SORNA: A Legal Analysis of 18 U.S.C. § 2250 (Failure to Register as a Sex Offender)

Congressional research reportNov 5, 2021

Ask Donna

What actually matters in this document.

Text

SORNA: A Legal Analysis of 18 U.S.C. § 2250

(Failure to Register as a Sex Offender)

Updated November 5, 2021

Congressional Research Service

https://crsreports.congress.gov

R42692

SUMMARY

SORNA: A Legal Analysis of 18 U.S.C. § 2250

(Failure to Register as a Sex Offender)

R42692

November 5, 2021

Charles Doyle

Senior Specialist in

Section 2250(a) of Title 18 of the United States Code outlaws an individual’s failure to

American Public Law

comply with federal Sex Offender Registration and Notification Act (SORNA)

requirements. SORNA demands that an individual—previously convicted of a

qualifying federal, state, or foreign sex offense—register with state, territorial, or tribal

authorities. Individuals must register in every jurisdiction in which they reside, work, or

attend school. They must also update the information whenever they move, or change their employment or

educational status. For some offenders, the obligations to register and to periodically refresh their registration

information may be subject to a term limit whose duration is based on the severity of the sex offense that triggered

the obligation to register. Section 2250 applies only under one of several jurisdictional circumstances: the

individual was previously convicted of a qualifying federal sex offense; the individual travels in interstate or

foreign commerce; or the individual enters, leaves, or resides in Indian Country. The Supreme Court in Nichols v.

United States held that SORNA, as originally written, had limited application to sex offenders in the United States

who relocated abroad. The International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes

Through Advanced Notification of Traveling Sex Offenders [Act], P.L. 114-119, however, anticipated and

addressed the limitation identified in Nichols, by adding a new offense, Section 2250(b), that replicates the

attributes of the earlier prohibition.

Individuals charged with a violation of Section 2250 may be subject to preventive detention or to a series of pretrial release conditions. If convicted, they face imprisonment for not more than 10 years and/or a fine of not more

than $250,000 as well as the prospect of a post-imprisonment term of supervised release of not less than 5 years.

An offender guilty of a Section 2250 offense, who also commits a federal crime of violence, is subject to an

additional penalty of imprisonment for up to 30 years and not less than 5 years for the violent crime.

The Attorney General exercised statutory authority to make SORNA applicable to qualifying convictions

occurring prior to its enactment. The Supreme Court in United States v. Kebodeaux, 570 U.S. 387 (2013), rejected

the suggestion that Congress lacks the constitutional authority to make Section 2250 applicable, because of a prior

federal offense and intrastate noncompliance, to individuals who had served their sentence and been released from

federal supervision prior to SORNA’s enactment. The Supreme Court in Gundy v. United States, 139 S. Ct. 2116

(2019), also rejected the argument that SORNA’s grant of authority to the Attorney General constituted an

unguided delegation of legislative authority.

The lower federal appellate courts have rejected other challenges to Section 2250’s constitutional validity. Those

challenges have included arguments under the Constitution’s Ex Post Facto, Due Process, Cruel and Unusual

Punishment, Commerce, Necessary and Proper, and Spending Clauses.

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Contents

Introduction ..................................................................................................................................... 1

Background ..................................................................................................................................... 1

Elements .......................................................................................................................................... 3

Obligation to Register and Maintain Registration..................................................................... 3

Registration Requirements .................................................................................................. 3

Qualifying Convictions ....................................................................................................... 6

Foreign Convictions, Juvenile Adjudications, and Consensual Sex Acts ........................... 8

Pre-SORNA Convictions .................................................................................................... 9

Expired Obligation ............................................................................................................. 11

Jurisdictional Elements ........................................................................................................... 13

Travel ................................................................................................................................ 13

Indian Country .................................................................................................................. 13

Federal Crimes .................................................................................................................. 13

Knowing Failure to Register ................................................................................................... 14

Affirmative Defense ................................................................................................................ 14

Other Attributes ....................................................................................................................... 15

Venue ................................................................................................................................ 15

Bail .................................................................................................................................... 15

Fine and Imprisonment ..................................................................................................... 15

Supervised Release ........................................................................................................... 19

Constitutional Considerations ....................................................................................................... 22

Ex Post Facto........................................................................................................................... 22

Due Process ............................................................................................................................. 23

Right to Travel......................................................................................................................... 25

Cruel and Unusual Punishment ............................................................................................... 25

Legislative Authority............................................................................................................... 26

Tenth Amendment ............................................................................................................. 26

Standing ............................................................................................................................ 26

Spending for the General Welfare ..................................................................................... 27

Commerce Clause ............................................................................................................. 28

Necessary and Proper ........................................................................................................ 29

Separation of Powers: Non-Delegation............................................................................. 32

Attachments ................................................................................................................................... 33

18 U.S.C. § 2250 (text) ........................................................................................................... 33

Failure to register .............................................................................................................. 33

Principal State SORNA Statutes (citations) ............................................................................ 33

Contacts

Author Information........................................................................................................................ 35

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Introduction

Federal law punishes convicted sex offenders if they fail to register or to update their registration

as the Sex Offender Registration and Notification Act (SORNA) demands.1 The basic offense

under Section 2250(a) consists of three elements: (1) a continuing obligation to report to the

authorities in any jurisdiction in which the individual resides, works, or attends school; (2) the

knowing failure to comply with registration requirements; and (3) a jurisdictional element, i.e.,

(a) an obligation to register as a consequence of a prior qualifying federal conviction or (b)(i)

travel in interstate or foreign commerce, or (ii) travel into or out of Indian Country, or (c)

residence in Indian Country.2 Violators face imprisonment for not more than 10 years. The

registration offense3 carries an additional penalty of imprisonment for not more than 30 years, but

not less than 5 years, if the offender is also guilty of a federal crime of violence.4

Federal law also punishes overseas travel coupled with a failure to register that intent.5 The

elements of this shadow or supplemental offense, Section 2250(b), are: (1) an obligation to

attempting to engage in international travel. The affirmative defense and sentencing provisions

are the same as those that apply to the original offense.6

Background

The Adam Walsh Child Protection and Safety Act created SORNA.7 SORNA revised an earlier

nationwide sex offender registration system under the Jacob Wetterling Act. The Jacob Wetterling

Act encouraged the states to establish and maintain a registration system.8 Each of them had done

so.9 Their efforts, however, though often consistent, were hardly uniform.10

The Walsh Act preserves the basic structure of the Wetterling Act, expands upon it, and adds

greater specificity to matters that were previously left to individual state choice. The Walsh Act

contemplates a nationwide, state-based, publicly available, contemporaneously accurate, online

1 18 U.S.C. § 2250. This report is available in an abridged version, CRS Report R42691, SORNA: An Abridged Legal

Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender), without the footnotes or the attribution or citations

to authority found here.

2 Id. § 2250(a).

3 Id.

4 Id. § 2250(d). Under 18 U.S.C. § 16(a), “[t]he term ‘crime of violence’ means -- (a) an offense that has as an element

the use, attempted use, or threatened use of physical force against the person or property of another.”

5 Id. § 2250(b).

Id. § 2250.

7 P.L. 109-248, 120 Stat. 587 (2006), codified as amended at 34 U.S.C. §§ 20901-20932 and 18 U.S.C. §2250; see

generally CRS Report R46863, Federal Requirements for State and Military Registered Sex Offender Management, by

Emily J. Hanson, Alan Ott, and Hibbah Kaileh.

8 42 U.S.C. §§ 14071-14073 (repealed).

9 Citations to the state statutes in effect at the time of the Walsh Act’s enactment appear in CRS Report RL33967,

Adam Walsh Child Protection and Safety Act: A Legal Analysis, by Charles Doyle, 1-2 n.8. Citations to the principal

state SORNA statutes are attached.

10 Reynolds v. United States, 565 U.S. 432, 435 (2012) (“The new federal Act reflects Congress’ awareness that preAct registration law consisted of a patchwork of federal and 50 individual state registration systems.”) (here and

throughout internal citations have generally been omitted).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

system.11 Jurisdictions that fail to meet the Walsh Act’s threshold requirements face the prospect

of losing a portion of their federal criminal justice assistance grants.12

The Walsh Act vests the Attorney General with authority to determine the extent to which

SORNA would apply to those with qualifying convictions committed prior to enactment.13 After

enactment, the Attorney General promulgated implementing regulations that imposed the

registration requirements on those with pre-enactment convictions.14

Conscious of the legal and technical adjustments required of the states, the Walsh Act afforded

jurisdictions an extension to make the initial modifications necessary to bring their systems into

compliance.15 Thereafter, states not yet in compliance have been allowed to use the penalty

portion of their federal justice assistance funds for that purpose.16 The Justice Department

11 Office of the Attorney General, The National Guidelines for Sex Offender Registration and Notification (National

Guidelines), 73 Fed. Reg. 38,030, 38,044-45 (July 2, 2008); see also Office of the Attorney General, Supplemental

Guidelines for Sex Offender Registration and Notification, 76 Fed. Reg. 1630 (Jan. 11, 2011); Office of the Attorney

General, Supplemental Guidelines for Juvenile Registration under the Sex Offender Registration and Notification Act

(Juvenile Guidelines), 81 Fed. Reg. 50,552 (Aug. 1, 2016). The Guidelines are available at https://smart.ojp.gov/sorna/

current-law#Attorney. See generally 28 C.F.R. §§ 72.1–72.3.

12 34 U.S.C. § 20927.

13 Id. § 20913(d).

14 72 Fed. Reg. 8894-97 (Feb. 28, 2007) (interim rule); 75 Fed. Reg. 18,849-53 (Dec. 29, 2010) (final rule), 28 C.F.R.

pt. 72.

15 34 U.S.C. § 20926 (“(a) Deadline. Each jurisdiction shall implement this subchapter before the later of- (1) 3 years

after July 27, 2006; and (2) 1 year after the date on which the software described in section 20925 of this title is

available. (b) Extensions. The Attorney General may authorize up to two 1-year extensions of the deadline.”). 34

U.S.C. § 20927 (“(a) In general. For any fiscal year after the end of the period for implementation, a jurisdiction that

fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of

the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of

the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.). (b) State constitutionality. (1) In

general. When evaluating whether a jurisdiction has substantially implemented this subchapter, the Attorney General

shall consider whether the jurisdiction is unable to substantially implement this subchapter because of a demonstrated

inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined

by a ruling of the jurisdiction’s highest court. (2) Efforts. If the circumstances arise under paragraph (1), then the

Attorney General and the jurisdiction shall make good faith efforts to accomplish substantial implementation of this

subchapter and to reconcile any conflicts between this subchapter and the jurisdiction’s constitution. In considering

whether compliance with the requirements of this subchapter would likely violate the jurisdiction’s constitution or an

interpretation thereof by the jurisdiction’s highest court, the Attorney General shall consult with the chief executive and

chief legal officer of the jurisdiction concerning the jurisdiction’s interpretation of the jurisdiction’s constitution and

rulings thereon by the jurisdiction’s highest court. (3) Alternative procedures. If the jurisdiction is unable to

substantially implement this subchapter because of a limitation imposed by the jurisdiction’s constitution, the Attorney

General may determine that the jurisdiction is in compliance with this chapter if the jurisdiction has made, or is in the

process of implementing reasonable alternative procedures or accommodations, which are consistent with the purposes

of this chapter. (4) Funding reduction. If a jurisdiction does not comply with paragraph (3), then the jurisdiction shall

be subject to a funding reduction as specified in subsection (a). (c) Reallocation. Amounts not allocated under a

program referred to in this section to a jurisdiction for failure to substantially implement this subchapter shall be

reallocated under that program to jurisdictions that have not failed to substantially implement this subchapter or may be

reallocated to a jurisdiction from which they were withheld to be used solely for the purpose of implementing this

subchapter. (d) Rule of construction. The provisions of this subchapter that are cast as directions to jurisdictions or their

officials constitute, in relation to States, only conditions required to avoid the reduction of Federal funding under this

section.”).

16 U.S. Dep’t of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking,

Requests for Reallocation of Byrne JAG Funding Penalty, available at https://smart.ojp.gov/sorna/substantialimplementation (last visited Nov. 4, 2021).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

indicates that 18 states, 4 territories, and numerous tribes are now in substantial compliance with

the 2006 legislation.17

Elements

Section 2250(a) convictions require the government to prove that (1) the defendant had an

obligation under SORNA to register and to maintain the currency of his registration information;

(2) the defendant knowingly failed to comply; and (3) one of the section’s jurisdictional

prerequisites has been satisfied.18

Section 2250(b) convictions require the government to prove that (1) the defendant had an

obligation under SORNA to register and to maintain the currency of his registration information;

(2) the defendant knowingly failed to report an intent to travel in foreign commerce; and (3) the

defendant engaged in or attempted to engage in travel in foreign commerce.19

Obligation to Register and Maintain Registration

Registration Requirements

SORNA directs anyone previously convicted of a federal, state, local, tribal, or foreign qualifying

offense to register and to keep his registration information current for as long as SORNA requires

in each jurisdiction in which he resides or is an employee or a student.20 Initially, he must also

17 U.S. Dep’t of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking,

SORNA Implementation Status, https://smart.ojp.gov/sorna/sorna-implementation-status (last visited Sept. 21, 2021).

For a discussion of some difficulties associated with implementation in the states and the efforts of the Justice

Department to facilitate the process, see Jennifer N. Wang, Paying the Piper: The Cost of Compliance with the Federal

Sex Offender Registration and Notification Act, 59 N.Y. L. SCH. L. REV. 681 (2015); Lori McPherson, The Sex Offender

Registration and Notification Act (SORNA) at 10 years: History, Implementation, and the Future, 64 DRAKE L. REV.

741 (2016); Andrew J. Harris, Kimberly R. Kras, Christopher Lobanov-Rostovsky & Qurat Ann, States’ SORNA

Implementation Journeys: Lessons Learned and Policy Implications, 23 NEW CRIM. L. REV. 315 (2020); U.S. Gov’t

Accountability Off., GAO-13-211, Sex Offender Registration and Notification Act: Jurisdictions Face Challenges to

Implement the Act, and Stakeholders Report Positive and Negative Effects (Feb. 2013); U.S. Gov’t Accountability Off.,

GAO-15-23, Sex Offender Registration and Notification Act: Additional Outreach and Notification of Tribes about

Offenders Who Are Released Needed (2014).

18 18 U.S.C. § 2250(a) (“Whoever - (1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of

a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia,

Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign

commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration

as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more

than 10 years, or both.”).

Unless the registration requirement flows from a federal conviction or residence in Indian Country, “the statutory

sequence begins when a person becomes subject to SORNA’s registration requirements. The person must then travel in

interstate commerce and thereafter fail to register.” Carr v. United States, 560 U.S. 438, 466 (2010); see also United

States v. Gundy, 804 F.3d 140, 141 (2d Cir. 2015), aff’d, 139 S. Ct. 2116 (2019), reh’g denied, 140 S. Ct. 579 (2019);

United States v. Seward, 967 F.3d 57, 61 (1st Cir. 2020).

19 18 U.S.C. § 2250(b) (“(b) International Travel Reporting Violations.-Whoever- (1) is required to register under the

Sex Offender Registration and Notification Act (42 U.S.C. §§ 16901 et seq.) [now 34 U.S.C. §§ 20901et

seq.]; (2) knowingly fails to provide information required by the Sex Offender Registration and Notification Act

relating to intended travel in foreign commerce; and (3) engages or attempts to engage in the intended travel in foreign

commerce; shall be fined under this title, imprisoned not more than 10 years, or both.”).

