Effective district court review of SONRA enforcement issues

Though District Judge Paul Cassell will be stepping down from the bench in only a matter of weeks (details here), he is still producing effective sentencing rulings as he clears his docket.  Specifically, earlier this week he effectively reviewed the state of the law concerning enforcement of the recently enacted federal Sex Offender Registration Notification Act (SORNA) in US v. Gill, No. 2:06-CR-00725 (D. Utah Oct. 15, 2007) (available below).  Here is how Gill begins:

Defendant John Henry Gill, convicted of a sex offense in 2003, moves this court for an order to dismiss the indictment charging him with failing to register as a sex offender during September and October 2006 — as required by 18 U.S.C. § 2250(a) of the recently enacted Sex Offender Registration Notification Act (SORNA).  Mr. Gill alleges that, at least as applied to him, SORNA violates the Ex Post Facto Clause of the Constitution.  Mr. Gill raises two ex post facto challenges. He first argues that the Ex Post Facto Clause blocks any registration requirement for previously convicted offenders.   He also argues that, even if SONRA could constitutionally be applied to him, it did not in fact apply to him; he failed to register before the Attorney General had promulgated Interim Rules making SORNA’s criminal provision applicable to persons convicted before its effective date.  The court agrees with Mr. Gill’s second, narrow submission. Because SORNA did not apply to Mr. Gill until the Attorney General issued the Interim Rule in February 2007, and because his alleged failure to register predates the promulgation of that Rule, his indictment violates the Ex Post Facto Clause.  Therefore, the court grants Mr. Gill’s motion to dismiss.

Download cassell_gill_order.pdf

Footnotes 26 and 27 of this ruling spotlight that there is a very significant split of district court authority on the Ex Post Facto issue on which the defendant in Gill prevails.  Put more boradly, Gill highlights that SORNA is a piece of legislation that seems likely to divide lower courts on various consequential issues.