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U.S. Supreme Court Holds AG Rules Required Before SORNA Sex Offender Law is Applied Retroactively

On January 23, 2012 the U.S. Supreme Court, in a 7-2 decision written by Justice Stephen Breyer, reversed the Third Circuit Court of Appeals, which had held that the federal Sex Offender Registration and Notification Act (Act) applied retroactively even in the absence of a rule by the U.S. Attorney General setting forth specifics as to registration requirements for previously-adjudicated sex offenders.

The Supreme Court found in favor of plaintiff Billy Joe Reynolds, who had challenged federal district and appellate court decisions that he had violated the Act, which requires people convicted of certain sex crimes to give state governments information such as their names and current addresses for registration purposes.

The Act also states that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter...,” § 16913(d). According to the Court, “In our view, these provisions, read together, mean that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply.”

The Act became law on July 27, 2006, and on February 28, 2007 the U.S. Attorney General promulgated an Interim Rule which indicated that the Act applied to “sex offenders convicted of the offense for which registration is required prior to the enactment” of the law. 72 Fed.Reg. 8897 (codified at 28 CFR § 72.3). Additional rules were promulgated by the Attorney General in 2008, 2010 and 2011, but the case before the Court concerned the time period between July 27, 2006 and February 28, 2007.

Reynolds was a pre-Act offender who was indicted after moving from Missouri, where he was registered as a sex of-fender, to Pennsylvania, where he did not register. He filed a motion to dismiss the indictment, claiming that the Interim Rule was invalid because it violated both the Constitution’s “non-delegation” doctrine and the Administrative Procedure Act’s requirement for “good cause” to promulgate a rule without “notice and comment,” as the Attorney General admittedly had done. Reynolds argued that since the Interim Rule was invalid, he must be treated as a “pre-Act offender who traveled interstate and violated the Act’s registration requirements before the Attorney General specified their applicability.”

The district court rejected Reynold’s challenge to the Interim Rule but the Third Circuit did not reach the merits of that argument on appeal, rather focusing on its view that the Act’s registration requirements applied to pre-Act offenders like Reynolds from the date of the law’s enactment without the issuance of any rules by the Attorney General. Under that reasoning, any defects regarding the Interim Rule would be immaterial.

The Supreme Court noted a conflict between the various Circuits regarding when the Act could be applied retroactively, and observed that the government’s legal arguments “overstated the need for instantaneous registration of pre-Act offenders....” The Court concluded “that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General so specifies.” The Third Circuit’s ruling to the contrary was accordingly reversed and remanded for further proceedings.

Justice Scalia, joined by Justice Ginsberg, dissented, finding the Attorney General’s power to immediately enforce the Act was “little more than a formalized version of the time-honored practice of prosecutorial discretion.” See: Reynolds v. United States, 132 S.Ct. 975 (2012).

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Related legal case

Reynolds v. United States