Retroactive Application of the Sex Offender Registration and Notification Act: A Modern Encroachment on Judicial Power

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. I. INTRODUCTION 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 A. …