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January 24, 2009

Revised article keeping up with all the SORNA litigation

Corey Yung notes here that he has a new draft available here via SSRN of his article, "One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions."  This draft has been updated the article to reflect all of the district and circuit court opinions that have addressed SORNA issues recently.  Here is the abstract:

In 2003, the United States Supreme Court issued its only two opinions regarding the constitutionality of sex offender registration and notification statutes. The two opinions, Smith v. Doe ("Smith") and Connecticut Department of Public Safety v. Doe ("DPS"), upheld the Alaska and Connecticut registry and notification laws against Ex Post Facto Clause and due process challenges. Three years later, the federal Sex Offender Registration and Notification Act ("SORNA") was passed as part of the Adam Walsh Child Protection and Safety Act.  The federal statute was very different from the state statutes that the Court reviewed. Most notable among the differences was the creation of the federal crime of "failure to register" which was punishable by up to ten years imprisonment.  Despite the significance of the disparities between the state and federal laws, district courts across the country have virtually rubber stamped the criminal provisions of SORNA as constitutional. The district courts' reasoning has been almost entirely based upon superficial, mechanical applications of the Court's decisions in Smith and DPS.  This article contends that most district courts have been severely misguided in reading the two Court opinions and the statutory provisions of SORNA.  Consequently, this article concludes that either Congress should amend SORNA or courts should strike down portions of SORNA on Ex Post Facto Clause, due process, and Commerce Clause grounds.

January 24, 2009 at 07:12 AM | Permalink


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Though only a District appellate ruling, People v. Zaidi, 147 Cal. App. 4th 1470 appears to support the ex post facto argument:

The issue before us is the necessary content of a change of plea advisement when a lifetime obligation to register as a sex offender may be imposed upon a defendant under Penal Code section 290, subdivision (a)(2)(E).

Following a negotiated plea, defendant Shamin Zaidi pled no contest to one count of misdemeanor lewd conduct in a public place (Pen. Code, § 647, subd. (a)). 1 He was sentenced to three years’ supervised probation and required to register as a sex offender pursuant to section 290. . . . He contends he should be allowed to withdraw his plea because he was not informed that registration is a lifetime requirement.


In light of (1) defendant's prompt effort to withdraw his plea on the grounds of lack of advisement, accompanied by his specific declaration that he would not have entered a plea had he known of the lifetime registration requirement; (2) the format of the oral sentencing and written probation forms that misleadingly suggested that the registration requirement was for the duration of probation only; and (3) the absence of evidence that defendant was made aware that registration would be for life, we conclude that defendant met his burden of establishing prejudice from the court's failure to advise that a consequence of his no contest plea would be lifetime registration as a sex offender. Under the totality of these circumstances, the denial of his motion to withdraw his plea was an abuse of discretion.


How many did not plead guilty in federal court and therefore had no notice of federal consequences?

Posted by: George | Jan 24, 2009 1:26:20 PM

Dear Mr. Berman my name is Clayton Collins, can you tell me if this ruling applies to persons convicted at trial? or just those who plea.

Posted by: clayton collins | Nov 6, 2010 10:07:53 AM

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