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Temporal scope of sex offender registration crime clarified

Below, Will Edelman of Stanford Law School recaps yesterday’s ruling in Carr v. United States, No. 08-1301.  Check the Carr v. United States page on SCOTUSwiki for additional information.

In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA).  Under one provision of SORNA, 18 U.S.C. § 2250, a sex offender can face up to ten years in prison if three criteria are met:  he (1) is required to register under SORNA; (2) “travels in interstate or foreign commerce”; and (3) knowingly fails to register or update a registration.  Yesterday, in Carr v. United States (No. 08-1301), the Court held, by a vote of six to three, that the second element of Section 2250 applies only to travel that occurred after the enactment of SORNA.  [You can read Kate Nielson’s preview and recap of oral argument here and here.]

Both Carr and the United States agreed that Section 2250’s three elements outline a series of events that must occur in sequence: conviction, travel, and failure to register.  They disagreed, however, on what triggers the start of the sequence.  In an opinion by Justice Sotomayor (joined by the Chief Justice and Justices Stevens, Kennedy, and Breyer), the Court rejected the government’s suggestion that Section 2250 is violated as long as the failure to register post-dates the statute’s enactment.    Instead, the Court emphasized, Section 2250’s first element “can only be satisfied when a person ‘is required to register under the Sex Offender Registration and Notification Act.’” Because no one was required to register under SORNA before the law was passed, the “first precondition to § 2250 liability” precludes pre-enactment travel from satisfying the second element.

The Court’s opinion also discussed at length the significance of Section 2250’s use of the present-tense verb “travels”—as opposed to “traveled” or “has traveled.”  Relying on usage norms, the Dictionary Act, and Congress’s exclusive use of present-tense verbs elsewhere in Section 2250 and in other provisions of SORNA, the Court concluded that the “undeviating use of the present tense [was] a striking indicator of its prospective orientation.”

The Court also rejected the government’s argument that interpreting SORNA as inapplicable to sex offenders whose travel pre-dated SORNA would frustrate the purposes of the Act.  The Court took care to distinguish the “general goal of SORNA [from] the specific purpose of § 2250.”  It explained that numerous other provisions of the Act, such as requirements that states maintain publicly available online databases of offenders and share information with other states, “stand at the center of Congress’ effort to account for missing sex offenders.” Thus, the general policy goals of SORNA “tell[] us little about the specific policy choice Congress made in enacting § 2250,” and leave “little reason to doubt that Congress intended § 2250 to do exactly what it says.”

Because the Court’s decision rested on an analysis of the statutory text, it thus declined to reach Carr’s alternative argument that the government’s interpretation of Section 2250 violated the Ex Post Facto Clause.  And it also acknowledged, but declined to address, two related issues – both of which have perplexed the lower courts – concerning the validity and interpretation of regulations issued by the Attorney General to apply Section 2250 to pre-SORNA convictions.

Justice Scalia filed what has become a familiar concurrence, disavowing the portion of the Court’s opinion discussing the legislative history and concurring in the judgment.

Justice Alito filed a dissenting opinion that was joined by Justices Ginsburg and Thomas.  In it, he argued that the majority’s analysis overlooked an important question: “At what point in time does Section 2250 speak?” Citing federal and state legislative drafting manuals, Justice Alito rejected the majority’s unstated premise that the statute speaks as of the point of enactment.  Instead, he contended, the legislative convention is to draft laws in the present tense so that they speak “as of the time when the first act necessary for conviction is committed.” Furthermore, Congress’s decision to leave the issue of whether pre-SORNA convictions qualify under Section 2250 to the Attorney General provides an alternative explanation for why Congress would avoid using past-tense verbs that might influence the Attorney General’s decision.

Moreover, the dissent argued, the majority’s textual arguments “lead[] to a result that makes no sense.” Congress would have no reason to treat two sex offenders who failed to register differently based on whether the date on which they happened to move in interstate commerce preceded or followed the enactment of SORNA; both scenarios, he observes, “ frustrate[] enforcement of SORNA’s registration requirements.”   Describing SORNA as a “response to a dangerous gap” in sex offender registration laws, Alito warned that the Court’s interpretation would put “beyond reach” the very sex offenders whose interstate movements prior to SORNA motivated the passage of the law.