SEX OFFENDER REGISTRATION

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

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Additional Resources

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· 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)

 

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Nichols v. United States

Issues

Under the Sex Offender Registration and Notification Act, must registered sex offenders who leave the United States update their registration status with their former home states?

 

In November 2012, Lester Nichols flew from Kansas City, Kansas, to Manila, Philippines. Nichols, a registered sex offender, did not update his registration status in Kansas City prior to his departure. In December 2012, Manila law enforcement officers arrested Nichols, and transferred him to the United States’ custody. The United States then charged Nichols for failing to comply with the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”). The Supreme Court will decide whether SORNA requires sex offenders who move to foreign countries to update their registration status in the U.S. jurisdiction where they used to reside. Nichols argues that a sex offender who moves to a foreign jurisdiction does not need to update his or her registration status. The United States maintains that SORNA aims to regulate offenders who move abroad.

Questions as Framed for the Court by the Parties

Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

In 2003, Lester Nichols was convicted and sentenced to ten years imprisonment for traveling from one state to another with the intent to have sex with a minor.  See United States v. Nichols, 775 F.3d 1225, 1227 (10th Cir. 2014).  In 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C.

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Additional Resources

Jessica Shumaker, High Court to Hear Sex Offender Registry Case, Legal News  (November 19, 2015).

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United States v. Kebodeaux

While serving in the Air Force in 1999, a military tribunal convicted twenty-one-year-old Anthony Kebodeaux of statutory rape for having consensual sex with a fifteen-year-old girl.  Following a three-month sentence and bad-conduct discharge, Kebodeaux moved to Texas, where he became subject to strict lifetime registration requirements that include annual in-person registration and registration updates upon intrastate movement.  Seven years later, in 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”), which imposes registration requirements on sex offenders convicted under state or federal law, and additionally prescribes penalties for failure to register. After failing to update his registration following an intrastate move in 2008, Kebodeaux was convicted under SORNA in the United States District Court for the Western District of Texas and sentenced to one year and one day in prison, plus five years of supervised release. Kebodeaux appealed this conviction to the United States Court of Appeals for the Fifth Circuit, arguing that Congress did not have jurisdiction to criminalize his intrastate movements. The Fifth Circuit, sitting en banc, reversed the District Court’s conviction, holding that as applied to Kebodeaux, SORNA’s registration requirements were unconstitutional as exceeding Congress’s Article I powers. On appeal to the Supreme Court of the United States, the United States argues that SORNA did not constitute overreaching by the federal government because Kebodeaux was consistently subject to federal jurisdiction, having committed a federal offense under military law. In response, Kebodeaux contends that his release from prison pre-SORNA was unconditional, meaning that he is bound only by state registration requirements and any reassertion of federal jurisdiction over him through SORNA would be unconstitutional.  This case will also examine the balance between the benefits of uniformity in a comprehensive registration system against considerations of state sovereignty.

Questions as Framed for the Court by the Parties

1. Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender.

2. Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

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Issue(s)

Whether the Sex Offender Registration and Notification Act with its accompanying regulations requiring all past sex offenders to notify the federal government of intrastate moves is unconstitutional as applied to an individual living in Texas who ser

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