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2 July 2008
[Federal Register: July 2, 2008 (Volume 73, Number 128)]
[Notices]
[Page 38029-38070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jy08-142]
[[Page 38029]]
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Part II
Department of Justice
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Office of the Attorney General; The National Guidelines for Sex
Offender Registration and Notification; Notice
[[Page 38030]]
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DEPARTMENT OF JUSTICE
[Docket No. OAG 121; AG Order No. 2978-2008]
RIN 1105-AB28
Office of the Attorney General; The National Guidelines for Sex
Offender Registration and Notification
AGENCY: Department of Justice.
ACTION: Final guidelines.
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SUMMARY: The United States Department of Justice is publishing Final
Guidelines to interpret and implement the Sex Offender Registration and
Notification Act.
DATES: Effective Date: July 2, 2008.
FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, SMART
Office, Office of Justice Programs, United States Department of
Justice, Washington, DC, phone: 202-514-4689, e-mail:
Getsmart@usdoj.gov.
SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender Registration Act
(42 U.S.C. 14071) in 1994, there have been national standards for sex
offender registration and notification in the United States. All states
currently have sex offender registration and notification programs and
have endeavored to implement the Wetterling Act standards in their
existing programs.
Title I of the Adam Walsh Child Protection and Safety Act of 2006
(Pub. L. 109-248), the Sex Offender Registration and Notification Act
(SORNA), contains a comprehensive revision of the national standards
for sex offender registration and notification. The SORNA reforms are
generally designed to strengthen and increase the effectiveness of sex
offender registration and notification for the protection of the
public, and to eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could attempt to
evade registration requirements or the consequences of registration
violations.
Section 112(b) of SORNA (42 U.S.C. 16912(b)) directs the Attorney
General to issue guidelines to interpret and implement SORNA. The
Department of Justice published proposed guidelines in the Federal
Register on May 30, 2007, for this purpose. See 72 FR 30209 (May 30,
2007). The comment period ended on August 1, 2007.
These final guidelines provide guidance and assistance to the
states and other jurisdictions in incorporating the SORNA requirements
into their sex offender registration and notification programs. Matters
addressed in the guidelines include general principles for SORNA
implementation; the jurisdictions responsible for implementing the
SORNA standards in their programs; the sex offenders required to
register under SORNA and the registration and notification requirements
they are subject to based on the nature of their offenses and the
extent of their recidivism; the information to be included in the sex
offender registries and the disclosure and sharing of such information;
the jurisdictions in which sex offenders are required to register; the
procedures for initially registering sex offenders and for keeping the
registration current and the registration information up to date; the
duration of registration; and the means of enforcing registration
requirements.
A summary of the comments received on the proposed guidelines
follows, including discussion of changes in the final guidelines based
on the comments received, followed by the text of the final guidelines.
Summary of Comments on the Proposed Guidelines
Approximately 275 comments were received on the proposed
guidelines. The Department of Justice appreciates the interest and
insight reflected in the many submissions and communications, and has
considered them carefully. In general, the comments did not show a need
to change the overall character of the guidelines, but in some areas
the commenters provided persuasive reasons to change the proposed
guidelines' treatment of significant issues, or pointed to a need to
provide further clarification about them.
The initial portion of this summary reviews the most significant
and most common issues raised in the comments, and identifies changes
made in the final guidelines relating to these issues. The remainder of
the summary thereafter runs through the provisions of the guidelines in
the order in which they appear, and discusses in greater detail the
comments on each topical area in the guidelines and changes made (or
not made) on the basis of public comments.
Tribal issues: Comments were received from a number of Indian
tribal organizations and individual tribes that expressed their strong
commitment to the protection of their communities from sex offenders
through effective registration and notification. These comments,
however, emphasized the importance of consulting and involving tribal
representatives in all aspects of SORNA implementation affecting tribal
interests, and presented well-founded proposals for changing a number
of provisions in the guidelines. Specific changes in the final
guidelines based on these comments include: (i) Clarifying that groups
of tribes may enter into cooperative arrangements among themselves to
effect the substantial implementation of the SORNA requirements, (ii)
striking a provision of the proposed guidelines that was seen as
according less respect to tribal sex offense convictions than to sex
offense convictions in other jurisdictions, and (iii) modifying a
requirement for sex offenders to register ethnic or tribal names whose
formulation was overly broad in the proposed guidelines. The comments
received on tribal issues and resulting changes in the final guidelines
are further discussed below in connection with Sec. 127 of SORNA, the
meaning of ``conviction'' for purposes of SORNA, and required
registration information under SORNA.
Treatment of juveniles: Comments were received from various groups
and individuals objecting to SORNA's treatment of juvenile delinquents.
The relevant SORNA provisions require registration for juveniles at
least 14 years old who are adjudicated delinquent for committing
particularly serious sexually assaultive crimes (offenses ``comparable
to aggravated sexual abuse''). These comments could not be accommodated
in the guidelines to the extent that they simply express disagreement
with the legislative decision in SORNA Sec. 111(8) that a narrowly
defined class of juvenile delinquents should be subject to SORNA's
requirements, or propose that jurisdictions be deemed to have
substantially implemented SORNA even if they globally dispense with
SORNA's registration and notification requirements in relation to
juveniles. However, the comments have provided grounds for further
thought about the implementation of Sec. 111(8)'s requirement that
juveniles at least age 14 adjudicated delinquent for offenses
comparable to aggravated sexual abuse be registered, resulting in a
substantial change in the final guidelines' treatment of this issue. As
revised, the guidelines explain that it is sufficient for substantial
implementation of this aspect of SORNA to require registration for
(roughly speaking) juveniles at least age 14 who are adjudicated
delinquent for offenses equivalent to rape or attempted rape, but not
for those adjudicated delinquent for lesser sexual assaults or non-
violent sexual conduct. The comments received on this issue
[[Page 38031]]
and the changes made on the basis of the comments are further discussed
below in connection with the ``substantial implementation'' standard
under SORNA and in connection with SORNA's concept of ``conviction''
(parts II.E and IV.A of the guidelines).
Retroactivity: Some commenters objected to, or expressed concerns
about, provisions of the guidelines that require that jurisdictions
apply the SORNA requirements ``retroactively'' to certain categories of
offenders whose sex offense convictions predate the enactment of SORNA
or its implementation in a particular jurisdiction. The guidelines
specifically require registering in conformity with SORNA sex offenders
who remain in the system as prisoners, supervisees, or registrants, or
who reenter the system through a subsequent criminal conviction. Some
comments of this type opined that Congress was simply wrong in enacting
SORNA's requirements for sex offender registration and notification,
and that the Attorney General should mitigate the resulting harm by
defining their scope of application as narrowly as possible. This
premise cannot be accepted or acted on in issuing guidelines to
``interpret and implement'' SORNA, as SORNA Sec. 112(b) requires the
Attorney General to do. Other commenters, however, expressed concerns
of a more practical nature, based on potential difficulties in finding
older convictions and determining whether registration is required for
them under SORNA's standards. The final guidelines address this concern
by clarifying that jurisdictions may rely on their normal methods and
standards in searching criminal records for this purpose, and that
information about underlying offense conduct or circumstances does not
have to be sought beyond that appearing in available criminal history
information. Parallel explanation has also been provided in relation to
pre-SORNA (or pre-SORNA-implementation) convictions that raise a sex
offender's tier classification under SORNA on grounds of recidivism.
