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Thursday, June 03, 2010

Ind. Decisions - Still more on Carr v. United States

A good opinion recap of Carr v. United States by Anna Christensen of SCOTUSblog yesterday. This in particular caught my attention:

Because the Court’s decision rested on an analysis of the statutory text, it thus declined to reach Carr’s alternative argument that the government’s interpretation of Section 2250 violated the Ex Post Facto Clause. And it also acknowledged, but declined to address, two related issues – both of which have perplexed the lower courts – concerning the validity and interpretation of regulations issued by the Attorney General to apply Section 2250 to pre-SORNA convictions. * * *

Justice Alito filed a dissenting opinion that was joined by Justices Ginsburg and Thomas. In it, he argued that the majority’s analysis overlooked an important question: “At what point in time does Section 2250 speak?” Citing federal and state legislative drafting manuals, Justice Alito rejected the majority’s unstated premise that the statute speaks as of the point of enactment. Instead, he contended, the legislative convention is to draft laws in the present tense so that they speak “as of the time when the first act necessary for conviction is committed.” Furthermore, Congress’s decision to leave the issue of whether pre-SORNA convictions qualify under Section 2250 to the Attorney General provides an alternative explanation for why Congress would avoid using past-tense verbs that might influence the Attorney General’s decision.

Moreover, the dissent argued, the majority’s textual arguments “lead[] to a result that makes no sense.” Congress would have no reason to treat two sex offenders who failed to register differently based on whether the date on which they happened to move in interstate commerce preceded or followed the enactment of SORNA; both scenarios, he observes, “ frustrate[] enforcement of SORNA’s registration requirements.” Describing SORNA as a “response to a dangerous gap” in sex offender registration laws, Alito warned that the Court’s interpretation would put “beyond reach” the very sex offenders whose interstate movements prior to SORNA motivated the passage of the law.

Justice Alito's dissent begins at p. 24 of the opinion. Particularly interesting to be was Alito's argument beginning on pp. 28-30 where he references the United States Senate Legislative Drafting Manual and to a large number of state bill drafting manuals, many of which are available online.

Posted by Marcia Oddi on June 3, 2010 09:46 AM
Posted to Ind. (7th Cir.) Decisions