Dear Readers,

Why does SORNA matter? Over 900,000 people are now on the national sex offender registry for crimes and that list grows every day as both state and federal governments continue to expand their registry laws. As these laws are expanded, many valid questions about whether required registration protects from and prevents sexual abuse and assault abound.

I think back on my first post about SORNA and recall that much of the scholarship about sex offenses indicates that these registry laws do not protect and prevent sexual abuse and assault because they are not designed to address what we know about who, why, how, and where sexual abuse and sexual assault occurs.

Additionally, the legal and civil rights question remain: Whether SORNA and laws like it serve to primarily alienate, ostracize, and further punish those who were convicted of crimes that require registry.

These questions and their answers impact nearly 1 million people convicted of crimes requiring registration, and that number grows daily. But, we cannot only count the number of people on the list. Millions of family members, survivors, and community members are deeply impacted by these laws, as well.

Nondelegation Doctrine

As I wrote in the a recent newsletter, “Congress cannot delegate its legislative authority to other branches of government, such as administrative agencies, or private organizations.” Congress, and Congress alone, is the legislative body for the U.S. When it does delegate, it must provide an “intelligible principle,” meaning a clear directive as to what powers it is delegating to that agency.

SORNA delegated to the Attorney General (AG) the authority to determine if SORNA applied to people convicted prior to its enactment and, if so, to whom it should apply.1 Additionally, the AG could prescribe the rules for registration for those previously convicted of sex offenses.2 In 2007, and finalized by AG Holder in 2010, the AGs determined that SORNA did apply retroactively and anyone convicted of a sex offense that required registry must register, regardless of when the conviction occurred.3

As you may expect, many people challenged the constitutionality of SORNA and the delegation to the AG. In 2018, Gundy v. U.S. was argued in front of SCOTUS. Mr. Gundy’s attorney argued the following:

SORNA's delegation provision grants unguided power to the nation's top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals . . . It combines criminal law-making and executive power in precisely the way that the Constitution was designed to prohibit.4

She is arguing that giving the AG the power to determine who must register, when, and how is an unconstitutional use of both congressional and executive power.

SCOTUS, however, disagreed. In Reynolds v. United States, 565 U.S. 432 (2012)5 and again in Gundy v. United States, 139 S. Ct. 2116 (2019), SCOTUS held that SORNA does not violate the nondelegation doctrine because the AG does not have “unguided and unchecked authority”6; instead, Congress clearly limited the AG’s role to determining what retroactive registration was feasible as far as implementation.7

In other words, Congress had clearly intended that those with previous sex offense convictions be included under SORNA and all that was left for the AG were the practicalities of implementation. Thus, SORNA and the delegation to the AG are constitutional.

Both opinions were written by two “liberal” leaning justices on the court, Breyer and Kagan, with Sotomayor and Ginsburg joining. In Gundy, it was Gorsuch’s dissent that argued that SORNA included an unconstitutional delegation of power.

Why these nerdy arguments matter is more easily discussed in the next section on ex post facto laws.

Ex post facto laws

For a full discussion on ex post facto laws, check out an earlier post. The relevant issue here is that an ex post facto law “increases the punishment for crimes already committed.”

So, the question is: Is the part of SORNA that includes people who were convicted of sex offenses prior to its enactment an ex post facto law? Does SORNA “increase the punishment for crimes already committed”? What do you think?

As states have enacted and enforced their own SORNA variations, and the national registry has expanded, the ex post facto issues continue to appear in both state and federal courts. The pivotal questions are whether the law is civil or criminal in nature and whether being put on a sex offender registry is punitive or not.

To rephrase:

Is the law requiring the registration of people convicted of certain sex-related offenses intended by the legislature to be civil or criminal in nature?
Does being required by law to put one’s name on a publicly viewable sex offender list for anywhere between 15 years to life constitute punishment?
In particular, for those people who were convicted prior to the enactment of SORNA or the states’ version of such a law: Does the retroactive registry requirement increase the punishment for crimes already committed?

(For frame of reference, SCOTUS has repeatedly held that the deportation of a non-citizen for a prior criminal conviction is civil in nature. Deportation is not considered an increase in punishment for a crime already committed.8 How does that sit with you?)

In Smith v. Doe, 538 U.S. 84 (U.S. 2003), a 6-to-3 SCOTUS decision, the majority, penned by Justice Kennedy, held that Alaska’s sex offender registry law, as applied to those convicted prior to its passage, was not an ex post facto law because it was not punitive in nature. The Alaska law “is an incident of the State’s power to protect the health and safety of its citizens, [and] it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.”9

Further, the majority argued:

The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.10

In other words, the state is allowed to create laws that protect the health and safety of its citizens, including a regulatory scheme that requires something like registration, even if it happens to have the side effect of public humiliation.

Additionally, the majority urged that the person convicted of a crime was already humiliated by his/her conviction, and the registry was simply a part of that process, not a separate and greater punishment. Thus, the Court determined the law to be constitutional and not a violation of the ex post facto prohibition.

