Carr v. United States

In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act (AWA). Title I of the AWA, the Sex Offender Registration and Notification Act (SORNA) was designed to make state sex offender registration systems standardized, comprehensive, and more effective. Part of SORNA, 18 U.S.C. §2250, makes it a federal criminal offense for a sex offender who “travels in interstate or foreign commerce” to knowingly fail to register or update his/her registration.

Thomas Carr, the petitioner, pleaded guilty to first-degree sexual abuse in Alabama state court in May of 2004; receiving credit for time previously served Carr was released on July 3, 2004. Following his release, Car registered as a sex offender in the state of Alabama. Sometime in 2004 or 2005, prior to SORNA’s enactment, Carr moved to Indiana where he subsequently failed to register as a sex offender. After being involved in a fight in July 2007, Carr was identified as a sex offender and indicted for failing to register as outlined in §2250. Carr argued that the indictment violated the Constitution’s ban on ex post facto laws, laws that change the consequences for past actions, because his travel occurred prior to SORNA’s enactment. The District Court for the Northern District of Indiana dismissed Carr’s claim. Carr consequently entered into a conditional guilty plea. The 7th Circuit Court of Appeals combined Carr’s appeal with another defendant who argued that §2250, by its terms, did not apply to travel prior to SORNA enactment. The 7th Circuit disagreed and held that §2250 applies to interstate travel that occurred prior to SORNA’s enactment and that the ban against ex post facto laws was not violated as long as the defendant had adequate time to register after SORNA was enacted. This decision was in conflict with a 10th Circuit Court in United States v. Husted, which had previously held that “Congress’ use of the present tense form of the verb “to travel” … does not refer to travel that has already occurred” thereby removing registration requirements for pre-SORNA travel from registry requirements.

To resolve these conflicting interpretations of §2250, the Supreme Court needed to decide whether §2250 applies to pre- SORNA travel and if so, was there a violation of the Constitution’s prohibition on ex post facto laws. On June 1, 2010, the Supreme Court, by a vote of 6-3, determined that §2250 did not apply to travel that occurred before SORNA was enacted, making it unnecessary to address the ex post facto question.    

Court Reasoning

Section §2250 has three requirements. First, a person who is convicted of a sex offense requiring registration on a sex offender registry must register. Second, the sex offender engages in interstate travel. Third, a sex offender knowingly fails to register in the new state of residence. The court agreed with Carr’s interpretation - both interstate travel and failure to register must occur post-SORNA. Central to the Court’s reasoning is that the registration requirements under SORNA went into effect after enactment and because the requirement to register comes sequentially before interstate travel, offenders cannot be punished for failing to register for travel occurring before SORNA.   The Court also reasoned that because the statutory language was written in the present tense, Congress did not intend for the statute to apply to pre-SORNA travel.

The dissenting opinion by Justice Antonin Scalia explains that the purpose of SORNA is to track down missing sex offenders who have skirted around registration requirements by moving from one state to another. It does not make sense for §2250 to only apply to offenders who are unaccounted for at present when they decide to move again because this would frustrate SORNA’s very purpose.

Implications to the States

This statute makes it a federal criminal offense for an offender who is under an obligation to register when engaging in interstate travel to knowingly fail to register in their new state when such travel occurred after the enactment of SORNA.  The Court restricted its opinion to travel only and did not address the broader questions of whether SORNA itself is an unconstitutional ex post facto law or whether an offender convicted prior to SORNA’s enactment must register. As such, the state impact of this ruling has minimal state impact.

For more information, please contact Susan Parnas Frederick, Jennifer Aguinzoni or Sean Kelly or contact them at (202) 624-5400.

NCSL did not submit a brief in this case.

To read the opinion of the court, follow this link.

Posted June 4, 2010.