Information subject to Web site posting: Some state officials who
submitted comments expressed concern that their jurisdictions would be
required to post various types of registration information on their
public sex offender Web sites--e.g., fingerprints, palm prints, and DNA
information--that would be of no real interest to the public or
inappropriate for public disclosure. However, the guidelines identify a
limited number of informational items concerning a sex offender that
must be included on the Web sites--in essence, name information,
address information, vehicle information, physical description, sex
offenses for which convicted, and a current photograph--and do not
require Web site posting of registration information outside of these
categories. The guidelines in their final formulation have been revised
for greater clarity concerning the information that must be included on
jurisdictions' sex offender Web sites and the information that need not
be included.
Registration jurisdictions: Some commenters raised questions about
in-state registration requirements, such as whether a sex offender who
resides in one county and is employed in another would have to register
in both counties. The answer is that this is a matter of state
discretion. The ``jurisdictions'' in which SORNA requires registration
are the 50 States, the five principal territories, the District of
Columbia, and Indian tribes that have elected to be registration
jurisdictions in conformity with Sec. 127--the definition does not
cover counties, cities, towns, or other political subdivisions of
states or other covered jurisdictions. SORNA Sec. 113(a) provides that
sex offenders must register in the jurisdictions (as so defined) in
which they live, work, or attend school, but SORNA does not prescribe
finer requirements as to the particular area(s) or location(s) within
individual states, territories, or tribes where sex offenders must
register or make in-person appearances. Questions were also raised
whether there is a continuing registration requirement under SORNA--
beyond initial registration--in relation to the jurisdiction in which a
sex offender was originally convicted for the registration offense, if
the sex offender does not reside, work, or attend school in that
jurisdiction. The answer is no. While SORNA itself (Sec. Sec. 111(10),
113(a)) and the proposed guidelines reflect these points, some
additional explicit language has been added about them in the final
guidelines to foreclose future misunderstandings of this type.
Offense of conviction versus underlying conduct: Some commenters
raised questions or provided recommendations as to whether the
application of SORNA's requirements depends on the elements of the
offense for which the sex offender is convicted or the underlying
offense conduct. The answer to this question may affect whether
registration is required by SORNA at all, and may affect the ``tier''
classification of offenders under the SORNA standards. The general
answer is that jurisdictions are not required by SORNA to look beyond
the elements of the offense of conviction in determining registration
requirements, except with respect to victim age. The discussion of the
tier classifications has been edited in the final guidelines to make
this point more clearly.
Duration of registration: Some commenters expressed uncertainties
or criticisms relating to provisions in the guidelines affecting the
duration of registration. The matters raised included (i) whether the
running of the registration period is suspended by the subsequent
incarceration of the sex offender or other subsequent events (tolling),
and (ii) the conditions for reducing registration periods. The
discussion of these issues has been revised in some respects in the
final guidelines for greater clarity.
Risk assessments: Some commenters asked whether a jurisdiction
could be considered to have substantially implemented the SORNA
requirements if the jurisdiction globally dispensed with those
requirements and instead based sex offender registration or
notification on individualized risk assessments of sex offenders. The
answer is no, for reasons that are further discussed in connection with
``substantial implementation'' later in this summary. This does not
mean, however, that SORNA bars jurisdictions from utilizing risk
assessments in their systems if they so wish. Jurisdictions may have
reasons for carrying out such assessments independent of registration/
notification issues, such as to inform decisions concerning the
conditions or duration of supervision, and they remain free to utilize
such assessments as a basis for prescribing registration or
notification requirements that exceed the minimum required by SORNA.
For example, there is no inconsistency with SORNA if a jurisdiction
prescribes a longer registration period or more frequent verification
appearances than the minimum required under SORNA Sec. Sec. 111(2)-
(4), 115-16, based on a risk assessment indicating that a sex offender
is at ``high risk'' of reoffending, or if a jurisdiction includes on
its public sex offender Web site information showing the results of
risk assessments of individual offenders.
Aids to implementation: Some of the commenters recommended the
development of practical information technology and documentary tools
to facilitate SORNA implementation. Various measures of this sort will
be pursued. The final guidelines themselves will be available in a more
user-friendly form on the SMART Office Web site, which will include a
table of contents with page number references
[[Page 38032]]
and an index. Per the directive in SORNA Sec. 123, software is being
developed and communications systems arrangements are being made that
will facilitate the interjurisdictional exchange of registration
information, automate the posting of information to sex offender Web
sites and the operation of such Web sites in conformity with the SORNA
requirements, and otherwise enable jurisdictions to implement the SORNA
requirements in their programs as far as possible by using these
technological tools. Additional implementation tools the SMART Office
is developing include: A database of statutes ranging back to
approximately 1960 for all SORNA jurisdictions, which jurisdictions
will be able to link to from their registries to provide the text of
the conviction offense for each registered sex offender; a statutory
matrix of sex offense provisions from all SORNA jurisdictions, which
will assist jurisdictions in ascertaining the SORNA registration and
notification requirements applicable to offenders convicted of these
offenses; checklists that jurisdictions will be able to use to evaluate
whether the SORNA requirements are met in their programs and to
structure their submissions to the SMART Office establishing SORNA
implementation; model forms that jurisdictions will be able to use to
inform sex offenders about their obligations under SORNA; and model
templates for jurisdictions to use to create cooperative agreements.
Jurisdiction-specific questions: Some commenters--particularly
state officials with responsibilities relating to sex offender
registration or notification--submitted extensive questions, comments,
and observations relating to the implementation of SORNA in their
jurisdictions. This summary does not attempt to provide an exhaustive
account of such submissions, or to respond to them point by point. The
number of specific questions or comments of this type is very large and
many of them relate to matters that may not arise in, and may not be of
interest to, jurisdictions other than the particular jurisdiction that
submitted the questions. Also, these comments largely did not propose
changes in the guidelines, but perhaps sought confirmation of the
guidelines' meaning in relation to certain matters, or practical advice
or suggestions for implementing the SORNA requirements in particular
state systems. The SMART Office's cooperative work with all
jurisdictions in their SORNA implementation efforts will provide a more
satisfactory means of answering questions and addressing matters of
this type than this summary of comments on the proposed SORNA
implementation guidelines.
