DEFENDER SERVICES OFFICE
CONSTITUTIONAL AND STATUTORY CHALLENGES
- Pre-Enactment vs. Post-Enactment Travel
In Carr v. United States, 130 S.Ct. 2229 (2010), the Supreme Court held that SORNA does not apply to sex offenders whose interstate travel occurred before SORNA went into effect. Because the Court held that the statute itself cannot be interpreted to cover pre-SORNA travel, the Court did not reach the ex post facto question.
- Retroactivity of Attorney General’s Interim Rule
On January 23, 2012 the Supreme Court issued an opinion in Reynolds v. United States (No. 10-6549), holding that SORNA does not require pre-Act offenders to register before the Attorney General validly specifies that the Act's registration provisions apply to them. Because the Third Circuit below did not address the validity of the Attorney General's Interim Rule of February 28, 2007, in which the Attorney General specified that SORNA's registration requirements apply to pre-Act offenders, the Court remanded the case for further proceedings. On remand, the Third Circuit vacated Reynold's conviction, holding that the Rule was promulgated in violation of the procedural requirements of the Administrative Procedure Act.
- Necessary and Proper Clause
United States v. Kebodeaux, 133 S. Ct. 2496 (2013)
(Congress had power to enact SORNA under Military Regulation Clause and the Necessary and Proper Clause.)
- Potential Challenges to Prosecutions under SORNA
Challenging SORNA: Review of Issues Regarding the Federal Sex Offender Registration and Notification Act
PowerPoint presentation, 2014 National Seminar for Federal Defenders
by Rachelle Barbour, Research and Writing Attorney, E.D. CA; Candace Cain, Assistant Federal Public Defender, W.D. PA; Daniel T. Hansmeier, Assistant Federal Public Defender, C.D. IL; John Rhodes, Assistant Federal Defender, D. MT
The following articles contain useful information on the requirements of SORNA and potential challenges to SORNA prosecutions. Although many of the challenges have been rejected by the United States Courts of Appeals, counsel may wish to raise them for preservation purposes until the Supreme Court addresses them.
- Select Dismissal Motions and Court Orders in SORNA cases
These motions and orders discuss various constitutional challenges that can be raised in SORNA cases. Although many of these arguments have been rejected by the Courts of Appeals, counsel may wish to preserve these issues for Supreme Court review.
- The National Guidelines for Sex Offender Registration and Notification - Final Guidelines
The "SMART" Guidelines are for the purpose of providing "guidance and assistance" to jurisdictions in implementing SORNA, so they can be deemed in compliance by the "SMART" Office by the due date and not lose federal funding. The proposed guidelines were published for comment 5/30/07, see Fed. Reg. 30210-01, 2007 WL 1540140 (May 30, 2007), the comment period closed 8/1/07, and the guidelines were issued in final form on July 1, 2008. For a summary of the differences between the proposed and final guidelines, see: Significant Changes to the SORNA Guidelines.
- The National Guidelines for Sex Offender Registration and Notification - Supplemental Guidelines (2011)
- Tribal Implementation of SORNA:
Additional Outreach and Notification of Tribes about Offenders Who Are Released from Prison Needed (GAO-15-23, November 18, 2014); Survey of Federally Recognized Tribes on Implementation of Act (E-Supplement to GAO-15-23)
- Juvenile Offenders Required to Register Under SORNA: A Fact Sheet