By Megan Marlatt
Since its effective date on July 27, 2006, the Sex Offender Registration and Notification Act (SORNA) has already caused a circuit split concerning two related issues. Since November of 2008, the Tenth Circuit alone has issued three opinions about the applicability and application of SORNA to sex offenders convicted of their sex offenses prior to the effective date of SORNA (past offenders).
Under SORNA, sex offenders who have either 1.) been convicted of a sex offense under federal law, or 2.) travelled in interstate commerce and have failed to register as a sex offender and remain current with their registration following each change in residence or employment can be imprisoned for up to ten years. 18 U.S.C. 2250(a)42 (2006). On February 28, 2007 the Attorney General issued an Interim Rule stating that SORNA applies to sex offenders who were convicted prior to July 27, 2006, SORNA’s effective date. 72 Fed. Reg. 8894, 8896 (Feb. 28 2007). Subsection (d) of SORNA states:
Initial registration of sex offenders unable to comply with subsection (b) of this section
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. 42 U.S.C. 16913(d) (2006).
It is clear from the Tenth Circuit opinion in United States v. Husted that sex offenders whose interstate travelling ended prior to the effective date of SORNA can not be convicted under 18 U.S.C. 2250 for failing to keep up their registration. 545 F.3d 1240 (10th Cir. 2008). United States v. Hinckley, a Tenth Circuit opinion issued December 9, 2008 holds that SORNA is applicable to sex offenders who have been convicted of their sex offenses prior to the enactment of SORNA in 2006 and completed his or her interstate travelling between the enactment of SORNA and the issuance of the Attorney General’s Interim Rule. 550 F.3d 926 (10th Cir. 2008). The Tenth Circuit clarified their analysis in Hinckley in the decision in United States v. Lawrence. 548 F.3d 1329 (10th Cir. 2008). In Lawrence the Tenth Circuit made clear that it interpreted the Attorney General’s promulgation to apply only to initial registration requirements and that the Interim Rule had no bearing on whether past offenders could be convicted if their interstate travel commenced prior the issuance of the Attorney General’s Interim Rule.
The Tenth Circuit followed the reasoning of the Eighth Circuit in United States v. May. In May, the Eighth Circuit held that the Attorney General’s Interim Rule was merely Covering the Tenth Circuit and the State of Colorado - DU Process - The SORNA Messa clarification that SORNA applies to all sex offenders. 535 F.3d 912 (8th Cir. 2008). It only acts as a rule and thus is retroactive for those sex offenders unable to initially register under the provisions of SORNA because of the time limits within which to register. Both circuits found the title of 42 U.S.C. 16913(d): “Initial registration of sex offenders unable to comply with subsection b of this section” persuasive in reaching their conclusion.
The Eleventh Circuit, however, has reached a different conclusion about the meaning of the Attorney General’s Interim Rule in SORNA. In United States v. Madera, the court held that SORNA does not apply to past offenders whose interstate travelling occurred between the time SORNA was enacted and the Attorney General issued his Interim Rule. 528 F.3d 852 (11th Cir. 2008).