Residency restrictions and other misunderstandings: A number of
commenters submitted critical comments concerning supposed requirements
that do not appear in SORNA or the guidelines. For example, some
commenters complained that SORNA or the guidelines would prevent sex
offenders from living in many areas. But SORNA's requirements are
informational in nature and do not restrict where sex offenders can
live. To the extent that states, other SORNA jurisdictions, or
municipalities prescribe restrictions on areas that sex offenders may
enter or reside in, it is a matter in their discretion, and any
objections to such restrictions would need to be addressed to the
governmental entities that adopt them. As a second example, some
commenters assumed that there is little or no difference between the
treatment of adult sex offenders and juveniles under SORNA and the
guidelines, and that SORNA would require registration by teenagers
based on consensual sexual conduct with other teenagers of similar age.
No changes have been made in the guidelines on the basis of such
comments because they involve incorrect assumptions concerning matters
that SORNA and the guidelines do not require.
Objections to SORNA: Some of the comments stated objections to
SORNA generally, to specific sex offender registration or notification
requirements prescribed by SORNA, or to features of the guidelines that
straightforwardly reflect SORNA's requirements. Changes have not been
made in the guidelines based on such comments because the Attorney
General has no authority to repeal or overrule the national standards
for sex offender registration and notification that are embodied in
SORNA. Rather, the Attorney General's responsibility is to interpret
and implement those standards in the guidelines, as required by SORNA
Sec. 112(b).
The remainder of this summary discusses comments received on the
guidelines' provisions in the order in which those provisions appear in
the guidelines.
I. Introduction
No comments were received that provided any persuasive reason to
change the Introduction, and it remains the same in the final
guidelines.
II. General Principles
A. Terminology
The proposed guidelines, following the express definition in SORNA
Sec. 111(10), used the term ``jurisdictions'' to refer to the 50
States, the District of Columbia, the five principal U.S. territories,
and Indian tribes so qualifying under Sec. 127. Some comments received
nevertheless reflected a misunderstanding of ``jurisdictions'' in some
contexts in the guidelines as including political subdivisions of
states (e.g., counties). Additional explanation about the meaning of
``jurisdiction'' has been added in the ``terminology'' section in the
final guidelines to foreclose misunderstandings of this type. A
paragraph has also been added explaining the use of the term
``imprisonment'' in SORNA and the guidelines.
B. Minimum National Standards
The proposed guidelines stated that SORNA generally establishes
minimum national standards, setting a floor, not a ceiling, for
jurisdictions' sex offender registration and notification programs.
Hence, jurisdictions may adopt requirements that encompass the SORNA
baseline of sex offender registration and notification requirements but
exceed them in relation to such matters as: The classes of persons who
will be required to register; the means by, and frequency with which,
registration information will be verified; the duration of
registration; the time for reporting of changes in registration
information; and the classes of registrants and the information about
them that will be included on public sex offender Web sites.
Some commenters took issue with this basic premise of the
guidelines, asserting that SORNA was meant to prescribe the most as
well as the least that jurisdictions may do, hence precluding
jurisdictions from adopting sex offender registration and notification
measures that go beyond those required by SORNA. This view is mistaken,
as may be seen from the provisions of SORNA and the Adam Walsh Act, the
history of the national standards for sex offender registration and
notification, and the general principles regarding preemption of state
regulation by federal law.
Considering first the provisions of SORNA, Sec. 119(a) provides
the current statutory basis for the National Sex Offender Registry
(NSOR), a central database maintained by the FBI that compiles
information from the state sex offender registries and makes it
[[Page 38033]]
available to law enforcement agencies on a nationwide basis. Section
119(a) states specifically that ``[t]he Attorney General shall maintain
a national database at the Federal Bureau of Investigation for each sex
offender and any other person required to register in a jurisdiction's
sex offender registry.'' (Emphasis added.) Hence, the authorizing
provision for NSOR contemplates expressly that NSOR's contents will not
be limited to persons satisfying the SORNA Sec. 111(1), (5)-(8)
definition of ``sex offender''--which defines the universe of
individuals required to register under SORNA's standards--but rather
also will include information concerning ``other person[s]'' whom
jurisdictions require to register. For example, as the guidelines note,
jurisdictions may choose to require registration by certain classes of
persons who are non-convicts and hence outside the SORNA definition of
``sex offender''--such as persons acquitted of sexually violent crimes
or child molestation offenses on the ground of insanity, or persons
released following civil commitment as sexually dangerous persons.
SORNA Sec. 119(a) explicitly confirms the propriety of including
information on such registrants in NSOR. If, however, there had been a
legislative objective to exclude all such persons from any requirement
to register, as these commenters suppose, it would have been perverse
for SORNA to provide that these persons are to be included in the
National Sex Offender Registry.
SORNA Sec. 120, which provides the statutory basis for the Dru
Sjodin National Sex Offender Public Web site, similarly shows that
SORNA was not intended to prescribe the maximum that jurisdictions may
do. The Web site in question, maintained by the Department of Justice
at http://www.nsopr.gov, is a search mechanism that provides convenient
access through a single national site to the information available on
the individual jurisdictions' public sex offender Web sites. Section
120(b) states that ``[t]he Website shall include relevant information
for each sex offender and other person listed on a jurisdiction's
Internet site.'' (Emphasis added.) Hence, the provision for the
national public Web site expressly contemplates, and allows for the
inclusion of, registrants in addition to those satisfying the SORNA
definition of ``sex offender,'' and assumes that there will be public
notification concerning such registrants through Web site posting. On
the view of the commenters who assert that the SORNA standards define a
ceiling for jurisdictions' programs, SORNA establishes a federal policy
against registration and notification for persons who do not satisfy
the SORNA definition of ``sex offender.'' However, if a jurisdiction
violates this alleged federal policy by requiring such persons to
register and posting them on its sex offender Web site, then the
violation is to be compounded by posting them on the national sex
offender Web site as well, as SORNA Sec. 120 requires. There is no
merit to an understanding that would impute to SORNA such contradictory
objectives.
A third provision of similar import is 18 U.S.C. 4042(c) (entitled
``notice of sex offender release''), which requires notice to state and
local law enforcement and to state or local sex offender registration
agencies concerning the release to their areas of certain federal
prisoners and probationers. The persons for whom such release notice is
required are those ``required to register under the Sex Offender
Registration and Notification Act'' and in addition ``any other person
in a category specified by the Attorney General.'' 18 U.S.C.
