CARR v. UNITED STATES
An Indiana federal district court convicted Thomas Carr of violating the Sex Offender and Registration and Notification Act. The Act imposes penalties on anyone who is a convicted sex offender, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he proves that "uncontrollable circumstances" prevented him from doing so. On appeal, Carr argued that he did not violate the act because he traveled before the Act was passed. The Seventh Circuit held that the Act does not require that the defendant's travel postdate its enactment, and, consequently, affirmed the district court.
1) Can a person be prosecuted under the Sex Offender and Registration and Notification Act when the defendant's offense and interstate travel both predate the Act's enactment?
2) Does the ex post fact clause preclude prosecution under the Sex Offender and Registration and Notification Act when the defendant's offense and interstate travel both predate the Act's enactment?
Legal provision: Sex Offender Registration and Notification Act (SORNA)
No. Not answered The Supreme Court held that the Sex Offender and Registration and Notification Act does not apply to sex offenders whose interstate travel occurred before the statute's effective date. With Justice Sonia Sotamayor writing for the majority, the Court reasoned that the plain language and legislative history of the statute suggest that it does not apply to conduct that predates its enactment.
Justice Antonin Scalia wrote separately, concurring in part and concurring in the judgment. He disagreed that the majority referred to the legislative history of the statute to reach its conclusion. Justice Samuel A. Alito, joined by Justices Clarence Thomas and Ruth Bader Ginsburg, dissented. He argued that the majority's reasoning is faulty and that its conclusion leads to anomaly – where the statute treats differently similarly situated sex offenders.
ORAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 08-1301, Carr v. United States.
Mr. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court: When Congress uses ordinary words in the statute, those words should get their ordinary meaning.
In SORNA, the Sex Offender Registration and Notification Act, Congress did use ordinary words, and it used them in an ordinary way.
But the government proposes that those words be given a most extraordinary reading.
It suggests that Congress wrote one of the elements of SORNA's criminal offense in a sort of shorthand, and it should be taken to mean something quite different than what Congress actually said.
Justice Samuel Alito: Mr. Rothfeld, I wondered if I could ask you about three interrelated points concerning your textual argument.
And if I could just lay those on the table and get your reaction to them, I would appreciate it.
The first is that it appears that there is a pretty universally accepted modern legislative drafting convention that statutes should be phrased in the present tense.
The Senate drafting manual, for example, says: Always use the present tense unless the provision addresses only the past, the future, or a sequence of events that requires use of a different tense.
And the House manual is to the same effect.
The second is that when the section that's involved here, 2250, was drafted, the drafters didn't know whether SORNA would apply to pre-SORNA sex offense convictions.
That was left up to the Attorney General.
And so when they were drafting this, they had -- it was natural, perhaps, for them not to make a special provision for the possibility that there might be some pre-SORNA conduct involved.
If the Attorney General had determined that only post-SORNA convictions would qualify, then only -- then the only travel that would qualify would be -- would be post-SORNA travel.
It was only when the Attorney General decided that pre-SORNA convictions could qualify that the question that's presented here became a possibility.
And the third is that once the Attorney General decided that SORNA would apply to pre-SORNA sex offense convictions, that necessarily meant that conduct constituting a -- a SORNA -- constituting a qualifying sex offense could occur in the past.
And yet there are at least four provisions of SORNA that refer to the conduct that constitutes a sex offense and uses only the present tense, although in those instances it seems that those provisions have to be read as also covering past conduct, pre-SORNA conduct.
These are all in 42 U.S.C. 16911, which is reproduced -- the relevant provisions are on 3a to 3-6 of the government's brief.
I'll just mention a couple of them to provide a flavor for this.
Under 42 U.S.C. section 16911(3)(C), on 3a of the government's brief, an offense may qualify as a tier II offense if, among other things, it, quote,
"occurs after the offender becomes a tier I sex offender. "
But there "occurs" and "becomes" have to be read as applying to past conduct.
42 U.S.C. 1691(4) on the same page says that an offense may qualify as a tier III offense if, among other things, it involves a kidnapping of a minor.
But "involves" there has to mean also "involved".
And the other two are subsection (7) on 5a and subsection (8) on 6a.
So I wondered if you could comment on that.
Maybe you have a reaction to it.
Mr. Rothfeld: --Well, I'll try to keep straight each of the parts of the question.
A couple of reactions.
First of all, I think that the ordinary assumption is that when the present tense is used in a statute that's creating a criminal offense, it refers to conduct that takes place after the statute was enacted.
We are not aware of and the government has not cited any decision of this Court in which it has interpreted a present tense verb used in a criminal statute as attaching criminal consequences to conduct that took place before the Act -- before the statute was enacted.
But before delving too deeply into the present tense question, I think it's helpful to take a look at how that fits into the other elements of the SORNA criminal offense, because there are a number of things about the statutory language that we think compel the conclusion that Congress had in mind only the attachment of criminal consequences to travel that took place after SORNA was enacted.
For example, and to begin with, the first element of the offense, which provides that the defendant is required to register under SORNA, the government says, and we agree, that the elements of the SORNA offense have to be read sequentially so that the defendant is guilty only if he or she commits them in order.
The first element, as I said, the statutory text, is SORNA.
And it seems undeniable that a defendant is not and cannot possibly be required to register under SORNA until SORNA is enacted and is on the books.
And that is enough to dispose of this case because, as the government agrees, the elements are sequential.
The first element is that there is a requirement to register under SORNA.
The second element, the travel in interstate commerce, has to follow the first element.
The travel, therefore, must follow the enactment of SORNA.
That we think is sufficient to dispose of this case.
The government's answer to that point is to say -- really, to candidly acknowledge that the statutory language has to be rewritten if they're to prevail.
They say when Congress said "is required"--
Justice Ruth Bader Ginsburg: Mr. Rothfeld, would you clarify one thing?
You're not questioning the Attorney General's determination that the underlying sex offense can have occurred pre-SORNA?
Mr. Rothfeld: --We are not questioning that.
Congress specifically authorized in SORNA that the Attorney General had the authority to designate pre-SORNA offenses as triggering the registration requirement.
Chief Justice John G. Roberts: Is that -- that's pretty unusual, isn't it, to have Congress say it's up to the Attorney General whether their laws apply prospectively or retroactively or--
Mr. Rothfeld: It -- it certainly is unusual.
I think it's not for us to comment on whether that was a sensible thing for them to do.
But we don't dispute here that -- that Congress did it and that the Attorney General was authorized to do what he did.
Justice Antonin Scalia: Well, it's not as though he was authorized to make something a crime which wasn't -- which wasn't a crime.
Mr. Rothfeld: --That's absolutely right, Justice Scalia, and I think--
Justice Antonin Scalia: He was authorized to say you have to register.
