Sex Offender Law Can't Be Applied Retroactively

It all depends on the circumstances of a person's case, and when the Adam Walsh Act was enacted; that date cannot be retroactively applied to create a violation! Calder -v- Bull prevails as it should have! Another hidden aspect of AWA goes down... Further, no RSO has ever been notified of any aspect of AWA.

6-1-2010 Washington DC:

(CN) - The Supreme Court on Tuesday refused to retroactively apply a 2006 law that makes it a crime for sex offenders to cross state lines and knowingly fail to register or update a registration.

After being convicted of first-degree sexual abuse in 2004, Thomas Carr was released on probation and moved from Alabama to Indiana without registering as a sex offender in Indiana.

Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006. Among its provisions, the law bars sex offenders from moving across state lines without registering or updating their registrations.

Carr was charged with violating SORNA in 2007, and he entered a conditional guilty plea, reserving the right to appeal. He claimed the indictment against him should be dismissed, because he traveled to Indiana before the sex offender registration law went into effect.

A federal judge in Indiana refused to dismiss the indictment and sentenced Carr to 30 months in prison.

The 7th Circuit upheld the conviction and sentencing, saying SORNA "does not require that the defendant's travel postdate the Act."

At oral argument, Carr insisted that the provision criminalizing the failure to register after moving across state lines can only apply after SORNA took effect.

The government argued that the provision is triggered by a sex-offense conviction, followed by interstate travel and a failure to register. In the government's view, only the failure to register had to occur after SORNA took effect.

"Carr's interpretation better accords with the statutory text," Justice Sonia Sotomayor wrote for the 6-3 majority, reversing the 7th Circuit's ruling. She said the law specifically states that the provision only applies when a person "is required to register under the Sex Offender Registration and Notification Act."

Sotomayor rejected the government's claim that this language was merely a "shorthand way" of identifying those with sex-offense convictions.

She pointed out that, as the government would have it, Congress used 12 words and two implied cross-references to establish that sex offenders were the law's targeted group.

"Such contortions can scarcely be called 'shorthand,'" Sotomayor wrote.

"Once a person becomes subject to SORNA's registration requirements, which can occur only after the statute's effective date, that person can be convicted under [the travel provision] if he thereafter travels and then fails to register."

Justice Samuel Alito dissented, saying the majority "misinterprets and hobbles" the travel provision, designed "to punish and deter interstate movement that seriously undermines the enforcement of sex-offender-registration laws."

He said the majority's conclusion "makes no sense," as it would allow the conviction of a sex offender who moved and failed to register after SORNA's enactment, but not someone like Carr, who moved before the law took effect.

"Is there any reason why Congress might have wanted to treat the second case any differently from the first?" he asked. "In both cases, a sex offender's interstate movement frustrates enforcement of SORNA's registration requirements."

Justices Clarence Thomas and Ruth Bader Ginsburg joined Alito in dissent. ..Source.. by COurtHouse News.com

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High Court Considers Retroactive Effect of Sex Offender Law

2-25-2010 Washington DC:

WASHINGTON (CN) - The retroactive effect of sex offender registration laws was argued before the Supreme Court Wednesday in a case where an ex-convict moved but did not re-register. A law passed later required notification of every move and he was then found in violation of that subsequent law. "Mr. Carr was in violation of the law the instant it was passed, right?" Chief Justice John Roberts asked of the government lawyer.

Thomas Carr registered in 2006 as one of the nation's 700,000 sex offenders, but quickly moved from Alabama to Indiana, where he did not re-register.

Two years later, Congress passed the Sex Offender Registration and Notification Act, which sends sex offenders with up to 10 years in prison if they move between states and knowingly fail to update their registration.The law was passed after roughly 100,000 sex offenders fell off the radar, but Chief Justice John Roberts cast doubt on the reasonability of holding the offender to the new law.

But the bill left the Attorney General to decide whether the law should be applied retroactively, and he said it should apply to all sex offenders. The government therefore pursued Carr after it discovered him in Indiana when he was arrested in a fight.

