On October 2, 2018, the Supreme Court of the United States is scheduled to hear oral arguments in Gundy v. United States, A “sex offender” case.

Reporter Amy Howe on SCOTUSBlog described the issue in the case as, “whether the law improperly delegates to the U.S. attorney general authority to decide whether SORNA’s registration requirements should apply to sex offenders who were convicted before SORNA was passed. Only Congress, Gundy says, has authority to legislate; it can, to at least some extent, outsource this power to another branch, but if it does so it must provide “clear guidance” – which it has failed to do with SORNA.”

The outcome of this case, which can potentially impact the hundreds of thousands of individuals whose convictions pre-date the passage of SORNA (a/k/a Title I of the Adam Walsh Child Protection and Safety Act of 2006), can be huge.

In lay terms; when SORNA was passed in 2006, Congress did not specify whether it would be applied retroactively or only to individuals who committed offenses thereafter. They left it up to the US Attorney to decide (as we know, the US Attorney decided it will apply retroactively). Leaving that decision to the US Attorney is not permitted according to the “non-delegation doctrine”, which says that Congress cannot delegate its legislative powers to agencies. In other words; the US Attorney cannot be both the law maker and the law enforcer.

The immediate best possible outcome is that the SCOTUS finds that SORNA cannot be applied retroactively, but don’t get too excited… You might be thinking, “can’t Congress simply follow up the decision in Gundy with “SORNA 2”, which expressly orders it be retroactive or pass some other Act directing the laws to apply retroactively?

Yes and no…

Yes, Congress can attempt to pass a law they will undoubtedly declare will “correct a loophole that sex offenders are trying to exploit” and try to get some traction out of that buzz-phrase.

But…

Herman Gundy and anyone else whose offenses took place pre-SORNA but were later charged with violating a registration requirement under SORNA, might be exonerated. So that’s a good potential win.

And, if Congress decides to take another crack at SORNA, we get another crack at Congress! Armed with a dozen years of research and studies (yes, it’s been 12 years since SORNA) showing SORNA’s failures, we have an opportunity to work with legislators to try and fix this bad law, apply it only prospectively or (maybe this is wishful thinking) scrap the whole thing! That’s a good potential win too.

And also, this case will force the SCOTUS to hear about the horrible mistake they made in Smith v. Doe (2003). So far there have been ten (10) Amicus Briefs filed in the case, all in favor of Gundy. One, in particular, a “Brief of Scholars Whose Work Includes Sex Offense Studies”, that was written by the leading experts in sex offense research, represents the voice of 900,000+ people required to register as sex offenders! A copy of the brief can be read here: https://www.supremecourt.gov/DocketPDF/17/17-6086/48963/20180601161907751_17-6086%20tsac%20Scholars%20Whose%20Work%20Includes%20Sex%20Offense%20Studies_A-2b.pdf

We have been waiting for a case to come before the Supreme Court that will compel them to consider their “frighteningly high” statistic is frighteningly wrong! This might just be that case.

Share This

Let's Spread Truth

Share this post!