The Sex Offender Registration and Notification Act (“SORNA”). is sure a full employment act for lawyers and judges. In the four and a half years since its enactment there have been numerous challenges to various parts of the act and we have not seen the end of it yet. SORNA attempts to insure that registration requirements are followed wherever a person required to register travels within the country.

Last week the Fifth Circuit Court of Appeals answered a number of questions about the act in United States v. Johnson. However as more circuits weigh in on various issues the splits become apparent and we can expect more questions to be submitted to the Supreme Court.

Johnson was convicted in Mississippi in 1995 of gratification of lust. ¹Gratification of lust is a sex crime requiring registration in Mississippi. Under SORNA, registration requirement follows you wherever you travel in the country.

He moved to Iowa and registered but he failed to register when he moved back to Mississippi in 2008. The following year he was convicted of failure to comply with SORNA

On appeal he raised seven issues: 1) lack of notice, 2) that SORNA exceeds Congress’ power under the Commerce Clause, 3) that giving authority to the Attorney General to decide whether to make it retroactive to cover acts occurring prior to its enactment violates the Non-delegation Doctrine, 4) “that the retroactive application of SORNA violates
the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to criminal prosecution for non-compliance, 5) that he cannot be convicted under the act because Mississippi has not enacted SORNA compliance legislation, 6) requiring the state to enforce Federal law violates the Tenth Amendment, and 7} the Attorney General violated the Administrative Procedures Act in developing regulations for the enforcement of the law on people convicted of sex crimes prior to the passage of the act.

Having considered some of the issues previously, the court only gave serious consideration to the last two issues. The Tenth Amendment by reserving certain rights to the states prevents the Federal government from directing the states to follow Federal law. However SORNA does not require the states to comply. By forfeiting ten percent of their Federal Criminal Justice allotment they can opt out of the program.

While the Fifth Circuit found that the Attorney General violated the Administrative Procedures Act by not waiting 30 days after publication of the regulation and by not obtaining comments prior to enactment of the regulations without good cause the court found the failure did not prejudice Johnson since the results would have been the same if the Attorney General had complied with the act.

The Supreme Court, Friday, for the third time in the last ten days reversed a grant of habeas corpus by the Ninth Circuit Court of Appeals. It ruled that the Ninth Circuit cannot use habeas corpus to enforce a state given right, not recognized under Federal law. The Federal habeas statute prohibits Federal Courts from granting writs of habeas corpus for violations of state law that do not guarantee Federal liberty interests supported by Supreme Court decisions. It states that the Supreme Court can grant writs of habeas corpus:

only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

The Supreme Court has not recognized a Constitutional substantive right to parole. It has ruled that if a states grants inmates a right to parole the state must procedurally provide for the inmate to be heard and the state must provide a statement of the reasons why parole is denied.

California court have ruled that in order to deny parole the state must have “some evidence” that the inmate is unsuitable for parole. Furthermore the state courts have rule that the some evidence standard must be met by current unsuitability. It is insufficient for the parole board or the governor to make a finding of unsuitability based purely on the gravity of the crime.

Damon Cooke was convicted of attempted first degree murder in 1991 and Elijah Clay was convicted of first degree murder in 1978 in California state courts. Both were given indeterminate sentences of seven years to life.

Damon Cooke and Elijay Clay filed writs in Federal Court challenging the Parole Board’s finding that there was some evidence that they were unsuitable. The Ninth Circuit granted both writs and the State appealed to the Supreme Court. The Supreme Court in its decision Friday ruled that the Ninth Circuit decisions must be reversed because there is no federal substantive right to parole and therefore Federal courts cannot review state denials of parole on the merits.

Ahmed Khalfan Ghailani the first Guantanamo detainee to be tried civilly was sentenced to life in prison yesterday after a trial on charges stemming from the bombing of the 1998 U.S. embassies in Tanzania and Kenya that killed 224 people by U. S. District Judge
Lewis Kaplan. A New York jury convicted him of one count of conspiracy to damage or destroy U.S. property and found him not guilty on 284 counts of murder and conspiracy.

