Archive for June 1, 2010

Supreme Court: No Backdating Sex Offender Registry

June 1, 2010 Comments off Court: No backdating sex offender registry. Registry law doesn’t apply to all sex offenders, Supreme Court rules. Carr v. United States – Initial Thoughts

Washington, DC, June 1 (UPI) — The U.S. Supreme Court ruled 6-3 Tuesday a sex offender moving to another state didn’t have to update his registration if he moved before a law took effect.

The 2006 Sex Offender Registration and Notification Act requires sex offenders to register, and makes it a crime for any person required to register to fail to update his registration when moving to another state.

Thomas Carr pleaded guilty in Alabama to first-degree sexual abuse and was sentenced to 15 years, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation July 3, 2004, and registered as a sex offender as required by Alabama law.

In late 2004 or early 2005, prior to SORNA’s enactment, Carr relocated from Alabama to Indiana, court records say. He did not comply with Indiana’s sex-offender registration requirements. In July 2007, Carr became involved in a fight in Fort Wayne, Ind., drawing the attention of police, and federal prosecutors charged Carr in Indiana with failing to register after moving in violation of the federal law.

A federal appeals court in Chicago affirmed his conviction, but the Supreme Court reversed today.

Writing for the majority, Justice Sonia Sotomayor said charging Carr with a SORNA violation for activity occurring before the law came into effect violated the ex post facto clause of the Constitution, which bans after the fact prosecutions.

From our understanding of this ruling, the US Supreme Court did not invalidate this SORNA provision on Ex Post Facto grounds, but rather the majority justices found that the statute, as written by Congress, did not authorize retroactive enforcement in its construction. They therefore left the Ex Post Facto (retro-active) challenge to be decided at another time.

She said the key was that an offender had to become subject to SORNA in the first place before going to another state and failing to register.
Corey Rayburn Yung at writes:

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can “correct” the outcome whenever it wants. So, it isn’t much of a decision against SORNA or the AWA in any meaningful way. There is plenty of coverage around the legal blogosphere and I should have more later.”

While we greatly respect Yung’s credentials and are completely unqualified to challenge his professional opinions….. I would like to posit a slightly different stance on the value of this SCOTUS decision. We are not legal professionals in any way, but it seems that this decision could be more meaningful than Yung suggests. It does appear that the ruling will affect very few sex offenders, whose travel and registration brought federal charges. But it does further erode SORNA, as written.

To be clear, as far as we can decipher, this ruling affects only cases where ex offenders traveled to other states and were prosecuted for their failure to register in the new states. The legislative text to which the Justices refer is in relation to Interstate Travel, and not related to other parts of SORNA.

In many states – and in Ohio foremost – SORNA as applied through Ohio Senate Bill 10 has been barraged with lawsuits in every county of the state. Four consolidated cases have been argued before the Ohio Supreme Court with another couple cases being heard since then. In lower courts, the only means by which the Ohio law has been permitted to stand is by judges ruling that SORNA is a civil remedy and not punitive in nature. Therefore, its retroactive implementation has never been properly addressed by the courts.

In today’s ruling, SCOTUS ruled that the Interstate Travel portion (at least) of SORNA was not written to be retroactive. Is it too much of a stretch to imagine that other portions of SORNA may similarly be ruled to be written to be non- retroactive? Or that SORNA could be re-written to exclude its retroactivity requirements?

We know that the US Department of Justice recently came out with new revised guidelines for SORNA implementation directed to states which are reluctant to implement SORNA (Adam Walsh Act). One of the main points of contention is the retro-activity requirement. The Revised Guidelines erase the retroactive requirement for states, allowing them a way our of this constitutional obstacle. Having seen today’s ruling, along with the revised guidelines, it seems that Carr vs. US could be more meaningful that Yung suggests.

See previous two postings for more information on this ruling.

SCOTUS: Carr v. United States Decision Against SORNA

June 1, 2010 Comments off Carr v. United States (08-1301) A Users Guide to the U.S. Supreme Court Rulings Handed Down Today.
Sentencing Law & Policy: Some intriguing who and how dynamics in the Carr ruling reversing sex offender’s SORNA conviction.
Sentencing Law & Policy: Sex offender prevails with challenge to SORNA conviction in Carr.

In Carr v. United States (08-1301), the Court, on a 6-3 vote, reverses and remands in an opinion by Justice Sotomayor. Justice Scalia concurs in part and in the judgment, but joins most of Justice Sotomayor’s opinion. Justice Alito dissents, joined by Justices Thomas and Ginsburg.

* Holding: The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.
First,it is interesting and notable that the two former prosecutors on SCOTUS, Justices Sotomayor and Alito, wrote the majority and dissenting opinions. It is likewise interesting and notable that the two female Justices also split in this case. I cannot help but suspect that the sex offender context may have prompted Justice Ginsburg to be less sympathetic than usual to the appealing defendant here.

Both the majority and dissent note lots of circuit splits and lots of potential constitutional concerns with aspects of SORNA that are not directly addressed in the Carr opinion. I think this means we can and should expect a docket filled with at least a SORNA case or two in many future SCOTUS Terms.
Case: 08-1301, Carr v. United States
Decision: Reversal
Opinion By: Sotamayor.

