Archive for category Legal Challenges

CT High Court Mulls “Secret” Sex Offender Registry

Mar 18

Posted by constitutionalfights in Constitution, Education, Legal / Official Info, Legal Challenges, News / Blog Sites, Why You Should Care | No Comments

Courant.com: Connecticut high court mulls ’secret’ sex offender list.

Hartford, Conn.- The Connecticut Supreme Court is considering whether officials can keep private the process by which certain sex offenders get onto a non-public registry. The dispute concerns Connecticut’s “restricted” sex offender registry, available only to police and courts.

By law, sex offenders can get on the restricted list if a judge decides they are not dangerous to the public and naming them would identify their victim. The Freedom of Information Commission and Department of Public Safety disagree over whether police must disclose when, where and by whom those court decisions were made.

Justices heard arguments Thursday from attorneys for both state agencies. A reporter for the Journal Inquirer newspaper of Manchester, which first sought the information, also spoke.

The Supreme Court has not said when it expects to rule.

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Ohio Revised Code Section 2950 - Notification

Mar 18

Posted by constitutionalfights in Constitution, Education, Legal / Official Info, Legal Challenges, Support, Why You Should Care | No Comments

Ohio Revised Code: 2950.11
Notice of identity and location of offender in specified geographical notification area.

This posting is to clarify exactly what RC 2590.11 says as it relates to our previous report.
See previous post: Ohio Supreme Court – Ohio vs. McConville – Case No. 2009-0893 – 3/18/2010Case Summary

2590.11 (B)(2) :

(B) The notice required under division (A) of this section shall include all of the following information regarding the subject offender or delinquent child:

(1) The offender’s or delinquent child’s name;
(2) The address or addresses of the offender’s or public registry-qualified juvenile offender registrant’s residence, school, institution of higher education, or place of employment, as applicable, or the residence address or addresses of a delinquent child who is not a public registry-qualified juvenile offender registrant;

2590.11 (F)(2) :

(F)(2) The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment. In making the determination of whether a person would have been subject to the notification provisions under prior law as described in this division, the court shall consider the following factors:
(a) The offender’s or delinquent child’s age;
(b) The offender’s or delinquent child’s prior criminal or delinquency record regarding all offenses, including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made;
(d) Whether the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made involved multiple victims;
(e) Whether the offender or delinquent child used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;

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OH Supreme Court Invalidates Sex Offender Notification

Mar 18

Posted by constitutionalfights in Constitution, Contact Officials, Education, Legal / Official Info, Legal Challenges, Mission, News / Blog Sites, Support, What You Must Do, Why You Should Care | No Comments

Ohio Supreme Court - Ohio vs. McConville - Case No. 2009-0893 - 3/18/2010
Case Summary

The reporting on this case has been horrendous and inaccurate. This is not one of the challenges we have been following since November 2009 regarding retro-activity ex post fact, separation of powers, which should be decided soon. This is an important decision nonetheless. Although this a “slip” opinion (an initial notice which is subject to revision), it appears that this ruling relates only to community notification of those who were informed of their sex offender status after January 1, 2008.

The Supreme Court of Ohio ruled today that an exception to the community notification requirement for Tier III sex offenders set forth in current R.C. 2950.11(B)(2) applies to offenders who were first notified of their classification after Am Sub. S.B. 10 took effect on Jan. 1, 2008. In other words, even if you were reclassified after January 1, 2008, you are still permitted the exception to community notification. Community notification is the process of informing schools, neighbors, and daycare centers about the presence of a sex offender living in the area.

daytondailynews.com: Court: New sex offenders may avoid registry rules (misleading headline)
chillicothegazette.com:Court: New sex offenders may avert notification
WBNS: Ohio Supreme Court Rules New Sex Offenders May Avoid Registry (false headline)

The Ohio Supreme Court has delivered a major setback to efforts by state lawmakers to apply the tough new sex offender notification requirements laid out in the federal Adam Walsh Act.

In a unanimous decision Thursday, the high court ruled sex offenders notified of their status in the most severe category after Jan. 1, 2008, may avoid the new community reporting requirements under exceptions found in Ohio’s old law. That means word of newly registered sex offenders in the most egregious category may not be disseminated to all the volunteer groups, schools and businesses Ohio’s rewrite of the law intended.

