Retroactive Application of the Sex Offender Registration and Notification Act: A Modern Encroachment on Judicial Power
Visgaitis, Rebecca L., Columbia Journal of Law and Social Problems
In the past decade, preventing sexual offenses has become a pressing concern throughout the United States. Following a series of kidnappings and rapes committed by individuals who had previously been convicted of similar offenses, legislatures at both state and federal levels passed extensive legislation creating a system of sex offender registration and community notification. The most recent legislation at the federal level is the Sex Offender Registration and Notification Act of 2006, which created stricter registration requirements that apply to a broader class of offenders and extend for longer durations of time than what was mandated by previous federal legislation. Pursuant to a federal regulation, the Act has been applied retroactively to offenders who had already been given registration requirements and durations at the discretion of judges prior to the Act's passage. This retroactive application means that many offenders now face much harsher registration requirements than what a court may have already deemed necessary. Such disposal of judicial determinations raises significant concerns under the separation of powers doctrine, a fundamental feature of American constitutional jurisprudence. An executive regulation overruling judicial decisions places tension on the balance required by the doctrine. This Note examines the conflict and proposes alternative ways to achieve the goal of keeping communities safe without such constitutional tension.
On July 27, 2006, Congress passed expansive legislation reforming federal sex offender registration requirements. The Sex Offender Registration and Notification Act (SORNA), enacted as Title I of the Adam Walsh Child Protection and Safety Act of 2006,1 required states to pass legislation adhering to a detailed set of standards regarding registration and community notification requirements for sex offenders.2 This Act replaced earlier federal statutes that had only required states to have some form of registration and notification requirements, without providing details on how such requirements should be structured or implemented.3 SORNA's detailed registration scheme was intended to establish greater uniformity among states and ensure that all citizens would be informed about potentially dangerous sexual offenders in their communities.4 To that end, it classified offenders based on their crimes, and required all sex offenders to keep their registration current for longer durations than what was required under prior federal legislation.5 SORNA also created a new federal crime of failing to register pursuant to a state's requirements, punishable by up to ten years in prison.6 After SORNA's passage, the U.S. Attorney General issued a regulation, pursuant to the statute, requiring that the new registration scheme be applied to sex offenders who were already registering in compliance with the earlier laws.7 This means that many offenders face drastically increased requirements with longer durations of registration, and that they can now be prosecuted at the federal level for failing to adhere to those requirements.8
This Note examines the constitutionality of the Attorney General's regulation. It focuses specifically on whether this regulation violates the constitutional separation of powers doctrine by mandating changes to prior adjudications. Part II examines the previous federal law regulating sex offender registration, how SORNA changed this framework, and what the Attorney General's regulation applying SORNA retroactively means for offenders convicted before SORNA's passage. Part III examines the separation of powers doctrine and discusses how it serves to protect judicial power. Part IV argues that retroactive application of SORNA violates the separation of powers doctrine by overruling judicial decisions, and proposes solutions that would avoid this constitutional problem.
II. A HISTORY OF FEDERAL SEX OFFENDER REGISTRATION LAWS
Before SORNA's passage, federal legislation addressing sex offender registration and community notification requirements was not comprehensive, and individual states filled in the gaps with their own registration regimes.9 Sex offender registration became a pressing concern for legislators beginning in the late 1980s and early 1990s, following several abductions and murders committed by individuals who had prior convictions for sex offenses.10 The 1994 rape and murder of seven-year-old Megan Kanka by a twiceconvicted sex offender in New Jersey enraged the public and pushed the issue to the top of the legislative agenda in New Jersey and in the federal government.11 Less than three months later, New Jersey enacted "Megan's Law," requiring sex offender registration and community notification by public officials.12 Congress also took action, passing its own sex offender legislation later that year and adding a community notification requirement two years later.13 The idea behind these laws was that individuals who had already been convicted of a sex offense would likely attempt to commit similar crimes, and forcing them to publicly register their addresses would allow parents to protect their children more effectively.14 To that end, they required sex offenders who were not incarcerated to register with the police department in the municipality where they resided and then verify their address according to a predetermined schedule (usually every ninety days or annually).15
The remainder of this Part provides a brief history of the federal legislation addressing sex offender registration and notification and the constitutional challenges that have been raised against it.
