Updates to the Adam Walsh Act: John Teakell, Milner & Finn
UPDATES TO
“THE ADAM WALSH ACT”
AN OVERVIEW
by John Teakell
Milner & Finn
Dallas, TX
Federal Bar Assn.’s Federal Criminal Practice Seminar
April 11, 2008
Re: Adam Walsh Child Protection and Safety Act of 2006 - H.R.4472 – Public Law No: 109-248
I. Note
There are no official changes; however, there are several proposed updates moving through Congress. I listed the citations on those proposed changes below and the affected sections. As you know, the Adam Walsh Act is codified in several different places throughout the United States Code, so we located (and pasted below) the popular name table to allow for easy reference.
Second, regarding caselaw - We went through each section and gathered all of the “new” annotations provided in the West’s Digest system (by “new” I mean those that I did not include previously). The annotations of course provide some description of the important point that the case makes.
II. Legislative Changes
Here is the section converter table, so you can take the sections of the Act and see where they appear in the United States Code.
Section of Pub.L. 109-248 (Adam Walsh Act) USCA Classification
102 ............................................ 42 USCA § 16901
103 ............................................ 42 USCA § 16902
111 ............................................ 42 USCA § 16911
112 ............................................ 42 USCA § 16912
113 ............................................ 42 USCA § 16913
114 ............................................ 42 USCA § 16914
115 ............................................ 42 USCA § 16915
116 ............................................ 42 USCA § 16916
117 ............................................ 42 USCA § 16917
118 ............................................ 42 USCA § 16918
119 ............................................ 42 USCA § 16919
120 ............................................ 42 USCA § 16920
121 ............................................ 42 USCA § 16921
122 ............................................ 42 USCA § 16922
123 ............................................ 42 USCA § 16923
124 ............................................ 42 USCA § 16924
125 ............................................ 42 USCA § 16925
126 ............................................ 42 USCA § 16926
127 ............................................ 42 USCA § 16927
128 ............................................ 42 USCA § 16928
131 ............................................ 42 USCA § 16929
141(a)(1) ...................................... 18 USCA § 2250
142 ............................................ 42 USCA § 16941
143 ............................................ 42 USCA § 16942
144 ............................................ 42 USCA § 16943
145 ............................................ 42 USCA § 16944
146 ............................................ 42 USCA § 16945
151 ............................................ 42 USCA § 16961
153 ............................................ 42 USCA § 16962
211 ............................................ 18 USCA § 3299
301 ............................................ 42 USCA § 16971
302(4) ......................................... 18 USCA § 4248
503(a) ......................................... 18 USCA § 2257A
621 ............................................ 42 USCA § 16981
623 ............................................ 42 USCA § 3797ee
623 ............................................ 42 USCA § 3797ee-1
624 ............................................ 42 USCA § 16982
625 ............................................ 42 USCA § 16983
626 ............................................ 42 USCA § 3765
627 ............................................ 42 USCA § 16984
628 ............................................ 42 USCA § 16985
629 ............................................ 42 USCA § 16986
630 ............................................ 42 USCA § 16987
631 ............................................ 42 USCA § 16988
632 ............................................ 42 USCA § 16989
633 ............................................ 42 USCA § 16990
635 ............................................ 42 USCA § 16991
702(a) ......................................... 18 USCA § 2260A
703(a) ......................................... 18 USCA § 2252C
42 U.S.C.A. § 16911, 42 U.S.C.A. § 16913, 42 U.S.C.A. § 16914, 42 U.S.C.A. § 16918, 42 U.S.C.A. § 16919, 42 USCA § 16927 – SORNA (Sex Offender Registration and Notification Act – Title I of Adam Walsh Act) has proposed legislative action that has yet to pass in Congress.
2007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
18 U.S.C.A. § 2250 – Failure to Register under SORNA has proposed legislative action
12007 CONG US HR 5475, 110th CONGRESS, 2d Session (Feb 19, 2008), Introduced in House, PROPOSED ACTION: Amended.
22007 CONG US S 2632, 110th CONGRESS, 2d Session (Feb 13, 2008), Introduced in Senate, PROPOSED ACTION: Amended.
32007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
42007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
18 U.S.C.A. § 4248 – Civil Commitment of Dangerous Sex Offenders - Held unconstitutional by, U.S. v. Shields, 522 F.Supp.2d 317, 319+ (D.Mass. Nov 07, 2007); U.S. v. Comstock, 507 F.Supp.2d 522, 524+ (E.D.N.C. Sep 07, 2007)
42 U.S.C.A. § 16981 – Pilot Program for monitoring sexual offenders has proposed amendments
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Nov 15, 2007), Engrossed in House, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Nov 15, 2007), Referred in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 4094, 110th CONGRESS, 1st Session (Nov 06, 2007), Introduced in House, PROPOSED ACTION: Amended.
