10th Circuit Rules on SORNA's Retroactivity

In U.S. v. Husted, the 10th Circuit has gone against the majority of courts reviewing SORNA prosecutions by finding that retroactive application of the statute to interstate travel before the passage of the Act was in conflict with the plain language of the statute. From the opinion:

As noted, § 2250(a)(2)(B) applies to whomever “travels in interstate . . . commerce” (emphasis added). Congress’s use of the present tense form of the verb “to travel” indicates that SORNA’s coverage is limited to those individuals who travel in interstate commerce after the Act’s effective date.4 See 1 U.S.C. § 1 (directing courts that, unless context indicates otherwise, “words used in the present tense include the future as well as the present”); United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). The Act uses the present tense (“travels”), which according to ordinary English grammar, does not refer to travel that has already occurred. Had Congress used the past tense (“traveled”) or the present perfect tense (“has traveled”), then this might be a different case. Here, however, we find no ambiguity in Congress’s use of the word “travels.”

In response to that interpretation, the government argued that the absurdity doctrine should apply:

Despite SORNA’s plain meaning, the government argues that we should nonetheless interpret the statute to reach defendants who traveled interstate before the Act’s effective date because to do otherwise would reach an absurd result.... [W]e decline to apply the absurdity doctrine to contravene SORNA’s plain meaning.

I think the 10th Circuit was too soft on the government in regards to the absurdity doctrine. It simply cannot be asserted that the failure to make a statute apply to criminal conduct before the passage of an act is an "absurd result." That is usually the default interpretation of criminal statutes because of the Ex Post Facto Clause.

Because the court ruled on statutory grounds, the 10th Circuit did not reach the constitutional questions. That leaves the 8th Circuit opinion in U.S. v. May as the only federal appellate court opinion concerning SORNA.

HT: CrimProf