4042(c)(1), (3), as amended by SORNA Sec. 141(f)-(g). The ``any other
person'' language provides the Attorney General the authority to
facilitate jurisdictions' registration requirements that go beyond the
SORNA minimum by affording release notice to the jurisdictions'
registration authorities concerning persons who may be subject to such
broader requirements, even if they are not required to register by the
SORNA standards. This would make no sense if there were a federal
policy against jurisdictions' registering individuals who are not
required to register by SORNA.
A fourth provision of this type, appearing later in the Adam Walsh
Act, is Sec. 631, which authorizes funding to assist jurisdictions in
periodic verification of the registered addresses of sex offenders. The
history of this provision indicates that its purpose is to support
special measures jurisdictions may adopt to ensure that sex offenders
remain at their registered addresses, such as mailing to the registered
address verification forms that the sex offender is required to sign
and return--measures that are supplementary to in-person appearances by
sex offenders, which are the only means of periodic verification of
registration information that SORNA requires in its enacted form.
Compare SORNA Sec. Sec. 116, 631, with H.R. 3132, Sec. Sec. 116, 118,
109th Cong., 1st Sess. (2005) (as passed by the House of
Representatives). However, under the commenters' theory that SORNA
defines the maximum sex offender registration measures jurisdictions
may adopt, there would be no room for a program like that authorized in
Sec. 631 of the Adam Walsh Act to encourage additional measures
promoting effective sex offender tracking and location.
The general history and formulation of SORNA also imply that
jurisdictions have discretion to go beyond the minimum registration and
notification measures required by SORNA. SORNA was preceded by the
national standards for sex offender registration under the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act (42 U.S.C. 14071), which was initially enacted in
1994.
The general approach of SORNA parallels that of the Wetterling Act.
Both enactments set forth standards that address the various aspects of
sex offender tracking and public notification, but they do not purport
to exhaust the measures that jurisdictions may wish to adopt for these
purposes, or to preempt additional regulation by jurisdictions of
persons who have committed sexual offenses. The Attorney General's
guidelines under the Wetterling Act consistently interpreted that Act's
requirements as minimum standards that states are free to exceed. See
64 FR 572, 575 (1999) (``[T]he Act's standards constitute a floor for
state programs, not a ceiling * * * . For example, a state may have a
registration system that covers broader classes of offenders than those
identified in the Act, requires address verification for registered
offenders at more frequent intervals than the Act prescribes, or
requires offenders to register for a longer period of time than the
period specified in the Act. Exercising these options creates no
problem of compliance because the Act's provisions concerning duration
of registration, covered offenders, and other matters do not limit
state discretion to impose more extensive or stringent requirements
that encompass the Act's baseline requirements.''); 62 FR 39009, 39013
(1997) (same); 61 FR 15110, 15112 (1996) (same); see also 70 FR 12721,
12724 (2005) (same understanding in proposed guidelines for final
amendments to the Wetterling Act preceding enactment of SORNA).
Given that this understanding of the national standards under the
Wetterling Act was set forth in public guidelines for over a decade
prior to the enactment of the successor national standards of SORNA,
the reasonable expectation at the time of SORNA's enactment was that
the SORNA standards would be understood in the same way, absent a new
legislative direction to the contrary. Hence, continuing the approach
of the
[[Page 38034]]
Wetterling Act, SORNA does not bar jurisdictions from adopting
additional regulation of sex offenders for the protection of the
public, beyond the specific measures that SORNA requires.
Under both the Wetterling Act and SORNA, the ``floor, not ceiling''
principle is qualified in one area. Specifically, in relation to public
disclosure of information on registrants, the Wetterling Act standards
required release of relevant information necessary to protect the
public, but with the proviso that ``the identity of a victim of an
offense that requires registration under this section shall not be
released.'' 42 U.S.C. 14071(e)(2). The exclusion of victim identity
from public disclosure is carried forward in SORNA Sec. 118(b), which
specifies ``mandatory exemptions'' from the posting of registration
information on jurisdictions' sex offender websites. Specifically,
Sec. 118(b)(1) states that a jurisdiction shall exempt from disclosure
``the identity of any victim of a sex offense.'' In addition,
reflecting that SORNA Sec. 114 requires a broader range of
registration information than had been required under the Wetterling
Act standards, some of which may be inappropriate for public disclosure
through website posting, SORNA Sec. 118(b) states additional mandatory
exemptions for Social Security numbers, arrests not resulting in
conviction, and any other information exempted from disclosure by the
Attorney General.
The statement of these limited exceptions provides further
confirmation for the general principle that SORNA's aim is to define a
floor, not a ceiling, for jurisdictions' sex offender registration and
notification programs. Under both the Wetterling Act and SORNA, there
is one area--public disclosure of registration information--in which
there is an overt legislative decision that the federal law standards
should impose some affirmative limitation on how far jurisdictions may
go. In both the Wetterling Act and SORNA this judgment is reflected in
explicit statutory provisions stating that certain information shall
not be disclosed. So a model for instructing jurisdictions about what
they should not do exists, and one would expect similar express
statements of limitation had SORNA been meant to prescribe upper bounds
on jurisdictions' registration measures in other areas. In SORNA,
however, as in the Wetterling Act, such statements of limitation do not
appear in other contexts.
The practical consequences of reinterpreting the national standards
to establish a ceiling for jurisdictions' registration and notification
programs must also be considered. During the period in which the
Wetterling Act defined the national baseline for sex offender
registration and notification, states were free to go beyond the
specified minimum, as discussed above, and commonly did so. For
example, the Wetterling Act standards required 10 years of registration
for sex offenders generally, and lifetime registration for aggravated
offenders and recidivists. See 42 U.S.C. 14071(b)(6). But many
jurisdictions have adopted durational requirements for registration
that exceed the Wetterling Act's minimum, and may also exceed the
current SORNA minimum in relation to many sex offenders--such as making
lifetime registration the norm in relation to registrants generally, as
may be provided in some existing registration programs. Hence, taking
the SORNA standards as a ceiling for such programs would require many
jurisdictions to reduce or eliminate sex offender registration and
notification requirements that they were free to adopt under the
Wetterling Act standards and currently apply in their programs. That is
not plausibly the objective of a law (SORNA) enacted with the general
purpose of strengthening sex offender registration and notification in
the United States.