In the majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to continue to apply.

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The case involved Stephen McConville, who pleaded guilty in Lorain County in July 2008 to rape and gross sexual imposition. After a hearing, a trial court decided he was unlikely to commit future sexually oriented offenses and could therefore be exempted from ongoing community notification requirements.

The 9th District Court of Appeals affirmed the trial court’s decision that McConville was eligible for the exemption even though he’d been classified as a Tier III sex offender after Jan. 1, 2008.

In the Ohio high court’s majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to community reporting to continue to apply.

A legislative analysis of the Senate bill that contained the change advised lawmakers at the time that it “automatically replaces the period of time for which the offender or delinquent child had a duty “to register” (this is an inaccurate term - it should read “to be subject to notification”) prior to January 1, 2008.”

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Excerpts from Slip Opinion:
“We are asked to decide whether the community-notification
provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their
sexual-offender status after the effective date of the amendment of that section by
2007 Senate Bill 10, or whether R.C. 2950.11(F)(2) applies only to sexual
offenders whose status was determined under the legislation in effect prior to that
effective date. Because we conclude that R.C. 2950.11(F)(2) applies to
defendants who are notified of their sexual-offender status after the January 1,
2008, effective date of the amendment of that section by Senate Bill 10, we affirm
the judgment of the court of appeals.

Based on the foregoing, we hold that the community-notification
provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their
sexual-offender status after January 1, 2008, the effective date of the amendment
of that section by Senate Bill 10.”

Case Summary:

“Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender classification scheme by adopting a new set of classifications based solely on the crime for which an offender was convicted. In the legislation adopting the new classification scheme, Am Sub. S.B. 10, the General Assembly included general provisions requiring that adults convicted of Tier III sex offenses and certain child sex offenders must register every 90 days for life with the sheriff in any county where the offender lives, works or attends school. The statute also requires sheriffs to provide notification including the residence and work addresses and a photo of the offender to specified parties in the surrounding community, including neighbors and nearby schools, day care centers, and victims of past sex crimes.

The legislation also included a provision, R.C. 2950.11(F)(2), stating that the community notification requirement for Tier III offenders “does not apply” to an offender if a court finds at a hearing, after considering 11 specific criteria set forth in that section, “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”

In this case, Stephen McConville pleaded guilty in July 2008 to rape and gross sexual imposition. At sentencing, McConville was notified that he would be classified as a Tier III sexual offender under the classification system established by S.B. 10. The trial court advised McConville of his registration and reporting duties pertaining to the Tier III classification. The court then conducted a second hearing for further review of the community-notification requirement. After considering the statutory factors set forth in R.C. 2950.11(F)(2), the trial court determined that McConville was “unlikely to commit a sexually oriented offense in the future, and that suspending the community notification requirements of R.C. 2950.11(F)(1) [was] in the interest of justice.”

The state appealed, arguing that the exception to community notification set forth in R.C. 2950.11(F)(2) was intended to apply only to persons who had been classified under the pre-2008 sex offender statute in a category that did not require community notification, but who were subsequently reclassified as Tier III offenders under the provisions of S.B. 10. The 9th District Court of Appeals affirmed the trial court’s holding that R.C. 2950.11(F)(2) was applicable to offenders like McConville who were notified of their classification after Jan. 1, 2008. The state sought and was granted Supreme Court review of the 9th District’s decision.

In today’s unanimous decision, Justice Cupp wrote: “R.C. 2950.11(F)(2) provides: ‘The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.’ The remainder of the statute details the 11 factors the trial court must consider to determine whether the sexual offender would have been subject to community notification under prior law. … This appeal presents a matter of statutory interpretation. As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage. … Moreover, there is no need for this court to apply the rules of statutory interpretation when the language of a statute is plain and unambiguous and conveys a clear and definite meaning.”

