Herman Gundy stands convicted of violating a law that, for all intents and purposes, doesn’t exist. You may recall from high school civics that the Constitution separates the powers of the federal government among three coordinate branches. You may also recall from “Schoolhouse Rock” that a bill becomes a law after it’s passed by the two houses of the legislative branch and signed by the president. Unfortunately for Gundy, things are no longer so straightforward.
The Sex Offender Registration and Notification Act (SORNA) set up a national system of sex offender registration and made it a crime for sex offenders to fail to register with local authorities when they moved to a new state. While serving time on a federal drug charge, Gundy was transferred from prison in Pennsylvania to a halfway house in Brooklyn. According to the government, that counted as interstate travel sufficient to trigger reporting obligations of which he was never advised.
Gundy’s appeal of the conviction, to be heard by the Supreme Court this fall, addresses an odd facet of SORNA: while Congress laid out in detail those persons who would be required to register in the future, it did not determine who would have to register if the conviction occurred before SORNA was passed in 2006. Congress delegated that question to the Attorney General, and gave no guidance on how the determination should be made. Gundy’s sex offense is among those that predate SORNA, and therefore he was convicted of failing to register not based on anything Congress wrote in any law, but based on an administrative regulation written by the Attorney General.
I have a feeling Justice Gorsuch can’t wait to take a crack at this Gundy case and SORNA.
People commonly believe that conservative judges are more likely to be tough on crime and on criminals. However, in recent years, it has been the conservative Justices on the Supreme Court who have been cracking down on State government over-reach and abuse of individual citizen’s rights. I hope that they feel that this is finally the time to address the fact that the sex offender registries don’t really protect anyone, and serve only to create an entire class of outcasts from society. I will keep my fingers crossed.
OMG! Utterly ridiculous! Just insane!
I certainly hope that the Court uses that opportunity to address many factors about registry laws. I would love to hear them admit that it is a form of punishment. I would like to see the sex offender registry treated as a totally separate charge for the jury to decide, and to be placed in the plea bargain process, rather than being automatic. The fact that the Supreme Court let the Does v Snyder 6th Circuit decision stand (denying the State’s appeal) does give me hope that they will actually use some common sense, and abolish the whole mess. It is simply barbaric to brand people for life, even though they have already served their prison sentences.
Still waiting here in Michigan….nothing seems to be happening with the Does v. Snyder 6th circuit decision in terms of any relief for those of us who are due…I don’t know if it’s because it’s a election year and nobody wants to push any legislation that would be seen as sympathetic to RCs…..
Josh, are people being arrested for “violating” the voided laws?
To Josh. This is the only official writing I’ve been able to find online about Does v Snyder: https://www.michigan.gov/documents/corrections/DOM_2018-23_SORA_609801_7.pdf
They are supposed to be working on completely rewriting the law. They probably won’t publish any guidelines until that is done. I know that parolees in Bay City have been told that your registry requirements are determined by the date of your conviction offense. However, the parole agents have also been instructed not to volunteer any help for people who were convicted before the registry existed and want to know how to be removed from the registry.
@joeM
@gerald
There was one case that made the news from the east side of Michigan recently about a DA dropping charges against a guy for improper vehicle/plates and not living where he said he was supposed to…or something to that effect. the DA’s reason for dropping the case was because of the Does v Snyder ruling…things do seem to have changed…I didn’t get a personal visit from local police this year so far and my registration date was changed to conviction date not the 1995 date when michigan’s registry went active…my conviction predated Michigan’s passage of the registry by almost a year…long answer short…I don’t really see much difference but I have experienced very little hassle over my status the last 25 years so I’ve been luckier than most.
To Gerald,
That memo is certainly interesting….be interested to see the reaction from the person doing the quarterly verification if you waved that in their face…definitely going to forward that to my attorney
To Josh
I’m sure it’s going to be similar to what happened with the change in Romeo and Juliet cases. The law changed, but they left it up to each individual offender to petition the court for removal from the sex offender registry. Early on in the Does v Snyder decision, the Attorney General did issue instructions to prosecutors not to go after people who violate a retroactive part of SORA. But who wants to end up sitting in jail as a test case? I am hoping they will issue new guidelines later this year.
@ Gerald
I agree with the part about hoping for some new guidelines by the end of the year….I can’t help wondering if those new pieces of legislation ARE being worked on and that’s why the Aclu hasn’t filed that class action yet. My attorney advised me to let Aclu do all the leg work and just let it play out….after 25 yrs of this though it’s hard to be patient…
This is what I keep trying to tell everyone. What is the definition of insanity?? Yeah, I think we all know that by now. So then, why do we continue to find relief in the same system that caused the burden to begin with? Why would they admit that they are wrong? It’s like a 19th century slave going to his master asking him if he would relieve him of the burdens that he himself placed on him. I don’t understand what makes us think that playing by the rules of THEIR system and THEIR laws is going to give us any relief at all. And if we do get any small victories, it takes years and years to even get the ball rolling. And then the rulers of the system, just drag things out and prolong our misery under the current rules/laws that are in place that they make us obligated to abide by……maybe it’s just time to change the rules and change the system. Think outside the box. Put pressure on these people, take away their money source, etc.. Good places to start.