January 24, 2012

Sex Offender May Have a Case for Not Registering

1-24-2012 National:

Sex offenders do not need to register if they were convicted before enactment of a 2006 federal law, unless the attorney general makes that specific finding, the Supreme Court ruled Monday.

The majority reversal offers relief to Billy Joe Reynolds who pleaded guilty to one count of knowingly failing to register and update a registration, in violation of the federal Sex Offender Registration and Notification Act.

Reynolds had spent four years in prison years earlier stemming from his 2001 conviction of a Missouri sex offense. Though Reynolds registered as a Missouri sex offender when he got out of prison, he moved to Pennsylvania in 2007 without updating his Missouri registration information or registering in Pennsylvania.

The Sex Offender Registration and Notification Act became law in July 2006, but it was not for another seven months that the attorney general promulgated interim rules applying the registration requirements to "all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that act."

As Reynolds appealed his conviction, he claimed that the act's registration requirements had not yet become applicable to offenders with pre-2006 convictions.

The courts were unsympathetic, however, with the 3rd Circuit finding that the act's registration requirements would not apply to "pre-act" of­fenders like Reynolds from the date of the new law's enactment, "even in the absence of any rule or regulation by the attorney general specifying that the new registration requirements apply," according to the Supreme Court's summary.

A majority of justices concluded otherwise Monday.

"The question before us is whether the act requires pre-act offenders to register before the attorney general validly specifies that the act's registration provisions apply to them," Justice Stephen Breyer wrote for the court. "We believe that it does not."

"Although a state pre-act offender could not be prosecuted until he traveled interstate, there is no interstate requirement for a federal pre-act offender," Breyer added. "And to apply the act to either of these pre-act offenders from the date of enactment would require reading into the statute, silent on the point, some kind of unsaid equiva­lent.

"Pre-act offenders, aware of such complexities, lacunae, and difficulties, might, on their own, reach different con­clusions about whether, or how, the new registration requirements applied to them. A ruling from the attorney general, however, could diminish or eliminate those un­certainties, thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid."

The entire court did not share this view, however.

"The issue is whether 'specify the applicability' means that no pre-act offenders need register unless the attorney general says so, or rather that the attorney general may excuse the unqualified requirement for pre-act offenders," according a dissent authored by Justice Antonin Scalia and joined by Justice Ruth Bader Ginsburg. "In that context, it seems to me that the latter meaning is more natural. One specifies the applica­bility of an application that already exists by describing or revising its contours."

"Indeed, it is not entirely clear to me that Congress can constitutionally leave it to the attorney general to decide - with no statutory standard whatever governing his discretion - whether a criminal statute will or will not apply to certain individuals," Scalia added. "That seems to me sailing close to the wind with regard to the principle that legisla­tive powers are nondelegable. Construing the act to give the attorney general the power to reduce congressionally imposed requirements fits that bill, because such a power is little more than a formalized version of the time­-honored practice of prosecutorial discretion." ..Source.. by BARBARA LEONARD

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