Ghailani was accused of buying gas tanks and a truck used in the embassy attacks. He did not actually participate in the attack. He flew to Pakistan the day before the attack. ¹After the bombing he worked as a driver and a bodyguard for Osama Bin Laden.

The life sentence was not unexpected. The judge has said that he thought the government was the victim of a lenient jury. While some have questioned the not guilty verdicts on the 284 murder and conspiracy charges, the truth of the matter is that the jury has spoken. The government did not prove its case on the remaining 284 counts beyond a reasonable doubt. Part of this is due to the suppression of evidence seized as a result of torture and the failure to Mirandize Ghailani prior to interrogating him. But this is the law which protects due process and prevents coerced self incrimination. Unlike those who are upset with the not guilty verdicts because they assumed guilt regardless of the facts, the important thing is that Ghailani got a fair trial.

The problem with the sentence, however, is that it does not take into consideration the fact that he was found not guilty on 284 out of 285 counts. Ghailani would have gotten the same sentence if he had been found guilty on all of the counts. While the judge may think that he is guilty on all counts the jury only convicted on only one and a lesser sentence is appropriate based on the sole conviction of a relatively minor count.

The Ninth Circuit upheld a District Court grant of habeas corpus after California Governor Arnold Schwarzenegger overrode a California Board of Prison Terms recommendation that Fred McCullough be released on parole.

McCullough was convicted for the 1982 murder of John Kukis. Kukis was asleep in his car when Kukis hit him in the head, killing him, in order to steal money to buy drugs. He was sentenced to fifteen years to life. During his early years in prison McCullough had a number of disciplinary actions but eventually he became a model prisoner, earning a GED and a college degree in social work. He learned how to finish furniture and drive a forklift. He went to AA meetings and he volunteered for the juvenile offender deterrent program.

The District Court released him on his own recognizance when it granted his habeas. He immediately got a job for a furniture manufacturing company and has since been promoted to supervisor.

In denying him parole the governor found that “McCullough committed an especially heinous second-degree murder because he preyed upon and bludgeoned a sleeping, unsuspecting, and unthreatening man — ultimately killing him — for the remarkably trivial motive of stealing his money.”

But the Ninth Circuit found that the denial of parole can not be based solely on the convicting offense. It must be based on current dangerousness to the community. Finding that California law grants McCullough a due process right to be released on parole unless there is “some evidence” of current dangerousness the Court denied the State’s appeal. It cited the prison psychologist’s finding that McCullough was less dangerous than the average citizen. It found that a murder 28 years ago did not meet the “some evidence” rule for current dangerousness and it upheld the district Court’s decision.

Besides Alito’s plurality decision in McDonald v. Chicago there are concurring opinions by Thomas and Scalia as well as dissents by Stevens and Breyer. It was a 5-4 decision with Alito, Thomas, Scalia, Kennedy, and Roberts in the majority. The most interesting of the decisions is Thomas’. He agreed with the plurality that the Second Amendment applies to the states. But instead of basing his decision on the Due Process Clause of the Fourteenth Amendment, he based his decision on the Privileges or Immunities Clause.

During the Twentieth Century the courts incorporated most of the rights guaranteed by the Bill of Rights. They found that the Fourteenth Amendment required state governments to respect the rights found in most of the first eight amendments to the
Constitution. They did this by saying that the Due Process Clause incorporated the rights.

The problem with this interpretation is that the language of the Due Process Clause only applies to procedural rights and not to substantive rights. It states: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.] Thus it would apply to the procedural guarantee of the right to a jury but not to the substantive right guaranteeing the right to assembly or to bear arms. Scholars have long recognized this fiction.

The easy answer to the problem is that the Privileges or Immunities Clause governs the incorporation of the substantive rights. It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]” The language “privileges or immunities” is taken from Article IV, §2, cl. 1 of the Constitution which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” At the time the Constitution was written the term “privileges” was synonymous with the term “rights.” Thus on the face of it the Privileges or Immunities Clause guarantees that the states will not violate the rights that citizens of the United States are entitled to under the Federal Constitution.

