7th Circuit Rules on SORNA Constitutionality

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.

I took that to mean that the Commerce Clause issue was not even briefed. However, the first comment at Sentencing Law & Policy was from the defense attorney in the case who seemed to believe the Commerce Clause argument was his best position. So, I'm at a loss to explain how Judge Posner could so summarily dismiss the key argument from the defense attorney while stating it was only made at oral argument. I must be missing something.

Posner's reference to the Mann Act is distinguishable because a Mann Act crime only occurs when a person enters interstate commerce. However, SORNA necessitates no temporal or factual connection between the interstate travel and the violation. A person can travel years before the failure to register and still be subject to prosecution under SORNA (which is certainly not the case under the Mann Act). Indeed, in Dixon's case, his travel occurred before the passage of the Act, as Posner notes in discussing the retroactivity issues. Further, the disconnect between SORNA's requirements and interstate travel is exhibited in other situations as well. If an offender changes address or employer within a state, even to one across the street, he or she must re-register to avoid serious prison penalties under SORNA. In such a case, the prosecutor would merely have to allege interstate travel at some prior date (or potentially some date after) which was unrelated to the change in status that triggered an obligation to update registry information. As I have noted elsewhere, the Commerce Clause basis for SORNA is far from clear. I only hope that the Dixon opinion does not foreclose other 7th Circuit panels from reaching a different outcome as to the Commerce Clause issues involved. 

While Judge Posner was completely unimpressed with many of Dixon's constitutional arguments, he at least gave some credence to the Ex Post Facto claim: 

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. 

In the end, however, Judge Posner does reach an outcome for one of the defendants on statutory grounds. However, the reasons for the 7th Circuit's conclusions are confusing. Professor Michael O'Hear at the Marquette Law Faculty Blog offered this helpful explanation:

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."

Notably, in the opinion, Posner took a very different view than the Tenth Circuit in Husted concerning whether SORNA applies to interstate travel before the act. For this reason, Berman and O'Hear wondered whether this "split" would attract Supreme Court attention. I'm inclined to think otherwise. While Judge Posner takes a different approach to interpreting SORNA, it is not an essential finding for the ultimate holding. Further, the issues involved are likely transitory in nature as cases alleging travel before the act are likely to disappear as time moves forward.

Comments

[Daniel]

Welcome back from you cross-country trip. Hope you had a good time.

"I think it can be said that Judge Posner views the world in a way different than most."

And yet, this is the man with audacity? hubris? arrogance? Not sure the best word here...to write a book called "How Judges Think."

In all honesty, I've never read the book because when I first heard about it my snarky remark was, "well, good judges don't think like Posner."

[lawdoc]

It is a typical Posner opinion, extremely fun to read, and occassionally touching upon the law to keep the pages turning.