Mr. Rothfeld: --It's -- it's actually quite helpful to our argument in this case that Congress was aware of how to confer retroactive authority on the Attorney General for some things, which it did, the designation of pre-SORNA sex offenses as triggering the registration requirement.
Justice Samuel Alito: I thought that the sequence argument that the government was making was that the events have to occur in this sequence: the conviction, the interstate travel, and the failure to register.
Mr. Rothfeld: That is their argument.
But the way that they reach that conclusion is to say that the first element of the offense, which is SORNA, was really a shorthand by which Congress meant "committed a sex offense" that Congress--
Justice Samuel Alito: Well, they might be wrong on that.
And I understood that you agreed that the interstate travel has to take effect -- has to occur after the sex offense conviction.
It wouldn't -- you couldn't violate -- you wouldn't violate SORNA if there's interstate travel, then the conviction, and then the failure to register.
Mr. Rothfeld: --We -- we agree, but I think -- we do not agree, obviously, with the government's understanding of the first element of the offense.
It's not that the sex offense took place.
It's that the SORNA registration requirement attached.
Justice Antonin Scalia: You -- you're saying it has to take place not just after the offense, but after the obligation to register.
Mr. Rothfeld: That's absolutely right.
Justice Antonin Scalia: Which is what the statute says.
Mr. Rothfeld: Which is what the statute says.
And, again, the government's only attempt to answer that point is to say that Congress actual meant something different when it wrote the first element of the offense.
Justice Samuel Alito: Well, but they might be wrong that the sequence -- that the way these set out -- are set out in the statute dictates a temporal sequence--
Mr. Rothfeld: They--
Justice Samuel Alito: --that you can argue that the temporal sequence that's necessary -- conviction, travel, failure to register -- follows from the purpose of this provision, which is to catch people who, after having committing a sex offense and being convicted of a sex offense in State A, move to State B.
It would follow from the purpose of the statute, not necessarily from the sequence of subsections in this provision.
Mr. Rothfeld: --Well, we of course don't agree with the government on everything, but we do agree that they are right about the sequence, for a number of reasons.
One is that it follows -- I think it's the most natural reading of the statutory language that one is required to register, travels in commerce, and knowingly fails to register.
It explains why Congress put the interstate travel element second, which is somewhat a peculiar thing to do otherwise.
And if that were not the case, it creates the problem of what we we've been calling the "Lincoln Tunnel baby".
If someone were an infant traveling and went through the Lincoln Tunnel from New York to New Jersey, lived in New Jersey for the rest of his life, committed a sex offense at age 50 -- if sequential fulfillment of the elements was not necessary, that person would be subject to criminal prosecution under SORNA.
Justice Samuel Alito: Well, that makes -- that makes a lot of sense.
But you can get that from the purpose of the statute, rather than from the sequence in which these elements are listed.
Is it -- is it usually the case in a criminal statute that sets out a number of element that they have to be satisfied in some kind of temporal sequence?
I'm not aware of that.
Mr. Rothfeld: --I think sometimes it is and sometimes it isn't.
It's certainly not a universal rule that it has to be.
But, again, the language here makes that a sensible rule.
Justice Antonin Scalia: Well, assuming it does depend on the purpose of the statute, what would the purpose -- it wouldn't cover his transportation as an infant.
What does he have to be, 20 years old?
Mr. Rothfeld: No.
Justice Antonin Scalia: Or 15 years old?
Mr. Rothfeld: --Looking for--
Justice Antonin Scalia: Or is it 20 years before the offense or 25 years before the offense?
I guess we could make it up, couldn't we?
Mr. Rothfeld: --You would have to make it up, but if one were to depart from the text of the statute, which says
"is required to register under SORNA. "
So, necessarily, the travel took place after SORNA was enacted.
And I think the statutory language disposes of the case.
There's no reason to look beyond that to broader purposes.
But if one does look to the purpose of SORNA and what Congress had in mind, the interstate travel requirement and attaching that the travel took place after SORNA was enacted is what Congress wanted to do.
It accomplishes the purpose.
Congress wrote SORNA because it was concerned that there was divergent approach to registrations that were taken by -- by States, that they had inconsistent applications of registration programs.
This was creating loopholes that allowed sex offenders who were unregistered not to register, and the congressional response to that was to create a uniform universal system of registration that it hoped all the States would enact that would facilitate exchange of information between the States and with the Federal Government.
And the purpose of the SORNA criminal provision in that context is that it was designed to discourage people from traveling, unregistered sex offenders from traveling, after SORNA was enacted to evade the new SORNA registration requirements.
For that purpose, travel before SORNA is immaterial.
It's travel after SORNA is enacted that -- that brings into effect the congressional purpose that they were trying to accomplish.
Congress wanted to keep out of the channels of interstate commerce unregistered sex offenders who were trying to evade the SORNA requirements.
That's necessarily prospective.
As to people who were unregistered sex offenders who either had never traveled in interstate commerce at all or who had traveled before SORNA was enacted, they are identically situated for SORNA's purposes.
They are outside the system.
They are not registered.
No one knows where they are.
They are not attempting to evade SORNA at that point.
They are subject to prosecution, not by the Federal Government, but by the States under the new, more punitive regime of criminal punishments that Congress tried to induce the States to enact as part of the States'--
Justice Antonin Scalia: But which the States didn't enact.
Mr. Rothfeld: --And States have generally -- States have not complied with SORNA.
Almost universally, they have not complied with SORNA.
But one thing many States have done is, in fact, enact these new, more punitive criminal provisions for people who have failed to register, as did, for example, Indiana, the State in which Petitioner here was not registered.
Justice Samuel Alito: Well, let's compare two cases.
We have this case, where you have conviction, interstate travel, SORNA takes effect, failure to register.
We change that.
That's case A.
Case B is just like this case except the sequence is different.
You have conviction, SORNA takes effect, interstate travel, failure to register.
Now, why would Congress have treated those two situations differently?
Mr. Rothfeld: I think Congress had in mind -- as I say, it was addressing a particular problem.
It was concerned that people were evading registration requirements because the States had different diverging systems, and it was allowing some people in some States simply not to register, not because necessarily they were evading State registration requirements, because the State didn't require them to register.
States had very different systems as to what offenses triggered registration requirements.
And so the congressional reaction was to say: We want the States to enact these new, much more comprehensive and intrusive and elaborate registration requirements.
And they are so -- so elaborate and intrusive that the States are refusing to do it.
But -- but that was the congressional goal, that the States would enact these -- these regulatory regimes; people would then register under them.
Everybody was now going to have to be registered, or they would be in violation of some State law, State registration requirement.
And if people after that were trying to get off the grid, disappear by moving in interstate commerce, the SORNA criminal provisions would come into effect at that point.
For people who stayed put, people who had committed a sex offense before SORNA was enacted and just stayed there, they are identically situated, as I said, to someone who never traveled in interstate commerce at all, and they are subject to prosecution by the States.
