12,800 Attorneys Say SORNA is Illegal

March 29, 2009

National Association of Criminal Defense Lawyers NACDL
NACDL Comments on the Attorney General’s Interim Rule Applying the Provisions of the Adam Walsh Act Retrospectively to Offenders Whose Convictions Pre-Date The Enactment of the Legislation.

PDF file here.
CFCAmerica article here.

The NACDL has a membership of more than 12,800 attorneys and 92 state, local and international affiliate organizations with another 35,000 members including private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America’s criminal justice system. In these comments NACDL urges the Attorney General to repeal 28 CFR Part 72 because the regulation, as promulgated, violates the ex post facto clause of the Constitution, and will cause widespread confusion and instability in the efforts of many convicted sex offenders to comply with the law and maintain a non-offending lifestyle.

III. The Interim Rule Violates the Ex Post Facto Clause

28 CFR Part 72, as promulgated, mandates that the provisions of the Sex Offender Registration and Notification Act be applied retroactively to sex offenders whose convictions occurred before the enactment of SORNA and the Adam Walsh Child Protection and Safety Act of 2006. 28 CFR 72.3. The National Association of Criminal Defense Lawyers urges the Attorney General to re-draft the regulation. As written, the regulation violates the ex post facto provisions of Part, I, Article 9 of the Constitution. The supplementary information provided by the Attorney General broadly states that applying SORNA to sex offenders whose convictions pre-dated the enactment of the Adam Walsh Act does not offend the ex post facto provision of the Constitution because it creates “registration and notification provisions that are intended to be non-punitive, regulatory measures adopted for public safety reasons.” 72 Fed. Reg. Vol. 39, 8896. The Attorney General relies on Smith v. Doe, 538 U.S. 84 (2003) for this proposition. In Smith the Supreme Court upheld the provisions of the Alaska Sex Offender Registration Act (ASORA) against an ex post facto challenge. In fact SORNA is a federal statute that is punitive and therefore the ex post facto provision of Article I Section 9 of the Constitution does apply. SORNA goes well beyond the Alaska Sex Offender Registration Act that was considered by the Court in Smith.

a. The Extensive Community Notification Provisions of SORNA Publicly Disgrace and
Humiliate the Registered Offender in His or Her Community

One consideration in determining whether a law is punitive is whether it is the type of law that our history and traditions consider to be punishment because it publicly disgraces the offender. Although ASORA and SORNA are similar in some respects, SORNA goes considerably beyond ASORA in its community notification requirements. SORNA requires that NACDL Comments OAG Docket No. 117 an appropriate state official provide an offender’s registration information to the Attorney General (for inclusion in the federal list) and to appropriate law enforcement and probation agencies. However, SORNA also requires the state to notify 1) “each school and public housing authority in the area in which the individual resides, is mployed or is a student;” 2) “each jurisdiction where the sex offender resides, is an employee, or is a student and each jurisdiction from or to which a change of residence, employment, or student status occurs;” 3) “any agency responsible for conducting employment-related background checks under section 3 of the National Child Protection Act of 1993 (42 U.S.C. 5119a);” 4) “social service entities responsible for protecting minors in the child welfare system;” and, 5) “volunteer organizations in which contact with minors or other vulnerable individuals might occur.” See, SORNA, § 121. These additional community notification measures render SORNA a punitive statute subject to ex post facto constitutional prohibition. In Smith the Court specifically addressed the shaming aspects of publication of registration information on the Internet. The Court described Internet publication
as “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” Smith at p. 99. SORNA provides far more public humiliation and shame than the mere review of criminal records at an archive. It requires the states to take affirmative actions to report the registration information throughout the community, even to those who might otherwise not seek such information. The SORNA requirements are far more akin to a scarlet letter or a wanted poster than they are to a trip to a central registry of government documents. SORNA is far more likely
to inflict public disgrace than the provisions of the Alaska law considered by the Court in Smith. Our history and traditions consider such public disgrace and humiliation as punishment and thus invoke the requirements of the ex post facto clause. The interim rule violates the ex post facto clause because it extends these punitive measures to individuals whose offenses pre-dated the enactment of the statute.

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