Supreme Court places temporal limits on SORNA

6-5-2010 Washington DC:

The Supreme Court recently addressed the question of whether SORNA criminalizes the failure to register as a sex offender, when a registered sex offender in Alabama relocated to Indiana without complying with the Indiana’s registration requirements, before SORNA’s enactment. In Carr v. United States, the Supreme Court held that SORNA did not apply to this situation.

Enacted in 2006, the Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a). Carr was indicted under §2250 post-SORNA. Carr entered a conditional plea. Affirming the conviction, the Seventh Circuit held that §2250 did not require that a defendant’s travel postdate SORNA and that reliance on a defendant’s pre-SORNA travel poses no ex post facto problem so long as the defendant had a reasonable time to register post-SORNA and failed to do so.

The Supreme Court found that the statute does not impose liability unless a person, after becoming subject to SORNA’s registration requirements, travels across state lines and then fails to register. That interpretation was based on §2250(a)’s text, the first element of which can only be satisfied when a person “is required to register under SORNA.” §2250(a)(1). That §2250 sets forth the travel requirement in the present tense (”travels”) rather than in the past or present perfect (”traveled” or “has traveled”) reinforced this conclusion.

The Court rejected the argument that its holding would create an anomaly in the statute’s coverage of federal versus state sex offenders. Section 2250 imposes criminal liability on two categories of persons who fail to adhere to SORNA’s registration requirements: any person who is a sex offender “by reason of a conviction under Federal law … ,” §2250(a)(2)(A), and any other person required to register under SORNA who “travels in interstate or foreign commerce,” §2250(a)(2)(B). The Court found it entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders, who typically would have spent time under federal criminal supervision. The Court also found it reasonable that Congress would have given the States primary responsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after SORNA’s enactment, they use interstate commerce channels to evade a State’s reach.

Based on SORNA’s structure, there was no reason to doubt that Congress intended §2250 to do exactly what it says: to subject to federal prosecution sex offenders who elude SORNA’s registration requirements by traveling in interstate commerce. Because §2250 liability could not be predicated on pre-SORNA travel, the Court did not address whether the statute violated the Ex Post Facto Clause.

SORNA’s requirements are considerable. This decision has the effect of holding its enforcement to the elements contained therein. The Court rejected the opportunity to base its decision on the “purpose” of the statute as opposed to the specific statutory language. ..Opinion of.. Kim Deater