Carr v. United States

From ScotusWiki

Argued February 24, 2010. Decided June 1, 2010.

Authorship: Kate Nielson of Harvard Law School and Will Edelman of Stanford Law School

Docket: 08-1301

Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

1 Briefs and Documents
2 Opinion Recap
3 Argument Recap
4 Pre-Argument Articles
- 4.1 Argument Preview
5 Links and further information
- 5.1 Media Links
- 5.2 From the Blogosphere

Briefs and Documents

Decision

REVERSED AND REMANDED in a 6-3 decision with an opinion written by Justice Sotomayor. Justice Scalia joined in part, and filed a separate opinion concurring in part and concurring in the judgment. Justice Alito filed a dissenting opinion, joined by Justices Thomas and Ginsburg.

Oral Argument

Transcript (February 23, 2010)]

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion Recap

Will Edelman originally wrote the following for SCOTUSblog:

In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA). Under one provision of SORNA, 18 U.S.C. § 2250, a sex offender can face up to ten years in prison if three criteria are met: he (1) is required to register under SORNA; (2) “travels in interstate or foreign commerce”; and (3) knowingly fails to register or update a registration. On June 1, in Carr v. United States (No. 08-1301), the Court held, by a vote of six to three, that the second element of Section 2250 applies only to travel that occurred after the enactment of SORNA.

Both Carr and the United States agreed that Section 2250’s three elements outline a series of events that must occur in sequence: conviction, travel, and failure to register. They disagreed, however, on what triggers the start of the sequence. In an opinion by Justice Sotomayor (joined by the Chief Justice and Justices Stevens, Kennedy, and Breyer), the Court rejected the government’s suggestion that Section 2250 is violated as long as the failure to register post-dates the statute’s enactment. Instead, the Court emphasized, Section 2250’s first element “can only be satisfied when a person ‘is required to register under the Sex Offender Registration and Notification Act.’” Because no one was required to register under SORNA before the law was passed, the “first precondition to § 2250 liability” precludes pre-enactment travel from satisfying the second element.

The Court’s opinion also discussed at length the significance of Section 2250’s use of the present-tense verb “travels”—as opposed to “traveled” or “has traveled.” Relying on usage norms, the Dictionary Act, and Congress’s exclusive use of present-tense verbs elsewhere in Section 2250 and in other provisions of SORNA, the Court concluded that the “undeviating use of the present tense [was] a striking indicator of its prospective orientation.”

The Court also rejected the government’s argument that interpreting SORNA as inapplicable to sex offenders whose travel pre-dated SORNA would frustrate the purposes of the Act. The Court took care to distinguish the “general goal of SORNA [from] the specific purpose of § 2250.” It explained that numerous other provisions of the Act, such as requirements that states maintain publicly available online databases of offenders and share information with other states, “stand at the center of Congress’ effort to account for missing sex offenders.” Thus, the general policy goals of SORNA “tell[] us little about the specific policy choice Congress made in enacting § 2250,” and leave “little reason to doubt that Congress intended § 2250 to do exactly what it says.”

Because the Court’s decision rested on an analysis of the statutory text, it thus declined to reach Carr’s alternative argument that the government’s interpretation of Section 2250 violated the Ex Post Facto Clause. And it also acknowledged, but declined to address, two related issues – both of which have perplexed the lower courts – concerning the validity and interpretation of regulations issued by the Attorney General to apply Section 2250 to pre-SORNA convictions.

Justice Scalia filed what has become a familiar concurrence, disavowing the portion of the Court’s opinion discussing the legislative history and concurring in the judgment.

Justice Alito filed a dissenting opinion that was joined by Justices Ginsburg and Thomas. In it, he argued that the majority’s analysis overlooked an important question: “At what point in time does Section 2250 speak?” Citing federal and state legislative drafting manuals, Justice Alito rejected the majority’s unstated premise that the statute speaks as of the point of enactment. Instead, he contended, the legislative convention is to draft laws in the present tense so that they speak “as of the time when the first act necessary for conviction is committed.” Furthermore, Congress’s decision to leave the issue of whether pre-SORNA convictions qualify under Section 2250 to the Attorney General provides an alternative explanation for why Congress would avoid using past-tense verbs that might influence the Attorney General’s decision.

