Retroactivity in Sex Offender Law Appears to Divide High Court

WASHINGTON (CN) – Voicing alarm at expanded registration requirements for sex offenders, Justice Neil Gorsuch said Monday at Supreme Court oral arguments that the federal law appears to give state attorneys general too much power.

“I’m having trouble thinking of another delegation in which this court has ever allowed the chief prosecutor of the United States to write a criminal law for those he’s going to prosecute,” Gorsuch said this morning. “We say that vague criminal laws must be stricken. We’ve just repeated that last term. What’s vaguer than a blank check to the attorney general of the United States to determine who he’s going to prosecute?”

The case concerns a 2006 overhaul of the Sex Offender Registration and Notification Act (SORNA) that set new baselines for state systems and expanded the number of crimes for which offenders must register. Critical to the challenge at issue, the law offers no guidelines for the registration requirements that confront the half-a-million people in the United States with prior convictions.

SORNA states only that “the attorney general shall have the authority to specify” how the law applies to such offenders, and different attorneys general have in turn issued different guidelines.

In New York, this authority led prosecutors to accuse Herman Avery Gundy in 2012 of failing to properly register as a sex offender before attempting interstate travel.

Seven years earlier, Gundy had entered what is known an Alford plea to sexual assault of a minor. Though a federal judge found that Gundy was not required to register under SORNA after his release from prison in 2012, the Second Circuit reversed last year, setting the stage for oral arguments this morning in Washington.

Sarah Baumgartel with the Federal Defenders of New York hinged her appeal today on a doctrine that says Congress cannot delegate its legislative power to an executive agency without giving an “intelligible principle” for the agency to fill out the policy.

For Baumgartel, SORNA offers the attorneys general no such limiting principles, granting the top prosecutors in the country “unguided power” over the application of a criminal law.

“It combines criminal lawmaking and executive power in precisely the way that the Constitution was designed to prohibit,” Baumgartel said.

Baumgartel acknowledged that, while the court has rarely found violations of the nondelegation doctrine in other contexts, the extent to which Congress gave away its lawmaking duties to the attorney general in SORNA is unique.

Some of the justices, however, questioned whether SORNA is any different than other laws in which administrative agencies have the ability to develop regulations around a framework Congress approved. Justice Stephen Breyer specifically pointed to an SEC rule against the use of manipulative devices in a way that is against the “public interest.”

Justice Elena Kagan, meanwhile, suggested SORNA does in fact impose limits on the attorney general, as Congress meant to have everyone who had been convicted of a sex offense register and allowed exceptions only where registration was not feasible. She noted the court endorsed this interpretation of the statute in a previous case challenging its constitutionality.

“In other words, both in the majority and in the dissent, this was the one point in common, that they said this statute was designed for something and this statute did something, that it insisted that a sex offender should be read broadly to include any individual who was convicted of a sex offense and that all those people should be registered, you know, with some feasibility recognition,” Kagan said.

Principal Deputy Solicitor General Jeffrey Wall echoed this point, saying Congress made policy judgments when it developed SORNA and left the attorney general only a limited amount of room to modify how the law is implemented so it could flex when real-world challenges put it under stress.

“That kind of implementation is a classic executive function,” Wall said. “It is what statutes give to the executive branch all the time.”

Wall also warned that if the court were to strike down the section of SORNA dealing with retroactivity, it would wreak havoc on the scheme Congress carefully developed.

Wall faced his stiffest questioning from Gorsuch, but Justice Sonia Sotomayor also appeared concerned about the amount of authority the attorney general has under SORNA.

“There’s a lot of discussion in our case law about the propriety of the court reading into statute words, and I think a fundamental issue that Justice Gorsuch has been aiming at is, especially in criminal law, is it just to delegate to the attorney general a fundamental  decision about who gets covered or doesn’t get covered by a statute?” Sotomayor asked. “It seems like at the core of what a law is, if someone does x act, you’re covered or you’re not.”

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