Who It Matters To: Sex Offenders, Potential Sex Offenders, Especially Sex Offenders Who Sex Offended Before February 2007.

Law Geeks Will Geek Out Over: The ex post facto clause, due process challenges.

Ruling: “The Court rules that a 2007 law (SORNA) that requires sex offenders to register does not apply to sex offenders whose interstate travel occurred before the Act went into effect.”

What it means: Carr involved a guy who didn’t register for SORNA, or the Sex Offender Registration and Notification Act, after he moved from Alabama to Indiana. This guy, Thomas Carr, had already registered as a sex offender in Alabama in 2004, but when he moved to Indiana, failed to register as one there, which law enforcement officials found out when he was busted for an unrelated crime in July 2007. Earlier that year, in February 2007, the Attorney General ruled that SORNA applied to all sex offenders, even those who were convicted before SORNA went into effect. Carr argued a defense of the constitution’s ex post facto clause, wherin, he’s protected because you can’t be retroactively punished by new laws. And the court ruled in his favor!

Who Wins: Those whose crimes aren’t actually crimes until after they’ve committed them.

US Supreme Court: Sex Offender Law Can’t Be Applied Retroactively

June 1, 2010 Comments off US Supreme Court: Sex Offender Law Can’t Be Applied Retroactively.
Cornell University Law School: CARR v. UNITED STATES ( No. 08-1301 ).

The U.S. Supreme Court on Tuesday refused to retroactively apply a 2006 law that makes it a crime for sex offenders to cross state lines and knowingly fail to register or update a registration.

After being convicted of first-degree sexual abuse in 2004, Thomas Carr was released on probation and moved from Alabama to Indiana without registering as a sex offender in Indiana. Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006. Among its provisions, the law bars sex offenders from moving across state lines without registering or updating their registrations.

Carr was charged with violating SORNA in 2007, and he entered a conditional guilty plea, reserving the right to appeal. He claimed the indictment against him should be dismissed, because he traveled to Indiana before the sex offender registration law went into effect.

A federal judge in Indiana refused to dismiss the indictment and sentenced Carr to 30 months in prison.
The 7th Circuit upheld the conviction and sentencing, saying SORNA “does not require that the defendant’s travel postdate the Act.” At oral argument, Carr insisted that the provision criminalizing the failure to register after moving across state lines can only apply after SORNA took effect.

The government argued that the provision is triggered by a sex-offense conviction, followed by interstate travel and a failure to register. In the government’s view, only the failure to register had to occur after SORNA took effect.

“Carr’s interpretation better accords with the statutory text,” Justice Sonia Sotomayor wrote for the 6-3 majority, reversing the 7th Circuit’s ruling. She said the law specifically states that the provision only applies when a person “is required to register under the Sex Offender Registration and Notification Act.”
Sotomayor rejected the government’s claim that this language was merely a “shorthand way” of identifying those with sex-offense convictions.

She pointed out that, as the government would have it, Congress used 12 words and two implied cross-references to establish that sex offenders were the law’s targeted group. “Such contortions can scarcely be called ‘shorthand,'” Sotomayor wrote.

“Once a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under [the travel provision] if he thereafter travels and then fails to register.”

Justice Samuel Alito dissented, saying the majority “misinterprets and hobbles” the travel provision, designed “to punish and deter interstate movement that seriously undermines the enforcement of sex-offender-registration laws.” He said the majority’s conclusion “makes no sense,” as it would allow the conviction of a sex offender who moved and failed to register after SORNA’s enactment, but not someone like Carr, who moved before the law took effect.

“Is there any reason why Congress might have wanted to treat the second case any differently from the first?” he asked. “In both cases, a sex offender’s interstate movement frustrates enforcement of SORNA’s registration requirements.” Justices Clarence Thomas and Ruth Bader Ginsburg joined Alito in dissent.

CA: Public Park Cruisers Registered as Sex Offenders

June 1, 2010 Comments off The Ridiculous Attempt By Palm Springs Police to Get Public Park Cruisers Registered as Sex Offenders. Report: Police sought harsh penalties off sting

Palm Springs police, preparing to conduct a gay sex sting last summer, pushed the district attorney’s office to agree in advance to pursue more severe penalties than in prior stings, court documents show.

All 24 men arrested in the 2009 Warm Sands neighborhood sting, which police say stemmed from complaints of sex in public, now face charges that would require them to register for life as sex offenders.

Some in the community — including a former Riverside County deputy D.A. familiar with the case — believe those charges are too heavy-handed.

Prior to the Warm Sands sting, Palm Springs police made it clear to the Riverside County D.A.’s Office they were dissatisfied with the “disturbing the peace” pleas that came from previous stings, according to sworn testimony from Palm Springs police Sgt. Bryan Anderson, who helped supervise the Warm Sands sting.
Jeandron said all 24 men, if convicted on the charges, would register on a sex offender list available only to authorities, not the public. They wouldn’t appear in databases such as the Megan’s Law Web site, he said.

Lawyers defending several of the men allege Palm Springs police singled out gay man in enforcing the city’s laws against public sex, while ignoring the same behavior by straight people.