Last night, I uploaded my new article about SORNA to SSRN (which should appear in the next of couple of days). In the article, I noted that no federal circuit has ruled on the constitutionality of the provisions of SORNA. So, of course, right after I uploaded it, the Eighth Circuit became the first appellate court to render an opinion regarding some of the constitutional challenges against SORNA. The Court reviewed claims concerning the non-delegation doctrine, the Ex Post Facto Clause, the Commerce Clause, and procedural due process. Since the court focused on the Ex Post Facto claim, I will address its arguments on that challenge below. This is the key part of how the court resolved the ex post facto claim in United States v. May:
May contends SORNA does not apply to him because his travel in interstate commerce, although occurring after SORNA’s enactment, occurred before the Attorney General issued an interim ruling designating the applicability of SORNA to offenders convicted before SORNA’s date of enactment....
The district court predominantly relied on the United States Supreme Court’s decision in Smith v. Doe, 538 U.S. 84, 89-90, 105-06 (2003), in which the Supreme Court held the Alaska Sex Offender Registration Act was civil and nonpunitive, and thus its retroactive application did not violate the ex post facto clause. We recognize, as did the district court in Beasley, “the issue is very different [than in Smith]. It is whether imposing criminal penalties for traveling to and residing in a new state and not registering as a sex offender in that new state at a time before the Attorney General issued his interim regulation violates the Ex Post Facto Clause.” Beasley, 2007 WL 3489999, at *3. If a defendant, like May, is not even subject to the Attorney General’s regulation under § 16913(d) (which we have already determined), then neither the promulgation of the regulation nor § 16913(d) would present an ex post facto clause problem in such a case. To the extent May challenges the overall applicability of SORNA, the ex post facto framework outlined in Smith leads to the conclusion SORNA does not violate the ex post facto clause.
The court's opinion is a bit confused on this point. Since I haven't seen the briefs, I'm not sure if this confusion was derived from the party's construction of the ex post facto issue. There are three potential ways that a SORNA case can be retrospective: 1) the prior sex offense conviction which was the only retrospective component in Smith; 2) interstate travel before the passage of SORNA (or the Attorney General’s statement on retroactivity); and 3) failure to register before the passage of SORNA (or the Attorney General’s statement on retroactivity). In this case, because the Eighth Circuit disagrees with the Eleventh Circuit's statutory interpretation of SORNA, the second and third issues do not apply. However, like most district courts who have reviewed similar claims, the Eighth Circuit does not address the first issue - whether the defendant's prior sex offense conviction, which is a necessary element of the crime, makes the indictment retrospective. I think this omission is notable because the inclusion of the prior crime was sufficient for the USSC to conclude in Smith that the Alaska statute was retrospective (538 U.S. at 90).
Having decided that the statute was not retrospective, the Eighth Circuit could have stopped its analysis. However, the court continued on and turned to the question of whether the statute was punitive in intent:
Congress stated its purpose in establishing a comprehensive national system for registration of sex offenders was “to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators.” 42 U.S.C.A. § 16901. As was the case in Smith, SORNA’s registration requirement demonstrates no congressional intent to punish sex offenders. Congress described SORNA as a public safety measure. See § 16901.
This portion of the opinion is just mistaken (although it is a mistake that most of the district courts have made as well). How can the court conclude that, "SORNA’s registration requirement demonstrates no congressional intent to punish sex offenders" when the statute included a term of imprisonment for violation from 1 to 10 years? The crime of failing to register at 2250(a) was placed within the criminal code and is clearly intended to be punitive. This is a very different case than in Smith where the court was not reviewing the modest criminal penalties attached to the Alaska statute (538 U.S. at 101-02). Simply describing SORNA as a "public safety measure" does not remove the clear punitive intent of Congress. If future courts follow the same logic, any criminal provisions could be considered non-punitive in intent simply be appending the one-sentence SORNA statement of purpose.
The Eighth Circuit also decided that the statute's effects were not so punitive as to override the non-punitive intent. Unfortunately, the court does not revisit the seven Mendoza-Martinez factors as the court did in Smith. Having done so, I think a court should conclude that the effects are much more punitive than the Court reviewed in Smith.
I am disappointed that the first circuit opinion on SORNA's constitutionality has followed the mistaken lead of most district courts. As I argue in my new article, prosecutions under 2250(a) likely violate the Ex Post Facto Clause, deny defendant's procedural due process under Lambert, and represent an unconstitutional use of federal power that cannot be supported by the Commerce Clause.