§ 2252C. Misleading words or digital images on the Internet – has proposed amendments
2007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
III. Caselaw Update – NEW cases
A. From Annotations on SORNA
1. Generally
Congress did not impermissibly delegate its constitutional legislative duties by providing, in Sex Offender Registration and Notification Act (SORNA), that Attorney General was to specify whether statute was applicable to offenders convicted prior to its enactment date, and prescribe rules for registration of offenders unable to comply with statutory requirements; Congress was merely authorizing executive branch to give advice to courts on question of retroactivity. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 62(10); Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), which imposed registration requirements on convicted sex offenders who traveled in interstate commerce, had a jurisdictional nexus, as was required to satisfy Commerce Clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at least a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was a continuing offense, and therefore venue was proper, in prosecution for traveling in interstate commerce and failing to register as a sex offender, in either Virginia, the state in which defendant's travel originated, or in Tennessee, the place to which defendant changed his residency and in which he failed to register; failure to register involved an element of interstate or foreign travel. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal Law 113
Sex Offender Registration and Notification Act's (SORNA) requirement that sex offenders register and update their registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA and they were indicted after SORNA's effective date, but before the Attorney General exercised his authority under SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they were convicted; the indictments occurred in the brief window during which SORNA's scope remained undefined as to past offenders, and the statute required the Attorney General to animate SORNA's provisions to previously convicted offenders. U.S. v. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 278.29
2. Ex post facto
Defendant's failure to register as a sex offender, as required by the Sex Offender Registration Notification Act (SORNA), occurred before issuance of Interim Rules making SORNA's criminal provision applicable to persons convicted before its effective date, and therefore his indictment for failing to register violated Ex Post Facto Clause. U.S. v. Gill, D.Utah 2007, 2007 WL 3018909. Mental Health 433(2)
Congress did not violate ex post facto law clause of Constitution by passing Sex Offender Registration and Notification Act (SORNA), on grounds that registration requirements were additional punishment inflicted upon offender after he committed sexual offense; purpose of SORNA was civil, assurance of public safety, rather than penal, and ex post facto prohibition applied only to penal provisions. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 203; Mental Health 433(2)
Although Sex Offender Registration and Notification Act (SORNA) required sex offenders to provide detailed personal information and appear in person so that the jurisdiction could take a current photograph and verify their information, there was insufficient evidence to transform SORNA from a civil scheme into a criminal penalty, for purposes of the ex post facto clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Ex Post Facto Clause precluded defendant's conviction for failing to register or update his registration as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), where the defendant was covered by an interim rule making SORNA applicable to him, but had traveled in interstate commerce, without registering, before that interim rule was issued; the defendant did not commit the elements of the offense after the statute became applicable to him, and a retroactive application of the statute would have resulted in an enhanced penalty. U.S. v. Stinson, S.D.W.Va.2007, 507 F.Supp.2d 560. Mental Health 469(7)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), did not violate the Ex Post Facto Clause by inflicting greater punishment on defendant, a previously-convicted sex offender, than was provided by law when he was convicted; Act's legislative history indicated that Congress's concern was with public safety rather than with a desire to further punish sex offenders, and the registration requirements were not so punitive as to negate Congress's intent that they be nonpunitive. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
3. Procedural due process
Even if the sex offender registration requirements under the Sex Offender Registration and Notification Act (SORNA) were unclear prior to the issuance of the Attorney General's interim rule on February 28, 2007 making the registration requirements of SORNA applicable to individuals who had been convicted of a sex offense before the enactment of SORNA, defendant had sufficient time between that date and June 2007, the end date of his charged conduct in failing to register and update a registration required by SORNA, to apprise himself of the new federal registration requirements, and defendant was fully aware of his responsibility to register as a sex offender under North Dakota law, and thus, defendant's due process rights were not violated by his prosecution for failing to register. U.S. v. Lovejoy, D.N.D.2007, 2007 WL 2812681. Constitutional Law 4509(1); Mental Health 469(7)
Sex Offender Registration and Notification Act (SORNA) did not violate procedural due process rights of convicted sex offender, by not providing for notice and hearing prior to publication of his name on offender registry or prior to being compelled to register as offender; since all convicted offenders were required to register, there was no need for hearings to consider circumstances of individual cases. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 255(5); Mental Health 433(2)
Defendant's potential for recidivism or current dangerousness were not material to Sex Offender Registration and Notification Act (SORNA) and, thus, principles of procedural due process did not require a hearing for defendant to argue these issues before he was compelled to comply with SORNA's registration requirements. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 469(4)
Sex Offender Registration and Notification Act (SORNA) did not violate the procedural due process rights of defendant, a previously-convicted sex offender, by failing to give him actual notice that travel across state lines subjected him to criminal penalties; defendant had sufficient notice that failing to register was illegal. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
4. Substantive due process
Substantive due process rights of convicted sex offenders was not violated by Sex Offender Registration and Notification Act (SORNA), requiring that they register and disclose their whereabouts following release. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 255(5); Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA) was rationally related to legitimate government interests and, thus, did not violate the substantive due process component of the Fifth Amendment. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA) did not, by subjecting to the Act's requirements persons who were not in fact convicted of an offense listed as a qualifying sex offense, or whose conviction was set aside, violate the substantive due process rights of defendant, a previously-convicted sex offender; defendant fell squarely within the category of persons required to register, and his conviction had not been set aside. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
5. Continuing violation
Violation of the registration requirement of the Sex Offender Registration and Notification Act (SORNA) was not a continuing offense for purposes of the Ex Post Facto Clause, but rather, was complete when the defendant traveled in interstate commerce and then failed to register within the prescribed time period. U.S. v. Stinson, S.D.W.Va.2007, 507 F.Supp.2d 560. Mental Health 469(7)
6. Retroactive application
Sex Offender Registration and Notification Act (SORNA) was not being applied retroactively to defendant and his prosecution under Act, for failure to register as a convicted sex offender, was not premature, where defendant clearly was advised that he fell within the purview of SORNA on the basis of his New York conviction for second-degree sexual assault, he was specifically told by New York law enforcement personnel that he needed to register as a sex offender in Florida if he chose to move there, and he traveled to Florida where he established residence, secured a driver's license, and was employed after SORNA went into effect, but failed to register. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923.
Defendant was required to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), regardless of whether the Attorney General had adopted required rule specifying the applicability of the Act to sex offenders convicted before its enactment; defendant was required to register or update his registration under the existing state law of his residence. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 469(2)
Sex Offender Registration and Notification Act's (SORNA) requirement that sex offenders register and update their registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA and they were indicted after SORNA's effective date, but before the Attorney General exercised his authority under SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they were convicted; the indictments occurred in the brief window during which SORNA's scope remained undefined as to past offenders, and the statute required the Attorney General to animate SORNA's provisions to previously convicted offenders. U.S. v. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 278.29
7. Policy safety regulation
There was rational public safety basis for regulation of interstate commerce, underlying Sex Offender Registration and Notification Act (SORNA) requirements that released offenders report address changes to authorities, precluding claim that SORNA violated Commerce Clause. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Mental Health 433(2)
8. Commerce clause
Sex Offender Registration and Notification Act (SORNA), which imposed registration requirements on convicted sex offenders who traveled in interstate commerce, had a jurisdictional nexus, as was required to satisfy Commerce Clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at least a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