Clearly, Congress did not intend that it was going to federalize the entire regime of prosecuting people.
Justice Stephen G. Breyer: Well, what is the basic purpose of this statute?
I'm having a hard time with it.
Is it -- is the purpose of the statute to try to get a lot of people to register who haven't registered at all?
Or is the purpose of the statute to get the people who had registered in one State and then moved, and make sure they register in another State?
Mr. Rothfeld: I think that the purpose was generally to encourage registration of sex offenders.
Now, of course, when -- when Congress wrote the statute, as -- as has been pointed out, it was not apparent to them that it was going to apply to people who had committed sex offenses before SORNA was enacted at all.
That turned upon the Attorney General's subsequent determination.
Justice Stephen G. Breyer: No, I mean, if they are just trying to get people to register in general, and they are not particularly worried about travel, then they are using this travel as a kind of jurisdictional hook.
And if they are using it as a jurisdictional hook, they'd like to get everybody, as many as possible.
That argues against you.
Mr. Rothfeld: Well, two points--
Justice Stephen G. Breyer: I -- I have a hard time seeing just what they're aiming at.
Mr. Rothfeld: --Well, it -- it's -- to -- to be honest, I think it's not entirely clear that Congress had anything specific in mind beyond a reaction to the prior regime in which there were inconsistent approaches being taken by the States.
Justice Stephen G. Breyer: Basically, at the time they passed this--
Mr. Rothfeld: At the time they--
Justice Stephen G. Breyer: --most States didn't require registration.
Mr. Rothfeld: --All States did require registration of some sort or another, but they had different registration systems and different requirements in their registration systems.
There were -- there were inconsistencies in them.
The one thing which appears from the legislative background of SORNA is that Congress was concerned about loopholes in various State registration regimes, and it wanted to have a much more comprehensive, universal, uniform system of registration.
So to address your point specifically about the jurisdictional hook, I think there are two reactions to that.
One is, even if it were a jurisdictional hook, it is an element of the offense.
No one denies that.
It has to be interpreted as written.
It says interstate travel, as we read it, after SORNA was enacted.
So I think that answers the -- the question.
But -- but it -- but it was, I would add, more than a jurisdictional hook, because Congress had in mind this particular problem of -- of people who, post-SORNA, were going to be evading these new, more comprehensive requirements by simply disappearing.
Not that they were complying with State regimes which -- which didn't require them to register, but they would simply cross State lines to vanish.
Justice Sonia Sotomayor: That begs the question.
They were concerned with people who had disappeared, but why is it logical for them to be worried about people who disappear prospectively as opposed to the people who have already disappeared and have failed to -- that's basically the -- the government's argument, which is: One of the main purposes of the statute is to capture those people who have disappeared.
And so why limit it?
Mr. Rothfeld: Well, that's -- that's right.
The government's argument is -- is an appeal to what it sees as the gestalt of SORNA, rather than the statutory language.
But I -- I -- but I think the answer to your -- your question specifically, Justice Sotomayor, is that they were -- they -- that when Congress passed the statute, it -- it had in mind this division of responsibility in -- in criminal enforcement.
It -- it expected that the States, in order to comply with SORNA, were going to enact these new and much more -- more punitive criminal regimes to punish people who did not register.
And so far as SORNA was concerned, people who never traveled in interstate commerce and people who traveled in interstate commerce before SORNA was enacted are identically situated.
Justice Sonia Sotomayor: The problem is that the people who had traveled previously and failed to register would no longer be subject to any -- either any registration process or presumably any punishment either, because they were no longer in the State in which the conviction occurred, so any change in that statute wouldn't affect them.
Mr. Rothfeld: Well, that -- under the -- the new regime that Congress anticipated would -- would be put in place, every State would enact, would have in place a -- a criminal punishment.
And these were -- these States don't punish people simply who committed a sex offense in that State and failed to register.
They require registration of sex offenders who committed sex offenses anywhere.
Justice Anthony Kennedy: And do -- do they generally require registration even if the offense was committed before the registration act was passed in the State?
Mr. Rothfeld: Yes, they do.
So -- and in that sense mirroring the current interpretation of SORNA by the Attorney General.
Justice Anthony Kennedy: So what you're saying is that, even under your interpretation, there is going to be registration in at least one State?
Mr. Rothfeld: Absolutely.
Justice Stephen G. Breyer: Would you say this at the moment -- you may not know, but I think it would be helpful.
At the time this was passed, would you say almost all States had some kind of registration act?
Mr. Rothfeld: Yes.
Justice Stephen G. Breyer: Yes.
Mr. Rothfeld: All States--
Justice Stephen G. Breyer: Now, thinking of that -- thinking of that set of registration acts in virtually every State, did most of those or none of them or a few of them or how many made it required that a person register who had committed a crime, a sex crime, in a different State and had moved to that State?
Most, all of them, none of them?
Mr. Rothfeld: --I -- I believe that universally--
Justice Stephen G. Breyer: Universally.
Mr. Rothfeld: --they did not distinguish based on the location of where the sex offense took place.
Justice Stephen G. Breyer: All right.
So -- so, therefore, every person who has committed a sex offense, or almost everyone, would have been subject to a requirement to move when he committed the offense and would have been subject to a requirement to register when he moved under some law.
Now, Congress's purpose then must have been just to try to get uniformity here.
Mr. Rothfeld: --Well, the -- the various registration -- State registration laws that existed pre-SORNA, that -- all the States had registration requirements, but -- but they differed in a number of respects.
Which sex offenses would trigger the registration requirement, for example.
So -- so, there were people who -- who may well have been sex offenders in -- in the broadest sense under -- under the SORNA, a very broad definition, but who were not required to register in the State in which they -- they lived because that State's law did not have -- list their offense as a triggering--
Justice Antonin Scalia: And would that be the case after SORNA, that some States would have less extensive coverage than others?
Mr. Rothfeld: --It is possible after SORNA that -- that States will enact criminal regimes that don't -- that don't mirror the SORNA -- the SORNA definition, but--
Justice Antonin Scalia: Well, unless that could be the case, then I don't see what is achieved by -- why you worry about somebody moving to another State in order to evade the registration.
Mr. Rothfeld: --Well, SORNA--
Justice Antonin Scalia: I mean, if the new State requires you to register just as much as the old one, what are you worried about?
Mr. Rothfeld: --Well, under the SORNA regime if the States all implemented SORNA as Congress anticipated that they would, if they all enacted these statutes, I think that there wouldn't be -- the only concern would be that people would simply fail to register, they would then disappear--
Justice Antonin Scalia: Fail to register entirely?
Mr. Rothfeld: --altogether.
And I think that is what SORNA is directed at.
SORNA is directed at people -- they are now all subject to registration requirements.