“The state’s argument is that R.C. 2950.11(F)(2) gives the trial court the discretion to suspend the community-notification requirement in consideration of the statute’s limiting factors only when the sexual offender’s status was previously determined under the law in effect prior to Senate Bill 10. … We find that the language of R.C. 2950.11(F) is unambiguous. Accordingly, we do not find the state’s argument persuasive. The language used in the statue pertains to those sexual offenders whose status is determined after the effective date of R.C. 2950.11 as amended by Senate Bill 10. The provision is written in the present tense, referring to a ‘hearing’ at which a judge ‘finds’ certain facts. The 11 factors of R.C. 2950.11(F)(2) are similarly written in the present tense, indicating an evaluation presently taking place, and not one that has already occurred. In contrast to the state’s position, the language of the statue does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of former R.C. Chapter 2950. As a result, we decline to interpret the statute when no interpretation is required.”

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IL: Rosin v. Monken

Mar 17

Posted by constitutionalfights in Constitution, Education, Legal / Official Info, Legal Challenges, News / Blog Sites | No Comments

Indianalawblog.com: Rosin v. Monken

The Illinois case is Rosin v. Monken, an 8-page opinion where Judge Cudahy writes:

After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted a plea agreement that did not require Rosin to register as a sex offender in New York. He contends that Illinois is constitutionally required to give effect to the New York judgment and thus cannot, on the basis of that order, force him to register as a sex offender within its jurisdiction. The district court granted defendants’ motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject. Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm.

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Sex Offender Sues Ohio For Right to Go Door To Door

Mar 16

Posted by constitutionalfights in Education, Legal / Official Info, Legal Challenges, Mission, Support, Why You Should Care | No Comments

courthousenews.com: Jehovah’s Witness Sex Offender Sues Ohio For Right to Go Door To Door.

Lawrence Bullard, a Jehovah’s Witness and a sex offender, is suing his parole officer and the Ohio Department of Corrections for his right to go door to door, stating that “the state is forcing him to choose between his faith and his freedom.”

Good for him. We hope he wins this lawsuit. More citizens should be suing the state over these laws and restrictions. We should be flooding the courts in every state and costing states millions of dollars in costs and restitution judgments.

Cincinnati - A Jehovah’s Witness who was convicted of felony attempted sexual abuse has sued the State of Ohio, claiming it unconstitutionally prohibits him from practicing his religion by proselytizing door-to-door more than once a month.

Lawrence Bullard says he should be allowed to proselytize door-to-door twice a week with other Witnesses, as their religion requires. He says he’s an exceedingly low risk to re-offend, and the circumstances prove it.

“On or about Dec. 16, 2001, after another break up, Lawrence went over to [his former fiancée's] house. He was angry at her, upset and confused. He let himself in when she was not home and hid in her closet waiting for her to come home.” When she arrived, he says, he “confronted her. And they argued. At some point, he forcibly kissed her and fell to the floor on top of her. He then put his hands down her pants, touching her pubic area.”

He says he “immediately realized that he made a serious mistake, in violation of both his faith and the law.” He says he called the police from the lobby of his ex’s apartment building, and waited there until they arrested him. After pleading guilty to the class E felony, Bullard says he was classified as a low risk, and sentenced to 10 years of probation and ordered to register as a sex offender.

In 2008, “because of his trouble-free adjustment to probation, he says, he “was placed on non-reporting status.”

Bullard, 37, says he has been married for 4 years. He says his religious practice of going door-to-door twice a week with Witnesses made him well-suited for a job in sales, which he eventually found with a roofing company. But when his parole officer in Ohio found out about his religious practices and his job as a door-to-door salesman, Bullard says, she forbade it. She asked him to sign a document agreeing not to go door to door, but he refused, citing his religion. Ohio then “requested a warrant for his arrest from New York.”

He says the request was ultimately withdrawn, and the Ohio Department of Parole allowed him to proselytize once a month. Bullard says his religion requires him to do it twice a week, and that he’s no risk because he will be accompanied by other Witnesses. He seeks a restraining order and injunction. He is represented by David Singleton with the Ohio Justice & Policy Center.

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GA Supreme Court : Non Sex Crimes Must Register on Sex Registry

Mar 15

Posted by constitutionalfights in Education, Legal / Official Info, Legal Challenges, News / Blog Sites, Why You Should Care | No Comments

ajc.com: Ga. Supreme Court rebuffs sex offender registry challenge - requires some people who have not committed sex crimes to register as sex offenders..

