Carr v. United States

This case turns on whether or not the Sex Offender Registration and Notification Act (“SORNA”) may apply to sex offenders who traveled interstate before SORNA’s enactment.

I. Interpreting the Statute

A. The Rules of Statutory Interpretation

Petitioner Thomas Carr argues that statutory interpretation of SORNA requires that travel only include travel that occurred post-SORNA.  First, the rule of lenity dictates that courts will resolve any ambiguities in a statute to favor criminal defendants where a harsher interpretation cannot be clearly supported as correct.  Carr also points out that the principle of the presumption against retroactivity applies.  Accordingly, courts will avoid interpreting any statute to apply retroactively unless the statutory language clearly authorizes it.  Carr maintains that the Seventh Circuit incorrectly stated that the presumption against retroactivity only exists through the ex post facto clause of the Constitution.  Carr cites the Supreme Court’s holding that the presumption applies independent of the Constitution. 

Respondent United States insists that neither the rule of lenity nor the presumption against retroactivity apply in this case.  The United States points out that the rule of lenity only applies in cases where there is a “grievous ambiguity” in the statute’s meaning even after looking at the statute’s context and structure, which is not the case here.  Furthermore, the United States emphasizes that the rule of lenity is usually only used in cases where the underlying conduct is otherwise seen to be innocent.  In this case, Carr’s failure to register is a clearly wrongful act, regardless of when the travel took place.  The United States also maintains that, in the context of statutory interpretation, the presumption against retroactivity is no broader than the ex post facto clause.  In particular, the United States notes that the Supreme Court previously held that a statute does not automatically become retroactive because it is applied in a case where the conduct in question pre-dated the law’s enactment. 

B. Textual Interpretation

Carr argues that the word “travels,” as used in SORNA, must be interpreted in the present tense and thus cannot be made applicable to travel that had already occurred.  The Supreme Court has repeatedly held that present-tense verbs used in statutes cannot be made to apply to past acts, as according to common English usage.  Furthermore, Carr argues that the Dictionary Act, in which Congress specifically provided that words used in the present tense would include the future and the present, excludes by implication, past acts or events.  Carr maintains that the context of SORNA’s text as a whole implies that the word “travels” was meant to refer only to present and future acts, especially considering that Congress purposely delegated authority to the Attorney General to specify the retroactive effect of SORNA’s civil registration requirement but not the others.  Carr also points out that interpreting SORNA to include pre-SORNA interstate travel can lead to an absurd result because there are otherwise no limitations placed as to when that travel took place, so it could conceivably refer to interstate travel made at any time in a defendant’s life. 

In contrast, the United States argues that when interpreting the present-tense verbs used in SORNA in light of their context, the interstate travel cannot apply only to travel occurring after the enactment. The United States maintains that the only sequence required by SORNA is that of a conviction giving rise to a registration requirement, subsequent interstate travel, and a failure to register.  Beyond this sequence, the United States insists that the travel can occur before or after the enactment of SORNA.  The United States counters Carr’s reference to the Dictionary Act, by pointing out that the Dictionary Act’s clarification of the meaning of the present tense expressly provides for exceptions when the context calls for it. 

C. The Statute’s Purpose

Carr maintains that interpreting SORNA’s travel element to apply only to post-SORNA interstate travel is fully consistent with Congress’s purpose in enacting the statute.  Carr emphasizes that Congress intended for SORNA to correct the problem of loopholes in the earlier sex offender registration statutes by imposing uniform standards for the registration programs in the different jurisdictions.  Carr argues that making SORNA applicable to pre-enactment travel would have no effect on SORNA’s implementation, because unregistered sex offenders who have traveled in interstate commerce are no different from unregistered sex offenders who have not because both would still be subject to the state registration laws. 

However, the United States insists that including pre-enactment travel would further SORNA’s purpose.  The United States emphasizes the fact that Congress expressly mentioned interstate travel as being the primary way in which sex offenders avoided the state registration requirements. The United States affirms that the best way to register unregistered sex offenders would be by making SORNA immediately applicable, instead of waiting for them to cross state lines and fail to register again.  Furthermore, by enacting SORNA in the first place, Congress clearly demonstrated that it did not believe state enforcement of registration requirements was adequate to enforce SORNA. 

II. The Ex Post Facto Clause

Carr argues that interpreting SORNA to cover pre-enactment travel could violate the ex post facto clause in several ways.  First, if SORNA requires nothing more than registration under the pre-existing registration laws, then applying SORNA retroactively increases the punishment for the already-existing crime of not registering under the applicable state registration law.  The Supreme Court has already held that a law which applies to events that happened before its enactment and disadvantages the offender affected by it, violates the ex post facto clause.  Alternatively, if SORNA actually requires a different duty than the one required by the pre-existing registration laws, then applying SORNA to pre-enactment travel would violate the ex post facto clause by not giving Carr or anyone in a similar situation an opportunity to avoid liability for the new felony created by SORNA.   Carr emphasizes that the Supreme Court has previously held that any statute that denies an affected person the chance to avoid liability by altering his conduct violates the ex post facto clause and the Due Process clause.  Carr specifically points out that the Attorney General’s retroactivity regulation when combined with the statutory text would give him no opportunity to register, making him immediately guilty in a clear violation of the ex post facto clause.  Carr notes that the Seventh Circuit’s reading into SORNA a reasonable time period in which to register was entirely a judicial invention and invalid.  Carr stipulates that the only way to avoid an unconstitutional result is to interpret SORNA to apply only to post-enactment interstate travel. 

However, the United States maintains that the ex post facto clause is not violated, because the conduct that is criminalized is the knowing failure to register, and that could only have happened after SORNA was enacted.  The ex post facto clause applies only where the criminalized conduct was completed before the law’s enactment but not where, as in this instance, only some part of the conduct occurred before the law’s enactment.  The conduct that is punished is not simply the same as failing to register under the pre-existing statutes but, as SORNA expressly provides, failing to register or update a registration “as required by SORNA.”  The United States also emphasizes that Carr was not made immediately guilty upon the Attorney General’s retroactivity regulation, but was only found to have violated SORNA some months after the regulation was passed.  In particular, the United States notes that the Seventh Circuit found Carr to be guilty of violating SORNA only because he had not complied with its requirements after a “reasonable time” had passed.