One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions

Abstract

In 2003, the United States Supreme Court issued its only two opinions regarding the constitutionality of sex offender registration and notification statutes. The two opinions, Smith v. Doe ("Smith") and Connecticut Department of Public Safety v. Doe ("DPS"), upheld the Alaska and Connecticut registry and notification laws against Ex Post Facto Clause and due process challenges. Three years later, the federal Sex Offender Registration and Notification Act ("SORNA") was passed as part of the Adam Walsh Child Protection and Safety Act. The federal statute was very different from the state statutes that the Court reviewed. Most notable among the differences was the creation of the federal crime of "failure to register" which was punishable by up to ten years imprisonment. Despite the significance of the disparities between the state and federal laws, district courts across the country have virtually rubber stamped the criminal provisions of SORNA as constitutional. The district courts' reasoning has been almost entirely based upon superficial, mechanical applications of the Court's decisions in Smith and DPS. This article contends that most district courts have been severely misguided in reading the two Court opinions and the statutory provisions of SORNA. Consequently, this article concludes that either Congress should amend SORNA or courts should strike down portions of SORNA on Ex Post Facto Clause, due process, and Commerce Clause grounds.

Keywords: Sex Offenders, Registration, Notification, SORNA, Adam Walsh Act, Ex Post Facto, Due Process, Commerce Clause