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March 14, 2013

Third Circuit panel discusses at length all the problems with SORNA

The start of the Third Circuit panel's lengthy opinion today in US v. Reynolds, No. 08-4747 (3d Cir. Mar. 14, 2013) (available here), explains the current mess that is certain federal sex offender registration laws better than I could. Here goes (with footnotes removed):

This case returns to us after the Supreme Court’s review in Reynolds v. United States, 132 S. Ct. 975 (2012). Remand requires that we reach the merits of Reynolds’s claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”).  This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements?  (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act’s (“SORNA”) registration requirements?  (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA’s notice and comment requirements?

The courts of appeals are divided on each of these questions.  On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.  On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not.  On the final question, the Fifth Circuit has held that the Attorney General’s lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.

We conclude that we need not decide the appropriate standard of review today because the Attorney General’s assertion of good cause cannot withstand review even under the most deferential standard available.  We also conclude that the Attorney General’s lack of good cause is prejudicial to Reynolds.  Accordingly, we will vacate Reynolds’ conviction.

March 14, 2013 at 05:18 PM | Permalink


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Of course, the mess could better be explained by reducing everything to the simple common denominator: the 2003 SCOTUS Smith v. Doe decision that allowed for states to post registered sex offenders on the Internet. The basis of the decision provided, for the first time, a government-sanctioned post-correctional requirement for ex-offenders to statutorily relinquish freedoms that were not demanded of other ex-offenders. Every subsequent sex offender registry law, including SORNA, has resulted from legislators in crafting felony-level laws based upon this decision. It's really that simple.

Posted by: Eric Knight | Mar 14, 2013 5:30:20 PM


Let me paraphrase the 3rd Circuit's lengthy opinion better than anyone else:

"You can't polish a turd! No matter how many people dressed in black pajamas try."

There, that does away with the legal deliberate miscommunication gobbledy-gook.

Posted by: albeed | Mar 14, 2013 10:07:42 PM

not really that simple for SORNA. doe talks about police powers. what police power do the feds have?

Posted by: big bad wolf | Mar 14, 2013 11:02:29 PM

no Eric actualy it was started back in 1943 when calif passed the first sex offender registry law. At that point the court house and the judges should have been burnt to the ground.

The devil child would have been burnt with the bath water!

Posted by: rodsmith | Mar 15, 2013 12:55:39 AM

Ah SORNA, what an illegal, idiotic P.O.S.

Fridays are a great day for people who are listed on the nanny government Registries to reinvigorate their resolve to live normal, happy, and successful lives. Of course that includes ensuring that not only are the Registries, and especially the stupidity that they have enabled and promoted, are worthless, but that appropriate, legal retaliation is delivered to the terrorists who support it all.

Because the Registries exist, I will spend all weekend in a number of locations where no one has any clue that I am on a government list and I will be around children all the time. There absolutely will be no one "monitoring" me in any fashion.

But I will remember that it is not enough just to make the Registries, etc. worthless. On Monday, I will resume attacking the terrorists. I will be working to get them forced from where they live, fired from employment that they may have, forced to pay needless expenses, force their businesses shut down, and many other good things. I am at war with them.

Posted by: FRegistryTerrorists | Mar 15, 2013 8:59:19 AM

"in 1943 when calif passed the first sex offender registry law...
the court house and the judges should have been burnt to the ground"

So it's not a modern-day "witch hunt"?

Prior to 1943 in traditional America and elsewhere, scumbags who sexually abused others
might be hanged, mangled, or effectively, "burnt to the ground". You may thank your pagan gods
that you were born in this twisted NAMBLA-friendly age, wherein we fret over restricting
those who would have incurred banishment, castration, or execution in a biblically-based epoch.

Posted by: Adamakis | Mar 15, 2013 9:29:32 AM


Go back to your corrections or LE job as that is all you are suited to do. Spare me the long "cut and pastes".

Prior to 1943, before "Age of Consent" Legislation which bastardized reality and made prosecutions oh-so-simple, two teenagers "making out" but not going all the way would not have been charged with anything. Continue your urban legend that all offenders are child molesters and rapists when a small minority are.

The biggest offenders we "really" have, one ex-President, one ex-Speaker of the House, an "America's Most Wanted" Host and an ex-Florida Republican Congressman are the biggest offenders but are not on any list. They were instrumental in originating this "witch-hunt" so they could feel better about themselves, deflect appropriate criticism to others and feel self-justified.

It is now a self-sustaining industry of which I am sure you benefit.

Posted by: albeed | Mar 15, 2013 10:55:55 AM

“Reynolds was convicted of sexually assaulting a seven-year-old girl in Missouri.” {US v. Reynolds, No. 08-4747}

albeed: "Continue your urban legend that all offenders are child molesters and rapists..."
Adamakis: "Continue your "bastardized reality" that all offenders are "two teenagers "making out""

Posted by: Adamakis | Mar 15, 2013 4:34:00 PM

I am not going to enter the fray here. It is stupid to argue that the registry should be legal because registrants are all viewed as mostly child torturers and murderers, or contrarily, that the registry should not be legal because registrants are viewed as mostly tree pissers and junior high makeout couples.

