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Opening Arguments

Rules of the game

The purpose of the ex post facto clause of the Constitution is to prevent authorities from punishing people for acts that weren't a crime at the time they were committed. That seems as straightforward a principle as can be. "Just think about it in terms of olden days when a king could suddenly banish everyone who wore red the day before."

But the principle is under attack because of laws in every state now requiring the registry of sex offenders, as a class even less sympathetic than other violent criminals.  In Indiana, hundreds of names have to be purged from the registry because of a state Supreme Court ruling in 2009 because the list wasn't in existence when they committed their crimes.

But the U.S. Supreme Court is considering a case that could easily go the other way. A sex offender moved from Alabama to Fort Wayne, where he did not re-register, which was a requirement enacted two years after he moved. He could have received three years just for failing to register in Indiana, but under the federal failing-to-reregister provision he could get 10 years. As some of the arguments of the justices indicated, this is not as easy a case to predict as we might think:

Roberts set himself apart from the other conservative justices by seeming to advance Rothfeld's arguments while Rothfeld was still at the podium. "That's pretty unusual, isn't it, to have Congress say it's up to the Attorney General whether their laws apply prospectively or retroactively," he said to Rothfeld.

   But Justice Antonin Scalia seemed to disagree. "Well, it's not as though he was authorized to make something a crime which wasn't a crime," he said.

   Justice Sonia Sotomayor depicted what would happen if the Court ruled in Carr's favor. "The problem is that the people who had traveled previously and failed to register would no longer be subject to any registration process or presumably any punishment," she said.

I don't have any sympathy for this guy, but I have to hope he wins on the "what they can do to him they can do to anybody, including me" principle of criminal justice. The only way to live by society's rules is to know what those rules are. If the court OKs punishing people now for things that weren't a crime at the time, it is endorsing changing the rules in the middle of the game, and we're all in trouble.

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