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SCOTUS: Justices face nondelegation challenge to federal sex-offender registration law

Argument Preview: Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirementthat a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? Full Article

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Gundy’s petition raised four questions, but the Supreme Court chose to take up just one of them, a question on which the circuits were not split and which the justices had repeatedly declined to hear in the past: “Whether SORNA’s delegation of authority to the Attorney General to issue regulations under [34 U.S.C. 20913(d)] violates the nondelegation doctrine.” —– I find this sentence from the article to be especially intriguing. To me it sounds like SCOTUS is ready to draw a bright line on non-delegation. Being a fan of the Constitution as written–and not at all a fan of “intelligible… Read more »

I agree, it seems promising that SCOTUS granted cert to this case on the delegation question. I think frustration with the Chevron deference principle has grown to the point that SCOTUS has developed an appetite to either reverse course on it or at least limit it. That the question comes to the court in an SO case is interesting, and depending on the outcome, could potentially be useful.

I want to add this particular brief here for reading leisure from the preeminent experts in the registrant’s field, e.g. Drs. Ellman, Levinson, Hanson (yes, THE Hanson this forum loves to discuss), et al:

BRIEF OF SCHOLARS WHOSE WORK INCLUDES SEX OFFENSE STUDIES AS AMICI CURIAE IN SUPPORT OF PETITIONER (https://www.supremecourt.gov/DocketPDF/17/17-6086/48963/20180601161907751_17-6086%20tsac%20Scholars%20Whose%20Work%20Includes%20Sex%20Offense%20Studies_A-2b.pdf)

I, too, would like to see an “unconstitutional” decision come from the the 8 on high. (9 is not happening by next Tuesday, Oct 2, most likely given the process required, but hey, anything is possible.) Quite the action on this case as seen here by the amicus filings added to the case file: http://www.scotusblog.com/case-files/cases/gundy-v-united-states/ If anyone is interested in the four questions presented: (1) Whether convicted sex offenders are “required to register” under the federal Sex Offender Notification and Registration Act (“SORNA”) while in custody, regardless of how long they have until release. (2) Whether all offenders convicted of… Read more »

@TS, it may not make a difference to your point, but I think SCOTUS limited it to # 4.

Depending on the answer to 4, it may be that all of those questions will be answered. Maybe that’s why they are considering only question 4.

It would be interesting to know now why they are hearing #4 considering the court’s were not split and they declined to hear similar petitions previously. Ripeness? (Is that a correct term to use here?) Of course, we’ll never know why at this point, but hopefully, maybe in their decision we’ll see their reasoning. As has been mentioned here previously (ahem, @AJ & @Chris), split courts are a major factor why SCOTUS grants petitions. @AnotherAnon – yes, limited it to #4 to be heard, but SCOTUS was presented with the initial set of four when deciding whether to take the… Read more »

Just an open thought here for consideration WRT Justice Kennedy retiring and this forthcoming hearing. What if it the court granted the petition because there was no choice but to grant it (for whatever they felt) while Justice Kennedy saw the potential writing on the wall afterward where his statement could come back to haunt him and the court; thus, making retirement a good thing to do? Easier to reverse the prevailing statistical thinking with a retired Justice than an active Justice, I’d think, while saving potential personal and professional embarrassment through potential forthcoming statistical debunking of false data, etc… Read more »

Maybe I missed it, but is this going to SCOTUS right now?

As someone federally convicted pre-SORNA and living in a state that recently became AWA-compliant, a favorable outcome would seem to benefit me greatly. I’m guessing I’d end up having to register under whatever law was in place in my state at the time of my 2004 conviction.

Gundy v. United States (to be argued Oct. 2, 2018): Whether the federal Sex Offender Notification and Registration Act improperly delegates to the U.S. attorney general the authority to decide whether the act’s requirements should apply to sex offenders who were convicted before the law was passed.

This case is currently being decided. Hopefully some sense of sanity will come from it.

