In a per curiam opinion, United States v. Diaz, the Second Circuit (Calabresi, Chin, and Carney) held that the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), does not permit a defendant to collaterally attack his or her predicate sex offender conviction in a subsequent proceeding. Relying on its own precedent, the Court also concluded that SORNA’s registration and notification requirements are not punitive, and therefore do not violate the prohibitions against cruel and unusual punishment or double jeopardy found in the Eighth and Fifth Amendments. Despite the panel’s agreement as to the result, Judge Calabresi’s concurring opinion emphasized that, while the Second Circuit’s and Supreme Court’s precedent compels this conclusion, he believes that precedent is incorrect.
On December 1, 2000, Chief Petty Officer Salvador Diaz was convicted of three counts rape and two counts indecent acts in violation of the Uniform Code of Military Justice and was sentenced to nine years in prison. Sometime between 2014 and 2017, after his release from prison, Diaz moved to New Jersey and Virginia, but failed to register as a sex offender in his new home, as required by SORNA. He was indicted on April 12, 2017, and – proceeding pro se – subsequently moved to dismiss the indictment on the grounds that the predicate conviction and SORNA itself were unconstitutional. The district court (Caproni, J.) denied that motion as well as Diaz’s later motion to dismiss for improper venue. After a jury trial, he was convicted and sentenced to five months’ probation, including three months’ home confinement.
The Circuit’s Ruling
On appeal, Diaz challenged the district court’s denial of his motions. The Second Circuit affirmed on all fronts. In doing so, the Court held that SORNA does not allow a defendant to challenge the predicate (that is, underlying) sex offender conviction collaterally (that is, during the SORNA proceeding). The Court’s reasoning is rather straightforward. SORNA is structurally analogous to other federal statutes that do not permit collateral attacks on predicate convictions. And while the statute specifically states that a “sex offense” – a term used to define “sex offender” under SORNA – does not include a foreign conviction, 34 U.S.C. § 20911(5)(B), the same is not true for domestic convictions. Finally, Diaz had the opportunity to appeal his prior convictions already.
The Court also held that Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997) compels the conclusion that SORNA is not punitive, foreclosing Diaz’s constitutional arguments on appeal. In Doe v. Pataki, the Second Circuit held that New York’s registration and notification statute did not violate the Fifth Amendment’s Ex Post Facto Clause because the registration and notification requirements were not punitive. Id. at 1285. Here, the Court determined that SORNA is analogous to the New York statute. Moreover, the Supreme Court reached the same conclusion when considering Alaska’s registration and notification statute, in Smith v. Doe, 538 U.S. 84, 105 (2003). Therefore, absent an en banc decision in the Circuit or an intervening Supreme Court decision bringing these decisions into question, the Court concluded that SORNA was not punitive, and therefore not unconstitutional under the Eighth and Fifth Amendments.
Of more note, however, is Judge Calabresi’s concurrence, in which he expressed that he vehemently disagrees with Pataki and Smith. In his view, notification requirements are indeed punitive, since they essentially “brand” and “shame” sex offenders who attempt to reintegrate into society following their sentence. In presenting this view, he relied on the opinion of his fellow panel member Judge Chin, who, before his elevation to the Second Circuit, wrote the district court decision in Pataki that the Circuit reversed. Even the Circuit in Pataki noted that “the question” of whether the notification provisions constituted punishment “is not free from doubt.” Judge Calabresi observed that, while the statute’s notification requirement may be warranted, it is still in his view a form of punishment, and should be considered as such.
Interestingly, Judge Calabresi also emphasized that any law that has the same “severe” effect as criminal law, despite being civil or nonpenal in name – such as deportation and habeas – should be considered punitive for constitutional purposes. The Supreme Court appears to show greater openness to treating extracompensatory damages in tort and civil forfeiture as punitive, particularly where the punished party is a corporation, and not an individual. Judge Calabresi’s ardent concurrence is perhaps a signal to future litigants facing any of these issues that they ought to consider litigating these issues anyway, and filing an en banc application or applying for writ of certiorari. It is often the case that arguments in the criminal law are rejected by multiple judges as wrong-headed or precluded by precedent, until one day those same arguments become governing law. Compare United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir. 2001) (“join[ing] the other nine circuits that have ruled on direct review” that Apprendi did not apply to the federal Sentencing guidelines) with United States v. Booker, 543 U.S. 220 (2005) (holding that the rule of Apprendi and Blakely applies to the federal Sentencing Guidelines).