Supremes To Considers Legality Of Pre-2006 Offender Registration

WASHINGTON, D.C.—On Tuesday, the U.S. Supreme Court heard argument in the case of Gundy v. United States, involving a lawsuit brought by Herman Gundy, a man who had been convicted of an offense that would have required that he comply with the Sex Offender Registration and Notification Act (SORNA)—if it had existed when Gundy committed his crime. The Act, which was part of the Adam Walsh Child Protection and Safety Act of 2006, requires that everyone who has been convicted of certain sex-related crimes including child pornography and child sex trafficking register with law enforcement in the state in which he (or she) resides, and to keep that registration current for the specified term, which may be the life of the offender for certain Tier III offenses. Gundy's (and many others') problem is, Attorney General Jefferson Beauregard Sessions III recently decided that SORNA can be applied retroactively, so that even those persons who offended before SORNA came into existence would be required to register, with apparently no limit as to how far into the past such registration could reach. Gundy, who would be swept up under that new rule, sued to void the requirement that he register, claiming that only Congress and not the attorney general has the power to make SORNA retroaxctive. Both a trial court and the Second Circuit Court of Appeals rejected Gundy's arguments, but the U.S. Supreme Court agreed to take up the case—and according to an article in The Washington Times, it looks as though a majority on the high court might agree with Gundy. Deputy Solicitor General Jeffrey B. Wall, who argued the case for the government, assured the court that it was always Congress' intent that the attorney general have the power to make the law apply to those who had offended before the Act was passed. "To be honest with you, I think it defies both the text of SORNA and reality to think that Congress was agnostic about whether hundreds of thousands of people who have committed very serious sex offenses, as petitioner has, should be required to register," Wall told the justices. "I think there’s no way to read SORNA’s text, its legislative history, and not come away with the firm and definite notion that Congress wanted as many of those offenders in the system as the attorney general could get in." On the other hand, Gundy's attorney Sarah Baumgartel argued that SORNA "grants unguided power to the nation's top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals. It combines criminal law-making and executive power in precisely the way that the Constitution was designed to prohibit." Indeed, the U.S. Constitution, in Article I Sec. 9, states that, "No Bill of Attainder or ex post facto Law shall be passed," but it's unclear whether Sessions' reinterpretation of a law Congress has already passed would fall under that prohibition. In response to a question from Justice Ruth Bader Ginsburg, Baumgartel said, "[A]s this Court held in Reynolds, the Congress left it to the Attorney General to determine whether SORNA would apply retroactively at all... [I]t then gave the Attorney General full authority to decide whether the law should be applied retroactively, so the initial on/off determination, but then as well how it should apply, which offenders should be included, if it should extend all the way back to 20, 30, 40 years. There was absolutely no guidance provided to the Attorney General." Much of the argument revolved around comparing SORNA to other laws which allowed the executive branch to interpret and apply them retroactively, but the scope of how many offenders would be swept up in such an open-ended application of the statute clearly troubled both Justice Ginsburg and conservative Justice Neil Gorsuch. "How do people even know who is going to be included in this class until they hear from the attorney general?" asked Gorsuch. "And I—I’m having trouble thinking of another delegation in which this court has ever allowed the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute," to which Ginsburg added, "There’s no notice to these people." Gorsuch later described Sessions' action as "a blank check to the attorney general of the United States to determine who he’s going to prosecute," a situation that Gorsuch clearly didn't favor. The high court's decision, which may not be announced until June of 2019, may be very important to the adult industry, even though very few if any of its members have been convicted of either child sex trafficking or child pornography—though one outstanding example is former producer/distributor Ruby Gottesman, who was found guilty of several counts of production and interstate transportation of child pornography because he had created and distributed several movies starring a then-underage Traci Lords. Another problem with SORNA in general, and with making it apply retroactively in particular, is the fact that each state gets to determine which sex-related acts require a convicted person to register. For example, in Ohio, "pandering obscenity," which is defined as "creat[ing], reproduce[ing], or publish[ing] any obscene material, when the offender knows that the material is to be used for commercial exploitation or will be publicly disseminated or displayed, or when the offender is reckless in that regard," as well as creating, directing, or producing an obscene performance [i.e., a hardcore movie], or advertising or promoting an obscene performance for presentation, or presenting or participating in presenting an obscene performance, is a felony, and conviction for such an offense requires that the "perp" register as a sex offender, even though all sexual activity involved was consensual and involved only adults. It is not known how many other states consider pandering obscenity to be a registerable offense, but in Ohio alone, going back two or more decades, there have been several high-profile obscenity convictions, as First Amendment attorneys serving that state, including H. Louis Sirkin and J. Michael Murray, can attest. Worse, considering the religious fervor that has swept the federal government over the past two years, it's not beyond the imagination that Sessions might easily add pandering obscenity or a number of similar "sex acts" to the federal registration requirement, essentially branding every previously convicted producer, performer or retailer with a form of "scarlet letter" for life. Fortunately, it appears as though stopping Sessions from expanding the registry has bipartisan report on the high court, so this threat may vanish in a few months—but until then, at least some current and former adult industry members may continue to worry.