United States v. Kebodeaux

JudgmentReversed, 7-2, in an opinion by Justice Breyer on June 24, 2013. Chief Justice Roberts and Justice Alito filed opinions concurring in the judgment. Justice Scalia filed a dissenting opinion. Justice Thomas filed a dissenting opinion, in which Justice Scalia joined as to parts I, II, and III-B.

Issue: (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

Summary / Timeline: http://www.scotusblog.com/case-files/cases/united-states-v-kebodeaux/
Oral Argument: http://www.oyez.org/cases/2010-2019/2012/2012_12_418
SCOTUS Opinion: http://www.supremecourt.gov/opinions/12pdf/12-418_7k8b.pdf

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By a 7-2 decision, the US Supreme Court has reversed the 5th Circuit Kebodeaux decision. Kebodeaux must register, even though all infractions were conducted within the same state’s borders. I haven’t read the decision yet, but the two dissenters were coservatives (actually, “constitutional originalists”) Thomas and Scalia. This is a chilling moment for the registry as a whole, though it has confirmed my own leanings that it will be the conservative (constitutionalist) side that will rule in our favor more than the left.


In my opinion, the US Constitution is no longer applicable. Sex offender issues have always been the bellwether, or the canary in the mine, of the limits of the Constitution, and the canary has officially died.

Janice, could you explain this as to what the current and near future implications might be for those of us who register?

This case only affects pre-SORNA registrants. It wouldn’t have made a difference for anyone convicted after 2006. So for those of us who were convicted before 2006, it might have made a small difference if they had voted in our favor. Though I am doubtful since this is a Federal question and therefore might not have made any difference with state law. For instance, lifetime registry for a 288 case was mandatory before SORNA was ever enacted. All SORNA does is ensure that the states are in compliance with their guidelines. So in the end, it probably wouldn’t have made much difference to most registrants, especially in California.

Everyone needs to read this chilling opinion and take note that a violation of federal SORNA is serious business. This affects much more than the defendant here (Kebodeaux), for the majority of the court has given the federal government police powers far above what one could imagine, contrary to the Chief Justice’s concurring opinion. To protect the public the federal government can pass any type of registration requirement and apply it to ANYONE who crosses state boundaries for any reason, as well as any federal convict. In this case, it was a military conviction that followed the defendant through intrastate travel, but the application includes anyone who crosses state lines.

In this case state law was broken as well as a violation of federal SORNA. I recall the opinion commenting that so far only violators of both federal and state law have been prosecuted in federal court, however this does not seem to be a requirement. SORNA places requirements on an offender in addition to, and at times above, state requirements. It is not a leap to say a violation of SORNA but not a state offense can still be prosecuted as a FTR under federal statute. I wonder for low level offenders where registration is not required under state law, are they still required to do so under SORNA? If so, failure to report to local authorities makes you subject to federal prosecution, and subject to a 10 year prison sentence, even if state law does not require it.

The opinion did nothing for the offender community and we were poorly represented in this case, and will have to live with the damage it did for a long time. I listen to the oral arguments the other day, before the opinion was released, and the public defender did a lousy job. Too bad Janice was not there to argue the case. The majority opinion furthered the belief that sex offenders have a high recidivism rate, though left room about there being some disagreement. So, just on that belief that the recidivism rate for sex offenders is high, without really any proof, Congress can place any ex post facto requirements and restrictions on an offender to protect the public. There was no counter argument to old DOJ data on the recidivism rate, so it is now cited in this case for all federal courts to use against us. There was no significant rebuttal to the claim sex offenders have a higher rate of committing a sex crime than the general offender population.

If you leave your state, you now need to know the laws of the state you left, the laws of any state you pass through, the laws of any state you stop to visit, as well as federal SORNA requirements. You need to understand the various definitions for travel, residency, work, employment, vocation, school for each state you visit and compare them to SORNA, and follow the most stringent reporting requirements from each.

It is indeed a messy situation.

Matthew, based on your assessment, I’m wondering how long it will be before a similar case is brought before SCOTUS, since this ruling will only accentuate the giant cluster %*$# between federal and state laws. I know it could be years but , if your interpretation is correct (I haven’t had time to really dive into this yet), then its only going to cause more obfuscation (which seems to be the #1 priority for SCOTUS this year) and therefore misapplication of laws, dare I say – even violations of equal protection? I’m not saying it would be easy in any way…but after a certain number of inconsistent rulings regarding this ‘interstate travel’ business, not to mention the federal government arbitrarily usurping each state of their own power to enforce and act laws…etc…I’m sure this will end up back in their lap again. If anyone has been keeping up with their rules as of late, it seems that SCOTUS is primarily concerned with not only maintaining the status quo, but obfuscating it to the point that everyone from federal and state judges to private attorneys, are left in a state of head-scratching bewilderment.

I’d like to see a case brought before SCOTUS for which Janice could be in at the helm for the defense. We really need to get accurate info and stats into our lawmakers’ heads. Education is our most powerful tool, its overwhelming to figure out how to disseminate it into the public though.

td777, I think you got a raw deal, my brother. But I guess that pretty much goes without saying for almost all if us. So sorry about your plight though. Its stories like yours that help me to keep from dwelling on my own cruddy situation and inspire to wanna risk my own neck to try and make a difference. Sometimes I just want to avoid it all and hope it will go away, but this site is full of reminders as to why we’ve got to keep fighting. Thank you.

I just got my Truck Driver’s license what you are telling me is traveling across state lines is illegal depending on the state being crossed? If that is true then my CDL Class “A” license isn’t worth the plastic it’s printed on for cross state line driving!

Alright, I haven’t the time to really go over this case in great detail but this is basically my assessment:

SORNA says registrants have to update their registration when they move. Texas doesn’t care so long as they update their annual. Kebodeaux didn’t update his registration when he moved intrastate back in 2007, from San Antonio to El Paso. Again, the State of Texas saw no problem with this. The Federal government, on the other hand, does have a problem with it and so prosecuted him for the age-old “recidivism excuse” – Failure to Register. Kebodeaux challenged the Federal government’s jurisdiction and whether or not the Constitution granted them the power to do prosecute him, especially since SORNA didn’t go into effect until after he completed his sentence. But he was already covered by the Wetterling Act, so the ex post facto argument was practically a nonstarter.

The short of the matter is this – SCOTUS decided that the Federal government in fact does duly possess and exercise such power due to Clause 18 of Article I of the Constitution:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.

How they derive such a narrow interpretation from a fairly broad and general statement is beyond me. Even so, that is their ruling. Now, according to my own understanding of law (which is still very limited), SCOTUS exists for this very purpose – to keep all of the states on the same page and prevent significant inconsistencies from state to state. The problem is, we should be arguing the Constitutionality of SORNA and public sex offender registries – not whether the Federal government has the Constitutional power to pass and enforce laws which supersede state law. To my knowledge and understanding, like it or not, that has always been the case.

The Moral of this Story:

NEVER, EVER, UNDER ANY CIRCUMSTANCE FORGET TO UPDATE YOUR REGISTRATION WHEN YOU MOVE. And remember that SORNA supersedes state laws. So if your state says ‘you can do whatever you want and we couldn’t possibly care any less’, it DOES NOT MATTER. Its best to check SORNA and make sure you’re in compliance with it’s requirements, regardless of what your state says. I don’t like it, but it is what it is.

An unintended scenario is that over 800,000 ex-offenders have an instant way to contact others on the registry. I also question what these ex-offenders must be thinking, since there seems to be no way to redeem oneself, no matter their behavior. I personally don’t like the implied reality for these offenders; of having nothing to lose once on the registry.