Moreover, the dissent argued, the majority’s textual arguments “lead[] to a result that makes no sense.” Congress would have no reason to treat two sex offenders who failed to register differently based on whether the date on which they happened to move in interstate commerce preceded or followed the enactment of SORNA; both scenarios, he observes, “ frustrate[] enforcement of SORNA’s registration requirements.” Describing SORNA as a “response to a dangerous gap” in sex offender registration laws, Alito warned that the Court’s interpretation would put “beyond reach” the very sex offenders whose interstate movements prior to SORNA motivated the passage of the law.

Argument Recap

Kate Nielson originally wrote the following for SCOTUSblog:

At oral argument in Carr v. United States, the discussion focused on the text of the Section 2250(a) offense and Congress’s purpose in enacting SORNA.

Arguing for the petitioner, Charles Rothfeld began with his textual arguments, which he would eventually reiterate in rebuttal. Justice Alito suggested several reasons why Congress in Section 2250(a) might have used the present tense “travels,” including that it did not know whether the statute would apply to pre-SORNA convictions because it had left the decision to the Attorney General. Later, Justice Alito noted that, in light of the Attorney General’s ruling, other present-tense provisions of the statute now apply to past activities. Mr. Rothfeld focused on the government’s textual argument: in reading the statute as requiring a series of sequential events, the government interprets “is required to register under SORNA” as merely “shorthand” for “committed a sex offense.” In response, Justice Alito noted that the order of the events might flow naturally from the purpose of the statute, rather than the order of the textual elements.

Turning to SORNA’s purpose, Mr. Rothfeld met some skepticism when he argued that SORNA was intended to discourage travel by sex offenders who would be specifically attempting to evade the heightened state registration requirements which Congress hoped the states would enact. Justice Scalia questioned how an offender could evade heightened penalties by traveling if all states are supposed to have such penalties. Both Justices Breyer and Sotomayor noted that, if SORNA’s general purpose was to encourage registration, there is little reason to differentiate between missing offenders based on when they “disappeared” from the registration system. A federal penalty, Justice Alito suggested, might nonetheless be appropriate because the state to which an offender moves is less likely to know that person is a sex offender.

As Assistant to the Solicitor General Curtis E. Gannon opened his argument for the government, Chief Justice Roberts quickly turned to the “obvious question” of what constitutes a “reasonable time” to register. Justice Alito suggested that a reasonable time might be the time allowed by the state to which one had traveled, while Mr. Gannon emphasized that the problem will exist in any event because the statute applies to sex offenders convicted under Federal and tribal law.

When asked by both the Chief Justice and Justice Scalia to provide textual support for his argument that an offender’s travel must follow the sex offense, Mr. Gannon suggested that the context demonstrates that SORNA’s purpose is to “recapture missing sex offenders.” Justice Breyer then noted that SORNA’s heightened information-gathering requirements for states might facilitate the capture of offenders who travel—a purpose that would be relevant only in the post-SORNA context. Even so, Mr. Gannon suggested, a federal penalty would be a greater deterrent and ensure more uniform treatment of federal and state sex offenders.

When Justice Breyer asked whether other statutes used the present tense in an analogous manner, Chief Justice Roberts noted that he could only find examples where travel was linked to the purpose of the law. Mr. Gannon suggested that Congress would not have wanted an exception for sex offenders merely because they might have a good reason to travel. At various points, Justices Sotomayor and Ginsburg both worried about requiring offenders to register in states without SORNA-compliant registries, to which Mr. Gannon responded that offenders need only provide the information required by the relevant jurisdiction.

Pre-Argument Articles

Argument Preview

Kate Nielson originally wrote the following for SCOTUSblog:

The federalization of sex offender policy began in 1994, when Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act). Twelve years later, Congress expanded and strengthened registration programs in the Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act. Among other things, SORNA in 18 U.S.C. § 2250(a) created a new felony that penalizes sex offenders who are required to register under SORNA but knowingly fail to do so after traveling in interstate or foreign commerce. SORNA also authorized the Attorney General to determine whether and how the statute’s registration requirements applied to sex offenders convicted before the statute was enacted; on February 28, 2007, the Attorney General issued a regulation in which he indicated that SORNA’s registration requirements applied to all sex offenders, including those who were convicted prior to the statute’s enactment.

In No. 08-1301, Carr v. United States, the Court will consider the application of SORNA’s registration requirements to individuals who not only were convicted before SORNA’s enactment but also traveled before the statute became law. This will be the Court’s first consideration of sex offender registration laws since it upheld two state statutes against Ex Post Facto Clause and due process challenges in 2003.

