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Transcripts of SCOTUS Ex Post Facto Oral Arguments

February 25, 2010

Sentencing Law & Policy: Today’s SCOTUS sex offender Ex Post oral argument transcripts

We now have a chance here to post the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341). I fear I won’t have a chance to read these transcripts for a while, but perhaps readers can note any important highlights we have missed.

Let us be clear: This case is convoluted, for sure, and difficult to follow the details of the facts and law. But the essence of this case is this:

1. Mr. Carr committed a sex offense in 2004 in Alabama. After his release , he registered in Alabama.
2. Later in 2004, he moved to Indiana where he did not register.
3. His failure to register in Indiana was discovered in 2007 when he was indicted under SORNA.
4. The Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act was enacted on July 27, 2006.

Therefore, this case argues that SORNA, which did not exist when Mr. Carr moved in 2004, should not apply. Mr. Carr moved before SORNA made it illegal for him to move and fail to register. Now, each state has its own registration laws and if Indiana law required him to register, then he could be held liable within that state. But this case revolves around a federal prosecution under a law which did not exist when Mr. Carr violated it.
So…while this is a retroactivity (Ex Post Facto) case, it is somehwat different than the Ex Post Facto challenges on SORNA itself, which challenge whether SORNA can be applied retroactively, as it relates to extending registration requirements. Having said that; it is a very important test case of how the US Supreme Court will rule on retroactive SORNA laws.

Excerpts:

JUSTICE BREYER: Well, what is the basic purpose of this statute? I’m having a hard time with it. Is it — is the purpose of the statute to try to get a lot of people to register who haven’t registered at all? Or is the purpose of the statute to get the people who had registered in one State and then moved, and make sure they register in another State?

MR. ROTHFELD: I think that the purpose was generally to encourage registration of sex offenders. Now, of course, when — when Congress wrote the statute, as — as has been pointed out, it was not apparent to them that it was going to apply to people who had committed sex offenses before SORNA was enacted at all. That turned upon the Attorney General’s subsequent determination.

JUSTICE BREYER: No, I mean if they are just trying to get people to register in general, and they are not particularly worried about travel, then they are using this travel as a kind of jurisdictional hook. And if they are using it as a jurisdictional hook, they would like to get everybody, as many as possible, that argues against you.

MR. ROTHFELD: Well, two points –

JUSTICE BREYER: I — I — I have a hard time seeing just what they are aiming at.

MR. ROTHFELD: Well, it — it’s — to — to be honest, I think it’s not entirely clear that Congress had anything specific in mind beyond a reaction to the prior regime in which there were inconsistent approaches being taken by the States.
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JUSTICE SCALIA: I don’t know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That’s the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that — that would later justify registration. It seems to me you are just making up the — the prior act that — that triggers the interstate travel requirement.

MR. GANNON: Well, I don’t think that we are making it up, Justice Scalia.

JUSTICE SCALIA: Well, what text do you base it on? One says “is required to register,” and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it’s after you commit the offense that you must travel on interstate. Where do you get that from?

MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders. The fact that the purpose of the statute is to recapture missing sex offenders, which are persons who engaged in interstate travel to elude the registration requirements that already apply to them as sex offenders. And so we think that when Congress invoked the — its powers to regulate travel and interstate commerce, in order to give that element meaning, we think that it makes sense to apply it to persons who already have the type of sex offense convictions that SORNA requires them to register for.

CHIEF JUSTICE ROBERTS: So your answer to Justice Scalia is that you don’t get it from the language? We get it from the anomaly, you get it from the purpose.
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JUSTICE BREYER: Do you find any where -where they were both phrased in present tense and it was pretty clear that Congress intended to catch activity that was — at least where the jurisdictional part took place before the statute took effect? You find that good an analogy anywhere?

MR. GANNON: I — I’m not aware of — of a provision that’s — that’s phrased like that-

CHIEF JUSTICE ROBERTS: I — I tried to find one and — and couldn’t. I mean, looking up travels in — in the code, in each of those cases that I found it’s always — it looks like it’s — it’s linked directly to the activity that’s meant to be covered. You know, traveling for the purpose of the — the activity that’s against the law.

MR. GANNON: It’s — that’s — that’s true — in most instances in which Congress has an interstate travel element, that’s true. In some — in some cases like the — the statute at issue in the Trupin case about possession of — of — of stolen goods that have traveled in interstate commerce, that -that’s — that’s — that’s an invocation of-

JUSTICE SCALIA: Yes, where — where it means prior travel, it says so, use of a firearm that has traveled in interstate commerce. They use the past tense when they mean it.
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JUSTICE ALITO: But all of those provisions refer now, as a result of the Attorney General’s determination that pre-SORNA convictions qualify, all of those provisions use the present tense to refer to activities that can have taken place in the past.

MR. ROTHFELD: That is correct. At the time that Congress wrote those civil provisions, this statute, on its face, applied prospectively only. The Attorney General had not yet retroactively applied it. Congress specifically gave the Attorney General the authority to apply it retroactively in defining which offenders had to register. It did not give him any authority to retroactively change the scope of the –
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JUSTICE ALITO: Well, Mr. Gannon may have made an argument that is not helpful to his position. But can you accept that the first provision means exactly what it says: “Is required to register.” And that takes effect on day when SORNA is enacted.

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