Ninth Circuit Rules on Recent SORNA Challenge

Born out of the Adam Walsh Child Protection Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA) serves as a guideline for heightened monitoring of convicted sex offender parolees. In February 2007, the Department of Justice issued an interim rule that applied SORNA retroactively to sex offense convictions before SORNA was enacted. Several constitutional challenges to SORNA were filed, including the most recent challenge involving a California convicted sex offender, Mark Anthony Valverde.

In 2002, Valverde pled guilty in California Superior Court to several charges of sexual abuse of a minor and one charge of child pornography. After serving six years of a 12-year sentence, Valverde acknowledged the requirement to register as a sex offender in accordance with California law and was released. Following his release, he soon moved from California to Missouri and failed to register in either state. In April 2008, Valverde was arrested and indicted for SORNA violations. Consequently, he and his counsel challenged the indictment claiming that SORNA did not apply to Valverde.

In February 2009, the federal district court ruled that SORNA was an invalid exercise of Congressional authority. On appeal, however, a three-judge panel of the Ninth Circuit Court of Appeals reversed the lower court and found SORNA a valid exercise of Congress's power under the Commerce Clause. But the Ninth Circuit went on to dismiss Valverde's indictment under SORNA in April 2008, because the Justice Department, when promulgating the interim rule that SORNA applied retroactively, failed to comply with notice and comment requirements.

The Justice Department's rule on the retroactivity of SORNA did not become effective until August 2008 when the final rule had been published and a sufficient period for comments had expired. Thus, the Justice Department did not have the authority to charge Valverde with violations of SORNA in April 2008. The Valverde decision might have implications that ripple across the nation.

The Valverde decision highlights the issues that arise when convicted sex offenders travel or move across state lines. Just this past year, the U.S. Supreme Court considered another SORNA challenge, Carr v. United States. In Carr, the Supreme Court addressed a challenge to facts similar to Valverde's, but the distinction related to travel prior to the enactment of SORNA in 2006. With the recent Valverde decision, the potential for review might be necessary for numerous appeals of SORNA charges that the federal government filed before August 2008 when the retroactivity rule became effective.

Convicted sex offenders need to be aware of the requirements to register both in the state they are convicted, and in any state they may move to. Contact an experienced criminal defense attorney for advice on sex offender registration requirements or charges related to sex offender registry violations.