In contrast, Justices Stevens and Ginsburg argued:

a publicly viewable registry is a form of the public humiliation and shaming practices deployed historically in the U.S. because the person’s photograph, address, phone number, and other personal information is available for all to see;
being labeled so publicly makes it incredibly difficult for those on the list to get jobs, find housing, and live without fear of citizen retribution;
people are required to register based on the offense for which they were convicted, not based on any kind of medical diagnosis or individual determination of dangerousness; and,
once on the registry, people have no recourse for being removed from the registry if and when they can demonstrate treatment and rehabilitation.11

Therefore, both Stevens and Ginsburg conclude that the law is “ambiguous in intent and punitive in effect,” meaning that it could be perceived as a criminal law and does increase the punishment of people previously convicted of sex offenses. Therefore, that section of SORNA violates the prohibition against ex post facto laws.12

Because these were dissenting views, the majority’s holding that Alaska’s SORNA law is constitutional remains the law of the land.

However, as SORNA laws proliferate and become even more restrictive throughout the states, state courts and some federal district courts are beginning to reconsider the constitutionality of these laws.13 Some reliable sources report that over 900,000 people are now in the national sex offender registry database, with state-by-state registry numbers also skyrocketing.14

Remember, the federal SORNA provides only a baseline that states must meet, states can and often do choose to implement significantly more restrictive and punitive registry and notification laws.

As of March 2019, “[e]ight state supreme courts in recent years have held that the retroactive application of their sex offender registration and notification laws violate their respective state constitutions.”15 In 2020 and 2021, the Michigan Supreme Court and Maine Supreme Court (to name only two) held that retroactive applications of state SORNA laws were, indeed, violations of the state constitutions' prohibition against ex post facto laws.

As with everything else we have covered so far, this body of law is constantly changing as the courts, legislatures, law enforcement agencies, and publics interact, engage, and advocate.

In Conclusion

When we think about Congress’s legislative power, SORNA and laws like it have a profound impact on millions of individuals, families, and communities. For each other and for our communities, it is important that we critically engage with our legislators and criminal laws to ask:

Are we solving the right problem or addressing the right issue?
Is this helping or hurting?
If it’s hurting, who are we hurting?
What people and communities are experiencing the disparate impact of these laws and their enforcement?
Whose needs go unaddressed?
How do I feel about the government and its agents enacting and enforcing this law in my name (meaning that legislators use the winning of an election as a perceive mandate to enact laws on behalf of their constituents: us!)?
Create your own question . . .

If we don’t like the answers we get, then it’s time to change.

The next series of newsletters will be addressing executive power and I will touch on immigration to explain how and why we are where we are.

As ever, please let me know what you think and spread the word!

With gratitude,

Amy

1

The provision states:

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA’s enactment—a group we will call pre-Act offenders.

Gundy v. United States, 139 S. Ct. 2116 (2019), located at: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

2

Ibid.

3

Under that delegated authority, the Attorney General issued an interim rule in February 2007, specifying that SORNA’s registration requirements apply in full to “sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 72 Fed. Reg. 8897. The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. 75 Fed. Reg. 81850. That rule has remained the same to this day.

Ibid.

4

Lydia Wheeler, “Sex offender registry sparks Supreme Court debate over congressional powers,” The Hill, located at: https://thehill.com/regulation/court-battles/409480-sex-offender-registry-sparks-supreme-court-debate-over-congressional?rl=1

5

Reynolds v. United States, 565 U.S. 432 (2012), located at: https://supreme.justia.com/cases/federal/us/565/432/

6

Gundy v. United States, 139 S. Ct. 2116 (2019), located at: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

7

Ibid.

8

https://www.pri.org/stories/2016-06-15/while-supreme-court-considers-deportation-policy-deportation-policy-has-its-rootshttps://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1099&context=jcl#:~:text=Over%20one%20hundred%20years%20ago,%2C%20not%20criminal%2C%20in%20nature.

9

Smith v. Doe, 538 U.S. 84 (2003), located at: https://www.oyez.org/cases/2002/01-729

10

Ibid.

11

Ibid., dissenting opinions of Justice Stevens and Justice Ginsburg.

12

Smith v. Doe, 538 U.S. 84 (2003) (Ginsburg, J. dissenting).

13

https://mitchellhamline.edu/sex-offense-litigation-policy/?s=ex+post+facto; https://theappeal.org/court-holds-that-retroactive-extension-of-sex-offender-registration-is-punitive-be1e8efad092/

14

Steven Yoder, “Why Sex Offender Registries Keep Growing Even As Sexual Violence Rates Fall,” The Appeal, located at: https://theappeal.org/why-sex-offender-registries-keep-growing-even-as-sexual-violence-rates-fall/

15

“Sex Offender Registration and Notification In the United States Current Case Law and Issues — March 2019: Retroactive Application & Ex Post Facto Considerations,” Department of Justice, SMART Office, located at: https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/5-retroactive-application_0.pdf

Congressional Power in Action

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