18 U.S.C. § 2250 – Failure to register as sex offender

Failure to Register as a Sex Offender – 18 U.S.C. § 2250

The Sex Offender Registration and Notification Act (SORNA), enacted in 2006, established a comprehensive national system for the registration of sex offenders[1]. SORNA requires sex offenders to register and keep their registration current in each jurisdiction where they live, work, and go to school. Failure to comply can result in federal criminal penalties under 18 U.S.C. § 2250, which makes it a federal offense for certain sex offenders to knowingly fail to register or update their registration as required[2].

This law aims to protect the public by ensuring sex offenders are accounted for and their whereabouts are known. However, it also imposes strict requirements on offenders that, if violated, can lead to severe consequences. This article provides an overview of 18 U.S.C. § 2250 and its implications.

Background

SORNA was enacted to strengthen and expand the national system for registration of sex offenders that had been established under the Wetterling Act of 1994. SORNA aimed to close gaps and loopholes that had developed in prior laws by setting national standards for sex offender registration and notification[3].

A key component of SORNA is the requirement that sex offenders register and keep their registration current in each jurisdiction where they reside, work, or go to school. To fulfill this requirement, offenders must appear in person periodically to verify and update their information. Jurisdictions are required to maintain online sex offender registries that the public can access[4].

To enforce these registration provisions, SORNA created the federal crime of failure to register as a sex offender under 18 U.S.C. § 2250. This statute provides federal criminal penalties for sex offenders who knowingly fail to register or update their registration as required by SORNA[5].

Key Elements of 18 U.S.C. § 2250

For a person to be convicted under 18 U.S.C. § 2250, the government must prove the following elements beyond a reasonable doubt[6]:

• The defendant was required to register as a sex offender under SORNA;
• The defendant was either subject to SORNA’s registration requirements or a jurisdiction’s registration requirements specifically based on SORNA;
• The defendant knowingly failed to register or update a registration;
• The defendant was in interstate commerce, traveled in interstate commerce, or entered, left, or resided in Indian country.

Each of these elements involves specific definitions and requirements that shape the application of this law.

Sex Offender Status

Only certain categories of sex offenders face prosecution under 18 U.S.C. § 2250. This includes:

• Persons convicted of a federal sex offense;
• Persons convicted of a sex offense under the Uniform Code of Military Justice;
• Persons convicted of a sex offense under state, local, tribal, or territorial law;
• Certain juveniles adjudicated delinquent for a sex offense;
• Persons civilly committed as “sexually dangerous persons.”

The specific offenses covered are defined in SORNA and include crimes such as sexual abuse, sexual exploitation, and certain forms of child pornography and human trafficking. Certain registration exemptions apply, such as for juvenile offenses prosecuted in juvenile court.

Registration Requirement

For federal prosecution to apply, the defendant must have been subject to a valid registration requirement under SORNA or an equivalent state, local, or tribal law registration requirement specifically based on SORNA’s standards. This covers offenders who are:

• Initially required to register based on a covered sex offense conviction;
• Already registered or required to register under a pre-SORNA registration law;
• Re-entering the justice system due to conviction for any crime or for failure to register.

SORNA requires offenders to register in the jurisdiction of their residence, employment, and school attendance, and to periodically appear in-person to verify their information. Offenders who relocate, take new jobs, enroll in school, or make other changes must update their registration within 3 business days.

Knowing Failure to Register or Update

For a conviction under 18 U.S.C. § 2250, the government must show the defendant “knowingly” failed to comply with their registration requirements. This means they were aware of the requirement and intentionally or voluntarily failed to adhere to it.

Mistakes, accidents, or confusion about registration duties are not knowing failures to register. However, offenders have a duty to learn what their specific registration requirements are. Just claiming they did not know may be insufficient as a defense.

Jurisdictional Element

Because federal prosecution applies, the government must show the defendant’s conduct involved interstate activity or occurred in a federal jurisdiction:

• Interstate commerce – The defendant traveled in interstate or foreign commerce;
• Jurisdiction – The defendant entered, left, or resided in Indian country.

This jurisdictional hook ensures the federal law stays within constitutional bounds. Interstate travel can be established through evidence like plane tickets, car rental agreements, and cell phone records.

