Case Law Updates
The SMART Office has compiled a new resource which summarizes the sex offender registration and notification system within the United States, as well as pertinent case law, available here:
In addition, the SMART Office produced an outline-form case law summary in 2009, which is accessible here:
Case Law Summary, January 2008 - July 2009
Clarification of the Impact of the Decision in Carr v. United States on SORNA Implementation
Carr v. United States, 130 S.Ct. 2229 (2010), was a narrow holding about the statutory language of 18 USC §2250. There are a number of issues it did not address:
- Whether SORNA is an unconstitutional ex post facto law (not addressed, Smith v. Doe still governs)
- Whether an offender convicted prior to SORNA is required to register (the retroactivity regulation, 28 CFR 72.3, still governs and, generally, a jurisdiction’s registration scheme(s) will govern)
- Whether an offender convicted prior to SORNA is required to update their registration when they move state-to-state (the retroactivity regulation, 28 CFR 72.3, still governs and, generally, a jurisdiction’s registration scheme(s) will govern)
- Whether a jurisdiction is required to register offenders convicted prior to SORNA’s passage (a jurisdiction’s statutes will govern)
Carr only addressed the specific question of whether an offender convicted prior to SORNA’s passage, who also traveled in interstate commerce before SORNA’s passage, and who failed to register after SORNA’s passage, can be convicted of a violation of 18 USC §2250. The Court hung its proverbial hat on their interpretation of the "traveled" issue, and did not address anything else.
28 CFR 72.3 (the retroactivity regulation) is still in full force and effect, without modification because of the decision in Carr. It applies to sex offenders directly, and generally provides that sex offenders have to register pursuant to SORNA, regardless of when they were convicted.
Our final guidelines (which cite the retroactivity regulation) and proposed supplemental guidelines apply to SORNA registration jurisdictions. They state that a jurisdiction may substantially implement SORNA if that jurisdiction registers persons convicted prior to their implementation of SORNA who fall in to four categories (as opposed to all offenders convicted prior to SORNA’s implementation in a jurisdiction):
- Offenders who are incarcerated;
- Offenders who are on probation or parole;
- Offenders who are presently registering; and
- Offenders who are convicted of a new criminal offense of any kind (the proposed supplemental guidelines would limit this subsection (4) to those offenders convicted of a new felony offense).
For any additional information or clarification, please contact the SMART Office at getsmart@usdoj.gov.
