The Sex Offender Registration and Notification Act (SORNA), became law July 27, 2006. It requires all sex offenders to register. As part of the registration they must provide their name, address, business address, and school status. Everyone who has been convicted of certain sex offenses must register, regardless of whether the conviction predated or post-dated SORNA’s passage.

Those who are convicted after SORNA’s passage must register before getting out of custody. Those who are not given a jail sentence must register within three days of the conviction. The law does not specify when those who were convicted prior to the passage of SORNA must register. Rather the law authorizes the attorney general to determine the specific registration conditions for pre-enactment convictions.

The question before the Supreme Court this week in Reynolds v. United States is a rather limited one. But it has created a fair amount of debate among the courts of appeal which have spit their decisions. It is whether those convicted prior to the attorney general issuing his specifications had to register after the passage of the act but before the attorney general issued his specifications.

The Supreme Court ruled that there was no requirement for pre-enactment convictions to register prior to the isuance of the attorney general’s specifications. Since the attorney general must set the registration specification for a subset of those required to register (pre-enactment convictions) the court found it reasonable to believe that the condition for the attorney general to set the registration specifications modified the registration requirement for pre-enactment convictions. SORNA attempts to unify many different state registration laws. Different states require different people to register and provide time periods for this to happen. According to the Supreme Court, Congress could have felt that by putting off pre-enactment conviction from having to register until after the specifications were issued many problems could be avoided. Finally Congress did not specify a time line for pre-enactment registration it only reasonable to wait until after the attorney general general’s specifications are listed to require registration for pre-enactrment convictions.

At 13 years old the respondent, in a Supreme Court case, began sexually assaulting a ten year old boy on the Fort Belknap Indian Reservation in Montana. The assaults continued for two years. In 2005 the respondent admitted to juvenile delinquency allegations in Federal Court. He was sentenced to two years of juvenile detention followed by juvenile supervision until his 21st birthday with the first six months of the supervision served in a prerelease center.

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA) which requires sex offenders to register wherever they live, work or go to school. The attorney general determined that SORNA retroactively applied to convictions occurring prior to SORNA’s enactment.

In 2007 the respondent was found to be in violation of his prerelease conditions and he was sentenced to an additional six months and required to register as a sex offender at least until his 21st birthday.

He appealed the registration requirement. By the time the Ninth Circuit ruled on the appeal he was 22 years old. The Ninth Circuit ruled that “that applying SORNA to juvenile delinquents who committed their offenses before SORNA’s passage violates the Ex Post Facto Clause.”

The Supreme Court reversed, finding that at the time the Ninth Circuit ruled, the issue was moot. An issue is moot on appeal unless there is “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ In most criminal cases at the time of the appeal the defendant is either incarcerated, on parole or on probation–all of which are considered “actual injuries.” In the present case there were two possible injuries. One was the confinement and supervision but that terminated prior to the Ninth Circuit decision and the other was the registration required which terminated at his 21st birthday. ¹ Thus the Supreme Court reversed the Ninth Circuit ruling. The only real effect of the reversal is that the Ninth Circuit decision does not serve as a precedent for future cases. ²

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.

The Sex Offender Registration and Notification Act (“SORNA”). is sure a full employment act for lawyers and judges. In the four and a half years since its enactment there have been numerous challenges to various parts of the act and we have not seen the end of it yet. SORNA attempts to insure that registration requirements are followed wherever a person required to register travels within the country.

Last week the Fifth Circuit Court of Appeals answered a number of questions about the act in United States v. Johnson. However as more circuits weigh in on various issues the splits become apparent and we can expect more questions to be submitted to the Supreme Court.

Johnson was convicted in Mississippi in 1995 of gratification of lust. ¹Gratification of lust is a sex crime requiring registration in Mississippi. Under SORNA, registration requirement follows you wherever you travel in the country.

He moved to Iowa and registered but he failed to register when he moved back to Mississippi in 2008. The following year he was convicted of failure to comply with SORNA

On appeal he raised seven issues: 1) lack of notice, 2) that SORNA exceeds Congress’ power under the Commerce Clause, 3) that giving authority to the Attorney General to decide whether to make it retroactive to cover acts occurring prior to its enactment violates the Non-delegation Doctrine, 4) “that the retroactive application of SORNA violates
the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to criminal prosecution for non-compliance, 5) that he cannot be convicted under the act because Mississippi has not enacted SORNA compliance legislation, 6) requiring the state to enforce Federal law violates the Tenth Amendment, and 7} the Attorney General violated the Administrative Procedures Act in developing regulations for the enforcement of the law on people convicted of sex crimes prior to the passage of the act.

Having considered some of the issues previously, the court only gave serious consideration to the last two issues. The Tenth Amendment by reserving certain rights to the states prevents the Federal government from directing the states to follow Federal law. However SORNA does not require the states to comply. By forfeiting ten percent of their Federal Criminal Justice allotment they can opt out of the program.

While the Fifth Circuit found that the Attorney General violated the Administrative Procedures Act by not waiting 30 days after publication of the regulation and by not obtaining comments prior to enactment of the regulations without good cause the court found the failure did not prejudice Johnson since the results would have been the same if the Attorney General had complied with the act.

The United States Supreme Court reversed a conviction for violating the Sex Offender Registration and Notification Act (SORNA). SORNA, passed by Congress in 2006 makes state sex offenders registration laws more uniform and effective. It makes it a Federal crime for 1) people who are required to register as a sex offender to (2) travel in interstate or foreign commerce, and (3) knowingly fail to register or update a registration.

The Seventh Circuit Court of Appeals ruled that a conviction could be upheld even though the required travel occurred prior to the passage of the act as long as the defendant had sufficient time after the passage of the act to register. The Supreme Court ruled that since the restriction on interstate travel only affects those who are required to register and since the Federal requirement to register did not occur before the passage of the act in 2006, the travel had to occur after the act’s passage. Furthermore the act uses the present tense to indicate the travel requirement and Congress thereby indicated that the travel that the travel could not occur before the act was imposed.

In May 2004 Thomas Carr plead guilty to first-degree sexual abuse in Alabama. Later that year or in the beginning of 2005 he moved to Indiana and failed to comply with Indiana’s registration requirements. Even though SORNA did not take effect until 2006 the United States Attorney charged him with violating the act when he failed to register after the act took effect. The Seventh Circuit Court of Appeals upheld the conviction based on the pre-enactment travel and the Supreme Court reversed.

By holding that the law requires that the travel occur after the enactment of the act the Court avoided considering whether or not the law violated the Constitution’s ex post facto clause which bans punishing people for acts committed before a law is passed making the act illegal.

In either case the decision is for the best. Otherwise people could be punished for acts that occurred many years ago. State registration statutes have been in effect for many years and the states are capable of punishing people who failed to register prior to 2006.