The general principles governing federal preemption of state
regulation lead to the same conclusion. SORNA's regulatory system for
sex offenders involves a combination of federal and non-federal
elements. In part, SORNA directly prescribes registration requirements
that sex offenders must comply with, and authorizes the Attorney
General to augment or further specify those requirements in certain
areas. See Sec. Sec. 113(a)-(d), 114(a), 115(a), 116. These
requirements are subject to direct federal enforcement, including
prosecution under 18 U.S.C. 2250 where violations occur under
circumstances supporting federal jurisdiction, and prescription of
compliance with the SORNA requirements as mandatory conditions of
supervision for federal sex offenders under 18 U.S.C. 3563(a)(8),
3583(d). SORNA provides incentives for states and other covered
jurisdictions to incorporate its registration requirements for sex
offenders, and other registration and notification-related measures set
out in other provisions of SORNA, into their own sex offender
registration and notification programs. See Sec. Sec. 112(a), 113(c)
(second sentence), 113(e), 114(b), 117, 118, 121, 122, 124-27. The
overall SORNA scheme also incorporates federal superstructure and
assistance measures that support and leverage the jurisdictions'
individual registration and notification programs. See Sec. Sec. 119,
120, 122, 123, 128, 142, 144, 146. The Attorney General is authorized
to issue guidelines and regulations to interpret and implement SORNA.
See Sec. 112(b).
The commenters who took issue with the ``floor, not ceiling''
principle in the proposed guidelines asserted that the registration and
notification requirements set out in SORNA are meant to be exhaustive
and preemptive, precluding any additional regulation of released sex
offenders by (non-federal) jurisdictions for the protection of the
public. But ``[w]hen considering pre-emption, we start with the
assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.'' Wisconsin Public Intervenor v. Mortier, 501 U.S.
597, 605 (1991) (internal quotation marks omitted).
One way a ``clear and manifest'' preemptive purpose may be shown is
through ``explicit pre-emptive language.'' 501 U.S. at 605. But SORNA
contains no explicit preemption provision, which says that states or
other jurisdictions cannot adopt regulatory measures beyond those that
SORNA requires. The various provisions in SORNA regarding
jurisdictions' implementation of SORNA are best understood as being
satisfied if a jurisdiction incorporates the SORNA requirements in its
program, with no negative implication concerning the jurisdiction's
discretion to adopt additional requirements. See SORNA Sec. Sec.
112(a) (each jurisdiction to maintain a sex offender registry
conforming to the requirements of SORNA), 124 (each jurisdiction to
implement SORNA within specified time frames), 125 (funding reduction
for jurisdictions that fail to substantially implement SORNA), 126
(authorizing funding assistance for implementation of SORNA).
Absent explicit preemption, ``Congress' intent to supersede state
law in a given area may nonetheless be implicit if a scheme of federal
regulation is so pervasive as to make reasonable the inference that
Congress left no room for the States to supplement it.'' 501 U.S. at
605 (internal quotation marks omitted). SORNA, however, obviously
leaves room for states (and other jurisdictions) to supplement its
requirements. As discussed above, this point is recognized in
provisions of SORNA relating to its federal superstructure elements,
such as the National Sex Offender Registry and the Dru Sjodin National
Sex Offender Website, which expressly presuppose
[[Page 38035]]
that the jurisdictions' programs may go beyond the SORNA-required
minimum.
Preemption may also be inferred if ``the Act of Congress * * *
touch[es] a field in which the federal interest is so dominant that the
federal system will be assumed to preclude enforcement of state laws on
the same subject.'' 501 U.S. at 605 (internal quotation marks omitted).
There is, however, no such predominant federal interest with respect to
sex offender registration and notification. The interest of the
individual states (and other covered jurisdictions) in the protection
of their people from sex offenders through appropriate regulatory
measures and public disclosure of relevant information is at least
equal to that of the federal government, and falls within an area of
traditional state power and responsibility.
Another ground for inferring preemption is ``if the goals sought to
be obtained and the obligations imposed reveal a purpose to preclude
state authority.'' 501 U.S. at 605 (internal quotation marks omitted).
Here as well, SORNA does not support such an inference. The general
purpose of SORNA is ``to protect the public from sex offenders and
offenders against children,'' and to that end Congress in SORNA
``establish[ed] a comprehensive national system for the registration of
those offenders.'' SORNA Sec. 102. The SORNA requirements are
``comprehensive'' in the sense that SORNA provides a full set of
national baseline requirements and procedures for sex offender
registration and notification, replacing the previous national
standards under the Wetterling Act. See SORNA Sec. 129 (repeal of
Wetterling Act upon completion of implementation period for SORNA).
Moreover, SORNA is more comprehensive and contemplates greater
uniformity among jurisdictions than the previous Wetterling Act
standards in that it generally establishes a higher national baseline.
But the ``comprehensive[ness]'' of the SORNA requirements cannot be
understood to reflect an intent to preclude any and all differences
among jurisdictions. Some provisions in SORNA expressly authorize
variations among jurisdictions. See Sec. Sec. 118(c) (discretionary
exemption of certain information from website posting by
jurisdictions), 125(b) (authorizing accommodation of state
constitutional restrictions). Various other SORNA provisions, as
discussed above, recognize that jurisdictions may go beyond the SORNA
minimum and they provide for the accommodation of such differences in
SORNA's federal superstructure elements, including the National Sex
Offender Registry and the Dru Sjodin National Sex Offender Website.
These express provisions are at odds with any understanding of the
``comprehensive[ness]'' of the SORNA standards in a preemptive sense,
so as to preclude the adoption by states or other covered jurisdictions
of measures that seek to go further in order to advance SORNA's basic
purpose, i.e., ``[i]n order to protect the public from sex offenders
and offenders against children.'' SORNA Sec. 102.
Finally, ``[e]ven when Congress has not chosen to occupy a
particular field, pre-emption may occur to the extent that state and
federal law actually conflict.'' 501 U.S. at 605. The comments received
on the proposed guidelines included one argument along these lines,
relating specifically to the provisions in SORNA Sec. 115 concerning
the duration of registration.
By way of background, subsection (a) of Sec. 115 requires a sex
offender to register ``for the full registration period * * * unless
the offender is allowed a reduction under subsection (b).'' The ``full
registration period[s]'' specified in subsection (a) of Sec. 115 are
15 years for tier I sex offenders, 25 years for tier II sex offenders,
and life for tier III sex offenders. Subsection (b) of Sec. 115 in
turn provides that the full registration period required by federal law
shall be reduced for certain sex offenders who maintain a ``clean
record'' as defined in the statute. Specifically, the ``full
registration period'' specified for tier I sex offenders in subsection
(a)(1) is 15 years, but if the sex offender maintains a clean record
for 10 years, subsection (b) reduces by five years the period for which
subsection (a) would otherwise require such a sex offender to register.
The other ``clean record'' reduction of the registration period
required by federal law under Sec. 115(b) is for tier III sex
offenders registered on the basis of juvenile delinquency adjudications
who maintain a clean record for 25 years; no reduction is authorized
for tier II sex offenders or for tier III sex offenders registered on
the basis of adult convictions.
One of the commenters argued that these provisions presuppose that
the ``full registration period[s]'' specified in Sec. 115(a) are the
longest registration periods SORNA allows jurisdictions to impose on
sex offenders. For if a jurisdiction required lifetime registration for
a tier I sex offender, the five-year reduction of the full registration
period Sec. 115(b) requires in case the sex offender maintains a
``clean record'' for 10 years could not meaningfully be applied.
