Sex offenders who were convicted prior to 2006 passage of the federal Sex Offender and Registration Notification Act (SORNA) may have grounds to fight or appeal charges of failing to register, as several courts – now including the Eighth Circuit Court of Appeals – have found flaws with the U.S. Attorney General’s period of notification.
SORNA requires those convicted of certain sexual crimes to periodically provide state governments updated contact information, which includes their names and current addresses. This information is then entered into state and federal databases. A convict who knowingly fails to register as required under the law violates 18 U.S.C. 2250(a).
Our Birmingham sex crimes defense lawyers know when the law first passed in 2006, it was not immediately applicable to sex offenders whose convictions were handed down prior. Language in the statute specifically stated it would not be retroactively applied unless and until the U.S. Attorney General exercised rule-making authority that would make it so.
In February 2007, the Attorney General did issue an interim rule that made the statute applicable to those who had been convicted of sex crimes prior to implementation of the law. However, in doing so, he failed to establish a period of promulgation notice and comment, and further overrode the 30-day publication requirement that would otherwise apply because, he stated, there was “good cause” to waive those requirements.
The Attorney General would later say the act had always been applicable to previous offenders. But the U.S. Supreme Court rejected that finding in U.S. v. Reynolds. Subsequently, a number of failure to register convictions against pre-Act offenders in other federal appellate courts have been overturned.
That brings us to the most recent, U.S. v. Brewer , before the Eighth Circuit Court of Appeals. Defendant became a sex offender, required to register under SORNA, due to a sex crime conviction in Hawaii in 1997.
At the time of the federal law’s enactment, defendant was residing in South Africa. However, he returned to the U.S. in late 2007 and began living in Arkansas. But he did not register as a sex offender once there. As a result, he was arrested in the spring of 2009 and pleaded guilty several months later.
He served 1.5 years in prison, and was thereafter under an order for 15 years of supervised release. He appealed, requesting his conviction be vacated on the grounds the Attorney General did not have good cause to sidestep legal procedures, and therefore breached the Administrative Procedures Act.
The district court denied his request, and he appealed to the Eighth Circuit panel.
Defendant argued the rule was not effective in his case when he moved from Africa to Arkansas in late 2007 because the interim rule, which made SORNA retroactive, was invalid at that time, and the final rule didn’t become effective until August 2008.
Prosecutors argued that even if the Attorney General lacked good cause, the error was harmless and the conviction should stand. Appellate court disagreed, and remanded the case with instructions to vacate defendant’s conviction.
It’s worth noting two other federal appellate circuits – the Fourth and Eleventh (which covers Alabama) – have held the Attorney General did have good cause to bypass the comment and notice requirements otherwise held in the Administrative Procedures Act. By contrast, the Third, Fifth, Sixth and Ninth appellate circuits have disagreed.