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DEFENDING A SORNA PROSECUTION

DEFENDING A SORNA PROSECUTION. PRESENTATION OVERVIEW. Historical Background 3 min SORNA Legislation 15 min Pre-Conviction Strategies 30 min Sentencing Strategies 7 min. SORNA HISTORICAL BACKGROUND. HISTORICAL BACKGROUND. ORIGIN : Fear of Anonymous Felons.

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DEFENDING A SORNA PROSECUTION

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  1. DEFENDING A SORNA PROSECUTION

  2. PRESENTATION OVERVIEW • Historical Background 3 min • SORNA Legislation 15 min • Pre-Conviction Strategies 30 min • Sentencing Strategies 7 min

  3. SORNA HISTORICAL BACKGROUND

  4. HISTORICAL BACKGROUND ORIGIN : Fear of Anonymous Felons

  5. HISTORICAL BACKGROUND 1930s: Los Angeles First Legislative Body in America to Require Registration. Concerned that Gangsters were Relocating From East Coast and Midwest.

  6. HISTORICAL BACKGROUND 1947: California enacted the first statewide sex offender registration law.

  7. HISTORICAL BACKGROUND Lambert v. California (U.S. 1957): Requiring an individual with no prior notice to register violates due process.

  8. HISTORICAL BACKGROUND 1990s: Proliferation of State Sex Offender Registration and Notification Systems • 1989: 12 States Had Registration Systems • 1996: All 50 states had a Registration System

  9. HISTORICAL BACKGROUND High Profile Sexual Abuse Cases: • Megan Kanka: Megan’s Law in New Jersey (1994) • Jacob Wetterling: Federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (1994)

  10. HISTORICAL BACKGROUND Adopted a Wetterling Act compliant registration system effective January 1, 2006

  11. HISTORICAL BACKGROUND Supreme Court Review of Pre-SORNA State Systems: • Smith v. Doe (2003): Court held Alaska Registration System’s Application to Pre- Enactment Convictions Did Not Violate Ex Post Facto Clause. • DPS v. Doe (2003): Court held Covered Individuals Had No Due Process Right to a Hearing Before Being Required to Register.

  12. SORNA THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT OF 2006

  13. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Sponsors Mark Foley and others urged Congress to pass the Sex Offender Registration and Notification Act (“SORNA”). President George W. Bush signed into law on July 27, 2006.

  14. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Purpose 42 U.S.C. § 16901 • To protect the public from sex offenders and offenders against children; and • To establish a comprehensive national system for the registration of sex offenders and offenders against children. Legislative History • Concern sex offenders under Wetterling Act systems were going missing.

  15. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Criminal Provision (18 U.S.C. § 2250(a)) • Defendant Required to Register under SORNA • Defendant either: • Has a prior federal conviction, or • Traveled in Interstate Commerce; and • Defendant knowingly failed to register as required by SORNA

  16. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Affirmative Defense • uncontrollable circumstances prevented the individual from complying; • the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and • the individual complied as soon as such circumstance ceased to exist.

  17. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Who Must Register: • 42 U.S.C. § 16911(a)(1): A person who has been convicted of a “sex offense.”

  18. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement What is a Sex Offense: • 42 U.S.C. § 16911(a)(5): • A criminal offense that has an element involving a sexual act or sexual contact with another; • A criminal offense that is a specified offense against a minor; • A specified Federal offense • A specified violation of the UCMJ • An Attempt or conspiracy to commit one of the above

  19. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement What is a Specified Offense Against a Minor: 42 U.S.C. § 16911(a)(7): an offense against a minor that involves: • kidnapping; • false imprisonment; • Use in a sexual performance; • Solicitation to practice prostitution; • Video voyeurism as described in 18 U.S.C. 1801; • Child Pornography offenses; • Criminal sexual conduct involving a minor, • Any conduct that by its nature is a sex offense against a minor.

  20. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Consensual Sex Exception • 42 U.S.C. § 16911(5)(c): • An offense involving “consensual sexual conduct” is not a sex offense if: • The victim was an adult (unless adult was under custodial authority of the offender); or • The victim was at least 13 years old and the offender was not more than 4 years older than the victim.