However, in the context of Sec. 115, the federal registration
periods described in subsection (a) are referred to as the ``full''
registration periods to distinguish such periods from the reduced
federal registration periods required under subsection (b) if certain
``clean record'' conditions are satisfied. There is no basis for taking
subsection (a)'s requirement that sex offenders register for the
periods specified in that subsection as implying that jurisdictions
cannot prescribe longer or additional registration requirements for sex
offenders. Subsection (b) of Sec. 115 provides that the period for
which SORNA requires a sex offender to register shall be reduced upon
satisfaction of the ``clean record'' conditions specified in that
subsection, but no inference follows that states (or other
jurisdictions) lack the discretion to require on their own authority
that sex offenders continue to register beyond the periods that SORNA
requires them to register.
Hence, a jurisdiction has not failed to implement the SORNA
requirements if it terminates registration for tier I sex offenders
after they have maintained ``clean records'' for 10 years, as Sec.
115(b) allows. But if a jurisdiction chooses instead to require longer
periods of registration for such offenders, including lifetime
registration, it has done nothing that SORNA prohibits. As with SORNA's
requirements generally, Sec. 115's durational requirements for
registration define the minimum, and not the maximum, requirements for
the jurisdictions' registration programs.
Accordingly, no change has been made in the final guidelines as to
the general principle that SORNA defines a floor, not a ceiling, for
jurisdictions' sex offender registration and notification programs.
Changes in the final guidelines relating to this issue are limited to
edits in Parts II.B and XII for greater clarity on the points reflected
in the foregoing discussion.
C. Retroactivity
The proposed guidelines require the application by a jurisdiction
of SORNA's requirements to sex offenders convicted prior to the
enactment of SORNA or its implementation in the jurisdiction, if they
remain in the system as prisoners, supervisees, or registrants, or if
they reenter the system because of subsequent criminal convictions.
Some commenters objected to this feature of the proposed guidelines as
adversely affecting sex offenders in these classes. However, the
effects of SORNA's registration and notification requirements on sex
offenders are much the same regardless
[[Page 38036]]
of whether their sex offense convictions occurred before or after
SORNA's enactment or its implementation in a particular jurisdiction.
Likewise, the public safety concerns presented by sex offenders are
much the same, regardless of when they were convicted. The SORNA
standards reflect a legislative judgment that SORNA's registration and
notification requirements, even if disagreeable from the standpoint of
sex offenders who are subject to them, are justified by the resulting
benefits in promoting public safety. The comments received do not
establish that this legislative judgment is wrong, and in any event
such a premise could not be accepted in the formulation of guidelines
whose objective is to ``interpret and implement'' SORNA's standards,
see SORNA Sec. 112(b), not to second-guess the legislative policies
they embody.
Moreover, the specific provisions of the guidelines relating to
``retroactivity'' incorporate some features that may limit their effect
on sex offenders with older convictions. While SORNA's requirements
apply to all sex offenders, regardless of when they were convicted, see
28 CFR 72.3, the guidelines do not require jurisdictions to identify
and register every such sex offender. Rather, as stated in the
guidelines, a jurisdiction will be considered to have substantially
implemented SORNA if it applies SORNA's requirements to sex offenders
who remain in the system as prisoners, supervisees, or registrants, or
reenter the system through subsequent convictions. So the guidelines do
not require a jurisdiction to register in conformity with SORNA sex
offenders who have fully left the system and merged into the general
population at the time the jurisdiction implements SORNA, if they do
not reoffend. A further limitation permitted by the guidelines is that
a jurisdiction may credit a sex offender with a pre-SORNA conviction
with the time elapsed from his release (or the time elapsed from
sentencing, in case of a nonincarcerative sentence) in determining
what, if any, remaining registration time is required. To the extent
that a jurisdiction exercises this option, the effect of retroactive
application on sex offenders with pre-SORNA convictions may be further
reduced.
Where the critical comments about the guidelines' treatment of
retroactivity went beyond considerations that fail to distinguish sex
offenders with pre-SORNA (or pre-SORNA-implementation) convictions from
those with more recent convictions, they tended to argue that
retroactive application of SORNA's requirements would be
unconstitutional, or would be unfair to sex offenders who could not
have anticipated the resulting applicability of SORNA's requirements at
the time of their entry of a guilty plea to the predicate sex offense.
However, as non-punitive regulatory measures, the SORNA requirements do
not implicate the Constitution's prohibition of ex post facto laws.
Moreover, fairness does not require that an offender, at the time he
acknowledges his commission of the crime and pleads guilty, be able to
anticipate all future regulatory measures that may be adopted in
relation to persons like him for public safety purposes. The comments
received provided no persuasive distinction on these points between the
SORNA requirements and the sex offender registration and notification
measures upheld by the Supreme Court against an ex post facto challenge
in Smith v. Doe, 538 U.S. 84 (2003).
For the foregoing reasons, no changes have been made in the final
guidelines relating to retroactivity based on the comments alleging an
adverse effect on sex offenders. Some critical comments were also
received relating to the guidelines' treatment of retroactivity based
on potential practical difficulties for jurisdictions in identifying
offenders in the relevant classes and determining what SORNA requires
in relation to them. These comments are discussed below in connection
with Part IX of the guidelines.
D. Automation--Electronic Databases and Software
Some commenters asked for a more extensive set of technological or
documentary tools to facilitate the implementation of SORNA in their
jurisdictions. The SMART Office is developing, and will make available
to jurisdictions, a wide range of tools of this type. Descriptions of
many of them appear in the initial portion of this summary, under the
caption ``aids to implementation.''
E. Implementation
The final guidelines, like the proposed guidelines, explain the
``substantial implementation'' standard for jurisdictions'
implementation of the SORNA requirements as affording a limited
latitude to approve measures that do not exactly follow the provisions
of SORNA or the guidelines, where the departure from a SORNA
requirement does not substantially disserve the requirement's
objective. Some commenters urged that a much broader understanding of
the ``substantial implementation'' standard should be adopted, under
which a jurisdiction's registration and notification system could be
approved even if the jurisdiction made no effort to do (either exactly
or approximately) what SORNA requires according to its terms, but
rather adopted a fundamentally different approach to sex offender
registration and notification generally or to particular registration
or notification requirements.
In practical terms, this understanding of ``substantial
implementation'' would potentially negate all of the particular
legislative judgments in SORNA concerning sex offender registration and
notification requirements. It would effectively treat them as a set of
suggestions for furthering public safety in relation to released sex
offenders, which could be dispensed with based on arguments that other
approaches would further that general objective, though not
encompassing the specific minimum measures that SORNA prescribes or
anything close to those measures.