But the problem with this is a long history of interpretation going back to the Nineteenth Century prior to any decisions involving incorporation. The Supreme Court in the 1873 Slaughter House Cases ruled that the Privileges or Immunities Clause only applied to those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws” and three years later in United States v. Cruikshank it ruled that the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because ‘the right . . . existed long before the adoption of the Constitution.’” Likewise it ruled that “the right to keep and bear arms was not a privilege of United States citizenship because it was not ‘in any manner dependent upon that instrument for its existence.’”

One of the cardinal rules of interpretation is that no section of a document is meaningless. There must be a reason for every section. Yet if you accept the Slaughter House Cases and Cruikshank, the Privileges or Immunities Clause is meaningless. It adds absolutely nothing to the document. So the question is why is the plurality opinion based upon the Due Process Clause where it obviously does not fit and not on the Privileges or Immunities Clause where it is a much better fit. The answer is “tradition” or to put it in legalese “stare decisis.” “Stare decisis,” according to my old edition of Black’s Law Dictionary means “to abide by, or adhere to decided cases” or, alternatively, the “[d]octrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same.” Alito’s plurality opinion says

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Thus no one is saying that Thomas is wrong. But the other justices are merely saying we have accepted this fiction for years and we see no reason to change it. But as Thomas says, “stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. . . . It is not an inexorable command.”

The Supreme Court, in what is probably its most important decision of the year, decided that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment’s right to possess a gun. The ruling prevents the states from passing laws prohibiting people from owning guns, although it leaves the door open for limited exceptions such as preventing convicted felon from owning guns.

The plurality opinion, written by Justice Alito, relying upon the Court’s Heller decision of two years ago, finds that the right of self defense is a fundamental right and that in order to maintain the right citizens must be allowed to have guns in their homes. In the process the Court found statutes in Chicago and Oak Park, Illinois which limited the right to possess guns to be unconstitutional.

In applying the Second Amendment to the states the Court reversed case law that has existed since the Nineteenth Century. The Bill of Rights originally applied only to the Federal Government. But after the Civil War the Fourteenth Amendment was adopted. Section One states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Several years after the Fourteenth Amendment was adopted the Supreme Court decided Cruikshank. In Cruikshank The Supreme Court exonerated a group of white men accused of killing a group of African Americans who dared to march through their hometown on the Fourth of July. Among the charges were depriving their victims of various constitutional rights, including the right to bear arms. The Supreme Court held that the Constitution does not guarantee the right to bear arms and therefore Cruikshank and his fellow murderers could not be convicted of depriving the African Americans of the right to bear arms.

The McDonald Court found a long history of self defense. It traces the common law right to the 1689 English Bill of Rights. In 1765 Blackstone call self defense “one of the fundamental rights of Englishmen,” At the Constitutional Convention both Federalists and Anti Federalists recognized the importance of self defense. By 1820 thirteen states recognized the right to bear arms in the state constitutions.

After the Civil War, southerners attempted to disarm African Americans, many of whom served in the Federal army. Congress fought back. The Freedmen’s Bureau Act of 1866, recognized

“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”

During the debate on the Fourteenth Amendment Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these,was the right to keep and bear arms: “Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

The test for incorporation is whether a right is is fundamental to our scheme of ordered liberty and system of justice. The Supreme Court found that based upon the history of the country and the history of the Fourteenth Amendment the right of self defense is fundamental to our scheme of ordered liberty and system of justice. As such Second Amendment right are incorporated into the Due Process Clause and are enforceable against the states.

In my last post we looked at a section of the Anti-terrorism and Effective Death Penalty Act (AEDPA) which made it illegal to “knowingly provide material support or resources to a foreign terrorist organization.” In that case the Supreme Court upheld the law against a claim that it violated due process by being vague. Today we are going to look at another case in which the Supreme Court last week ruled that a statute violated due process by be being vague.

In Skilling v. United States the Supreme Court vacated the conviction of former Enron executive, Jeffrey Skilling for conspiracy to conspiracy to commit “honest-services” wire fraud.

