Monday, February 15, 2010

Court Upholds Constitutionality of "SORNA"

In United States v. Shenandoah, No. 09-1205 (Feb. 9, 2010), the Third Circuit confronted one of what it called “hundreds of similar challenges” filed in federal courts to the Sexual Offender Registration and Notification Act (“SORNA”). In one fell swoop, it rejected a broad range of constitutional challenges in the case of a defendant convicted of statutory rape a decade before the law’s enactment in 2006.

Upon being paroled, Paul Shenandoah registered as a sex offender under the law of New York State, where he had been convicted. In August of 2007, he moved to Pennsylvania for employment as an iron worker. He did not register in that state as a sex offender or modify his New York registration to reflect his change of residence and employment. SORNA, as construed by the Court, requires persons in his position to keep their registration current on and after July 27, 2006. The defendant entered a conditional guilty plea reserving the right to appeal the district court’s rejection of his motion to dismiss on various grounds. He was sentenced to 12 months and one day of imprisonment, to be followed by ten years of supervised release.

As a threshold matter, the Third Circuit found it immaterial that neither Pennsylvania nor New York had complied with SORNA’s statutory mandates regarding, for instance, provision of registration information to certain entities. The Court found it sufficient simply that Pennsylvania and New York each operated sex offender registries after SORNA’s effective date. In a related conclusion, the Court held that the defendant could have complied with SORNA by following the two states’ laws, and thus rejected a due process challenge premised on the contention that compliance was impossible.

The Court next rejected an ex post facto challenge grounded on the fact that the defendant’s release from prison and original registration obligation predated SORNA’s enactment. There was no retroactive application of any law inflicting greater punishment for preexisting conduct, the Court concluded. Rather, the defendant committed a new crime by moving from Pennsylvania to New York roughly 13 months after SORNA’s enactment and then failing to keep his registration in the two states current. The Court did not pause to mention a challenge pending before the Supreme Court, Carr v. United States, No. 08-1301 (Carr’s merits brief here; brief of the United States here), concerning the Ex Post Facto Clause’s application to a registered offender whose travel in interstate commerce predated SORNA’s enactment. Oral argument is to be heard in that case next week.

Turning to a challenge under the Due Process Clause, the Court found that the conviction was not infirm for lack of notice. The Court found dispositive the undisputed facts “that Shenandoah knew that he was required to register under New York law” and that New York law “mandated that he update his registration if he traveled or moved out of state and that he register in the new state.” It was immaterial that the notice provided by New York’s registration form did not explain that a failure to register would be a violation of federal as well as state law. In a related holding, the Court concluded that SORNA is not a “specific intent law,” rejecting the argument that the indictment failed to allege a prima facie violation.

Nor was the Court impressed by the argument that Congress exceeded its Commerce Clause powers. Citing three categories of activity that United States v. Lopez, 514 U.S. 549 (1995), identified as within Congress’s authority to regulate, the Court found that SORNA was a valid regulation of “persons in interstate commerce” and of the “use of the channels of interstate commerce.” It reasoned that Shenandoah’s relocation made him “undeniably a ‘person … in interstate commerce.'” As to the regulation of “use,” the Court quoted a 1925 decision of the Supreme Court upholding Congress’s power to “forbid or punish use of interstate commerce ‘as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.’”

The Tenth Amendment did not require reversal, the Court next held, because the defendant, as a private party, had no standing to assert any challenge to federal encroachment on state sovereignty.

The Court concluded its merits analysis by rejecting the defendant’s claim that SORNA infringed upon his constitutional right to travel. The Court reasoned that the defendant “may travel interstate, but when he does, must register in the new state.… [M]oving from one jurisdiction to another entails many registration requirements required by law which may cause some inconvenience, but which do not unduly infringe upon anyone’s right to travel.” The Court also found it “worth noting” that the right to travel “is not an absolute right,” and that the burden imposed by SORNA “is necessary to achieve a compelling interest.… in preventing future sex crimes.”

The Court left open a possibility of a successful challenge on the part of a narrow class of persons “who, for various reasons, did not have a registration requirement prior to the passage of SORNA.” Such persons, it indicated, would have standing to challenge a series of implementing regulations adopted by the Attorney General in 2007 and 2008 to clarify SORNA’s application. As to this defendant, the Court held that the regulations were inapplicable.

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