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Opinion analysis: News item – the convicted sex offender wins, unanimously

In the abstract, it seems unlikely that the United States Supreme Court would rule unanimously in favor of a convicted sex offender.  It seems even less likely that Justice Samuel Alito would lead the charge.  But Nichols v. United States, handed down Monday morning, provided the perfect storm.

Lester Ray Nichols was convicted in 2003 of traveling in interstate commerce with intent to engage in illicit sexual conduct with a minor.  After his release from federal prison in December 2011, he settled in Kansas, where he satisfied his obligation to register as a convicted sex offender.  About a year later, he suddenly disconnected his telephone lines, tossed his apartment keys into his landlord’s drop box, and boarded a flight to Manila.  He notified no authorities that he was moving to the Philippines – or that he was moving at all.  He of course failed to show for his next scheduled mandatory sex-offender treatment appointment, which triggered the revocation of his supervised release from prison.  An impressive bit of cooperation among federal and Philippine officials eventually produced Nichols’s arrest in Manila (where, according to the record, he was about to engage in sexual activity – with whom and under what circumstances we are not told).  Federal marshals escorted him back to Kansas, where he was convicted in federal district court of knowingly failing to update his registration pursuant to the federal Sex Offender Registration and Notification Act (SORNA).  Specifically, the district court held that he violated SORNA when he moved to the Philippines without telling the state of Kansas.  A panel of the United States Court of Appeals for the Tenth Circuit affirmed, putting it in conflict with a precedent from the Eighth Circuit.

Nichols argued that SORNA did not require him to tell anyone he was leaving.  His argument was based on a simple reading of 42 U.S.C. § 16913(a), which states:

(a) A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.

According to Nichols, once he abandoned Kansas for good, the “jurisdiction where the offender resides” was the Philippines, not Kansas.  And, because no foreign country is covered by SORNA, that statute did not require him to tell the Philippines that he, a convicted sex offender, was moving there.

The government’s argument before the Supreme Court was quite a bit more complicated than Nichols’s.  It pointed to another provision of SORNA, Section 16913(c), which states:

(c) A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.  That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

According to the government, it may have been true that Nichols did not “reside” in Kansas after he left, yet so long as his name continued to appear on Kansas’s registry, Kansas remained a “jurisdiction involved pursuant to subsection (a).” Therefore Nichols was required to appear in person before Kansas authorities within three business days of his departure to update his status.

Realizing that the Justices would likely arch their collective eyebrows at the convoluted quality of this textual argument, the government also urged a purposive analysis.  After the infamous rape and murder of seven-year-old Megan Kanka, and following the lead of the states in their enactment of various versions of what came to be known as “Megan’s Laws,” Congress in 1994 enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act.  In 2006, Congress replaced the Wetterling Act with SORNA.  Unquestionably, the resulting honeycomb of state and federal sex offender registration statutes was motivated by a widely shared anxiety that even a few convicted sex offenders might fall through the cracks and go effectively unmarked.  If the government’s textual argument was less than elegant and seamless, the Court should look past it to Congress’s purpose in enacting SORNA.  It could not possibly have meant to allow guys like Nichols to sneak out under the radar.

In a move not signaled by anything during oral argument, Justice Alito’s opinion for the Court turned the government’s reliance on the combined history of the Wetterling Act and SORNA against it.  The original Wetterling Act had ordered the states (on pain of a funding cutoff) to require a sex offender to register with any state “to which the person moves.”  Congress later changed that to the “State the person is leaving.”  SORNA replaced all that, and it used neither of the previous locutions.  Most relevantly, it said nothing about having to notify the state “the person is leaving.”

Instead, wrote Justice Alito, SORNA speaks only of the jurisdiction “where the offender resides,” present tense.  “A person who moves from Leavenworth to Manila no longer ‘resides’ (present tense) in Kansas,” he stated.  Moreover, it is highly awkward to interpret subsection (c) as requiring an offender to appear in person to update his status with Kansas “not later than three business days after” leaving Kansas.  Of course, as the government urged, Nichols could have done it before he left, but “no one in ordinary speech uses language in such a strained and hypertechnical way,” said Justice Alito.

The Court’s opinion leaves the most significant bits of information for last.  After certiorari was granted, Congress enacted, and President Barack Obama signed, the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders.  It criminalizes the knowing failure to “provide information required by [SORNA] relating to intended travel in foreign commerce.”  In response to questioning by Justice Ruth Bader Ginsburg at oral argument, the government conceded that Nichols’s situation would have been covered by this new law.  With that concession, the parade of horribles — the specter of hundreds of convicted sex offenders stealing away in the dead of night to foreign havens of libertinism, with no way to track them down – disappeared.  Whatever the Court decided in the case of Lester Ray Nichols, who himself has been escorted back to Kansas and is under watchful eyes, there would be virtually no future consequences.  As Justice Alito put it, “We are thus reassured that our holding today is not likely to create ‘loopholes and deficiencies’ in SORNA’s nationwide sex-offender registration scheme.”

And that is how the Supreme Court came to rule unanimously in favor of a convicted sex offender.  When it comes to statutes, the text is the text, and the Court will not read whole new clauses into it — at least in cases where there is a virtual guarantee that no untoward consequences will flow from standing on principle.

Recommended Citation: Evan Lee, Opinion analysis: News item – the convicted sex offender wins, unanimously, SCOTUSblog (Apr. 4, 2016, 3:42 PM),