Will the conclusion offered via the Brief for Law Professors in Support of Petitioner open the door for a much-needed legal clarification regarding ex post facto law?
Recently heard by the Supremes (2/24/2010): Carr v. United States, Docket No. 08-1301
(Argument Transcript here.)
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CONCLUSION
While the petitioner’s brief makes a compelling
case for resolving this case in favor of Carr on statutory
grounds, there are significant reasons for the Court to address and resolve the Ex Post Facto Clause argument in favor of the petitioner as well.
Lower courts have created a complete mess of Ex Post Facto law in SORNA cases by confusing the rules of retrospectivity, as the Seventh Circuit did, deciding that a criminal statute with substantial prison penalties was not intended to be punitive, and that lengthy imprisonment and other restraints in SORNA are not punitive in effects. Especially because the Government has effectively neutralized the Ex Post Facto issues by not appealing any district court judgments where it lost the issue, this is an issue that should be addressed in the present matter. The Court should take this opportunity to restate the importance of the Ex Post Facto Clause and provide clear guidance to lower courts in addressing SORNA and other statutes. This will ensure that the Clause provides the necessary bulwark against ill-intentioned legislatures, maintains a proper separation of powers, and preserves the basic
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right of fair notice. Accordingly, the judgment of the court of appeals should be reversed.
Respectfully submitted.
COREY RAYBURN YUNG
John Marshall Law
School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 386-2863
DOUGLAS A. BERMAN
The Ohio State University
Michael E. Moritz College
of Law
55 West 12th Ave.
Columbus, OH 43210
(614) 688-8690
WAYNE A. LOGAN
Florida State University
College of Law
425 W. Jefferson St.
Tallahassee, FL 32306
(850) 644.4759
AMY L. NEUHARDT
Counsel of Record
Boies, Schiller & Flexner
LLP
5301 Wisconsin Ave. NW
Washington, DC 20015
(202) 274-1137
Counsel for Amici Curiae
DECEMBER 9, 2009
