Is Gundy Really Going to Change the Registry?

Editor’s Note: Last Tuesday, October 2, the Supreme Court heard oral arguments in the case of United States v. Gundy. There were only eight justices who took part in this argument as Justice Kavanaugh was sworn in a few days later. Below is a summary of the arguments.

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Oral arguments in Gundy give little reason to get excited about meaningful change in the registry. There is little at issue that makes it a Certiorari worthy issue, raising the question of why the Supreme Court is hearing it to begin with.

As even the lawyer representing Gundy conceded, regardless of the Supreme Court’s ruling, the law is unlikely to change in any meaningful way. States have already enacted their registry changes in response to SORNA, which would remain unchanged. For the overwhelming number of offenders then, this case will have no practical effect, including, likely, the very defendant in this case*.

No one is contending that SORNA is beyond Congress’ power, or that any part of the registry is illegal. Instead, the only issue in front of the Court is a matter of wording. It is not that Congress cannot retroactively require registration, or that they cannot make the requirements lifelong. No one is even arguing that Congress cannot delegate the power to the Solicitor General to decide how and to who these requirements apply.

The sole disagreement between the parties is whether Congress gave enough guidance to the Attorney General on the matter in enforcing this law. While some justices acknowledged that it is troubling to let the person who prosecutes legal violations also define these violations, the general consensus seems to be that, since the law would be entirely legal, and retain the same operation if worded slightly different, this is largely a matter of style or form, not substance. The anti-SORNA lawyer spent most of her time haggling over minute details, not arguing anything that matters.

It is always difficult to determine how the Justices will rule based on oral argument, but, no matter how the case is decided, it is highly unlikely that it will matter much, even in the short run.

*A brief background of the case is that while Gundy was in BOP custody, he was required to register. Upon his release from imprisonment to a halfway house, he crossed state lines and was charged with failure to register. Other informational sources have mentioned that if the justices rule in Gundy’s favor, anyone with a FEDERAL failure to register to charge MAY be eligible to have that charge vacated. However, if the circumstances still fell under a state law, any state charges would probably remain.

In another case of brief mention, the 3rd Circuit Court of Appeals ruled in United States v. Holena (Case No. 17-3537) that forcing an individual to be banned from computer or Internet access for life was unconstitutional. However, this has already been decided by a few other circuits as well. By simply adding the wording with probation officer’s approval or setting a definitive time for the ban, such as 10 years, that the condition could be constitutional.

However, in Holena’s case, the conflict of the reading of the written condition that stated in one sentence he could only access a computer or Internet with the probation officer’s approval and then the next sentence doing a 180 degree turn and stating that he could never have access to the either put the two conditions in conflict and thus had to be vacated.

If you have a condition similar to this, look carefully at the wording. Under 18 U.S.C. 3583(e)(2) you are statutorily eligible to petition the sentencing court to modify the conditions of supervised release at ANY time prior to the expiration of that term.

However, depending on the length of imprisonment remaining, many courts will throw out the petition as untimely, despite the fact they are legally required to decide the case on the merits. So, our advice is to obtain proper counsel if you plan on challenging this or any other condition of your supervised release.

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#BackSoSoon is a blog dedicated to the successful reintegration of sex offenders back into society. Our Corrlinks address is backsosoonblog@gmail.com and our website is www.backsosoonblog.com.

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