United States v. Kebodeaux
570 U.S. ___ (2013)

Annotate this Case



No. 12–418



on writ of certiorari to the united states court of appeals for the fifth circuit

[June 24, 2013]

     Justice Alito, concurring in the judgment.

     I concur in the judgment solely on the ground that the registration requirement at issue is necessary and proper to execute Congress’ power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, §8, cl. 14. Exercising this power, Congress has enacted provisions of the Uniform Code of Military Justice (UCMJ) that authorize members of the military to be tried before a military tribunal, rather than a state court, for ordinary criminal offenses, including sex crimes, that are committed both within and outside the boundaries of a military installation. See, e.g., UCMJ Art. 2 (persons subject to UCMJ); Art. 5 (“This chapter applies in all places”); Art. 120 (rape by a person subject to UCMJ); Solorio v. United States, 483 U. S. 435 –438 (1987) (servicemember may be court-martialed for off-base crime without “service connection”). States usually have concurrent jurisdiction over such crimes when they are committed off base and sometimes possess jurisdiction over such offenses when committed on base. [ 1 ] These offenses, however, are rarely prosecuted in both a military and a state court, and therefore when a servicemember is court-martialed for a sex offense over which the State had jurisdiction, this is usually because the State has deferred to the military. [ 2 ] Where the offense in question is a sex crime, a consequence of this handling of the case is that the offender, if convicted, may fall through the cracks of a state registration system. For example, if the servicemember is convicted of a sex offense in a state court, the state court may be required by state law to provide that information to the state registry. See, e.g., Colo. Rev. Stat. Ann. §16–22–104(1)(a)(I) (2012). State law may also require the state corrections department to notify both state and local police of the offender’s release. See, e.g., §16–22–107(3). Provisions such as these are designed to prevent sex offenders from avoiding registration, as many have in the past. See H. R. Rep. No. 109–218, pt. 1, p. 26 (2005) (despite pre-SORNA registration efforts, “[t]he most significant enforcement issue in the sex offender program [was] that over 100,000 sex offenders, or nearly one-fifth in the Nation are ‘missing,’ meaning that they have not complied with sex offender registration requirements”). When a servicemember is convicted by a military tribunal, however, the State has no authority to require that tribunal to notify the state registry, nor does it have the authority to require the officials at a military prison to notify state or local police when the servicemember is released from custody. Because the exercise of military jurisdiction may have this effect—in other words, may create a gap in the laws intended to maximize the registration of sex offenders—it is necessary and proper for Congress to require the registration of members of the military who are convicted of a qualifying sex offense in a military court. When Congress, in validly exercising a power expressly conferred by the Constitution, creates or exacerbates a dangerous situation (here, the possibility that a convicted sex offender may escape registration), Congress has the power to try to eliminate or at least diminish that danger. See United States v. Comstock, 560 U. S. 126 –158 (2010) (Alito, J., concurring in judgment). I accordingly concur in the judgment only.


1  See 1 F. Gilligan & F. Lederer, Court-Martial Procedure §2–40.00, p. 2–47 (3d ed. 2006) (hereinafter Gilligan & Lederer). This depends on the circumstances under which the Federal Government acquires the land in question. See Morrison, State Property Tax Implications for Military Privatized Family Housing Program, 56 Air Force L. Rev. 261, 269–270 (2005). See generally Manual for Courts-Martial, United States, Rule for Court-Martial 201(d)(3) (2012) (Rule) (discussing situations “[w]here an act or omission is subject to trial by court-martial and by one or more civil tribunals”); D. Schlueter, Military Criminal Justice: Practice & Procedure §4–12(A), p. 231 (8th ed. 2012) (hereinafter Schlueter).
2  “Where an act or omission is subject to trial by court-martial and by one or more civil tribunals,” “the determination which nation, state, or agency will exercise jurisdiction is a matter for the nations, states, and agencies concerned, and is not a right of the suspect or accused.” Rule 201(d)(3). And as the commentary to Rule 201(d) explains, “the determination which agency shall exercise jurisdiction should normally be made through consultation or prior agreement between appropriate military officials . . . and appropriate civilian authorities.” See Discussion following Rule 201(d), p. 2–10; see also Secretary of Air Force, Air Force Instruction 51–201, §§2.6.1–2.6.3 (June 6, 2013); Schlueter§4-12(B), at 231–232. “[I]t is constitutionally permissible to try a personby court-martial and by a State court for the same act,” Discussion following Rule 201(d), at 2–10; see Schlueter §4–12(B), at 232, §13–3(F), at 691; however, “as a matter of policy a person who is pending trial or has been tried by a State court should not ordinarily be triedby court-martial for the same act,” Discussion following Rule 201(d), at 2–10; Air Force Instruction 51–201, §§2.6.1, 2.6.2; Gilligan & Lederer §7–50.00, at 7–17.

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