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June 1, 2010

Some intriguing who and how dynamics in the Carr ruling reversing sex offender's SORNA conviction

The substance of the Supreme Court's opinion this morning in Carr (basics here), which reverses a sex offender's failure-to-register federal conviction, is mind-numbing even for hard-core sentencing fans.  The decision is focused only on statutory interpretation: he majority declares that the criminal statute, 18 USC § 2250, does not apply to sex offenders whose interstate travel occurred before the effective date of the Sex OffenderRegistration and Notification Act (SORNA); the dissent contends that SORNA's statutory text should be read to reach preenactment as well as postenactment travel by sex offenders.  Along the way, we learn about congressional legislative drafting manuals, and the dissent even provides a remarkable sting cite to nine state legislative drafting manuals (with parentheticals).  Woo hoo!

Despite the drab substance of the Carr opinions, the authors, votes and approaches in the Court's work here merits comment and reflection:

First,it is interesting and notable that the two former prosecutors on SCOTUS, Justices Sotomayor and Alito, wrote the majority and dissenting opinions.  It is likewise interesting and notable that the two female Justices also split in this case.  I cannot help but suspect that the sex offender context may have prompted Justice Ginsburg to be less sympathetic than usual to the appealing defendant here.

Second,it is interesting and notable that the majority opinion by Justice Sotomayor relied a bit on legislative history, but did not mention statutory construction canons like the rule of lenity and constitutional doubt, to reach a pro-defendant statutory ruling.  This strike me as backward because I think Congress likely wanted SORNA to have a very broad reach, yet I also think pro-defendant statutory construction canons should be the chief way to force Congress to be very clear with its statutory text when it wants a criminal statute to have a very broad reach.

Third,it is interesting and notable that Chief Justice Roberts did not join Justice Scalia's brief concurrence complaining about the majority's reliance on legislative history, and also that Justice Alito's dissent also played up legislative history to some degree.  It seem that Justice Scalia's antipathy for reliance on legislative history is not gaining any new converts among the new Justices.

Fourth, both the majority and dissent note lots of circuit splits and lots of potential constitutional concerns with aspects of SORNA that are not directly addressed in the Carropinion.  I think this means we can and should expect a docket filled with at least a SORNA case or two in many future SCOTUS Terms.

June 1, 2010 at 11:31 AM | Permalink


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Can you please provide your analysis of this decision in so far as its effect on those caught up in these SORNA laws. It seems to only apply to interstate travel but certainly it should have an impact on future court rulings on retroactive application on the state level? Can you interpret anything from this ruling with regard to what it means for those who did not travel interstate but are still registered retroactively?

Posted by: constitutionalfights | Jun 1, 2010 2:54:55 PM

Yes, more analysis if possible, please!

Posted by: tbucket | Jun 2, 2010 11:13:20 AM

Yet another sign of what's become of the justice (sic) system that the Supreme Court can only muster six votes against an ex post facto law.

And to think that millions of Americans labor under the civics-class delusion the Constitution protects them from just this sort of thing. Breathtaking.

Posted by: JohnK | Jun 2, 2010 5:38:50 PM

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