20 34 U.S.C. § 20913(a) (“A sex offender shall register, and keep the registration current, in each jurisdiction where the

offender resides, where the offender is an employee, and where the offender is a student. . . .”). “The term ‘sex

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Registrants who relocate or who change their names, jobs, or schools have three business days to

appear and update their registration in at least one of the jurisdictions in which they reside, work,

or attend school.22 The courts have said that the obligation runs from the time of departure rather

than arrival; that is, from when the offender leaves his former residence, job, or school rather than

when he acquires a new residence or a new job or enrolls in a different school.23

SORNA defines broadly the terms “resides,” “student,” and “employee.”24 For example “[t]he

term ‘resides’ means, with respect to an individual, the location of the individual’s home or other

place where the individual habitually lives.”25 The Attorney General’s National Guidelines

observe that “[t]he scope of ‘habitually lives’ in this context is not self-explanatory and requires

further definition.”26 The National Guidelines supply the state, territorial, and tribal authorities

some guidance for the task. They point out that the term “habitually lives” may encompass

instances where the offender “has no home or fixed address in the jurisdiction, or no home

anywhere.”27 Moreover, they state that “[t]he specific interpretation of this element of ‘residence’

which these Guidelines adopt is that a sex offender habitually lives in the relevant sense in any

place in which … the sex offender lives in the jurisdiction for at least 30 days.”28 This 30-day

ceiling, however, “does not mean that the registration of a sex offender who enters the jurisdiction

to reside may be delayed until after he has lived in the jurisdiction for 30 days. Rather, a sex

offender who enters a jurisdiction in order to make his home or habitually live in the jurisdiction

may be required to register within three business days.”29

offender’ means an individual who was convicted of a sex offense.” Id. § 20911(1). “[T]he term ‘sex offense’ means –

a criminal offense . . . a [designated] Federal offense . . . [or] a military offense. . . .” Id. § 20911(5)(A)(1). “The term

‘criminal offense’ means a State, local, tribal, foreign, or military offense . . . or other criminal offense.” Id. §

20911(6). SORNA defines “jurisdiction” as “any of the following: (A) A State. (B) The District of Columbia. (C) The

Commonwealth of Puerto Rico. (D) Guam. (E) American Samoa. (F) The Northern Mariana Islands. (G) The United

States Virgin Islands. (H) To the extent provided and subject to the requirements of section 20929 of this title, a

federally recognized Indian tribe.” Id. § 20911(10).

21 Id. § 20913(a). This requirement to register in the state of conviction does not cover pre-SORNA offenders who were

already registered with authorities in the states in which they resided when the Attorney General made SORNA

retroactively applicable. United States v. DeJarnette, 741 F.3d 971, 975-82 (9th Cir. 2013).

22 34 U.S.C. § 20913(c) (“A sex offender shall, not later than 3 business days after each change of name, residence,

employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform

that jurisdiction of all changes in the information required for that offender in the sex offender registry. That

jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to

23 United States v. Murphy, 664 F.3d 798, 800-03 (10th Cir. 2011); United States v. Van Buren, 599 F.3d 170, 174-75

(2d Cir. 2010); United States v. Voice, 622 F.3d 870, 875 (8th Cir. 2010). Each of these cases involved a change of

residence rather than employment or education, but the distinction should make no difference. Whether these cases

which involve moving abroad remain good law with regard to relocating within the United States after the Supreme

Court’s Nichols decision remains to be seen. In Nichols, the Court overturned the Section 2250 conviction of a sex

offender who left Kansas for the Philippines. The Court reasoned that he could not be convicted for failure to report the

move to the jurisdiction in which he “resides” when he resided in the Philippines, a nonjurisdiction. Nichols v. United

States, 578 U.S. 104 (2016).

24 34 U.S.C. §§ 20911(11) – 20911(13).

25 Id. § 20911(13).

26 National Guidelines, 73 Fed. Reg. 38,030, 38,061 (July 2, 2008).

27 Id.

28 Id. at 38,062.

29 Id. See also United States v. Thompson, 811 F.3d 717, 729-30 (5th Cir. 2016); United States v. Alexander, 817 F.3d

1205, 1214 (10th Cir. 2016) (“The same registration requirements apply in the case at bar. If the jury finds that

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

SORNA and the National Guidelines provide comparable general definitions and minimum

standards for the terms “employee” and “student.” An “‘employee’ includes an individual who is

self-employed or works for any other entity, whether compensated or not.”30 The National

Guidelines here speak largely in terms of examples. For instance, they note that “a sex offender

who resides in jurisdiction A and commutes to work in jurisdiction B must register and keep the

registration current in both jurisdictions.”31 Some examples are designed to alert the state, local,

and tribal jurisdiction of challenges to be addressed. One representative illustration suggests that

with respect to interstate truck drivers:

If a sex offender has some employment-related presence in a jurisdiction, but does not have

a fixed place of employment or regularly work within the jurisdiction, line drawing

questions may arise, and jurisdictions may resolve these questions based on their own

judgments. For example, if a sex offender who is long haul trucker regularly drives through

dozens of jurisdictions in the course of his employment, it is not required [that] all such

jurisdictions must make the sex offender register based on his transient employment-related

presence, but rather may treat such cases in accordance with their own policies. 32

A sex offender who is employed may not have a fixed place of employment - e.g., a longhaul trucker whose “workplace” is roads and highways throughout the country…. Knowing

as far as possible where such a sex offender is in the course of employment serves the same

public safety purposes as the corresponding information regarding a sex offender who is

employed at the fixed location. The authority under section 114(a)(7) [requiring

registration employment information] is accordingly exercised to require that information

be obtained and included in the registry concerning the places where such a sex offender

works with whatever definiteness is possible under the circumstances, such as information

about normal travel routes … in which the sex offender works. 33

The definition of the term “student” is somewhat more confined. The term means “an individual

who enrolls in or attends an educational institution, including (whether public or private) a

secondary school, trade or professional school, and institution of higher education.”34 The

National Guidelines explain that “enrollment or attendance in this context should be understood

as referring to attendance at a school in a physical sense.”35

In Nichols v. United States, the Supreme Court found that SORNA’s requirements in place at the

time did not apply when offenders relocated abroad.36 Anticipating the problem, Congress passed

the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through

Advanced Notification of Traveling Sex Offenders [Act], which among other things, amends

Alexander intended to make Williams’ apartment his home or intended to ‘habitually live’ at Williams’ apartment (i.e.,

that Alexander intended to live at Williams’ apartment for thirty days or more), then it would necessarily have to find

that he violated SORNA because it is undisputed that he did not register within three business days after arriving in Las

Cruces.”). Alexander’s conviction was ultimately overturned because the jury instructions may have been confusing.

Id. at 1215.

30 34 U.S.C. § 20911(12).

31 National Guidelines, 73 Fed. Reg. at 38,062.

32 Id.

33 Id. at 38,056.

34 34 U.S.C. § 20911(11).

35 National Guidelines, 73 Fed. Reg. at 38,062.

36 Nichols v. United States, 578 U.S. 104 (2016).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

SORNA to compel offenders to supplement their registration statements with information relating

to their plans to travel abroad.37

Qualifying Convictions

Only those convicted of a qualifying sex offense must register. There are five classes of

qualifying offenses: (1) designated federal sex offenses; (2) specified military offenses; (3) crimes

identified as one of the “special offenses against a minor”; (4) crimes in which some sexual act or

sexual conduct is an element; and (5) attempts or conspiracies to commit any offense in one of

these other classes of qualifying offenses.38 Certain foreign convictions, juvenile adjudications,

and offenses involving consensual sexual conduct do not qualify as offenses that require

offenders to register under SORNA.39 SORNA does not provide an avenue to challenge the

validity of a qualifying domestic conviction.40

Federal Qualifying Offenses

Federal qualifying offenses “(including an offense prosecuted under section 1152 or 1153 of title

18)” consist of those “under section 1591, or chapter 109A, 110 (other than section 2257, 2257A,

or 2258), or 117, of title 18,” that is:41



18 U.S.C. § 1591 (sex trafficking of children or by force or fraud)

18 U.S.C. § 2241 (aggravated sexual abuse)

18 U.S.C. § 2242 (sexual abuse)

18 U.S.C. § 2243 (sexual abuse of ward or child)

18 U.S.C. § 2244 (abusive sexual contact)

18 U.S.C. § 2245 (sexual abuse resulting in death)

18 U.S.C. § 2251 (sexual exploitation of children)

18 U.S.C. § 2251A (selling or buying children)

18 U.S.C. § 2252 (transporting, distributing, or selling child sexually exploitive

material)

18 U.S.C. § 2252A (transporting or distributing child pornography)

18 U.S.C. § 2252B (misleading Internet domain names)

18 U.S.C. § 2252C (misleading Internet website source codes)

18 U.S.C. § 2260 (making child sexually exploitative material overseas for

export to the U.S.)

18 U.S.C. § 2421 (transportation for illicit sexual purposes)

18 U.S.C. § 2422 (coercing or enticing travel for illicit sexual purposes)

18 U.S.C. § 2423 (travel involving illicit sexual activity with a child)

37 P.L. 114-119, 130 STAT. 15 (2016), codified at 42 U.S.C. § 16914(a)(7) [now 34 U.S.C. § 20914(a)(7)].

38 34 U.S.C. § 20911(1), (5), (7).

39 Id. § 20911(1), (5).

40 United States v. Diaz, 967 F.3d 107, 109-10 (2d Cir. 2020) (“We agree that SORNA does not permit defendants to

challenge [domestic] predicate sex offense convictions. . . . Diaz’s argument that SORNA permits collateral attack

through 34 U.S.C. § 20911(5)(B) (the ‘Foreign Conviction Exception’) is unpersuasive.”).

41 34 U.S.C. § 20911(5)(A)(iii).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250



18 U.S.C. § 2424 (filing false statement concerning an alien for illicit sexual

purposes)

18 U.S.C. § 2425 (interstate transmission of information about a child relating to

illicit sexual activity).

Military Qualifying Offenses

The list of military qualifying offenses in the Uniform Code of Military Justice (UCMJ) varies

according to the date of the offense. For offenses committed on or after June 28, 2012, the

inventory includes:



UCMJ art. 120: Rape, Sexual Assault, Aggravated Sexual Contact, and Abusive

Sexual Contact

UCMJ art. 120b: Rape, Sexual Assault, and Sexual Abuse of a Child

UCMJ art. 120c: Pornography and Forcible Pandering

UCMJ art. 134: General Article (Prostitution, Child Pornography)

UCMJ art. 80: Attempt (to commit a qualifying offense)

UCMJ art. 81: Conspiracy (to commit a qualifying offense)

UCMJ art. 82: Solicitation (to commit a qualifying offense) 42

Specified Offenses Against a Child Under 18

Other federal, state, local, tribal, military, or foreign offenses qualify when they involve:



An offense against a child (unless committed by a parent or guardian) involving

kidnapping.



An offense against a child (unless committed by a parent or guardian) involving

false imprisonment.

Solicitation to engage in sexual conduct with a child.

Use of a child in a sexual performance.

Solicitation to practice child prostitution.

Video voyeurism as described in section 1801 of title 18 committed against a

child.



Possession, production, or distribution of child pornography.

Criminal sexual conduct involving a minor, or the use of the Internet to facilitate

or attempt such conduct.

Any conduct that by its nature is a sex offense against a minor.43

42 U.S. Dep’t of Defense, Dep’t of Defense Instruction 1325.07, Enclosure 2, Appendix 4 (Mar. 11, 2013), Change 4,

Table 6 (Aug. 19, 2020) (offenses committed on or after June 28, 2012), available at https://www.esd.whs.mil/Portals/

54/Documents/DD/issuances/dodi/132507p.pdf?ver=2020-08-20-082115-117. Table 4 lists the covered offenses

committed before Oct. 1, 2007; Table 5 lists the covered offenses committed between Oct. 1, 2007 and June 28, 2012.

43 34 U.S.C. § 20911(7), (5)(A)(ii), (6), (14). Rather than the categorical approach, courts inquire into the

circumstances of a conviction to determine whether it constitutes a conviction for “conduct that by its nature is a sex

offense against a minor” triggering the obligation to register. See United States v. Burgee, 988 F.3d 1054, 1058 (8th

Cir. 2021); United States v. Dailey, 941 F.3d 1183, 1192-93 (9th Cir. 2019) (discussing circumstances involving a

Travel Act conviction); United States v. Price, 777 F.3d 700, 708-10 (4th Cir. 2015) (discussing circumstances

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Crimes with a Sex Element

In addition, any federal, state, local, military, or foreign “criminal offense that has an element

involving a sexual act or sexual contact with another” qualifies.44

Attempt or Conspiracy

Finally, any attempt or conspiracy to commit one of the other qualifying offenses also qualifies.45

Foreign Convictions, Juvenile Adjudications, and Consensual Sex Acts

Juvenile Adjudications

Beyond conviction as an adult for a qualifying offense, juvenile adjudications that involve

qualifying offenses trigger SORNA’s reporting requirements (1) if the individual was 14 years or

older at the time of the misconduct and (2) the misconduct “was comparable to or more severe

than” the federal crime of aggravated sexual abuse (as defined in 18 U.S.C. § 2241) or was an

attempt or conspiracy to engage in such misconduct.46 The federal aggravated sexual abuse

offenses include sexual acts committed by force, threat, or incapacitating the victim. 47 Although

the Federal Juvenile Delinquency Act limits disclosure of federal judicial delinquency

proceedings,48 it does not excuse compliance with SORNA’s registration requirements.49

surrounding a state “assault and battery of a high and aggravated nature” conviction); United States v. Dodge, 597 F.3d

1347, 1353-56 (11th Cir. 2010) (discussing circumstances surrounding a federal “transfer of obscene material to a

child” conviction).

44 34 U.S.C. § 20911(5)(A)(i); see e.g., United States v. Vineyard, 945 F.3d 1164, 1168-69 (11th Cir. 2019). SORNA

defines neither “sexual act” nor “sexual contact.” The terms are defined elsewhere in the United States Code as

follows: 18 U.S.C. § 2246(2), (3) (“(2) the term ‘sexual act’ means - (A) contact between the penis and the vulva or the

penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however

slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the

penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional

touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person . . . (3) the term ‘sexual

contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast,

inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual

desire of any person,”) (adopted by cross reference in 20 U.S.C. § 6777(e)(8); 20 U.S.C. § 9134(f)(7)(E); 47 U.S.C. §

254(h)(7)(H); and 47 U.S.C. § 902 note (P.L. 106-554, 114 Stat. 2763A-336 (2000)).

45 34 U.S.C. § 20911(5)(A)(v).

46 Id. § 20911(8).

47 Id. § 20911(8); 18 U.S.C. § 2241. The Guidelines note that, by virtue of 18 U.S.C. § 2246, the “sexual acts”

condemned in § 2241 “include any degree of genital or anal penetration, and any oral-genital or oral-anal contact,”

National Guidelines, 73 Fed. Reg. 38,030, 38,050 (July 2, 2008). They do not mention that, by the same token, “sexual

acts” for purposes of § 2241 also include “the intentional touching, not through the clothing, of the genitalia of another

person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify

the sexual desire of any person.” 18 U.S.C. § 2246(2)(D).