SORNA is directed at the concern that people simply won't register.
And -- and it's designed after SORNA goes into effect, and there are these new requirements on the books.
Justice Samuel Alito: Isn't the concern that the State of conviction knows that an individual who has been convicted of a sex offense has been released from custody and, if that person is a resident of the State, presumably knows that the person is likely to still be in the State, but if the person moves to another State, the State to which the person moves doesn't know that a sex offender has moved into the State, and that's the reason for the Federal law that imposes a penalty for failing to register in the new State after having traveled across interstate lines?
Mr. Rothfeld: --That's -- that's -- that's quite right.
And SORNA addresses these problems by saying, first of all, the States all have to -- have to pool their information and exchange them.
Secondly, when the -- when the sex offender moves from one State to another, he or she is required to register in the new State, has to notify both -- both the State and Federal authorities.
So it is designed -- SORNA itself is designed to be a comprehensive response to this problem, encouraging State cooperation.
And that is why if we are looking at the policy and -- and just not paying attention to the language for the moment, the focus was on post-SORNA activity, because Congress has put in place this new regime which is supposed to address the problem of missing sex offenders.
People who are taking steps after SORNA goes into effect, you know, offenders, to evade their registration requirements are now subject to these new, more comprehensive Federal penalties as well as State penalties.
Justice Sonia Sotomayor: I -- I think that I remain a little bit confused by the question one of my colleagues answered, and I'm not sure if this last answer by you is helping me understand it, which is if SORNA now -- if every State is supposed to pass legislation which requires sex offenders who have been convicted elsewhere and moved to their State to register, why do you -- I think that's what you -- that you answered affirmatively for Justice Kennedy, correct?
SORNA requires every State to pass laws that obligate people who have been convicted in other States to register, correct?
Mr. Rothfeld: That -- that's right.
Justice Sonia Sotomayor: All right.
So why do you need SORNA?
Why can't those States that the individual has moved to simply prosecute the person for a failure to register?
Why do you need SORNA?
Mr. Rothfeld: Those States could do that.
And I -- as to why we need SORNA, why Congress thought that SORNA was a good idea, I -- I think there are a couple of reasons.
One is that there are Federal offenders and Congress, I think, believed that it was a special Federal responsibility to -- to make sure that Federal sex offenders were registered.
And in addition, Congress regarded the problem of -- of unregistered sex offenders as a Federal problem, and it was one that, after SORNA was enacted and this new systematic regime was put in place, was more appropriate for Federal prosecution.
But I think--
Justice Antonin Scalia: Perhaps Congress--
Justice Ruth Bader Ginsburg: Do you think part of it is there was a -- SORNA requires a lot more information than was required under the State statutes?
Mr. Rothfeld: --Yes.
SORNA is much more expansive both in -- in the type of information that's required and in the mechanism, in requiring in-person registration by--
Justice Antonin Scalia: --It's conceivable also that Congress was -- was not confident that the States would be as active in prosecuting violations as the Federal Government would be.
Mr. Rothfeld: --That -- that is -- that's possible, too, and again that is a prospective focus.
And, of course, I -- my final point is that discussion of the purpose I think illuminates this to some extent, but the language itself is absolutely clear.
There is no reason to go beyond the plain text of the statute.
And if I can reserve the remainder of my time.
Chief Justice John G. Roberts: --Thank you, counsel.
Mr. Rothfeld: Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Mr. Gannon.
ORAL ARGUMENT OF CURTIS E. GANNON ON BEHALF OF THE RESPONDENT
Mr. Gannon: Mr. Chief Justice, and may it please the Court: Petitioner's offense under 18 U.S.C. 2250(a) occurred when he failed to register as required by SORNA well after SORNA was enacted.
As Justice Ginsburg elucidated, he does not dispute that the first paragraph of SORNA can be triggered by a pre-SORNA conviction, and adopting his construction of paragraph (2)(B) would create a serious structural anomaly between the Federal offenders, with whom there is no requirement that they engage in any post-SORNA conduct other than the failure to register, and the State sex offenders, who are the majority of the missing sex offenders that Congress intended to capture by enacting the new registration regime and ensuring that there would be a serious Federal penalty that would encourage offenders who had used interstate travel to evade their registration requirements to get back on the registration rolls.
Chief Justice John G. Roberts: Mr. -- Mr. Carr, was in violation of the law the instant it was passed, right?
Mr. Gannon: We don't think he was in violation of the law the instant it was passed for purposes of the Ex Post Facto Clause; under cases like Tranbarger and Samuels, we think that he did have a reasonable period of time to comply with the new obligation.
This is a problem that would occur with all sorts of Federal criminal statutes based on a status that somebody was in at the time something was made criminal.
In the -- in the case prohibiting possession of handguns by persons who had been convicted of misdemeanor crimes of domestic violence, that this Court upheld that statute last year, when that statute came into effect, if somebody had the relevant conviction on the books and possessed a handgun, they would have been guilty at the instant the statute came into effect, but they would have been allowed a reasonable period to come into compliance.
That's the reasoning that the Court used in Tranbarger and in Samuels; somebody who acquired alcohol legally before a statutory prohibition provision came into effect would be given a reasonable period of time to divest himself of possession.
Chief Justice John G. Roberts: What's -- an obvious question.
What's the government's view on what a reasonable time is?
Mr. Gannon: Well, it's going to depend upon the facts of the individual case, as the Tranbarger Court recognized.
In -- in the context of this statute, where somebody is typically allowed only 3 business days to update their registration, we think it would be a fairly short period.
It's something that -- that -- that may depend on all sorts of circumstances.
If Petitioner -- or if a defendant, a sex offender, was in the hospital for a long period of time and unable to make it to the registry, that would provide him with an -- an affirmative defense under the text of 2250(b).
And -- and so -- but we do think that this is a--
Chief Justice John G. Roberts: So -- but the reasonable time question doesn't come up in your -- in your hypothetical.
Mr. Gannon: --In -- in--
Chief Justice John G. Roberts: First because he's in the hospital and he has got a defense there, so--
Mr. Gannon: --Well, that -- that's right, and -- but I -- but we do think that it is a background principle in -- in all of these cases that if somebody is literally unable to avoid the criminal consequences of their pre-enactment conduct, that that would raise the concerns that the Ex Post Facto Clause is intended to solve.
And in cases like--
Chief Justice John G. Roberts: --But no -- but as far as a reasonable time goes, nobody's literally incapable of doing it the same day the law passed.
Mr. Gannon: --Well, I--
Chief Justice John G. Roberts: Unless they meet one of the other exceptions.
Mr. Gannon: --Well, this -- I mean, this is -- that's -- we -- we think that somebody does need a reasonable time to come into compliance.
It doesn't need to be a long time.
But this is an issue that -- that exists in the statute completely separate from the travel requirement here.
