Tuesday, January 6, 2015

More Bad News for Sex Offenders

The Tenth Circuit published a decision in United States v. Nichols last week.
Briefly, the case involves the Sex Offender Notification and Registration Act ("SORNA"). That provision requires a sex offender to register in, inter alia, the jurisdiction in which the offender "resides." But in United States v. Murphy, the Tenth Circuit tortured this statutory language and held that an offender who moves to a foreign jurisdiction (not covered by SORNA) must register in the jurisdiction in which he "resided." If anyone understands the decision in Murphy, you are doing better than us. And better than Judge Lucero, who dissented in Murphy. And better than the Eighth Circuit, who disagrees with Murphy. And better than Judge McKay, who concurred in this most recent decision affirming Murphy to note that Murphy is, indeed, just plain wrong.
We keep it brief on this issue because we cannot imagine a world in which the decision in Murphy is allowed to stand. Either the Tenth Circuit sitting en banc, or the Supreme Court, will have to step in. And perhaps the intervention will happen in Nichols. As a practical matter, if you have a SORNA case involving foreign travel and a failure to register in the former jurisdiction (i.e., where the defendant moved from, or used to reside), preserve this issue. You'll have to concede error in light of Murphy, but, again, preserve the issue for further review. Who knows, you might find yourself in Washington D.C. if you do.  
The decision in Nichols does one other thing: it rejects a nondelegation doctrine challenge to SORNA. This is the argument that Congress essentially violated separation of powers principles when it allowed the Attorney General to determine whether SORNA applied to pre-enactment offenders (i.e., people who committed their underlying sex offenses prior to SORNA's enactment). The idea is simple: those who enforce the law should not also define its reach. We think it is a great argument, and a Justice Scalia dissent seems to agree with us, but no court of appeals appears willing to step up to create the typically necessary split in the Circuits to warrant SCOTUS review (for its part, the Tenth in Nichols at least noted that the delegation was "puzzling"). We'll keep raising the issue. It makes too much sense to abandon just yet.   

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