« SCOTUS back to work, with lots of crime (but not much punishment) on the docket | Main | "Italy appeals court clears Knox of murder" »

October 3, 2011

Sex offender standing before SCOTUS this morning in Reynolds

As explained in this helpful SCOTUSblog post, the Supreme Court is hearing arguments this morning in a sex offender case to kick of the start of its new Term, but what is at issue seems quite narrow and of limited long-term consequences.  The case is Reynolds, and here are the essentials:

In Reynolds v. United States, the Court will consider a surprisingly narrow issue: standing. In particular, the case asks whether a sex offender who was convicted before SORNA’s enactment has standing to challenge the Attorney General’s rule that applies SORNA’s registration requirement to pre-enactment offenders.

SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies. It provides that a sex offender’s failure to register, or to keep registration current, itself constitutes a federal crime. Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA’s registration requirements apply to sex offenders who were convicted before SORNA’s enactment...

The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment.   Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law.

In November 2007, Reynolds was charged and indicted with violating SORNA’s registration requirements after he moved to Pennsylvania without updating his registration. He moved to dismiss the indictment, arguing — among other things — that the Attorney General’s rule violated the APA.   The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss.   The Third Circuit affirmed, ruling that SORNA’s registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General.  The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it.  (It is not clear if this case involves formal Article III standing, or “standing" in its more colloquial sense.   But it doesn’t matter: either way, Reynolds has to show that he had some stake in the Attorney General’s rule.)  This appeal followed....

[T]his case is not framed to present the more interesting constitutional issues around SORNA. The Court will almost surely limit its ruling to the precise standing issue here. Given all this, we might wonder why the Court even agreed to hear the case. It’s likely that the Court just needed to resolve a circuit split — a simple explanation for a surprisingly narrow case.

I share the view that Reynolds is a "surprisingly narrow case" — I am even inclined to call it annoying narrow given all the broader constitutional and statutory issues that surround SORNA.  That said, I suspect today's oral argument and the ultimate ruling in Reynolds could provide some hints as to how various Justices view SORNA and its many notable "big federal government" elements.

October 3, 2011 at 09:30 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Sex offender standing before SCOTUS this morning in Reynolds:


Doug, I'll read the argument transcript tomorrow. Reynolds might be more significant than the post suggests. I have several clients who want to sue to get out from under registration requirements for offenses occuring before the date of enactment of the statute.


Posted by: bruce cunningham | Oct 3, 2011 9:45:35 AM

Scalia seems to have issues with the statute and the AG's actions.

Posted by: federalist | Oct 3, 2011 5:04:01 PM

LOL what it shows me is the USSC is doing everyting BUT handstands to keep from being forced to go back and loook at that 2002 decison that made the registry legal. Since they know if they intend to keep any respect for law and order at that point they will have no choice but to rule the ENTIRE sytem is in fact in law an ILLEGAL RETROACTIVE PUNISHMENT!

based on what they said in 2002 was a legal regisry and what they ALSO SAID would have MADE IT ILLEGAL! AND at that point...all the hate filled little nazi's can wave BYE-BYE to it! for anyone convicted before it's passage in their assorted states and the federal law!

as for the assinine question about standing...how stupid can they get! he's GOING TO JAIL based on the law....sounds like a HELL OF A LOT OF STANDING TO ME!.....of course if it's not! guess he can just go back to that old fallback standing...If your govt ignores you...REMOVE IT!

Posted by: rodsmith | Oct 3, 2011 6:12:09 PM

No one appears especially enthusiastic about the government's position which is rather Pretzel.

Indeed, SCOTUS could be interested in finding SORNA unconstitutional -- ex post facto -- even if the DOJ could decide if it should be retroactive. Basically one person at the DOJ made that decision and she testified once before Congress.

Posted by: Old Anon | Oct 3, 2011 6:18:47 PM

sorry Old Anon but if this bunch of nazi's on the bench right now were interested in the CONSTUTION they would not have ruled the way they did with carr and any number of other cases the last few years.

the buch we have now are just another rubber stamp for the govt!

Posted by: rodsmith | Oct 4, 2011 12:22:40 AM

I found this article very complicated but interesting and will go for thinking about this later on.

Posted by: John | Oct 4, 2011 4:08:33 AM

I have read the SCOTUS transcript. It seems to me that everyone is missing a crucial point. In the compromise to get the states on board this legislation they had to add in the part about the AG having the authority to decide who goes in for older crimes. The thing is is that the states wanted that in there so that they did not have to spend BIG bucks hunting down all the old out of system SO's. But the individual states are the only ones with registries, so the AG's of the STATES ( jurisdictions) are the ones best suited to make those decisions ( so thought the states and pushed for that language to get in the bill). This way they don't get those tax dollars pulled out of their hands buy Uncle Sam's AG.

But if this is the case, is Federalism really the issue at hand?

Posted by: bigFed | Oct 4, 2011 10:45:30 AM

I read the transcript from this case, I don't think either side came off particularly good. The petitioner's council seemed unprepared and the government lawyer seemed like she had to argue a loser of a position, was doing the best she could, but just couldn't muster much enthusiasm for the task.

I suppose it might be different on the audio rather than the printed transcript, but that's sure how the argument read to me. And more than just Scalia seemed trouble by the idea of the AG being able to make the classification call. I think Reynolds will be found to have standing to challenge the rule, but that won't help him if the court (either SCOTUS or the lower court on remand) determines that the delegation was proper.

Posted by: Soronel Haetir | Oct 4, 2011 7:23:39 PM

i don't think that the statute delgates the crime to the AG. SORNA is primarily about setting up a registration system, one that congress hopes actually works, after a couple of unsuccessful tries (so far, they seemed to have missed again). as a part of SORNA, congress created a crime for not complying with the requirements of the registration system---congress defined the crime and it defined who would be liable, those who were required to and failed to register or update. but most of SORNA, including 16913 is about the registration system. in the hopes of getting a workable system this time, which would include an adminsitrative decision about how to reregister (or not) and how to best account for offenders convicted before july 27, 2006, congress granted the AG some flexibily in setting up and running the system. this is hardly unusual. the AG does not get to say who is a criminal or to define the crime, the AG merely gets to set up the registration system in a way that is administratbly workable and in accordance with the general outlines expressed by the statute. if, as he did, the AG determines that he registration system should include prior offenders, then he sets out the way (specifies the applicability of) the registration system to those prior offenders. he does not define the crime; he does not define those who violate the criminal provision; he simply defines, as congress in setting up the program wanted him to, who must register in the civil program. i don't think that is an unconstitutional delegation. i do think it means reynolds is correct.

Posted by: big bad wolf | Oct 6, 2011 11:07:47 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB