Reynolds vs U.S.

Analysis prepared by RSOL Legal Team

There is some confusion regarding the recent decision of the United States  Supreme Court dealing with retroactivity of the Adam Walsh Act (AWA). There were three issues before the Court, but none involved the constitutionality of sex offender registration itself.

The AWA became effective on July 27, 2006, but Congress delegated the authority to the Attorney General to determine how to apply it to pre-Act offenders. Keep in mind that by July of 2006, all states had registries operating, so the AWA did not create the obligation to register as a sex offender. The AWA created a new federal  crime for a person “…who is required to register under the Act and who ‘travels in interstate or foreign commerce’ knowingly to fail to register or update a registration…” See 18 U.S.C. § 2250(a). Except for the new federal offense of failing to keep one’s registration current, the AWA primarily requires that the states strengthen their registration laws, and promptly share registration information with other jurisdictions.

Congress sought to remedy what it perceived to be a significant problem of 100,000 registrants who had disappeared from state registries because they had moved from one state to another, and the departing state had no interest in pursuing them or forcing them to return. Using the authority granted to him by Congress, former Attorney General Alberto Gonzales issued an “Interim Rule” on February 28, 2007, declaring that the AWA’s criminal penalties for interstate travel would be applied retroactively to all pre-Act offenders.

In this case, Reynolds was released from a Missouri prison sometime in 2007. He initially registered in Missouri but relocated to Pennsylvania in September 2007. Reynolds was indicted by a federal grand jury for violating the AWA. The Indictment alleged that Reynolds had engaged in “interstate commerce” when he moved from Missouri to Pennsylvania without keeping his registration current in either jurisdiction. Reynolds filed a Motion to Dismiss the government’s Indictment, arguing that the “Interim Rule” was invalid because it violated both the Constitution’s “non-delegation” doctrine and the Administrative Procedure Act (APA). Reynolds did not challenge the constitutionality of registration itself.

A decision by the Supreme Court was needed because there was an almost equal split among the Circuit Courts on these questions. The Supreme Court had previously ruled in Carr v. United States (2010) that this provision of the AWA cannot be applied to anyone whose interstate travel occurred prior to July 27, 2006, the AWA’s enactment date. The District Court denied his motion to dismiss and the Third Circuit affirmed that decision.

The Supreme Court reversed the Third Circuit and also resolved the split between the Circuit Courts by declaring that the “Interim Rule” does not apply to any registrant that traveled in interstate commerce prior to the Attorney General’s issuance of the rule. In other words, those that traveled between jurisdictions after the AWA became law (July 26, 2006) but before the AG’s “Interim Rule” became effective (February 28, 2007) cannot be prosecuted pursuant to 42 USC § 2250(a). The Supreme Court directed the Third Circuit to make a determination on the question of whether the Attorney General’s “Interim Rule” sets forth a “valid specification.” If the Third Circuit determines that the “Interim Rule” is invalid, this could potentially extend the retroactivity date beyond February 28, 2007. This ruling is huge for any pre-Act offender who was prosecuted and convicted federally for interstate travel, even though it has no bearing on the constitutionality of sex offender registration itself.

Again, this decision has no bearing on a person’s duty to register pursuant to state law. Neither does it impair the government’s ability to prosecute those who move from one jurisdiction to another after adoption of the “Interim Rule,” unless the Third Circuit finds that the “Interim Rule” was improperly implemented. Those prosecutions can go forward provided that the government can establish that the travel occurred on or after February 28, 2007. In this case Pennsylvania could and may still prosecute Reynolds for failing to comply with their state registration requirements, assuming that the Statute of Limitations has not expired.