Judge frees out-of-state sex offenders
He rules that making them register if they move to another state is unconstitutional.
Jim Leusner Sentinel Staff Writer
April 19, 2008
An Orlando federal judge has ordered the release of two jailed, out-of-state sex offenders who moved to Florida, ruling that part of the Adam Walsh Act requiring their registration is unconstitutional.
U.S. District Judge Gregory Presnell on Friday ruled that the 2006 federal law requiring state sex offenders to register with law-enforcement officials when they move across state lines was largely a local issue.
The ruling, made in two unrelated sex-offender cases pending in Orlando, led to the dismissal of charges against Robert D. Powers, 43, and Tommy William Buckius, 60, both of Orlando. Powers was released Friday from the Seminole County Jail, but Buckius remained in the Orange County Jail.
Powers was convicted in 1995 in South Carolina of sexual assault, freed in 1997 and later arrested for failing to register as a state sex offender. In 2002, he registered in North Carolina but absconded in 2005 and did not register with Florida authorities when he repeatedly visited Orlando in the late 1990s and lived with his mother in 2007.
Buckius, who pleaded guilty to the attempted rape of a 13-year-old Ohio girl in 1986, was freed from prison there in 2000 and later registered as a sex offender. He previously was convicted of assault with intent to commit rape in Texas in 1973, court records show.
But in November 2006, Buckius moved from Liverpool, Ohio, and did not notify local authorities of his new address. He was documented living in Orlando as early as March 2007 and arrested in February 2008.
Assistant Federal Public Defenders Michelle Smith and Stephen Langs argued that Congress lacked the authority to force state sex offenders solely convicted of local offenses to register.
Powers had an IQ of 68, a second-grade reading level and did not understand state sex-offender forms he had signed, Smith argued.
They also contended both men were convicted of crimes before the new law was passed and should not be subjected to them. But federal prosecutors argued that an Attorney General's rule applied to sex offenders before the new took effect in 2007.
Known as the Sex Offender Registration and Notification Act, it was passed in honor of Adam Walsh, a South Florida boy killed in 1981. It was designed to help identify up to 200,000 unaccounted-for sex offenders nationwide.
Failing to register carries a prison term of up to 10 years. The law requires states to notify all sex offenders in or out of prison about the federal provision, but Florida has yet to comply with the new federal rules deadline of July 2009.
"The Adam Walsh Act was enacted with a commendable goal -- to protect the public from sex offenders," Presnell wrote. "However, a worthy cause is not enough to transform a state concern [sex-offender registration] into a federal crime."
Ironically, three other Central Florida federal judges have upheld the law's constitutionality in other cases, though one last year said he wished he could have dropped the case the next day if the suspect had registered. He sentenced the suspect to probation.
Presnell's problem with the federal law centered on the "mere unrelated travel in interstate commerce" to link it with local criminal conduct. Such reasoning would subject virtually all criminal activity to federal scrutiny, he wrote."
Surely, our founding fathers did not contemplate such a broad view of federalism," Presnell wrote.
Jim Leusner can be reached at firstname.lastname@example.org or 407-420-5411.
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