48 Id. § 5038(a).

49 United States v. Under Seal, 709 F.3d 257, 261-63 (4th Cir. 2013).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Consensual Sex Offenses

SORNA excludes from its registration requirements adult consensual sexual offenses.50 The

exception does not extend, however, to instances when the victim is in the custody of the

offender. The exception is available, however, when the victim was a child 13 years or older and

the offender was “not more than 4 years older than the victim.”51

Foreign Convictions

Qualifying foreign convictions consist only of those “obtained with sufficient safeguards for

fundamental fairness and due process of the accused.”52 The National Guidelines state that “[s]ex

offense convictions under the laws of any foreign country are deemed to have been obtained with

sufficient safeguards for fundamental fairness and due process if the U.S. State Department, in its

Country Reports on Human Rights Practices, has concluded that an independent judiciary

generally (or vigorously) enforced the right to a fair trial in that country during the year in which

the conviction occurred.”53 They go on to point out, however, that SORNA establishes only

minimum requirements. States and other jurisdictions remain free to require registration based on

any foreign conviction.54

Pre-SORNA Convictions

SORNA delegated to the Attorney General “the authority to specify the applicability of the

requirements of [SORNA] to sex offenders convicted before [its] enactment.”55 The Supreme

Court resolved a split among the lower federal courts when it declared in Reynolds v. United

States that SORNA’s “registration requirements did not apply to pre-Act offenders until the

Attorney General specifies that they did apply.”56

Yet the Court left unresolved the question of when the Attorney General had specified that they

apply. This too is a matter upon which the lower federal appellate courts disagreed. The issue

involved Administrative Procedure Act (APA) compliance. The APA provides that the public

generally must be given an opportunity to comment before a regulatory proposal becomes final.57

Good cause may excuse the need to honor this “notice and comment” prerequisite.58

The Attorney General issued an Interim Rule on February 28, 2007, in which he announced that

SORNA’s requirements “apply to all sex offenders, including sex offenders convicted of the

50 34 U.S.C. § 20911(5)(C). The exception is also unavailable for convictions of sexual assault when the defendant

induces fear and consent through misrepresentation. United States v. Alexander, 802 F.3d 1134, 1140 (10th Cir. 2015).

51 34 U.S.C. § 20911(5)(C). For purposes of § 20911(5)(C), “4 years” is 48 months or 1,461 days. See United States v.

Brown, 740 F.3d 145, 149 (3d Cir. 2014) (holding that the § 16911(5)(C) [now 20911(5)(C)] exception did not apply

when the offender was 17 and the victim 13, but the offender is 52 months older, rather than 48 months older, than the

victim); see also United States v. Black, 773 F.3d 1113, 1115 (10th Cir. 2014) (holding that §16911(5)(C) exception

did not apply when the 18-year-old offender was 55 months older than the 14-year-old victim).

52 34 U.S.C. § 20911(5)(B).

53 National Guidelines, 73 Fed. Reg. at 38,050.

54 Id. at 38,051.

55 34 U.S.C. § 20913(d).

56 Reynolds v. United States, 565 U.S. 432, 435 (2012).

57 5 U.S.C. § 553.

58 Id. § 553(b), (d).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

offense for which registration is required prior the enactment of that Act.”59 He claimed, as good

cause to dispense with notice and comment, the need to eliminate uncertainty and “to protect the

public from sex offenders who failed to register.”60

On July 2, 2008, after a notice and comment period, the Attorney General promulgated the

National Guidelines, which cited the Interim Rule for the proposition that SORNA’s date of

enactment (July 27, 2006) marked the date upon which all sex offenders, including those whose

convictions predated SORNA, were bound by its dictates.61 On December 29, 2010, the Attorney

General promulgated a final rule, effective January 28, 2011, that declared the 2007 Interim Rule

final with respect to SORNA’s application to convictions that predate its enactment.62

Three U.S. Circuit Courts of Appeals rejected the argument that APA noncompliance invalidated

the Attorney General’s effort in the 2007 Interim Rule to bring pre-enactment convictions within

SORNA requirements.63 Four other circuits found the Attorney General had failed to meet APA

standards in 2006.64 Of these four, one found prejudicial, reversible error,65 while another found

the error harmless.66 The other pair concluded that the procedures used to promulgate the 2008

National Guidelines satisfied APA requirements,67 and that SORNA’s application to preenactment convictions became effective on August 1, 2008 (i.e., 30 days after valid promulgation,

as required by the APA).68 Whichever view on APA compliance the circuits found most

convincing, they initially seemed to settle on an application date no later than August 1, 2008.69

The D.C. Circuit, however, rejected this suggestion and appeared to endorse January 28, 2011, the

effective date of the Attorney General’s December 29, 2010 final order.70

59 72 Fed. Reg. 8894, 8897 (Feb. 28, 2007), 28 C.F.R. § 72.3.

60 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007), 28 C.F.R. pt.72.

61 National Guidelines, 73 Fed. Reg. at 38,046 (“Rather, SORNA’s requirements took effect, when SORNA was

enacted on July 26, 2007, and they have applied since that time to all sex offenders, including those whose convictions

predate SORNA’s enactment. See 72 Fed. Reg. 8894, 8895-96 (Feb. 28, 2007).”).

62 73 Fed. Reg. 81,849 (Dec. 28, 2010).

63 United States v. Dean, 604 F.3d 1275, 1278-82 (11th Cir. 2010) (“The Attorney General had good cause to bypass

the Administrative Procedure Act’s notice and comment requirements.”); United State v. Gould, 568 F.3d 459, 470 (4th

Cir. 2009) (“[T]he Attorney General had good cause to invoke the exception to providing the 30-day notice.”); United

States v. Dixon, 551 F.3d 578, 583 (7th Cir. 2008) (characterizing the APA argument as “frivolous”).

64 United States v. Reynolds, 710 F.3d 498, 510-14 (3d Cir. 2013); United States v. Johnson, 632 F.3d 912, 927-30 (5th

Cir. 2011) (“[W]e do not find the Attorney General’s reasons for bypassing the APA’s notice-and-comment and thirty

day provisions persuasive.”); United States v. Valverde, 628 F.3d 1159, 1164-68 (9th Cir. 2010); United States v. Cain,

583 F.3d 408, 419-24 (6th Cir. 2009).

65 Reynolds, 710 F.3d at 514-24.

66 Johnson, 632 F.3d at 933 (“Because the Attorney General’s rulemaking process addressed the same issues raised by

Johnson and because Johnson makes no showing that the outcome of the process would have been different . . . had

notice been at its meticulous best, we find it is clear that the Attorney General’s APA violations were harmless error.”).

67 Valverde, 628 F.3d at 1164; United States v. Utesch, 596 F.3d 302, 310 (6th Cir. 2010).

68 Valverde, 628 F.3d at 1169; United States v. Stevenson, 676 F.3d 557, 562-66 (6th Cir. 2012).

69 Cf., United States v. Gundy, 804 F.3d 140, 145 (2d Cir. 2016), aff’d, 139 S. Ct. 2116 (2019), reh’g denied, 140 S. Ct.

579 (2019); United States v. Brewer, 766 F.3d 884, 885 (8th Cir. 2014); United States v. Whitlow, 714 F.3d 41, 45 (1st

Cir. 2013).

70 United States v. Ross, 848 F.3d 1129, 1131-32 (D.C. Cir. 2017) (“[T]he Supreme Court has read the act not to make

its registration requirement inapplicable ‘to pre-Act offenders’ until the Attorney General so specifies. Reynolds, 136 S.

Ct. at 984. What is critical for our purposes is when the Attorney General so specified. The obvious candidate for this

specification is a rule the Attorney General issued in December, 2010 after a rule making whose APA compliance is

not contested here. But this rule took effect too late to support Ross’s conviction for failure to update his registration in

the wake of his 2009 move to Ohio. The government contends that two earlier actions suffice: an interim rule issued in

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Expired Obligation

Section 2250 applies only to those with an obligation to register or to periodically refresh their

registration information,71 and the duration of those obligations under SORNA vary according to

the classification of an offender’s qualifying offense of conviction.72 SORNA classifies offenders

in tiers, with Tier III reserved for offenders convicted of the most serious federal sex offenses or

their equivalents under state law.73 SORNA assigns offenders with somewhat less serious federal

sex offenses or their equivalents under state law to Tier II.74 Tier I consists of all other offenders

required to register.75

Absent a reduction for a clean record, Tier I offenders have a registration period of 15 years; Tier

II offenders have a registration period of 25 years; and Tier III offenders have a registration

period of life.76 Tier I offenders with a clean record for 10 years are eligible for a 5-year reduction

of their registration period.77 Tier II offenders have no opportunity of a clean-record reduction.78

Offenders classified as Tier III offenders by virtue of a juvenile adjudication with a clean record

for 25 years are eligible for reduction of their life-time registration period to 25 years.79

2007 and ‘guidelines’ proposed in 2007 and finalized in 2008. We find them inadequate.”); see also Gundy v. United

States, 139 S. Ct. 2116, 2122 (2019) (“Under that delegated authority, the Attorney General issued an interim rule in

February 2007, specifying that SORNA’s registration requirement apply in full to sex offenders convicted of the

offense for which registration is required prior to the enactment of the Act. The final rule, issued in December 2010,

reiterated that SORNA applies to all pre-Act offenders. That rule remains the same to this day.”).

71 18 U.S.C. § 2250(a)(1); 34 U.S.C. § 20919(a).

72 34 U.S.C. § 20915(a).

73 Id. § 20911(4) (“In this subchapter the following definitions apply: … (4) The term ‘tier III sex offender’ means a

sex offender whose offense is punishable by imprisonment for more than 1 year and- (A) is comparable to or more

severe than the following offenses, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse

or sexual abuse (as described in sections 2241 and 2242 of title 18); or (ii) abusive sexual contact (as described in

section 2244 of title 18) against a minor who has not attained the age of 13 years; (B) involves kidnapping of a minor

(unless committed by a parent or guardian); or (C) occurs after the offender becomes a tier II sex offender.”).

74 Id. § 20911(3) (“In this subchapter the following definitions apply: … (3) The term ‘tier II sex offender’ means a sex

offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and- (A) is

comparable to or more severe than the following offenses, when committed against a minor, or an attempt or

conspiracy to commit such an offense against a minor: (i) sex trafficking (as described in section 1591 of title 18); (ii)

coercion and enticement (as described in section 2422(b) of title 18); (iii) transportation with intent to engage in

criminal sexual activity (as described in section 2423(a)) of title 18; (iv) abusive sexual contact (as described in section

2244 of title 18); (B) involves- (i) use of a minor in a sexual performance; (ii) solicitation of a minor to practice

prostitution; or (iii) production or distribution of child pornography; or (C) occurs after the offender becomes a tier I

sex offender.”).

75 Id. § 20911(2) (“In this subchapter the following definitions apply: … (2) The term ‘tier I sex offender’ means a sex

offender other than a tier II or tier III sex offender.”).

76 Id. § 20915(a) (“A sex offender shall keep the registration current for the full registration period (excluding any time

the sex offender is in custody or civilly committed) unless the offender is allowed a reduction under subsection (b). The

full registration period is- (1) 15 years, if the offender is a tier I sex offender; (2) 25 years, if the offender is a tier II sex

offender; and (3) the life of the offender, if the offender is a tier III sex offender.”).

77 Id. § 20915(b) (“(1) The full registration period shall be reduced as described in paragraph (3) for a sex offender who

maintains a clean record for the period described in paragraph (2) by- (A) not being convicted of any offense for which

imprisonment for more than 1 year may be imposed; (B) not being convicted of any sex offense; (C) successfully

completing any periods of supervised release, probation, and parole; and (D) successfully completing of an appropriate

sex offender treatment program certified by a jurisdiction or by the Attorney General. (2) In the case of- (A) a tier I sex

offender, the period during which the clean record shall be maintained is 10 years; … In the case of- (A) a tier I sex

offender, the reduction is 5 years…”).

78 Id.

79 Id. (“(2) In the case of- … (B) a tier III sex offender adjudicated delinquent for the offense which required

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Federal courts use a variant of the statutory footprint-matching approach known as the

“categorical approach” to determine whether an offender’s statute of conviction is the equivalent

of the federal statutes used to define the various tiers.80 If the statute of conviction sweeps more

broadly than its purported federal statutory equivalent, there is no match for purposes of Tier II or

Tier III classification.81 In any event, a Tier II sex offender’s obligation to register ordinarily

sunsets after 25 years, and a Tier I sex offender’s obligation ordinarily sunsets after either 10 or

15 years depending on a clean-record reduction.82

registration in a sex registry under this subchapter, the period during which the clean record shall be maintained is 25

years. (3) In the case of- … (B) a tier III sex offender adjudicated delinquent, the reduction is from life to that period

for which the clean record under paragraph (2) is maintained.”).

80 United States v. Montgomery, 966 F.3d 335, 338 (5th Cir. 2020) (“Our court and others determine an offender’s

SORNA tier by comparing the offense for which they were convicted with SORNA’s tier definitions using the

categorical approach.”); United States v. Walker, 931 F.3d 576, 579 (7th Cir. 2019) (“Because SORNA instructs us to

compare Walker’s offense to the ‘offenses’ described in corresponding sections of the Federal Criminal Code (18

U.S.C. § 2244 and offenses listed therein), we employ the ‘categorical approach.’”); United States v. Vineyard, 945

F.3d 1164, 1169 (11th Cir. 2019) (“The categorical approach applies to determine whether Vineyard’s Tennessee

sexual battery conviction is a qualifying sex offense under SORNA’s sexual contact provision.”).

However, at least some courts supplement the straightforward “elements” comparison. Walker, 931 F.3d at 579-80

(“SORNA, however, adds a wrinkle to the [categorical] analysis. For a sex offender to qualify to Tier II or III, SORNA

also requires that his victim have certain characteristics distinct from the elements of the referenced federal offenses –

namely, that the victim be under a specified age . . . A person is a Tier II offender only if his prior offense matches

‘abusive sexual contact as described in section 2244 of title 18)’ and was ‘committed against a minor.’ 34 U.S.C.

§ 20911(3)(A). And he is a Tier III offender only if his prior offense matches one of the same federal offenses and was

committed ‘against a minor who has not attained the age of 13 years.’ Id. § 20911(4)(A).”) (emphasis of the court); see

also United States v. Escalante, 933 F.3d 395, 401 (5th Cir. 2019); United States v. Barry, 814 F.3d 192, 196–98 (4th

Cir. 2016); United States v. White, 782 F.3d 1118, 1135 (10th Cir. 2015); United States v. Byun, 539 F.3d 982, 991

(9th Cir. 2008).

81 Montgomery, 966 F.3d at 338 (“If the offense ‘sweeps more broadly’ than the SORNA tier definition, then the

offense cannot qualify as a predicate offense for that SORNA tier regardless of the manner in which the defendant

actually committed the crime.”); Walker, 931 F.3d at 579 (“Under the categorical approach … the court compares the

elements of the predicate offense – i.e., the facts necessary for conviction – to the elements of the relevant federal

offense. If the elements of the predicate offense are the same (or narrower) than the federal offense, there is a

categorical match. But if the elements of the state conviction sweep more broadly such that there is a ‘reasonable

probability … that the State would apply its statute to conduct that falls outside’ the definition of the federal crime, than

the prior offense is not a categorical match.”).

82 Montgomery, 966 F.3d at 337 (“Because Montgomery should have been classified as a tier I offender under SORNA,

meaning that he was not required to register in 2018, we vacate the [Section 2250] conviction.”); Walker, 931 F.3d at

582 (“Because Walker’s Colorado conviction is not a categorical match … he does not qualify for Tier II or Tier III

status …. Walker is thus a Tier I offender …. As a Tier I offender, Walker was not required to register during the

relevant period …. We therefore … VACATE Walker’s conviction and sentence [under Section 2250].”).