9. Venue
Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was a continuing offense, and therefore venue was proper, in prosecution for traveling in interstate commerce and failing to register as a sex offender, in either Virginia, the state in which defendant's travel originated, or in Tennessee, the place to which defendant changed his residency and in which he failed to register; failure to register involved an element of interstate or foreign travel. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal Law 113
10. Standing
Previously-convicted sex offender who could allege no injuries traceable to the Sex Offender Registration and Notification Act's (SORNA) alleged violations of procedural and substantive due process did not have standing to challenge the constitutionality of the Act on such grounds. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Constitutional Law 885
11. Constitutional delegation of authority
Fact that Congress delegated the ability to specify applicability of registration requirements to sex offenders convicted before enactment of Sex Offender Registration and Notification Act (SORNA), or its implementation in certain jurisdictions, or granted Attorney General the power to promulgate regulations to ensure registration of individuals outside the purview of statutory language, did not allow Attorney General to decide if the statute would have retroactive application, in violation of non-delegation doctrine; rather, the statutory language was indicative of a gap-filling provision to insure SORNA's clearly articulated purpose was effectuated when sex offenders fell outside the purview of statutory language. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Constitutional Law 2422(3)
Provision of Sex Offender Registration and Notification Act (SORNA) which gave Attorney General authority to decide whether persons classified as sex offenders, who were unable to register, should be subject to the registration requirements, was not unconstitutional, in violation of the non-delegation doctrine, as applied to defendant, a previously-convicted sex offender; the delegation of authority to the Attorney General was not so broad as to be violative of the non-delegation doctrine, and defendant was not a person who was unable to register within the meaning of the provision. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
B. Civil Commitment Statute Annotations:
1/2 . Constitutionality
Civil commitment of those already in federal custody who, as result of mental condition, likely would commit sexually violent crimes had rational relation to congressional authority to proscribe and prevent such conduct, for purpose of Necessary and Proper Clause challenge. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. United States 22
Congress lacked authority, under either the Commerce Clause or the Necessary and Proper Clause, to enact the Adam Walsh Child Protection and Safety Act section permitting the civil commitment of sexually dangerous persons as it pertained to individuals previously committed due to mental incompetence to stand trial, to prisoners whose sentences were about to expire, or to people in federal custody against whom all criminal charges were dropped based on mental condition; the section at issue was aimed at preventing sexually violent conduct underlying various federal sex crimes, but it was the purview of the states to deal with such underlying conduct, and the federal government had no broad power generally to criminalize sexually dangerous conduct and child molestation. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. United States 22
Scope of Congress's auxiliary power to Necessary and Proper Clause authority extended so far as to allow Congress to prevent the release of federal inmates, whose sentences had expired, due to their sexually dangerous propensities, and thus statute providing for the civil commitment of such inmates was a valid exercise of Congress's legislative power and was not facially invalid, where Congress had rationally set up a process for determining which individuals were likely to commit further acts of sexual violence proscribed under Congress's Commerce Clause authority. U.S. v. Carta, D.Mass.2007, 503 F.Supp.2d 405. United States 22
1. Due process
Failure of statute governing civil commitment of sexually dangerous persons to require finding of proof beyond reasonable doubt that person had engaged or attempted to engage in sexually violent conduct or child molestation prior to allowing that person's potentially indefinite commitment as sexually dangerous person constituted violation of due process. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
2. Equal protection
Government did not violate equal protection clause by designating certain federal prisoners whose terms were expiring as sexually dangerous persons and subjecting them to civil commitment procedures, although federal prison population contained relatively few sexually violent offenders and child molesters. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
3. Vagueness
Terms, “serious mental illness,” “serious difficulty,” “sexually violent conduct,” and “child molestation,” in Adam Walsh Act for civil commitment of sexually dangerous persons, provided sufficiently explicit standards to defeat vagueness challenge. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
4. Unreasonable seizure of person
To avoid serious questions under Fourth Amendment and Due Process Clause, provision under Adam Walsh Act for civil commitment of sexually dangerous persons would be construed to contain implicit requirement that opportunity for probable cause hearing before neutral decision maker had to be afforded within reasonable period of time after any detention resulting from stay of release at end of his prison sentence; except in exigent or extraordinary circumstances, and absent reasonable alternative, hearing had to occur within 48 hours after certified individual was detained beyond his scheduled release date. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 462
5. Construction and application
Violation of due process by statute governing civil commitment of sexually dangerous persons, in not requiring finding of proof beyond reasonable doubt that such person had engaged or attempted to engage in sexually violent conduct or child molestation prior to that person's indefinite commitment as sexually dangerous person, could be remedied by severing phrase “by clear and convincing evidence” from statute and allowing government to demonstrate that such person previously had been convicted of relevant sex crime. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Statutes 64(6)
6. Civil nature of commitment
Commitment scheme established by the Adam Walsh Child Protection and Safety Act section permitting the commitment of sexually dangerous persons was properly characterized as a civil scheme, not a criminal proceeding, thus defeating double jeopardy, ex post facto, cruel and unusual punishment, and jury trial claims challenging the scheme, such claims being cognizable only in the criminal or punitive context; the statute did not affix culpability for prior criminal conduct, no finding of scienter was required for commitment, and because the statute was explicitly aimed at confining people who had been found to have serious difficulty controlling their conduct, it could not be said that the it served a deterrent purpose. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. Sentencing and Punishment 1596
Statute providing for the civil commitment of sexually dangerous inmates whose sentences had been fulfilled was civil, rather than criminal, in nature, and thus statute did not facially violate any constitutional guarantee to those facing criminal charges, even though some effects of the statute were punitive in nature, such as the involuntary detention of the inmates, where statute was not otherwise so punitive in purpose or effect as to negate the intention to deem it civil. U.S. v. Carta, D.Mass.2007, 503 F.Supp.2d 405. Mental Health 456
7. Burden of proof
Use of a clear and convincing burden of proof by the section of the Adam Walsh Child Protection and Safety Act permitting the civil commitment of sexually dangerous persons violated the substantive due process rights of those subject to commitment under that section, despite claim that the clear and convincing standard properly allocated the risk of an erroneous commitment between the parties, and that post-deprivation proceedings existed to cure any erroneous commitment; reasonable doubt standard should have applied to the factual determination that an individual sought to be committed engaged or attempted to engage in sexually violent conduct or child molestation, which determination was a condition precedent to commitment. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. Constitutional Law 4344
8. Certification of sexually dangerous person
Certificates that were issued to federal prisoners whose terms were expiring designating them as “sexually dangerous persons” under Adam Walsh Act violated due process, since each certification stated only that named individual had been certified based on review of his records and certification did not identify underlying instances of misconduct upon which certification had been made. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 458
9. Standing
Persons in custody of Bureau of Prisons (BOP) who were certified as “sexually dangerous persons” under Adam Walsh Act, as private parties, did not have standing to assert independent constitutional claim alleging that Act violated Tenth Amendment. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. States 4.16(1)
C. Non-annotation cases that nevertheless cite an Adam Walsh Provision
There are several cases that have cited the various provisions of the Adam Walsh Act since you last spoke on the topic. Included here are cases that did not yet appear in the annotations section above to the United States Code Annotated at this point in time, but seem to have some importance. Another observation is that there seemed to be no cases that have made their way to the various courts of appeals yet (at least, there appear to be no opinions from the courts of appeals).
U.S. v. LeTourneau, 534 F.Supp.2d 718, 720+ (S.D.Tex. Jan 09, 2008) – This looks to be the only Texas state or federal case analyzing the Adam Walsh law that we could find.
