Oct 2011

U.S. Supreme Court to Consider Retroactively Requiring Individuals Convicted of Certain Crimes to Register as Sex Offenders

The U.S. Supreme Court opened its 2011 term by examining the United States Attorney General’s authority to retroactively require individuals convicted of certain crimes to register as sex offenders. While the Court is only considering a technical question of whether a particular individual has standing to challenge the Attorney General’s actions, the case once again highlighted the expansive (and punitive) scope of sex offender registries.

In 2006 Congress adopted a federal sex-offender registry law known as SORNA (18 U.S.C. § 2250). One provision of SORNA authorized the Attorney General to determine whether or not the law’s registration requirements would be applied “to sex offenders convicted” before the law’s enactment. While the United States Constitution prohibits Congress from passing ex post facto or retroactive criminal laws, the Supreme Court declared in the 2003 case Smith v. Doe that sex-offender registries are not subject to this provision.

In 2001, five years before SORNA’s enactment, Billy Joe Reynolds pleaded guilty in Missouri to state felony sex offense (Mo. Rev. Stat. § 566.064) and was sentenced to prison. He was paroled in 2005. In early 2007, then-Attorney General Alberto R. Gonzalesopted to exercise his authority under SORNA and announced an “interim rule” (28 C.F.R. § 72.3) applying the law’s registration requirements retroactively to all convicted sex offenders. Gonzales bypassed the normal requirements for adopting a federal regulation, which require a notice and comment period, saying it would be “contrary to the public interest.” Gonzales’ successor,Michael Mukasey, adopted the interim rule as a final rule in mid-2008.

While Gonzales’ interim rule remained in place, a grand jury in Pennsylvania charged Reynolds with violating SORNA’s registration requirements — specifically failing to register as a sex offender when he arrived in Pennsylvania in October 2007. Reynolds moved to dismiss the indictment due to the Attorney General’s failure to follow proper procedures in adopting his interim rule. The trial court denied this motion. Reynolds then entered a conditional guilty plea — which carried an 18-month prison sentence — that preserved his right to appeal.

The Third U.S. Circuit Court of Appeals in Philadelphia also rejected Reynolds’ challenge to the validity of the interim rule (U.S. v. Reynolds). That court went a step further and said Reynolds lacked standing to challenge the interim rule at all. Citing an earlier decision by the same Court, the Third Circuit said, “the Interim Rule only affected those sex offenders who ‘did not have a registration requirement prior to the passage of SORNA but nonetheless were subject to sex offender registration requirements after SORNA became law[.]’” Since Reynolds was previously subject to Missouri law requiring registration as a sex offender, he could not now challenge the federal law’s application to him.

The United States Supreme Court agreed to review this narrow question of whether Reynolds has standing to challenge the interim rule. Reynolds’s public defender argues that the plain language of SORNA — which says the Attorney General “shall have the authority to specify the applicability [of SORNA]…to sex offenders convicted before the enactment” of the law — means Congress delegated to the Attorney General the power to decide whether SORNA applied at all to individuals like Reynolds. That clearly gives Reynolds standing to challenge the interim rule.

The Solicitor General, representing the Attorney General, disagrees. The government maintains that Reynolds’ “duty to register as a sex offender under SORNA arises directly from the statute itself,” and not the interim rule. The Solicitor General says that the language of SORNA merely “confers discretionary authority on the Attorney General to modify or confirm the facially applicable registration requirements with respect to” previously convicted defendants like Reynolds. In other words, by this reading, SORNA allows the Attorney General to exempt individuals who would otherwise be automatically covered by the law.

The justices heard oral arguments from both sides on October 3. A final decision could take several weeks or months. If the Court agrees with Reynolds that he has standing to challenge the interim rule, the case will return to a federal court in Pennsylvania for a hearing on the merits of his claim that the rule failed to comply with federal law governing administrative regulations. If Reynolds prevails on that claim, his conviction for violating SORNA may be reversed entirely.

While most people charged with violating sex-offender registry laws won’t have their case heard by the Supreme Court, it is still important to have experienced counsel who can navigate you through the increasingly complex world of federal and state rules governing registries. Ideally, you can avoid registration altogether by avoiding conviction for a sex crime. If you or someone you know is facing such charges, contact the attorneys of Satawa Law immediately.

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