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. SeeSmith v. Doe, 538 U.S. 84, 89–90 (2003). By 1996, every state and the District of Columbia had enacted a sex offender registration law. See id.at 90. Later that year, the Wetterling Act was bolstered by the Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (“Lychner Act”), which directed the Federal Bureau of Investigations to create a national sex offender database while making failure to register in such a database punishable as a federal crime. SeeBrief for Respondent, United States at 3. Subsequent legislative acts further enhanced the federal registration and notification requirements set forth by the Wetterling and Lychner Acts. See id.
Even after taking these legislative steps, Congress expressed concerns about potential shortcomings of the federal sex offender database. See Brief for Respondent at 4. One of Congress’s major concerns involved the estimated 100,000 “missing” sex offenders whose locations were unknown to both law enforcement and to residents of their communities. Seeid. In an attempt to address such deficiencies, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”). See 42 U.S.C. §§ 16901 et seq. Among other requirements, SORNA obligates every sex offender to register in the location where the offender resides, works, or attends school. See 42 U.S.C. § 16913(a). Furthermore, SORNA requires sex offenders to update the registry within three days after a change of residence. See42 U.S.C. § 16913(c).
Section 16913(d) of SORNA grants the Attorney General the power to determine how SORNA should apply to sex offenders convicted before its enactment. See 42 U.S.C. § 16913(d). In 2007, the Attorney General exercised his authority under this provision by promulgating an Interim Rule stating that SORNA applies to all sex offenders regardless of their conviction date. See Brief for Petitioner, Billy Joe Reynolds at 9. Such a rule was implemented in order to prevent pre-SORNA sex offenders from arguing that SORNA did not apply to them. See Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894, 8896 (2007). The Interim Rule was made effective immediately, thus ensuring that a substantial number of pre-enactment sex offenders could not evade the Act’s registration requirements and enforcement mechanisms. See id.at 8897.
In 2001, Petitioner Billy Joe Reynolds (“Reynolds”) was convicted of second-degree statutory sodomy. See Brief for Petitioner at 14. Upon his release from prison, Reynolds registered as a sex offender in Missouri. See Brief for Respondent at 10. However, in 2007 Reynolds moved to Pennsylvania without updating his registration. See id. Reynolds subsequently pleaded guilty to one count of knowingly failing to register and update a registration in violation of SORNA, but immediately appealed, challenging the constitutionality of SORNA and the legality of the Interim Rule. See id.at 11. The Third Circuit upheld the judgment of conviction, concluding that Reynolds lacked standing to challenge the Interim Rule. See United States v. Reynolds, 380 F. App’x 125, 126 (2010). The Third Circuit determined that Reynolds was required to update his information in the sex offender registry under SORNA itself, not the subsequent Interim Rule. See id. The court therefore concluded that the Interim Rule did not apply to Reynolds and could not be challenged by him. See id.
Reynolds appealed the Third Circuit’s ruling to the Supreme Court, which granted certiorari. The Court will now determine whether sex offenders convicted before SORNA was enacted have standing to challenge the Interim Rule.
The outcome of this case depends on a determination with respect to SORNA's applicability, prior to the Attorney General's issuance of the Interim Rule, to individuals with pre-SORNA sex offense convictions. Petitioner Reynolds will not have standing to challenge the Interim Rule’s legality if the Supreme Court determines that SORNA applied to pre-SORNA offenders before the Interim Rule was issued. Reynolds argues that SORNA’s registration requirements became applicable to pre-SORNA offenders only after the Attorney General issued the Interim Rule. See Brief for Petitioner, Billy Joe Reynolds at 20. Respondent United States, on the other hand, argues that SORNA’s registration requirements became applicable to pre-SORNA offenders the moment that SORNA was enacted. SeeBrief for Respondent, United States at 15.
SORNA requires all sex offenders to register—and keep the registration current—where they live, work or attend school. See 42 U.S.C. § 16913(a). SORNA also requires sex offenders to register before completing a prison sentence, or, if no sentence is given, to register within three business days of sentencing for the sex offense. See id.§ 16913(b). Section 16913(d) gives the Attorney General the authority to specify SORNA’s applicability to pre-enactment sex offenders, and to prescribe rules for the registration of sex offenders who cannot comply with other sections of the Act. See id.§ 16913(d).
