Will the U.S. Supreme Court Decide SORNA's Retroactivity Issue?

9-24-2009 National:

Pending before the U.S. Supreme court (See SCOTUS Petititons to watch) is a petition ( Docket 08-1301 ) which raises the issue of "retroactivity" in two ways, and fails to raise -in the alternative should retroactivity be declared permissible- the issues of Due Process and Equal Protection as to certain previously convicted sex offenders.

Two cases from the 7th Circuit are combined in this single petition, they are: USA -v- Carr and USA -v- Dixon; the opinion below is found here.

# Petition for certiorari
# Brief in opposition
# Petitioner’s reply

From Petitioner's REASONS FOR GRANTING THE PETITION
Both the statutory and the constitutional aspects of the holding below warrant this Court’s attention. The Seventh Circuit acknowledged that its reading of SORNA differs from that of the Tenth Circuit, and that conflict in the courts of appeals has grown since the decision below was issued. In addition, at least two dozen district courts have held that SORNA either does not apply retroactively or cannot constitutionally be applied to persons whose interstate travel predated the statute’s enactment. As a consequence, identical conduct is resulting in wildly divergent treatment of criminal defendants depending upon the circuit or district in which they reside. Particularly because the holding below cannot be squared either with the language and purpose of SORNA or with this Court’s precedents, further review is in order.

I. THE COURT SHOULD GRANT REVIEW TO DECIDE WHETHER A PERSON MAY BE PROSECUTED UNDER SECTION 2250(a) FOR FAILURE TO REGISTER WHEN THE UNDERLYING OFFENSE AND TRAVEL IN INTERSTATE COMMERCE PREDATED SORNA’S ENACTMENT.

The Court should settle whether Congress meant SORNA to apply retroactively to persons whose underlying offense and interstate travel both predated enactment of the statute. The Seventh Circuit’s holding on this point conflicts with decisions of other courts of appeals (as the court below acknowledged) and of numerous district courts. And that holding is wrong: It departs from the plain statutory text; misstates the congressional purpose; and disregards the presumptions against retroactivity, and in favor of lenity and the avoidance of constitutional questions, that have been consistently applied by this Court. Review of the decision below accordingly is warranted.

II. THE COURT SHOULD GRANT REVIEW TO DECIDE WHETHER PROSECUTING A PERSON UNDER SECTION 2250(a) WHEN THE UNDERLYING OFFENSE AND TRAVEL IN INTERSTATE COMMERCE BOTH PREDATED SORNA’S ENACTMENT VIOLATES THE EX POST FACTO CLAUSE.

Because the Seventh Circuit decided the question of statutory interpretation as it did, it was required to resolve the important constitutional question whether retroactive application of SORNA’s criminal penalties violates the Ex Post Fact Clause. Its decision on that question also warrants review. The district courts are deeply divided on the question-- although the government has managed to suppress creation of a conflict in the courts of appeals by failing to appeal in those cases where it has been unsuccessful. Particularly in light of substantial flaws in the Seventh Circuit’s constitutional analysis, this Court’s guidance on the issue is essential.

As to my reference to due process and equal protection: Should the court declare retroactivity is permissible, then these issues would be applicable to those who technically violate the retroactiivty aspect.

Congress ordered the USAG to promulgate rules as to two classes of folks: A) Those who could not be notified of their duties -upon being released from their sentence (i.e, those convicted before this entire law came to be); and, B)Those who are notified of their duties under AWA when they are released from their sentence, even requiring them to sign a form which proves they have been notified of their duties (not so with group "A".

However, what the USAG did was to BROADLY declare -without promulgation- that AWA was to be applied retroactive as to all those convicted of a sex offense, including those before its enactment.

The essence of those USAG acts was that, certain sex offenders (Group-A) were never notified of their duties and many have been prosecuted and are now residing in prison (The above petition includes one of them). Group-B, excepting their individual failure to follow duties outlined on the forms they signed, have not been prosecuted.

Group-A has thus been denied due process and equal protection by being treated differently. I liken the USAG's -BROAD DECLARATION- to lawmakers standing on the steps of the legislature and screaming out what the laws are, then arresting folks for failure to follow them. The very fact that Congress requires a form to be signed is proof that, notice MUST precede PROSECUTION; in many cases it has not.

While it is true that Congress vested to the USAG the right to decide -retroactivity- Congress also told the USAG what else he must do, and he has not done that. In essence, the USAG's acts have tricked many into prisons without the notice that Congress required.

Finally, even beyond these issues are others created by the states when they exempted folks from registration, and some whose registration term has ended, none of these questions -and others- are addressed.

eAdvocate