The Georgia Supreme Court has upheld a provision of the state’s sex-offender registry law that requires some people who have not committed sex crimes to register as sex offenders. Under the law, those convicted of kidnapping or false imprisonment of a minor must register as a sex offender, whether or not a sexual crime was involved.

The challenge was brought by Jake Rainer, convicted in 2000 in Gwinnett County of a drug robbery. Rainer, then 18, and his co-defendants picked up a 17-year-old girl who was going to sell them some marijuana. Instead of buying it, they drove her to a cul-de-sac, took the pot and left her. Rainer pleaded guilty to robbery and false imprisonment. Because of the latter conviction, he has had to register as a sex offender, meaning he cannot live or work within 1,000 feet of places where children congregate, such as parks, schools and swimming pools.

Writing for a 5-2 majority, Justice Harold Melton rejected Rainer’s arguments that the provision, as applied to him, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ’sexual’ in nature before being required to register,” Melton wrote.

(this has long been a bogus argument. Anyone who knows anything about these registries knows fully-well how punitive and destructive they are in the lives of those who must publicly register)

The law also advances a legislative goal of requiring the state to inform the public for purposes of protecting children from those who would harm them, Melton said.

Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, “it is no mere administrative formality or minor inconvenience.”

Overall, this decision should actually be viewed positively. Flooding the registries with robbers, kidnappers and other violent criminals will only help destroy the registries in the end.

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State of Ohio vs Nixon - Contract Clause Challenge

Mar 8

Posted by constitutionalfights in Constitution, Contact Officials, Education, Legal / Official Info, Legal Challenges, Mission, Support, Why You Should Care | No Comments

NIXON v. STATE ; Bradley Nixon, Petitioner-Appellee,v. State of Ohio
2010-Ohio-767 - Appeal No. C-090219.
Court of Appeals of Ohio, First District, Hamilton County.
Date of Judgment Entry on Appeal: March 5, 2010.

Ohio Justice & Policy Center, Margie Slagle, and David A. Singleton, for Petitioner-Appellee.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Respondent-Appellant.

Download Decision (PDF)

DINKELACKER, Judge.

{¶1} On July 27, 2001, petitioner-appellee Bradley Nixon pleaded guilty in a plea bargain to one count of gross sexual imposition in violation of R.C. 2907.05(A)(1). The court accepted Nixon’s plea, found him guilty of gross sexual imposition, and imposed five years’ community control. The sentencing entry stated that Nixon was “found to be a sexually oriented offender.” Under former R.C. Chapter 2950, Nixon was required to annually register as a sexual offender for ten years.

{¶2} In 2007, the General Assembly enacted Am.Sub.S.B. No. 10 (”Senate Bill 10″) to implement the federal Adam Walsh Child Protection and Safety Act of 2006. Senate Bill 10 amended various sections of R.C. Chapter 2950. Nixon was notified that he had been reclassified under Senate Bill 10 as a Tier I sex offender and that he was required to annually register with the local sheriff for 15 years.

{¶3} Nixon filed an R.C. 2950.031(E) petition to contest his reclassification, challenging the constitutionality of Senate Bill 10. After a hearing, the trial court granted Nixon’s R.C. 2950.031(E) petition. The court found that reclassifying Nixon as a Tier I sex offender under Senate Bill 10 constituted a breach of his plea agreement and an impairment of an obligation of contract, in violation of Section 28, Article II of the Ohio Constitution and Clause I, Section 10, Article I of the United States Constitution, because his plea agreement was a contract with the state of Ohio that he would be obligated to register as a sex offender for only ten years.

{¶4} The state’s sole assignment of error alleges that the trial court erred in granting Nixon’s R.C. 2950.031(E) petition on the basis that his plea agreement constituted a contract that he would have to register as a sex offender for only ten years.

