ex post facto

Carr v. United States

Issues

May SORNA apply to a sex offender whose conviction and interstate travel both predated SORNA’s enactment?

 

The Sex Offender Registration and Notification Act (“SORNA”) requires convicted sex offenders to register in any jurisdiction in which the offender resides and imposes criminal penalties on any sex offenders who travel in interstate commerce and knowingly fail to register. Before SORNA was enacted, Thomas Carr, a convicted sex offender, moved to Indiana but failed to register. A federal grand jury indicted Carr for his failure to register under SORNA. Carr appealed to the U.S. Circuit Court of Appeals for the Seventh Circuit, arguing that applying SORNA violated the ex post facto clause as his conviction and travel predated SORNA. The Seventh Circuit held that SORNA did not violate the ex post fact clause because the failure to register occurred after SORNA was enacted. The Supreme Court’s decision will settle a circuit split over whether SORNA can punish sex offenders who traveled in interstate commerce before its enactment.

Questions as Framed for the Court by the Parties

The President signed the Sex Offender Registration and Notification Act (“SORNA”) into law on July 27, 2006. Pub. L. 109-248 §§101-55, 120 Stat. 587. SORNA requires persons who are convicted of certain offenses to register with state and federal databases. See 42 U.S.C. § 16913(a). The law imposes criminal penalties of up to ten years of imprisonment on anyone who “is required to register * * * travels in interstate or foreign commerce * * * and knowingly fails to register or update a registration.” 18 U.S.C. § 2250(a). On February 28, 2007, the Attorney General retroactively applied SORNA’s registration requirements to persons who were convicted before July 27, 2006. 72 Fed. Reg. 8896, codified at 28 C.F.R. § 72.3. The two questions presented are:

1. Whether a person may be criminally prosecuted under § 2250(a) for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated SORNA’s enactment.

2. Whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Article I, Sections 9 and 10 of the Constitution prohibit the passage of ex post facto laws. Ex post facto laws retroactively criminalize conduct that was legal at the time it was committed; ex post facto laws would allow for increased punishment after the fact, as well as an inability to avoid prosecution by altering one's conduct. See

Written by

Edited by

Additional Resources

​

· Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Trafficking, U.S. Department of Justice

· Michael M. O’Hear, Seventh Circuit Week in Review: Limiting the Reach of the Adam Walsh Act (a Little), Marquette University Law School Faculty Blog, Dec. 28, 2008

· Sex Crimes: 7th Circuit Rules on SORNA Constitutionality (Jan. 5, 2009)

 

Submit for publication
0

ex post facto

The Latin phrase ex post facto means “from a thing done afterward.” In law, it refers to a criminal statute that retroactively punishes conduct that was legal at the time it was committed. The United States Constitution expressly prohibits such laws under:

Peugh v. United States

Marvin Peugh was convicted of fraud for actions taken in 1999 and 2000. The 1998 Sentencing Guidelines recommended a 37- to 46-month sentence, while the 2009 Sentencing Guidelines recommended a 70- to 87-month sentence for Peugh’s conviction. After receiving a 70-month sentence under the 2009 Guidelines, Peugh asserts that using the 2009 Guidelines retroactively increased his punishment in violation of the Constitution’s Ex Post Facto Clause. The United States counters that the Sentencing Guidelines are merely advisory and that sentencing ultimately rests with a judge’s discretion, deferring to their knowledge of the case and their own penal philosophy. The Seventh Circuit Court of Appeals affirmed Peugh’s sentence; however, eight other courts of appeals would have directed the trial court to consult the 1998 Guidelines. This case is important to ensure consistent sentencing principles, even if particular sentences may vary. The notion that everyone should receive the same sentence for the same crime is a good theory, but other factors often cause a disparity in punishment.

Questions as Framed for the Court by the Parties

The U.S. Sentencing Guidelines Manual directs a court to “use the Guidelines Manual in effect on the date that the defendant is sentenced” unless “the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the Ex Post Facto Clause of the United States Constitution.” Eight courts of appeals have held that the Ex Post Facto Clause is violated where retroactive application of the Sentencing Guidelines creates a significant risk of a higher sentence. In the decision below, however, the Seventh Circuit has held that the Ex Post Facto Clause is never violated by retroactive application of the Sentencing Guidelines because the Guidelines are advisory, not mandatory. The question presented is:

Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence?

top

Issue

Does using Sentencing Guidelines promulgated after the time of a convicted defendant’s crime in sentencing that defendant violate the Constitution’s ban on retroacti

Written by

Edited by

Additional Resources
Submit for publication
0
Subscribe to ex post facto