This reinterpretation of the substantial implementation standard
has not been adopted in the final guidelines because it would defeat
SORNA's objective of establishing a national baseline for sex offender
registration and notification. Section 125 of SORNA illuminates this
point. Subsection (a) of that section requires a reduction of Byrne
Grant funding to jurisdictions that fail to ``substantially implement
this title [i.e., SORNA]'' within the applicable time frame. Subsection
(b) of the section recognizes, however, that there may be some
instances in which a jurisdiction cannot substantially implement SORNA
``because of a demonstrated inability to implement certain provisions
that would place a jurisdiction in violation of its constitution, as
determined by a ruling of the jurisdiction's highest court.'' In such
circumstances, the section provides that the Attorney General and the
jurisdiction are to consult to verify that there is an actual conflict
between the state constitution and SORNA's requirements and to
determine whether any such conflict can be reconciled. If there proves
to be an irreconcilable conflict, then special provision is made for
such situations, as provided in Sec. 125(b)(3): ``If the jurisdiction
is unable to substantially implement this title because of a limitation
imposed by the jurisdiction's constitution, the Attorney General may
determine that the jurisdiction is in compliance with this Act if the
jurisdiction has made, or is in the process of implementing reasonable
alternative procedures or
[[Page 38037]]
accommodations, which are consistent with the purposes of this Act.''
Hence, Sec. 125 distinguishes between two standards for approval
of a jurisdiction's SORNA implementation efforts: (i) The generally
applicable standard of ``substantial implementation,'' and (ii) a more
permissive standard allowing reasonable alternative procedures or
accommodations that are consistent with SORNA's purposes. The latter
(more permissive) standard is applicable only to the extent that there
is an irreconcilable conflict between substantial implementation of
SORNA's requirements and what the jurisdiction's constitution allows.
The commenters who have urged an open-ended understanding of the
``substantial implementation'' standard would collapse the distinction
drawn by Sec. 125 between substantial implementation on the one hand
and, on the other, alternative measures that do not substantially
implement SORNA's requirements but aim to further its purposes in some
more general way. Under Sec. 125, the latter are allowed only if state
constitutional restrictions preclude doing substantially what SORNA
requires according to its terms. But under these commenters' view,
alternative measures could be allowed without any particular
limitation, even where a jurisdiction's constitution creates no
impediment to doing what SORNA's provisions prescribe. Given the clear
distinction that Sec. 125 draws between substantial implementation of
SORNA and adoption of alternative measures that are consistent with
SORNA's purposes (but do not substantially implement SORNA), the
commenters' view on this point cannot be reconciled with SORNA.
This point can be illustrated concretely by considering specific
alternatives that some commenters have proposed. For example, some
commenters have urged that ``risk-based'' approaches to sex offender
registration and notification--i.e., systems in which registration or
notification requirements are premised on individualized risk
assessments of offenders--should be approved as substantially
implementing SORNA.
The terminology utilized by the commenters on this point--
distinguishing systems that incorporate SORNA's requirements from
``risk-based'' systems--is misleading, in that SORNA gives weight to
various factors that are reasonably related to the risk that sex
offenders may pose to others and the need for protective measures. Not
all persons who have committed offenses of a sexual nature are required
to register under SORNA's standards, but only those convicted for ``sex
offenses'' as defined in SORNA Sec. 111(5). The definition
incorporates a number of limitations, including general exclusions of
offenses involving consensual sexual conduct between adults, and of
offenses involving consensual sexual conduct with minors at least 13
years old where the offender is not more than four years older. Within
the universe of sex offenders who are required to register under the
SORNA standards, SORNA does not prescribe registration and notification
requirements indiscriminately. Rather, SORNA varies the required
duration of registration, the frequency of required in-person
appearances for verification, and required public notification through
Web site posting, based on ``tier'' criteria that take account of such
factors as the nature and seriousness of the offense, the age of the
victim, and the extent of the offender's recidivism. See SORNA Sec.
111(2)-(4), 115-16, 118(c)(1). SORNA also reduces the periods for which
it requires sex offenders to register in certain circumstances based on
criteria relating to the offender's subsequent conduct, including
avoidance of further offending, successful completion of supervision,
and successful completion of treatment. See SORNA Sec. 115(b)(1).
Moreover, given that SORNA generally defines a floor rather than a
ceiling for jurisdictions' registration and notification programs,
there is no inconsistency with SORNA if a jurisdiction carries out risk
assessments of offenders that take into account a broader range of
factors, and prescribes registration or notification requirements
beyond the SORNA minimum requirements based on the results of such
assessments.
These commenters' recommendation, however, is that systems should
be approved as substantially implementing SORNA that do not incorporate
the SORNA minimum requirements, but rather prescribe lesser
registration or notification requirements (or no requirements) for sex
offenders, unless they are deemed to meet some threshold or level of
risk based on risk assessments that take account of factors beyond
those allowed under SORNA's provisions. The grounds offered in support
of this recommendation are that such systems arguably offer various
benefits in comparison with SORNA's standards, such as focusing
registration and notification more effectively on the offenders who are
likely to pose the greatest risk to the public, and providing
registrants with an incentive to follow the rules and improve their
behavior, where doing so may reduce their risk scores and hence result
in a reduction or termination of registration or notification.
This recommendation cannot be accepted because the systems
described by such commenters do not substantially implement the SORNA
requirements, and do not attempt to do so. Rather, they propose to
forego implementation of what SORNA does require in favor of pursuing
different approaches that the commenters view as preferable means of
promoting public safety from sex offenders.
There is one circumstance in which SORNA allows the approval of
such alternative measures to be considered. Suppose that the highest
court of a jurisdiction rules that the jurisdiction's constitution does
not permit certain registration or notification measures required by
SORNA to be taken in relation to a sex offender, unless the offender is
found to satisfy some threshold or level of risk based on a risk
assessment that gives weight to factors that SORNA's specific
provisions do not allow as grounds for waiving or reducing registration
or notification requirements. In the presence of such an irreconcilable
conflict with the jurisdiction's constitution, the Attorney General
would be permitted under SORNA Sec. 125(b)(3) to approve the
jurisdiction's adoption of reasonable alternative procedures that are
consistent with SORNA's purposes, but that incorporate reliance on risk
assessments and depart from compliance with SORNA's specific
requirements to the extent necessitated by the conflict. However, the
commenters' recommendation is that systems going below the SORNA-
required minima based on risk assessments should be allowed as
``substantial implementation'' of SORNA even where implementing SORNA
according to its terms would not conflict with the jurisdiction's
constitution. This recommendation cannot be accepted because it is
inconsistent with the distinction that Sec. 125 draws between
substantial implementation of SORNA and reasonable alternative measures
that do not substantially implement SORNA but are consistent with
SORNA's purposes. Understanding ``substantial implementation'' so
broadly would potentially reduce SORNA's specific standards to mere
advice, and would conflict with the provisions in Sec. 125 that
specially authorize a more permissive standard only under narrowly
defined circumstances involving constitutional conflicts.
