United States v. Elk Shoulder

The Sex Offender Registration and Notification Act's registration requirements are not punitive in nature and therefore do not violate a person’s constitutional rights.

Mark Steven Elk Shoulder was convicted of sexual abuse of a child in a federal district court in Montana in 1992. Elk Shoulder violated his supervised release multiple times and was released from custody for the third time in May 2008 and he did not register as a sex offender. In 2009 Elk Should was found guilty of violating the Sex Offender Registration and Notification Act ("SORNA")'s registration requirements. Elk Shoulder challenged key provisions of SORNA on constitutionality grounds. First, Elk Shoulder asserted that it is an additional punishment for SORNA’s registration requirement to be applied to him and a violation of the Ex Post Facto Clause. The Ninth Circuit held that their decision in United States v. Elkins foreclosed this argument by concluding that SORNA’s registration requirement did not violate Elk Shoulder’s constitutional rights because the requirement is not punitive in nature. Elk Shoulder’s second challenge was under Due Process because it was impossible for him to comply with SORNA. The panel held that Elk Shoulder had notice of his obligation to register as a sex offender under the state law of Montana and concluded that he received all the notice that the Due Process Clause required. It was not impossible for him because he could have registered under Montana state law and he would have been registered “as required by” SORNA. Elk Shoulder’s release in 2008 was not unconditional because he was subject to the Wetterling Act upon his release and SORNA became applicable to him. The panel concluded that Elk Shoulder’s constitutional right of Due Process was not violated by SORNA and neither was the Ex Post Facto Clause. Also the panel concluded that SORNA applied to individuals like Elk Shoulder and that SORNA was enacted under Congress’s enumerated powers. AFFIRMED.