirements of 42 U.S.C. §16913 was decided. In United States v. Madera4, the defendant was convicted of a misdemeanor offense under the New York Penal Code5 in November 2005. He subsequently moved to Florida and failed to register as a sex offender upon his arrival in the state. He was arrested and charged with violating 18 U.S.C. §2250, which provides that whoever
(1) is required to register under the Sex Offender Registration and Notification Act (SORNA)
(2)
(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law [UCMJ], the law of the District of Columbia, Indian trial law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) Knowingly fails to register or update a registration as required by [SORNA]
Shall be fined under this title or imprisoned not more than 10 years, or both6.
After being indicted by the Federal Grand Jury on November 1, 2006, the defendant appealed the constitutionality of SORNA’s registration requirements and 18 U.S.C. §2250.
The Middle District of Florida issued a lengthy and well-reasoned opinion which rejected the defendant’s arguments. Six major areas of the law were discussed:
- The Nondelegation Doctrine. Article I, § 1 of the United States Constitution states that “all legislative Powers herein granted shall be vested in a Congress of the United States.”7 The defendant in Madera argued, first, that the delegation in 18 U.S.C. §16913(d) to the Attorney General violated the Nondelegation doctrine. Citing the decision in Mistretta v. United States, 488 U.S. 361 (1989), the Court held that the delegation to the Attorney General was appropriate.
- Non-Action by the Attorney General. The Defendant’s next argument was that because the Attorney General had not specified the applicability of SORNA to offenses committed before its enactment, it could not be enforced against the defendant. This court disagreed after engaging in a “traditional” retroactivity analysis.8
- Ex Post Facto. Citing the recent decision in Smith v. Doe9 which affirmed the constitutionality of Alaska’s Sex Offender registry provisions under the Ex Post Facto clause of the Constitution, this court also held that SORNA did not violate the Ex Post Facto10 clause.
- Procedural Due Process. Referring to Conn. Dept. of Pub. Safety v. Doe11, which approved the procedure in requiring all sex offenders to register in Connecticut without a hearing, the Madera court found no violation of procedural due process in this case.
- Substantive Due Process. Although the Court in Conn. Dept of Pub. Safety did not address the issue of substantive due process, three circuits have found that “substantive due process does not invalidate sex offender registration statutes.”12 This court followed their lead in finding that there was no substantive due process violation.
- Commerce Clause. Relying on the decision in Gonzales v. Raich,13 the Madera court found a rational basis for “Congress’s desire to track sex offenders as they move between states, in order to promote the public safety.”14 As such, there was no violation of the Commerce Clause.
This is the first of what promises to be many challenges to the requirements of SORNA. The question of retroactivity looms large for prosecutors in determining which defendants—whether current or former—will be subject to the provisions of SORNA, and under what conditions.
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1. Pub. L. No. 109-248, 120 Stat. 587 (2006).
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| 2. 42 U.S.C. 16911 (2006). |
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(5) …”the term ‘sex offense’ means— |
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(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;… |
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.... |
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(7) The term ‘specified offense against a minor’ means an offense against a minor which involves any of the following: |
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(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct. |
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3. 42 U.S.C. §16913(d) (2006).
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4. Case No. 6:06-cr-202-Orl-18KRS, 2007 U.S. Dist. LEXIS 3029 (M.D. Fla., January 16, 2007).
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5. N.Y. PENAL LAW § 130.60 (2006), which reads as follows:
A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is: |
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(1) Incapable of consent by reason of some factor other than being less than seventeen years old; or
(2) Less than fourteen years old.
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6. 18 U.S.C. §2250 (2006).
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7. U.S. CONST. art. I, §1.
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8. Citing Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422 (2006), I.N.S. v. St. Cyr., 533 U.S. 289 (2001), and Landgraf v. USI Film Prods., 511 U.S. 244 (1994).
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9. 538 U.S. 84 (2003).
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10. U.S. CONST., art. I, §10, cl. I.
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11. 538 U.S. 1 (2003).
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12. Madera, 2007 U.S. Dist. LEXIS, at *20, citing Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), Doe v. Tandeske, 361 F.3d 594 (9th Cir. 2004), Gunderson v. Hvass, 339 F.3d 639 (8th Cir. 2003).
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13. 545 U.S. 1 (2005).
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14. Madera, 2007 U.S. Dist. LEXIS, at *23.
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