They seem to forget how this commerce among the several States

It’s set for argument on Tuesday, October 2nd. We won’t likely hear of the decision for several more months, probably next year. I surmise that a win for Gundy will not benefit you directly unless the only reason you are required to register is because of the Federal SORNA. Also, I think that if SCOTUS finds that the delegation of authority by Congress to the Executive in this case was unconstitutional, and that some or all of the current SORNA statutes are struck down as a result, it will persist for a short time only. I expect that Congress will… Read more »

“One provision of SORNA created a requirementthat a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted.” 🤔 This seems inaccurate: we are required to register in BOTH our current place of residence AND the State/jurisdiction in which convicted?? I believe we are only required to register where we currently reside…… otherwise, Florida (conviction jurisdiction) would have a FTR warrant for me.

In general pressure for registration with original jurisdiction court tends to end when probation and parole issues are over — particularly when state courts are involved and you are outside state.

Even Florida if had concern over a registration violation after court supervision was over, the state probably would not file, due to the expense and extra legal difficulties of extradition. But you might well get unpleasant surprise if you ever return to state.

Federal convictions however are likely a different story. If FBI gets you on child porn, you better follow every technically for the rest of your life).

Well

I’ve read the article. The law is a mess! For myself, many of the laws are very confusing. You would literally need to be a lawyer to know who and what applies to who? I register annually and no one has ever mentioned my requirements for International Travel? So, I truly would have no idea many of these laws existed unless this website exhausted? For the layman, it’s all rather confusing. The laws need to change and I hope the new Tier Law changes things!

@ USA: Yes, it’s incredibly frustrating to me that we are simply expected *to know* of any and all new requirements & restrictions that apply to us. (Moreover, I believe most of these new laws are “strict liability”… which means, if I understand correctly, that your lack of awareness of a law or requirement cannot be used as a legal defense.)

Oral Arguments transcripts for Gundy can be found here on Oct 2, day of the arguments (This will lead you to the 2018 term when they get it posted): https://www.supremecourt.gov/oral_arguments/argument_transcript/2017

Oral Arguments recording for Gundy can be found here at the end of the week, Friday, Oct 5, after conference: https://www.supremecourt.gov/oral_arguments/argument_audio/2018#list

@TS:
Thanks for those links. I have a latent fear that Gundy will have to be re-heard, what with SCOTUS only having 8 when it first gets argued. Hopefully not, as that would mean it’s an issue that goes beyond ideological boundaries.

@AJ, I think the practice in the event of a SCOTUS 4-4 tie is that the judgement of the lower court is upheld. I don’t think they rehear the case. You’ll likely see a brief per curiam opinion stating that “The judgment is affirmed by an equally divided court.” And I believe it sets no precedent. SCOTUS would have to grant cert in a new case dealing with the same issue in order to decide it.

@CR: You’re right about the effect of a tied decision, but rehearings do happen. I’m of the mind that this is a significant enough case (fundamental Constitutional structure) that SCOTUS will grant rehearing–if they don’t simply reschedule instead. From Wikipedia (https://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States#Circulating_draft_opinions_and_changing_of_views, last sentence of section): Should the composition of the Court materially affect the outcome of a pending case, the justices will likely elect to reschedule the case for rehearing. SCOTUS Rule 44 (https://www.law.cornell.edu/rules/supct/rule_44) addresses the procedures for rehearing, and though not routine, it’s more common than one would think. Do a search of “SCOTUSblog rehearing” and you’ll get a… Read more »

As promised, the 2018 link to the transcripts:
https://www.supremecourt.gov/oral_arguments/argument_transcript/2018

You’re welcome @AJ. It’ll be interesting…

As of 1149a PDT, here is the Gundy oral argument archive file for your listening pleasure:

Gundy v. United States
Docket Number: 17-6086
Date Argued: 10/02/18
55:29 minutes long

https://www.supremecourt.gov/oral_arguments/audio/2018/17-6086

Grab a beverage, some snacks, a notepad with writing implement

Thanks! I’ve also found that Oyez has audio now, too. I like their version as you can read the text as it scrolls along with the audio. A very nice feature. https://www.oyez.org/cases/2018/17-6086

Thank you N. DIK for the second source. That’s handy to have.

