Breaking News

Sex offender registration under SORNA

Below, Harvard Law School’s Kate Nielson recaps last week’s oral argument in Carr v. United States.  Kate’s preview of the proceedings is available here.  Check the Carr v. United States (08-1301) SCOTUSwiki page for additional updates.

At oral argument last week in Carr v. United States, the discussion focused on the text of the Section 2250(a) offense and Congress’s purpose in enacting SORNA.

Arguing for the petitioner, Charles Rothfeld began with his textual arguments, which he would eventually reiterate in rebuttal.  Justice Alito suggested several reasons why Congress in Section 2250(a) might have used the present tense “travels,” including that it did not know whether the statute would apply to pre-SORNA convictions because it had left the decision to the Attorney General.  Later, Justice Alito noted that, in light of the Attorney General’s ruling, other present-tense provisions of the statute now apply to past activities.  Mr. Rothfeld focused on the government’s textual argument: in reading the statute as requiring a series of sequential events, the government interprets “is required to register under SORNA” as merely “shorthand” for “committed a sex offense.”  In response, Justice Alito noted that the order of the events might flow naturally from the purpose of the statute, rather than the order of the textual elements.

Turning to SORNA’s purpose, Mr. Rothfeld met some skepticism when he argued that SORNA was intended to discourage travel by sex offenders who would be specifically attempting to evade the heightened state registration requirements which Congress hoped the states would enact.  Justice Scalia questioned how an offender could evade heightened penalties by traveling if all states are supposed to have such penalties.  Both Justices Breyer and Sotomayor noted that, if SORNA’s general purpose was to encourage registration, there is little reason to differentiate between missing offenders based on when they “disappeared” from the registration system.  A federal penalty, Justice Alito suggested, might nonetheless be appropriate because the state to which an offender moves is less likely to know that person is a sex offender.

As Assistant to the Solicitor General Curtis E. Gannon opened his argument for the government, Chief Justice Roberts quickly turned to the “obvious question” of what constitutes a “reasonable time” to register.  Justice Alito suggested that a reasonable time might be the time allowed by the state to which one had traveled, while Mr. Gannon emphasized that the problem will exist in any event because the statute applies to sex offenders convicted under Federal and tribal law.

When asked by both the Chief Justice and Justice Scalia to provide textual support for his argument that an offender’s travel must follow the sex offense, Mr. Gannon suggested that the context demonstrates that SORNA’s purpose is to “recapture missing sex offenders.”  Justice Breyer then noted that SORNA’s heightened information-gathering requirements for states might facilitate the capture of offenders who travel—a purpose that would be relevant only in the post-SORNA context.  Even so, Mr. Gannon suggested, a federal penalty would be a greater deterrent and ensure more uniform treatment of federal and state sex offenders.

When Justice Breyer asked whether other statutes used the present tense in an analogous manner, Chief Justice Roberts noted that he could only find examples where travel was linked to the purpose of the law.  Mr. Gannon suggested that Congress would not have wanted an exception for sex offenders merely because they might have a good reason to travel.  At various points, Justices Sotomayor and Ginsburg both worried about requiring offenders to register in states without SORNA-compliant registries, to which Mr. Gannon responded that offenders need only provide the information required by the relevant jurisdiction.