B. THE WETTERLING ACT
The first federal sex offender legislation was the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, enacted in 1994. 16 The Wetter ling Act was in effect for twelve years before being repealed and replaced by SORNA.17 It required states to establish programs requiring anyone convicted of a sexually violent offense to register a current address.18 Most offenders would be required to register for ten years from the date of their release from prison, but "sexually violent predators" could be required to register for the rest of their lives.19 The Act, which defined "sexually violent predator" as "a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses,"20 assigned the determination of whether or not a sex offender was a "sexually violent predator" to the courts.21 Judges were required to hear recommendations from behavioral experts, victims' rights advocates, and law enforcement officers before finding that an offender was a sexually violent predator.22 Two years after the Wetterling Act was passed, Congress added a requirement that states establish a system of community notification to inform residents of sex offenders residing in their communities.23
All fifty states quickly complied with the Wetterling Act, passing their requirements for sex offender registration and community notification.24 Most of these statutes were passed without extensive consideration, and registration requirements and community notification provisions quickly became a general expectation across the country.25 States developed their own methods to distinguish offenders, generally requiring some classes of offenders to adhere to more stringent registration and notification requirements.26 Some states used a "conviction-based" system, assigning requirements based on the nature of the crime the offender was convicted of, while others used a "risk-based" system, assigning requirements based on an individual offender's risk of recidivism.27 As of 1999, nineteen states used conviction-based systems.28 The exact method of determining an offender's risk of recidivism varies, but most states using risk-based systems require some type of hearing in which a court would decide whether an offender's risk level was high enough that he should be considered a sexually violent predator and given more stringent registration and notification requirements.29 In some states, these judicial determinations are based on the judge's own opinions.30 In others, courts rule after hearing evidence from experts or recommendations from specialized boards.31
Requiring sex offenders to verify their residences long after any criminal sentence ended raised new legal issues. As sex offender registration became widespread, therefore, offenders began to challenge their states' registration systems.32 The legitimacy of such statutes was confirmed in 2003, when the Supreme Court upheld the sex offender registration and notification statutes in Alaska and Connecticut.33 In Smith ?. Doe, the Court addressed Alaska's statute, which created a registry for offenders who, like the plaintiffs in the case, had been convicted of crimes before the statute was adopted.34 The plaintiffs argued that imposing registration requirements on them violated the ex post facto clause of the U.S. Constitution.35 In order to prevail on their claim, the plaintiffs needed to demonstrate that the statute was retrospective, and that its effects were punitive in nature.36 The Court acknowledged that Alaska's registration and notification statute was retrospective, since it plainly applied to events that occurred before its enactment.37
However, the Court also held that the law's effects were not punitive.38 The Court looked to five factors in reaching this decision. First, it determined that listing an offender in the state registry was not analogous to traditional shaming punishments, since such a listing was simply distributing information that was already public record.39 Second, it found that the statute did not impose an affirmative restraint - offenders were free to move or change jobs as they wished, as long as they updated their registration.40 The Court also found that the statute did not serve traditional aims of punishment, and was not punitive solely because it had a deterrent effect, as the plaintiffs had argued.41 The Court explained that the law served a deterrent function, but that this function did not necessarily indicate a punitive intent.42 The Court noted that various other governmental programs also often serve deterrent functions, and holding that the presence of that function alone meant that such regulations were criminal in nature "would severely undermine the Government's ability to engage in effective regulation."43 Finally, the Court held that the statute was rationally connected to the non-punitive purpose of public safety.44 Based on all of these factors, the Court concluded Alaska's statute was not punitive, and therefore was not an unconstitutional ex post facto law.46
In Connecticut Department of Public Safety ?. Doe, the Supreme Court rejected a similar constitutional challenge to Connecticut's sex offender registration and notification act.46 The petitioners argued that under the Due Process Clause of the Fourteenth Amendment, offenders were entitled to a hearing before they could be listed on the state's sex offender registry.47 The Court held that the Constitution's procedural due process requirement did not mandate such a hearing.48 Connecticut's statute required that offenders be listed on the state registry based solely on their convictions for sexual offenses, and not on case-bycase assessments of the offenders' danger to others.49 Since an offender's registry listing was simply a listing of his past convictions and not a reflection of his danger ousness, the Court concluded that there was no procedural due process violation.50 The Court refrained, however, from deciding whether Connecticut's law violated substantive due process principles.51
