A reasonable grace period is required before the federal government can enhance a convicted sex offender's punishment for not registering after a move to a new state, the 7th Circuit Court of Appeals ruled today.
That timeframe falls somewhere between zero days and five months, according to the ruling in the consolidated cases of U.S. v. Marcus Dixon, 08-1438, and U.S. v. Thomas Carr, No. 08-2008.
In deciding a case that's the first of its kind in this Circuit, the federal appellate panel dismissed claims that the Sex Offender Registration and Notification Act was unconstitutional on several fronts and instead focused mostly on the notice received from the federal government before a criminal failure to register with state authorities is enhanced to a federal crime.
The court reversed the judgment against Marcus Dixon with direction to acquit while affirming the decision in Thomas Carr's case.
Both were convicted in the Northern District courts - Dixon after a bench trial in 2007 for failure to register with state authorities after moving to Indiana in 2006 before the regulation was adopted; Carr after pleading guilty and moving to the state.
The law in question imposes criminal penalties on any state or federally convicted sex offender who, among other things, knowingly fails to register as a sex offender. Congress gave the U.S. Attorney General authority to specify when that timeframe to register applies. Dixon was charged and ultimately convicted on grounds that he didn't register on or about Feb. 27, 2007 - the date the rule was adopted; Carr had not registered by July 2007.
But while Dixon should have known that he needed to register, his ex post facto rights were violated because the federal law imposes on that existing crime a new federal criminal penalty on top of any state punishment for not registering, the court wrote.
"Whatever the minimum grace period required to be given a person who faces criminal punishment for failing to register as a convicted sex offender is, it must be greater than zero," Judge Richard Posner wrote, referring to the government's charge that he didn't register on or near the same time the rule was passed.
Carr's case was different, as he had about five months to register and failed to do so, Judge Posner wrote, noting that it was a sufficient grace period.
"Remember that on our interpretation of the statute as filled out by the regulation, the duty to register does not come into force on the day the Act becomes applicable to a person, or on the next day or next week, but within a reasonable time..."
Overall, the court determined that the law isn't unconstitutional and any convicted sex offender must register even if they came to the state prior to the federal law's passage.