U.S. v. Thomas, 534 F.Supp.2d 912, 913+ (N.D. Iowa Feb 13, 2008)
U.S. v. Gould, 526 F.Supp.2d 538, 540+ (D.Md. Dec 13, 2007) (NO. CRIM.WDQ-07-0359)
U.S. v. Smith, 481 F.Supp.2d 846, 849 (E.D.Mich. Mar 08, 2007)
U.S. v. Lovejoy, 516 F.Supp.2d 1032, 1034+ (D.N.D. Sep 28, 2007)
Keep in mind, there are several unreported cases, or cases that just have not yet been reported yet. Some of these cases may be fairly important, but it is difficult to tell at this point in time. These cases are probably mostly concern various constitutional challenges to the statute (ex post facto, retroactive effect, commerce clause, due process challenges, etc.). Here are those cites, just in case you want to view them:
- U.S. v. Jorge-Salgado, 2008 WL 860832, *2 (8th Cir.(Minn.) Apr 02, 2008) (NO. 07-1505)
- U.S. v. Kent, 2008 WL 360624, *3+ (S.D.Ala. Feb 08, 2008) (NO. CRIM. 07-00226-CG)
- U.S. v. Bonner, 2007 WL 4372887, *1 (S.D.Ala. Dec 11, 2007) (NO. CRIM A 07-00264-KD)
- U.S. v. Kent, 2007 WL 2746773, *1+ (S.D.Ala. Sep 20, 2007) (NO. CRIM. A. 07-00226-KD)
- U.S. v. Terwilliger, 2008 WL 50075, *1+ (S.D.Cal. Jan 03, 2008) (NO. 07CR1254 BTM)
- U.S. v. Elliott, 2007 WL 4365599, *2+ (S.D.Fla. Dec 13, 2007) (NO. 07-14059-CR)
- U.S. v. Cardenas, 2007 WL 4245913, *1+ (S.D.Fla. Nov 29, 2007) (NO. 07-80108CR)
- U.S. v. Ambert, 2007 WL 2949476, *1 (N.D.Fla. Oct 10, 2007) (NO. 4:07-CR-053-SPM)
- U.S. v. Kelton, 2007 WL 2572204, *1 (M.D.Fla. Sep 05, 2007) (NO. 5:07-CR-30OC10GRJ)
- U.S. v. Gonzales, 2007 WL 2298004, *1 (N.D.Fla. Aug 09, 2007) (NO. 5:07CR27-RS)
- U.S. v. Beasley, 2007 WL 3489999, *1+ (N.D.Ga. Oct 10, 2007) (NO. CRIM.1:07CR115TCB)
- U.S. v. Cole, 2007 WL 2714111, *1+ (S.D.Ill. Sep 17, 2007) (NO. 07-CR-30062-DRH)
- U.S. v. Dixon, 2007 WL 4553720, *1+ (N.D.Ind. Dec 18, 2007) (NO. 3:07-CR-72 01 RM)
- U.S. v. Adkins, 2007 WL 4335457, *4+ (N.D.Ind. Dec 07, 2007) (NO. 1:07-CR-59)
- U.S. v. Howell, 2008 WL 313200, *1+ (N.D.Iowa Feb 01, 2008) (NO. CR07-2013-MWB)
- U.S. v. Howell, 2007 WL 3302547, *4+ (N.D.Iowa Nov 08, 2007) (NO. CR07-2013-MWB)
- U.S. v. May, 2007 WL 2790388, *2+ (S.D.Iowa Sep 24, 2007) (NO. 4:07-CR-00164-JEG, 1:07-CR-00059-JEG)
- U.S. v. Samuels, 2008 WL 169792, *2+ (E.D.Ky. Jan 17, 2008) (NO. CRIM.A. 07-62-DLB)
- U.S. v. Pitts, 2008 WL 474244, *1+ (M.D.La. Feb 14, 2008) (NO. CRIM.A. 07-157JVP-CN)
- U.S. v. Davis, 2008 WL 510599, *1+ (W.D.La. Jan 22, 2008) (NO. CRIM 07-60003)
- U.S. v. Mantia, 2007 WL 4730120, *2+ (W.D.La. Dec 10, 2007) (NO. CRIM. 07-60041)
- U.S. v. Pitts, 2007 WL 3353423, *1+ (M.D.La. Nov 07, 2007) (NO. CRIM.A. 07-157-A)
- U.S. v. Nugent, 2008 WL 413273, *3+ (W.D.Mo. Feb 13, 2008) (NO. 07-5056-01-CRSW-GAF)
- U.S. v. Rich, 2007 WL 4365735, *2+ (W.D.Mo. Oct 31, 2007) (NO. CRA070027401CRWHFS)
- U.S. v. Muzio, 2007 WL 2159462, *1+ (E.D.Mo. Jul 26, 2007) (NO. 4:07CR179 CDP)
- U.S. v. Muzio, 2007 WL 1629836, *1+ (E.D.Mo. Jun 04, 2007) (NO. 407CR179 CDP)
- U.S. v. Aldrich, 2008 WL 427483, *2+ (D.Neb. Feb 14, 2008) (NO. 8:07CR158)
- U.S. v. Hacker, 2008 WL 312689, *1+ (D.Neb. Feb 01, 2008) (NO. 8:07CR243)
- U.S. v. Aldrich, 2007 WL 4924932, *2+ (D.Neb. Dec 14, 2007) (NO. 8:07CR158)
- U.S. v. Patterson, 2007 WL 3376732, *1 (D.Neb. Nov 08, 2007) (NO. 8:07CR159)
- U.S. v. Patterson, 2007 WL 2904099, *3+ (D.Neb. Sep 21, 2007) (NO. 8:07CR159)
- U.S. v. Barnes, 2007 WL 2119895, *1+ (S.D.N.Y. Jul 23, 2007) (NO. 07 CR. 187)
- U.S. v. Deese, 2007 WL 2778362, *2 (W.D.Okla. Sep 21, 2007) (NO. CR-07-167-L)
- U.S. v. Sallee, 2007 WL 3283739, *1 (W.D.Okla. Aug 13, 2007) (NO. CR-07-152-L)
- U.S. v. Templeton, 2007 WL 445481, *2 (W.D.Okla. Feb 07, 2007) (NO. CR-06-291-M)
- U.S. v. Dillenbeck, 2007 WL 2684838, *1+ (D.S.C. Sep 07, 2007) (NO. 4:07-CR-213-RBH)
- U.S. v. Heriot, 2007 WL 2199516, *2 (D.S.C. Jul 27, 2007) (NO. CR 307-323)
- U.S. v. Utesch, 2008 WL 656066, *3+ (E.D.Tenn. Mar 06, 2008) (NO. 2:07-CR-105)
- U.S. v. Sawn, 2007 WL 2344980, *1+ (W.D.Va. Aug 15, 2007) (NO. CRIM 607CR00020)
- U.S. v. Roberts, 2007 WL 2155750, *1+ (W.D.Va. Jul 27, 2007) (NO. 6:07 CR 70031)
David Finn
“THE ADAM WALSH ACT”
AN OVERVIEW
by John Teakell
Milner & Finn
Dallas, TX
Federal Bar Assn.’s Federal Criminal Practice Seminar
April 11, 2008
Re: Adam Walsh Child Protection and Safety Act of 2006 - H.R.4472 – Public Law No: 109-248
I. Note
There are no official changes; however, there are several proposed updates moving through Congress. I listed the citations on those proposed changes below and the affected sections. As you know, the Adam Walsh Act is codified in several different places throughout the United States Code, so we located (and pasted below) the popular name table to allow for easy reference.
Second, regarding caselaw - We went through each section and gathered all of the “new” annotations provided in the West’s Digest system (by “new” I mean those that I did not include previously). The annotations of course provide some description of the important point that the case makes.
II. Legislative Changes
Here is the section converter table, so you can take the sections of the Act and see where they appear in the United States Code.
Section of Pub.L. 109-248 (Adam Walsh Act) USCA Classification
102 ............................................ 42 USCA § 16901
103 ............................................ 42 USCA § 16902
111 ............................................ 42 USCA § 16911
112 ............................................ 42 USCA § 16912
113 ............................................ 42 USCA § 16913
114 ............................................ 42 USCA § 16914
115 ............................................ 42 USCA § 16915
116 ............................................ 42 USCA § 16916
117 ............................................ 42 USCA § 16917
118 ............................................ 42 USCA § 16918
119 ............................................ 42 USCA § 16919
120 ............................................ 42 USCA § 16920
121 ............................................ 42 USCA § 16921
122 ............................................ 42 USCA § 16922
123 ............................................ 42 USCA § 16923
124 ............................................ 42 USCA § 16924
125 ............................................ 42 USCA § 16925
126 ............................................ 42 USCA § 16926
127 ............................................ 42 USCA § 16927
128 ............................................ 42 USCA § 16928
131 ............................................ 42 USCA § 16929
141(a)(1) ...................................... 18 USCA § 2250
142 ............................................ 42 USCA § 16941
143 ............................................ 42 USCA § 16942
144 ............................................ 42 USCA § 16943
145 ............................................ 42 USCA § 16944
146 ............................................ 42 USCA § 16945
151 ............................................ 42 USCA § 16961
153 ............................................ 42 USCA § 16962
211 ............................................ 18 USCA § 3299
301 ............................................ 42 USCA § 16971
302(4) ......................................... 18 USCA § 4248
503(a) ......................................... 18 USCA § 2257A
621 ............................................ 42 USCA § 16981
623 ............................................ 42 USCA § 3797ee
623 ............................................ 42 USCA § 3797ee-1
624 ............................................ 42 USCA § 16982
625 ............................................ 42 USCA § 16983
626 ............................................ 42 USCA § 3765
627 ............................................ 42 USCA § 16984
628 ............................................ 42 USCA § 16985
629 ............................................ 42 USCA § 16986
630 ............................................ 42 USCA § 16987
631 ............................................ 42 USCA § 16988
632 ............................................ 42 USCA § 16989
633 ............................................ 42 USCA § 16990
635 ............................................ 42 USCA § 16991
702(a) ......................................... 18 USCA § 2260A
703(a) ......................................... 18 USCA § 2252C
42 U.S.C.A. § 16911, 42 U.S.C.A. § 16913, 42 U.S.C.A. § 16914, 42 U.S.C.A. § 16918, 42 U.S.C.A. § 16919, 42 USCA § 16927 – SORNA (Sex Offender Registration and Notification Act – Title I of Adam Walsh Act) has proposed legislative action that has yet to pass in Congress.
2007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
18 U.S.C.A. § 2250 – Failure to Register under SORNA has proposed legislative action
12007 CONG US HR 5475, 110th CONGRESS, 2d Session (Feb 19, 2008), Introduced in House, PROPOSED ACTION: Amended.
22007 CONG US S 2632, 110th CONGRESS, 2d Session (Feb 13, 2008), Introduced in Senate, PROPOSED ACTION: Amended.
32007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
42007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
18 U.S.C.A. § 4248 – Civil Commitment of Dangerous Sex Offenders - Held unconstitutional by, U.S. v. Shields, 522 F.Supp.2d 317, 319+ (D.Mass. Nov 07, 2007); U.S. v. Comstock, 507 F.Supp.2d 522, 524+ (E.D.N.C. Sep 07, 2007)
42 U.S.C.A. § 16981 – Pilot Program for monitoring sexual offenders has proposed amendments
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Nov 15, 2007), Engrossed in House, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Nov 15, 2007), Referred in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 4094, 110th CONGRESS, 1st Session (Nov 06, 2007), Introduced in House, PROPOSED ACTION: Amended.
§ 2252C. Misleading words or digital images on the Internet – has proposed amendments
2007 CONG US S 431, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in Senate, PROPOSED ACTION: Amended.
2007 CONG US HR 719, 110th CONGRESS, 1st Session (Jan 30, 2007), Introduced in House, PROPOSED ACTION: Amended.
III. Caselaw Update – NEW cases
A. From Annotations on SORNA
1. Generally
Congress did not impermissibly delegate its constitutional legislative duties by providing, in Sex Offender Registration and Notification Act (SORNA), that Attorney General was to specify whether statute was applicable to offenders convicted prior to its enactment date, and prescribe rules for registration of offenders unable to comply with statutory requirements; Congress was merely authorizing executive branch to give advice to courts on question of retroactivity. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 62(10); Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), which imposed registration requirements on convicted sex offenders who traveled in interstate commerce, had a jurisdictional nexus, as was required to satisfy Commerce Clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at least a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was a continuing offense, and therefore venue was proper, in prosecution for traveling in interstate commerce and failing to register as a sex offender, in either Virginia, the state in which defendant's travel originated, or in Tennessee, the place to which defendant changed his residency and in which he failed to register; failure to register involved an element of interstate or foreign travel. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal Law 113
Sex Offender Registration and Notification Act's (SORNA) requirement that sex offenders register and update their registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA and they were indicted after SORNA's effective date, but before the Attorney General exercised his authority under SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they were convicted; the indictments occurred in the brief window during which SORNA's scope remained undefined as to past offenders, and the statute required the Attorney General to animate SORNA's provisions to previously convicted offenders. U.S. v. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 278.29
2. Ex post facto
Defendant's failure to register as a sex offender, as required by the Sex Offender Registration Notification Act (SORNA), occurred before issuance of Interim Rules making SORNA's criminal provision applicable to persons convicted before its effective date, and therefore his indictment for failing to register violated Ex Post Facto Clause. U.S. v. Gill, D.Utah 2007, 2007 WL 3018909. Mental Health 433(2)
Congress did not violate ex post facto law clause of Constitution by passing Sex Offender Registration and Notification Act (SORNA), on grounds that registration requirements were additional punishment inflicted upon offender after he committed sexual offense; purpose of SORNA was civil, assurance of public safety, rather than penal, and ex post facto prohibition applied only to penal provisions. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 203; Mental Health 433(2)
