{"id":2957,"date":"2008-12-28T11:38:52","date_gmt":"2008-12-28T16:38:52","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=2957"},"modified":"2008-12-28T11:40:35","modified_gmt":"2008-12-28T16:40:35","slug":"seventh-circuit-week-in-review-limiting-the-reach-of-the-adam-walsh-act-a-little","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2008\/12\/seventh-circuit-week-in-review-limiting-the-reach-of-the-adam-walsh-act-a-little\/","title":{"rendered":"Seventh Circuit Week in Review: Limiting the Reach of the Adam Walsh Act (a Little)"},"content":{"rendered":"

\"\"<\/a>The Seventh Circuit had two new opinions in criminal cases this week.\u00a0 The first,\u00a0United States v. Sims<\/a> <\/em>(No. 07-3798),\u00a0presented a routine Fourth Amendment issue, with the\u00a0court upholding a challenged search warrant over the defendant’s objection that police officers failed to disclose important information when they obtained the\u00a0warrant.<\/p>\n

The more notable\u00a0case of the two was\u00a0United States v. Dixon<\/a> <\/em>(No. 08-1438), which considered the sex offender registration provisions of the Adam Walsh Act.\u00a0 Passed in 2006, the Walsh Act did not invent sex offender registration (which was first done at the state level), but it did substantially increase federal regulation in the area.\u00a0 Among the most controversial (and heavily litigated) features of the Walsh Act has been its creation of a new federal crime for sex offenders who cross state lines and fail to register in the new state.\u00a0\u00a0Concerns focus on the retroactive reach of the new law, with\u00a0some cases indicating that offenders can be punished on the basis of interstate travel that occurred prior to the statute’s enactment.<\/p>\n

In Dixon, <\/em>the Seventh Circuit took its turn grappling with the retroactivity issues.<\/p>\n

The Walsh Act instructed the Attorney General to determine the applicability of\u00a0its registration requirements to people who were convicted of sex offenses before the statute was passed.\u00a0 Dixon was in this category (as was Carr, whose case was\u00a0consolidated with Dixon’s for decision by the Seventh Circuit).\u00a0 The Attorney General issued a regulation on February 28, 2007, making the registration requirements applicable to those convicted of pre-Act offenses.\u00a0 Dixon and Carr were both charged shortly thereafter for failing to register following interstate travel.<\/p>\n

Following their convictions, they raised a number of retroactivity issues on appeal.\u00a0 First,\u00a0Dixon argued that the\u00a0law did not cover people who traveled before the Walsh Act’s passage.\u00a0 The Tenth Circuit recently\u00a0adopted this interpretation of the\u00a0statute in United States v. Husted<\/em>, 2008 WL 4792339.\u00a0 However, the Seventh Circuit (per Judge Posner) was surprisingly dismissive of the Tenth Circuit’s opinion, expressly creating an intercircuit conflict — Supreme Court (and student authors looking for good comment material) take note!\u00a0 The Seventh Circuit reasoned:<\/p>\n

The evil at which [the statute] is aimed is that convicted sex offenders registered in one state might move to another state, fail to register there, and thus leave the public unprotected.\u00a0 The concern is as acute in a case in which the offender moved before the Act was passed as in one\u00a0in which he moved afterward.<\/p><\/blockquote>\n

“As acute”?\u00a0 Possibly, although there are also countervailing fairness concerns with interpreting a statute such that it punishes\u00a0people based on conduct performed prior to the statute’s passage — concerns embodied in the principle that, when in doubt,\u00a0statutes should be interpreted so as to minimize their\u00a0retroactive effect.\u00a0 Although the Tenth Circuit relied on this principle of statutory construction in Husted, <\/em>the Seventh Circuit indicated that it provided no greater protection than the constitutional prohibition on ex post facto laws (discussed below).\u00a0<\/p>\n

The Seventh Circuit was even more dismissive of Dixon’s argument that the failure-to-register crime exceeded Congress’s power under the Commerce Clause.\u00a0 Despite the court’s analysis, there actually are some difficult Commerce Clause questions here, which\u00a0are nicely explored by Professor Corey Rayburn Yung of John Marshall in a forthcoming\u00a0article<\/a>.\u00a0 (This article is part of a new issue of the Federal Sentencing Reporter<\/em>\u00a0that I am currently editing.\u00a0 The whole issue is devoted to recent developments in punishing and regulating sex offenders, with a particular focus on the Walsh Act.\u00a0 Look for it in February!)<\/p>\n

Finally, we get to the ex post facto analysis.\u00a0 The court stated the test this way:<\/p>\n

If all the acts required for punishment are committed before the criminal statute punishing the acts takes effect, there is nothing the actor can do to avoid violating the statute, and [the Ex Post Facto Clause is violated].\u00a0 But\u00a0by the same token as long as at least one of the acts took place later, the clause does not apply.<\/p><\/blockquote>\n

The failure-to-register law punishes the combination of three acts: (1) the underlying sex offense, (2) interstate travel, and (3) failure to register after the interstate travel.\u00a0 (Query whether #3 is truly an “act” — but the Seventh Circuit assumed as much without discussion.)\u00a0 For Dixon and Carr, the first and second acts occurred before passage of the Walsh Act.\u00a0 So, the only real\u00a0question was whether their failure to register occurred after the effective date of the law (which, for them, was February 28, 2007, when the Attorney General first made the law applicable to them).\u00a0 The court noted, though, that it would not be permissible to deem their failure to register to have occurred on February 28 itself; rather, there must be\u00a0a “reasonable time” given for registering.\u00a0<\/p>\n

So, as happens so often in the law, we are left to decide what it means to be “reasonable.”\u00a0 The court declined to provide any bright-line test, but did hold that Dixon must be acquitted, while letting Carr’s conviction stand.\u00a0 The difference?\u00a0 Dixon was charged with failing to register “from on or about February 28, 2007 to on or about April 5, 2007.”\u00a0 Carr, on the other hand, admitted that he had still failed to register “on or about July, 2007” — about five months after the Attorney General’s regulation was issued.\u00a0 “Five months is a sufficient grace period. . . . Carr had a reasonable time within which he could have registered. . . . [H]is rights under the ex post facto clause were not violated.”\u00a0 Thus, while the Seventh Circuit has limited the reach of the Walsh Act a bit in Dixon<\/em>, there is a clear\u00a0outer bound: sex offenders must have registered within five months of the law’s effective date (and, as future cases may decide,\u00a0perhaps even sooner).<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit had two new opinions in criminal cases this week.\u00a0 The first,\u00a0United States v. Sims (No. 07-3798),\u00a0presented a routine Fourth Amendment issue, with the\u00a0court upholding a challenged search warrant over the defendant’s objection that police officers failed to disclose important information when they obtained the\u00a0warrant. The more notable\u00a0case of the two was\u00a0United States […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,23],"tags":[],"class_list":["post-2957","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2957","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=2957"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2957\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=2957"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=2957"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=2957"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}