WASHINGTON– Lester Ray Nichols, a sex offender who moved out of the country and never updated his registration, might not have been actually required to do so, his lawyer Daniel Hansmeier argued before the Supreme Court Tuesday
Members of the National Sex Offender Registry are required to update their registration within three days of moving to a new residence. But when Nichols left Kansas for the Philippines in 2012, he never updated. A month later he was arrested and sent back to the United States where he was convicted of violating the Sex Offender Registration and Notification Act.
In a challenge to that reading of the law, his attorney Hansmeier argued Tuesday that since the law doesn’t apply to foreign countries Nichols didn’t need to notify the Philippines of his residency. And there is nothing in the law saying he has to tell Kansas, the jurisdiction he left, that he is no longer there, the lawyer said.
This won’t be an issue going forward. Last month President Barack Obama signed a law that requires the sex offenders to notify the government when they travel abroad so the U.S. can inform that country. It also, controversially requires the sex offenders to have a special identifier on their passports.
But Nichols, now 74, was convicted of intent to engage in sex with a minor, while the old registration statute was still on the books. Perhaps that was the reason for the almost leisurely opening pace where few of the justices pressed Hansmeier on his argument. Justice Samuel Alito was the most hostile on the bench, pushing the attorney on why Congress might have left this loophole in the law if its purpose was to keep track of sex offenders.
The mood in the courtroom changed considerably when Assistant Solicitor General Curtis Gannon responded for the government. He argued that Kansas was still a “jurisdiction involved” in the case – one that Nichols needed to notify — and that sex offenders have the primary responsibility to keep their registrations current. His remarks were met with skepticism.
Justice Stephen Breyer pushed Gannon on what it meant for a jurisdiction to be “involved,” especially when the phrase in context seemed to clearly refer to places where the offender resides, works or goes to school. But Gannon said when Nichols left Kansas he was still on the registry there, ergo Kansas remained a jurisdiction involved.
Breyer and Chief Justice John Roberts both criticized what they seemed to view as Gannon’s overly complex interpretation of the law.
“The more I explain it, the less I understand it,” Breyer said after trying to work through the logic of the government’s case out loud.
The justices, especially Justice Elena Kagan, seemed surprised by Gannon’s aggressive tone and delivery. He occasionally tried to speak over the justices.
Reporters, who were hoping that Justice Clarence Thomas, would vocalize again Tuesday were disappointed. During arguments Monday, Thomas asked a question from the bench for the first time in a decade. But there was some excitement. Toward the end of the argument, the lights in the courtroom unexpectedly went out.
“I knew we should’ve paid that bill,” Roberts joked to collective laughter in the courtroom. With all the justices microphones still working, the argument continued illuminated by light coming through the huge windows on either side of the courtroom. After about five minutes, the electric lights came back on.
A ruling in this case is expected by summer.