The 7th Circuit Court of Appeals has joined a majority of other circuits nationwide in finding that the federal sex offender registration law is not a retroactive punishment on those who were convicted prior to 2006 and traveled after the law was enacted.
But whether or not the 7th Circuit’s ruling or any of the others remain intact is a question the Supreme Court of the United States may soon answer, since it’s granted certiorari in a case that examines whether sex offenders convicted before that 2006 law took effect can be required to follow registration requirements for any travel after the fact.
The 7th Circuit ruled today on United States v. Donald Leach, No. 10-1786, from the Northern District of Indiana. The three-judge appellate panel affirmed a ruling by U.S. Judge Robert Miller that involves a convicted sex offender who moved out of state in 2008.
Convicted on a Class C child molestation felony in 1990, Donald Leach was released from prison in 1994, but he failed to register under Indiana’s first registration law which was in effect at the time. He returned to prison on an unrelated theft conviction and was released in 2004, and he signed a form requiring him to register if he left the state. He notified the Wabash County sheriff’s office twice as he was required to do at the time, but in late 2008 he failed to update his registration in Indiana or South Carolina where he relocated.
Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006 and the U.S. attorney general put rules in place in mid-2008 requiring offenders to register if they moved out of state. Leach eventually reported his move in early 2009 to Indiana’s child support enforcement office, but he didn’t register in South Carolina and was later arrested under SORNA for failure to register. He pleaded guilty and received a 27-month imprisonment sentence and three years of supervised release, but preserved his right to appeal. Judge Miller upheld his conviction and sentence, and Leach appealed that ruling on grounds that his registration under SORNA was an ex post facto violation of his constitutional rights.
The 7th Circuit affirmed that lower court decision in an eight-page opinion, basing its ruling in large part on the SCOTUS decision from June 2010 in another Indiana sex offender case – Carr v. United States, 130 S. Ct. 2229, 2240 (2010). The justices in that case held that offenders who travel between states and don’t register under SORNA after the law’s effective date can be prosecuted, but applying the law to any pre-SORNA travel is unconstitutional. In this case, Leach’s move came in 2008.
But what the SCOTUS didn’t answer in that case and remains unresolved is whether SORNA overall is an ex post facto violation if it’s applied to any convictions prior to 2006. Most circuits have ruled that it is not, and the 7th Circuit now joins them.
Using its own caselaw to determine that this statute isn’t retrospective and penal in nature, the 7th Circuit found Leach didn’t satisfy that two-prong requirement. The 7th Circuit also noted that Leach’s citation of Wallace v. State, 905 N.E. 2d 371 (Ind. 2009), doesn’t apply here because the question isn’t whether Indiana has adopted a compliant registration system or whether that state’s law complies with SORNA.
“We recognize that SORNA imposes significant burdens on sex offenders who, like Leach, may have committed their crimes and completed their prison terms long before the statute went into effect,” Judge Diane Wood wrote for the panel, outlining all the ways offenders must notify authorities under this statute. “But that does not make them retrospective: SORNA merely creates new, prospective legal obligations based on the person’s prior history.”
The nation’s highest court might soon rule on that very issue, after granting certiorari in January a case out of the 3rd Circuit that follows the rationale cited in this newest ruling by the 7th Circuit and others. The case is Billy Joe Reynolds v. United States, 10-6549, and it raises a number of questions about the SORNA, including whether the law violates the ex post facto clause of the Constitution, the Commerce Clause or due process rights. Whether that question is addressed remains to be seen, and merit briefs are due later this year on that case.