Although Sex Offender Registration and Notification Act (SORNA) required sex offenders to provide detailed personal information and appear in person so that the jurisdiction could take a current photograph and verify their information, there was insufficient evidence to transform SORNA from a civil scheme into a criminal penalty, for purposes of the ex post facto clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Ex Post Facto Clause precluded defendant's conviction for failing to register or update his registration as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), where the defendant was covered by an interim rule making SORNA applicable to him, but had traveled in interstate commerce, without registering, before that interim rule was issued; the defendant did not commit the elements of the offense after the statute became applicable to him, and a retroactive application of the statute would have resulted in an enhanced penalty. U.S. v. Stinson, S.D.W.Va.2007, 507 F.Supp.2d 560. Mental Health 469(7)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), did not violate the Ex Post Facto Clause by inflicting greater punishment on defendant, a previously-convicted sex offender, than was provided by law when he was convicted; Act's legislative history indicated that Congress's concern was with public safety rather than with a desire to further punish sex offenders, and the registration requirements were not so punitive as to negate Congress's intent that they be nonpunitive. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
3. Procedural due process
Even if the sex offender registration requirements under the Sex Offender Registration and Notification Act (SORNA) were unclear prior to the issuance of the Attorney General's interim rule on February 28, 2007 making the registration requirements of SORNA applicable to individuals who had been convicted of a sex offense before the enactment of SORNA, defendant had sufficient time between that date and June 2007, the end date of his charged conduct in failing to register and update a registration required by SORNA, to apprise himself of the new federal registration requirements, and defendant was fully aware of his responsibility to register as a sex offender under North Dakota law, and thus, defendant's due process rights were not violated by his prosecution for failing to register. U.S. v. Lovejoy, D.N.D.2007, 2007 WL 2812681. Constitutional Law 4509(1); Mental Health 469(7)
Sex Offender Registration and Notification Act (SORNA) did not violate procedural due process rights of convicted sex offender, by not providing for notice and hearing prior to publication of his name on offender registry or prior to being compelled to register as offender; since all convicted offenders were required to register, there was no need for hearings to consider circumstances of individual cases. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 255(5); Mental Health 433(2)
Defendant's potential for recidivism or current dangerousness were not material to Sex Offender Registration and Notification Act (SORNA) and, thus, principles of procedural due process did not require a hearing for defendant to argue these issues before he was compelled to comply with SORNA's registration requirements. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 469(4)
Sex Offender Registration and Notification Act (SORNA) did not violate the procedural due process rights of defendant, a previously-convicted sex offender, by failing to give him actual notice that travel across state lines subjected him to criminal penalties; defendant had sufficient notice that failing to register was illegal. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
4. Substantive due process
Substantive due process rights of convicted sex offenders was not violated by Sex Offender Registration and Notification Act (SORNA), requiring that they register and disclose their whereabouts following release. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Constitutional Law 255(5); Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA) was rationally related to legitimate government interests and, thus, did not violate the substantive due process component of the Fifth Amendment. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA) did not, by subjecting to the Act's requirements persons who were not in fact convicted of an offense listed as a qualifying sex offense, or whose conviction was set aside, violate the substantive due process rights of defendant, a previously-convicted sex offender; defendant fell squarely within the category of persons required to register, and his conviction had not been set aside. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
5. Continuing violation
Violation of the registration requirement of the Sex Offender Registration and Notification Act (SORNA) was not a continuing offense for purposes of the Ex Post Facto Clause, but rather, was complete when the defendant traveled in interstate commerce and then failed to register within the prescribed time period. U.S. v. Stinson, S.D.W.Va.2007, 507 F.Supp.2d 560. Mental Health 469(7)
6. Retroactive application
Sex Offender Registration and Notification Act (SORNA) was not being applied retroactively to defendant and his prosecution under Act, for failure to register as a convicted sex offender, was not premature, where defendant clearly was advised that he fell within the purview of SORNA on the basis of his New York conviction for second-degree sexual assault, he was specifically told by New York law enforcement personnel that he needed to register as a sex offender in Florida if he chose to move there, and he traveled to Florida where he established residence, secured a driver's license, and was employed after SORNA went into effect, but failed to register. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923.
Defendant was required to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), regardless of whether the Attorney General had adopted required rule specifying the applicability of the Act to sex offenders convicted before its enactment; defendant was required to register or update his registration under the existing state law of his residence. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 469(2)
Sex Offender Registration and Notification Act's (SORNA) requirement that sex offenders register and update their registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA and they were indicted after SORNA's effective date, but before the Attorney General exercised his authority under SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they were convicted; the indictments occurred in the brief window during which SORNA's scope remained undefined as to past offenders, and the statute required the Attorney General to animate SORNA's provisions to previously convicted offenders. U.S. v. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 278.29
7. Policy safety regulation
There was rational public safety basis for regulation of interstate commerce, underlying Sex Offender Registration and Notification Act (SORNA) requirements that released offenders report address changes to authorities, precluding claim that SORNA violated Commerce Clause. U.S. v. Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Mental Health 433(2)
8. Commerce clause
Sex Offender Registration and Notification Act (SORNA), which imposed registration requirements on convicted sex offenders who traveled in interstate commerce, had a jurisdictional nexus, as was required to satisfy Commerce Clause. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Mental Health 433(2)
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at least a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
9. Venue
Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was a continuing offense, and therefore venue was proper, in prosecution for traveling in interstate commerce and failing to register as a sex offender, in either Virginia, the state in which defendant's travel originated, or in Tennessee, the place to which defendant changed his residency and in which he failed to register; failure to register involved an element of interstate or foreign travel. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal Law 113
10. Standing
Previously-convicted sex offender who could allege no injuries traceable to the Sex Offender Registration and Notification Act's (SORNA) alleged violations of procedural and substantive due process did not have standing to challenge the constitutionality of the Act on such grounds. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Constitutional Law 885
11. Constitutional delegation of authority
Fact that Congress delegated the ability to specify applicability of registration requirements to sex offenders convicted before enactment of Sex Offender Registration and Notification Act (SORNA), or its implementation in certain jurisdictions, or granted Attorney General the power to promulgate regulations to ensure registration of individuals outside the purview of statutory language, did not allow Attorney General to decide if the statute would have retroactive application, in violation of non-delegation doctrine; rather, the statutory language was indicative of a gap-filling provision to insure SORNA's clearly articulated purpose was effectuated when sex offenders fell outside the purview of statutory language. U.S. v. Mason, M.D.Fla.2007, 510 F.Supp.2d 923. Constitutional Law 2422(3)
