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VA Court of Appeals : Failure to Register

March 14, 2009

Roanoke.com : Court reverses convictions of sex offenders.

Four Southwest Virginia sex offenders who challenged a national registration law had their convictions for failing to register overturned Friday by the 4th U.S. Circuit Court of Appeals.

The four men’s original convictions for various sex offenses were not affected by the appeals court’s decision.
The ruling was based on a narrow issue of timing and did not reach deeper questions about the Sex Offender Registration and Notification Act.

“It doesn’t go far enough regarding what I feel is an unconstitutional statute,” Christine Spurell of the federal public defenders office in Roanoke, said Friday.

The law has been criticized as retroactive punishment and as improperly invoking interstate commerce to justify federal regulation.

But the four men moved to Virginia before the regulations implementing the registration law were issued in February 2007.

“They cannot be prosecuted for conduct that was not criminal at the time it was committed,” the 4th Circuit’s opinion said.

For three of the men — William Thomas Hatcher, Richard Dean Hinen and Gregory V. Roberts — the 4th Circuit ruling ends sentences of probation or supervised release. The fourth, John Edward Sawn III, is serving 30 months in prison imposed in November 2007. He will be freed, but has no avenue to seek compensation for his time behind bars, Spurell said.

Decision (from Sentencing Law and Policy):
“The Appellants argue that SORNA is unconstitutional because it is not a valid exercise of congressional authority and because it violates the non-delegation doctrine, the Ex Post Facto Clause, and the Due Process Clause of the Fifth Amendment. However, we need not reach these constitutional questions because we find that, as a matter of statutory interpretation, SORNA’s registration requirements did not apply to the Appellants at the time they committed the acts giving rise to their indictments. Therefore, we must reverse the convictions and vacate the sentences imposed in connection with those convictions.”

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