Both views miss the point. The fact is that the registry is allowed to operate in its current capacity is because of the Supreme Court decision that stated that the registry is a REGULATORY device with no restrictions involved other than the requirement to send in a postcard once a year. Instead, the registry has spawned legislation that has bastardized the decision to include residency, technology, travel, and employment restrictions, as well as mandatory payment fees, which emphatically moves the registry to a PUNITIVE device. It matters NOT what crimes the registrants committed. That is what a court of law is for, not a legislative or executive branch.

Blowing up courthouses, hanging offenders, mangling offender, and other associated activities are also beyond constitutional. Along with the registries, all those activities are prohibitive and incur great cost that could better be served prevention actual sex abuse.

Posted by: Eric Knight | Mar 15, 2013 6:44:05 PM

Mr. Knight, you sir have hit the nail on the head; the argument here is not who is covered by the law, but the legality of the law itself and you are correct in you assertion that in the case of SORNA and the subsequent SCOTUS ruling has allowed this "regulatory device" to be morphed into something I am hoping was way beyond the original intent of either the congress or the SCOTUS. Since before the passing of the first Jessica's Law,Americans have allowed them to be preyed upon by fear mongering news media and then lawmakers all too willing to pick the low hanging fruit, all the while appearing to be oblivious to the lives of registrants and their families who are in all too many cases suffering irreparable harm from these laws. It is a terrible thing that as of this time, SCOTUS has not accepted a case that would put a nail into the coffin of many of these unjust and unconstitutional laws.

Dad,Registrant, Activist, Blogger, Contributing Editor/Writer@ IndanaVoices.org,Future student in Paralegal Studies starting June 2013

Posted by: Chuck Nute | Mar 15, 2013 8:27:53 PM

Eric and Chuck:

You are correct, no matter who is affected by these laws, real criminals or make-believe criminals, the laws as they are currently being constructed should be interpreted with respect to Smith vs. Doe as unconstitutional. That they have not been can only be construed as judicial cowardice of the highest degree. That some circuits have defended residency restrictions (you do not have the right to live where you want and can afford - classic Jim Crow anyone) based on the Smith vs. Doe decision is reprehensible.

I am sickened by those who support these types of (SORNA) legislation. Not only the DOJ rule-making procedures abrogation, but the passage of the law itself (suspension of rules) are not something Americans should be proud of. I am not a lawyer, but even I submitted comments to proposed regulations under 21 CFR that subsequently changed the final rules.

Posted by: albeed | Mar 15, 2013 9:19:14 PM

oh i agree. All you have to do is look at the original 2002 decison that make the public fucked up registry legal to know what we have now is in no way even CLOSE TO LEGAL!

Only problem is anytime someone get's it into a court room all the fucktard of a judge can say is

"the ussc said the registry is not a punishment therefore it's legal!"

Never mind that way they said was legal is so far from what we have not...not even the starship enterprise could connect them

Posted by: rodsmith | Mar 16, 2013 2:30:45 AM

Who drafted the guidelines? Basically, one woman.

“The SMART Office: Open for Business” PDF

In December 2006, the SMART Office officially opened for business when President Bush appointed Laura L. Rogers, a career prosecutor, as the Director. Ms. Rogers served as a Deputy District Attorney in San Diego, California for nine years, a Senior Attorney at the American Prosecutors Research Institute’s National Center for the Prosecution of Child Abuse for five years, the Director of the National Institute for Training Child Abuse Professionals for three years and an Adjunct Law Professor at George Mason School of Law for the past four years. [$$$]



Mr. GOHMERT. Thank you, Chairman.
Well, taking some things up in order, Ms. Rogers, why did it take
the SMART office 2 years to produce the SORNA guidelines? It
doesn’t sound very smart.
Ms. ROGERS. The SMART office had no staff besides myself and
a detailee from the U.S. Attorney’s Office until January of 2008. On
my own I was implementing SORNA, providing national training,
and sorting technical assistance and, with the help of Office of
Legal Policy, writing the proposed guidelines. They went out for
public comment for 71 days during the summer of 2007. They were
complete and went into review through the Department of Justice
for the final guidelines in February of——
Mr. GOHMERT. Why were you so shorthanded all that time?
Ms. ROGERS. I had no staffing FTEs.
Mr. GOHMERT. You were shorthanded because you didn’t have
staffing. Yeah, I might have guessed that. But why did you have
no staffing?
Ms. ROGERS. There were no available slots to hire anyone into.
There was no funding.
Mr. GOHMERT. Okay.

Posted by: George | Mar 16, 2013 2:48:07 AM

Any sex offender who did not register between July 27, '06 and Dec. 29, '10 and was living in another state that they were not convicted in, just might have a case to NEVER REGISTER AGAIN. Contact a lawyer. That means the. 100,000 out there who never registered to begin with might want to talk with a lawyer

Posted by: Concerned citizen | Jan 20, 2014 11:04:07 PM

Why isn't John Walsh, the King of SORNA, a registered sex offender? He met a 16 year old girl in a bar when he was 23 years old-and began an affair with her-knowing she was not of legal age.

So many DOUBLE STANDARDS in our society; it's backwards, it's BULLSHIT!

Posted by: Lauren Ellis | Nov 23, 2015 3:54:14 PM

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