Dodging Due Process: How United States v. Dodge Pushes the Limits of Civil Regulation

IntroductionThe Sex Offender Registration and Notification Act (SORNA)1 is found under Title I of the Adam Walsh Child Protection and Safety Act of 2006.2 President George W. Bush signed the Adam Walsh Act into law with the promise that it would "strengthen Federal laws to protect our children from sexual and other violent crimes, . . . help prevent child pornography, and . . . make the Internet safer for our sons and daughters."3 SORNA itself contains the stated purpose of protecting the "public from sex offenders and offenders against children."4 Although protecting the country's children is of the utmost importance, after the 2010 decision by the U.S. Court of Appeals for the Eleventh Circuit in United States v. Dodge, courts may have to be careful that zeal for punishment does not overshadow the basic rights of defendants subject to SORNA's registration requirement.5In Dodge, the Eleventh Circuit, sitting en banc, held that in determining whether a defendant committed a registerable sex offense under SORNA, a court can look beyond the elements of the defendant's statute of conviction to his underlying conduct.6 Thus, defendants convicted of crimes with elements that do not match SORNA's definition of a sex offense may still have to register as sex offenders if courts determine that their underlying conduct constituted a registerable sex offense. 7Part I of this Comment provides a brief description of SORNA and what it requires of registered sex offenders.8 Part II examines the facts of Dodge and the Eleventh Circuit's reasoning in upholding the district court's non-categorical approach to sex offender registration.9 Finally, Part III suggests that the Eleventh Circuit's holding in Dodge may raise due process concerns under the Sixth and Fourteenth Amendments.10I. SORNASORNA is the most recent installment in a series of federal sex offender registration laws.11 The first was the Wetterling Act, enacted in 1994, which required states to create sex offender registries.12 Since then, Congress has passed a series of laws adding registration and public notification requirements.13 Before SORNA was passed in 2006, states had substantial discretion in implementing their registration systems, leading to discrepancies between those systems and allowing offenders to avoid registration by simply moving from one state to another. 14 With SORNA, Congress sought to close those loopholes by setting out a uniform system of registration with stricter baseline requirements for states.15After SORNA, sex offenders must register in each jurisdiction where they reside, are employed, and go to school.16 They must register their social security number, addresses, and other personal information, 17 update any changes in registration information within three business days,18 and remain registered from fifteen years to life.19 They also must verify their registration information in person every three months to one year.20 In addition, offenders' information is published on the internet in a publicly accessible database21 and is provided to certain authorities, or anyone else who requests it, upon initial registration and whenever registration information is updated.22 SORNA also created a federal crime for failure to register, punishable by up to ten years in prison.23II. United States v. Dodge and the Non-Categorical ApproachDespite SORNA's attempts to create a clear and comprehensive registration system, questions have arisen about who exactly is required to register.24 In Dodge, the Eleventh Circuit grappled with the question of what qualifies as a registerable "sex offense" under SORNA.25 The appellant, Matthew Dodge, was originally charged with and pled guilty to transferring obscene material to a minor under 18 U.S.C. § 1470.26 Dodge, a thirty-three-year-old man, had sent indecent pictures and video of himself over the internet to someone he thought was a thirteen year-old girl, but who in fact was an undercover agent. …