For many sex offenders, the prospect of registration for life is actually worse than imprisonment. Many offenders complain they can never pay their debt to society or be free of their past crimes, no matter how successful their rehabilitation. May others would argue this is the price you pay for abusing the most vulnerable amongst us, our children.
In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), and it was codified at 42 U.S.C. § 16901.
Federal Sex Registration
This law makes it a federal crime for a sex offender who meets certain requirements to “knowingly fail to register or update registration as required by [SORNA].”
Under this law, “a sex offender shall, not later than 3 business days after each change of name, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.”
Subsection (a) in this provision requires that “a sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.”
Supreme Court Hears Registration Case
This brings us to the case of Nichols v. United States, decided by the Supreme Court on April 4, 2016. The question before the Court in this case was whether a sex offender must update his registration once he has departed a state.
Laster Ray Nichols was convicted in 2003 for the federal offense of traveling with intent to engage in illicit sexual conduct with a minor. He was released from prison in 2011 and went to the state of Kansas where he chose to reside. He complied with SORNA by registering as a sex offender, even though his offense predated the enactment of the state’s registration statute.
Flees to Philippines
In November 2012, Nichols disconnected his telephone lines, returned his apartment keys to the landlord, and boarded a flight to Manila. When he did not attend a mandatory sex offender treatment program back in Leavenworth, Kansas, a warrant was issued for revocation of the terms of his supervised release.
The following month Nichols was arrested by Manila police with the assistance of American security forces. He was escorted back to the U.S. by federal marshals.
Once back in the states, in addition to facing revocation of his supervised release, Nichols was indicted by a federal grand jury under 18 U.S.C. § 2250(a)(3) for “knowingly fail[ing] to register or update a registration as required by {SORNA].”
Pleads Guilty and Preserves Issue for Appeal
Through counsel, Nichols moved to have the charge dismissed on the ground that SORNA did not require him to update his registration in Kansas. The trial court denied the motion, and after preserving his right to appeal this denial, Nichols pleaded guilty.
Nichols appealed to the Tenth Circuit Court of Appeals.
In December 2014, the appeals court upheld the trial court’s denial of Nichol’s motion to dismiss. Citing 42 U.S.C. § 16913, the court held that when a sex offender “leaves a residence in a state, and then leaves the state entirely, that state remains the jurisdiction involved.”
The Supreme Court noted that § 16913 provides three jurisdictions in which the sex offender must inform the “jurisdiction involved” of a “change of residence”—the jurisdiction where the offender resides, where he is employed, or where he is a student.
Plain Language of the Statute Rules the Day
The Court then pointed out that the Philippines, like all foreign countries, is not a “jurisdiction” under SORNA. And that proved to be a major flaw in the requirements of the law.
Writing for the majority, Justice Alito said that putting all the provisions of SORNA together, the statute “requires a sex offender who changes his residence to appear, within three business days of the change, in person, in at least one jurisdiction (but not a foreign country) where he resides, works, or studies, and to inform that jurisdiction of the address change … Critically, § 16913(a) uses only the present tense: ‘resides,’ ‘is an employee,’ ‘is a student.’ A person who moves from Leavenworth to Manila no longer ‘resides’ (present tense) in Kansas; although he once resided in Kansas, after his move he ‘resides’ in the Philippines. It follows that once Nichols moved to Manila, he was no longer required to appear in person in Kansas to update his registration, for Kansas was no longer a ‘jurisdiction involved pursuant to subsection (a)’ of § 16913.”
New Laws on Books to Address this Issue
However, this ruling will probably affect only Nichol’s conviction. Justice Alito pointed out that Congress recently “criminalized” the knowing failure “to provide information required by [SORNA] related to intended travel in foreign commerce” under the International Megan’s Law to Prevent Child Exploitation and Other Crimes Through Advanced Notification of Traveling Sex Offenders.
The information that must be provided under this new law includes “anticipated dates and places of departure, arrival, or return; carrier and flight numbers for air travel; destination country and address or other contact information therein.”
While this new law covers the kind of conduct engaged in by Nichols, his conviction could not stand because his conduct occurred before the enactment of the new travel notification law for sex offenders.
He did, however, remain in federal prison for over three years for this misguided attempt to evade federal registration laws.