The Federal offenders who are -- who are covered by paragraph (2)(A) -- there's no requirement, there's no actus reus for them under 2250, other than the fact that they have a previous conviction, which can be pre-SORNA.
Justice Antonin Scalia: Where -- where -- where?
Which is where?
Mr. Gannon: This is in 2250(a)(2)(A).
It's on page 1a of the government's appendix.
And so paragraph (2) is divided between (A) and (B)--
Justice Antonin Scalia: I see.
Mr. Gannon: --(A) applies to sex offenders who -- who are sex offenders by virtue of a conviction under Federal or tribal law.
Justice Antonin Scalia: --And they don't have to travel in interstate commerce.
Mr. Gannon: --They don't have to travel in interstate commerce because of the (A) and (B).
The only thing they have to do--
Justice Antonin Scalia: Right.
Mr. Gannon: --is then knowingly fail to register or update a registration as required by SORNA in paragraph (3).
And so the reasonable grace period question for purposes of the Ex Post Facto Clause here is not something that the Court can -- can sidestep by deciding that interstate travel needs to occur after the statute was enacted.
And, indeed, if somebody were traveling on the day the statute was enacted, there would still be a question about whether they had a reasonable time to comply.
Justice Samuel Alito: Do you happen to know what Indiana law provided at the time?
Within what period of time after moving to Indiana was the Respondent required to -- rather, the Petitioner required to register?
Mr. Gannon: It -- it was a few days at the time.
He was also required under Alabama law -- when he registered and signed a sex offender registration form in Alabama in 2004, it said that he was required to notify the law enforcement authorities in the jurisdiction of his new residence within 10 days of his arrival there.
And the Indiana law was -- was I believe a period of 7 or 10 days at -- at the time.
Justice Samuel Alito: Well, should the reasonable time -- should the period under SORNA, which isn't specified by statute, be the same as the period under the law of the State into which the person moves?
Mr. Gannon: Well, the -- the period is specified under -- under SORNA with -- when, once the--
Justice Samuel Alito: Right.
Mr. Gannon: --regime comes into effect.
Justice Samuel Alito: Right.
Mr. Gannon: And it does require in -- in 16913(c), that somebody update the registration after a change in residence within 3 business days of -- of coming to the new residence.
And so we -- we do think that that would be relevant in evaluating what would be a reasonable time period to come into compliance here.
This is the sort of thing that -- that after the statute already comes into effect, that it would -- it would require somebody to comply within 3 days.
If they moved a year later, then -- then that should be a reasonable time period to--
Justice Ruth Bader Ginsburg: Can you clarify--
Justice Antonin Scalia: How long ago--
Justice Ruth Bader Ginsburg: --Can you clarify what you mean by "the statute comes into effect"?
Because if I understand correctly, there's only one State and one Indian tribe that are in compliance.
Mr. Gannon: --Well, that's -- that's partly true, Justice Ginsburg.
Since -- since the press release that's cited in the briefs, another Indian tribe has come into substantial compliance.
But what's important here is that that's just a question of whether the State is in substantial compliance with SORNA's requirements for purposes of receiving Federal funding under -- under the Byrne program.
And here even if a State has not come into substantial compliance -- and Indiana has not yet been certified as having come into substantial compliance -- it still had a functioning sex offender registry that would take most of the information that SORNA required Petitioner to provide, things like his name, his physical characteristics--
Justice Ruth Bader Ginsburg: But that would be what their--
Mr. Gannon: --his -- his address--
Justice Ruth Bader Ginsburg: --what their old law was.
It wouldn't be -- you have -- SORNA is in effect, but what the State is implementing is the pre-SORNA State law, right?
Mr. Gannon: --It's true that, especially before SORNA was enacted, that that's all the State was doing, if the State has amended its law since then, and Indiana did update its law in 2006.
But to the extent -- so the State may well accept Congress's invitation to restructure its registration system to match what SORNA requires, but even when a State has not yet done that, there's no doubt that someone like Petitioner can go in and register.
He was supposed to be registered, and, indeed, after he was arrested in a -- in an incident in 2007, he did register under Indiana law, and he provided the information that Indiana was willing to take.
Chief Justice John G. Roberts: What -- what do you do with Mr. Rothfeld's hypothetical about someone who travels in interstate commerce as a young child and, 20 years later, is covered by SORNA?
Mr. Gannon: --Well, we think that that's not covered under the sequencing argument that we've made, which -- which partakes of the purpose of the statute that Justice Alito was talking about and -- and the order in which the relevant acts occur.
As long as somebody is already a convicted sex offender of the kind that SORNA requires to register, and they are within the time period within which SORNA would require them to register -- and Petitioner here is a tier II sex offender, so he would be required to register for 15 years after his 2004 sex offense conviction.
As long as he is within that period when he engages in the travel, then we think that it's within the heartland of what Congress was concerned about, which is a sex offender who is engaging in interstate travel--
Chief Justice John G. Roberts: I'm sorry.
I'm not -- I'm missing your answer to my question.
The answer to the child traveling and then 20 years later is--
Mr. Gannon: --Is--
Chief Justice John G. Roberts: --is because it's -- you have to require under SORNA before the travel?
Mr. Gannon: --It's -- no, it's -- you have to have been convicted of a sex offense, because that -- that's what brings you within the category of persons--
Justice Antonin Scalia: --I don't know where you get that from.
I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register.
That's the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that -- that would later justify registration.
It seems to me you are just making up the -- the prior act that -- that triggers the interstate travel requirement.
Mr. Gannon: --Well, I don't think that we are making it up, Justice Scalia.
Justice Antonin Scalia: Well, what text do you base it on?
(1) says "is required to register", and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce.
And you say: No, it's after you commit the offense that you must travel in interstate.
Where do you get that from?
Mr. Gannon: Well, we get that from the facts -- from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders.
The fact that the purpose of the statute is to recapture missing sex offenders, which are persons who engaged in interstate travel to elude the registration requirements that already apply to them as sex offenders.
And so we think that when Congress invoked the -- its powers to regulate travel and interstate commerce, in order to give that element meaning, we think that it makes sense to apply it to persons who already have the type of sex offense convictions that SORNA requires them to register for.
Chief Justice John G. Roberts: So your answer to Justice Scalia is that you don't get it from the language?
You get it from the anomaly; you get it from the purpose.
Mr. Gannon: We get it from the context.
And we know that the plain language of the statute can't completely control this inquiry, because the Congress changed the language that existed earlier in the drafting process of the--
Justice Stephen G. Breyer: Well, what about going back to the purpose?
There's a section on page 26 of the House report where they go in some length to saying that the purpose is this is going to help with 100,000 missing people.
Don't worry; if you can't remember, it doesn't matter.
What they say is there are 100,000 missing.
What they do is they travel, let's say, from Alabama to California and they don't register.