The parties, however, disagree over the plain meaning of SORNA’s text. Reynolds asserts that Section 16913(d) bestowed the Attorney General with the power to determine both how and whether pre-SORNA offenders would be subject to the Act’s new registration requirements. See Brief for Petitionerat 23.Thus, in addition to enabling the Attorney General to control the manner and method of SORNA’s implementation, Reynolds argues that Section 16913(d) allows the Attorney General to substantively determine the scope of SORNA’s reach.See id. In support of this claim, Reynolds contends that the express terms of Section 16913(b) exempt pre-SORNA sex offenders from the Act absent action by the Attorney General. SeeReply Brief for Petitioner, Billy Joe Reynolds at 12. Reynolds also observes that pre-enactment offenders are unable to comply with Section 16913(b)’s registration requirements because their convictions predate SORNA’s enactment. Seeid. Reynolds maintains that he was unable to comply with SORNA because he was released from prison in 2005, and SORNA was not enacted until 2006. Seeid. Therefore, Reynolds concludes that SORNA did not apply to him until the Attorney General issued the Interim Rule. Seeid.
The United States, however, argues that SORNA’s registration requirements are immediately applicable to all sex offenders—pre- and post-enactment—because SORNA itself defines sex offenders using the past tense, covering any offender who was convicted of a sex offense. See42 U.S.C. § 16911(1); Brief for Respondent at 17. The United States contends that Congress defined sex offenders in the past tense precisely in order to include sex offenders with pre-SORNA convictions. SeeBrief for Respondent at 17. Furthermore, the United States argues that SORNA’s registration requirements apply to pre-SORNA offenders because Section 16913(d) uses permissive language, bestowing on the Attorney General an optional authority. See id. at 23. Congress, the United States observes, did not provide that the Attorney General shall specify SORNA’s applicability to pre-SORNA offenders. Seeid. Rather, Congress provided that the Attorney General shall have the authority to specify SORNA’s applicability to pre-SORNA offenders. Seeid. The United States contends that Congress would have used stronger language compelling the Attorney General to affirmatively determine SORNA’s scope if Congress had intended to delegate such authority. Seeid.at 23–24. Hence, the United States concludes that Section 16913(d) enables the Attorney General merely to adjust or confirm SORNA’s registration requirements, not to substantively determine SORNA’s applicability to pre-enactment offenders. Seeid.at 25.
SORNA’s Statutory Context and Purpose
According to Reynolds, a broad grant of authority to the Attorney General is consistent with SORNA’s basic purpose: to establish a comprehensive national sex offender registration system that would protect the public against sex offenders. See Brief for Petitioner at 43; 42 U.S.C. § 16901. Reynolds contends that, in order to promote SORNA’s purpose of creating an effective registration system,Congress drafted most of SORNA’s provisions in a way that deferred authority over nearly every aspect of SORNA’s implementation to the Attorney General. See Brief for Petitioner at 43. Thus, Reynolds argues that scope-related deference to the Attorney General in Section 16913(d) is consistent with Congress' design of the overall Act. See id.
More specifically, Reynolds argues that the effectiveness of SORNA’s national registration system would have been compromised if SORNA had immediately applied to pre-SORNA offenders. See Brief for Petitioner at 40. Congress, in Reynolds’s view, was aware that SORNA’s implementation could cause significant logistical complications that could not be properly addressed through legislation. See id. at 41. Hence, Reynolds claims that Congress permitted the Attorney General to apply SORNA’s requirements to pre-SORNA offenders over time, recognizing that the Attorney General could use his superior expertise and resources to minimize logistical complications and to increase SORNA’s overall effectiveness. See id. Thus, contrary to the United States’ position, Reynolds asserts that Congress did not intend SORNA to be immediately applicable to pre-SORNA offenders. See id. at 40.
The United States, on the other hand, argues that SORNA’s national registration system would be ineffective if SORNA is not interpreted to be immediately applicable to pre-SORNA offenders; otherwise, hundreds of thousands of convicted sex offenders might never be required to register.See Brief for Respondent at 32. When SORNA was enacted, there were approximately 500,000 registered sex offenders living in the United States. See id.at 30. After SORNA’s enactment, jurisdictions were given three years to implement SORNA’s requirements, with the possibility of an additional two-year extension period. See id.at 29. If SORNA were not immediately applicable to pre-SORNA offenders, Section 16913(d) would also exempt from registration the offenders convicted during the three- to five-year implementation period, according to the United States. See id. at 29–30. As of 2009, SORNA imposed the only federal registration requirements applicable to thousands of individuals convicted during the three- to five-year implementation period. See id. at 30. The United States contends that, if SORNA’s requirements do not apply to such persons, hundreds of thousands of convicted sex offenders may remain unregistered, and the public would not be effectively protected against them. See id.at 32.
