Breaking a Law…That Doesn’t Exist Yet

2-23-2010 Washington DC:

Why the Supreme Court should overturn the retroactive application of a sex-offender statute.

In 2003 Thomas Carr was arrested in Alabama for inappropriately touching a 14-year-old girl over her clothes. He pleaded guilty to first-degree sexual abuse, was jailed, and after receiving credit for time previously served, was released from prison in July 2004. In compliance with Alabama law, he registered as a sex offender three days after his release. Several months later Carr moved to Ft. Wayne, Ind. But Carr didn't escape trouble for long. In July 2007 he was arrested again for involvement in a fight.

When authorities checked Carr's criminal history, they discovered that he had previously committed a sex offense and was not registered as a sex offender under Indiana state law or the federal statute called the Sex Offender Registration and Notification Act (SORNA). Carr was clearly in violation of Indiana law, but claims he shouldn't be subject to punishment under SORNA, a law that went into effect more than a year after he moved to Indiana and three years after committing the sex offense. Under Indiana law, sex offenders who fail to register with the state within 10 days are subject to a year in prison, but SORNA requires sex offenders to register three days after they move, and failure to comply in time can result in up to 10 years behind bars.

"It was impossible for Carr to take into account what the [federal] law was because it didn't exist [when he committed the crime]," says Jonathan Marcus, an attorney representing the National Association of Criminal Defense Lawyers, an organization supporting Carr's position. "He didn't have notice."

By 1996 every state and the District of Columbia had enacted a sex-offender registration law. Ten years later the federal government decided to weave together these varying state laws to create the Adam Walsh Child Protection and Safety Act, which includes SORNA. Now the Supreme Court is left to unravel exactly what the statute means. The language at issue states that a crime is committed by someone who "travels in interstate or foreign commerce" and fails to register as a sex offender within the prescribed time period. If the court decides to read the word "travels" to mean "future travel," Carr could not be prosecuted under the federal law because he moved to Indiana a year before the statute was enacted. In a case similar to Carr's, the Tenth Circuit determined that SORNA should only cover sex offenders who violate the law after it was enacted.

But in a strange twist, the Seventh Circuit came to an entirely different conclusion. It determined that although Congress wrote "travels" in the statute, it actually meant to write "traveled." The Seventh Circuit relied on previous case law to support its position that Congress's use of tenses "is not very revealing," and reasserted that "the present tense is commonly used to refer to past, present, and future all at the same time." Subsequently, people like Carr could have violated the law when they traveled out of state, even before SORNA's existence.

Legal scholars agree that the Supreme Court will have likely little compassion for Carr, but assert that the legal ramifications of this case could have an adverse precedential impact. "I think there is often a mistake made in the public that because it involves sex offenders, they should lose and it's not an important issue for the rest of society," says Corey Rayburn Yung, law professor at John Marshall Law School and author of the Sex Crimes blog.

The ex post facto clause of Article I, Section 9, of the Constitution is designed to prevent the legislature from punishing individuals for things that had been done prior to the passage of a law. "Just think about it in terms of olden days when a king could suddenly banish everyone who wore red the day before," Yung explains. "It's a basic right to know what the law is ahead of time so you can abide by it. But a statute like SORNA is actually a retroactive piece of legislation that one might not know they have violated."

Some legal scholars speculate that enacting SORNA was the federal government's way of usurping power from the states to more harshly punish sex offenders. "The state laws work," Yung says. "For the federal government to take over cases merely because someone passes between states seems wrong. At that point, why even have state criminal laws?" Essentially, the federal government could claim to have jurisdiction over specific issues when individuals cross state lines at any point in their lives. "It's a genuine threat to the liberty of citizens," he adds.

Carr's defense attorneys aren't advocating for him to walk out of the courthouse without serving any prison time, acknowledging that he violated Indiana's law, but arguing that the federal law shouldn't apply.

Yung is pessimistic that the Supreme Court will rule in Carr's favor. "The court isn't sympathetic to criminals, and they're even less sympathetic to sex offenders," he says. But legal scholars are concerned about the broader-sweeping legal issue, the fact that the Constitution should apply equally to everyone. If the court allows disfavored groups of society to be punished by retroactive laws, who will be punished next? ..Source.. Krista Gesaman | Newsweek Web Exclusive