I’d be interested to hear thoughts of those who listened to it if they’re willing to share.

I still don’t think the government made a strong case to retain status quo on non-delegation. If you have to reset 200k-300k regs, then so be it.

I listened to the recording. Very interesting and informative for the first SCOTUS case listened too.

Thank you for the Federalist article/post about the upcoming Gundy arguments. I found it to be very interesting and informative. I have to wonder what @AJ, et al, think of it.

@Biol57: Thanks for that Federalist URL. A bit of a weighty read at times, but certainly worthwhile. I’m still of the mind that SCOTUS is going to stiffen the Non-Delegation standards some. (Why else take it, since the 2nd already affirmed status quo?) The only real question I have is whether it will do it just on the criminal front, or civil as well (I desperately hope for both). I think it’s worth considering what Justices voted to hear this case. Thomas and Gorsuch absolutely must have voted yes, and I suspect Ginsburg did as well given her having joined… Read more »

@AJ I speculate Kennedy voted “yes” because he knew he was going to retire and wanted to see what the new court would do without him in place with such a huge prize in the offing. Did he know Kavanaugh was going to be the nominee? IDK obviously, but he could theorize what he may say and vote if he was, given Kavanaugh clerked for Kennedy. If Kennedy stayed, then I see him doing what you say about strengthening the rule given the environment today with it as is. Of course, speculative there too since he is not there. The… Read more »

Intriguing. Every time I log onto this site, I read some very intelligent and non intelligent comments. I’ve read comments, attachments, people giving others legal advice and so on. Yet, who really cares about the legal briefs or opinions given by judges/lawyers etc? Does it really matter? As noted, I would be doing anything and everything I could do to get my charge reduced to a misdemeanor/expunged to get my case reduced and so on? We can talk/give opinions and etc, but unless we somehow get involved, it’s simply a waste of time! The recent new law enacted in Nevada… Read more »

Hey, USA, can’t agree with you more. What good is talking here except to motivate us to do something real and effective not just abstract. I am not talking about running off filing lawsuits or whatever individual acts of retribution we can think of helter skelter. That, in my view just exposes us to be picked off one by one. Only coordinated action is going to bring lasting results. Re: Bayard Rustin, the greatest registrant organizer, though few know of him working in the shadow of MLK. Most of us can’t do much, but together can make up for our… Read more »

@USA: “Yet, who really cares about the legal briefs or opinions given by judges/lawyers etc? Does it really matter?” —– Anyone wishing to file his/her own case should care about Opinions, as they show where strengths, weaknesses, and similarities lie. So yes, they absolutely matter! Do you not see the value of Snyder to those outside the 6th? Do you not see the value of Muniz for those outside PA? ===== “I would be doing anything and everything I could do to get my charge reduced to a misdemeanor/expunged to get my case reduced[.]” —– Reduction and expungement are not… Read more »

@Tim Moore & @USA I am going to add on to what @AJ said here and note for you, both, et al, that there are many here that read the legal and case related postings for our interests, legal wranglings, and to help others who access this website and forum. At the same time, there are possibly other RSOL org’s who are doing similar case research and any nugget of info that helps a case is a good nugget, regardless of what court room it is in around the country. You never know how a case somewhere else outside of… Read more »

@TS:
“I know for a fact there is a case across the country…looking for data from ANY registrant on how the registry has negatively impacted them.”
—–
I don’t recall seeing anything about this request. I can figure out the locale, despite your vague clues 😉 , but how to contact? By emailing P. Dub.? I know that person’s email address, so could and would reach out. TIA for any insight.