These decisions upholding the Alaska and Connecticut laws were the only opinions the Supreme Court issued regarding the constitutionality of sex offender registration and community notification statutes in the decade after they became so widespread. Since statutes were substantially similar throughout the country, however, the decisions effectively foreclosed challenges to other state registration systems.52 Since the Smith decision, most states have followed Alaska's example and included past offenders in their sex offender registries.53
C . THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
More than a decade after the passage of the Wetterling Act and the ensuing state legislation, Congress passed the Adam Walsh Child Protection and Safety Act of 2006, which included SORNA.54 The Act arose from a concern that variations in state requirements were allowing hundreds of thousands of sex offenders to exploit loopholes and therefore avoid having to register if they moved between jurisdictions.55 To address this issue, SORNA lays out a comprehensive set of national requirements for sex offender registration.56 To ensure that states followed the new, comprehensive framework, SORNA also provides that states risk losing a portion of federal law enforcement funding if they do not pass legislation complying with these requirements.57
SORNA includes two particularly notable provisions. First, it creates a new federal crime for failure to register.58 Under the Wetterling Act, states were free to establish their own criminal penalties for sex offenders who failed to register pursuant to their requirements, and there was no federally mandated enforcement mechanism.59 SORNA makes failure to register a federal felony and also mandates a minimum ten-year imprisonment sentence.60 After SORNA's enactment, federal law enforcement authorities quickly began marshaling resources to investigate and prosecute individuals for failing to register.61 Not surprisingly, this immediately became a controversial aspect of the new legislation, and convictions under this provision have been challenged frequentIy.62
The second notable aspect of SORNA is its tiered registration requirement framework. The Act divides sex offenders into three tiers based on the type of crime.63 Tier III encompasses the most severe crimes, and Tier I the least severe.64 A Tier III offender is a sex offender who has been convicted of sexual abuse or abusive sexual conduct against a minor under age 13; kidnapping a minor in the course of a sex offense; or any sex offense or attempted sex offense punishable by more than one year in prison after previously committing a Tier II offense.65 Tier II includes offenders who have been convicted of certain crimes against a minor, including sex trafficking, coercion and enticement, and abusive sexual conduct.66 An offender also falls into Tier II by using a minor in a sexual performance, soliciting a minor to engage in prostitution, or producing or distributing child pornography.67 A Tier I offender who is convicted of a subsequent offense also becomes a Tier II offender.68 Tier I encompasses every offender who does not meet the specific criteria of Tiers II and III.69
These tiers determine the duration of an offender's registration requirements.70 SORNA's provisions require sex offenders to keep their registration current for a specific period of time, which can be reduced in some cases if an offender maintains a clean record.71 Tier I offenders must keep their registration current for fifteen years,72 while Tier II offenders must do so for twenty-five years,73 and Tier III offenders must keep their registration current for the remainder of their lives.74
1. Comparing the Wetterling Act and SORNA
The tiered framework in SORNA was a significant change from the Wetterling Act. While the Wetterling Act applied only to individuals who had been convicted of a sexually violent crime,75 SORNA expanded the category of individuals required to register to include anyone convicted of any sex offense.76 SORNA also expanded the definition of "sex offense" itself77 Under SORNA, a sex offense is any criminal offense involving a sexual act or sexual contact, as well as certain specified offenses against a minor.78 "Sexually violent offense" under the Wetterling Act, on the other hand, encompassed only that narrower range of offenses involving sexual abuse.79 Thus, by expanding the class of individuals covered, the SORNA requirements affect a much larger group of offenders.
The Wetterling Act also did not specify how states should distinguish between different sex offenders, and the only duration requirement it imposed was a standard of ten years, with an increase to lifetime registration for sexually violent predators.80 SORNA, on the other hand, not only reaches a larger group of people, but also requires them to register more often and for a longer time period. It mandates a conviction-based system of classification, establishing specific requirements based on an individual's particular crime, but not necessarily on his mental state or risk of recidivism.81 As discussed earlier, since the Wetterling Act had not specified a method for differentiating various sex offenders, states took varying approaches.82 Before SORNA was enacted, some states already used a conviction-based system in which an offender's registration requirements were based on his individual crime, but other states used a risk-based method, leaving it to judges to decide how dangerous an offender was.83 SORNA requires states to adopt its tier-based approach, forcing those states that used risk-based determinations to make a major change in their approach to sex offender registration requirements.
