Tenth Circuit Issues Two Opinions Upholding SORNA

Following on the heels of the 10th Circuit opinion in U.S. v.Husted, the court issued two new opinions allowing SORNA prosecutions to proceed. Sentencing Law & Policy drew my attention to the decision in U.S. v. Lawrance date December 8th. Upon reading Lawrance, I noticed the court referred to a prior Tenth Circuit opinion, U.S. v. Hinckley. I hadn't heard of Hinckley, so I went to the Tenth Circuit's website to find it. Strangely, the opinion in Hinckley only came out today, December 9th. So, while there is nothing really wrong with it, the opinion in Lawrance cites an opinion that had not yet been published. The opinions are interesting in their similarities. They are from two different panels (although Judge Kelly was on both panels and wrote both majority opinions), yet both cases created 2-1 splits. As with so many other courts, the Tenth Circuit's handling of the Ex Post Facto Clause issue is sloppy. To determine if there is an Ex Post Facto violation, a court must first determine if a statute is punitive in intent. As the majority opinion in Hinckley illustrates, courts are far too quick to rely on the USSC's holding in Smith v. Doe: 

Distinguishing Smith, Mr. Hinckley characterizes SORNA as a punitive criminal statute that violates the Ex Post Facto Clause. Unlike SORNA, he argues, the Smith scheme was primarily civil in nature, did not require Internet dissemination of offenders’ information, did not establish a community notification program, did not require in-person reporting, and did not include felony criminal penalties. However, SORNA’s declaration of purpose shapes the statute as one involving public safety concerns, making clear that the law is designed “to protect the public from sex offenders and offenders against children,” and comes as a “response to the vicious attacks by violent predators.” 42 U.S.C. § 16901; see May, 535 F.3d at 920; Hinen, 487 F. Supp. 2d at 755-56 (discussing the legislative intent behind SORNA); Gill, 520 F. Supp. 2d at 1348 (same). Therefore, the statute bears a legislative label of “civil.”

That's the court's entire analysis on the point. Even when the litigant pointed out that Smith cannot control because it was not a review of the prison penalties applied to a failure to register, the court effectively dodged the distinction. Stating that the statute serves a "public safety" function is a non sequitur - every punitive statute is designed to serve a "public safety" function. There is nothing about "public safety" that helps to indicate a non-punitive intent.

Among other issues, both opinions rejected Commerce Clause and Due Process challenges. The Tenth Circuit thus rejected what I believe to be the three viable claims against SORNA prosecutions. In doing so, the Tenth Circuit has joined the Eighth Circuit in effectively removing all constitutional bars to SORNA prosecutions for failing to register.

The dissents in the two cases did not hinge on constitutional issues. Instead, they both rejected prosecutions during the so-called gap period on statutory grounds. Notably, Judge McConnell was one of the dissenters. This was his explanation of the retroactivity issue:

The crucial question in this case is the interpretation of 42 U.S.C. § 16913(d), which the majority finds “ambiguous.” I do not, and do not believe that there is an alternative reading of the language that permits us to affirm. § 16913(d) reads: 

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. 

The majority holds that the subchapter applied to prior offenders even before the Attorney General exercised his authority to specify whether it would do so, and thus presumably even if the Attorney General had never done so. This interpretation effectively writes the first clause of § 16913(d) out of the statute. That is not a tenable interpretation.

It's nice to see judges give serious attention to the strained statutory arguments made by prosecutors in these cases. I only wish they would be more amenable to certain constitutional arguments that have been offered as well.

Comments

[DEJ]

I don't believe these two opinions remove "all constitutional bars to SORNA prosecutions for failing to register." Most significantly, neither opinions address whether Title 42's registration requirements are a valid exercise of the commerce clause. In fact, this is the issue that most district courts to find fault with SORNA have relied on.