@AJ The request is through the North Carolina affiliate of the national SOL org that wants this info for a brief being generated to submit in support of a case being appealed to SCOTUS by a collegiate entity on behalf of the appellant (https://caselaw.findlaw.com/nc-court-of-appeals/1876143.html). There was an email request I received (I think a mass email blast from the national org mailing list) to which I replied with my data while thinking the CA folks (and others who read the ACSOL forum outside of CA) would possibly have interesting applicable experiences to share (much like Millard, et al, did in… Read more »

@TS:
Got it. Thanks!

USA, for one of the rare moments I hear ya. That is exactly right, people need to get to the courthouse and bombard the court with petitions against this new BS. They need to file against every thing but especially every time they up the ante like this. Absolutely arbitrary with no public benefit.. File File File that is my motto…Also like I stated who cares if the suits just get dismissed, even better that way no amateurs get to go far enough to set bad precedent, Sure as hell would cost the state millions and create chaos in the… Read more »

Here is a link to today’s oral argument. Gorsuch is solidly on the “our” side. The other justices are a bit hard to read where they sit on this issue.

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-6086_9ol1.pdf

Thanks for the link. Interesting read. Will be interested to read what @AJ, @chris, @notoriousDIK, et al have to say about this. There are many terms here which have been discussed here many times previously and possibly some paths to take in future cases, IMO, but I wouldn’t know how to apply them. I would also say in the name of public interest, a recurring theme in this doc, “Use the damn stats and studies which have been done over the duration to show the real damage and places of interest which need to be watched!” I yield the rest… Read more »

I agree that Gorsuch is on ‘our’ side. My reading is that at least Sotomayor is also. The others were less clear, but they don’t always signal where they will come down.

What I will say is that the attorney arguing on behalf of Gundy, was VERY well prepared.

Gorsuch: “I’m having trouble thinking of another delegation in which this court has ever allow the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute.
We say that mate criminal laws must be stricken. We’ve just repeated that last term. What’s vaguer than a blank cheque to the Attorney General of the United States to determine who he’s going to prosecute?” Page 16, Line 7.

(Hooray, it only took 16 pages to get to what should have been clear from the beginning!) 😡

I hope I’m 100% incorrect but after swallowing aspirin and achieving a pain in my neck and a headache reading through the arguments and I’m far from a legal schooler my take on the constitutionality of this is that the constitution is vague in this area that subjects this area of the constitution to be very subjective thus i see a 6 – 2 vote and nothing changes.

JUSTICE GINSBURG: “So he — he has to know what the Attorney General’s regulation is?
There’s no notice given to these people. They can be charged with — with failure to register, even though nobody — no one ever gave them notice that they had to register?” Page 40, Line 9.

Thabk you, RBG! We are supposed to somehiw, magically, be aware of every new requirement and restriction …. and are held responsible for any gailure or infraction…. as if we are omniscient beings!! 😡 That “Well, of course, they’ll just know” attitude has always pissed me off!!!

There seems to be a two-fold problem with RBG’s assertion: Lambert v. CA and SORNA’s §20919. Regarding §20919, I wonder if paragraph (b) could be what SCOTUS hangs its hat on shoot down Gundy’s challenge.

@AJ I’ll bite on this. So what are you saying? 34 U.S. Code § 20919 – Duty to notify sex offenders of registration requirements and to register https://www.law.cornell.edu/uscode/text/34/20919 (b) Notification of sex offenders who cannot comply with subsection (a) The Attorney General shall prescribe rules for the notification of sex offenders who cannot be registered in accordance with subsection (a). What is exactly prescribe? https://legal-dictionary.thefreedictionary.com/prescribe prescribe (verb) administer, advocate, bid, charge, command, conduct, control, decide, decree, demand, dictate, direct, enjoin, exact, exercise authority, give a directive, give a mandate, give an order, give directions, guide, impose, instruct, issue an order,… Read more »

