Tuesday, June 1, 2010

Supreme Court: No Backdating Sex Offender Registry

UPI.com: Court: No backdating sex offender registry.
CSmonitor.com: Registry law doesn't apply to all sex offenders, Supreme Court rules.
sexcrimes.typepad.com: Carr v. United States - Initial Thoughts

Washington, DC, June 1 (UPI) -- The U.S. Supreme Court ruled 6-3 Tuesday a sex offender moving to another state didn't have to update his registration if he moved before a law took effect.

The 2006 Sex Offender Registration and Notification Act requires sex offenders to register, and makes it a crime for any person required to register to fail to update his registration when moving to another state.

Thomas Carr pleaded guilty in Alabama to first-degree sexual abuse and was sentenced to 15 years, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation July 3, 2004, and registered as a sex offender as required by Alabama law.

In late 2004 or early 2005, prior to SORNA's enactment, Carr relocated from Alabama to Indiana, court records say. He did not comply with Indiana's sex-offender registration requirements. In July 2007, Carr became involved in a fight in Fort Wayne, Ind., drawing the attention of police, and federal prosecutors charged Carr in Indiana with failing to register after moving in violation of the federal law.

A federal appeals court in Chicago affirmed his conviction, but the Supreme Court reversed today.

Writing for the majority, Justice Sonia Sotomayor said charging Carr with a SORNA violation for activity occurring before the law came into effect violated the ex post facto clause of the Constitution, which bans after the fact prosecutions.

From our understanding of this ruling, the US Supreme Court did not invalidate this SORNA provision on Ex Post Facto grounds, but rather the majority justices found that the statute, as written by Congress, did not authorize retroactive enforcement in its construction. They therefore left the Ex Post Facto (retro-active) challenge to be decided at another time.

She said the key was that an offender had to become subject to SORNA in the first place before going to another state and failing to register.
Corey Rayburn Yung at sexcrimes.typepad.com writes:

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can "correct" the outcome whenever it wants. So, it isn't much of a decision against SORNA or the AWA in any meaningful way. There is plenty of coverage around the legal blogosphere and I should have more later."

While we greatly respect Yung's credentials and are completely unqualified to challenge his professional opinions..... I would like to posit a slightly different stance on the value of this SCOTUS decision. We are not legal professionals in any way, but it seems that this decision could be more meaningful than Yung suggests. It does appear that the ruling will affect very few sex offenders, whose travel and registration brought federal charges. But it does further erode SORNA, as written.

To be clear, as far as we can decipher, this ruling affects only cases where ex offenders traveled to other states and were prosecuted for their failure to register in the new states. The legislative text to which the Justices refer is in relation to Interstate Travel, and not related to other parts of SORNA.

In many states - and in Ohio foremost - SORNA as applied through Ohio Senate Bill 10 has been barraged with lawsuits in every county of the state. Four consolidated cases have been argued before the Ohio Supreme Court with another couple cases being heard since then. In lower courts, the only means by which the Ohio law has been permitted to stand is by judges ruling that SORNA is a civil remedy and not punitive in nature. Therefore, its retroactive implementation has never been properly addressed by the courts.

In today's ruling, SCOTUS ruled that the Interstate Travel portion (at least) of SORNA was not written to be retroactive. Is it too much of a stretch to imagine that other portions of SORNA may similarly be ruled to be written to be non- retroactive? Or that SORNA could be re-written to exclude its retroactivity requirements?

We know that the US Department of Justice recently came out with new revised guidelines for SORNA implementation directed to states which are reluctant to implement SORNA (Adam Walsh Act). One of the main points of contention is the retro-activity requirement. The Revised Guidelines erase the retroactive requirement for states, allowing them a way our of this constitutional obstacle. Having seen today's ruling, along with the revised guidelines, it seems that Carr vs. US could be more meaningful that Yung suggests.

See previous two postings for more information on this ruling.