The Seventh Circuit, in U.S. v. Dixon, joined the Eighth and Tenth Circuits in reaching the constitutional issues that arise in failure to register prosecutions under SORNA. The opinion is especially notable because it was written by Justice Posner. There is a lot to discuss about the opinion, but overall I am disappointed in the way certain issues were addressed. It seems like something may have been lost in translation in regards to some of the issues involved. In reviewing the Commerce Clause argument, for example, this is what Judge Posner wrote:
The remaining arguments made by Dixon (other than a frivolous argument based on the Administrative Procedure Act) are based on the Constitution. Most of them have no merit, such as his contention (made only at oral argument) that the movement of a person as distinct from a thing across state lines is not “commerce” within the meaning of the Constitution’s commerce clause. Dixon’s lawyer must in the heat of argument have forgotten the Mann Act, 18 U.S.C. §§ 2421 et seq.
Dixon has one good argument, however, and that is that his conviction for failing to register violated the Constitution’s ex post facto clause. This is part of the original Constitution, not the Bill of Rights, and is foundational of liberty. Marks v. United States, 430 U.S. 188, 191-92 (1977). It both enforces the principle that legislation is prospective, whereas punishment—the job assigned by the Constitution to the judicial branch—is retrospective, and gives people a minimal sense of control over their lives by guaranteeing that as long as they avoid an act in the future they can avoid punishment for something they did in the past, which cannot be altered.
Nonetheless, the Judge Posner did not find an Ex Post Facto violation. Like many other courts, the 7th Circuit conflates obligations to register with states with the obligations to register with the federal government. There are important differences, however, in when those obligations apply, the information that must be provided, and the penalties for violation.
The failure-to-register law punishes the combination of three acts: (1) the underlying sex offense, (2) interstate travel, and (3) failure to register after the interstate travel. (Query whether #3 is truly an “act” — but the Seventh Circuit assumed as much without discussion.) For Dixon and Carr, the first and second acts occurred before passage of the Walsh Act. So, the only real question was whether their failure to register occurred after the effective date of the law (which, for them, was February 28, 2007, when the Attorney General first made the law applicable to them). The court noted, though, that it would not be permissible to deem their failure to register to have occurred on February 28 itself; rather, there must be a “reasonable time” given for registering.
So, as happens so often in the law, we are left to decide what it means to be “reasonable.” The court declined to provide any bright-line test, but did hold that Dixon must be acquitted, while letting Carr’s conviction stand. The difference? Dixon was charged with failing to register “from on or about February 28, 2007 to on or about April 5, 2007.” Carr, on the other hand, admitted that he had still failed to register “on or about July, 2007″ — about five months after the Attorney General’s regulation was issued. “Five months is a sufficient grace period. . . . Carr had a reasonable time within which he could have registered. . . . [H]is rights under the ex post facto clause were not violated.” Thus, while the Seventh Circuit has limited the reach of the Walsh Act a bit in Dixon, there is a clear outer bound: sex offenders must have registered within five months of the law’s effective date (and, as future cases may decide, perhaps even sooner).
I think it can be said that Judge Posner views the world in a way different than most. This unique reasoning for finding for the defendant in a SORNA case is consistent with his unique outlook. I'm not sure if any other court will follow his lead. It's also unclear if the holding has any real importance since a prosecutor can simply change an indictment to avoid the "reasonable time" issue by alleging a later date for "failing to register."