@TS: My point was that RBG’s question (“They can be charged with — with failure to register, even though nobody — no one ever gave them notice that they had to register?””) is already answered both by case law (Lambert v. CA, https://supreme.justia.com/cases/federal/us/355/225/) and by SORNA itself. That answer is–or at least should be–“no.” As for how SCOTUS could use paragraph (b) to shoot down Gundy, it’s a thin, winding path, so bear with me. But it boils down to how “sex offender” is defined in 20911 and the three types of people in 20919 (in custody, freshly sentenced, everyone… Read more »

@AJ

Twisted but understood. I hope it doesn’t come down to that line of thinking though…

Man this case is stupid waste of tax payers money and valuable resources on both sides. I like the feeling I get out of the justices comments and such but the foundation of this case is just a statutory language issue in that the Feds did not specifically tell the AG to apply the federal law retro-actively. I did not even bother reading the entire thing but that is the opinion that I am assuming is going on from some of the comments on here. Has no real meaning for state registries, and all the legislature has to do is… Read more »

Does not consider constitutionality of any laws. The only question is if the AG can make the rules or if congress has to spell it out in the language. Correct?

The question in Gundy considers the constitutionality of the process by which the law that Gundy challenged was created. The process, in this case, was that Congress delegated authority to the AG to write the regulations (laws) to implement SORNA. Gundy (and every amicus brief filed on this case) contend that Congress went too far with the delegation of authority to the AG, because it permitted the AG to define the crimes that it also prosecutes. This case is important because the Constitution vests law-making authority solely with Congress, yet Congress routinely (as in nearly always) delegates some portion of… Read more »

@CR – It’s how I pretty much feel about this as well. I mean, if I was one of the people who was brought back into the system because of this mess, I’m sure I’d feel different, but as a whole, this doesn’t seem like it’ll do much either way. It’s frustrating seeing these technicality cases. It’s like, we have this thing where a particular group people are lynched regularly. Rather than addressing that this lynching is wrong, we get case after case where they’re instead discussing whether or not Congress properly dotted the I’s and crossed their T’s in… Read more »

Is this even going to work? I mean congress gives the states incredible leeway in how they can apply regulations all the time, right? I guess I am going to have to read the docs.

@Mike R – What you said was actually the argument by the attorney arguing the case for Gundy. The People’s Attorney was arguing the sky is falling because all these hundreds of thousands of offenders will surely re-offend now (because they were waiting for just the right moment the past 50+ years to do so and SORNA just barely recaptured them in time!) and she’s saying SORNA doesn’t matter because the states already have their own laws on this and this case won’t change that.

Did anyone notice on page 55 that the government’s attorney referred to registrants as “these people”? That is the same language used during the Civil Rights era to refer to African Americans. The purpose for using the term “these people” is that it identifies a group of people as “other” than those in the mainstream and therefore acceptable targets for shame and punishment.

America has a long and sordid history of needing a ” those people” to hate, fear, control, and legislate against with impunity. History is replete with examples. Indians, witches, African Americans, Japanese, gays, and now us. Now that it’s no longer okay to discriminate against people for their skin color or sexual orientation, another category had to be created, in this case people who once committed specific types of offenses (but have supposedly paid their debts). I imagine when we are no longer the fashionable pariahs, it’ll be some other group of “those people.”

Absolutely right. People are terrible and awful to commit $EX crimes. And people are terrible and awful with how they treat other people in general. Humanity pretty much sucks overall.

But the U.S. seems to be exceptionally self-righteous. I think that most of the people who support the Registries really do need piles and piles of actual terrible problems that they should have to deal with so they can learn to take care of themselves and mind their own damn business. People in the U.S. simply do not have enough real problems.

Now that you mention it, I’ve heard “these people” used quite a few times.