In Montgomery, all three panel members joined in a concurrence expressing the view that “this case illustrates yet

another troubling application of the expanded and ‘byzantine-like’ categorical approach” and noting the dissatisfaction

of other circuit judges. 966 F.3d at 330-40 & n.1 (“See also, e.g., United States v. Lewis, 720 F. App’x 111, 120 (3d

Cir. 2018) (Roth, J., concurring in the judgment) (describing the categorical approach as ‘willful blindness; …); United

States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017) (observing that the categorical approach carries judges [Alice-inWonderland-like] ‘down a rabbit hole … to a realm where we must close our eyes as judges … Curiouser and curiouser

it has all become[.]’); United States v. Chapman, 866 F.3d 1299, 136-38 (3d Cir. 2017) (Jordan, J., concurring)

(expressing dismay at the ‘kudzu quality of the categorical approach …’); United States v. Faust, 853 F.3d 39, 61

(Lynch, J., concurring) (observing that the categorical approach ‘can lead courts to reach counterintuitive results, and

ones which are not what Congress intended’); United States v. Doctor, 842 F.3d 306, 313-15 (4th Cir. 2016)

(Wilkerson, J., concurring) (stating that the categorical approach has caused judges to ‘swap[] factual inquires for an

endless gauntlet of abstract legal questions…’).”).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Jurisdictional Elements

Section 2250(a) permits prosecution and conviction on the basis of any of three jurisdictional

elements: travel in interstate or foreign commerce; residence in, or travel to or from, Indian

Country; or a prior conviction of one of the federal qualifying offenses.

Travel

Interstate travel is the most commonly invoked of Section 2250(a)’s jurisdictional elements. It

applies to anyone who travels in interstate or foreign commerce with a prior federal or state

qualifying offense who knowingly fails to register or maintain his registration.83 Section 2250

does not “require[] that a defendant’s interstate travel not be legally compelled.”84 In the case of

foreign travel, it also applies to anyone who fails to supplement his registration with information

concerning his intent to travel abroad.85 The qualifying offense may predate SORNA’s

enactment; the travel may not.86

Indian Country

Travel to or from Indian Country, or living there, will also satisfy Section 2250(a)’s jurisdictional

requirements. “Indian Country” consists primarily of Indian reservations, lands over which the

United States enjoys state-like exclusive or concurrent legislative jurisdiction.87

Federal Crimes

Travel is only one of Section 2250(a)’s jurisdictional elements; prior conviction of a federal

qualifying offense will also suffice. An individual need only have a knowing failure to register

83 See Carr v. United States, 560 U.S. 438, 447 (2010); Reynolds v. United States, 565 U.S. 432, 434 (2012); United

States v. Wass, 954 F.3d 184, 186 (4th Cir. 2020); United States v. Lawson, 891 F.3d 407, 408 (1st Cir. 2018).

84 United States v. Lusby, 972 F.3d 1032, 1035 (9th Cir. 2020). A federal court in Nevada convicted Lusby, previously

convicted of a qualifying offense, of a violation of Section 2250. He served his sentence in a federal prison in Arizona.

At Lusby’s request, federal authorities petitioned the court to modify his conditions of supervised release to require him

to begin serving his term of supervised release at a half-way house in Nevada. The court agreed. Prison authorities in

Arizona bought him a bus ticket to Las Vegas. Once in Nevada, Lusby reported neither to the half-way house nor to his

probation officer. Nor did he also did not register as a sex offender with Nevada authorities. A federal grand jury

indicted him for violating Section 2250 because of his travel from Arizona to Nevada. The district court dismissed the

indictment on the grounds that Lusby was legally compelled to travel to Las Vegas by virtue of the condition of his

supervised release. The Ninth Circuit reversed and remanded, but highlighted that the government had agreed that a

Section 2250 prosecution would be required to show that Lusby’s travel was voluntary. Id. at 1041 n.6. The Supreme

Court side-stepped a similar issue in Gundy. Gundy petitioned for review of four questions including delegation and

“whether a defendant violates 18 U.S.C. § 2250(a), which requires interstate travel, where his only movement between

states occurs while he is in custody of the Federal Bureau of Prisons and serving a prison sentence.” The Court granted

certiorari only with respect to the delegation question. Gundy v. United States, 138 S. Ct. 1260 (2018).

85 18 U.S.C. § 2250(b) (“Whoever – (1) is required to register under the Sex Offender Registration and Notification Act

[34 U.S.C. § 20901 et seq.]; (2) knowingly fails to provide information required by the Sex Offender Registration and

Notification Act relating to intended travel in foreign commerce; and (3) engages or attempts to engage in the intended

travel in foreign commerce; shall be fined under this title, prisoned not more than 10 years, or both.”).

86 Carr, 560 U.S. at 458.

87 18 U.S.C. § 1151 (“[T]he term ‘Indian country’ . . . . means (a) all land within the limits of any Indian reservation

under the jurisdiction of the United States Government . . . , (b) all dependent Indian communities within the borders

of the United States whether within the original or subsequently acquired territory thereof, and whether within or

without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished,

including rights-of-way running through the same.”).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

and a prior conviction for a qualifying sex offense under federal law or the law of the District of

Columbia, the UCMJ, tribal law, or the law of a United States territory or possession.88 Federal

jurisdiction flows from the jurisdictional basis for the underlying qualifying offense.89

Knowing Failure to Register

Section 2250(a)’s third element, after the jurisdictional element and an obligation to register or

update, is a knowing failure to register or to maintain current registration information as required

by SORNA.90 The government must show that the defendant knew of his obligation and failed to

honor it. The prosecution need not show that he knew he was bound to do so by federal law

generally or by SORNA specifically.91

Affirmative Defense

SORNA insists that convicted sex offenders register with state authorities, even when state law

does not require registration.92 Prior to SORNA, more than a few state sex offender registration

laws applied only to convictions occurring subsequent to their enactment or only to a narrower

range of offenses than contemplated in the Walsh Act. As a consequence of SORNA and the

Attorney General’s determination to cover pre-SORNA convictions, states must often adjust their

registration laws to come into full compliance. Conscious of the delays and difficulties that might

attend this process, Section 2250(c) affords offenders an affirmative defense when they seek to

“In a prosecution for a violation under subsection (a), it is an affirmative defense that (1) uncontrollable circumstances prevented the individual from complying; (2) the individual did

88 Id. § 2250(a) (“Whoever . . . (2)(A) is a sex offender . . .

by reason of a conviction under Federal law . . . or (B)

travels in interstate or foreign commerce . . . .” (emphasis added)); United States v. Spivey, 956 F.3d 212, 215 n.4 (4th

Cir. 2020) (“Interstate travel is not a required element for sex offenders under Federal law ….”); United States v.

Holcombe, 883 F.3d 12, 16 (2d Cir. 2018) (“A federal sex offender, unlike a state sex offender, does not need to travel

interstate to commit a SORNA offense.”).

89 United States v. George, 625 F.3d 1124, 1130 (9th Cir. 2010); cf. United States v. Comstock, 560 U.S. 126, 149

(2010) (“[A] statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to

create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those

imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal

imprisonment of others.”).

90 18 U.S.C. § 2250(a)(3).

91 United States v. Fuller, 627 F.3d 499, 507 (2d Cir. 2010), vac’d on other grounds, 565 U.S. 118 (2012) (“[E]very

Circuit to have considered the matter has held that SORNA is a general intent crime . . . . ‘There is no language

requiring specific intent or a willful failure to register such that the defendant must know his failure to register violated

federal law.’” (quoting United States v. Gould, 568 F.3d 459, 468 (4th Cir. 2004)) (citing United States v. Shenandoah,

595 F.3d 151, 159 (3d Cir. 2010); United States v. Vasquez, 611 F.3d 325, 328-29 (7th Cir. 2010))). See also United

States v. Collins, 773 F.3d 25, 29 (4th Cir. 2014) (“[T]he government can establish a defendant’s guilty knowledge by

either of two different means. The government may show that a defendant actually was aware of a particular fact or

circumstance, or that the defendant knew of a high probability that a fact or circumstance existed and deliberately

sought to avoid confirming that suspicion. ” (internal quotations and citations omitted)); United States v. Crowder, 656

F.3d 870, 873-76 (9th Cir. 2011); United States v. Voice, 622 F.3d 870, 875-66 (8th Cir. 2010).

92 34 U.S.C. § 20913(a) (“A sex offender shall register . . . .”); Willman v. Att’y Gen. of the U.S., 972 F.3d 819, 824

(6th Cir. 2020) (“[F]ederal SORNA obligations are independent of state-law sex offender duties.” (citing in accord

United States v. Del Valle-Cruz, 785 F.3d 48, 55 (1st Cir. 2015); United States v. Pendleton, 636 F.3d 78, 86 (3d Cir.

2011); United States v. Billiot, 785 F.3d 1266, 1269 (8th Cir. 2015))); see also United States v. Stock, 685 F.3d 621,

626 (6th Cir. 2012) (“The obligation SORNA does impose—the obligation to register—is imposed on sex offenders,

not states . . . . That obligation exists whether or not a state chooses to implement SORNA’s requirements and whether

or not a state chooses to register sex offenders at all.”).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

not contribute to the creation of such circumstances in reckless disregard of the requirement to

comply; and (3) the individual complied as soon as such circumstances ceased to exist.”93

Other Attributes

Venue

Although some courts remain to be convinced, it seems that a Section 2250 prosecution involving

interstate travel may be brought in either the state of departure or the state of arrival.94

Bail

Federal bail laws permit the prosecution to request a pre-trial detention hearing prior to the pretrial release of anyone charged with a violation of Section 2250.95 The individual may only be

released prior to trial under conditions, which may include among others, that he be electronically

monitored; be subject to restrictions on his personal associations, residence, or travel; report

regularly to authorities; and be subject to a curfew.96

Fine and Imprisonment

Upon conviction, the individual may be sentenced to imprisonment for a term of not more than 10

years and/or fined not more than $250,000.97 Section 2250(d) also sets an additional penalty of

imprisonment for not more than 30 years, but not less than 5 years, for the commission of a

federal crime of violence when the offender has also violated Section 2250.98 Section 16(a)

93 18 U.S.C. § 2250(c). See also Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir. 2010) (“Thus, while SORNA imposes

a duty on the sex offender to register, it nowhere imposes a requirement on the State to accept such registration. Indeed,

the criminal provisions of SORNA also recognize that a State can refuse registration in as much as they allow, as an

affirmative defense to a prosecution, the claim that ‘uncontrollable circumstances prevent the individual from

complying.’” (emphasis in the original)); United States v. Picard, 995 F.3d 1, 5 (1st Cir. 2021).

94 United States v. Seward, 967 F.3d 57, 67 (1st Cir. 2020) (holding venue proper in the district of departure “because

the nature of the offense reveals that its locus delicti encompasses the departure jurisdiction”); United States v. Spivey,

956 F.3d 212, 216-17 (4th Cir. 2020) (holding venue was proper in the district of departure and noting that “this

conclusion is bolstered by 18 U.S.C. § 3237(a) which provides that ‘for offenses begun in one district and completed in

another’ … venue may lie ‘in any district in which such offense was begun, continued, or completed’”); United States

v. Holcombe, 883 F.3d 12, 15 (2d Cir. 2018) (“[A] SORNA offense begins under Section 3237(a) in the district where

the defendant leaves ….”); United States v. Kopp, 778 F.3d 986, 988-89 (11th Cir. 2015) (citing United States v.

Lewis, 768 F.3d 1086, 1092-94 (10th Cir. 2014); United States v. Lunsford, 725 F.3d 859, 863 (8th Cir. 2013); United

States v. Leach, 639 F.3d 769, 771-72 (7th Cir. 2011)). The Eleventh Circuit was unpersuaded by the defendant’s

argument to the contrary based on an unreported district court opinion from the Southern District of Ohio, Kopp, 778

F.3d at 989. But see United States v. Haslage, 883 F.3d 331, 335-36 (7th Cir. 2017) (holding that venue for a

prosecution of a Section 2250 offense was not proper in the district of departure).

95 18 U.S.C. § 3142(f)(1)(E).

96 Id. § 3142(c)(1)(B); e.g., United States v. Doby, 928 F.3d 1199, 1201 (10th Cir. 2019) (magistrate set conditions that

included a curfew, location monitoring, monitoring computer use).

97 18 U.S.C. § 2250(a).

98 Id. § 2250(d) (“(1) In general. - An individual described in subsection (a) or (b) who commits a crime of violence

under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal

law, or the law of any territory or possession of the United States shall be imprisoned for not less than 5 years and not

more than 30 years. (2) Additional punishment. - The punishment provided in paragraph (1) shall be in addition and

consecutive to the punishment provided for the violation described in subsection (a).”).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

defines “crime of violence” for purposes of title 18 as “[a]n offense that has as an element the use,

attempted use, or threatened use of physical force against the person or property of another.”99

Sentencing Guidelines

The Sentencing Guidelines heavily influence the sentences imposed for violations of Section

2250. A district court must begin by calculating the sentencing range recommended by the

Sentencing Guidelines.100 The court must then consider the recommendation along with the

general statutory sentencing principles.101 The defendant, as well as the prosecution, may appeal

the sentence imposed,102 which the appellate courts may overturn if it is either procedurally or

substantively unreasonable.103 A sentence is procedurally unreasonable when it is the product,

among other things, of an erroneous Guideline calculation.104 It is substantively unreasonable

when it is “[dis]proportionate to the seriousness of the circumstances of the offense [or] offender,

[or] [in]sufficient or greater than necessary to comply with the purposes of the federal sentencing

statute.”105

Sections 2A3.5 and 2A3.6 of the Sentencing Guidelines provide the initial guidelines for Section

2250 offenses.106 Section 2A3.5 applies to cases other than those under the aggravated sentencing

provisions of 18 U.S.C. § 2250(d), and sets a defendant’s base offense level according to

SORNA’s tier classifications.107 A SORNA Tier III sex offender for sentencing purposes is:

99 Section 16(b) contains an alternative definition that the Supreme Court found unconstitutionally vague in Sessions v.

Dimaya, 138 S. Ct. 1204, 1215 (2018).

100 Gall v. United States, 552 U.S. 38, 49 (2007); United States v. Chambers, 956 F.3d 667, 672 (4th Cir. 2020); United

States v. Alcius, 952 F.3d 83, 87-88 (2d Cir. 2020).

101 Gall, 552 U.S. at 49-50 (“The Guidelines are not the only consideration …. [T]he district judge should then consider

all of the § 3553(a) factors ….”); see also United States v. Dailey, 958 F.3d 742, 746 (8th Cir. 2020); Alcius, 952 F.3d

at 87-88; United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020); United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st

Cir. 2020). The § 3553(a) factors include things like “(1) the nature and circumstances of the offense and the history

and characteristics of the defendant; (2) the need for the sentence imposed – (A) to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the offense ….” 18 U.S.C. § 3553(a)(1),

(2)(A).

102 18 U.S.C. § 3742.

103 Gall, 552 U.S. at 51; see also United States v. Trailer, 827 F.3d 933, 936 (11th Cir. 2016); United States v. James,

792 F.3d 962, 967 (8th Cir. 2015).

104 Gall, 552 U.S. at 51; see also Dailey, 958 F.3d at 746; United States v. Benton, 957 F.3d 696, 700 (6th Cir. 2020);

United States v. Douglas, 957 F.3d 602, 606 (5th Cir. 2020).

105 United States v. Alsante, 812 F.3d 544, 551 (6th Cir. 2016); see also United States v. Haverkamp, 958 F.3d 145, 148

(2d Cir. 2020) (“A sentence is substantively unreasonable if it cannot be located within the range of permissible

decisions, shocks the conscience, or constitutes a manifest injustice.”); Nance, 957 F.3d at 215 (“To assess this

[substantively-reasonable] argument, we ‘examin[e] the totality of the circumstances to see whether the sentencing

court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).’”

(quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2011))); United States v. Fuentes-Moreno,

954 F.3d 383, 396 (1st Cir. 2020) (‘“[T]he substantive reasonableness of a sentence turns on whether the sentencing

court articulated a plausible sentencing rationale and reached a defensible result.’” (quoting United States v Matos-deJesús, 856 F.3d 174, 179 (1st Cir. 2017)))); United States v. Fraga, 704 F.3d 432, (5th Cir. 2013) (“In sum, we find that

in light of Fraga’s criminal history and characteristics, the nine-month deviation from the Guidelines range was

substantively reasonable and, in accordance with §3553(a), was ‘not greater than necessary’ to effectuate the goals of

sentencing.”).