Penalties

The penalties for failing to register under 18 U.S.C. §;

Harsher penalties of up to 30 years may apply if the defendant commits a crime of violence while failing to register. The law also requires sex offenders to provide DNA samples while on probation, parole, or supervised release.

Legal Challenges

18 U.S.C. § 2250 has faced various constitutional and legal challenges since its enactment, several of which have reached the U.S. Supreme Court.

Commerce Clause Challenges

Defendants have argued that 18 U.S.C. § 2250 exceeds Congress’s authority under the Commerce Clause. However, multiple circuit courts have upheld the law, finding the jurisdictional element sufficiently limits its reach to interstate commerce. The Supreme Court affirmed this in United States v. Kebodeaux, stating SORNA was a valid exercise of the federal power to regulate interstate commerce.

Ex Post Facto Challenges

Some offenders have claimed applying 18 U.S.C. § 2250 to those convicted before SORNA violates the Ex Post Facto clause. This argument succeeded initially but was overturned by the Supreme Court in Reynolds v. United States and United States v. Kebodeaux. The Court found merely continuing to abide by pre-existing registration requirements is not an ex post facto violation.

Non-Delegation Doctrine

The Supreme Court recently ruled in Gundy v. United States that SORNA does not violate the non-delegation doctrine by granting the Attorney General authority to determine the law’s retroactive application. The Court held it was a permissible delegation of authority to the Executive Branch. However, there were four dissenting Justices, so this issue may be revisited.

Vagueness Challenges

Defendants have argued the requirements under SORNA are vague and unclear, particularly regarding the timing for initial registration and keeping registration current. Most circuit courts have rejected these claims, but some vagueness issues remain unresolved.

Policy Considerations

While aimed at public safety, laws like 18 U.S.C. § 2250 raise policy issues to consider.

Recidivism

A key justification is protecting the public by deterring recidivism. However, some research suggests residence restrictions and other regulations may actually increase offender recidivism by destabilizing their lives. It is unclear if strict registration laws effectively reduce re-offense rates.

Proportionality

Critics argue mandatory registration for broad classes of offenders is overly punitive, harming rehabilitation, and disproportionate to the crimes committed. The 10-year federal penalty particularly raises proportionality questions.

Costs

Complying with registration laws imposes financial burdens on offenders. Also, states expend significant resources maintaining registries and enforcing failures to register. Some argue these costs outweigh the uncertain public safety benefits.

Net-Widening

Strict registration laws potentially widen the net of the criminal justice system by criminalizing technical registration violations. Data suggests the majority of § 2250 prosecutions are for technical violations, not new sex offenses.

Conclusion

18 U.S.C. § 2250 provides an enforcement mechanism for federal sex offender registration laws. While aimed at public safety, it involves complex requirements that, if violated, result in serious criminal penalties. The law remains controversial and continues to face legal challenges. As with any regulation, policymakers must weigh the costs and benefits of strict registration mandates for sex offenders.

References

[1] Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901 et seq.
[2] 18 U.S.C. § 2250
[3] SORNA, 72 Fed. Reg. 8894, 8895 (Feb. 28, 2007).
[4] 34 U.S.C. § 20920.
[5] 18 U.S.C. § 2250.
[6] United States v. Shenandoah, 595 F.3d 151, 154-56 (3d Cir. 2010).
34 U.S.C. § 20911(1), (5)-(6); 18 U.S.C. § 2250(a)(1)-(2).
34 U.S.C. § 20911(8).
18 U.S.C. § 2250(a).
34 U.S.C. § 20913.
34 U.S.C. § 20913(c).
18 U.S.C. § 2250(a).
United States v. Voice, 622 F.3d 870, 875 (8th Cir. 2010).
18 U.S.C. § 2250(a)(2).
United States v. Haslage, 915 F.3d 1027, 1029-30 (5th Cir. 2019).
18 U.S.C. § 2250(a)-(c).
18 U.S.C. § 2250(b)-(c).
United States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010).
570 U.S. 259, 274 (2013).
565 U.S. 432 (2012); 570 U.S. 259.
139 S. Ct.