Now, this statute is going to help with that.
Well, how does it help with that?
They are already supposed to register in California.
And I thought, well, maybe the way it helps with that is that it imposes some new information requirements, so that Alabama, if it were complying, would now have a lot of information about the sex offender, and it would have an obligation -- it could more easily track him down, or at least California could or somebody could more easily track him down, because he has to give information to Alabama, and Alabama has a registry up.
Is there something like that in this?
Mr. Gannon: --Well, there is something like that, but that's not all that's going on.
On page 26 of the House report--
Justice Stephen G. Breyer: Yes.
Mr. Gannon: --that you're talking about, Justice Breyer, it specifically says that sex offenders who fail to comply will face felony criminal prosecution.
And this -- this was a way--
Justice Stephen G. Breyer: Yes, but that's -- that's true of everybody whether they have moved or not moved.
Mr. Gannon: --Well, it's--
Justice Stephen G. Breyer: That is, what I'm -- the reason I brought up the other is because if this is just a jurisdictional hook, I can see why Congress might be trying to get as many people as they want to register.
But this -- this also serves some purpose, like we're going to make Alabama get some information, makes it easier to catch these people, that purpose wouldn't be served when the travel takes place before this takes effect because Alabama wouldn't have kept the information then.
Mr. Gannon: --Well, I think that Congress did pass the statute for -- for multiple reasons in -- in order to encourage there to be a more effective, comprehensive nationwide registration scheme.
And one of the things that that required was -- anticipated, was standardization among the States.
But it was also -- these -- Mr. Carr was required to register both by the law of Alabama and by the law of Indiana at the time when he committed his sex offense and when he moved from one State to the other.
Congress considered that type of regime as being inadequate.
Congress obviously thought that the State violations that were occurring with 100,000 sex offenders who had eluded registration, gone underground, was a problem they wanted to solve.
Justice Stephen G. Breyer: Okay.
So Congress passes this statute.
And how does it help specifically with that?
Mr. Gannon: Well, it -- it first of all imposes a Federal registration requirement.
Justice Stephen G. Breyer: Okay.
So the person who hasn't registered in California--
Mr. Gannon: --in 16913--
Justice Stephen G. Breyer: --He's afraid of the Feds.
He didn't -- he wasn't afraid of the California police, but he's afraid of the Feds.
I've got it.
I've got that.
Any other thing?
Mr. Gannon: --It's -- it's not just that he's afraid of the Feds when they can come with prosecutorial powers under section 2250.
It is also, as you say, that there are several aspects of SORNA that will encourage there to be much more cooperation among jurisdictions in standardizing this information, notifying different jurisdictions when somebody moves from one to another--
Justice Stephen G. Breyer: Okay.
As far as I can read that page, it seemed to me, insofar as what you've just said is true, that would happen only after this statute is passed.
And, therefore, the fact that he had moved before the statute is passed would not trigger the cooperation.
It might trigger the Fed prosecution part, but it wouldn't trigger the cooperation part.
Mr. Gannon: --Well, that -- that's true, but we already know that this is true without regard to post-SORNA travel for persons who have Federal sex offense convictions.
Justice Stephen G. Breyer: The only reason I bring it up is if this is a very close case.
That tends to cut somewhat against you; namely, that the thing applies full-force in terms of its purposes to people who travel after, but it only applies as sort of this weak thing to people who travel before.
Mr. Gannon: Well, I think, to the extent that the committee report identified 100,000 missing sex offenders as the most significant enforcement problem in the sex offender context, 10 years after every single State and the Federal government had passed a panoply of sex offender registration requirements, shows that they were concerned about persons who had fallen off the sex offender registry rolls.
And that this provision, if it is -- if it is read to treat Federal and State sex offenders more consistently, which is to require them both -- to subject them both to potential Federal prosecution if they knowingly fail to register after SORNA comes into effect--
Justice Antonin Scalia: No, but -- but it doesn't, because if you haven't been -- if you are convicted of a Federal offense, you are automatically in, but if you are convicted of a State offense, you're in only if you travel in interstate commerce after that offense.
So you don't resolve the inconsistency between (A) and (B).
There is still going to be some inconsistency between the two.
Mr. Gannon: --There is going to be some inconsistency--
Justice Antonin Scalia: Exactly.
Mr. Gannon: --but we think that it's dramatically lessened, and it's important in this context to--
Justice Antonin Scalia: That -- that's a much less powerful point.
There is inconsistency between (A) and (B), no matter what you do.
Mr. Gannon: --There is, but the vast majority of the 100,000 sex offenders that were missing were people who would have been convicted under State sex offenses.
And most of the -- most of the 705,000 registered sex offenders in the country right now have been convicted under -- under State provisions, rather than Federal--
Justice Stephen G. Breyer: Have you been able to find -- when in doubt about the purpose, let's turn to the language.
Is it the case that you found any other statute, any other statute, where Congress phrased a jurisdictional hook in the present tense?
Mr. Gannon: --I think that lots of jurisdictional hooks referring to travel and interstate commerce are phrased in present tense.
There are -- there are a handful that -- that are -- are specifically tailored and have extra language, like the one we cite dealing with gambling devices that have been transported in interstate commerce after the effective date of that particular statute.
But, for the most part, I think that they are phrased in present tense and--
Justice Stephen G. Breyer: Do you find anywhere where they're both phrased in present tense and it was pretty clear that Congress intended to catch activity that was -- at least where the jurisdictional part took place before the statute took effect?
You find that good an analogy anywhere?
Mr. Gannon: --I -- I'm not aware of -- of a provision that's -- that's phrased like that--
Chief Justice John G. Roberts: I tried to--
Mr. Gannon: --where that -- where those are the only things that are at issue.
Chief Justice John G. Roberts: --I tried to find one and -- and couldn't.
I mean, looking up travels in -- in the Code, and in each of those cases that I found it's always -- it looks like it's -- it's linked directly to the activity that's meant to be covered, you know, traveling for the purpose of the -- the activity that's against the law.
Mr. Gannon: That's -- that's true.
In most instances in which Congress has an interstate travel element, that's true.
In some -- in some cases like the -- the statute at issue in the Trupin case about possession of -- of stolen goods that have traveled in interstate commerce, that -- that's -- that's -- that's an invocation of--
Justice Antonin Scalia: Yes, where -- where it means prior travel, it says so, use of a firearm that has traveled in interstate commerce.
They use the past tense when they mean it.
Mr. Gannon: --In those cases in context, I think it was easiest to say that when it has traveled vis-à-vis the act that was in question there.
And -- and here -- neither side is contending that -- that the travel can happen after the failure to register and somebody immediately then becomes guilty of the offense.
We think that the sequencing requirement makes sense on both ends, that somebody needs to have the sex offense conviction before they travel, and then they need to fail to register after they have -- they have engaged in the travel, because that's the concern that Congress was trying to get at, persons who were able to use the fact of interstate travel to evade registration.
