Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Defendant–Appellee Thomas P. Thayer.

Argument: This appeal presents a straightforward legal question: Does the SORNA registration duty imposed on an “individual who was convicted of a sex offense,” U.S.C. § 20911(1), defined as “an offense against a minor that involves . . . [a]ny conduct that by its nature is a sex offense against a minor,” id. § 20911(7)(I), require a court to analyze the defendant’s predicate “offense” under the categorical approach to assess its “nature,” or should the court look to the particular facts underlying the defendant’s crime? Section 20911(7)(I) bears all the textual and structural signals requiring a categorical approach. And the government’s fact-specific approach raises significant constitutional and practical concerns. Because Thayer’s Minnesota conviction was for an offense sweeping more broadly than Section 20911(7)(I)’s definition of “sex offense,” Thayer had no duty to register, and the district court correctly dismissed the indictment.

Comments to the Department of Justice regarding implementation of provisions of the Adam Walsh Act to affect individuals with past sexual offense convictions.

Comments to the Department of Justice Office of Justice Programs SMART Office regarding sex offender registration and community notification.

President John Wesley Hall and NACDL Sex Offender Policy Task Force chair Michael Iacopino's letter to the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security regarding the difficulties of state compliance and other concerns with the Adam Walsh Child Protection and Safety Act of 2006 (H.R. 4472).

Brief of Amici Curiae the Criminal Defense Attorneys of Michigan, National Association of Criminal Defense Lawyers, the National Association for Public Defense, and the Ohio Public Defender.

Argument: Imposing additional sanctions on previously-convicted criminal defendants by retroactive application of a new law or new reporting is contrary to due process and injects wide spread uncertainty into the plea bargaining process. Such practice makes it difficult if not impossible for defense counsel to advise clients consistently with their Sixth Amendment duties. When the rules that drastically increase the consequences of convictions are changed and applied, sometimes long after the plea bargain process is complete, the result is a fundamental unfairness with no redress.

Brief of the National Association of Criminal Defense Lawyers, Criminal Defense Attorneys of Michigan, and National Association for Public Defender as Amici Curiae Supporting Affirmance.

Argument: Due process bars the state from prosecuting a person for otherwise-innocent conduct—including convicted persons' failure to register their presence with law enforcement—without proof of wrongful intent. SORA criminalizes conduct that is ordinarily innocent, and even law enforcement officials disagree on what otherwise-innocent conduct SORA makes criminal. Notice provisions do not replace the due process requirement of proving wrongful intent. Prosecutorial discretion adds to SORA's due process problems.

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Argument: The federal Sex Offender Registration and Notification Act (SORNA) imposes criminal penalties of up to ten years imprisonment on anyone who “is required to register … travels in interstate or foreign commerce … and knowingly fails to register or update [sex offender] registration.” In 2007, a federal regulation made the registration requirements retroactive. The defendant was released from prison in Alabama in 2004 and registered as a sex offender; a few months later he moved to Indiana, but failed to register as a sex offender in that state. The brief argues that the retroactive application of SORNA’s criminal provisions raises constitutional concerns under the Ex Post Facto Clause and the Commerce Clause of the U.S. Constitution and that construing SORNA to avoid those concerns would not undermine the law’s objective of reducing recidivism of registered sex offenders.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Suggesting Reversal.

Argument: If the Court finds that the general duty to comply with the legislative purpose of SORNA provided the Attorney General an “intelligible principle” for deciding whether to make the law retroactive, then the Court must decide whether that standard satisfies the Constitutional non-delegation rule in a criminal context. Appellant’s case presents the constitutional delegation question in stark form, and because of the date of his prior convictions and the time period when he failed to register, the issue cannot be avoided on statutory grounds. The complete and standardless Congressional assignment to the Attorney General of authority to decide the extent of SORNA’s retroactivity violates any Constitutional standard limiting delegation of the legislative power. When the Legislature empowers an Executive agency, and in particular the Attorney General, to decide what conduct will constitute a crime, Congress must “meaningfully constrain” the exercise of that delegated authority.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: The increasing criminalization of conduct and federalization of criminal law--exacerbated by the widespread blanket criminalization of federal administrative regulations--magnify the need to enforce the constitutional limits on delegation. Delegations of the legislative power to make criminal laws must provide constraints more meaningful that an “intelligible principle.” An “intelligible principle” must do more than identify the subject matter for delegated lawmaking. The delegation here cannot be sustained under any standard.