Charles Rothfeld of Mayer Brown represented Carr. He argued that the law was written in the present tense and does not apply to the past. He said the law requires sex offenders to register before moving. Since the law was not in place before Carr moved, he could not have followed the law as it is laid out, Rothfeld said.

But Justice Samuel Alito pounced on Rothfeld's present-tense argument. "There are provisions of this very statute that use the present tense to refer to past conduct," Alito said. "So why doesn't that knock the legs out from under your textual argument?"

Alito then moved onto Rothfeld's timeline argument.

"There is nothing in the statute that says that those three events have to take place in a temporal sequence," he said in reference to the three steps of conviction, registration and moving.

Roberts set himself apart from the other conservative justices by seeming to advance Rothfeld's arguments while Rothfeld was still at the podium. "That's pretty unusual, isn't it, to have Congress say it's up to the Attorney General whether their laws apply prospectively or retroactively," he said to Rothfeld.

But Justice Antonin Scalia seemed to disagree. "Well, it's not as though he was authorized to make something a crime which wasn't a crime," he said.

Justice Sonia Sotomayor depicted what would happen if the Court ruled in Carr's favor. "The problem is that the people who had traveled previously and failed to register would no longer be subject to any registration process or presumably any punishment," she said.

She then noted that all states have registry requirements and suggested that the case shouldn't even be in federal court. "Why can't those states that the individual has moved to simply prosecute the person for a failure to register?" she asked.

Indiana law punishes sex offenders with up to three years in prison if they fail to register, which is seven years shorter than the federal government's maximum sentence.

Assistant Solicitor General Curtis Gannon represented the government. He argued that the law was meant to catch offenders who had fallen off the registry, including those who traveled before the act was adopted. He added that Carr did not re-register long after the law was passed, violating both federal and state registry laws.

Moving sex offenders are required to re-register within 10 days under both Alabama and Indiana law.

Gannon said that a decade after every state passed sex offender registration laws, 100,000 offenders still could not be found. "They were concerned about the persons who had fallen off the sex offender registry rolls," Gannon said of the government.

Justice Stephen Breyer warned the government lawyer, "This is a very close case. That tends to cut somewhat against you," he said, seeming to refer to a rule that cases on ambiguous laws be ruled in the defendant's favor.

Scalia even chimed in, suggesting the law only addressed moves after its implementation. "They use the past tense when they mean it," he said.

Sotomayor pointed to the ambiguity of the law, noting that while sex offenders are supposed to register, states don't necessarily have places to register, that it's not clear how much time offenders have to register or that they are expected to register the same way they did under the old system.

She asked the government lawyer, "Are you worried at all whether or not there might be a due process violation in all the indeterminate provisions of this law?"

Gannon replied that he didn't think there was a violation.

The federal government has required states to keep records of sex offenders since 1996, but discrepancies soon emerged in the classification of a sex offender, and in the data collected. The 2006 law was the legislature's effort to keep uniform and detailed files on the criminals.

The district court denied Carr's motion to dismiss the indictment on the basis that he moved before the law was passed, and the 7th Circuit affirmed. However, the 10th Circuit reached the opposite conclusion on a different case over the same issue. ..Source.. NICK WILSON

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Carr -v- United States Briefs Filed

12-14-2009 US Supreme Court Case:

Docket: 08-1301

Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; 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.

---: Brief for Petitioner Thomas Carr

---: Brief for National Association for Criminal Defense Lawyers in Support of Petitioner

---: Brief for Law Professors in Support of Petitioner


Earlier case which will be tested:

CALDER v. BULL 8-1-1798 Question:
This is the source of all ex post facto cases: The court holding a law is a ex post facto violation if any of the following have occurred:

1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

eAdvocate Thought, if it takes several levels of state and federal courts, with qualified lawyers interpreting the law, to decide if a man is guilty, how can that reasonable man be expected to understand the law so that s/he does not violate the law? Can this man ever be found guilty?

