Justices Target Unclear Sex Offender Registration Rule

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By Jessica DaSilva

March 1 — Arguments at the U.S. Supreme Court March 1 featured nearly every justice doggedly asking the government how sex offenders should have been expected to comply with a registration law that didn't explicitly mandate that they update their addresses when moving to a foreign country.

Both parties and the justices agreed that the issue before the court had already been resolved going forward, following a Congressional update to the federal Sex Offender Registration and Notification Act that added language requiring sex offenders to provide all international travel plans to officials in the state where they are registered. However, that didn't stop the justices from peppering the government with questions regarding the plain reading of the law prior to that amendment.

The version of SORNA at issue in this case defined jurisdictions as where an offender currently resides, works or attends school.

Justices evaluated statutory definitions, cross-references to state laws, and 2008 prosecution guidelines from the Department of Justice in the course of their questioning. Their inquiries seemed to be aimed at what would have been a reasonable reading of the text for a lay person attempting to comply with the law.

Extradition Decision

Daniel T. Hansmeier, of the Kansas Federal Public Defender's Office, Kansas City, Kan., opened his argument saying that until Congress fixed the loophole three weeks ago, sex offenders moving to foreign countries weren't required to update their residential addresses unless they moved back to the U.S.

Additionally, Hansmeier argued the federal statute didn't include a requirement to “unregister” from a state's registry because all 50 states and all territories had their own laws requiring just that.

The justices barely asked any questions of Hansmeier, who used less than 20 of the allotted 30 minutes for his argument.

The main interruptions came from Justices Sonia M. Sotomayor and Samuel A. Alito. Jr.

Sotomayor wanted to know whether the SORNA issue would have gone away if the government had extradited the petitioner, Lester Ray Nichols, under a violation of state law for failing to unregister, rather than under the federal law.

“I think yes,” Hansmeier answered.

“So really what we're talking about is that they asked for the extradition under the wrong law,” Sotomayor responded. Hansmeier agreed.

Alito brought up the point that despite the textual argument, legislative history shows that Congress intended to keep registry records updated.

“Do you really think Congress was unconcerned about the U.S. exporting pedophiles to the Philippines or to other countries?” Alito asked. “Do you think that they were not concerned about not only the human rights implications of that, but our relations with other countries?”

Hansmeier pointed out that Congress's decision in 2016 to amend the statute to cover international travel showed that the plain meaning of the previous statute didn't properly include international changes of address.

Under the old law, once petitioner moved abroad, he was no longer covered by that federal statute requiring an update, Hansmeier concluded.

Could Lay Person Understand?

Taking a more active approach with the federal government's attorney, Curtis E. Gannon, of the Solicitor General's office in Washington, the justices peppered him with questions about how a lay person should be expected to consult multiple legal sources for guidance on compliance.

Justice Anthony M. Kennedy asked the first question, wondering whether the government believed petitioner violated federal law by failing to inform Kansas that he was terminating his residence or that he was moving to the Philippines.

Gannon said that the petitioner was required to do both because the Philippines is not a jurisdiction under the statute, meaning Kansas qualifies as an “involved” jurisdiction.

Chief Justice John G. Roberts Jr. jumped in, asking how Kansas could be considered “involved” if the definition of an involved jurisdiction is one “where the offender resides, is an employee, or a is a student.”

Gannon answered that the obligation is triggered by a requirement to keep the information current.

However, Roberts and Justice Elena Kagan pushed back, pointing out that the requirement to update information with a jurisdiction doesn't occur until three days after a move. So if an offender moved to a foreign jurisdiction outside the list in the statute, Roberts and Kagan said they couldn't understand where an offender should be updating his registry information.

Gannon responded that because Kansas was the jurisdiction where the petitioner had been registered, it remained an involved jurisdiction.

Justice Stephen G. Breyer asked if that meant that any jurisdiction that was ever involved can be considered as currently involved.

Gannon disagreed, saying it is the jurisdiction involved in the three-day window following a residence change.

“And a person is supposed to understand that?” Breyer asked. “Now, that's—to me—a little farfetched, wouldn't you say?”

No, Gannon answered, clarifying that Kansas is involved because it's part of the change in residence as the origin residence.

“That's an awful lot to ask a lay person to parse at the risk of 10 years,” Breyer said.

Kagan agreed, saying the government was essentially asking lay people to understand the underlying purpose of the laws.

“You know, it would be good if everybody did that, but the text of the law is something different,” Kagan said. “And if you look at this text of the law, there's just no way that a reasonable reader reads that text and says it requires me to provide departure notification when I leave to another country.”

The morning he moved, Kagan stated that the petitioner had complied with the law. But once he moved to the Philippines, he was no longer subject to SORNA, she said.

After some debate, Gannon highlighted another provision aimed at state officials that alludes to updating information for future moves, 2008 DOJ guidelines for enforcing SORNA, and notices and forms sent to sex offenders asking for specific start and end dates to residence addresses.

“My answer is, ‘So what?'” Roberts responded. “What you're saying is the Attorney General thinks it's a fair reading of the statute so I should think it's a fair reading of the statute.”

Kagan, Breyer and Sotomayor in turn made similar points, questioning whether a lay person should need to consult so many resources to understand his or her role in compliance.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full transcript at http://src.bna.com/cZU.