Beyond all the gnashing of teeth and tearing of clothes over the various proposals to dismantle the Uniform Code of Military Justice in an effort to eliminate “sexual assault” in the military, there are some who envision a much more terrifying future.
Last month I noted (here and here) the Supreme Court’s consideration of United States v. Kebodeaux, No. 12-418. SCOTUSblog has a great writeup of the case in its argument preview here. In short, Kebodeaux was convicted by a special court-martial in 1999 of carnal knowledge, arising from a “consensual” sexual relationship with a 15 year old. He moved to Texas and registered as a sex offender, but failed to update his registration when he moved within Texas in 2007. He was arrested in 2008, indicted for violating the federal Sex Offender Registration and Notification Act (SORNA) (enacted in 2006), and convicted.
The district court denied a constitutional challenge to the application of the statute to Kebodeaux, and a panel of the Fifth Circuit affirmed. But then the Fifth Circuit reversed in a sharply-divided en banc opinion, finding that because Kebodeaux was unconditionally released after he served the sentence of the court-martial, the federal government lacked the power to “reassert” authority over him under SORNA when he only moved within a state. The Government then petitioned SCOTUS, which granted review.
So the federal government wants to preserve the constitutionality of SORNA as applied to pre-SORNA offenses. A fairly narrow question, right? Tell me if you think so after you read the following segment from the transcript of the oral argument before SCOTUS on Wednesday, April 17, 2013 (audio here).
Note: If you’re drinking coffee, put down the cup before you read further.
MR. DREEBEN (Deputy Solicitor General): Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.
JUSTICE ALITO: Yes.
MR. DREEBEN: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced. Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life. A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender. And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual. So that’s the criminal example that I believe is undisputed.
Now, suppose that the Federal Government didn’t actually get the sex offender while he was in the military. It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense. This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he’s out of the military. It’s enforcing the rules that were impressed upon him at the time while he was in the military.
Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.
JUSTICE ALITO: When you say in a civil proceeding, you mean?
MR. DREEBEN: Yes, noncriminal. Noncriminal.
JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.
MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.
JUSTICE SCALIA: So just — just more -more likely than not is the test.
MR. DREEBEN: That’s an acceptable level of proof for the civil law.
And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it’s a very small step, if any step at all, to SORNA.
For those with skeletons in their closets, now might be a good time to take your framed honorable discharge certificate off the wall…