106 U.S.S.G. §§ 2A3.5, 2A3.6.

107 Section 2A3.5 sets a base offense level of 16 for Tier III defendants; 14 for Tier II defendants; and 12 for Tier I

defendants, respectively. Without further adjustment, this would translate to a sentence of imprisonment somewhere

between 24 and 30 months for a Tier III defendant; between 18 and 24 months for a Tier II defendant; and between 10

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

[A] sex offender whose offense is punishable by imprisonment for more than 1 year and(A) is comparable to or more severe than the following offenses, or an attempt or

conspiracy to commit such an offense:

(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242

of title 18); or

(ii) abusive sexual contact (as described in section 2244 of title 18) against a minor

who has not attained the age of 13 years;

(B) involves kidnapping of a minor (unless committed by a parent or guardian); or

A SORNA Tier II sex offender is:

[A] sex offender other than a tier III sex offender whose offense is punishable by

imprisonment for more than 1 year and(A) is comparable to or more severe than the following offenses, when committed

against a minor, or an attempt or conspiracy to commit such an offense against a minor:

(i) sex trafficking (as described in section 1591 of title 18);

(ii) coercion and enticement (as described in section 2422(b) of title 18);

(iii) transportation with intent to engage in criminal sexual activity (as described in

section 2423(a)) of title 18;

(iv) abusive sexual contact (as described in section 2244 of title 18);

(B) involves(i) use of a minor in a sexual performance;

(ii) solicitation of a minor to practice prostitution; or

(iii) production or distribution of child pornography; or

A SORNA Tier I sex offender is any sex offender who is not a Tier II or III sex offender.110

As noted earlier, the courts use a “categorical approach” to determine whether a prior state,

military, or foreign conviction qualifies a defendant as a Tier I, II, or III sex offender. In the

categorical approach, they examine the elements of the state offense. Here too, courts favor the

categorical approach when SORNA describes the qualifying state statute of conviction by

reference to a particular federal statute or statutes;111 or when it refers to “elements” rather than

“conduct”;112 or to “convictions” rather than “conduct committed.”113 Under the categorical

and 16 months for a Tier I defendant. U.S.S.G. § 4A1.1; id. Sentencing Table.

108 U.S.S.G. § 2A3.5 app. n. 1 (“For purposes of this guideline: . . . ‘Tier III offender’ ha[s] the meaning given the

term[] tier III sex offender’ … in 34 U.S.C. §20911.”); 34 U.S.C. § 20911(4).

109 U.S.S.G. § 2A3.5 app. n. 1 (“For purposes of this guideline: . . . ‘Tier II offender’ ha[s] the meaning given the term[]

tier II sex offender’ … in 34 U.S.C. §20911.”); 34 U.S.C. § 20911(3).

110 U.S.S.G. § 2A3.5 app. n. 1 (“For purposes of this guideline: . . . ‘Tier I offender’ ha[s] the meaning given the term[]

tier I sex offender’ … in 34 U.S.C. §20911.”); 34 U.S.C. § 20911(2).

111 United States v. Walker, 931 F.3d 576, 579 (7th Cir. 2019); United States v. Barcus, 892 F.3d 228, 232-32 (6th Cir.

2018); United States v. Berry, 814 F.3d 192, 197 (4th Cir. 2016); United States v. Morales, 801 F.3d 1, 6 (1st Cir.

2015); United States v. White, 782 F.3d 1118, 1134 (10th Cir. 2015).

112 United States v. Rogers, 804 F.3d 1233, 1237 (7th Cir. 2015); United States v. Cabrera-Gutierrez, 756 F.3d 1125,

1133 (9th Cir. 2013).

113 Morales, 801 F.3d at 5. Recall that the courts apply a circumstance-specific approach in analyzing the age elements

of federal offenses in the categorical federal-elements-versus-state-elements approach. United States v. Escalante, 933

F.3d 395, 401-02 (5th Cir. 2019) (“Applying that hybrid approach to this case, SORNA’s sex offender tier

classification imposes circumstance-specific conditions on the cross-referenced offenses. Title 34 U.S.C. § 20911(3)

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

approach, the statutory elements of the prior state offense must fit completely within the footprint

created by the elements of the federal statute or statutes. There is no match if the state statute

sweeps more broadly than its federal counterpart, in which case the state conviction may not

serve as a SORNA predicate for tier-classification purposes.

For example, the Fourth Circuit used the categorical approach to determine whether a defendant

convicted under a state “endangering the welfare of a child” statute qualified as a Tier III sex

offender.114 It decided that he did not.115 The relevant portion of SORNA requires that to qualify

as a Tier III defendant, there must be a conviction under a statute outlawing conduct comparable

or more severe (1) than aggravated sexual abuse or sexual abused as described in 18 U.S.C.

§§ 2241 and 2242, respectively; or (2) sexual contact as described in 18 U.S.C. § 2244 committed

against a child under 13 years of age.116 The Fourth Circuit reasoned that Sections 2241, 2242,

and 2244 each require physical contact.117 The state courts, however, had interpreted the

endangering statute to encompass conduct that did not involve physical contact.118 Conviction

under the state endangering statute was not necessarily a conviction for conduct comparable or

more severe than that outlawed in federal aggravated sexual abuse, sexual abuse, or sexual

contact statutes.119 Therefore, the defendant could not be classified as a Tier III sex offender.120

Section 2A3.6 of the Sentencing Guidelines applies to offenses under the aggravated sentencing

provisions of 18 U.S.C. § 2250(d). Section 2A3.6 sets the guideline sentence at the minimum

(imprisonment for 5 years),121 but acknowledges that upward departure may be warranted in a

particular case.122

Section 2A3.6 also supplies the sentencing guidance for a second offense whose existence may

help to explain why section 2259(d) is so infrequently invoked. Regardless of whether a sex

offender has failed to register, a sex offender who is required to register under federal or any other

law faces a sentencing enhancement of 10 years’ imprisonment, 18 U.S.C. § 2260A, when he

modifies the cross-referenced offenses with ‘when committed against a minor,’ and 34 U.S.C. §20911(4)(A) (ii)

modifies the cross-reference offenses with ‘against a minor who has not attained the age of 13 years.’ Therefore … we

hold that when classifying sex offender tier levels under 34 U.S.C. §§ 20911(2)-(4), the text of SORNA requires a

circumstance-specific inquiry into the victim’s age to determine whether the victim was, in fact, a minor at the time of

the offense.”); see also Berry, 814 F.3d at 197; White, 782 F.3d at 1135; United States v. Byun, 539 F.3d 982, 991 (9th

Cir. 2008).

114 Berry, 814 F.3d 192, 199-200 (4th Cir. 2016).

115 Id.

116 42 U.S.C. § 16911(4)(A)(i), (ii) [now 34 U.S.C. § 20911(4)(A)(i), (ii)].

117 Berry, 814 at 199.

118 Id. at 200.

119 Id.

120 Id.

121 U.S.S.G. § 2A3.6(a).

122 Id. app. n.4.

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

commits any of a list of sex offenses.123 Moreover, recidivist federal sex offenders face the

prospect of mandatory life imprisonment.124

Supervised Release

Generally, when a court sentences a defendant to prison, it may also sentence him to a term of

supervised release.125 Supervised release is a parole-like regime under which a defendant is

subject to the oversight of a probation officer following his release from prison. The term of

supervised release for most crimes is either 1, 3, or 5 years depending on the severity of the crime

of conviction.126 Congress has authorized, or insisted upon, longer terms when the crime of

123 18 U.S.C. § 2260A (“Whoever, being required by Federal or other law to register as a sex offender, commits a

felony offense involving a minor under section 1201 [kidnaping], 1466A [obscene visual depiction of sexual abuse of a

child], 1470 [transfer of obscenity to a child], 1591 [commercial sex trafficking], 2241 [aggravated sexual abuse], 2242

[sexual abuse], 2243 [sexual abuse of a minor or ward], 2244 [abusive sexual contact], 2245 [sexual abuse resulting in

death], 2251 [sexual exploitation of a child], 2251A [selling a child], 2260 [production of child pornography for U.S.

import], 2421 [transportation for illicit sexual purposes], 2422 [coercion or enticement to travel], 2423 [transportation

for illicit sex with a child], or 2425 [interstate transmission of information related to a child], shall be sentenced to a

term of imprisonment of 10 years in addition to the imprisonment imposed for the offense under that provision. The

sentence imposed under this section shall be consecutive to any sentence imposed for the offense under that

provision.”).

124 18 U.S.C. §3559(e) (“(e) Mandatory Life Imprisonment for Repeated Sex Offenses Against Children.(1) In general.-A person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to

life imprisonment if the person has a prior sex conviction in which a minor was the victim, unless the sentence of death

is imposed.

(2) Definitions.-For the purposes of this subsection(A) the term ‘Federal sex offense’ means an offense under section 1591 (relating to sex trafficking of children), 2241

(relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact),

2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to

selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a)

(relating to transportation of minors);

(B) the term ‘State sex offense’ means an offense under State law that is punishable by more than one year in prison

and consists of conduct that would be a Federal sex offense if, to the extent or in the manner specified in the applicable

provision of this title(i) the offense involved interstate or foreign commerce, or the use of the mails; or

(ii) the conduct occurred in any commonwealth, territory, or possession of the United States, within the special

maritime and territorial jurisdiction of the United States, in a Federal prison, on any land or building owned by, leased

to, or otherwise used by or under the control of the Government of the United States, or in the Indian country (as

defined in section 1151);

constituting the subsequent Federal sex offense, and which was for a Federal sex offense or a State sex offense;

(D) the term ‘minor’ means an individual who has not attained the age of 17 years; and

(E) the term ‘State’ has the meaning given that term in subsection (c)(2).

(3) Nonqualifying Felonies.-An offense described in section 2422(b) or 2423(a) shall not serve as a basis for sentencing

under this subsection if the defendant establishes by clear and convincing evidence that(A) the sexual act or activity was consensual and not for the purpose of commercial or pecuniary gain;

(B) the sexual act or activity would not be punishable by more than one year in prison under the law of the State in

which it occurred; or

125 Id. § 3583(a).

126 Id. § 3583(b).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

conviction is a particular drug, terrorist, or sex offense.127 Section 2250 is not among the sex

offenses that triggers the longer terms of supervised release and consequently comes with a

maximum three-year term of supervised release.128 Like the term of imprisonment, the term and

conditions of supervised release must be procedurally and substantively reasonable.129 A term of

supervised release is procedurally unreasonable when the district court miscalculates the

Sentencing Guidelines’ recommendation or fails to provide an individualized explanation for a

discretionary condition.130 A term of supervised release is substantively unreasonable when the

district court inappropriately weighs the statutory sentencing factors in the context of the

defendant and the circumstances of the case, or the sentence is shockingly severe or shockingly

lenient.131

The statute and the Sentencing Guidelines establish an array of mandatory and discretionary

conditions for those on supervised release. The mandatory conditions require the defendant to



avoid committing any additional federal, state, or local offenses;

refrain from the unlawful possession of controlled substances;

participate in a domestic violence rehabilitation program, if he has been

convicted of domestic violence;

submit to periodic drug tests, unless the court suspends the condition if the

defendant poses a low risk of future substance abuse;

pay installments to satisfy any outstanding fines or special assessments;

satisfy any outstanding restitution requirements;

comply with any SORNA registration demands; and

submit to the collection of a DNA sample.132

A sentencing court may also impose any condition from the statutory inventory of discretionary

conditions for probation.133 In addition, the Sentencing Guidelines specify thirteen “standard”

127 E.g., 21 U.S.C. § 841(b); 18 U.S.C. § 3583(j), (k).

128 18 U.S.C. §§ 3583(k), 2250, 3581(b)(3), 3583(b)2).

129 United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019); United States v. Trailer, 827 F.3d 933, 935-36 (11th Cir.

2016); see also United States v. Jones, 798 F.3d 613, 619 (2d Cir. 2015); United States v. James, 792 F.3d 962, 967

(8th Cir. 2015).

130 E.g., Eaglin, 913 F.3d at 94; United States v. Brown, 826 F.3d 835, 839 (5th Cir. 2016); United States v. Medina,

779 F.3d 55, 58-59 (1st Cir. 2015); United States v. Baker, 755 F.3d 515, 522-23 (7th Cir. 2014).

131 Eaglin, 913 F.3d at 94; Trailer, 827 F.3d at 936; James, 792 F.3d at 968; see also Jones, 798 F.3d at 619 (“In

determining the length and conditions of supervised release … a court must consider the same § 3553(a) factors that

guide sentencing determinations generally.”).

132 18 U.S.C. § 3583(d), (e); U.S.S.G. § 5D1.3(a)(1)-(8).

133

18 U.S.C. § 3583(d). The applicable discretionary conditions for probation under Section § 3563(b) include “that the

defendant - (1) support his dependents and meet other family responsibilities; (2) make restitution to a victim of the

offense under section 3556 (but not subject to the limitation of section 3663(a) or 3663A(c)(1)(A)); (3) give to the

victims of the offense the notice ordered pursuant to the provisions of section 3555; (4) work conscientiously at suitable

employment or pursue conscientiously a course of study or vocational training that will equip him for suitable

employment; … (16) permit a probation officer to visit him at his home or elsewhere as specified by the court; (17)

answer inquiries by a probation officer and notify the probation officer promptly of any change in address or

employment; … (23) if required to register under the Sex Offender Registration and Notification Act, submit his

person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage

devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation

officer with reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the person,

and by any probation officer in the lawful discharge of the officer’s supervision functions.”

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

conditions;134 eight “special” conditions;135 and “additional” special conditions.136 Finally, the

district court may impose any “specific” condition that, like the other discretionary conditions,

meets the following statutory standards:



“(1) is reasonably related to the factors set forth in section 3553(a)(1) [the nature

and circumstances of the offense and the history an characteristics of the

defendant], (a)(2)(B), (a)(2)(C), and (a)(2)(D) [the need – (B) to afford adequate

deterrence … (C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocation training,

medical care, or other correctional treatment in the most effective manner];

(2) involves no greater deprivation of liberty than is reasonably necessary for the

purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing

Commission pursuant to 28 U.S.C. 994(a).”137

Restrictions on a defendant’s association with children often appear among the discretionary

conditions for supervised release for Section 2250 offenders. Whether the conditions survive

appellate review turns upon their breadth, the district court’s justification for imposing them, and

the features of individual cases.138

134 Under U.S.S.G. § 5D1.3(c), the standard conditions require an individual on supervised release to (1) report

promptly to the probation office upon release; (2) comply with directions to report thereafter; (3) remain in the judicial

district unless the probation officer approves departure; (4) answer the probation officer’s questions truthfully; (5) live

in a place the probation officer approves; (6) permit the probation officer to engage in searches and seizures; (7) seek

employment and remain employed; (8) avoid felons and those who engage in criminal activity; (9) notify probation

officer of arrests or police questioning; (10) refrain from possession of firearms, ammunition, or dangerous weapons;

(11) avoid becoming an informant without court approval; (12) obey probation officer instructions to notify third

persons of the risks to them that defendant poses; and (13) comply with the probation officer’s interpretation of the

conditions imposed.

135 Under U.S.S.G. § 5D1.3(d), the special conditions require an individual on supervised release to (1) support

dependents; (2) meet debt obligations; (3) provide the probation officer with access to financial information if the

defendant has pending restitution, forfeiture, fine, or victim notification obligations; (4) if the court suspects controlled

substance or alcohol abuse, refrain from possession of alcohol and participate in a substance abuse program if the court

suspects controlled substance or alcohol abuse; (5) participate in mental health program if the court believes defendant

needs treatment; (6) submit to deportation; (7) for sex offenders (the definition does not include Section 2250

offenders) participate in sex offender treatment and monitoring and limit computer use; and (8) notify the probation

officer of any change in economic circumstances that might affect payment of outstanding obligations relating to

restitution, fine, or special assessment.

