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February 24, 2010

Today's SCOTUS sex offender Ex Post oral argument transcripts

Thanks to a delay at LGA on my way out of dodge (and also my friends cut-and-paste and posting by SCOTUSblog), I now have a chance here to post in this space the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341).  I fear I won't have a chance to read these transcripts for a while, but perhaps readers can use the comments to note any important highlights.

February 24, 2010 at 04:31 PM | Permalink


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As for Carr, I invite readers to take the discussion that occurred during Rothfeld's first portion and every time the words "sex offender" appear replace those words with "homosexual," "woman who had an abortion," or "Catholic." If you are not profoundly frightened, you didn't pay attention.

I'm also troubled by the idea articulated by Gannon and seemly accepted without much debate that the Ex Post Facto Clause amounts to, in practice, nothing more than a "grace period".

Posted by: Daniel | Feb 24, 2010 7:35:09 PM

i'm with you. this lawyer they got to defend carr is an idiot.

Posted by: rodsmith3510 | Feb 24, 2010 11:47:52 PM

Carr was a very interesting oral argument. I predict (although not confidently) he will prevail.

Reading Marcus, on the other hand, made me feel bad for Mr. Marcus's counsel. I predict a unanimous (or 7-1) reversal and remand.

Posted by: DEJ | Feb 25, 2010 12:45:20 PM

I dunno Daniel, isn't the difference that a sex offender is someone who has committed a crime, while it's not illegal to be a Catholic, homosexual, or woman who's had an abortion? I get that you think sex offender laws are overly harsh, and I agree to an extent. But if you really think the average American is going to be "profoundly frightened" by a strained comparison between people who have committed sex crimes and people who fit into other random cultural groups that might be persecuted but mostly aren't in modern America, you're going to be disappointed.

Posted by: Jay | Feb 25, 2010 2:46:11 PM


Really? I think you are ignorant of history. Taken as a whole, America has persecuted homosexuals more than it has lauded them. People are not killing abortion doctors because they have a profound love for women who have abortions. Please. These social groups are not currently disadvantaged, I'll grant you that. But these are groups that have been disadvantaged in the past. These comparisons sound strained only to someone who has there head buried in the sand or who who is so foolishly optimistic as to think nothing can ever change.

Posted by: Daniel | Feb 25, 2010 3:48:52 PM

Daniel--Ok, homosexuals have suffered a lot in American history, and some people don't like women who've had abortions or Catholics.
I still don't really understand what you think your examples prove in the context of SORNA. Your theory is that we can't impose (through law) undesirable consequences on any group, because we might also do those things to other, totally unrelated groups, and that would be much less defensible? I guess we might, but that's why we have a legislative and legal process--to determine which distinctions are legitimate, and which are not. I don't have a lot of trouble distinguishing between people who have committed sex crimes and people who are members of a particular religion, or have exercised the constitutional right to have an abortion, and neither do the courts. Obviously there can and should be debates at the margins of what qualifies as a sex offense, etc. But you seem to subscribe to some odd brand of moral relativism where all distinctions between groups of people are equally invalid, regardless of their basis.

Posted by: Jay | Feb 25, 2010 4:31:42 PM

Both cases are highly technical.

Carr is about how far into a sequence of events that constitutes a crime you must be in order for the criminalization of your conduct to constitute a crime. Daniel's argument goes to the "why" of the registration requirement, not to the far more technical issue of when a new federal law requires a sex offender required to register in one state to register in another state. No one doubts that if the crime and travel had taken place after the enactment, that the crime would be appropriate to punish. But, making it a crime to fail to take an affirmative bureacratic action within a few months of a new AG opinion requiring you to do so, when the actual predicate conduct by you other than inaction took place before the law was passed is pretty problematic.

I'm also quite troubled by the delegation doctrine issues of Congress expressly delegating to the AG the right to decide after the law is enacted whether it is prospective or retroactive. This isn't the sort of decision that Congress ordinary expressly delegates to someone. The executive or judicial branch may have to decide the issue as a matter of interpretation when it isn't clear what was intended, but that is different from Congress expressly passing the buck. The argument that Congress can't pass the buck and that ambiguities go in favor of the defendant seems quite appropriate from a democracy reinforcing view of what is fundamentally a political document. Congress has to be held politically responsible for the laws it enacts, which it can't do if a decision dramatically impacting its scope is left to be resolved with no legislative guidance as a matter of pure executive law making discretion.

Marcus certainly seems to be mostly a victim of his own attorney's malpractice in an area of the law (the effective date of the charged crime) that the client had no reasonable reason to be aware of. Either his lawyer made a serious mistake that he didn't realize until too late, or his lawyer was reckless in trying to allow error to persist. The conduct by Marcus was from 1998-2001, and the law became effective sometime in 2000. But, the lawyer didn't do anything to preserve the issue at trial or in jury instructions.