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MO- Mo. sex offender challenges residency restrictions

9-29-2009 Missouri:

A Missouri sex offender contends a law requiring him to live more than 1,000 feet from schools and child care centers is unconstitutional.

Attorney Michael Gross represented the sex offender Tuesday before the state Supreme Court. Gross says the law should be tossed out and the sex offender allowed to move into an O'Fallon home. The sex offender was convicted of five felony sex crimes in 1999.

Missouri first enacted the law on where sex offenders can live in 2004.

At issue is whether it's permissible for a law passed after the sex offender's conviction to restrict where he can live. There also is disagreement about whether the 1,000-foot buffer should be measured from building to building or lot line to lot line. ..Source.. by Examiner.com

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NY- Bill adds residency, GPS rules for sex offenders

Interesting, everything is specifically tied to the PAST crime, sounds like a clear ex post facto violation, the judge already entered the sentence, this modifies it?

9-22-2009 New York:

After listening to the tearful testimony of a mother whose 8-year-old daughter was molested by a neighbor, Nassau lawmakers Monday moved to expand restrictions on the activities of convicted sex offenders.

A law proposed by Legis. David Denenberg (D-Merrick) and Joseph Scannell (D-Baldwin) would require high-level sex offenders to wear a GPS monitor around their ankles while on probation.

It also would prohibit everyone convicted of a sex crime from living within 2,000 feet of their victim's home or workplace.

Nassau already bans sex offenders from living near schools or parks.

The new residency and monitoring restrictions passed unanimously through the legislature's committees and will be considered at an Oct. 5 public hearing.

Denenberg said he had developed the residency restriction after encountering a constituent who complained that her daughter's convicted molester returned to live in her neighborhood after serving less than five months in jail.

The mother, a pediatric nurse who identified herself only as "Rosemary," testified in favor of the new law - saying her once cheerful daughter refused to leave the house after her confessed molester - the father of her daughter's former best friend - returned to their neighborhood.

"My daughter was afraid to go anywhere in our community," Rosemary said. "She lived in constant fear of this family," which recently moved away. "We should err on the side of the victim."

Legislators thanked her for "putting a face" to a victim's story.

"I don't want another child to suffer," Rosemary said, turning to the cameras. "Here's my face. It's OK." ..Source.. by CELESTE HADRICK

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MO- Proposal would add thousands to sex offender registry

Even a change in the state constitution doesn't eliminate an ex post facto challenge. Changes in law, if resulting in additional punishment, do not change the rights that existed when a crime was committed.

3-26-2009 Missouri:

SPRINGFIELD -- "I believe it's important to know who your neighbors are," said Lisa Simmons, Greene County's sex offender registrar.
Simmons spends her days recording information about the latest people convicted of sex crimes.

"We include name, address, date of birth, descriptors, charges which will include age of victim, the victim's gender, offense city, and conviction city," she said.

On a typical day, Simmons adds nearly two dozen people to the Web site in Greene County alone.

"We see people everyday in this office that look like a common, ordinary person that you would never guess just running into them," said Simmons.

He could be your neighbor, and you just don't know it. But that could change if a Missouri state senator gets his way.

"It would afford Missouri citizens the opportunity of amending the state constitution so that those who've been convicted of a registerable sex crime prior to January 1, 1995, would have to be registered," said Sen. Jason Crowell, who authored the resolution.

It would upend a 2006 Missouri Supreme Court opinion that ruled retroactive registration illegal under Missouri's Constitution. The decision forced law enforcement officers to remove more than 4,300 names from the list. A "yes" vote though from fellow lawmakers, then voters would put them back on the list.

"It would add approximately 180 offenders in Greene County, " said Simmons.

That's more names for Simmons to enter, but she says she's all for it if it can make her family and her neighbors safer.

If both houses of the Legislature approve the resolution, the governor would place it on either the August 2010 or November 2010 statewide ballot. ..News Source.. by Sara Forhetz, KY3 News

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