On June 1, the Supreme Court decided Carr v. United States, No. 08-1301, holding that a federal statute requiring sex offenders who travel in interstate or foreign commerce to register in the state to which they travel and imposing criminal penalties for noncompliance does not apply to persons whose travel occurred before the effective date of the statute.
The Sex Offender Registration and Notification Act of 2006 (SORNA) imposes criminal penalties on convicted sex offenders who are required by federal or state law to register to re-register if they travel in interstate or foreign commerce. Before SORNA was enacted, Thomas Carr was convicted of sexual abuse in Alabama and released on probation. He registered as a sex offender in accordance with Alabama law. He then moved to Indiana, where he did not comply with that state's sex-offender registration laws. After SORNA was enacted, federal prosecutors indicted Carr for failing to re-register in Indiana. He moved to dismiss the indictment, arguing that application of SORNA to him where his interstate travel occurred before the statute became effective would violate the Ex Post Facto Clause of the U.S. Constitution. The district court denied the motion to dismiss, and Carr then pled guilty and was sentenced to 30 months in prison. The Seventh Circuit Court of Appeals affirmed, holding that Carr violated SORNA by failing to register in Indiana after the statute became effective and that there was no Ex Post Facto violation because sufficient time had passed between the enactment and his indictment to allow him to register.
The Supreme Court reversed. It avoided the Ex Post Facto question entirely, construing the statute as applying only if a defendant's interstate travel, as well as his or her failure to register in the second state, occurred after SORNA was enacted. This construction, the Court said, was compelled by the fact that the statute articulates all of its elements, including the travel requirement, in the present tense ("travels" rather than "traveled" or "has traveled"). If Congress had intended preenactment conduct to satisfy some of the elements of SORNA while requiring current conduct to satisfy others, it would have varied the verb tenses, as it has done in many other federal statutes.
The Court rejected the government's contention that the interstate travel requirement merely established the jurisdictional grounds for the statute and that only the failure to register was an actual element of the offense, holding that interstate travel followed by a failure to register was the precise conduct at which Congress took aim. The government's contention that the lower courts' interpretation was supported by SORNA's purpose of locating unregistered sex offenders confuses the statute's general goal with the specific purpose of the provision at issue, which has a more limited goal as part of a broader statutory scheme.
Justice Sotomayor delivered the opinion of the Court, in which Chief Justice Roberts and Justices Stevens, Kennedy, and Breyer joined and Justice Scalia joined in part. Justice Scalia also filed an opinion concurring in part and concurring in the judgment. Justice Alito filed a dissenting opinion in which Justices Thomas and Ginsburg joined.