Gundy – What does it mean for us?
Many people have been confused by the Gundy decision released by the Supreme Court of the United States today, so I wanted to circulate a simplified summary of what Gundy is all about and what it means for people on the registry and, specifically, what it means for people on the registry in Florida.
Gundy was a “sex offender” case because Herman Gundy was a person required to register as a sex offender, but it’s not so much about the registry as it is about something technical called the “non-delegation doctrine”.
So, here’s the background… Herman Gundy committed a sexual offense in 2004.The Sex Offender Registration and Notification Act (SORNA) came out in 2006 and established federal requirements for registration, such as which offenses fall into which tier and which tiers have to register for how long.
At the time Congress passed SORNA, instead of announcing that SORNA applies to everyone, they left it up to the Attorney General to decide if, when, or how people convicted of sex offenses prior to the enactment of SORNA would be subjected to it. The Attorney General (not Congress) decided it would apply retroactively.
Gundy didn’t register and was arrested for violating SORNA. He argued that he shouldn’t be subjected to SORNA because Congress didn’t have the authority to delegate the decision as to whether SORNA applies to pre-SORNA offenders. In more technical terms; that would be an unconstitutional delegation of Congressional authority to the executive branch.
Gundy’s argument was that the “delegation” violates the “Non-Delegation Doctrine”, which says that one branch of government can’t authorize another to exercise the power or function which it is constitutionally authorized to exercise itself. In other words; it’s kind of like allowing the fox to watch the hen house. How can you allow the person that enforces the laws be the same person that decides whether the laws are applicable? (Note: a point that some of the Justices seemed to get during oral arguments) It’s why we have separation of powers.
So the issue that the Supreme Court took up was the application of the “non-delegation doctrine”, not so much the validity of sex offender laws.
Still, had Gundy won, the decision would have meant that the Attorney General didn’t have the discretion to determine that SORNA applied to pre-2006 registrants and pre-2006 people who were arrested for violating SORNA (such as Gundy) would have gotten relief. It would have benefited those with pre-2006 cases who were charged with violating SORNA (not Florida registration laws – that’s something different).
Looking forward, if Gundy had won, Congress could have just turned around and said ‘we’ll take the discretion away from the Attorney General and decide ourselves whether SORNA applies retroactively and we decide that it does’. Or they could have decided it didn’t. Regardless, I guess we won’t know.
While we all hoped that since Gundy was the first case in a while with a “registered party”, that the Supreme Court would take the opportunity to speak up and correct some grievous wrongs done to persons required to register. They didn’t – but it wasn’t so much about the registry as it was about the non-delegation doctrine.
So more specifically; what does this mean for persons required to register in Florida? Really nothing. While SORNA has three tiers and provides for removal after 15 or 25 years (for Tiers 1 and 2), Florida has no tier system and lifetime registration for all. Even if the SORNA minimums were not determined to be applicable to pre-2006 persons, the Florida requirements exceed SORNA by miles. Had Florida’s requirements been less onerous than SORNA we potentially could have seen some relief, but in our case we had none coming regardless of the outcome of Gundy.
And what does this mean for our current lawsuits in Florida? Nothing good or bad. We fight on!
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This has to do with the U,S.A.G. given the power to create a statute then assign penalties. Like the Florida A.G. being given the legislatures permission to write statutory law then apply it with conditions and penalties
we are a IT means all of us that are on offender list cant find a place to live or rent because this needs to be for police to see not for Anyone to see so in till they remove me from the list why pay taxes for them basters fuck en all i don’t pay shit look at all that money this would help the economy but no they got to put us out there for all to see so we cant work a normal job so we mow lawns or make are own business we do and slued we pay taxes HELL NO i never will because we are a IT so were ailions don’t pay shit why support this government to pay taxes fucken all hope you basters go to hell this needs to be changed the next Nabor that gets in my face that moves here in my area i’m goin beat the shit out of hem them maybe something will get done you you see why are USA is going to hell my case was in 1991 i was 18 years old and this old shit gets trowen back in my face i get pissed. NO TAXS from me government Owes me that the cost of putting me out there on the Net FDLE can go to HELL deal with it mother fuckers.
This has nothing to do with in-state or out of state.
I know nothing about your case. Clearly you are not in Florida or you would not be off the registry.
I’m not a lawyer, but I’m guessing you’re still on the national and Florida registry. You’ll likely remain on the national one because your registration in Florida remains even after you die.
How is that some people are coming off the Florida registry after 25 years and not made to register for life? Is that a sort of tier system in Florida?
Florida Statutes 943.0435(11) provides for a petition for removal.
If you are at 25 years (or 20 years if the offense date is pre-2007) since you have been released from probation and have not had any arrests, contact [email protected]
Ugh! I wish I can qualify right now, but I got 20 years left for all of that.
For me to be off the registry, It will be either petition for removal in 20 years, or SCOTUS striking down the registry within those 20 years. Whichever comes first.
20 years of the offense date is pre-7/1/2007, correct?
(* “if”)
yes
Shaun, are you saying that you were on the Florida registry but removed when you were no longer required to register in Ohio?
Florida does not have Teir’s
I’m glad that you pointed out the fact that a decision one way or the other would have had little effect on registrants. It had no application to state laws. And even if Gundy had one, they would not have granted him any immediate relief. They would have simply instructed Congress to decide whether or not it was retroactive. Now if it had been a case where the challenge was actually ex post facto violation in applying registries retroactively, it would truly be an important case. The Supreme Court is skilled at dodging the most important principle, mainly that the registries are harsh, vindictive punishment that do nothing to increase public safety.
Thank for this read. It is great to hear. I read an article about what would have happened if Justice Kavanaugh had heard the case. At that point it could have been 4 to 4 with Alito as the swing. The article seemed to imply that at that point Alito would have sided with Gorsuch, Thomas and Roberts.
Thank you again FAC for positivity and hope.