2. SORNA's Retroactivity Regulation
SORNA left open the question of whether its new, stricter registration requirements applied to sex offenders convicted prior to the statute's enactment. Congress specifically delegated this decision to the Attorney General, granting him "the authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before July 27, 2006, or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders . . . .w84 Pursuant to this provision, Attorney General Alberto Gonzalez issued a regulation on February 28, 2007, explicitly applying the SORNA requirements to "all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act."85 Based on this regulation, offenders who had been convicted before July 2006 and had been given registration requirements by a judge at the time of their conviction were suddenly placed into one of SORNA's three tiers and given new registration requirements based on that placement.86 For some offenders, this constituted only a minor change; for example, if an offender had been convicted of a misdemeanor crime and given the ten-year standard registration requirement under the Wetterling Act, his or her registration duration increased by only five years.87 Other offenders, however, faced extreme changes in their requirements. If an offender had been given only a ten-year registration period based on his assessed risk, but now fell into SORNA's Tier III based on his crime, he suddenly was required to register for the rest of his life.88
D. CONSTITUTIONAL CHALLENGES TO THE SEXUAL OFFENDER REGISTRATION AND NOTIFICATION ACT
Many offenders have challenged the provisions of SORNA and the broader Walsh Act, including the new registration regime, as well as the Attorney General's regulation applying it retroactively. Most courts have found that the Act is constitutional.89 A few federal district courts have upheld challenges to specific provisions or applications of the law, but most of these decisions have been overruled by circuit courts.90 Most cases have not reached the Supreme Court, however, so there is not a precedent set by the highest court that applies to most provisions of SORNA. So far, the Supreme Court has heard only two cases regarding provisions of the Walsh Act.
In United States ?. Comstock, the Court held that the Act's federal civil commitment provision was valid under the Necessary and Proper Clause.91 This provision authorizes district courts to order civil commitment of an individual extending beyond his prison sentence if he has "engaged or attempted to engage in sexually violent conduct or child molestation," "suffers from a serious mental illness, abnormality, or disorder," and is "sexually dangerous to others" as a result of that condition, in that "he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."92 The respondents in the case claimed that this provision violated multiple constitutional principles, including the double jeopardy clause, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Necessary and Proper Clause, and the Sixth and Eighth Amendments.93 The Court limited its analysis to whether Congress had authority to enact this provision under the Necessary and Proper Clause.94 Its opinion in this case was fairly narrow; the Court explicitly refrained from ruling on any other constitutional issues or on any other SORNA provisions, so the decision does not have a broad impact on the application of SORNA as a whole.95
Soon after Comstock, in Carr ?. United States, the Court addressed the issue of whether SORNA's failure-to-register crime applied to offenders whose interstate travel had occurred before the Act's passage.96 Carr argued that applying the provision to offenders who had engaged in interstate travel only before SORNA's enactment would be a violation of the Ex Post Facto Clause.97 The Court held that the crime applied only to offenders who had traveled in interstate commerce after the Act's enactment, but based this decision only on the statutory language itself.98 It found that the statutory language itself imposed criminal liability only upon offenders who engaged in interstate travel without adhering to their SORNA requirements; therefore, it could not apply to offenders who traveled prior to the effective date of the SORNA requirements." Since the Court held that the statute itself did not impose criminal liability based on preSORNA travel, it did not address the Ex Post Facto Clause question.100 Therefore, this case, like Comstock, did not have any broader implication for the constitutionality of the SORNA requirements in general. Since the Court did not address any constitutional issue, the case does not establish any constitutional precedent.
