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John F. Howard

Abstract

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for sentencing purposes, federal courts apply what is known as the “categorical approach,” which involves the courts comparing the elements of the prior state-level offense to those of a generic federal offense to determine whether there is a categorical match between the two. But in the context of SORNA, more and more federal courts are looking beyond the bare elements of a prior state-level conviction to the facts underlying the conviction and using that information to determine whether the defendant before them is indeed a “sex offender” under SORNA. This Comment argues that, while federal sentencing courts may indeed be entitled to look past the bare elements of the prior offense in certain SORNA cases, looking to anything beyond facts that were already admitted by the defendant in a prior proceeding could raise Sixth Amendment concerns. Therefore, this Comment recommends the adoption of new approach to statutory comparison, a “restricted circumstance-specific approach,” that would appropriately balance those Sixth Amendment concerns with Congress’s intent that SORNA protect the public from sex offenders.

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