{¶5} Section 28, Article II of the Ohio Constitution and Clause I, Section 10, Article I of the United States Constitution provide that no laws shall be passed that impair the obligation of contracts. “[A]ny change in the law which impairs the rights of either party, or amounts to a denial or obstruction of the rights accruing by contract, is repugnant to the Constitution.”[ 1 ] Because plea agreements are contracts between the state and criminal defendants, principles of contract law are applicable to their interpretation and enforcement.[ 2 ]

{¶6} We held in Burbrink v. State[ 3 ] that the retroactive application of Senate Bill 10’s tier-classification and registration requirements to a sex offender who had pleaded guilty to a sexually-oriented offense pursuant to a plea bargain under former R.C. Chapter 2950 did not violate the Contract Clause of the Ohio and United States Constitutions, because when the offender entered his plea he had no reasonable expectation that his sex offense would never be made the subject of future legislation and no vested right concerning his registration duties. Senate Bill 10’s tier-classification and registration requirements are remedial, collateral consequences of the underlying criminal sex offense, and they do not affect a plea agreement previously entered between the state and the offender.[ 4 ]

(Once again, ignorant and uninformed judges refuse to find these restrictions and requirements as being the punishment that they clearly are.)

{¶7} We pointed out in Burbrink that, under former R.C. Chapter 2950, an offender who pleaded guilty to a sexually-oriented offense was by operation of law a sexually-oriented offender who had to register annually for ten years. By not requesting a higher sexual-offender classification, the state had fulfilled its part of the plea agreement.[ 5 ] Once the offender had pleaded guilty and had been sentenced, both he and the state had fulfilled their respective parts of the plea agreement, and no action taken after that time could have breached the plea agreement.[ 6 ]

{¶8} In White v. State,[ 7 ] we held, relying on Burbrink, that the retroactive application of Senate Bill 10’s tier-classification and registration requirements did not constitute a breach of White’s plea agreement or an impairment of his right to contract where the April 19, 1999, entry withdrawing White’s not-guilty plea and entering his plea of guilty to sexual battery stated that he would be classified as a sexually-oriented offender rather that a sexual predator.

{¶9} We hold in this case that pursuant to Burbrink and White the retroactive application of Senate Bill 10’s tier-classification and registration requirements did not violate the Contract Clause of the Ohio and United States Constitutions because it did not impair Nixon’s rights under any contract with the state of Ohio that, under his plea agreement, he would be obligated to register as a sex offender for only ten years. The application of Senate Bill 10’s registration requirements did not constitute a breach of Nixon’s plea agreement or an impairment of his right to contract. Therefore, the trial court erred in granting Nixon’s R.C. 2950.031(E) petition. The assignment of error is sustained.

{¶10} The judgment of the trial court is reversed, and this cause is remanded for the trial court to enter an order reflecting that Senate Bill 10’s tier-classification and registration requirements are applicable to Nixon as a Tier I sex offender.

Judgment reversed and cause remanded.
Cunningham, P.J., concurs.
MALLORY, JUDGE, concurring in judgment only:

{¶11} I agree that the judgment of the trial court must be reversed in this case, but not for the reasons expressed by the majority. I would reverse the trial court’s judgment on the basis that the record does not contain sufficient evidence that Nixon’s ten-year registration requirement was a term of his plea agreement. The record simply does not support the trial court’s determination that there was an agreement between the state and Nixon as to his sexual-offender classification and registration requirements. Therefore, the retroactive application of Senate Bill 10’s tier-classification and registration requirements does not impair any contract between Nixon and the state or violate his constitutional right to contract.

{¶12} There may be a case in which the record demonstrates that the terms of a plea agreement between the state and a sexual offender constituted a valid contract as to the offender’s classification and registration requirements. I do not foreclose the possibility that in such a case the retroactive application of Senate Bill 10’s tier-classification and registration requirements may be an unconstitutional impairment of contractual obligations and a violation of the offender’s right to contract.

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WI Bill to Override Local Sex Offender Restrictions

Mar 1

Posted by constitutionalfights in Constitution, Contact Officials, Education, Legal / Official Info, Legal Challenges, Mission, News / Blog Sites, Support, What You Must Do, Why You Should Care | No Comments

wtaq.com: Bill Aims To Create Statewide Sex Offender Residency Laws.
greenbaypressgazette.com: Wisconsin bill may override local sex-offender residency rules.

