SEX OFFENDER

Carr v. United States

Issues

May SORNA apply to a sex offender whose conviction and interstate travel both predated SORNA’s enactment?

 

The Sex Offender Registration and Notification Act (“SORNA”) requires convicted sex offenders to register in any jurisdiction in which the offender resides and imposes criminal penalties on any sex offenders who travel in interstate commerce and knowingly fail to register. Before SORNA was enacted, Thomas Carr, a convicted sex offender, moved to Indiana but failed to register. A federal grand jury indicted Carr for his failure to register under SORNA. Carr appealed to the U.S. Circuit Court of Appeals for the Seventh Circuit, arguing that applying SORNA violated the ex post facto clause as his conviction and travel predated SORNA. The Seventh Circuit held that SORNA did not violate the ex post fact clause because the failure to register occurred after SORNA was enacted. The Supreme Court’s decision will settle a circuit split over whether SORNA can punish sex offenders who traveled in interstate commerce before its enactment.

Questions as Framed for the Court by the Parties

The President signed the Sex Offender Registration and Notification Act (“SORNA”) into law on July 27, 2006. Pub. L. 109-248 §§101-55, 120 Stat. 587. SORNA requires persons who are convicted of certain offenses to register with state and federal databases. See 42 U.S.C. § 16913(a). The law imposes criminal penalties of up to ten years of imprisonment on anyone who “is required to register * * * travels in interstate or foreign commerce * * * and knowingly fails to register or update a registration.” 18 U.S.C. § 2250(a). On February 28, 2007, the Attorney General retroactively applied SORNA’s registration requirements to persons who were convicted before July 27, 2006. 72 Fed. Reg. 8896, codified at 28 C.F.R. § 72.3. The two questions presented are:

1. Whether a person may be criminally prosecuted under § 2250(a) for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated SORNA’s enactment.

2. Whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Article I, Sections 9 and 10 of the Constitution prohibit the passage of ex post facto laws. Ex post facto laws retroactively criminalize conduct that was legal at the time it was committed; ex post facto laws would allow for increased punishment after the fact, as well as an inability to avoid prosecution by altering one's conduct. See

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Additional Resources

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· Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Trafficking, U.S. Department of Justice

· Michael M. O’Hear, Seventh Circuit Week in Review: Limiting the Reach of the Adam Walsh Act (a Little), Marquette University Law School Faculty Blog, Dec. 28, 2008

· Sex Crimes: 7th Circuit Rules on SORNA Constitutionality (Jan. 5, 2009)

 

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Packingham v. North Carolina

Issues

Does a North Carolina statute making it a felony for registered sex offenders to “access” social networking websites that allow minors to have accounts violate the First Amendment?

In 2002, Lester Gerard Packingham pled guilty to taking indecent liberties with a child and was registered as a sex offender in the state of North Carolina. After posting on Facebook in 2010, Packingham was arrested and convicted under a North Carolina statute that prohibits all registered sex offenders from accessing any social networking website. Packingham appealed, arguing that the law violated the First Amendment. The Supreme Court of North Carolina affirmed Packingham’s conviction, finding that the law was an acceptable content-neutral speech restriction. Packingham argues that the law is substantially overbroad and is therefore unconstitutional both on its face and as applied to this case under either strict or intermediate scrutiny. North Carolina maintains that the law is narrowly tailored to achieve the government’s interest in protecting children from sexual abuse and therefore satisfies intermediate scrutiny. The Supreme Court’s decision in this case will impact the balance between state governments’ interest in public safety and convicted persons’ First Amendment rights.

Questions as Framed for the Court by the Parties

The North Carolina Supreme Court sustained petitioner's conviction under a criminal law, N.C. Gen. Stat. § 14-202.5, that makes it a felony for any person on the State's registry of former sex offenders to access a wide array of websites-including Facebook, YouTube, and nytimes.com-that enable communication, expression, and the exchange of information among their users, if the site is know[n] to allow minors to have accounts. The law—which applies to thousands of people who, like petitioner, have completed all criminal justice supervision—does not require the State to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any illicit or improper purpose. The question presented is: Whether, under this Court's First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner-who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring God is Good!

On May 30, 2012, Lester Gerard Packingham, a registered sex offender, was found guilty of using a social network website in violation of N.C. Gen. Stat. § 14-202.5. See State v. Packingham, 368 N.C. 380 (2015). N.C. Gen. Stat. § 14-202.5 is a North Carolina statute that makes sex offenders’ use of social networking websites, like Facebook, illegal.

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Reynolds v. United States

Issues

Whether a sex offender convicted before the enactment of SORNA can challenge the subsequent Interim Rule issued by the Attorney General.

 

Billy Joe Reynolds, a registered sex offender, was convicted for failing to update his registration upon moving from Missouri to Pennsylvania. Under the newly enacted Sex Offender Registration and Notification Act (“SORNA”), sex offenders are required to update the federal registry within three days of a change of residence. An Interim Rule issued by the Attorney General applied the statute retroactively to all sex offenders convicted before SORNA’s enactment, including Reynolds. Reynolds challenged the legality of the Interim Rule but the circuit court dismissed his case for lack of standing. In the current suit, Reynolds argues that SORNA’s registration requirements are not applicable to individuals with pre-SORNA convictions. Reynolds adds that the Interim Rule made SORNA’s registration requirements applicable to him, thus giving him standing to challenge the Rule. The Supreme Court's decision will determine whether pre-SORNA sex offenders can state a claim against the Interim Rule, thus potentially delaying the government’s efforts in creating an effective national sex offender registry system. The decision may also prevent the government from issuing harsh new registration requirements without notice to individuals in Reynolds’s situation.

Questions as Framed for the Court by the Parties

Does Reynolds have standing under the plain reading of the SORNA statute to raise claims concerning the Attorney General’s Interim Rule and is review by the Supreme Court needed to resolve the circuit conflict?

In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling Act”), which encouraged states (via conditioned federal funding) to adopt comprehensive sex offender registration laws that met certain minimum standards. See Smith v. Doe, 538 U.S.

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