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Wednesday, May 29, 2024 | Back issues
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High Court Considers Retroactive Effect of| Sex Offender Law

WASHINGTON (CN) - The retroactive effect of sex offender registration laws was argued before the Supreme Court Wednesday in a case where an ex-convict moved but did not re-register.

A law passed later required notification of every move and he was then found in violation of that subsequent law. "Mr. Carr was in violation of the law the instant it was passed, right?" Chief Justice John Roberts asked of the government lawyer.

Thomas Carr registered in 2006 as one of the nation's 700,000 sex offenders, but quickly moved from Alabama to Indiana, where he did not re-register.

Two years later, Congress passed the Sex Offender Registration and Notification Act, which sends sex offenders with up to 10 years in prison if they move between states and knowingly fail to update their registration.The law was passed after roughly 100,000 sex offenders fell off the radar, but Chief Justice John Roberts cast doubt on the reasonability of holding the offender to the new law.

But the bill left the Attorney General to decide whether the law should be applied retroactively, and he said it should apply to all sex offenders. The government therefore pursued Carr after it discovered him in Indiana when he was arrested in a fight.

Charles Rothfeld of Mayer Brown represented Carr. He argued that the law was written in the present tense and does not apply to the past. He said the law requires sex offenders to register before moving. Since the law was not in place before Carr moved, he could not have followed the law as it is laid out, Rothfeld said.

But Justice Samuel Alito pounced on Rothfeld's present-tense argument. "There are provisions of this very statute that use the present tense to refer to past conduct," Alito said. "So why doesn't that knock the legs out from under your textual argument?"

Alito then moved onto Rothfeld's timeline argument.

"There is nothing in the statute that says that those three events have to take place in a temporal sequence," he said in reference to the three steps of conviction, registration and moving.

Roberts set himself apart from the other conservative justices by seeming to advance Rothfeld's arguments while Rothfeld was still at the podium. "That's pretty unusual, isn't it, to have Congress say it's up to the Attorney General whether their laws apply prospectively or retroactively," he said to Rothfeld.

But Justice Antonin Scalia seemed to disagree. "Well, it's not as though he was authorized to make something a crime which wasn't a crime," he said.

Justice Sonia Sotomayor depicted what would happen if the Court ruled in Carr's favor. "The problem is that the people who had traveled previously and failed to register would no longer be subject to any registration process or presumably any punishment," she said.

She then noted that all states have registry requirements and suggested that the case shouldn't even be in federal court. "Why can't those states that the individual has moved to simply prosecute the person for a failure to register?" she asked.

Indiana law punishes sex offenders with up to three years in prison if they fail to register, which is seven years shorter than the federal government's maximum sentence.

Assistant Solicitor General Curtis Gannon represented the government. He argued that the law was meant to catch offenders who had fallen off the registry, including those who traveled before the act was adopted. He added that Carr did not re-register long after the law was passed, violating both federal and state registry laws.

Moving sex offenders are required to re-register within 10 days under both Alabama and Indiana law.

Gannon said that a decade after every state passed sex offender registration laws, 100,000 offenders still could not be found. "They were concerned about the persons who had fallen off the sex offender registry rolls," Gannon said of the government.

Justice Stephen Breyer warned the government lawyer, "This is a very close case. That tends to cut somewhat against you," he said, seeming to refer to a rule that cases on ambiguous laws be ruled in the defendant's favor.

Scalia even chimed in, suggesting the law only addressed moves after its implementation. "They use the past tense when they mean it," he said.

Sotomayor pointed to the ambiguity of the law, noting that while sex offenders are supposed to register, states don't necessarily have places to register, that it's not clear how much time offenders have to register or that they are expected to register the same way they did under the old system.

She asked the government lawyer, "Are you worried at all whether or not there might be a due process violation in all the indeterminate provisions of this law?"

Gannon replied that he didn't think there was a violation.

The federal government has required states to keep records of sex offenders since 1996, but discrepancies soon emerged in the classification of a sex offender, and in the data collected. The 2006 law was the legislature's effort to keep uniform and detailed files on the criminals.

The district court denied Carr's motion to dismiss the indictment on the basis that he moved before the law was passed, and the 7th Circuit affirmed. However, the 10th Circuit reached the opposite conclusion on a different case over the same issue.

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