Right now, the case is in a Federal Rule of Criminal Procedure 54 posture, so the issues are plain error and substantal impact. One has to figure out which of the many related errors of the defense counsel were plain. Was it plain error not to object to the evidence coming in, or only plain error not to insist on a jury instruction about the effective date, for example?

But, this is a case where ineffective assistance of counsel really seems like a better frame for understanding what happened and producing a sensible result. Sotomayor's U.S. Court of Appeals ruling seems to recognize this twist.

If the defense attorney had objected in a motion in limine on the grounds that the conduct from 1998 through part of 2000 was not implicated by the statute, and that only conduct from the effective date in 2000 through sometime in 2001 was criminalized, the trial probably would have looked considerably different. Either the jury would have seen only the tail end of conduct, or the jury would have been instructed that a large part of the evidence provided to them was legal at the time and cannot form a basis for a conviction, which would undermine a lot of the moral fervor to convict in their deliberations. If the jury thought that the situation was initially non-consentual, but had come to be accepted and was no longer involuntary servitude by the end of the relationship, they might acquit.

The S&M subculture is so far out of the norm that it is hard to have much intuition for what was going on without a real close read of the evidence.

Posted by: ohwilleke | Feb 25, 2010 4:59:20 PM


"I guess we might, but that's why we have a legislative and legal process--to determine which distinctions are legitimate, and which are not."

Ah, so. But we don't just have a legislative process. We have a constitutional process too. The legislative process doesn't exist isolated and distinct from the judicial process. You seem to have this odd notion that the different branches of the government never interact with each other. I don't agree. To say that one can substitute "catholic" for "sex offender" in that conversation and the only possible recourse is the legislative process is to enter into the twilight zone.

Corey Rayburn Yung over at Sex Crimes picks up on this point when he says that "Carr conceded too much about SORNA". That was my point. What's troubling about the whole conversation in Carr is that it works from the fundamental presumption that the judicial branch doesn't have any say at all. I think that's plainly wrong.

Posted by: Daniel | Feb 25, 2010 5:17:16 PM

The real issue is not 100,000 thousand missing sex maniacs. The issue is if the law is dumb or not. Is there rational basis enough to overcome contempt for the law? That is what the weighing should be. The issue isn't even sex offender laws but is how dumb can laws be? Of the 100,000 missing sex maniacs how many were missing so they could hide and commit more crimes? In other words, how many arrested for the fed failure to register charges were also charged with other current sex crimes? Very few, but if it saves just one child.... And of those that were charged with other sex crimes, if any, wouldn't those sentences overshadow the failure to register offenses in terms of length of sentences? While there could very well be a rational basis for law enforcement knowing and sharing any and all criminal history information, that information need not be so publicly wide spread that it does more harm than good. How many children were actually saved by the registry? And if any were, wouldn't a law enforcement registry accomplish the same goal if it were accessed by the public on a need to know or police line-up basis? That is what England decided after studying our laws.

The briefs are very good, but the oral argument was more like everyone in the room ignoring the elephant while it took it crap. Another justice did bring up the due process possibility that is not before the court. I would also argue there is a clear and powerful distinction between the possession of guns or alcohol after they are illegal and further punishment after someone surrenders all their constitutional rights and pleads guilty. That is, or should be, the heart of the ex post facto issue.

Posted by: George | Feb 25, 2010 5:17:39 PM

I said legislative "and legal" process, because I was specifically thinking of constitutional issues as well as policy ones (I also think that legislators should follow the Constitution, fwiw). I never argued that there should be no judicial review, or even said who I thought should win this case (I really don't have a well-formed opinion). As long as we are talking about the Constitution, though, I'm pretty sure there is a constitutional basis for distinguishing between one's religion and one's status as a convicted sex offender. Really, I just think you should cut back on the hyperbole and straw-man arguments a bit, and address the particular issues at hand.

Posted by: Jay | Feb 26, 2010 1:42:55 AM

better look again jay. if you go by the u.s constitution every law passed in the last couple of decades covering sex offeners is illegal based on it.

instead of homosexual, or cathorhlic or whater....substatude


in laws about sexcrimes and see how legal they are then. THEY AREN'T

the constituin is pretty plain when it state's no "no expost" laws are allowed PERIOD

there is no exception in it for so-called "civil laws"

just like the illegal so-called "civil comitment laws" There is no way any normal person with a brain could possbily think it's even close to legal to say someone is sane enough to have a trial; a convictin; serve a sentence; and THEN only at the end of that say WHOA! sorry your crazy you can't leave.

Posted by: rodsmith3510 | Feb 26, 2010 2:48:34 AM

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