Oh yes, Janice, I absolutely noticed and red flagged “these people”. But I also sensed some recognition on the Justices’ part that there are some serious concerns here that will impact 200,000 – 300,000+ individuals … some of whose convictions may be from 30 years ago. Maybe even some sense that all of this registration BS has gotten out of hand.
(And, by the way, how are these individuals notified of a new registration requirement?
Well, they’re obviously informed by the U.S. AG himself while they play a round of golfing together, is that it?? 😡)

I think there is too much focus on the retroactivity of it. Nearly all of the laws are not acceptable for anyone convicted of these crimes today. If we want to monitor and control people who are on probation or parole, that is good. Beyond that, forget about it. And if they can’t forget about it for some pathetic reason, they need to at least expand it to ALL crimes. Otherwise, they will continue to have zero credibility and continue to just be the criminals that they are.

@David

Where are your 200,000-300,000 people coming from? In the court transcripts it is 200,000-300,000 regulations the Justices were discussing.

@ TS: Huh? The “200,000 – 300,000” refers to all individuals with pre-SORNA convictions who are affected by the retroactive application of SORNA requirements.
It refers to all those individuals, like myself, whose convictions occurred years before SORNA was created.

@David

In the transcript, 1) 4,000 convictions are mentioned as being impacted by this delegation authority as well as 2) a half million people, and 3) 200,000-300,000 regulations.

You introduced an outside of the transcript similar number (200,000-300,000) of a different specificity (pre-SORNA retroactive people) into the conversation, which lead to my questioning. The transcript does not call out 200,000-300,000 folks like yourself specifically who are impacted. However, I can see how your number is probably folded into the half million people Justice Gorsuch mentioned. Make sense? Thanks for clarifying your number.

My favorite passage in this oral argument comes from Gundy’s attorney who says on page 62 that “This is not civil rule-making. This is the retroactive application of criminal law penalties that affect individual liberty interests in the most profound way.” She speaks the truth!

It’s interesting how everyone calls it like it is except officially on paper were it matters. I wish SCOTUS was less complacent in correcting obvious errors of the past. I know I’ve said it before, but had Earth been ruled “flat” in court, it would still be so officially. We have a pretty poor system of law when it takes this much time and effort to correct a blatant mistake that effects millions of people in the worst way possible.

I found this part interesting as well. So both comprehensiveness as moderated by some flexibility — some — some feasibility constraint seems in the statute “as long as you’re taking the statute as a whole.” This is argued in my case and is an important statement as it strengthens AJ’s and my argument. The 6th Circuit, being similarly bound by Smith, conducted de novo review and considered the cumulative effect of SORA, rather than separately assessing each disability and burden and then finding it inconsequential. Another words, taking the statute as a whole. Including all aspects, whether embedded in the… Read more »

I’ve read the SCOTUS transcript…and here is my take on all this. Both sides argued very well and were prepared. The only exception to that was at the end of the government attorney’s time when he went on about how a decision favoring Gundy would let loose numerouse sex offenders and exaggerated about sex offender safe zones comprising of numerous states. That was complete BS and mostly addressed in the following rebuttal about how states control over who is on or not is not affected at all by a decision here. Otherwise, the government attorney did a good job explaining… Read more »

I was just listening to the oral arguments in Gunday (for a second time). It is so aggravating that they are going back and forth on stuff like this when the bottom line is that “these people” – as we are repeatedly referreed to – have an extremely low recidivism rate!! And yet “those people” in government are wasting all of this judicial time and legislative time on restrictions, retroactivity, which sections of the statute might apply to which ex-offenders, etc. In light of the incredibly low recidivism rate, it is absolute madness and Incredibly frustrating to be wasting all… Read more »

⭐⭐⭐ VERY USEFUL! ⭐⭐⭐
Here’s a great site for hearing (and seeing*) the Gundy oral arguments:

https://apps.oyez.org/player/#/roberts9/oral_argument_audio/24617

*The photo off the SCOTUS Justices at the top of the website will highlight whichever Justice is speaking/asking the question.

“Jeffrey B. Wall

I think, as — as long as it’s done the things it did here, it’s created the crime, it’s defined the elements — ”

congress created the crime hummmm

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