IN United States v. McNally the Supreme Court limited the crimes of mail fraud and wire fraud to those in which the perpetrator attempted to gain a material reward. Excluded were crimes that deprived the citizenry of good government. To ameliorate the situation Congress passed 18 US 1346 which defined the term “scheme or artifice to defraud” to include a scheme or artifice to deprive another of the intangible right of honest services. But in Skilling the Supreme Court found that the term, “honest services” to be vague. It covers many things and it is unclear exactly what is covered and what is not. Therefore it limited prosecution for honest services fraud to those involving bribes or kickbacks which it claims is the core of an honest services prosecution. The Due Process Clause’s void-for- vagueness doctrine requires that legislation be written

[1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

Since Skilling was charged with manipulating the stock market to artificially increase the value of Enron stock and there was no allegation that he received a bribe or a kickback, the conviction was vacated.

In dissent, Justice Thomas says that limiting Section 1346 prosecutions to those involving bribes or kickbacks does not fulfill the intent of Congress in passing the section. After all, Section 1346 was passed to fill loopholes caused by McNally and the defendants in McNally did not receive a bribe or kickback. While he agrees the statute does not stand up to the requirements of due process he would invalidate the law and let Congress start over again.

Several times we have discussed the habeas corpus related sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Today we look at another section of the act, 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” The AEDPA was part of Newt Gingrich’s Contract on America which was passed and signed by President Clinton following the bombing of the Oklahoma City Federal Building.

The Supreme Court held in Holder v Humanitarian Law Project that one can be convicted of a crime for violating 18 U. S. C. §2339B even if one does not intend to support the violent acts of a terrorist organization. The plaintiffs in Holder want to support the lawful, non-violent activities of a couple organizations who are considered terrorist organizations by the government.

The Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE) are on the Secretary of State’s list of foreign terrorist organizations. The plaintiffs filed suit asking that the government be restrained from enforcing the AEDPA against them for supporting the humanitarian and political goals of these organizations. They claimed that the material support provisions as applied to them would violate the First Amendment and the Due Process clause of the Fifth Amendment. The Due Process Clause is violated whenever the law is so vague that one cannot tell what conduct violates the law.

The Court pointed out that the terms of §2339B have been clarified several times to make them less vague. For example “training ” is defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge” and “expert advice or assistance” is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” With the definition in the legislation it is hard to say that the plaintiffs did not know what behavior is illegal.

The second, and more difficult issue raised by the plaintiffs is the question of whether the statute violates their freedom of speech under the First Amendment. As to the First Amendment’s guarantee of freedom of speech the court found that while many of the activities the plaintiffs want to perform such as training members of the PKK on how to use humanitarian and international law to peacefully resolve disputes, and teaching PKK members how to petition various representative bodies such as the United Nations for relief involve speech they also violate the law which forbids “training” and “expert advice or assistance.” The majority opinion by Chief Justice Roberts finds that the extreme danger that terrorist groups present justifies the limited impact upon free speech of the statute. It points out that the statute does not ban independent activities, only those that are coordinated with the alleged terrorist groups. These group have killed many people including Americans. Furthermore, our treaty obligations require that we inhibit the activities of these groups. The skills the plaintiffs want to teach PKK and LTTE can be used not only for good but also to promote terrorist activities. The terrorist organization can use any funds they receive as a result of the plaintiff’s activities are fungible and they may be used to promote terrorism.

The dissent by Justice Breyer stresses the high burden that the government must demonstrate standard before impinging on the right of free speech. It points out it is political speech that it is at issue and that the government’s burden is highest when it wants to prohibit political speech. As the dissent points out, “Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights.” Strict scrutiny is needed when the government denies freedom of speech on content grounds. The dissent further states that the government has failed to prove it’s “fungible” claim and the mere fact that speech may lend legitimacy to the organizations is insufficient reason to deny the plaintiff’s claim to freedom of speech.

The dissent suggests that since the statute bans “material” aid that it only bans that aid that promotes terrorism and it suggests remanding the case to determine whether or not the plaintiffs proposed actions aid the organizations to commit terrorist acts. It would hold that the statute is limited to banning support for terrorist actions and not peaceful actions committed by groups on the Secretary of State’s list.

