Lifetime Registration for Sex Offenders Limited to Recidivists

The lifetime sex offender registration requirement that applies to persons convicted of “two or more” sex offenses does not apply to offenders who have multiple charges in their first prosecution

A.S. v. Pa. State Police, 2016 BL 263364, Pa., No. 24 MAP 2014, 8/15/16

Commonwealth v. Lutz-Morrison, 2016 BL 263370, Pa., No. 28 MAP 2015, 8/15/16.

   The Pennsylvania Supreme Court clarified the state’s rule that places a sex offender on a lifetime registry for committing two or more sex offenses, now only requiring sex offenders who have been prosecuted two or more times to be placed on the registry. Before, state police were requiring first-time sex offenders with multiple charges to register with the lifetime sex offender registry in the state.

   The court found that the lifetime registration should be reserved for repeat offenders who have failed to reform themselves, while first-time offenders and those who commit less serious crimes can still have a chance through rehabilitation. The court further held that the structure of the schemes, with the graduated tiers of registration requirements, reveal that the legislature had a “recidivist philosophy” in mind.

http://www.bloomberglaw.com/public/document/AS_v_Pa_State_Police_No_24_MAP_2014_2016_BL_263364_Pa_Aug_15_2016.

http://www.bloomberglaw.com/public/document/Commonwealth_v_LutzMorrison_No_28_MAP_2015_2016_BL_263370_Pa_Aug_.

Losing Ambiguous Text Messages Does Not Violate Due Process

A defendant's due process rights were not violated when the government failed to preserve text messages he had sent regarding the assault.

 

United States v. Harry, 2016 BL 58901, 10th Cir., No. 14-2160, 2/29/16

     During an investigation, incoming text messages were recovered from the defendant's phone, but the prosecution was unable to obtain any outgoing text messages. The defendant argued that the outgoing messages were exculpatory, and the prosecution's failure to preserve them violated his due process rights.

     The court ruled that the failure to preserve evidence violates due process only if the evidence was exculpatory and its exculpatory value was apparent before its loss. If the evidence was not obviously exculpatory but "potentially useful" the failure does not violate due process, absent bad faith. Here, the exculpatory value was not apparent, and there was no evidence of bad faith.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Harry_No_142160_2016_BL_58901_10th_Cir_Feb_29_201?1457718203

Indian Tribes Have Extraterritorial Jurisdiction

"Indian tribes have the inherent sovereign authority to try and prosecute members of the basis of tribal membership even if criminal conduct occurs beyond a tribe's Indian country."

 

Kelsey v. Pope, 2016 BL 797, 6th Cir., No. 14-1537, 1/5/16

    One of the council members of the Little River Band of Ottowa Indians sexually assaulted one of the Band's employees at a tribal event. Even though the attack did not occur on reservation land, the U.S. Court of Appeals for the Sixth Circuit ruled that the tribal court may try the defendant.

    The court's opinion said that "Indian tribes have the inherent sovereign authority to try and prosecute members on the basis of tribal membership even if criminal conduct occurs beyond a tribe's Indian country."

    The court cited the US Supreme Court's decisions in United States v. Wheeler (1978), and Duro v. Reina (1989), as well as the Ninth Circuit's decision in Native Village of Venetie et al v. Alaska (1991), which indicated that tribes possess sovereignty over both their members and their territory. The court also added that the inherent sovereignty of Indian tribes predates the Constitution, and is neither derived from nor protected by that document.

http://www.bloomberglaw.com/public/desktop/document/Kelsey_v_Pope_No_141537_2016_BL_797_6th_Cir_Jan_05_2016_Court_Opi?1453142263

Congress Expansion Over Federal Inmates in Local Jail is Constitutional

Congress may make it a crime for federal inmates to commit sexual assaults while being held in state or local facilities.

 

United States v. Mujahid, 2015 BL 276994, 9th Cir., No. 11-30276

    The Ninth Circuit Court of Appeals ruled that the 2006 expansion of federal jurisdiction to cover state or local facilities housing federal prisoners falls within Congress's power. The expansion does not usurp state authority, and is within Congress's power to enact laws that are "necessary and proper" to ensure that federal prisoners are incarcerated in an orderly and safe manner.

    The necessary and proper clause allows Congress to enact laws that are rationally related to the implementation of its enumerated powers, the court ruled. The court determined that the expansion of jurisdictional reach of 18 U.S.C. §§ 2241 and 2244 to include sex offenses occurring "in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General," indicating that this is a modest addition to a long history of regulation in this area.

    The court continued, "[a]lthough the state courts already criminalize this type of conduct, Congress didn't overreach merely by implementing a system that is "concurrent and complementary."

    “Congress has long been involved in legislating the terms of federal imprisonment,” and this extension is reasonably adapted to Congress's power to act as a “responsible federal custodian,” the court said.
 
http://www.bloomberglaw.com/public/document/United_States_v_Mujahid_No_1130276_2015_BL_276994_9th_Cir_Aug_27_