136 Under U.S.S.G. § 5D1.3(e), the “additional” special conditions include: (1) “community confinement”; (2) “home

detention”; (3) “community service”; (4) “occupational restrictions”; (5) “curfew”; and (6) “intermittent confinement.”

137 18 U.S.C. § 3583(d).

138 E.g., United States v. Edwards, 944 F.3d 631, 633 (7th Cir. 2019) (upholding conditions, imposed on a Section 2250

defendant previously convicted of possession and distribution of child pornography, that banned contact with children

without permission of their parents and the defendant’s probation officer); United States v. Jennings, 930 F.3d 1024,

1026-27 (8th Cir. 2019) (upholding condition restraining the Section 2250 defendant from contacting his adult son

without the approval of his probation officer in light of the defendant’s “long history of abusive conduct” and noting

that the Eighth Circuit had “repeatedly upheld no-contact orders requiring defendants to seek permission from a

probation officer before contacting their own minor children, even where there is no history or likelihood of abusive

conduct”); United States v. Fey, 834 F.3d 1, 4 (1st Cir. 2016) (“‘[W]e have vacated associational conditions where the

defendant’s prior sex offense occurred in the distant past, the intervening time was marked by lawful social activity,

and the district court did not otherwise explain the need for such restrictions.’ … And although the condition does not

place an outright ban on Frey’s association with minors, it operates not in limited contexts but in all contexts.” (quoting

United States v. Pabon, 819 F.3d 26, 31 (1st Cir. 2016))); United States v. Baker, 755 F.3d 515, 526-27 (7th Cir. 2014)

(remanding for resentencing after the government conceded that a ban on the defendant’s contact with his children

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

The court may modify the conditions of supervised release at any time.139 It may also revoke the

defendant’s supervised release and sentence him to prison for violating the conditions of

supervised release.140

Constitutional Considerations

Much of the litigation relating to Section 2250 and SORNA involves constitutional challenges

taking one of two forms. One argues that SORNA or Section 2250 operates in a manner that the

Constitution specifically forbids, for example in its clauses on Ex Post Facto laws, Due Process,

and Cruel and Unusual Punishment. The other argues that the Constitution does not grant

Congress the legislative authority to enact either Section 2250 or SORNA. These challenges

probe the boundaries of the Commerce Clause, the Necessary and Proper Clause, and the

Spending Clause, among others.

The Supreme Court addressed two of the most common constitutional issues associated with sex

offender registration laws before the enactment of SORNA. One addressed the Ex Post Facto

Clause implications of sex offender registration, Smith v. Doe;141 the other addressed Due Process

Clause implications, Connecticut Department of Public Safety v. Doe.142

Ex Post Facto

Neither the states nor the federal government may enact laws that operate Ex Post Facto.143 The

prohibition covers both statutes that outlaw conduct that was innocent when it occurred and

statutes that authorize imposition of a greater penalty for a crime than applied when the crime

occurred.144 The prohibitions, however, apply only to criminal statutes or to civil statutes whose

intent or effect is so punitive as to belie any but a penal characterization.145

In Smith, the Supreme Court dealt with the Ex Post Facto issue in the context of the Alaska sex

offender registration statute. It found the statute civil in nature and effect, not punitive, and

consequently its retroactive application did not violate the Ex Post Facto Clause.146 Its analysis147

should be vacated).

139 18 U.S.C. § 3583(e)(2).

140 Id. § 3583(e)(3), (h). Section 3583(k) purports, under certain circumstances, to require revocation of supervised

release imposed upon conviction for violating various federal sex offenses other than Section 2250. In United States v.

Haymond, 139 S. Ct. 2369, 2373 (2019), the Supreme Court held in a plurality opinion that for a federal judge to do so,

without a jury and by a preponderance of the evidence, violates the Fifth and Sixth Amendments.

141 538 U.S. 84 (2003).

142 538 U.S. 1 (2003).

143 U.S. CONST. art. I, § 10, cl. 1; art. I, § 9, cl. 3.

144 Stogner v. California, 539 U.S. 607, 612 (2003).

145 Smith v. Doe, 538 U.S. 84, 92 (2003) (“This is the first time we have considered a claim that a sex offender

registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The

framework for our inquiry, however, is well established. We must ascertain whether the legislature meant the statute to

establish ‘civil’ proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If,

however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether

the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it ‘civil.’

Because we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative

intent and transform what has been denominated a civil remedy into a criminal penalty.”).

146 Id. at 107-08.

147 Id. at 97 (“In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez,

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

has colored the lower federal courts’ treatment of Ex Post Facto challenges to Section 2250 and

SORNA. “Relying on Smith, circuit courts have consistently held that SORNA does not violate

the Ex Post Facto Clause,”148 with one apparently limited exception. The Ninth Circuit initially

held that the SORNA obligations for pre-enactment juveniles constituted punishment, because

they stripped juveniles of the confidentiality that then surrounded juvenile proceedings.149 Thus,

their enforcement against such juveniles would constitute an Ex Post Facto violation, the Ninth

Circuit decided.150 It subsequently concluded that “not all applications of SORNA to individuals

based on juvenile sex offender determinations are sufficiently punitive to violate the Ex Post

Facto Clause.”151 This is particularly true, the Ninth Circuit opined, when SORNA did not result

in a loss of confidentiality because of the disclosure requirements that accompanied the original

qualifying juvenile adjudication.152

Due Process

The Supreme Court’s assessment of state sex offender registration statutes has been less

dispositive of due process issues because of the variety of circumstances in which they may arise.

Neither the federal nor state governments may deny a person of “life, liberty, or property, without

due process of law.”153 Due process requirements take many forms. They preclude punishment

without notice: “[a] conviction fails to comport with due process if the statute under which it is

obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously discriminatory enforcement.”154 They bar

restraint of liberty or the enjoyment of property without an opportunity to be heard: “[a]n

essential principle of due process is that a deprivation of life, liberty, or property be preceded by

notice and opportunity for hearing appropriate to the nature of the case.”155 They proscribe any

punishments or restrictions that are so fundamentally unfair as to violate fundamental fairness,

that is, substantive due process.

In Connecticut Dep’t of Public Safety v. Doe, the Court found no due process infirmity in the

Connecticut sex offender registration regime in spite of its failure to afford offenders an

372 U.S. 144, 168-69 (1963), as a useful framework . . . .The factors most relevant to our analysis are whether, in its

necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes

an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a

nonpunitive purpose; or is excessive with respect to this purpose.”).

148 United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012) (citing, among others, United States v. Guzman, 591 F.3d

83, 94 (2d Cir. 2010); United States v. Gould, 568 F.3d 459, 466 (4th Cir. 2009); United States v. Young, 585 F.3d

199, 203-06 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir. 2009)); see also Willman v. Att’y

Gen., 972 F.3d 819, 824-25 (6th Cir. 2020) (collecting cases in accord); United States v. Diaz, 967 F.3d 107, 110-11

(2d Cir. 2020); United States v. Wass, 954 F.3d 184, 192-93 (4th Cir. 2020) (holding Wass’s Ex Post Facto claim fails

because SORNA is punitive neither in purpose nor effect); United States v. Holcombe, 883 F.3d 12, 18 (2d Cir. 2018);

United States v. Billiot, 785 F.3d 1266, 1269-70 (8th Cir. 2015); United States v. White, 782 F.3d 1118, 1126-27 (10th

Cir. 2015); United States v. Elk Shoulder, 738 F.3d 948, 953-54 (9th 2012); United States v. Parks, 698 F.3d 1, 4-6 (1st

Cir. 2012); United States v. W.B.H., 664 F.3d 848, 852-60 (11th Cir. 2011).

149 United States v. Juvenile Male, 590 F.3d 924, 941-42 (9th Cir. 2010), vac’d as moot, 564 U.S. 932, 933 (2011).

150 Id.

151 United States v. Elkins, 685 F.3d 1038, 1048 (9th Cir. 2012) (citing United States v. Juvenile Male, 670 F.3d 999

(9th Cir. 2012)).

152 Id. at 1048-49.

153 U.S. CONST. amends. V, XIV.

154 United States v. Williams, 553 U.S. 285, 304 (2008).

155 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

opportunity to prove they were not dangerous.156 Doe suffered no injury from the absence of a

pre-registration hearing to determine his dangerousness, in the eyes of the Court, because the

system required registration of all sex offenders, both those who were dangerous and those who

were not.157 Connecticut Dep’t of Public Safety forecloses the assertion that offenders are entitled

to a pre-registration “dangerousness” hearing; the relevant question under SORNA is prior

conviction, not dangerousness.158

In Lambert v. California, the Court dealt with sufficiency of notice. There, the Court held invalid

a city ordinance that required all felony offenders to register within five days of their arrival in

the city.159 The Court explained that “[w]here a person did not know of the duty to register and

where there was no proof of the probability of such knowledge, he may not be convicted

consistently with due process.”160 Since “by the time that Congress enacted SORNA, every state

had a sex offender registration law in place,”161 attempts to build on Lambert have been rejected,

because the courts concluded that offenders knew or should have known of their duty to

impermissible vagueness have fared no better.163

To qualify as a violation of substantive due process, a governmental regime must intrude upon a

right “deeply rooted in our history and traditions,” or “fundamental to our concept of

156 Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003).

157 Id. at 7-8.

158 United States v. Ambert, 561 F.3d 1202, 1208 (11th Cir. 2009).

159 Lambert v. California, 355 U.S. 225 (1957).

160 Id. at 229-30.

161 Smith v. Doe, 538 U.S. 84, 90 (2003). A list of the citations to existing state sex offender registration laws is

attached at the end of this report.

162 United States v. Hester, 589 F.3d 86, 92-93 (2d Cir. 2009) (“In Lambert, the Supreme Court stated: ‘Registration

laws are common and their range is wide. . . . But the present ordinance is entirely different. Violation of its provisions

is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which

might move one to inquire as to the necessity of registration are completely lacking.’ Like our sister circuits, we find

this last statement – regarding ‘circumstances which might move one to inquire as to the necessity of registration’ – to

be critical.” (citing United States v. Whaley, 577 F.3d 254, 262 (5th Cir. 2009); United States v. Gould, 568 F.3d 459,

468-69 (4th Cir. 2009); United States v. Dixon, 551 F.3d 578, 584 (7th Cir. 2009); United States v. Hinckley, 550 F.3d

926, 938 (10th Cir. 2009); and United States v. May, 535 F.3d 912, 921 (8th Cir. 2008))). See also United States v.

Gagnon, 621 F.3d 30, 33 (1st Cir. 2010); United States v. W.B.H., 664 F.3d 848, 852-60 (11th Cir. 2011); United

States v. Elkins, 683 F.3d 1039, 1049-50 (9th Cir. 2012).

163 United States v. Pendleton, 636 F.3d 78, 86 (3d Cir. 2011) (“Pendleton’s federal duty to register under SORNA was

not dependent upon his duty to register under Delaware law. A person of ordinary intelligence would not assume that as

long as he or she complied with state law on a particular issue, there would be no risk of running afoul of federal

law.”). See also United States v. Alsante, 812 F.3d 544, 547-48 (6th Cir. 2016) (“[T]he Due Process Clause does not

offer convicted defendants at sentencing [for violation of § 2250] the same constitutional protections afforded

defendants at a criminal trial.”); United States v. Elk Shoulder, 738 F3d 948, 955 (9th Cir. 2012) (noting that state

notice that the sex offender must register with state authorities is all the Due Process Clause demands for SORNA

purposes). The Sixth Circuit in Felts expressed a possible due process concern that it was not required to address but

one that might arise “where an inconsistency between federal and non-complying state regimes would render it

impractical, or even impossible, for an offender to register under federal law.” United States v. Felts, 674 F.3d 599, 605

(6th Cir. 2012). The affirmative defense in 18 U.S.C. § 2250(c) seems designed to address this concern. See supra

“Affirmative Defense” section of this report. In any event, the Felts concern apparently no longer troubles the Sixth

Circuit, see Willman v. Att’y Gen., 972 F.3d 819, 827 (6th Cir. 2020) (“A person of ordinary intelligence would know

if he had been convicted of a sex offense, and he would know that being removed from his state sex offense registry –

on its own – would not change whether he had been convicted. Accordingly, Willman’s vagueness claim is not

plausible on its face.”); see also United States v. Burgee, 988 F.3d 1954, 1060 (8th Cir. 2021); United States v. Collazo,

984 F.3d 1308, 1325 (9th Cir. 2021).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

constitutionally ordered liberty.”164 Perhaps because the threshold is so high, Section 2250 and

SORNA have only infrequently been questioned on substantive due process grounds.165

Right to Travel

“The ‘right to travel’ . . . embraces at least three different components. It protects the right of a

citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor

rather than an unfriendly alien when temporarily present in the second State, and, for those

travelers who elect to become permanent residents, the right to be treated like other citizens of

that State.”166

Section 2250, it has been contended, violates the right to travel because it punishes those who

travel from one state to another yet fail to register, but not those who fail to register without

leaving the state. The courts have responded, however, that the right must yield to compelling

state interest in the prevention of future sex offenses.167

Cruel and Unusual Punishment

The Eighth Amendment bars the federal government from inflicting “cruel and unusual

punishment.”168 A punishment is cruel and unusual under the Eighth Amendment when it is

grossly disproportionate to the offense.169 Section 2250’s 10-year maximum has survived the

claim that is grossly disproportionate to the crime of failing to maintain current and accurate sex

offender registration information.170 The courts have also declined to hold that SORNA’s

registration regime itself violates the Eighth Amendment, either because they do not consider the

requirements punitive or because they do not consider them grossly disproportionate.171

164 Washington v. Glucksberg, 521 U.S. 702, 727 (1997).

165 See United States v. Ambert, 561 F.3d 1202, 1208-09 (11th Cir. 2009) (rejecting a substantive due process claim).

166 Saenz v. Roe, 526 U.S. 489, 500 (1999).

167 United States v. Holcombe, 883 F.3d 12, 18 (2d Cir. 2012); United States v. Shenandoah, 595 F.3d 151, 162-62 (3d

Cir. 2010), abrogated on other grounds, Reynolds v. United States, 565 U.S. 432 (2012); Ambert, 561 F.3d at 1209-10;

cf. Bacon v. Neer, 631 F.3d 875, 878 (8th Cir. 2011); see also Willman, 972 F.3d at 826 (“But those [SORNA]

registration obligations do not burden a sex offender’s movement in a way that violates a person’s right to travel.”

(collecting cases in accord)).

168 U.S. CONST. amend. VIII.

169 Graham v. Florida, 560 U.S. 48, 59 (2010).

170 United States v. Martin, 677 F.3d 818, 821-22 (8th Cir. 2012).

171 Willman, 972 F.3d at 825 (“SORNA is not a punishment for purposes of the Ex Post Facto Clause. It follows,

therefore, that SORNA is not a punishment for purposes of the Eighth Amendment either.”); United States v. Diaz, 967

F.3d 107 (2d Cir. 2020) (“Our precedent precludes the argument that sex offender registration and notification

requirements are punitive, see [Doe v.] Pataki, 120 F.3d [1263,] 1285 ([2d Cir. 1997)], and the Supreme Court’s similar

conclusion in Smith v. Doe[, 538 U.S 84, 105 (2003)] forecloses this Court’s ability to revisit the Pataki decision. 538

U.S. at 105. Accordingly, the district court correctly concluded that SORNA does not violate the … Eighth

Amendment.”); United States v. Under Seal, 709 F.3d 257, 263-66 (4th Cir. 2013) (holding that SORNA’s registration

requirements do not constitute punishment); United States v. Juvenile Male, 670 F.3d 999, 1010 (9th Cir 2012) (“Given

the high standard that is required to establish cruel and unusual punishment, we hold that SORNA’s registration

requirements do not violate the Eighth Amendment.”); cf. United States v. May, 535 F.3d 912, 920 (8th Cir. 2008) (not

punishment).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Legislative Authority

The most frequent constitutional challenge to SORNA and Section 2250 is that Congress lacked

the constitutional authority to enact them. Some of these challenges speak to the breadth of

Congress’s constitutional powers, such as those vested under the Tax and Spending Clause, the

Commerce Clause, or the Necessary and Proper Clause. Others address contextual limitations on

the exercise of those powers imposed by such things as the non-delegation doctrine or the

principles of separation of powers reflected in the Tenth Amendment.