And the reason, Mr. Chief Justice, why I think that Congress didn't include a purpose requirement there is because Congress didn't want sex offenders to be able to take advantage of the fact that they had another good reason to travel.
If my employer transfers me from one State to another, and then I take advantage of that situation to go underground and not re-register, that's one of the 100,000 missing sex offenders that Congress was concerned about, even though I would have had a good defense to the charge that I had traveled with the purpose or for the purpose of evading sex offender registration requirements.
Justice Sotomayor, I think you were asking a question about -- about why the -- what the purpose would be served here if States would already have the underlying offense that would be made criminal by SORNA.
I think that there are a couple different answers to that.
Mr. Rothfeld acknowledged that Congress may well have intended there to be extra force that would come from the -- from the Federal prosecution itself.
But separately I think it's important to note that -- that States were given time to comply with SORNA, to come into substantial compliance with SORNA.
And -- and even though no State at this point has said that they don't intend to come into compliance with SORNA, Congress couldn't necessarily have expected States to adopt the particular offense that they -- that they were concerned about.
And I think that -- that -- that here Congress did want to -- to cover that situation.
One other factual point that's associated with the -- the effectiveness there that was brought up in the briefs and hasn't come up today is the question of -- of when the prior Wetterling Act offenses were repealed.
And I -- I -- in section 129 of SORNA, the Wetterling Act offense was repealed effective 3 years after the date of SORNA's effective date, even without regard to the 1-year extensions issued by the Attorney General, notwithstanding a point in the Petitioner's reply brief, simply because section 129 doesn't incorporate 124(B), which has the extension provision for the Attorney General.
Justice Sonia Sotomayor: --understand some of the delay Congress may have in passing a law with specifics about how things are done.
Are you worried at all under Lambert whether or not there might be a due process violation in all the indeterminate provisions of this law?
Where do you -- yes, you're supposed to register, but States don't have a place for you to register, and now you are supposed to know that you are supposed to register under the old systems, and you don't know how much time to do it in.
Mr. Gannon: Well, I -- I think here that there -- the question of notice and knowledge has not been an issue because it's--
Justice Sonia Sotomayor: I -- I--
Mr. Gannon: --And I think that's -- this -- one of the things you said is the States may not have a place to register.
And that's -- that's just not true.
Since -- since before 1996, every State has had a sex offender registry.
Justice Sonia Sotomayor: --Absolutely--
Mr. Gannon: And -- and--
Justice Sonia Sotomayor: --but they don't have a SORNA place to register.
Mr. Gannon: --Well, it's the same place.
What SORNA requires is that you provide the following types of information to the relevant officials that run the sex offender registry for the jurisdiction.
And "jurisdiction" is defined to include the State.
And, so, in -- in -- in these cases, even if the State hasn't changed the name on the door to SORNA registration facility -- it's just sex offender registration facility under, you know, Zachary's Law, which is the name of the Indiana sex offender registration law, as opposed to Megan's Law -- there is -- they are still required by SORNA to register, which requires them to give information to the relevant officials in the relevant jurisdiction.
And the jurisdiction is there; the officials are there.
They are taking the information.
As long as the officials will take the information, the failure to do that is a violation of 2250.
And there's one -- one other point that Petitioner was making in the reply brief was that there seemed to be some confusion about -- about whether there was an offense under SORNA when States had not yet come into compliance or whether that would have been an offense only under the pre-SORNA Wetterling Act.
And -- and the reason that there isn't a SORNA violation there, if -- if a State has not yet decided to accept things like digital palm prints or whatever the extra information is that SORNA would require, the -- the defendant is still required to provide that, what information the State will accept.
And the affirmative defense in 2250(b) would only be applicable in circumstances where the State wouldn't take that extra information.
So it's only those aspects of SORNA that are above and beyond what the State will allow the offender to do, that he's excused from complying with by the affirmative defense, that it's uncontrollable circumstances that he -- that he can't provide a DNA sample or a palm print in a particular State that doesn't do that yet.
But as long as the State is taking the rest of the information, he needs to give that.
And this is a case where Petitioner utterly failed to give any of the information to Indiana once he arrived there at the end of 2004 or beginning of 2005.
So, there's -- there's no dispute that the State would have taken that information had he been in compliance with that law.
Once SORNA later came into effect, he probably wouldn't have been in violation of SORNA at that point.
But -- but that -- there's nothing unusual about the fact that he could have engaged in pre-enactment conduct that would have prevented him from being in violation, just as the person convicted of a misdemeanor possession -- misdemeanor crime of domestic violence, if he doesn't possess a gun before the -- the new provision in 922 comes into effect, then he hasn't committed the offense.
If somebody doesn't acquire the alcohol before the statutory prohibition comes into effect that was at issue in Samuels before that law came into effect, then he hadn't committed the offense.
So, there's nothing unusual about saying that he could have complied with SORNA effectively in anticipation of its being enacted, even though it didn't yet exist.
The -- the -- the question here is whether he knowingly failed to register as required by SORNA after it came into effect.
And -- and we think that -- that -- that he did, because he had already engaged in the interstate travel after he had been convicted of a sex offense.
If there are no further questions, we would urge the Court to affirm the Seventh Circuit--
Justice Stephen G. Breyer: One last one.
It should help with a minor point.
But -- but I take it, under the statute, you have to register if you are a sex offender.
And that's true whether you've moved or not moved?
Mr. Gannon: --That's -- that's true under Section 42 U.S.C. 16913.
Justice Stephen G. Breyer: Yes.
Mr. Gannon: That's true.
The registration requirement applies without regard--
Justice Stephen G. Breyer: But it's a crime -- it's a crime under the section we're talking about only if you are both the person who had to register and you didn't and you moved?
Mr. Gannon: --If you fall within (2)(B)--
Justice Stephen G. Breyer: Yes.
Mr. Gannon: --the person who -- who has to--
Justice Stephen G. Breyer: Everybody in the State has to register if they meet that definition?
Mr. Gannon: --In order to -- to meet the--
Justice Stephen G. Breyer: Moved or not?
Mr. Gannon: --To meet the registration requirement of 16913, that's true.
Justice Stephen G. Breyer: Okay.
Mr. Gannon: And -- and -- and, obviously, that -- that makes sense in terms of implementing the scheme, that if somebody registers beforehand, it makes it much easier to catch them once they move afterwards.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Rothfeld, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE PETITIONER
Justice Antonin Scalia: Mr. Rothfeld, I hate to eat up any of your rebuttal time, but this is sort of by way of unfinished business.
Justice Alito asked three questions at the beginning of this interesting exercise.
I think you only answered the first.
I don't even remember the third anymore.
