U.S. Supreme Court SORNA retroactivity case

The U.S. Supreme Court, on Sept. 30th., granted certiorari to a case from the Northern District of Indiana which raises several constitutional challenges to the federal Sex Offender Registration and Notification Act (SORNA) with respect to retroactivity. [Carr v. Unites States, case 08-1301 Questions Docket ]

At issue in this case is "whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant's underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act's enactment; and whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment."

The 7th. Circuit Court of Appeals in South Bend Indiana in a consolidated case last December, held that "Congress instructed the Attorney General to 'specify the applicability of the requirements of [the Act] to sex offenders convicted before [its enactment] or its implementation in a particular jurisdiction' and to 'prescribe rules for the registration of any such sex offenders . . . who are unable to comply with’ the requirement, also imposed by
the Act…"

"As the reference to 'implementation in a particular jurisdiction' indicates," the 7th. Circuit continued, "the sex offender is required only to register with the state in which he is a resident, employee, or student, as well as the jurisdiction of his conviction if different from his residence. 42 U.S.C. § 16913(a).Other provisions of the Act establish a system for pooling the information in the state registries to create in effect a national registry. See 42 U.S.C. §§ 16912, 16918-20, 16923-25."

Appellant's petition for certiorari professed the 7th. Circuit's decision created an "acknowledged conflict in the circuits, departing from the contrary rulings of three other courts of appeals and at least 17 district courts," At least 20 district court decisions have held that the Act does apply to "gap" travel -- the period between the statute's enactment and the Attorney General's promulgation of the interim rule—the petition stated. Courts of appeal also disagree about SORNA's applicability to "gap" travel with the Sixth, Eighth, Tenth, and Eleventh Circuits having held that SORNA applies to travel in the "gap" period, while the Fourth Circuit has reached the opposite conclusion.

Now, the 6th. Circuit Court of Appeals here in Cincinnati , last Tuesday, has reversed an Akron. Ohio man's 2007 conviction for failing to register with authorities after moving from Ohio to Georgia during a period that ended in March 2007. "The circuits are split on whether defendants with pre-SORNA convictions has to comply with SORNA before the Attorney General issued an implementing regulation," the Court echoed. "Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, [appellant] was not subject to SORNA's requirements during the period indicated in his indictment."