Being human, judges might feel inclined to fix lapses and loopholes left by statute writers. Judges must resist any such temptation. Lapses by statute writers stay in the laps of statute writers, and judges have no business fixing the oversights and mistakes of statute writers, other than where statutory provisions violate the Constitution.
Take, for instance, the federal Sex Offender Registration and Notification Act (“SORNA”). After registered sex offender Lester Ray Nichols skipped town in Kansas to relocate to the Philippines (whether or not enticed by the prospect of underage prostitutes there), the Philippines government and United States Marshals arranged Nichols’s detention and return to the United States. Nichols v. U.S., ___ U.S. ___ (April 4, 2016).
Nichols was charged and convicted under SORNA, for not updating his address upon relocating from Kansas for the Philippines. The Tenth Circuit affirmed.
Praised be a the unanimous Supreme Court, joining the opinion of Justice Alito (far from a liberal in any sense), reversing Nichols’s conviction, on the basis that SORNA simply requires sex offenders to register in the state in the United States where they reside, rather than notifying of any relocation overseas. Because the Philippines is not a state in the United States, SORNA did not require Nichols to notify anyone when he left Kansas to reside in the Philippines.
Nichols makes clear that Congress is free to update the law to fix the loophole that benefited Nichols. However, legislatures — and not courts — have the sole responsibility to fix legislative loopholes.