  21. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Categories of Sex Offenders: • 42 U.S.C. § 16911(a): Three Tiers (I through III)

  22. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Categories of Sex Offenders: • 42 U.S.C. § 16911(a): • Tier III: Defendant convicted of a prior contact offense, kidnapping, or committed an offense after becoming a Tier II offender • Tier II: Defendant convicted of a child pornography offense, sex trafficking, enticement, transportation of a minor, solicitation of a minor to practice prostitution, or “abusive sexual contact” with an individual over 12 years old. • Tier I: Any conviction that does not fall in Tiers II or III.

  23. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement General Requirement • 42 U.S.C. § 16913(a): • A sex offender must keep registration current in each jurisdiction where he resides, is employed, and attends school. • Must also initially register in state of conviction.

  24. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Initial Registration • 42 U.S.C. § 16913(b): • Register prior to completing a prison sentence; or • No later than 3 business days after being sentenced if not sentence to imprisonment.

  25. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Keeping the Registration Current • 42 U.S.C. § 16913(c): • Must appear in one jurisdiction referenced in subsection (a) not later than 3 business days after each change of: • Name • Residence • Employment • Student status And provide information required in the registry.

  26. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Information Required in the Registry • 42 U.S.C. § 16914(a): • Sex Offenders must provide the following information: • Name (including any alias used) • Social Security number • Address of each residence at which the sex offender resides or will reside • Name and address of employment • Name and address of school • Vehicle information • Any other information required by the AG

  27. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Delegation to the Attorney General • 42 U.S.C. § 16913(d): • The Attorney General has the authority to specify the applicability of the requirements of SORNA to sex offenders convicted before: • SORNA’s enactment on July 27, 2006; and • SORNA’s implementation in a particular jurisdiction Interim Rule on February 28, 2007 Final Rule effective January 18, 2011

  28. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Delegation to the Attorney General • 42 U.S.C. § 16912(b): • Congress delegated authority to the Attorney General to issues guidelines and regulations to interpret and implement this title. • Final Guidelines effective August 1, 2008 • Supplemental Guidelines effective February 10, 2011

  29. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Length of Registration Requirement and Frequency of In Person Verification: • 42 U.S.C. §§ 16915, 16916: • Tier III: Life registration In person verification every 3 months • Tier II: 25-year registration In person verification every 6 months • Tier I: 15-year registration In person verification each year

  30. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Early Termination: • 42 U.S.C. § 16915(a)(2)-(3): • Tier III: Applies to juveniles adjudicated delinquent 25-year clean period • Tier II: Not Applicable • Tier I: Applies to every individual 10-year clean period

  31. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Duty to Notify Sex Offenders of SORNA • 42 U.S.C. § 16917: • Congress required an “appropriate official” to notify a sex offender of his duty to register under SORNA prior to his release, and have the sex offender read and sign a form stating that he understands the requirement. • The Attorney General issued an Interim Rule on February 28, 2007 making SORNA applicable to all sex offender.

  32. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Registration Requirement Attorney General Regulations • Interim Rule (February 27, 2007) • Final Guidelines (effective August 1, 2008) • Final Rule (effective January 18, 2011) • Supplemental Guidelines (effective February 10, 2012)

  33. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT 16 States and 3 Territories Have Implemented SORNA • Alabama • Commonwealth of the Northern Mariana Islands • Delaware • Florida • Guam • Kansas • Louisiana • Maryland • Michigan • Mississippi • Missouri • Nevada • Ohio • Pennsylvania • South Carolina • South Dakota • Tennessee • U.S. Virgin Islands • Wyoming

  34. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Supreme Court Review Carr v. United States (2010): • The enforcement provision of Section 2250 does not apply to covered individuals whose travel predates the enactment of SORNA. • Section 2250 requires proof that the elements were committed in a sequential order. Reynolds v. United States (2012): • Congress delegated authority to the Attorney General to determine whether SORNA applies to individuals with pre-enactment convictions. • Did not address whether the Interim Rule of February 28, 2007 was a valid rule

  35. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Supreme Court Review United States v. Kebodeaux(2013): • (1) Whether pre-SORNA federal law obligated an individual with a prior military conviction to register as a sex offender; and • (2) whether Congress has authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

  36. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT Fourth Circuit Review United States v. Gould (2009): Found SORNA Constitutional under challenges brought under: • Commerce Clause • Due Process Clause • Ex Post Facto Clause Also found Attorney General had good cause to avoid notice and comment period requirement of APA and Government not required to prove notice under 16917 or knowledge of SORNA requirement.

