Is there hope on the horizon? The U.S. Supreme Court heard oral arguments yesterday in Nichols v. United States, a case that pitted the federal government against a registrant who left the state of Kansas in order to move permanently to the Philippines. The government argued before the Court that the registrant violated the law by failing to notify Kansas of his departure before he actually departed.
That argument is not hope. Instead, hope came in the form of pointed questions and statements made by several Supreme Court justices during the oral argument.
For example, Justice Anthony Kennedy quizzed the government’s attorney about the meaning of the word “current” and asked how Kansas could be considered the registrant’s “current” residence when he in fact already resided in the Philippines. And surprisingly, Chief Justice John Roberts joined the fray by suggesting that a 10-year sentence for violation of the law was too severe.
The comments made by the justices yesterday could be a signal that the Court will not uphold the government’s decision. That, too, brings hope. That the Court will allow the registrant to avoid a 10-year prison sentence and return to the Philippines.
Such a decision is not guaranteed, however, and if it is rendered, it may or may not be a harbinger of things to come. Why? Because also during yesterday’s oral argument, a few justices made derogatory comments about and/or references to registrants.
For example, Justice Samuel Alito uttered the words of most concern when he used the terms “sex offender” and “pedophile” interchangeably. He also said that Congress’ passage of the International Megan’s Law “evidenced a belief that the United States should not be exporting its pedophile problems to other countries.”
Compared to Alito’s comments, the comments of Justice Elena Kagan were not as strident, but they were still offensive. She said “when sex offenders leave the country permanently the attitude might be like, good luck and good riddance.”
Yes. There is hope on the horizon. There is also doubt. Doubt that the U.S. Supreme Court will correct its mistake, Smith v. Doe, which determined in 2003 that the requirement to register is merely administrative and not punishment. The Court may be given an opportunity to correct that mistake if and when it reviews a challenge to the International Megan’s Law. Will the Court then decide that a conspicuous, unique identifier added to a registrant’s passport is merely administrative or will the Court recognize that a unique identifier on a passport is indeed punishment?
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