Provision of Sex Offender Registration and Notification Act (SORNA) which gave Attorney General authority to decide whether persons classified as sex offenders, who were unable to register, should be subject to the registration requirements, was not unconstitutional, in violation of the non-delegation doctrine, as applied to defendant, a previously-convicted sex offender; the delegation of authority to the Attorney General was not so broad as to be violative of the non-delegation doctrine, and defendant was not a person who was unable to register within the meaning of the provision. U.S. v. Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 433(2)
B. Civil Commitment Statute Annotations:
1/2 . Constitutionality
Civil commitment of those already in federal custody who, as result of mental condition, likely would commit sexually violent crimes had rational relation to congressional authority to proscribe and prevent such conduct, for purpose of Necessary and Proper Clause challenge. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. United States 22
Congress lacked authority, under either the Commerce Clause or the Necessary and Proper Clause, to enact the Adam Walsh Child Protection and Safety Act section permitting the civil commitment of sexually dangerous persons as it pertained to individuals previously committed due to mental incompetence to stand trial, to prisoners whose sentences were about to expire, or to people in federal custody against whom all criminal charges were dropped based on mental condition; the section at issue was aimed at preventing sexually violent conduct underlying various federal sex crimes, but it was the purview of the states to deal with such underlying conduct, and the federal government had no broad power generally to criminalize sexually dangerous conduct and child molestation. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. United States 22
Scope of Congress's auxiliary power to Necessary and Proper Clause authority extended so far as to allow Congress to prevent the release of federal inmates, whose sentences had expired, due to their sexually dangerous propensities, and thus statute providing for the civil commitment of such inmates was a valid exercise of Congress's legislative power and was not facially invalid, where Congress had rationally set up a process for determining which individuals were likely to commit further acts of sexual violence proscribed under Congress's Commerce Clause authority. U.S. v. Carta, D.Mass.2007, 503 F.Supp.2d 405. United States 22
1. Due process
Failure of statute governing civil commitment of sexually dangerous persons to require finding of proof beyond reasonable doubt that person had engaged or attempted to engage in sexually violent conduct or child molestation prior to allowing that person's potentially indefinite commitment as sexually dangerous person constituted violation of due process. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
2. Equal protection
Government did not violate equal protection clause by designating certain federal prisoners whose terms were expiring as sexually dangerous persons and subjecting them to civil commitment procedures, although federal prison population contained relatively few sexually violent offenders and child molesters. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
3. Vagueness
Terms, “serious mental illness,” “serious difficulty,” “sexually violent conduct,” and “child molestation,” in Adam Walsh Act for civil commitment of sexually dangerous persons, provided sufficiently explicit standards to defeat vagueness challenge. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 433(2)
4. Unreasonable seizure of person
To avoid serious questions under Fourth Amendment and Due Process Clause, provision under Adam Walsh Act for civil commitment of sexually dangerous persons would be construed to contain implicit requirement that opportunity for probable cause hearing before neutral decision maker had to be afforded within reasonable period of time after any detention resulting from stay of release at end of his prison sentence; except in exigent or extraordinary circumstances, and absent reasonable alternative, hearing had to occur within 48 hours after certified individual was detained beyond his scheduled release date. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 462
5. Construction and application
Violation of due process by statute governing civil commitment of sexually dangerous persons, in not requiring finding of proof beyond reasonable doubt that such person had engaged or attempted to engage in sexually violent conduct or child molestation prior to that person's indefinite commitment as sexually dangerous person, could be remedied by severing phrase “by clear and convincing evidence” from statute and allowing government to demonstrate that such person previously had been convicted of relevant sex crime. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Statutes 64(6)
6. Civil nature of commitment
Commitment scheme established by the Adam Walsh Child Protection and Safety Act section permitting the commitment of sexually dangerous persons was properly characterized as a civil scheme, not a criminal proceeding, thus defeating double jeopardy, ex post facto, cruel and unusual punishment, and jury trial claims challenging the scheme, such claims being cognizable only in the criminal or punitive context; the statute did not affix culpability for prior criminal conduct, no finding of scienter was required for commitment, and because the statute was explicitly aimed at confining people who had been found to have serious difficulty controlling their conduct, it could not be said that the it served a deterrent purpose. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. Sentencing and Punishment 1596
Statute providing for the civil commitment of sexually dangerous inmates whose sentences had been fulfilled was civil, rather than criminal, in nature, and thus statute did not facially violate any constitutional guarantee to those facing criminal charges, even though some effects of the statute were punitive in nature, such as the involuntary detention of the inmates, where statute was not otherwise so punitive in purpose or effect as to negate the intention to deem it civil. U.S. v. Carta, D.Mass.2007, 503 F.Supp.2d 405. Mental Health 456
7. Burden of proof
Use of a clear and convincing burden of proof by the section of the Adam Walsh Child Protection and Safety Act permitting the civil commitment of sexually dangerous persons violated the substantive due process rights of those subject to commitment under that section, despite claim that the clear and convincing standard properly allocated the risk of an erroneous commitment between the parties, and that post-deprivation proceedings existed to cure any erroneous commitment; reasonable doubt standard should have applied to the factual determination that an individual sought to be committed engaged or attempted to engage in sexually violent conduct or child molestation, which determination was a condition precedent to commitment. U.S. v. Comstock, E.D.N.C.2007, 507 F.Supp.2d 522. Constitutional Law 4344
8. Certification of sexually dangerous person
Certificates that were issued to federal prisoners whose terms were expiring designating them as “sexually dangerous persons” under Adam Walsh Act violated due process, since each certification stated only that named individual had been certified based on review of his records and certification did not identify underlying instances of misconduct upon which certification had been made. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. Mental Health 458
9. Standing
Persons in custody of Bureau of Prisons (BOP) who were certified as “sexually dangerous persons” under Adam Walsh Act, as private parties, did not have standing to assert independent constitutional claim alleging that Act violated Tenth Amendment. U.S. v. Shields, D.Mass.2007, 522 F.Supp.2d 317. States 4.16(1)
C. Non-annotation cases that nevertheless cite an Adam Walsh Provision
There are several cases that have cited the various provisions of the Adam Walsh Act since you last spoke on the topic. Included here are cases that did not yet appear in the annotations section above to the United States Code Annotated at this point in time, but seem to have some importance. Another observation is that there seemed to be no cases that have made their way to the various courts of appeals yet (at least, there appear to be no opinions from the courts of appeals).
U.S. v. LeTourneau, 534 F.Supp.2d 718, 720+ (S.D.Tex. Jan 09, 2008) – This looks to be the only Texas state or federal case analyzing the Adam Walsh law that we could find.
