Under the Sex Offender Registration and Notification Act, must registered sex offenders who leave the United States update their registration status with their former home states?
In November 2012, Lester Nichols flew from Kansas City, Kansas, to Manila, Philippines. Nichols, a registered sex offender, did not update his registration status in Kansas City prior to his departure. In December 2012, Manila law enforcement officers arrested Nichols, and transferred him to the United States’ custody. The United States then charged Nichols for failing to comply with the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”). The Supreme Court will decide whether SORNA requires sex offenders who move to foreign countries to update their registration status in the U.S. jurisdiction where they used to reside. Nichols argues that a sex offender who moves to a foreign jurisdiction does not need to update his or her registration status. The United States maintains that SORNA aims to regulate offenders who move abroad.
Questions as Framed for the Court by the Parties
Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.
In 2003, Lester Nichols was convicted and sentenced to ten years imprisonment for traveling from one state to another with the intent to have sex with a minor. See United States v. Nichols, 775 F.3d 1225, 1227 (10th Cir. 2014). In 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a) (“section 2250”). See id. Acting under the authority of 42 U.S.C. § 16913, the U.S. Attorney General issued a rule in 2007 that extended the reach of SORNA to sex offenders who were convicted before the enactment of SONRA. See Id. SORNA requires that convicted sex offenders “register or update a registration” when “travel[ing] in interstate or foreign commerce.” See 18 U.S.C. § 2250(a). Accordingly, Nichols needed to comply with SORNA’s registration requirements. See Nichols, 775 F.3d at 1227.
In 2012, Nichols was released from prison and lived under federal supervision in Kansas. See Nichols, 775 F.3d at 1227. Prior to November 2012, Nichols fully complied with both Kansas and SORNA sex offender registration requirements. See Id. But in November, Nichols flew from Kansas City to Manila, Philippines, but did not update his sex offender registration. See Id. In December 2012, local law enforcement officers in Manila arrested Nichols and then released him to U.S. State Department custody. See id. The State Department charged Nichols with one count of failure to update his registration under section 2250. See Id.
In the District Court for the District of Kansas, Nichols moved to dismiss the indictment. He argued that (1) SORNA does not require a sex offender to register in non-U.S. jurisdictions, and that (2) Congress’ delegation of authority to the attorney general to determine SORNA’s applicability to sex offenders convicted before the law’s enactment was unconstitutional. See Nichols, 775 F.3d at 1228. The district court denied Nichols’ motion to dismiss, and Nichols entered a conditional guilty plea, which reserved the right to appeal both issues. See id.
On appeal, the U.S. Court of Appeals for the Tenth Circuit affirmed the district court’s judgment. See Nichols, 775 F.3d at 1230, 1232. The Tenth Circuit held that Nichols’ move to the Philippines triggered an obligation to update his registration in Kansas. See Id. at 1230. The Tenth Circuit also found that Congress’ delegation of authority to the attorney general was constitutional, because Congress stated an “intelligible principle” for the attorney general to follow. See Id. at 1232.
The Tenth Circuit denied Nichols’s petition for rehearing en banc on April 15, 2015. See Brief for Petitioner, Lester Ray Nichols at 1. On July 14, 2015, Nichols petitioned for writ of certiorari, which the U.S. Supreme Court granted on November 6, 2015. See id. The Court granted Nichols’ petition on only one issue: whether convicted sex offenders violate section 2250 by moving from the United States to foreign jurisdictions without updating their registration status in the jurisdiction of their former U.S. residence. See Id.
Nichols argues that sex offenders who move to foreign jurisdictions do not need to update their registration status, given SORNA’s plain language, context, and policy goals. SORNA is written in the present tense, indicating that an offender must register where he or she currently resides. SORNA’s grace period only makes sense as applied to United States residents. And similar acts show that Congress deliberately chose SORNA’s language, and aimed to create a national—not international—database of offenders. See Brief for Petitioner, Nichols at 22–24, 26–27, 31–34. The United States maintains that SORNA regulates offenders who move abroad. SORNA’s language reads in the present and future tense; therefore, offenders must provide information regarding where they will live. SORNA’s grace period merely sets the last day offenders can register, and they can register before their move. Additionally, the United States argues that updated registration furthers SORNA’s policy goals by keeping jurisdictions updated on offenders’ whereabouts. See Brief for Respondent, United States at 15–19, 22–25.
