Countdown to ‘Gundy’

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.


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38 thoughts on “Countdown to ‘Gundy’

  • August 25, 2018

    my only question is if you plea out or go to trial ,when the court sentences you to say 10 yrs shouldnt that be be it? when you have to register for life doesnt that make it a life sentence?

    Reply
  • August 23, 2018

    i may be wrong here but my thought is if the people wearing black dresses rule that Gundy is correct that may help some people that were convicted on the federal level as each state enacted their own laws thus i don’t see this making a difference either way at the state level or i may be thinking about this incorrectly

    Reply
    • August 24, 2018

      Exactly. That’s what I said below.

      Even if it was a Federal case though, it is the individual states that put you on the registry and not the Federal Government. So I don’t see how a positive outcome in Gundy gets us any more than some good quotes to use on other issues we fight.

      Even IML and the Federal Housing Assistance that are denied to registrants are keyed off of being on a State’s registry. There is no such thing as a separate Federal Registry when all they do is get their data fed from the states.

      Reply
      • August 24, 2018

        The example you give; IML, is entirely federal. You can be prosecuted federally for failure to register.

        Reply
        • August 24, 2018

          I think his point is that the database which IML uses to compile lists of registered sex offenders is based on registry information from each individual state.

          Reply
      • August 24, 2018

        No matter what anyone “tries to say”, it is discrimination…Plain & simple

        Reply
        • August 24, 2018

          It’s all depressing nothing for florid Ian’s so we’re just stuck. All I want to know is about florida nothing else unless it impacts florida All I see are other states get relief while we get screwed

          Reply
    • August 24, 2018

      That is my feeling too. Unless the Supreme Court decides to expand the issue to conclude that such registries are, indeed, an additional punishment, AND that those laws can’t be applied retroactively, the case will not help most of us. It won’t even affect all of the people who were convicted in federal courts and were subsequently added the the sex offender registries in their home states. The real reason that the Supreme Court may have taken up this case in the first place was to play political havoc with the Legislative and Executive branches. Their final decision may not have anything to do with sex offender registries at all. It would take just a simple one-line bill for Congress to declare the federal registry retroactive, and make Mr. Gundy’s case moot.

      Reply
  • August 22, 2018

    Obama’s Attorney General Eric Holden is the one who made it retroactive.He made it illegal.I think this great news, If the court says yes it is wrong. They can get most of their power back,I rather have a Due process right to be on sex offender watch list then have some lawmaker who is afraid to do the right thing make a law to put me there. My crime was in 1989-90. Way before Megan, Adam Walsh and Sorna. I got hit with this crap when I was released from prison in 2001!!

    Reply
    • August 22, 2018

      Are you sure about that? I thought that former AG Alberto Gonzalez was the legal genius that declared these federal requirements to be retroactive. Blame Obama for the IML.

      Reply
      • August 23, 2018

        The timeline(2006) for Gonzalez seems more correct here than Holder.

        Reply
        • August 23, 2018

          I Apolized,It was indeed Alberto Gonzales from 2005-07 He left because he was accused of hiring and firing public officals who did not agree with him and warrant-less ease -dropping as well after 9-11 I am sorry but there was something to do with Eric Holden too and us as well Can’t think of why—- Sorry I was in prison at that time

          Reply
          • August 24, 2018

            I may be wrong, but I think Holder wanted to soften up the criminal justice system – or at least part of it when it came to simple drug offenses. On the other hand, the current AG wants to toughen it up even more – even simple drug offenses.

            Reply
    • August 22, 2018

      ” I rather have a Due process right to be on sex offender watch list then have some lawmaker who is afraid to do the right thing make a law to put me there. ”

      Agreed here. Due process would be nice.

      Reply
      • August 22, 2018

        Problem with due process is that the courts decide what due process is, often without regard to what the Constitution actually says.

        Reply
      • August 22, 2018

        @ Bobby yeah Due process is a day in court and jury!!!

        Reply
        • August 23, 2018

          @J.G in AZ

          Good enough for me. without due process, I’d still be on probation.
          I had it terminated early before my actual due date – and yes, against huge odds. All I want is a chance in court, Ill take care of the rest. lol

          Reply
          • August 24, 2018

            I agree here Bobby. The 25 year wait dictated by AWA for those designated sexual offender to have a chance in court to ask for relief from the registry is just plain ridiculous. It should be once you finish your sentence you can ask the sentencing court for relief. This should be based on an individual risk assessment. A case by case matter.

            Reply

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