In 2004, petitioner Thomas Carr was convicted of first-degree sexual abuse in Alabama and registered as a sex offender there after his release from custody. When Carr moved to Indiana at the end of 2004, however, he failed to register there – a failure that was discovered in July 2007, when he was arrested for an unrelated incident. After Carr was indicted for failing to register under SORNA, he moved to dismiss the indictment on the ground that his interstate travel pre-dated SORNA and a conviction would thus violate the Ex Post Facto Clause. The motion was denied; Carr entered a conditional guilty plea and appealed the denial.

The Seventh Circuit consolidated the appeal with that of Marcus Dixon, whose offense and travel had also predated SORNA. In his appeal, Dixon made a similar Ex Post Facto argument but also argued that, as a matter of statutory construction, he did not violate SORNA because his travel occurred before the statute was enacted. The Seventh Circuit rejected the Ex Post Facto argument. In its view, such convictions did not violate the Ex Post Facto Clause as long as “at least one of the acts” “required for punishment” takes place after the statute went into effect and the defendant had a “reasonable time” in which to register after the Attorney General issued the regulation. The court of appeals thus affirmed Carr’s conviction, concluding that five months was a “sufficient grace period” in which to register. However, while it also rejected Dixon’s statutory argument, it nonetheless reversed his conviction on the ground that he had not had sufficient time to register.

Carr filed a petition for certiorari, which the Court granted on September 30, 2009. In his opening brief on the merits, Carr argues that SORNA’s use of the present tense “travels” demonstrates that the statute applies only to defendants who engage in current or future travel. Because Section 2250(a)’s other requirements of §2250(a) necessarily refer to post-SORNA activity, the “travels” clause should also be limited to post-SORNA activity. Any ambiguity in the language should be read in his favor, Carr suggests, under the rule of lenity and the presumption against retroactivity.

Carr next argues that SORNA was aimed at interstate travel by unregistered offenders as a harm in itself, which would threaten SORNA’s “uniform system of state registration requirements.” Unlike cases in which Congress has asserted its “full Commerce Clause power” by regulating activities “substantially affecting interstate commerce,” SORNA is limited to offenders who travel “in commerce.” This regulation of the channels of interstate commerce is inherently prospective; Congress cannot “keep these channels free from prior misuse that occurred before enactment of the governing statute.”

Finally, Carr argues that two different interpretations of SORNA both violate the Ex Post Facto Clause. First, even if SORNA merely requires defendants to comply with the Wetterling registration regime, then it impermissibly enhances the penalty for the same crime. Second, if SORNA in fact contemplates a new duty, then Carr was guilty of failing to register at the moment SORNA passed and its retroactive application would thus impose an “impossible duty.” His interpretation, by contrast, is consistent with the canon of constitutional avoidance, while the Seventh Circuit’s construction of the statute as allowing “a reasonable time” amounts to a rewriting of the statute.

In its brief on the merits, the government counters that Section 2250(a) criminalizes a sequence of events: an individual is guilty of failing to register when he first is convicted of a sex offense, then travels, and then knowingly fails to register, even if the travel occurs before SORNA’s enactment. The government argues that this interpretation better effectuates SORNA’s purpose of finding “missing” sex offenders who travel to another state and fail to re-register there. Although Carr suggests that such offenders could still be subject to state prosecution, the government emphasizes that SORNA was enacted precisely because state penalties were inadequate to ensure enforcement of registration requirements.

The government dismisses the canon of constitutional avoidance as inapplicable here. It contends that Congress’s Commerce Clause powers are not implicated by the timing of the travel because the logical connection between a failure to register and interstate travel is unrelated to when the travel occurred. Moreover, there is no “grievous ambiguity” that would justify invoking the rule of lenity.

Finally, the government argues that the law does not operate retroactively for purposes of the Ex Post Facto Clause because the full “course of conduct” criminalized by Section 2250 is not completed until an individual fails to register under SORNA, which necessarily occurs only after the statute’s enactment. The government also distinguishes between offenses under the Wetterling Act and those under SORNA: an individual who cannot register because a state does not have a registry that conforms to the requirements imposed by SORNA may invoke Section 2250(b)’s “uncontrollable circumstances” defense, but he is still liable under SORNA. The government agrees that Congress cannot criminalize conduct in a way that makes it impossible for a defendant to avoid liability, but it describes the allowance of “a reasonable time to comply with a statutory regime” as an uncontroversial “background principle of law.”

Links and further information

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