Case Law Updates
In December 2016, the SMART Office updated and released Sex Offender Registration and Notification in the United States: Current Case Law and Issues, which updates previous versions with pertinent new cases, highlights issues raised, and summarizes the sex offender registration and notification system in the United States.
Clarification of the Impact of the Decision in United States v. Reynolds on SORNA Implementation
In United States v. Reynolds, 132 S.Ct. 975 (2012),the United States Supreme Court addressed issues regarding the prosecution of federal failure to register cases pursuant to 18 U.S.C. 2250. Certain jurisdictions have inquired whether the Reynolds decision prevents their jurisdiction from enforcing their current retroactivity provisions. While the SMART Office cannot opine on particular litigation risks for any jurisdiction, the Office would like jurisdictions to know that Reynolds does not have any direct effect on the Office’s existing guidance regarding how jurisdictions should handle retroactivity.
Reynolds does not speak directly to the jurisdictions’ implementation of SORNA. Rather, Reynolds addressed whether SORNA’s retroactivity requirements could have applied to pre-Act offenders, in the context of a Section 2250 prosecution, during a time period before the Attorney General had actually specified that such requirements applied. And, while the Supreme Court did hold that SORNA’s retroactivity requirements did not apply to pre-Act offenders until the Attorney General so specified, the Court’s opinion nonetheless did not answer the question of when this specification was made, or when SORNA’s retroactivity requirements actually became effective.
Since the decision in Reynolds, there have been no new federal statutes or regulations that would add to or modify the Supreme Court’s ruling in Reynolds. In the absence of new statutes, regulations or caselaw, the SMART Office will not be amending any of its prior guidance to jurisdictions regarding retroactive registration. However, jurisdictions are free to attempt to align their respective registration programs with Reynolds. For example, a jurisdiction that includes retroactivity provisions in its registration scheme may choose to exercise discretion not to prosecute individuals who were convicted of sex offenses pre-SORNA and had not registered within that jurisdiction before the interim or final rule was announced by the Attorney General.
Clarification of the Impact of the Decision in Carr v. United States on SORNA Implementation
Carr v. United States, 130 S.Ct. 2229 (2010), was a narrow holding about the statutory language of 18 USC §2250. There are a number of issues it did not address:
- Whether SORNA is an unconstitutional ex post facto law (not addressed, Smith v. Doe still governs)
- Whether an offender convicted prior to SORNA is required to register (the retroactivity regulation, 28 CFR 72.3, still governs and, generally, a jurisdiction’s registration scheme(s) will govern)
- Whether an offender convicted prior to SORNA is required to update their registration when they move state-to-state (the retroactivity regulation, 28 CFR 72.3, still governs and, generally, a jurisdiction’s registration scheme(s) will govern)
- Whether a jurisdiction is required to register offenders convicted prior to SORNA’s passage (a jurisdiction’s statutes will govern)
Carr only addressed the specific question of whether an offender convicted prior to SORNA’s passage, who also traveled in interstate commerce before SORNA’s passage, and who failed to register after SORNA’s passage, can be convicted of a violation of 18 USC §2250. The Court hung its proverbial hat on their interpretation of the "traveled" issue, and did not address anything else.
28 CFR 72.3 (the retroactivity regulation) is still in full force and effect, without modification because of the decision in Carr. It applies to sex offenders directly, and generally provides that sex offenders have to register pursuant to SORNA, regardless of when they were convicted.
Our final guidelines (which cite the retroactivity regulation) and proposed supplemental guidelines apply to SORNA registration jurisdictions. They state that a jurisdiction may substantially implement SORNA if that jurisdiction registers persons convicted prior to their implementation of SORNA who fall in to four categories (as opposed to all offenders convicted prior to SORNA’s implementation in a jurisdiction):
- Offenders who are incarcerated;
- Offenders who are on probation or parole;
- Offenders who are presently registering; and
- Offenders who are convicted of a new criminal offense of any kind (the proposed supplemental guidelines would limit this subsection (4) to those offenders convicted of a new felony offense).
Examples of previous case law resources are accessible at the following locations:
- Sex Offender Registration and Notification in the United States: Current Case Law and Issues, December 2015
- Sex Offender Registration and Notification in the United States: Current Case Law and Issues, August 2013
- Sex Offender Registration and Notification in the United States: Current Case Law and Issues, July 2012
- Sex Offender Registration and Notification Case Law Summary, January 2008 - July 2009
For any additional information or clarification, please contact the SMART Office at firstname.lastname@example.org.