A new bill in the Legislature would create statewide limits on where sex offenders can live, and override more restrictive local laws like those in Green Bay. The city adopted strict residency rules in 2007. And that drove sex offenders out to the suburbs, where a few passed their own laws and most called for uniform state limits. De Pere will consider residency restrictions Tuesday.

Assembly Republican Phil Montgomery of Ashwaubenon says there should be uniformity statewide – and it must spell out places where sex offenders can live. The vast majority of Green Bay is off limits to those offenders – and Common Council president Chris Wery defended its law, saying the city still has than its share of offenders. A statewide policy was proposed a few years ago, but it never got anywhere.

State corrections’ officials generally oppose residency restrictions, saying they drive sex offenders underground just so they can find a place to live. The department’s Tom Smith say they’ve found offenders at homes in Green Bay while using De Pere addresses. And if they’re not using fake addresses, Smith says many don’t register with the state at all – which sex offenders are required to do by law.

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Transcripts of SCOTUS Ex Post Facto Oral Arguments

Feb 25

Posted by constitutionalfights in Constitution, Education, Legal / Official Info, Legal Challenges, Mission, What You Must Do | No Comments

Sentencing Law & Policy: Today’s SCOTUS sex offender Ex Post oral argument transcripts

We now have a chance here to post the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341). I fear I won’t have a chance to read these transcripts for a while, but perhaps readers can note any important highlights we have missed.

Let us be clear: This case is convoluted, for sure, and difficult to follow the details of the facts and law. But the essence of this case is this:

1. Mr. Carr committed a sex offense in 2004 in Alabama. After his release , he registered in Alabama.
2. Later in 2004, he moved to Indiana where he did not register.
3. His failure to register in Indiana was discovered in 2007 when he was indicted under SORNA.
4. The Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act was enacted on July 27, 2006.

Therefore, this case argues that SORNA, which did not exist when Mr. Carr moved in 2004, should not apply. Mr. Carr moved before SORNA made it illegal for him to move and fail to register. Now, each state has its own registration laws and if Indiana law required him to register, then he could be held liable within that state. But this case revolves around a federal prosecution under a law which did not exist when Mr. Carr violated it.
So…while this is a retroactivity (Ex Post Facto) case, it is somehwat different than the Ex Post Facto challenges on SORNA itself, which challenge whether SORNA can be applied retroactively, as it relates to extending registration requirements. Having said that; it is a very important test case of how the US Supreme Court will rule on retroactive SORNA laws.

Excerpts:

JUSTICE BREYER: Well, what is the basic purpose of this statute? I’m having a hard time with it. Is it — is the purpose of the statute to try to get a lot of people to register who haven’t registered at all? Or is the purpose of the statute to get the people who had registered in one State and then moved, and make sure they register in another State?

MR. ROTHFELD: I think that the purpose was generally to encourage registration of sex offenders. Now, of course, when — when Congress wrote the statute, as — as has been pointed out, it was not apparent to them that it was going to apply to people who had committed sex offenses before SORNA was enacted at all. That turned upon the Attorney General’s subsequent determination.

JUSTICE BREYER: No, I mean if they are just trying to get people to register in general, and they are not particularly worried about travel, then they are using this travel as a kind of jurisdictional hook. And if they are using it as a jurisdictional hook, they would like to get everybody, as many as possible, that argues against you.

MR. ROTHFELD: Well, two points -

JUSTICE BREYER: I — I — I have a hard time seeing just what they are aiming at.

MR. ROTHFELD: Well, it — it’s — to — to be honest, I think it’s not entirely clear that Congress had anything specific in mind beyond a reaction to the prior regime in which there were inconsistent approaches being taken by the States.
———————————
JUSTICE SCALIA: I don’t know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That’s the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that — that would later justify registration. It seems to me you are just making up the — the prior act that — that triggers the interstate travel requirement.

MR. GANNON: Well, I don’t think that we are making it up, Justice Scalia.

JUSTICE SCALIA: Well, what text do you base it on? One says “is required to register,” and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it’s after you commit the offense that you must travel on interstate. Where do you get that from?

MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders. The fact that the purpose of the statute is to recapture missing sex offenders, which are persons who engaged in interstate travel to elude the registration requirements that already apply to them as sex offenders. And so we think that when Congress invoked the — its powers to regulate travel and interstate commerce, in order to give that element meaning, we think that it makes sense to apply it to persons who already have the type of sex offense convictions that SORNA requires them to register for.

CHIEF JUSTICE ROBERTS: So your answer to Justice Scalia is that you don’t get it from the language? We get it from the anomaly, you get it from the purpose.
———————————–
JUSTICE BREYER: Do you find any where -where they were both phrased in present tense and it was pretty clear that Congress intended to catch activity that was — at least where the jurisdictional part took place before the statute took effect? You find that good an analogy anywhere?

MR. GANNON: I — I’m not aware of — of a provision that’s — that’s phrased like that-

CHIEF JUSTICE ROBERTS: I — I tried to find one and — and couldn’t. I mean, looking up travels in — in the code, in each of those cases that I found it’s always — it looks like it’s — it’s linked directly to the activity that’s meant to be covered. You know, traveling for the purpose of the — the activity that’s against the law.

MR. GANNON: It’s — that’s — that’s true — in most instances in which Congress has an interstate travel element, that’s true. In some — in some cases like the — the statute at issue in the Trupin case about possession of — of — of stolen goods that have traveled in interstate commerce, that -that’s — that’s — that’s an invocation of-

JUSTICE SCALIA: Yes, where — where it means prior travel, it says so, use of a firearm that has traveled in interstate commerce. They use the past tense when they mean it.
————————————
JUSTICE ALITO: But all of those provisions refer now, as a result of the Attorney General’s determination that pre-SORNA convictions qualify, all of those provisions use the present tense to refer to activities that can have taken place in the past.

MR. ROTHFELD: That is correct. At the time that Congress wrote those civil provisions, this statute, on its face, applied prospectively only. The Attorney General had not yet retroactively applied it. Congress specifically gave the Attorney General the authority to apply it retroactively in defining which offenders had to register. It did not give him any authority to retroactively change the scope of the -
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JUSTICE ALITO: Well, Mr. Gannon may have made an argument that is not helpful to his position. But can you accept that the first provision means exactly what it says: “Is required to register.” And that takes effect on day when SORNA is enacted.

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SCOTUS, SORNA and the Ex Post Facto Clause

Feb 24

Posted by constitutionalfights in Constitution, Education, Legal / Official Info, Legal Challenges, Mission, Why You Should Care | No Comments

scotusblog.com: SORNA and the Ex Post Facto Clause -Carr v. United States, Argument preview.

Below, Kate Neilson of Harvard Law School previews Carr v. United States (08-1301), one of two cases to be heard by the Supreme Court on Wednesday, February 24. Check the Carr v. United States SCOTUSwiki page for additional updates.

The federalization of sex offender policy began in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act). Twelve years later, Congress expanded and strengthened registration programs in the Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act. Among other things, SORNA in 18 U.S.C. § 2250(a) created a new felony that penalizes sex offenders who are required to register under SORNA but knowingly fail to do so after traveling in interstate or foreign commerce. SORNA also authorized the Attorney General to determine whether and how the statute’s registration requirements applied to sex offenders convicted before the statute was enacted; on February 28, 2007, the Attorney General issued a regulation in which he indicated that SORNA’s registration requirements applied to all sex offenders, including those who were convicted prior to the statute’s enactment.

On February 24, in No. 08-1301, Carr v. United States, the Court will consider the application of SORNA’s registration requirements to individuals who not only were convicted before SORNA’s enactment but also traveled before the statute became law. This will be the Court’s first consideration of sex offender registration laws since it upheld two state statutes against Ex Post Facto Clause and due process challenges in 2003.

In 2004, petitioner Thomas Carr was convicted of first-degree sexual abuse in Alabama and registered as a sex offender there after his release from custody. When Carr moved to Indiana at the end of 2004, however, he failed to register there – a failure that was discovered in July 2007, when he was arrested for an unrelated incident. After Carr was indicted for failing to register under SORNA, he moved to dismiss the indictment on the ground that his interstate travel pre-dated SORNA and a conviction would thus violate the Ex Post Facto Clause. The motion was denied; Carr entered a conditional guilty plea and appealed the denial.

