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SORNA Challenges Produce Mixed Results; Supreme Court Weighs In

Over the past several years a split has developed between the federal courts of appeal over the scope and constitutionality of the Sex Offender Registration and Notification Act (SORNA), a component of the federal Adam Walsh Child Protection and Safety Act of 2006.

SORNA requires sex offenders to keep their registrations current and to notify state authorities each time they move, change jobs or change schools. Any offender who “travels” in interstate or foreign commerce who “knowingly fails to register or update a registration” can receive up to ten years in federal prison.

In U.S. v. Husted, the Tenth Circuit Court of Appeals considered whether the “travels” element of the Act applied to conduct that occurred before the effective date of SORNA, which was July 27, 2006. Sometime in April 2006, Michael Husted, a sex offender, moved from Oklahoma to Missouri without notifying officials in Oklahoma or registering in Missouri. Federal officials charged Husted under SORNA, arguing that his failure to register after moving to Missouri violated the Act.

The Tenth Circuit disagreed. Congress’ use of the word “travels,” the present tense form of “to travel,” limited the application of the Act to only those offenders who “travel in interstate or foreign commerce after the Act’s effective date,” the appellate court wrote. Husted had moved to Missouri in April 2006, before the Act took effect; therefore, his conduct was not covered by the Act and his conviction was reversed. See: United States. v. Husted, 545 F.3d 1240 (10th Cir. 2008).

On December 22, 2008, the U.S. Court of Appeals for the Seventh Circuit reached a different result in consolidated appeals filed by Marcus Dixon and Thomas Carr. Dixon and Carr, both sex offenders, had failed to register after traveling to Indiana. Dixon, like Husted, argued that his conduct was not covered by the statute because he traveled in interstate commerce before SORNA became effective.

The Seventh Circuit disagreed. The word “travels” in the Act was not limited to interstate travel after SORNA took effect, the Court of Appeals wrote, noting that “the present tense is commonly used to refer to past, present, and future all at the same time.”

However, the appellate court did find merit in Dixon’s ex post facto claim. As part of SORNA, Congress directed the Attorney General to promulgate regulations specifying the applicability of the Act to offenders convicted before its enactment. The Attorney General issued regulations on February 28, 2007 that applied SORNA’s provisions to all sex offend-ers, including those convicted before the Act’s effective date.

The Seventh Circuit found a problem with this. The net effect of the regulations was to require all sex offenders to reg-ister. But because the regulations did not say when offenders had to register, the Court of Appeals, analogizing the situation to contracts that do not specify a deadline for acceptance, and applying the due process principle of “fair notice,” held that sex offenders had to register within a “reasonable time” after the SORNA regulations were adopted.

In Dixon’s case, the “reasonable time” requirement was not met. Dixon’s travel in interstate commerce and his failure to register occurred before the Attorney General’s regulations were adopted. “Whatever the minimum grace period required to be given a person who faces criminal punishment for failing to register as a convicted sex offender is, it must be greater than zero,” the appellate court observed. Accordingly, Dixon’s conviction was reversed. See: United States. v. Dixon, 551 F.3d 578 (7th Cir. 2008).

Carr, on the other hand, did not register until five months after the Attorney General’s regulations took effect. “Five months is a sufficient grace period,” the Seventh Circuit held, rejecting Carr’s argument that he, like Dixon, did not have enough time to comply with the Act. Carr appealed to the U.S. Supreme Court, which granted cert on September 30, 2009.

Just when things were getting confusing, on December 8 and 9, 2008 the Tenth Circuit issued rulings in U.S. v. Hinckley and U.S. v. Lawrance, which further muddied the waters on the issue of whether SORNA applies to offenders who did not register before the Attorney General’s regulations were issued.

Both Hinckley and Lawrance traveled in interstate commerce and failed to register after SORNA was enacted, but be-fore the Attorney General issued regulations implementing the Act. The Tenth Circuit found this unproblematic, though, rejecting due process and ex post facto challenges by Hinckley and Lawrance, and holding that both were criminally liable for not registering.

The Attorney General’s regulations were not a condition predicate to liability under the Act, the Court of Appeals held, because the regulations required by SORNA only applied to offenders who were not already required to register under state law. Hinckley and Lawrance were already subject to state registration requirements. Both were thus required to register on the date SORNA took effect, July 27, 2006, and both of their convictions were affirmed. See: United States v. Hinckley, 550 F.3d 926 (l0th Cir. 2008), cert. denied; United States. v. Lawrance, 548 F.3d 1329 (10th Cir. 2008).

On January 13, 2009, the U.S. Court of Appeals for the Eighth Circuit entered the fray in U.S. v. Howell, rejecting a constitutional challenge to SORNA’s registration requirements. Howell, a sex offender, had argued that the Act’s registra-tion requirements exceeded Congress’ authority under the commerce clause because the act of registering itself was an intrastate (not interstate) activity.

The Eighth Circuit disagreed. “Although [SORNA] may reach a wholly intrastate sex offender for registry information, [SORNA] is a reasonable means to track those offenders if they move across state lines. In order to monitor the interstate movement of sex offenders, the government must know both where the offender has moved and where the offender originated,” the appellate court wrote.

The registration requirements, then, “are reasonably adopted to the legitimate end of regulating ‘persons or things in interstate commerce’ and the ‘use of the channels of interstate commerce.’” Howell’s conviction was accordingly affirmed. See: United States. v. Howell, 552 F.3d 709 (8th Cir. 2009), cert. denied.

On March 13, 2009, the Fourth Circuit Court of Appeals joined the growing circuit split over the applicability of SORNA to offenders who failed to register prior to the date the Attorney General promulgated regulations implementing the Act.

William Hatcher was charged with violating SORNA’s registration requirements after he moved from one state to an-other and failed to register. He argued that SORNA’s registration requirements did not apply because his failure to register occurred before the Attorney General’s regulations were issued.

The Fourth Circuit reversed Hatcher’s conviction, finding that “SORNA’s registration requirements did not apply to pre-SORNA offenders until the Attorney General issued” the regulations on February 28, 2007. See: United States v. Hatcher, 560 F.3d 222 (4th Cir. 2009).
Given these varied rulings, it is no surprise that the U.S. Supreme Court eventually stepped in to sort things out. On June 1, 2010, the high court issued a ruling in Carr’s appeal, holding that SORNA’s registration requirements do not apply to sex offenders whose interstate travel occurred before the Act’s effective date. PLN will report this decision in greater detail in a future issue. See: Carr v. United States, 130 S.Ct. 2229 (2010).

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Related legal case

Carr v. United States