Two courts strike sex offender laws under Commerce Clause

In two separate decisions in May and June, federal district courts held that provisions of the Adam Walsh Child Protection and Safety Act exceed the bounds of the Commerce Clause and the Necessary and Proper Clause.

Minnesota’s district court held invalid 18 U.S.C. § 4248(a), which enables the Bureau of Prisons (BOP) to stay the release of sex offenders certified as “sexually dangerous” and civilly commit them. United States v. Tom, --- F.Supp.2d ---, 2008 WL 2348201 (D. Minn. May 23, 2008) (Civ. No. 06-3947). Montana’s district court held invalid 42 U.S.C. § 16913, which imposes nationwide registration requirements for sex offenders. United States v. Waybright, --- F.Supp.2d ---, 2008 WL 2380946 (D. Mont. June 11, 2008) (No. CR 08-16-M).

          Under § 4248, the BOP may request a court hearing to certify an individual as “sexually dangerous,” in which case either the state or federal government will keep him in custody until the individual is deemed no longer dangerous. In upholding Tom’s challenge to the stay of his release, the Minnesota court relied heavily on the reasoning of United States v. Comstock, 507 F.Supp.2d. 405 (D. Mass. 2007) (summary here), which reached the same conclusion. The Minnesota court held that § 4248(a) regulates neither commerce itself nor the channels of interstate commerce, and “has no jurisdictional element to ensure its application only to situations involving interstate commerce.” The court noted the lack of congressional findings related to any effect on commerce, and stated that in any event “a broad interstate ‘costs of crime’ rationale” for the law was foreclosed by United States v. Lopez, 514 U.S. 549 (1995).

 

          The court distinguished laws providing for pretrial detention of persons charged with federal crimes, saying they related not to the Commerce Clause but to “Congress’ interest in punishing crimes through criminal trials.” It distinguished a law requiring DNA samples from all federal inmates, because in that case Congress made findings regarding commercial effects and, moreover, “the federal government was uniquely situated to develop means for”exchange and comparison of DNA samples between jurisdictions. By contrast, “Congress and the BOP are not uniquely situated to authorize commitment” of persons like Tom – something states could certainly do.

 

          Considering whether § 4248 is “necessary and proper” to carry out other vested powers of Congress, the court also distinguished a law providing for civil commitment of persons deemed mentally incompetent to stand trial. The court said that while in that case civil commitment was an extension of the federal power to prosecute, “Section 4248 arises well after the federal authority to prosecute has expired.” Finally, the court distinguished a companion statute authorizing BOP to stay the release of inmates deemed to suffer from a “mental disease or defect,” because that provision requires BOP to certify “that suitable arrangements for State custody and care of the person are not available.” 18 U.S.C. § 4246. Because it lacked such a requirement, Section 4248 could not reasonably be seen as a legitimate effort to “step in where states have failed.”

 

          Finally, the court said that while there is little doubt that Congress may punish sex crimes with a federal nexus, there is no authority for the proposition that Congress may stay the release of “inmates – including, importantly, inmates who have never been charged with or convicted for a sex crime – until a Court can determine whether there is clear and convincing evidence that in the future the person is likely to commit a sex crime that might be federal or might not.” For all these reasons, the court ordered the commitment proceeding dismissed.

 

          In the Montana case, Waybright was charged under 18 U.S.C. § 2250(a) with the federal crime of failing to register as a sex offender after traveling in interstate commerce . The court rejected Commerce Clause, Due Process, and right-to-travel challenges to § 2250(a), but nevertheless held that the indictment against must be dismissed because it was premised on the duty to register under § 16913, which has no federal jurisdictional element.

         

          The Government conceded at oral argument “that § 16913 could not be upheld under the Commerce Clause alone” in light of Lopez. It urged that the provision was, however, “an appropriate and reasonably adapted means for Congress to attain the legitimate end of § 2250(a) – monitoring sex offenders who cross state lines”. This argument regarding § 16913 was accepted in United States v. Thomas, 534 F.Supp.2d 912 (N.D. Iowa 2008), based on the discussion of the Commerce and Necessary and Proper Clauses in Gonzales v. Raich, 545 U.S. 1, 34 (2005) (Scalia, J., concurring) (summary here).

 

           The Montana court rejected this argument because Raich “relied heavily on the economic and commercial nature of the drug trade,” whereas the registration provisions do not “regulate any sort of economic or commercial activity. Sex offenders are not fungible commodities. There is no market for sex offenders. So, Congress does not need to regulate sex offenders who remain in a single state in order to effectively regulate sex offenders who travel in interstate commerce,” as was the case with drugs. Moreover, unlike the federal drug law, § 16913 “is not a means to an end”; it is not targeted at controlling interstate movement, but at ensuring nationwide registration.

 

          The court also rejected the argument – accepted in United States v. Cardenas, 2007 WL 4245913 (S.D. Fla. Nov. 29, 2007) – that § 16913 is valid under the Spending Clause. While some provisions of the Adam Walsh Act are directed to the states and establish conditions for federal funding, the court noted that the Act’s registration provisions are directed to individuals, and so cannot be an exercise of the spending power.