The Seventh Circuit consolidated the appeal with that of Marcus Dixon, whose offense and travel had also predated SORNA. In his appeal, Dixon made a similar Ex Post Facto argument but also argued that, as a matter of statutory construction, he did not violate SORNA because his travel occurred before the statute was enacted. The Seventh Circuit rejected the Ex Post Facto argument. In its view, such convictions did not violate the Ex Post Facto Clause as long as “at least one of the acts” “required for punishment” takes place after the statute went into effect and the defendant had a “reasonable time” in which to register after the Attorney General issued the regulation. The court of appeals thus affirmed Carr’s conviction, concluding that five months was a “sufficient grace period” in which to register. However, while it also rejected Dixon’s statutory argument, it nonetheless reversed his conviction on the ground that he had not had sufficient time to register.

Carr filed a petition for certiorari, which the Court granted on September 30, 2009. In his opening brief on the merits, Carr argues that SORNA’s use of the present tense “travels” demonstrates that the statute applies only to defendants who engage in current or future travel. Because Section 2250(a)’s other requirements of §2250(a) necessarily refer to post-SORNA activity, the “travels” clause should also be limited to post-SORNA activity. Any ambiguity in the language should be read in his favor, Carr suggests, under the rule of lenity and the presumption against retroactivity.

Carr next argues that SORNA was aimed at interstate travel by unregistered offenders as a harm in itself, which would threaten SORNA’s “uniform system of state registration requirements.” Unlike cases in which Congress has asserted its “full Commerce Clause power” by regulating activities “substantially affecting interstate commerce,” SORNA is limited to offenders who travel “in commerce.” This regulation of the channels of interstate commerce is inherently prospective; Congress cannot “keep these channels free from prior misuse that occurred before enactment of the governing statute.”

Finally, Carr argues that two different interpretations of SORNA both violate the Ex Post Facto Clause. First, even if SORNA merely requires defendants to comply with the Wetterling registration regime, then it impermissibly enhances the penalty for the same crime. Second, if SORNA in fact contemplates a new duty, then Carr was guilty of failing to register at the moment SORNA passed and its retroactive application would thus impose an “impossible duty.” His interpretation, by contrast, is consistent with the canon of constitutional avoidance, while the Seventh Circuit’s construction of the statute as allowing “a reasonable time” amounts to a rewriting of the statute.

In its brief on the merits, the government counters that Section 2250(a) criminalizes a sequence of events: an individual is guilty of failing to register when he first is convicted of a sex offense, then travels, and then knowingly fails to register, even if the travel occurs before SORNA’s enactment. The government argues that this interpretation better effectuates SORNA’s purpose of finding “missing” sex offenders who travel to another state and fail to re-register there. Although Carr suggests that such offenders could still be subject to state prosecution, the government emphasizes that SORNA was enacted precisely because state penalties were inadequate to ensure enforcement of registration requirements.

The government dismisses the canon of constitutional avoidance as inapplicable here. It contends that Congress’s Commerce Clause powers are not implicated by the timing of the travel because the logical connection between a failure to register and interstate travel is unrelated to when the travel occurred. Moreover, there is no “grievous ambiguity” that would justify invoking the rule of lenity.

Finally, the government argues that the law does not operate retroactively for purposes of the Ex Post Facto Clause because the full “course of conduct” criminalized by Section 2250 is not completed until an individual fails to register under SORNA, which necessarily occurs only after the statute’s enactment. The government also distinguishes between offenses under the Wetterling Act and those under SORNA: an individual who cannot register because a state does not have a registry that conforms to the requirements imposed by SORNA may invoke Section 2250(b)’s “uncontrollable circumstances” defense, but he is still liable under SORNA. The government agrees that Congress cannot criminalize conduct in a way that makes it impossible for a defendant to avoid liability, but it describes the allowance of “a reasonable time to comply with a statutory regime” as an uncontroversial “background principle of law.”

Wile this case focuses narrowly on interstate travel with a failure to register, it will be an important case to watch and may give some advance indication of where the Court will weigh-in on other constitutional challenges of SORNA and the Adam Walsh Act.

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