Tenth Amendment

The federal government enjoys only such authority as may be traced to the Constitution; the

Tenth Amendment reserves to the states and the people powers not vested in federal

government.172 Challengers of Congress’s legislative authority to enact SORNA or the Justice

Department’s authority to prosecute failure to comply with its demands on Tenth Amendment

grounds have had to overcome substantial obstacles. First, several of Congress’s constitutional

powers are far reaching and SORNA appears within their grasp. Among them are the powers to

regulate interstate and foreign commerce, to tax and spend for the general welfare, and to enact

laws necessary and proper to effectuate the authority the Constitution provides.173 Second,

although a particular statute may implicate the proper exercise of more than one constitutional

power, only one is necessary for constitutional purposes.174 Third, “while SORNA imposes a duty

on the sex offender to register, it nowhere imposes a requirement on the State to accept such

registration.”175 Finally, until recently some courts have held that individual defendants lacked

standing to contest the statutory validity on the basis of constitutional provisions designed to

protect the institutional interests of governmental entities rather than to protect private interests.

Standing

Several earlier courts rejected SORNA challenges under the Tenth Amendment on the grounds

that the defendants lacked standing. Standing refers to the question of whether a party in litigation

is asserting or “standing” on his or her own rights or only upon those of another. At one time,

there was no consensus among the lower federal appellate courts over whether individuals had

standing to present Tenth Amendment claims.176 More specifically, at least two circuits had held

172 U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the people.”).

173 U.S. CONST. art. I, § 8, cls. 1, 3, 18 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and

Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . . To

regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . . . . And To

make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”).

174 Cf. U.S. CONST. art. I, § 8, cl. 18.

175 United States v. White, 782 F.3d 1118, 1128 (10th Cir. 2015) (quoting Kennedy v. Allera, 612 F.3d 261, 269 (4th

Cir. 2010); citing United States v. Richardson, 754 F.3d 1143, 1146-47 (9th Cir. 2014); United States v. Felts, 674 F.3d

599, 602 (6th Cir. 2012); United States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011); United States v. Guzman, 591

F.3d 83, 94 (2d Cir. 2010)).

176 United States v. Johnson, 632 F.3d 912, 919 (5th Cir. 2011) (“The First, Second, Third, Eighth, and Tenth Circuits

have held that private parties do not having standing to bring such claims. The Seventh and Eleventh Circuits have

permitted private parties to assert Tenth Amendment claims.”).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

that defendants convicted under Section 2250 lacked standing to challenge their convictions on

Tenth Amendment grounds.177

Those courts, however, did not have the benefit of the Supreme Court’s Bond and Reynolds

decisions. In Bond, the Court pointed out that a defendant who challenges the Tenth Amendment

validity of the statute under which she was convicted “seeks to vindicate her own constitutional

rights . . . . The individual, in a proper case, can assert injury from governmental action taken in

excess of the authority that federalism defines. Her rights in this regard do not belong to the

State.”178 In Reynolds, the Court implicitly recognized the defendant’s standing when, at his

behest, it held that SORNA did not apply to pre-enactment convictions until after the Attorney

General had exercised his delegated authority.179 Yet the fact that a defendant’s Tenth Amendment

challenge may be heard does not mean it will succeed.180

Spending for the General Welfare

“The Congress shall have Power To lay and collect Taxes . . . to pay the Debts and provide for

the common Defence and general Welfare of the United States. . . .”181 “Objectives not thought to

be within Article I’s enumerated legislative fields, may nevertheless be attained through the use

of the spending power and the conditional grant of federal funds.”182 In the past, the Supreme

Court has described the limits on Congress in general terms:

[First,] the exercise of the spending power must be in pursuit of the general welfare . . .

Second . . . if Congress desires to condition the States’ receipt of federal funds, it must do

so unambiguously . . . . Third . . . conditions on federal grants . . . [must be] []related to

the federal interest in particular national projects or programs. . . . Finally. . . other

constitutional provisions may provide an independent bar to the conditional grant of federal

funds.183

Moreover, at the end of its 2011 term in National Federation of Business v. Sebelius, seven

members of a divided Court found that the power of the Spending Clause may not be exercised to

177 United States v. Shenandoah, 595 F.3d 151, 161-62 (3d Cir. 2010), abrogated by Reynolds v. United States, 432

U.S. 432 (2012) (“Shenandoah argues that SORNA is unconstitutional because it compels New York law enforcement

to accept registrations from federally-mandated sex offender programs in violation of the Tenth Amendment . . . . . We

need not tarry long on this argument, because Shenandoah lacks standing to raise this issue.”); United States v. Zuniga,

579 F.3d 845, 851 (8th Cir. 2009).

178 Bond v. United States, 564 U.S. 211, 220 (2011); see also United States v. Felts, 674 F.3d 599, 607 (6th Cir. 2012)

(“The United States counters that Felts lacks standing to assert SORNA’s alleged violation. This is no longer an

accurate statement of law. The United States’ brief was filed on June 6, 2011, ten days before the Supreme Court

decided Bond . . . . An individual can assert that the enforcement of a law violates the Tenth Amendment, particularly

when a defendant has a significant liberty interest at stake. Because Felts was prosecuted for violating SORNA, he has

standing to challenge the act for being enforced in violation of the Tenth Amendment.”).

179

Reynolds, 565 U.S. at 442-43; see also United States v. Knutson, 680 F.3d 1021, 1023 (8th Cir. 2012) (“This court

had previously held that pre-Act offenders lack standing to challenge SORNA. However, after the parties filed their

briefs, the Supreme Court ruled that pre-Act offenders have standing to challenge SORNA under the non-delegation

doctrine. Reynolds, 132 S. Ct. at 984.”).

180 White, 782 F.3d at 1128 (“We join all of the federal circuits to have considered this issue in holding that SORNA

does not violate the Tenth Amendment.”) (citing cases from the Ninth, Eighth, Fifth, and Second Circuits).

181 U.S. CONST. art. I, § 8, cl. 1; see generally Cong. Research Serv., The Constitution of the United States of America:

Analysis and Interpretation, S. DOC. NO, 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C12/ALDE_00001055/.

182 South Dakota v. Dole, 483 U.S. 203, 207 (1987).

183 Id. at 207-08.

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

coerce state participation in a federal program.184 Congress may use the spending power to induce

state participation; it may not present the choice under such circumstances that a state has no

realistic alternative but to acquiesce.185

SORNA establishes minimum standards for the state sex offender registries and authorizes the

Attorney General to enforce compliance by reducing by up to 10% the funds a non-complying

state would receive in criminal justice assistance funds.186 Some defendants have suggested that

this impermissibly commandeers state officials to administer a federal program and therefore

exceeds Congress’s authority under the Spending Clause. Generally, while Congress may

encourage state participation in a federal program, it is not constitutionally free to require state

legislators or executive officials to act to enforce or administer a federal regulatory program.187 To

date, the federal appellate courts have held that SORNA’s reduction in federal law enforcement

assistance grants for a state’s failure to comply falls on the encouragement, rather than the

directive, side of the constitutional line.188 The fact that most states do not feel compelled to bring

their systems into full SORNA compliance may lend credence to that assessment.189

Commerce Clause

“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.”190 The Supreme Court explained in Lopez, and again

in Morrison, that Congress’s Commerce Clause power is broad but not boundless.

184 Nat’l Fed. of .Indep. Bus. v. Sebelius, 567 U.S. 519, 575-86 (2012) (Roberts, Ch. J. joined by Breyer and Kagan,

JJ.); id. at 671-89 (Scalia, J., dissenting, joined by Kennedy, Thomas, and Alito, JJ.).

185 Cf. id. at 581-82 (Roberts, Ch. J.) (“It is easy to see how the Dole Court could conclude that the threatened loss of

less than half of one percent of South Dakota’s budget left that State with a ‘prerogative’ to reject Congress’s desired

policy, ‘not merely in theory but in fact.’ The threatened loss of over 10 percent of a State’s overall budget, in contrast,

is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”); id. at

676 (Scalia, J., dissenting) (“[W]hile Congress may seek to induce States to accept conditional grants, Congress may

not cross the ‘point at which pressure turns into compulsion, and ceases to be inducement.’”). See generally CRS

Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis, by

Kenneth R. Thomas.

186 34 U.S.C. § 20925(a).

187 New York v. United States, 505 U.S. 144, 175-76 (1992); Printz v. United States, 521 U.S. 898, 935 (1997) (“We

held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we

hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly.”).

188 United States v. Felts, 674 F.3d 599, 608 (6th Cir. 2012) (“SORNA does not fall under the rubric of Printz, but

rather relies on Congress’s spending power. Failure to implement SORNA results in a loss of 10% of federal funding

under [the law enforcement assistance program]. Conditioning of funds in this manner is appropriate under South

Dakota v. Dole (stating that Congress’s power to condition the receipt of federal funds under the spending power is

valid so long as (1) the spending/withholding is in the pursuit of the general welfare; (2) the conditional nature is clear

and unambiguous; (3) the condition is rationally related to the purpose of the federal interest, program, or funding; and

(4) the conduct required to comply with the condition is not barred by the constitution itself).”). See also United States

v. White, 782 F.3d 1118, 1127-28 (10th Cir. 2015); United States v. Smith, 655 F.3d 839, 848 (8th Cir. 2011); United

States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011); Kennedy v. Allera, 612 F.3d 261, 268-70 (4th Cir. 2010); United

States v. Guzman, 591 F.3d 83, 95 (2d Cir. 2010).

189 The Justice Department indicates that eighteen states are now in substantial compliance with SORNA requirements.

U.S. Department of Justice, Office of Justice Programs, Office of Sex Offender Sentencing, Monitoring, Apprehending,

Registration, and Tracking (SMART), SORNA Implementation Status, available at https://smart.gov/sorna-map.htm.

190 U.S. CONST. art. I, § 8, cl. 3; see generally Cong. Research Serv., The Constitution of the United States of America:

Analysis and Interpretation, S. DOC. NO, 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C3-11/ALDE_00001057/

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Modern Commerce Clause jurisprudence has identified three broad categories of activity

that Congress may regulate under its commerce power. First, Congress may regulate the

use of the channels of interstate commerce. Second, Congress is empowered to regulate

and protect the instrumentalities of interstate commerce, or persons or things in interstate

commerce, even though the threat may come only from intrastate activities. Finally,

Congress’ commerce authority includes the power to regulate those activities having a

substantial relation to interstate commerce . . . i.e., those activities that substantially affect

interstate commerce.191

The lower federal appellate courts have rejected Commerce Clause attacks on Section 2250 in the

interstate travel cases, because there they believe Section 2250 “fits comfortably with the first

two Lopez prongs[, i.e. the regulation of (1) the “channels” of interstate commerce and (2) the

“instrumentalities” of interstate commerce].”192 They have also rejected Commerce Clause

attacks on SORNA in intrastate cases based on the strength of the Necessary and Proper Clause:

Requiring sex offenders to update their registrations due to intrastate changes of address or

employment status is a perfectly logical way to help ensure that states will more effectively

be able to track sex offenders when they do cross state lines. To the extent that §16913

regulates solely intrastate activity, its means are reasonably adapted to the attainment of a

legitimate end under the commerce power and therefore proper.193

Necessary and Proper

The Supreme Court in Comstock described the breadth of Congress’s authority under the

Necessary and Proper Clause in the context of another Walsh Act provision. The Walsh Act

authorizes the Attorney General to hold federal inmates beyond their release date to initiate

federal civil commitment proceedings for the sexually dangerous.194 Comstock and others

questioned application of the statute on the grounds that it exceeded Congress’s legislative

authority under the Commerce and Necessary and Proper Clauses.195

191 United States v. Morrison, 529 U.S. 598, 608-09 (2000) (citing inter alia United States v. Lopez, 514 U.S. 549, 558-

59 (1995)). Of late, seven Justices of the Court have explained that the Commerce Clause does not authorize Congress

to punish those who elect not to engage in commerce. See Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 558

(Roberts, Ch. J. joined by Breyer and Kagan, JJ.) (“The individual mandate forces individuals into commerce precisely

because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing

Congress to ‘regulate Commerce.’”); id. at 649 (Scalia, J., dissenting, joined by Kennedy, Thomas, and Alito, JJ.) (“But

that failure—that abstention from commerce—is not ‘Commerce.’ To be sure, purchasing insurance is ‘Commerce’;

but one does not regulate commerce that does not exist by compelling its existence.”).

192 United States v. Coleman, 675 F.3d 615, 620 (6th Cir. 2012) (citing inter alia United States v. Vasquez, 611 F.3d

325, 330-31 (7th Cir. 2010); United States v. Guzman, 591 F.3d 83, 89-92 (2d Cir. 2010); United States v. Whaley, 577

F.3d 254, 259-61 (5th Cir. 2009); United States v. Gould, 568 F.3d 459, 470-75 (4th Cir. 2009); United States v.

Ambert, 561 F.3d 1202, 1210-12 (11th Cir. 2009); United States v. Lawrence, 548 F.3d 1329, 1337 (10th Cir. 2008);

and United States v. May, 535 F.3d 912, 911-22 (8th Cir. 2008)). See also United States v. Bollinger, 798 F.3d 201,

217 (4th Cir. 2015) (“This Court has concluded that SORNA is constitutional because it regulates the use of the

channels and instrumentalities of interstate commerce.”); United States v. Manning, 786 F.3d 684, 685-86 (8th Cir.

2015); United States v. White, 782 F.3d 1118, 1123-26 (10th Cir. 2015); United States v. Parks, 698 F.3d 1, 6-7 (1st

Cir. 2012).

193 United States v Thompson, 811 F.3d 717, 723-25 (5th Cir. 2016); United States v. Pendleton, 636 F.3d 78, 87-88

(3d Cir. 2011) (quoting Guzman, 591 F.3d at 90-91; citing Vasquez, 611 F.3d at 330; Ambert, 561 F.3d at 1211-12; and

United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009)).

194 18 U.S.C. § 4248.

