We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DAY OF RECKONING APPROACHING FOR FEDERAL SEX OFFENSES?

The tide has been slowly turning for federal sex offenses, especially for downloading child pornography, in the past several years. First, several circuits have questioned whether the Guidelines for sex offense should be taken seriously, because they were the result of Congressional tinkering instead of expert evaluation. Then, the well-accepted “fact” that 80% of sex offenders repeat their crimes was exposed as a baseless assertion that had been repeated until even the Supreme Court believed. Finally, the offender registration laws of several states  – Michigan,  Pennsylvania and Colorado, specifically – have been rejected by federal courts as unconstitutional punishment.

Last week, the Supreme Court granted certiorari in Gundy v. United States, a Sex Offender Notification and Registration Act case that asks whether the law improperly delegates to U.S. Attorneys general authority to decide whether registration requirements should apply to sex offenders who were convicted before SORNA was passed. Gundy argues that only Congress 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.

In an opinion piece published last Monday, The Hill criticized SORNA as “violating our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.”

Gundy v. United States, Case No. 17-6086 (cert. granted Mar. 5, 2018)

The Hill, The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal (Mar. 5, 2018)

– Thomas L. Root