August 19, 2008
Eighth Circuit Upholds SORNA
In what appears to be the first federal circuit court ruling addressing the constitutionality of the federal Sex Offender Registration and Notification Act, the U.S. Court of Appeals for the Eighth Circuit decided July 31 that the provision of the act that makes it a crime to travel interstate and fail to register as a sex offender does not constitute an ex post facto law as applied to those convicted of a sex crime prior to its enactment. Further, the statute does not exceed Congress's power under the commerce clause, the court held (United States v. May, 8th Cir., No. 07-3515, 7/31/08).
Along the way, the court rejected the defendant's statutory argument that SORNA did not apply to him because the interstate travel underlying the charge against him took place before the attorney general issued a directive making the act retroactively applicable.
The defendant was convicted of a sex crime in Oregon in 1994. Subsequently he moved to Maryland, back to Oregon, and then to Iowa, but neglected to register with those states as a sex offender or update his registration. In June 2007, he was charged under the criminal provision of SORNA, 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register as a sex offender to travel in interstate commerce and fail to register at the destination.
SORNA requires sex offenders to register in their state of residence and keep their registration current. 42 U.S.C. §16913. Subsection (d) of Section 16913 provides:
(d) Initial registration of sex offenders unable to comply with subsection (b) of this section[:] The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 [the date of the Act's enactment] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
The attorney general issued an interim rule in February 2007 making SORNA retroactive regardless of when an offense took place.
The defendant argued that the statute did not apply to him because, although his interstate travel occurred after SORNA's enactment, it took place before the attorney general issued the rule applying the law's provisions to previously convicted offenders. The Eighth Circuit rejected that argument and affirmed his conviction in an opinion by Judge William Jay Riley.
Read full article here. [Brooks Holland]
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