SORNA’S STATUTORY LANGUAGE
Nichols argues that offenders do not need to update jurisdictions where they no longer reside. Nichols asserts that the Congress wrote SORNA in present tense. See Brief for Petitioner at 22–23. Nichols explains that SORNA requires sex offenders to register in “each jurisdiction where . . . [they] reside,” and to report changes to any “involved” jurisdiction. Nichols concludes that the “involved jurisdiction” is where offenders currently reside. See Id. at 23–24. Nichols explains that Congress defined “resides” as “the location of the individual’s home or other place where the individual habitually lives.” Under that definition, offenders must register where they currently dwell, not where they used to dwell. See Id. at 26–27. Because SORNA requires offenders to register “in person,” Nichols argues that offenders do not need to register in jurisdictions where they no longer reside. See Id. at 31–32. Additionally, Nichols asserts that SORNA’s three-day grace period signifies that the statute requires offenders first to move and then to register in their new jurisdiction—not to register in the jurisdiction where they intend to leave and then move. See Id. at 33–34.
Hence, Nichols maintains that offenders only need to register with jurisdictions in which they currently reside. Nichols did not move to a new U.S. jurisdiction, and he contends that the Philippines is not a “jurisdiction” under SORNA’s definition. Accordingly, Nichols concludes he did not need to update any U.S. jurisdiction, and did not need to register in the Philippines. See See Brief for Petitioner at 40–41.
The United States counters that SORNA’s use of the present tense “resides” does not mean that offenders do not need to update former jurisdictions. Instead, SORNA allows offenders to register a future residence with their current jurisdiction in case they cannot register in their new jurisdiction. See Brief for Respondent at 17–18. The United States argues that SORNA applies to a sex offender’s future changes in residence, because the Dictionary Act directs that “words used in the present tense include the future as well as the present.” See Id. at 19.
The United States maintains that SORNA requires offenders to keep their registration information “current” regarding changes in residence. The plain meaning of “change,” as used in SORNA, includes abandoning a residence, such as moving to a foreign country. See Brief for Respondent at 16. The United States also maintains that SORNA’s three-day grace period merely sets the latest possible time that offenders can register, and does not mean that offenders cannot register before they move. See Id. at 18. The United States asserts that requiring offenders to register in their new jurisdiction within three days of moving, without allowing them to register before departing, would be nonsensical. Offenders who take more than three days to move would be unable to timely register the change. See Id. at 22–23. Finally, the United States argues that the jurisdiction from which offenders move remains an “involved” jurisdiction under SORNA. Offenders are registered in their old jurisdiction until they register in a new one. Thus, offenders who have not registered in a new jurisdiction (or cannot within the three-day grace period) must register with their old jurisdiction. See Id. at 24–25.
SORNA’S CONTEXT AND POLICY GOALS
Nichols contends that requiring an offender to register in a jurisdiction he or she is leaving is contrary to Congress’ goal of creating a “national,” not international, database. See Brief for Petitioner at 47. SORNA meets this goal by requiring offenders to register while residing in U.S. jurisdictions. Nichols argues that SORNA, unlike similar acts, addresses sex offenders outside the United States yet chooses to regulate only offenders entering the United States. Hence, Congress chose not to regulate leaving offenders. See Id. at 42–43, 52–56. Nichols contends that, in any event, states, not the federal government, have historically enforced laws requiring notification of departure. See Id. at 57.
But the United States contends that requiring offenders to notify jurisdictions that they are leaving keeps outdated and incorrect information out of the database. See Brief for Respondent at 31–32. The United States argues that SORNA’s framework differs from prior acts: SORNA does not require the flow of residence information from the old jurisdiction to the new one as other acts have, but rather allows for this information to flow in either direction. See Id. at 37–38. The United States asserts that states’ ability to enact their own provisions regarding an offender’s departure does not mean SORNA does not also regulate departures. Congress sought significant state and federal overlap, and SORNA encourages states to adopt the federal standards. See Id. at 38–39.
The court will decide whether SORNA requires a sex offender moving away from the United States to register with his or her former state. Nichols maintains that SORNA’s plain meaning, context, and policy goal of creating a national database do not require an offender to register with his or her former state. The government counters that SORNA is forward looking—an offender should register with his or her state before moving—and that requiring this registration furthers SORNA’s policy goals by reducing misinformation in the database.
Jessica Shumaker, High Court to Hear Sex Offender Registry Case, Legal News (November 19, 2015).