The Retroactive Reach of SORNA

Through the Sex Offender Registration and Notification Act, Congress made it a federal crime for sex offenders who travel in interstate commerce to fail to comply with state laws for sex offender registration.  Congress provided for retroactive application of the new law to those who were convicted of sex crimes before the law took effect in 2006, but did so through some ambiguous language whose meaning has sparked much debate and litigation.  Earlier this week, the Supreme Court resolved at least one of the retroactivity disputes in Reynolds v. United States (No. 10-6549).

As the Supreme Court described it, here was Reynolds’ situation:


Billy Joe Reynolds, the petitioner, is a pre-Act offender. He was convicted of a Missouri sex offense in October 2001; he served four years in prison; he was released in July 2005; he then registered as a Missouri sex offender; but he moved to Pennsylvania in September 2007 without updating his Missouri registration information (as Missouri law required) and without registering in Pennsylvania. A federal grand jury indicted him, charging him with, between September 16 and October 16, 2007, having “knowingly failed to register and update a registration as required by [the Act].” . . .

Reynolds moved to dismiss the indictment on the ground that in September and October 2007 the Act’s registration requirements had not yet become applicable to pre-Act offenders. He conceded that the Act had become law earlier (namely, in July 2006), and he conceded that the Attorney General had already (in February 2007) promulgated an Interim Rule specifying that the Act’s registration requirements were applicable to pre-Act offenders. But he claimed that the Interim Rule was invalid because it violated both the Constitution’s “nondelegation” doctrine and the Administrative Procedure Act’s (APA) requirement for “good cause” to promulgate a rule without “notice and comment” (as the Attorney General had done). Because the Interim Rule is invalid, he added, the law must treat him like a pre-Act offender who traveled interstate and violated the Act’s registration requirements before the Attorney General specified their applicability.

The District Court rejected on the merits Reynolds’ legal attack on the Interim Rule. But the Court of Appeals rejected Reynolds’ argument without reaching those merits. That court thought that the Act’s registration requirements apply to pre-Act offenders such as Reynolds (who was subject to a pre-existing state-law registration requirement) from the date of the new law’s enactment—even in the absence of any rule or regulation by the Attorney General specifying that the new registration requirements apply. That being so, the validity of the Interim Rule could make no legal difference, for the Act required Reynolds to follow the new federal registration requirements regardless of any rulemaking.  (4-5)

The Supreme Court reversed.  The Court found it critical that SORNA states, “The Attorney General shall have the authority to specify the applicability of the [registration] requirements . . . to sex offenders convicted before the enactment of this chapter . . . .” 42 U.S.C. §16913(d).  Although this language, read in context, is not entirely free from ambiguity, the Reynolds majority found it a sufficiently clear indication that SORNA’s “registration requirements do not apply to pre-Act offenders until the Attorney General so specifies.”

Of course, this does not mean that Reynolds is out of hot water.  Rather, it just means that he will have another opportunity to challenge the validity of the Attorney General’s Interim Rule.  In this regard, it is interesting that Justice Scalia’s dissenting opinion (joined by Justice Ginsburg) noted a potential nondelegation problem with SORNA:

[I]t is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable . . . . (3)