SORNA Does Not Violate Ex Post Facto Clause, 11th Circuit Rules

The federal Sex Offender Registration and Notification Act (SORNA) is a civil and non-punitive regulatory scheme that does not violate the Ex Post Facto Clause, the 11th Circuit Court of Appeals held in a December 13, 2011 ruling.

SORNA categorizes convicted sex offenders as a class rather than based on their individual dangerousness. All sex offenders by SORNA must register and verify their information in person. Registration requirements are pegged to the severity of their crimes: the least dangerous annually for 15 years, the middle category every six months for 25 years and the most dangerous every three months for life. They must provide their names, social security numbers, addresses, and vehicle descriptions.

The appellant in this case, identified as only W.B.H. because he had cooperated with the government, was sentenced to ten years prison and five years’ supervised release after pleading guilty in 2008 to conspiracy to distribute and possess with the intent to distribute 1,000 kilograms or more of marijuana.

Based upon a 1987 rape conviction that occurred when W.B.H. was 18 years old and sentenced as a juvenile offender, the Florida federal district court’s sentence on the drug charge ordered him to register as a sex offender under SORNA, which was enacted in 2006. W.B.H. argued that requiring him to register as a sex offender “because of a sex offense he was convicted of as a youthful offender nearly 20 years before SORNA was enacted violates the Ex Post Facto Clause.”

To determine whether SORNA is a criminal or civil non punitive legislative scheme, the Eleventh Circuit relied upon Smith v. Doe, 538 U.S. 84 (2003). That case sets the test of assessing such schemes. Doe set a two prong analysis.

The first step required the Court to determine whether Congress intended SORNA to impose punishment or instead to put into place a civil regulatory scheme for keeping up with the location and movements of sex offenders. It found SORNA has a civil purpose of protecting society, particularly children, from sexual offenders. This non-punitive purpose is “designed to keep law enforcement agencies informed about sex offenders in their jurisdiction and to provide the public with a means of informing itself about those offenders,” wrote the Court.

The second step in Doe identified a number of “guide posts” to help determine whether a regulatory scheme’s effects are so punitive that they negate its civil aims. “Only the clearest proof” will do to override the legislative intent and transform the stated civil remedy into a criminal penalty.

The Eleventh Circuit found SORNA does not resemble historical and traditional forms of punishment, such as public shaming or banishment. It does not impose and “affirmative disability or restraint” on those it regulates, for it does not prohibit sex offenders from changing residences or jobs; it just requires them to inform authorities of changes.

The Court further found SORNA does not promote the traditional aims of punishment, which is defined as “retribution and deterrence.” If SORNA has any deterrent effect, or purpose, that is not enough to justify that the Act’s purpose is punitive. Next, it found SORNA has a rational relationship to the non-punitive purpose of protecting the public. Finally, the Court found SORNA’s regulatory scheme is not excessive with respect to its non-punitive purpose. The court, therefore, concluded SORNA does not violate the Ex Post Facto Clause. See: United States v. W.B.H., 664 F.3d 848 (11^th Cir. 2011).

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