195 United States v. Comstock, 560 U.S. 126, 132 (2010); see generally, Cong. Research Serv., The Constitution of the

United States of America: Analysis and Interpretation, S. DOC. NO. 112-9 (discussing the Necessary and Proper

Clause), https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

The Court pointed out that the Necessary and Proper Clause has long been understood to

empower Congress to enact legislation “rationally related to the implementation of a

constitutionally enumerated power.”196 Moreover, be the chain clear and unbroken, the challenged

statute need not necessarily be directly linked to a constitutionally enumerated power.197 The

Comstock “statute [18 U.S.C. § 4248] is a ‘necessary and proper’ means of exercising the federal

authority that permits Congress to create federal criminal laws [(to carry into effect its Commerce

Clause power for instance)], to punish their violation, to imprison violators, to provide

appropriately for those imprisoned, and to maintain the security of those who are not imprisoned

but who may be affected by the federal imprisonment of others.”198

The Court, however, warned that its conclusion depended on several factors specific to the case

before it.199 Acting on this suggestion, the Fifth Circuit, sitting en banc, concluded, erroneously

according to the Supreme Court, that SORNA, as applied to Kebodeaux, rested beyond

Congress’s legislative reach.200

Kebodeaux had been convicted by a military court for having sexual relations with a consenting

fifteen-year-old while he was a twenty-one-year-old airman. He was sentenced to six months and

given a bad conduct discharge in 1999. He registered as a sex offender with Texas authorities in

2007. He was convicted for violating Section 2250 in 2008, when he failed to report that he had

relocated from El Paso to San Antonio.201

The Constitution empowers Congress to make rules for the governing and regulation of the armed

forces.202 It also vests Congress with broad implementing authority to enact legislation necessary

and proper to carry into effect this military governance power and the other powers conveyed by

the Constitution.203 The Fifth Circuit believed that, unlike the Comstock statute, the application of

SORNA was insufficiently proximate to a federal custodial interest and was too sweeping in its

conceptual foundation (“[t]hat reasoning opens the door . . . to congressional power over anyone

who was ever convicted of a federal crime of any sort”).204

196 Id. at 133-34 (citing, among others, McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 421 (1810); Gonzalez v.

Raich, 545 U.S. 1, 22 (2005)).

197 Id. at 148 (“[W]e must reject respondents’ argument that the Necessary and Proper Clause permits no more than a

single step between an enumerated power and an Act of Congress.”).

198 Id. at 149.

199 Id. (“We take these five considerations together. They include (1) the breadth of the Necessary and Proper Clause,

(2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the

Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the

statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead

us to conclude that the statute is a ‘necessary and proper’ means of exercising the federal authority that permits

Congress to create federal criminal laws . . . . ”).

200 United States v. Kebodeaux, 687 F.3d 232, 253-54 (5th Cir. 2012), rev’d, 570 U.S. 387 (2013) (Congress lacks the

legislative authority to require under SORNA “a former federal sex offender to register an intrastate change of address

after he has served his sentence and has already been unconditionally released from prison and the military.”).

201 United States v. Kebodeaux, 647 F.3d 137, 138-39 (5th Cir. 2011), vac’d for reh’g en banc, 647 F.3d 605 (5th Cir.

2011), rev’d, 570 U.S. 387 (2013).

202 U.S. CONST. art. I, § 8, cl. 14 (“The Congress shall have Power . . . To make Rules for the Government and

Regulation of the land and naval Forces.”). Some of the analysis that follows was borrowed from a Kebodeaux CRS

Legal Sidebar, CRS, SORNA Clears Constitutional Hurdle.

203 U.S. CONST. art. I, § 8, cl. 18 (“The Congress shall have Power . . . To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer thereof.”).

204 Kebodeaux, 687 F.3d at 244-45 (“In summary, even taking into account ‘the breadth of the Necessary and Proper

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Justice Breyer, the author of the Supreme Court’s Kebodeaux majority opinion, provided a twofold response.205 First, by operation of SORNA’s predecessor, the Wetterling Act, Kebodeaux’s

registration requirement arose proximate to his release from federal custody. “[A]s of the time of

Kebodeaux’s offense, conviction and release from federal custody, these Wetterling Act

provisions applied to Kebodeaux and imposed upon him registration requirements very similar to

those that SORNA later imposed.”206 Second, “[n]o one here claim[ed] that the Wetterling Act, as

applied to military sex offenders like Kebodeaux, falls outside the scope of the Necessary and

Property Clause. And it is difficult to see how anyone could persuasively do so.”207

Perhaps the same might be said of federal sex offenses enacted under Congress’s enumerated

powers other than the military clauses. Yet Chief Justice Roberts in his Kebodeaux concurrence

asserted that, “[t]he fact of a prior federal conviction, by itself, does not give Congress a

freestanding, independent, and perpetual interest in protecting the public from the convict’s

purely intrastate conduct.”208 Nevertheless, a subsequent circuit court opinion concluded that

Congress’s authority under the Necessary and Proper Clause extends to a defendant convicted of

a Commerce Clause-based federal offense who was never unconditionally released from federal

supervision.209 There, the U.S. Court of Appeals for the Tenth Circuit acknowledged the

Kebodeaux concurring views of Chief Justice Roberts and Justice Alito, but observed that, “for

our purposes, the majority opinion binds us, and its analysis does not confine SORNA’s

constitutionality to applications involving only the Military Regulation Clause. Nothing in the

majority opinion isolates the Military Regulation Clause as the sole foundation of congressional

authority in support of SORNA.”210

Clause,’ Comstock, 130 S. Ct. at 1965, SORNA’s registration requirements and criminal penalty for failure to register

as a sex offender, as applied to those, like Kebodeaux, who had already been unconditionally released from federal

custody or supervision at the time Congress sought to regulate them, are not ‘rationally related’ or ‘reasonably adapted’

to Congress’s power to criminalize federal sex offenses to begin with. The statute’s regulation of an individual, after he

has served his sentence and is no longer subject to federal custody or supervision, solely because he once committed a

federal crime, (1) is novel and unprecedented despite over 200 years of federal criminal law, (2) is not ‘reasonably

adapted’ to the government’s custodial interest in its prisoners or its interest in punishing federal criminals, (3) is

unprotective of states’ sovereign interest over what intrastate conduct to criminalize within their own borders, and (4) is

sweeping in the scope of its reasoning.”).

205 United States v. Kebodeaux, 570 U.S. 387 (2013).

206 Id. at 393.

207 Id. at 393-94. See also United States v. Coppock, 765 F.3d 921, 924-25 (8th Cir. 2014); United States v. Brunner,

726 F.3d 299, 303 (2d Cir. 2013).

208 Kebodeaux, 570 U.S. at 400 (Roberts, Ch. J., concurring); Justice Alito also concurred only in the judgment, id. at

403 (Alito, J., concurring).

209 United States v. Brune, 767 F.3d 1009, 1016-17 (10th Cir. 2014).

210 Id. See also United States v. Thompson, 811 F.3d 717, 723 & n.9 (5th Cir. 2016) (“He claims that the Necessary and

Proper Clause of the U.S. Constitution does not authorize Congress to criminalize his ‘purely intrastate conduct’—

namely, relocating from one city in Texas to another city in Texas without updating his sex offender registration.

According to Thompson, Congress may only criminalize a sex offender’s intrastate conduct if the defendant either

(1) ‘served in the armed forces’ or (2) committed an offense on ‘federal property.’ Thompson does not fall into either

of these categories. Thus, claims Thompson, the district court should have dismissed the indictment…. Thompson’s

constitutional challenge is meritless. The Courts of Appeals have repeatedly upheld SORNA’s registration and penalty

provisions under the Necessary and Proper Clause, even when the defendant neither served in the military, nor

committed an offense or lived on federal property, nor moved within interstate or foreign commerce.”) (collecting

cases).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Separation of Powers: Non-Delegation

The first section of the first article of the Constitution declares that “[a]ll legislative Powers

herein granted shall be vested in a Congress of the United States.”211 This language means that

Congress “may not transfer to another branch ‘powers which are strictly and exclusively

legislative.’”212 This non-delegation doctrine, however, does not prevent Congress from

delegating the task of filling in the details of its legislative handiwork, as long as it provides

“intelligent principles” to direct the effectuation of its legislative will.”213 In Reynolds, the

Supreme Court read SORNA to “require[] the Attorney General to apply SORNA to all pre-Act

offenders as soon as feasible.”214 The question later in Gundy was whether “Congress ma[de] an

impermissible delegation when it instructed the Attorney General to apply SORNA’s registration

requirements to pre-Act offenders as soon as feasible?”215 For a majority of the Court, “under

[the] Court’s long-established law, that question is easy, its answer is no.”216 Similarly, the U.S.

Court of Appeals for the Second Circuit concluded “that the Secretary [of Defense]’s discretion in

designating certain military offenses as sex offenses under § 20911(5)(A)(iv) [of SORNA] has

been clearly and intelligibly limited by Congress.”217

211 U.S. CONST. art. I, § 1; see generally, Cong. Research Serv., The Constitution of the United States of America:

Analysis and Interpretation, S. DOC. NO. 112-9, https://constitution.congress.gov/browse/essay/artI-S1-11/ALDE_00000009/.

212 Gundy v United States, 139 S. Ct. 2116, 2123 (2019) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43

(1825)); see also Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935) (“Congress manifestly is not permitted to

abdicate or to transfer to others the essential legislative functions with which it is [constitutionally] vested.”); A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935).

213 Gundy, 139 S. Ct. at 2123 (“So we have held, time and again, that a statutory delegation is constitutional as long as

Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the

delegated authority is directed to conform.’” (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989))); see also

Hampton & Co. v. United States, 276 U.S. 294, 409 (1928) (“If Congress shall lay down by legislative act an

intelligible principle to which the person or body authorized to [perform the delegated task] is directed to conform,

such legislative action is not a forbidden delegation of legislative power.”); see also Am. Power Co. v. SEC, 329 U.S.

90, 105 (1946) (“The legislative process would frequently bog down if Congress were constitutionally required to

appraise before-hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific

rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel

Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the

general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”); Whitman v.

Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474-75 (2001) (“The scope of discretion §109(b)(1) allows is in fact well

within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite

‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of

discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a

standard than stimulating the economy by assuring ‘fair competition.’. . . . [W]e have ‘almost never felt qualified to

second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or

applying the law.’”).

214 Reynolds v. United States, 565 U.S. 432, 442-43 (2012) (emphasis added).

215 Gundy, 139 S. Ct. at 2129.

216 Id. Justice Kagan wrote the opinion for the Court joined by three colleagues; Justice Alito concurred in the

judgment, id. at 2132 (“Because I cannot say that the statute lacks a discernible standard that is adequate under the

approach this Court has taken for many years, I vote to affirm.”); Justice Gorsuch, joined by the Chief Justice and

Justice Thomas, dissented, id. at 2131. Justice Kavanaugh took no part, id. at 2116.

217 United States v. Mingo, 964 F.3d 134, 138-39 (2d Cir. 2020) (rejecting nondelegation doctrine argument).

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Attachments

18 U.S.C. § 2250 (text)

Failure to register

(a) In General.-Whoever(1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification

Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law

of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States;

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and

Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.

(b) International Travel Reporting Violations.-Whoever(1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. §§16901

et seq.) [now 34 U.S.C. §§ 20901et sec.]; 1

(2) knowingly fails to provide information required by the Sex Offender Registration and Notification

Act relating to intended travel in foreign commerce; and

(3) engages or attempts to engage in the intended travel in foreign commerce;

shall be fined under this title, imprisoned not more than 10 years, or both.

defense that(1) uncontrollable circumstances prevented the individual from complying;

(2) the individual did not contribute to the creation of such circumstances in reckless disregard of the

requirement to comply; and

(3) the individual complied as soon as such circumstances ceased to exist.

(d) Crime of Violence.(1) In general.-An individual described in subsection (a) or (b) who commits a crime of violence under

Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian

tribal law, or the law of any territory or possession of the United States shall be imprisoned for not less than

5 years and not more than 30 years.

(2) Additional punishment.-The punishment provided in paragraph (1) shall be in addition and

consecutive to the punishment provided for the violation described in subsection (a) or (b).

Principal State SORNA Statutes (citations)

ALA. CODE §§ 15-20a-1 to 15-20a-48;

ALASKA STAT. §§ 12.63.101 to 12.63.100;

ARIZ. REV. STAT. ANN. §§ 13-3821 to 13-3829;

ARK. CODE ANN. §§ 12-12-901 to 12-12-930;

CAL. PENAL CODE §§ 290 to 290.94;

COLO. REV. STAT. ANN. §§ 16-22-101 to 16-22-115 (Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017) (holding

unconstitutional as applied));

CONN. GEN. STAT. ANN. §§ 54-250 to 54-261;

DEL. CODE ANN. tit. 11, §§ 4120 to 4123;

FLA. STAT. ANN. §§ 943.0435 to 943.0436;

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

GA. CODE ANN. §§ 42-1-12 to 42-1-19;

HAW. REV. STAT. §§ 846E-1 to 846E-10;

IDAHO CODE §§ 18-8301 to 18-8331;

730 ILL. COMP. LAWS ANN. §§ 150/1 to 150/12;

IND. CODE ANN. §§ 11-8-8-0.2 to 11-8-8-23;

IOWA CODE ANN. §§ 692a.101 to 692a.130;

KAN. STAT. ANN. § 22-4901 to 22-4913;

KY. REV. STAT. ANN. §§ 17.500 to 17.580;

LA. REV. STAT. ANN. §§ 15:540 to 15:553;

ME. REV. STAT. ANN. tit. 34-A, §§ 11201 to 11256;

MD. CODE ANN. CRIM. PRO. §§ 11-701 to 11-727;

MASS. GEN. LAWS ANN. ch. 6, §§ 178c to 178q;

MICH. COMP. LAWS ANN. §§ 28.721 to 28.735 (Doe #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (holding retroactive

application unconstitutional));

MINN. STAT. ANN. §§ 243.166 to 243.167;

MISS. CODE ANN. §§ 45-33-21 to 45-33-63;

MO. ANN. STAT. §§ 589.400 to 589.425;

MONT. CODE ANN. §§ 46-23-501 to 46-23-520;

NEB. REV. STAT. §§ 29-4001 to 29-4014;

NEV. REV. STAT. §§ 179d.010 to 179d.850;

N.H. REV. STAT. ANN. § 651-B:1 to 651-B:12;

N.J. STAT. ANN. §§ 2C:7-1 to 2C:7-23 (In re C.K. 233 N.J. 44, 182 A.3d 917 (N.J. 2020) (holding lifelong registration

requirement for juveniles unconstitutional));

N.M. STAT. ANN. §§ 29-11a-1 to 29-211a-10;

N.Y. CORR. LAW §§ 168 to 168-W;

N.C. GEN. STAT. §§ 14-208.5 to 14-208.45;

N.D. CENT. CODE §§ 12.1-32-15;

OHIO REV. CODE ANN. §§ 2950.01 to 2950.99 (In re Bruce S., 983 N.E.2d 350 (Ohio 2012) (holding retroactive

application unconstitutional));

OKLA. STAT. ANN. tit. 57 §§ 581 to 590.1;

OR. REV. STAT. §§ 163a.005 to 163a.235;

42 PA. STAT. ANN. 9799.10 to 9799.75 (Pennsylvania v. Wood, 208 A.3d 131 (Pa. Super. 2019) and T.S. v. Pa. State

Police, 231 A.3d 103 (Pa. Commw. 2020) (holding retroactive application unconstitutional));

R.I. GEN. LAWS §§ 11-37.1-1 to 11-37.1-21;

S.C. CODE ANN. §§ 23-3-400 to 23-3-555;

S.D. COD. LAWS ANN. §§ 22-24b-1 to 22-24b-37;

TENN. CODE ANN. §§ 40-39-201 to 40-39-218 (Doe v. Lee, 518 F. Supp. 3d 1157 (M.D. Tenn.) (holding retroactive

application unconstitutional);

TEX. CODE OF CRIM. PRO. arts. 62.001 to 62.408;

UTAH CODE ANN. §§ 77-41-101 to 77-41-113;

VT. STAT. ANN. tit. 13, §§ 5401 to 5416;

VA. CODE ANN. §§ 9.1-900 to 9.1-923

WASH. REV. CODE ANN. §§ 9A.44.128 to 9A.44.148;

W. VA. CODE §§ 15-12-1 to 15-12-10;

WIS. STAT. ANN. §§ 301.45 to 301.50;

WYO. STAT. §§ 7-19-301 to 7-19-310.

Congressional Research Service

SORNA: A Legal Analysis of 18 U.S.C. § 2250

Author Information

Charles Doyle

Senior Specialist in American Public Law

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

Congressional Research Service

R42692 · VERSION 10 · UPDATED

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.