Thursday, March 29, 2012

SORNA upheld under Ex Post Facto and Commerce Clause challenges

Whither the "kitchen sink" memo?  When SORNA was enacted in 2006, defense counsel came up with numerous constitutional, statutory, administrative and other challenges to the statute.  For a while, the Sixth Circuit did not rule on many of these challenges (as they granted relief on initial enactment grounds).  But in two recent cases, much of the "kitchen sink" defense memo has now been disposed of.

Today, the Court in United States v. Coleman 12a0085p.06  held that imposition of SORNA on a defendant whose sex conviction pre-dated the act does not violate the Ex Post Facto clause.  The Court relied on the Court's earlier decision in United States v. Felts, 12a0073p.06 , which found that "SORNA provides for a conviction for failing to register; it does not increase the punishment for the past conviction." 

The Court also held that SORNA was a proper application of Congress's Commerce Clause power.  the Court held that "SORNA’s jurisdictional element, coupled with its purpose, creates the requisite nexus to the use of the channels of interstate commerce."  The Court further found (as to the second Lopez prong) that "it cannot be said that SORNA’s focus on Coleman’s failure to register as a sex offender so decouples the regulated conduct from the instrumentalities of interstate commerce that it becomes unconstitutional."

The previously mentioned Felts was decided on March 12.  In Felts, the Court struck down challenges to SORNA: (1) where the state in which the defendant was arrested had not yet implemented SORNA, (2) under the non-delegation clause, and (3) under a state "commandeering" claim under the Tenth Amendment.


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