SORNA and the Ex Post Facto Clause

ANNA CHRISTENSEN FEB 23, 2010 9:00 PM

Below, Kate Neilson of Harvard Law School previews Carr v. United States (08-1301), one of two cases to be heard by the Supreme Court on Wednesday, February 24. Check the Carr v. United States SCOTUSwiki page for additional updates.

The federalization of sex offender policy began in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act).  Twelve years later, Congress expanded and strengthened registration programs in the Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act.  Among other things, SORNA in 18 U.S.C. § 2250(a) created a new felony that penalizes sex offenders who are required to register under SORNA but knowingly fail to do so after traveling in interstate or foreign commerce.  SORNA also authorized the Attorney General to determine whether and how the statute’s registration requirements applied to sex offenders convicted before the statute was enacted; on February 28, 2007, the Attorney General issued a regulation in which he indicated that SORNA’s registration requirements applied to all sex offenders, including those who were convicted prior to the statute’s enactment.

On February 24, in No. 08-1301, Carr v. United States, the Court will consider the application of SORNA’s registration requirements to individuals who not only were convicted before SORNA’s enactment but also traveled before the statute became law.  This will be the Court’s first consideration of sex offender registration laws since it upheld two state statutes against Ex Post Facto Clause and due process challenges in 2003.

In 2004, petitioner Thomas Carr was convicted of first-degree sexual abuse in Alabama and registered as a sex offender there after his release from custody.  When Carr moved to Indiana at the end of 2004, however, he failed to register there – a failure that was discovered in July 2007, when he was arrested for an unrelated incident.  After Carr was indicted for failing to register under SORNA, he moved to dismiss the indictment on the ground that his interstate travel pre-dated SORNA and a conviction would thus violate the Ex Post Facto Clause.  The motion was denied; Carr entered a conditional guilty plea and appealed the denial.

The Seventh Circuit consolidated the appeal with that of Marcus Dixon, whose offense and travel had also predated SORNA.  In his appeal, Dixon made a similar Ex Post Facto argument but also argued that, as a matter of statutory construction, he did not violate SORNA because his travel occurred before the statute was enacted.  The Seventh Circuit rejected the Ex Post Facto argument.  In its view, such convictions did not violate the Ex Post Facto Clause as long as “at least one of the acts” “required for punishment” takes place after the statute went into effect and the defendant had a “reasonable time” in which to register after the Attorney General issued the regulation.  The court of appeals thus affirmed Carr’s conviction, concluding that five months was a “sufficient grace period” in which to register.  However, while it also rejected Dixon’s statutory argument, it nonetheless reversed his conviction on the ground that he had not had sufficient time to register.

Carr filed a petition for certiorari, which the Court granted on September 30, 2009.  In his opening brief on the merits, Carr argues that SORNA’s use of the present tense “travels” demonstrates that the statute applies only to defendants who engage in current or future travel.  Because Section 2250(a)’s other requirements of §2250(a) necessarily refer to post-SORNA activity, the “travels” clause should also be limited to post-SORNA activity.  Any ambiguity in the language should be read in his favor, Carr suggests, under the rule of lenity and the presumption against retroactivity.

Carr next argues that SORNA was aimed at interstate travel by unregistered offenders as a harm in itself, which would threaten SORNA’s “uniform system of state registration requirements.”  Unlike cases in which Congress has asserted its “full Commerce Clause power” by regulating activities “substantially affecting interstate commerce,” SORNA is limited to offenders who travel “in commerce.”  This regulation of the channels of interstate commerce is inherently prospective; Congress cannot “keep these channels free from prior misuse that occurred before enactment of the governing statute.”

Finally, Carr argues that two different interpretations of SORNA both violate the Ex Post Facto Clause.   First, even if SORNA merely requires defendants to comply with the Wetterling registration regime, then it impermissibly enhances the penalty for the same crime.  Second, if SORNA in fact contemplates a new duty, then Carr was guilty of failing to register at the moment SORNA passed and its retroactive application would thus impose an “impossible duty.”  His interpretation, by contrast, is consistent with the canon of constitutional avoidance, while the Seventh Circuit’s construction of the statute as allowing “a reasonable time” amounts to a rewriting of the statute.

In its brief on the merits, the government counters that Section 2250(a) criminalizes a sequence of events:  an individual is guilty of failing to register when he first is convicted of a sex offense, then travels, and then knowingly fails to register, even if the travel occurs before SORNA’s enactment.  The government argues that this interpretation better effectuates SORNA’s purpose of finding “missing” sex offenders who travel to another state and fail to re-register there.  Although Carr suggests that such offenders could still be subject to state prosecution, the government emphasizes that SORNA was enacted precisely because state penalties were inadequate to ensure enforcement of registration requirements.

The government dismisses the canon of constitutional avoidance as inapplicable here.  It contends that Congress’s Commerce Clause powers are not implicated by the timing of the travel because the logical connection between a failure to register and interstate travel is unrelated to when the travel occurred.  Moreover, there is no “grievous ambiguity” that would justify invoking the rule of lenity.

Finally, the government argues that the law does not operate retroactively for purposes of the Ex Post Facto Clause because the full “course of conduct” criminalized by Section 2250 is not completed until an individual fails to register under SORNA, which necessarily occurs only after the statute’s enactment.  The government also distinguishes between offenses under the Wetterling Act and those under SORNA:  an individual who cannot register because a state does not have a registry that conforms to the requirements imposed by SORNA may invoke Section 2250(b)’s “uncontrollable circumstances” defense, but he is still liable under SORNA.  The government agrees that Congress cannot criminalize conduct in a way that makes it impossible for a defendant to avoid liability, but it describes the allowance of “a reasonable time to comply with a statutory regime” as an uncontroversial “background principle of law.”

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