U.S. v. Thomas, 534 F.Supp.2d 912, 913+ (N.D. Iowa Feb 13, 2008)
U.S. v. Gould, 526 F.Supp.2d 538, 540+ (D.Md. Dec 13, 2007) (NO. CRIM.WDQ-07-0359)
U.S. v. Smith, 481 F.Supp.2d 846, 849 (E.D.Mich. Mar 08, 2007)
U.S. v. Lovejoy, 516 F.Supp.2d 1032, 1034+ (D.N.D. Sep 28, 2007)
Keep in mind, there are several unreported cases, or cases that just have not yet been reported yet. Some of these cases may be fairly important, but it is difficult to tell at this point in time. These cases are probably mostly concern various constitutional challenges to the statute (ex post facto, retroactive effect, commerce clause, due process challenges, etc.). Here are those cites, just in case you want to view them:
- U.S. v. Jorge-Salgado, 2008 WL 860832, *2 (8th Cir.(Minn.) Apr 02, 2008) (NO. 07-1505)
- U.S. v. Kent, 2008 WL 360624, *3+ (S.D.Ala. Feb 08, 2008) (NO. CRIM. 07-00226-CG)
- U.S. v. Bonner, 2007 WL 4372887, *1 (S.D.Ala. Dec 11, 2007) (NO. CRIM A 07-00264-KD)
- U.S. v. Kent, 2007 WL 2746773, *1+ (S.D.Ala. Sep 20, 2007) (NO. CRIM. A. 07-00226-KD)
- U.S. v. Terwilliger, 2008 WL 50075, *1+ (S.D.Cal. Jan 03, 2008) (NO. 07CR1254 BTM)
- U.S. v. Elliott, 2007 WL 4365599, *2+ (S.D.Fla. Dec 13, 2007) (NO. 07-14059-CR)
- U.S. v. Cardenas, 2007 WL 4245913, *1+ (S.D.Fla. Nov 29, 2007) (NO. 07-80108CR)
- U.S. v. Ambert, 2007 WL 2949476, *1 (N.D.Fla. Oct 10, 2007) (NO. 4:07-CR-053-SPM)
- U.S. v. Kelton, 2007 WL 2572204, *1 (M.D.Fla. Sep 05, 2007) (NO. 5:07-CR-30OC10GRJ)
- U.S. v. Gonzales, 2007 WL 2298004, *1 (N.D.Fla. Aug 09, 2007) (NO. 5:07CR27-RS)
- U.S. v. Beasley, 2007 WL 3489999, *1+ (N.D.Ga. Oct 10, 2007) (NO. CRIM.1:07CR115TCB)
- U.S. v. Cole, 2007 WL 2714111, *1+ (S.D.Ill. Sep 17, 2007) (NO. 07-CR-30062-DRH)
- U.S. v. Dixon, 2007 WL 4553720, *1+ (N.D.Ind. Dec 18, 2007) (NO. 3:07-CR-72 01 RM)
- U.S. v. Adkins, 2007 WL 4335457, *4+ (N.D.Ind. Dec 07, 2007) (NO. 1:07-CR-59)
- U.S. v. Howell, 2008 WL 313200, *1+ (N.D.Iowa Feb 01, 2008) (NO. CR07-2013-MWB)
- U.S. v. Howell, 2007 WL 3302547, *4+ (N.D.Iowa Nov 08, 2007) (NO. CR07-2013-MWB)
- U.S. v. May, 2007 WL 2790388, *2+ (S.D.Iowa Sep 24, 2007) (NO. 4:07-CR-00164-JEG, 1:07-CR-00059-JEG)
- U.S. v. Samuels, 2008 WL 169792, *2+ (E.D.Ky. Jan 17, 2008) (NO. CRIM.A. 07-62-DLB)
- U.S. v. Pitts, 2008 WL 474244, *1+ (M.D.La. Feb 14, 2008) (NO. CRIM.A. 07-157JVP-CN)
- U.S. v. Davis, 2008 WL 510599, *1+ (W.D.La. Jan 22, 2008) (NO. CRIM 07-60003)
- U.S. v. Mantia, 2007 WL 4730120, *2+ (W.D.La. Dec 10, 2007) (NO. CRIM. 07-60041)
- U.S. v. Pitts, 2007 WL 3353423, *1+ (M.D.La. Nov 07, 2007) (NO. CRIM.A. 07-157-A)
- U.S. v. Nugent, 2008 WL 413273, *3+ (W.D.Mo. Feb 13, 2008) (NO. 07-5056-01-CRSW-GAF)
- U.S. v. Rich, 2007 WL 4365735, *2+ (W.D.Mo. Oct 31, 2007) (NO. CRA070027401CRWHFS)
- U.S. v. Muzio, 2007 WL 2159462, *1+ (E.D.Mo. Jul 26, 2007) (NO. 4:07CR179 CDP)
- U.S. v. Muzio, 2007 WL 1629836, *1+ (E.D.Mo. Jun 04, 2007) (NO. 407CR179 CDP)
- U.S. v. Aldrich, 2008 WL 427483, *2+ (D.Neb. Feb 14, 2008) (NO. 8:07CR158)
- U.S. v. Hacker, 2008 WL 312689, *1+ (D.Neb. Feb 01, 2008) (NO. 8:07CR243)
- U.S. v. Aldrich, 2007 WL 4924932, *2+ (D.Neb. Dec 14, 2007) (NO. 8:07CR158)
- U.S. v. Patterson, 2007 WL 3376732, *1 (D.Neb. Nov 08, 2007) (NO. 8:07CR159)
- U.S. v. Patterson, 2007 WL 2904099, *3+ (D.Neb. Sep 21, 2007) (NO. 8:07CR159)
- U.S. v. Barnes, 2007 WL 2119895, *1+ (S.D.N.Y. Jul 23, 2007) (NO. 07 CR. 187)
- U.S. v. Deese, 2007 WL 2778362, *2 (W.D.Okla. Sep 21, 2007) (NO. CR-07-167-L)
- U.S. v. Sallee, 2007 WL 3283739, *1 (W.D.Okla. Aug 13, 2007) (NO. CR-07-152-L)
- U.S. v. Templeton, 2007 WL 445481, *2 (W.D.Okla. Feb 07, 2007) (NO. CR-06-291-M)
- U.S. v. Dillenbeck, 2007 WL 2684838, *1+ (D.S.C. Sep 07, 2007) (NO. 4:07-CR-213-RBH)
- U.S. v. Heriot, 2007 WL 2199516, *2 (D.S.C. Jul 27, 2007) (NO. CR 307-323)
- U.S. v. Utesch, 2008 WL 656066, *3+ (E.D.Tenn. Mar 06, 2008) (NO. 2:07-CR-105)
- U.S. v. Sawn, 2007 WL 2344980, *1+ (W.D.Va. Aug 15, 2007) (NO. CRIM 607CR00020)
- U.S. v. Roberts, 2007 WL 2155750, *1+ (W.D.Va. Jul 27, 2007) (NO. 6:07 CR 70031)
David Finn
posted by Dallas Federal Criminal Defense Attorney - David Finn at 2:12 PM
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