  37. SORNA PRE-CONVICTION DEFENSE STRATEGIES

  38. PRE-CONVICTION DEFENSE STRATEGIES Prior Conviction is Not an Offense Requiring Registration • Request Bill of Particulars • Obtain Records from Prior Conviction • Categorical Approach • Who Determines Jury or Judge

  39. PRE-CONVICTION DEFENSE STRATEGIES The Prior Conviction Was Invalid • Prior Conviction Was Expunged or Overturned • Foreign Conviction Obtained Without Safeguards for Fundamental Fairness 42 U.S.C. § 16911(5)(B)

  40. PRE-CONVICTION DEFENSE STRATEGIES Defendant’s Registration Period Expired • Period Runs from the Date of Sentence if Not Sentenced to Prison or Date of Release from Prison • Based on Tier Classification and Clean Record 42 U.S.C. § 16915 73 Fed.Reg. 38030 at 38068 (2008)

  41. PRE-CONVICTION DEFENSE STRATEGIES Prior Conviction Involves Consensual Conduct Congress exempted individuals from registering with prior convictions involving consensual conduct where: • the victim is an adult who was not under the defendant’s custodial authority; and • the victim was at least 13 and the defendant was not more than 4 years older. 42 U.S.C. §16911(5)(C) Due Process / Rule of Lenity

  42. PRE-CONVICTION DEFENSE STRATEGIES Defendant Was Not Given Notice of SORNA Congress required an “appropriate official” to notify the defendant of the requirement to register and have the defendant read and sign a form acknowledging his understanding. 42 U.S.C. §16917 Due Process

  43. PRE-CONVICTION DEFENSE STRATEGIES Defendant Never Established a Residence / The Term Residence is Void as Applied • Registration requirement triggered upon establishing a new residence • Residence based on term “resides,” which is defined as “the location of the individual’s home or other place where the individual habitually lives. • Transient defendant may not have a home or other place where he habitually lives 42 U.S.C. §§16911(13), 16913 Due Process

  44. PRE-CONVICTION DEFENSE STRATEGIES Attorney General’s Rule Violates the APA Congress Delegated Authority to the Attorney General to Determine Whether SORNA applies to individuals with convictions predating SORNA’s enactment or its implementation in a particular jurisdiction Attorney General’s regulations: • the Interim Rule on February 28, 2007; • the Final Guidelines on August 1, 2008; • the Final Rule on December 29, 2010; and • the Supplemental Guidelines for Sex Offender Registration and Notification on January 11, 2011 42 U.S.C. §16913(d) Due Process Administrative Procedures Act

  45. PRE-CONVICTION DEFENSE STRATEGIES The defendant traveled before SORNA was applicable to him • Certainly applies for travel prior to February 28, 2007 • Validity of Argument for post-February 28, 2007 travel depends on when the Attorney General issued a valid rule. 18 U.S.C. 2250, Carr v. United States Due Process Administrative Procedures Act

  46. PRE-CONVICTION DEFENSE STRATEGIES The defendant was unable to comply with SORNA because it has not been implemented in relevant state(s) • Only 16 States have implemented SORNA • If Defendant prosecuted in a state that has not implemented, argue that prosecution violates Due Process Clause and Ex Post Facto Clause because defendant could not have complied

  47. PRE-CONVICTION DEFENSE STRATEGIES Constitutional Challenges Commerce Clause • Registration Requirements of 16913 purport to regulate purely local activity • Lack of mensrearequirement in travel element leaves insufficient nexus between travel and failure to register

  48. PRE-CONVICTION DEFENSE STRATEGIES Constitutional Challenges Non-Delegation Doctrine • Congress impermissibly granted the Attorney General the authority to legislate the reach of SORNA’s retrospective reach. • Attorney General has authority to determine how far back SORNA reaches and who may be exempted from registration.

  49. PRE-CONVICTION DEFENSE STRATEGIES Constitutional Challenges Ex Post Facto Clause • The registration obligations create a greater collected disabilities, restraints, and obligations than the previous state or federal registration requirements in effect at the time of a defendant’s conviction. • Term of imprisonment and supervised release for violating SORNA is greater than previous state or federal registration enforcement provisions.

  50. PRE-CONVICTION DEFENSE STRATEGIES Constitutional Challenges Venue • When defendant is prosecuted in State A after traveling from State A to State B and failing to register in State B.

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