Lower federal courts and state courts have heard many more cases challenging the constitutionality of SORNA on various grounds. Federal district courts have heard numerous cases brought by defendants challenging their convictions for failing to register under SORNA, but the vast majority of the challenges have been unsuccessful.101 The few district court decisions that have found constitutional violations have often been overturned by subsequent appellate review.102 Federal courts of appeals, in fact, appear to have universally rejected constitutional challenges to SORNA convictions for failure to register.103 Several have held specifically that convictions under SORNA for failing to register do not violate the Ex Post Facto clause, even if the underlying sex offense conviction occurred before SORNA's passage.104 Interestingly, courts have generally relied upon Smith ?. Doe as a basis for these decisions, even though that case addressed a somewhat different issue.105 While Smith addressed Ex Post Facto Clause concerns regarding sex offender registration requirements, it only held that requiring offenders to register and update their registration upon relocation was not an ex post facto law.106 SORNA goes further than the Alaska law that the Supreme Court addressed in Smith - it creates a federal crime for failing to register, and through the Attorney General's regulation, it imposes increased registration requirements for offenders in risk-based states who were already given requirements based on their level of danger ousness.107 There are substantive differences between SORNA and the Wetterling Act, and circuit courts' reliance on Smith suggests that they may not fully be taking these differences into account.108
At least one state court has struck down retroactive application of the SORNA registration requirements.109 Ohio was the first state to comply with SORNA.110 Its statute, like the federal version, mandated new registration requirements for offenders who had already been given registration requirements by a judge.111 Several offenders - including one whose registration requirement would have ended after ten years but had been extended to life under the new regulations - challenged this application of the statute.112 The Ohio Supreme Court held that the retroactive application provision of the statute violated the separation of powers doctrine, and struck down that portion of the statute.113 While this state court decision is not controlling at the federal level, it is significant that the highest court of the first state to comply with the federal law has found that its analogous state law cannot constitutionally be applied retroactively. Retroactive application of the federal Act may suffer from the same constitutional flaw.114
III. THE SEPARATION OF POWERS DOCTRINE
The separation of powers doctrine has long been recognized as one of the fundamental principles controlling the American system of government.115 While the doctrine itself is not explicitly referenced in the text of the Constitution, it was an important consideration for the Fr amers of the Constitution.116 Leading up to the ratification of the Constitution, the Framers discussed at great length the idea of vesting unique powers in separate branches of government.117 The language of the final document explicitly grants legislative powers to Congress,118 executive powers to the President,119 and judicial power to the Supreme Court and lower courts established by Congress.120 This fundamental division has been central to American jurisprudence since the Constitution's ratification. As the Supreme Court explained more than a century ago:
It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. ... It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.121
Today, the separation of powers doctrine seems to be universally accepted, and is not often a subject of litigation.122 Still, certain modern cases indicate that the doctrine remains a very important consideration. In 1998, for example, Justice Kennedy discussed at length separation of powers concerns in his Clinton v. City of New York concurrence.123 More recently, the Court discussed the importance of the writ of habeas corpus as an enforcement mechanism for separation of powers principles in Boumethene ?. Bush.124 These decisions provide evidence that even if the doctrine is generally well understood, it is still very much a live and active element in American jurisprudence.
The separation of powers doctrine raises questions regarding the Attorney General's regulation requiring retroactive application of the SORNA requirements - the regulation may constitute an encroachment on judicial power because it vacates prior judicial decisions.125 The Constitution does not describe the judicial power in the same detail as the other two branches of government; it simply states that the federal judicial power is vested in the federal court system, and explains what cases and controversies these courts have jurisdiction over.126 The idea of a separate judicial power reserved for courts alone was undoubtedly of great importance to the Framers, however. In colonial America, legislatures and assemblies frequently overrode courts, overturning specific judgments and ordering new trials.127 In drafting the Constitution, the Framers sought to correct this lack of independent and final judicial authority and ensure that judicial decisions would be reviewable only by higher courts, not by other government officials.128 Protecting court judgments from review by actors outside the judicial system was clearly an important goal of the separation of powers doctrine embodied by the Constitution.129
Courts began to assert judicial authority almost immediately after the Constitution's ratification. Early cases focused on the specific problem that had concerned the Framers - the review of judicial decisions by other branches of government - and recognized that executive and legislative officials could not reopen decisions made by courts.130 In Hayburn's Case, the Supreme Court suggested that the Attorney General could not review a judicial decision.131 At least one justice explored similar issues in Calder v. Bull, and his opinion has since been viewed to support the proposition that the executive and legislative branches cannot interfere with the final judgments of courts.132 A few years after the Hayburn's and Calder opinions, the Court famously asserted its authority in Marbury ?. Madison, explaining, "[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule."133 In sum, these early decisions established that the courts' judicial power consisted of the ability to define and interpret law, and that these interpretations would not be subject to review by members of the executive or legislative branches.
