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Federal Sex Offender Registration Act (SORNA): Construction, Effective Date

Carr v. U.S., USSC No. 08-1301, 6/1/10

… the Act established a federal criminal offense covering, inter alia, any person who (1) “is required to register under [SORNA],” (2) “travels in interstate or foreign commerce,” and (3) “knowingly fails to register or update a registration.” 18 U. S. C. §2250(a). At issue in this case is whether §2250 applies to sex offenders whose interstate travel occurred prior to SORNA’s effective date and, if so, whether the statute runs afoul of the Constitution’s prohibition on ex post facto laws. See Art. I, §9, cl. 3. Liability under §2250, we hold, cannot be predicated on pre-SORNA travel. We therefore do not address the ex post facto question.

Because the holding is limited to construction of a federal statute, it has no necessary application to state practice. (Save need to keep up-to-date on a bewildering profusion of “collateral consequences”; prime yourself with: Corey Rayburn Yung, “The Emerging Criminal War on Sex Offenders,” which “concludes that the federalization of sex offender policy [has] elevated law enforcement to a nascent criminal war on sex crimes” no less than the “war on drugs.” If you agree with that metaphor, then you’ll see SORNA as another front in that “war.”) But the purely federal nature of the case hardly strips it of state-practice utility relative to rules of statutory construction.

The holding ultimately turns on something as prosaic as verb tense; the crucial element of interstate travel is couched in the present tense, therefore travel occurring prior to SORNA’s effective date doesn’t come within the Act. Here’s the crucial passage:

That §2250 sets forth the travel requirement in the present tense (“travels”) rather than in the past or present perfect (“traveled” or “has traveled”) reinforces the conclusion that preenactment travel falls outside the statute’scompass. Consistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach. See, e.g., United States v. Wilson, 503 U. S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes”); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option”); Barrett v. United States, 423 U. S. 212, 216 (1976) (observing that Congress used the present perfect tense to “denot[e] an act that has been completed”). The Dictionary Act also ascribes significance to verb tense. It provides that, “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] . . . words used in the present tense include the future as well as the present.” 1 U. S. C. §1. By implication, then, the Dictionary Act instructs that the present tense generally does not include the past. Accordingly, a statute that regulates a person who “travels” is not readily understood to encompass a person whose only travel occurred before the statute took effect. Indeed, neither the Government nor the dissent identifies any instance in which this Court has construed a present-tense verb in a criminal law to reach preenactment conduct.5

More to it than that, of course, but the rest is really just commentary reinforcing the blockquote. Particular lesson? Wisconsin has its own version of the Dictionary Act, § 990.001, which similarly defines “present” to include “future” tense (with the qualifier, “when applicable”) without mention of “past” tense. Of course, determining the effective date for criminalizing conduct implicates ex post facto considerations, but the fact remains the Court failed to discuss them so we are left with a purely statutory construction holding. And the meta-message? Syntax matters.

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