SORNA Registration Requirements Held Non-Retroactive
By Shaffer & Engle Law Offices, LLC posted in SORNA on Friday, May 3, 2013
Defendant's obligation to register under SORNA did not derive from the Act itself but from the administrative rule promulgated by the Attorney General.
By ** Attorney Elisabeth K.H. Pasqualini**, SORNA/AWA Attorney, Harrisburg, PA
In an recent decision by the Federal Third Circuit Court of Appeals, the registration requirements for an offender were held not to be retroactive where the U.S. Attorney General failed to provide "good cause" to make an interim rule regarding registration retroactive. United States v. Reynolds, 710 F.3d 498, 2013 U.S. App. LEXIS 5089, 2013 WL 979058 (March 14, 2013).
Facts as stated by the Court:
In 2001, Reynolds was convicted of sexually assaulting a seven-year-old girl. This conviction required him to register as a sex offender, which he did for the next six years. Meanwhile, Congress passed SORNA in 2006, which required individuals convicted of sex offenses after its enactment to comply with certain registration requirements . Through the promulgation of an administrative rule on February 28, 2007, the Attorney General made SORNA's registration requirements retroactive to those convicted of sex offenses before its enactment-i.e., sexual offenders such as Reynolds .
On September 16, 2007, Reynolds moved to Washington, Pennsylvania. He failed both to update his place of residence and employment information in Missouri and to register as a sex offender in Pennsylvania. Police discovered these registration violations on October 16, 2007, when Reynolds was arrested for violating parole. He was subsequently indicted for violating SORNA's registration requirements because of his failure to register between September 16, 2007 and October 16, 2007. He pleaded guilty, reserving his right to appeal. He was sentenced to eighteen months of imprisonment to be followed by three years of supervised release.
In announcing the rule that SORNA registration requirements would apply to pre-Act offenders, the U.S. Attorney General violated the Administrative Procedures Act (APA) by failing to provide a two month comment period. The Court determined that none of the exceptions, such as "good cause" applied to the U.S. AG's determination to make the rule immediately effective. The government, nonetheless, argued that the rule's application was harmless. In determining whether it was harmless, the Court first had to determine if it was a civil remedy or a criminal remedy being applied. The Court determined it was criminal.
Here, the Court stated:
The burden shifts in criminal matters because "the Government seeks to deprive an individual of his liberty, thereby providing good reason to require the Government to explain why an error should not upset the trial court's determination." Id. Here, Reynolds's liberty is at stake .
Is Retroactivity for a thing of the past?
It is doubtful that the application of this case to other situations will be broad. This case should be viewed narrowly. First, the rule may have little application to PA Law. Unlike SORNA, the Adam Walsh Act specifically defines by law which offenses will be registerable. Here, the retroactive application of SORNA was determined by the U.S. AG. In so doing, the U.S. AG violated the APA. However, there is a notable take away in that the Court held that prejudice accrued to the Reynolds because the government had not met its burden for application to criminal matters. We have often been reminded that registration requirements are a civil penalty and not a criminal one. (See links to recent blog articles: ** Internet Postings of Megan's Law Offenders** and ** Enhancements not viewed as punitive**).