As President Kennedy said: “There is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment.”

The Sixth Circuit Court of Appeals granted a writ of habeas corpus to Lewis Gagne after the trial court excluded prior sexual activity of the victim in a rape case pursuant to Michigan’s rape shield law.

While the rape shield law is not per se unconstitutional the court’s exclusion of prior evidence of group sex in which Gagne, the complainant, and others participated, in this case, violated Gagne’s constitutional right to present a defense.

Gagne and Donald Swathwood were convicted of raping Gagne’s ex-girlfriend, Pamela Lewis. Prior to trial Gagne’s attorney moved to allow three instances of group sex involving Gagne and Clark into evidence. The first instance involved Swarthwood also and the court allowed it to be used. Clark said she could not remember the incident and the prosecutor argued that it did not exist. The other two incidents, one involving a man by the name of Bermudez, and the other involving an invitation by Clark to Gagne’s father to join Clark and Gagne in sex were excluded. The excluded incidents, unlike the incident involving Swathwood, could have been proved by outside witnesses. There were no witnesses to the charged rape and no physical evidence. The only issue was consent.

In Crane v. Kentucky the Supreme Court ruled that trial courts cannot exclude evidence, the denial of which, denies the defendant “a meaningful opportunity to present a complete defense.” The Anti-Terrorism and Effective Death Penalty Act of 1996 limited the use of the writ of habeas corpus in Federal Courts to challenge state convictions. But the writ may still be granted if a state court violated a United States Supreme Court decision or if it unreasonably applies a Supreme Court decision. In this case the Sixth Circuit found that the Michigan courts unreasonably applied Crane by denying Gagne the right to introduce crucial evidence supporting his defense. The court found, not only, was the evidence of prior instances involving Clark and Lewis relevant but the admission of the evidence would not overly violate the state claims in enacting the rape shield statute. In fact the statute had an exception for prior sex acts involving the defendant. While the evidence that Gagne wanted to introduce involved either the sex acts between Lewis and third parties or her invitation to a third party to join in their sex acts the evidence was close enough to the exception as to limit its negative effect on the state’s interest.

The Supreme Court, yesterday, reversed the denial of a writ of habeas corpus by the Eleventh Circuit Court of Appeals on the grounds that the Circuit Court failed to consider all possible exceptions to the rule that an appellate court accepts the facts as found by the trial court. In this case, which predated the Antiterrorism and Effective Death Penalty Act of 1996, the appellate court adopted the factual findings of the lower court. While generally appellate courts must accept the facts as found by the trial court 28 USCA 2254(d) names eight exceptions to the rule:

“(1) that the merits of the factual dispute were not resolved in the State court hearing;

“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

“(3) that the material facts were not adequately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

“(7) that the applicant was otherwise denied due process of law in the State court proceeding;

“(8) or unless … the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record .” §2254(d) (emphasis added).

Jefferson was charged with murder of a co-worker on a fishing trip.

As a child, Lawrence Joseph Jefferson suffered major head damage when he was run over by a car. While it is disputed, his trial attorney claimed that an expert told him that it was not necessary to investigate the injury prior to trial. Only minimal evidence was introduced about the injury either at trial or at the sentencing hearing. The habeas alleges that trial counsel was incompetent for not fully investigating the effect of the injury on Jefferson’s behavior. Furthermore in considering the habeas the state court considered only whether or not Section 2254(d)(8) (see above) applied. It found that the factual determination was fairly supported by the record and therefore it denied the habeas.

But there was another issue the court did not consider. After the state court hearing on the habeas the trial court had an ex parte meeting with the prosecutor and asked the prosecutor to draft the decision. Not only was Jefferson not told about the ex parte meeting but his attorneys were neither given the chance to draft an order or to review the prosecutor’s before it was accepted in toto. Thus the state court did not consider whether the trial court may have violated Section 2254(d)(7) and denied Jefferson due process. The Supreme Court vacated the Circuit Court’s decision and remanded the case for further consideration.