The United States also argues that, far from a sweeping mandate, Section 16913(d)’s grant of authority to the Attorney General was merely meant to provide the Attorney General with the flexibility to adjust and modify SORNA’s implementation in light of expected logistical difficulties. See Brief for Respondent at 26–27. The United States postulates, for example, that even after SORNA’s implementation, some states may refuse to properly spend their resources in tracking down unregistered sex offenders, while other states may resist implementation altogether. See id.at 26.Absent a delegation of certain authorities to the Attorney General, the United States argues, the effectiveness of the entire national registration system would be compromised. See id.
SORNA’s Legislative History
Reynolds argues that other legislation preceding SORNA’s enactment evidences Congress’s intent to exclude pre-SORNA offenders from SORNA’s new registration requirements. SeeReply Brief for Petitioner at 15. For instance, Reynolds notes that House Resolution 4472, the predecessor legislation on which SORNA was based, explicitly stated that the Resolution’s new registration requirements would apply to both pre- and post-enactment sex offenders. See id. However, Reynolds observes that Congress dropped the explicit reference to pre- and post-enactment application in the final version of SORNA. See id. Reynolds thus contends that Congress intentionally deleted the phrase in order to exclude pre-SORNA offenders from the definition of “sex offender” in the final Act. See id.
The United States, on the other hand, argues that predecessor legislation indicates Congress’s intent to immediately include pre-SORNA offenders in SORNA’s registration requirements. See Brief for Respondent at 38. The United States notes that the language of H.R. 4472 mandated the Attorney General to specify SORNA’s scope and to prescribe rules for the registration of convicted sex offenders. See id. However, in SORNA’s final version, Congress changed the language to a merely permissive delegation of authority to specify SORNA’s scope and to promulgate useful rules. See id. at 38–39. The United States argues that, by switching from mandatory language to permissive language, Congress deprived the Attorney General of the power to unilaterally determine SORNA’s applicability to pre-enactment offenders, thus enabling the Act to apply to pre-enactment offenders by its own terms. See id. at 25, 39.
This case will enable the Supreme Court to settle a circuit split over the question of whether pre-SORNA sex offenders can challenge the legality of the Attorney General’s Interim Rule.
If Reynolds is granted standing, the United States argues that Congress must be viewed as ceding, perhaps impermissibly, a significant amount of power and authority to the Attorney General. See Brief for Respondent, United States at 30–31. Under this result, Congress’s attempt to overhaul the sex offender registration system would depend in large part on the actions of the Attorney General, who was granted wide determinative abilities with regard to SORNA’s applicability to pre-enactment offenders. See id. at 32. Furthermore, by implication, granting standing would fail to relieve the shortcomings of pre-SORNA statutes: thousands of “missing” sex offenders would remain missing, still subject to a patchwork of inconsistent state laws. See id. at 4. This is particularly significant in light of the Attorney General’s emphasis on quickly implementing SORNA in order to locate these “missing” offenders. See id.at 34–35. Hence, a grant of standing would delay SORNA’s implementation process even further, and seemingly exempt pre-SORNA offenders from SORNA’s reach for years to come. See id. at 32.
Without standing, on the other hand, Reynolds would have to wait until a post-SORNA sex offender challenges the Rule, thus leaving him and others similarly situated without a way to challenge a potentially unconstitutional enactment. Similarly, because the punishments under SORNA for failure to register may be more severe than what offenders face under pre-SORNA registration laws, the application of SORNA to such offenders might be overly harsh and unfair. See Brief for Petitioner, Billy Joe Reynoldsat 8.
The Supreme Court will determine in this case whether sex offenders with pre-SORNA convictions have standing to challenge the Attorney General’s Interim Rule. Reynolds argues that SORNA’s requirements did not apply to pre-SORNA offenders because pre-SORNA offenders are unable to comply with SORNA’s express terms. According to Reynolds, SORNA’s stricter registration requirements applied to him only when the Attorney General issued the Interim Rule; thus he is able to challenge the Rule’s legality. The United States, however, claims that SORNA’s requirements applied to Reynolds from the moment of enactment. The United States notes that, if SORNA’s registration requirements did not apply to pre-SORNA offenders such as Reynolds, SORNA’s national registration system would be ineffective: hundreds of thousands of convicted sex offenders residing in the United States would continue to evade registration.