Since the establishment of these basic judicial powers , government actors outside the judiciary have largely respected the finality of courts' decisions.134 In 1995, however, the Supreme Court heard a case that provided an opportunity for an extensive modern discussion of the judiciary's power to issue final judgments.135 Plant ?. Spendthrift Farm involved a challenge to a provision that had been added to the Securities Exchange Act of 1934.136 The provision was enacted following a Supreme Court decision that had imposed time limits on the filing of certain fraud suits.137 The amendment to the Securities Exchange Act allowed plaintiffs to file motions to reinstate actions that were initially brought before the Supreme Court decision and would have been timely under the prior law, but were dismissed pursuant to the decision.138 The Court held that this provision violated the separation of powers doctrine because it required federal courts to reopen final judgments.139 Justice Scalia explained in the majority opinion that, though judgments remain open while appeals are pending, once the highest court has ruled on an issue or the window for appeal has expired, a judicial decision is final.140 At this point of finality, "a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was."141 The Plant opinion thus reaffirmed the principles of judicial power that were evident in even the earliest cases: that courts have the authority to issue a decision on a particular case or controversy, and that these decisions are constitutionally protected from review by non-judicial actors.
IV. JUDICIAL ENCROACHMENT ANALYSIS APPLIED TO THE RETROACTIVITY REGULATION
As discussed above, courts operating in risk-based regimes under the Wetterling Act made determinations about a sex offender's risk of recidivism, and then applied statutory registration requirements that corresponded to that risk level.142 Changing an offender's registration requirements through legislation overrules the judicial determination of his risk level, such as in cases where an offender was found not to be a sexually violent predator by the court, but must register for life under SORNA. As a result, this Part argues that the Attorney General's regulation retroactively applying SORNA's registration scheme violates the separation of powers doctrine by encroaching on judicial determinations. If Congress and the Attorney General want to maintain any retroactive application of SORNA's requirements, they must find an alternative way to do so.
A. ENCROACHMENT ON JUDICIAL POWER
The retroactivity regulation encroaches on judicial power by changing offenders' registration requirements that had been adjudicated by a court based on the offenders' risk level. Under the Wetterling Act, courts explicitly had authority to determine whether offenders were sexually violent predators.143 Judges made such determinations based on evidence they heard from behavioral experts, victims' rights advocates, and law enforcement officers.144 A determination that a sex offender was a sexually violent predator represented a final, binding judicial decision. In some states, courts had even more authority than on the federal level in issuing an offender's registration requirements. For example, some states allowed or required judges to differentiate between different classes of offenders based upon several factors, including their findings regarding the danger an offender posed to the community and the offender's likelihood of recidivism.146 Admittedly, judges were not imposing registration requirements with complete freedom, since they were working within statutory models and guidelines.146 They could not, for example, assign arbitrary registration durations that were not based on the statutory requirements.147 They did, however, make discretionary determinations as to what category a particular offender fit into, and then order the appropriate statutory requirements based upon those determinations.148
Applying the new SORNA requirements retroactively constitutes a radical change in registration requirements for some offenders.149 If an offender had been convicted, sentenced, and ordered to register for ten years under the Wetterling Act, this meant that a judge had determined that the offender was not a sexually violent predator and therefore did not need to be subjected to harsher requirements.150 Under SORNA, the same offender may fall into Tier II or Tier III based solely on his crime of conviction; the offender would then be subjected to a twenty-five year or even lifetime duration of registration requirements.151 Since SORNA also expanded the definition of "sex offense,"152 some offenders now fall into a SORNA Tier now even though they had not been subject to any registration requirements previously.153 Thus, many offenders face increased registration requirements even though a judge previously determined that they did not pose a level of dangerousness or likelihood of recidivism substantial enough to warrant an extended duration of registration.
This means that Congress has, through SORNA, effectively thrown aside courts' decisions about what category particular offenders fell into. In place of these judicial decisions, Congress has required that these offenders be placed into categories that may be contrary to what a court has already decided. This is quite similar to