But I was interested in the second, which mentioned other provisions in this -- in this very statute that -- that use the present tense.
Mr. Rothfeld: The -- those all appear in the civil registration provision, not in the criminal provision.
And my answer to Justice Alito's question is that we are not aware of any case in which the Congress has used a present-tense verb in a criminal statute to attach criminal consequences to conduct that took place before the statute was enacted.
Justice Samuel Alito: But all of those provisions refer now -- as a result of the Attorney General's determination that pre-SORNA convictions qualify, all of those provisions use the present tense to refer to activities that can have taken place in the past.
Mr. Rothfeld: --But at the time that Congress--
Justice Samuel Alito: This very -- this very statute.
Isn't that correct?
Mr. Rothfeld: --That is correct.
At the time that Congress wrote those civil provisions, this statute, on its face, applied prospectively only.
The Attorney General had not yet retroactively applied it.
Congress specifically gave the Attorney General the authority to apply it retroactively in defining which offenders had to register.
It did not give him any authority to retroactively change the scope of the--
Justice Samuel Alito: No, but your main argument is that "travels" is in the present tense, and that means present and future.
But there are provisions of this very statute that use the present tense to refer to past conduct.
So why doesn't that knock the legs out from under your textual argument?
Mr. Rothfeld: --Well, the -- that's -- I'm not sure that I would say that's our principal argument.
That's one of our arguments, and the argument which I think is dispositive.
Given the way that the Attorney General -- the Solicitor General has presented the case relates to the first element of the offense, which is that the action -- the offender is required to register under SORNA, which, as we have said, has to take place after SORNA is enacted.
I think Mr. Gannon candidly acknowledged that basically, that has to be read to mean something different.
It has to be read to mean "is a sex offender", and that is simply not a plausible reading of the statute.
Not only because of the plain words "is required to register", but the provision of the offense which addresses Federal sex offenders sets out three elements as to them.
As to a Federal sex offender, it must be someone who is required to register.
Justice Samuel Alito: Well, Mr. Gannon may have made an argument that's not helpful to his position, but you can accept that the first provision means exactly what it says: "is required to register".
And that takes effect on day when SORNA is enacted.
There's nothing in the statute that says that those three events have to take place in -- in a temporal sequence.
It doesn't say
"is required to register and thereafter travels in interstate commerce. "
It doesn't say that.
In fact, an earlier version did say that, and it was taken out, wasn't it?
Mr. Rothfeld: An earlier version said "travels thereafter".
I -- that was dropped, I would suggest, as superfluous, because the present-tense language encompasses that.
But it -- it would not make sense to say -- if one disregards the temporal sequence, that brings back the Lincoln Tunnel baby.
It would mean that someone could have traveled as an infant, and that satisfies the SORNA travel requirements.
Justice Samuel Alito: It doesn't if that results from the aim of the statute, rather than the order in which those elements are set out in the statute.
Mr. Rothfeld: But I'd suggest, Justice Alito, that requires an extensive rewriting of the language of the statute.
Justice Stephen G. Breyer: It doesn't.
He said, first the crime has to take place, before the travel.
Mr. Rothfeld: And one has to -- one would have to--
Justice Stephen G. Breyer: And, moreover, there's a statutory limitation, because after a certain period of years, you don't have to register anymore.
So the hypotheticals about the infant and 20 years ago are out, because the longest it could last is 15 years.
Mr. Rothfeld: --But one has to--
Justice Stephen G. Breyer: And then you wouldn't have committed the crime as an infant, so there we are.
But it's still a long time, 15 years, I grant you.
Mr. Rothfeld: --Well, and even so, one has to read into that limitation as to where -- why it is that there is that limit on -- on the--
Justice Antonin Scalia: You have to change the language "is required to register" to "has committed a"--
Mr. Rothfeld: --"Has committed a sex offense".
Chief Justice John G. Roberts: No, you don't have to -- you don't have to do that.
I guess my problem with your argument -- you say,
"is required to register under SORNA. "
But you can be required to register under SORNA before SORNA is enacted to the extent that SORNA is retroactive.
You ask someone: Why are you registering?
Well, SORNA tells me I -- I have to.
Mr. Rothfeld: Well, I'd suggest that that's a peculiar reading of the term "is required to register", that, as written, it seems to me as a present -- tense requirement.
You are now currently required to comply with the terms of the statute.
It does not say: You are required -- you are a sex offender within -- as subsequently defined by SORNA.
As Congress did expressly say in the Federal offender provision in section (2)(A).
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Rothfeld: Thank you, Your Honor.
Chief Justice John G. Roberts: The case is submitted.
Chief Justice Mr. Chief Justice Robert Jr.: Justice Sotomayor has our opinion this morning in case 08-1301, Carr versus United States.
Justice Sonia Sotomayor: The Sex Offender Registration and Notification Act or SORNA establishes a federal criminal offense covering any person who one; is required to register under SORNA, Two; travels in interstate or foreign commerce and three; knowingly fails to register or update a registration.
This provision is codified at 18 USC section 2250.
We grant the certiorari to consider whether Section 2250 applies to sex offenders, who traveled before SORNA’s effective date, and if so whether the statute violates the Constitution's prohibition on ex-post facto laws.
We hold that liability under section 2250 cannot be predicated on pre-enactment travel and thus have no occasion to address the constitutional question.
Our decision follows from the text of the statute. Section 2250 sets forth three elements that must be satisfied and served in sequence.
First a person must be”required to register under SORNA”, second; the person must travel in interstate commerce and third; the person must failed to register as required.
The first of these elements are requirements to register under SORNA pre-supposes that SORNA has become the law.
The acts of traveling and failing to register must therefore also occur after SORNA’s enactment.
The statute’s use of the present tense, verb, travels, bolsters our conclusion.
We are not aware of any instance in which we have construed a present tense verb in a criminal statute to prohibit acts that were completed before the statute took effect.
The government contends that limiting section 2250 to post enactment travel is anomalous because it means that the statute will covers state sex offenders, less often than federal sex offenders or liable under section 2250 without proof of travel.
It is entirely reasonable however for Congress to have chosen to treat state and federal sex offenders differently, give, giving, given, the state's primary responsibility for punishing state offenders who failed to register.
The government also asserts that reading section 2250 to apply only to post SORNA travel is at odds with Congress’s goal of locating missing sex offenders.
Section 2250 however is not a stand-alone provision; many other provisions of SORNA advance this broad objective.
Considering the structure of the statute as a whole, we conclude that section 2250 serves a more specific function, is subject to federal prosecution sex offenders who after SORNA’s enactment undermine the statue's effectiveness by traveling across state lines.
Accordingly, we reverse the judgment of the Seventh Circuit.
Justice Scalia has filed an opinion concurring in part and concurring in the judgment.
Justice Alito has filed a dissenting opinion in which Justices Thomas and Ginsburg join.