[[Page 38038]]
The response is essentially the same to other specific alternatives
that some commenters have urged as ``substantially implementing''
SORNA, such as not requiring registration by juveniles adjudicated
delinquent for sex offenses under any circumstances, or making
registration or notification for such delinquents a matter of judicial
discretion. SORNA Sec. 111(8) incorporates considered legislative
judgments concerning the class of juvenile delinquency adjudications
that are to be treated as ``convictions'' for purposes of SORNA's
registration and notification requirements, a point that is discussed
in greater detail below in connection with Part IV.A of the guidelines.
The effect of the Sec. 111(8) definition is that the application of
SORNA's registration and notification requirements to juvenile
delinquents is generally limited to those who are at least 14 years old
and who are adjudicated delinquent for the most serious sexually
assaultive crimes. In addition, SORNA Sec. 115(b)(3)(B) allows the
registration periods for persons required to register based on juvenile
delinquency adjudications to be reduced in certain circumstances, based
on their subsequent good behavior, where no corresponding reduction is
allowed for offenders required to register based on adult convictions.
These commenters' proposal is in effect that a jurisdiction should
be deemed to have substantially implemented SORNA with respect to the
treatment of juveniles adjudicated delinquent for sex offenses if it
ignores what SORNA provides on this issue, and instead does something
different that the commenters believe to be better policy. As with the
earlier example of ``risk assessment'' systems, there are circumstances
under which SORNA would allow alternative approaches with respect to
juvenile delinquents to be considered. Suppose, for example, that the
highest court of a jurisdiction holds that the jurisdiction's
constitution does not permit categorical registration or notification
requirements for juvenile delinquents--even for the narrowly defined
class of juveniles adjudicated delinquent for the most serious sexually
assaultive crimes, as described in SORNA Sec. 111(8). Rather, the
court holds that the jurisdiction's constitution requires that such
measures be contingent on judicial determinations that registration or
notification is appropriate for particular juveniles. In the presence
of such an irreconcilable conflict with the jurisdiction's
constitution, the Attorney General would be permitted under SORNA Sec.
125(b)(3) to approve the jurisdiction's adoption of reasonable
alternative procedures that are consistent with SORNA's purposes, but
that depart from compliance with SORNA's requirements regarding
juveniles to the extent necessitated by the conflict. However, the
commenters' proposal is that the same latitude should be afforded as
``substantial implementation'' of SORNA even where there is no conflict
with the jurisdiction's constitution in implementing SORNA's provisions
regarding juveniles according to their terms. This is not consistent
with SORNA for the reasons discussed above.
For the foregoing reasons, no change has been made in the final
guidelines as to the basic understanding of the substantial
implementation standard. There is some limited modification in the
final guidelines' explanation of this standard for greater clarity
concerning the points noted in the discussion above.
III. Covered Jurisdictions
The comments received did not show a need to change the guidelines'
explanation concerning the ``jurisdictions'' that are subject to
SORNA's requirements, except with respect to the treatment of Indian
tribes.
Section 127 of SORNA provides the standards that determine whether
an Indian tribe is a registration jurisdiction for purposes of SORNA.
Section 127 generally afforded tribes an election between carrying out
the SORNA requirements as jurisdictions subject to its provisions, or
electing to delegate the SORNA registration and notification functions
to the states within which the tribes are located. The period for such
elections by tribes under Sec. 127 ended on July 27, 2007. Within that
period, close to 200 tribes--the vast majority of those eligible to
make an election under Sec. 127--elected to be SORNA registration
jurisdictions. Tribes that have made this election are not required to
duplicate sex offender registration and notification functions that are
carried out by the states in which they are located, and are free to
enter into agreements with such states for the shared or cooperative
discharge of these functions, as provided in Sec. 127(b). The
discussion of Sec. 127 in the guidelines has been updated to reflect
the expiration of the period for tribal elections under that provision.
As noted at the start of this summary, there are also substantive
changes in the final guidelines that have been adopted on the basis of
comments received from groups or associations of tribes, individual
tribes, or their representatives, relating to the status or treatment
of Indian tribes as SORNA jurisdictions or associated consequences.
These include some changes of broad effect.
The final guidelines provide that tribes may enter into cooperative
arrangements among themselves to effect the substantial implementation
of the SORNA requirements. For example, a group of tribes with adjacent
territories may find it helpful to enter into an agreement under which
the participating tribes contribute resources and information to the
extent of their capacities, but the tribal police department (or some
other agency) of one of the tribes in the group has primary
responsibility for the direct discharge of the various functions
required for registration of sex offenders subject to the jurisdiction
of any of the tribes in the group. Under such an arrangement, the
responsible agency in the selected tribe might generally handle
initially registering sex offenders who enter the jurisdiction of any
of the tribes in the group, receiving information from those sex
offenders concerning subsequent changes in residence or other
registration information, and conducting periodic in-person appearances
by the registrants to verify and update the registration information,
as SORNA requires. Likewise, with respect to maintenance of websites
providing public access to sex offender information, as required by
SORNA Sec. 118, one option for a tribe--explicitly authorized by SORNA
Sec. 127(b)(2)--would be to adopt a cooperative agreement with a state
in which it is located to include information concerning the sex
offenders subject to the tribe's jurisdiction on the state's sex
offender website. But an additional option afforded under the final
guidelines is for tribes to enter into agreements or arrangements among
themselves for the shared administration or operation of websites
covering the sex offenders of the participating tribes.
Although SORNA does not explicitly authorize intertribal agreements
or arrangements for the cooperative discharge of registration and
notification functions, there is no inconsistency between appropriately
designed arrangements of this type and realization of SORNA's
substantive objectives for sex offender registration and notification.
Moreover, such arrangements may facilitate tribal implementation of
SORNA by allowing the pooling of resources and expertise and avoiding
the need for duplication of effort among tribes with similar
registration and notification responsibilities. The implementation of
[[Page 38039]]
the SORNA requirements by tribes through such cooperative arrangements
with other tribes will accordingly be considered as satisfying the
SORNA substantial implementation standard.
Beyond concerns about facilitating cooperative intertribal efforts,
which are addressed in the final guidelines as discussed above, a
common theme in the comments received from tribes or tribal
organizations was concern about the treatment of tribes that are not
registration jurisdictions for SORNA purposes. Some commenters urged
that tribes subject to state law enforcement jurisdiction under 18
U.S.C. 1162 be treated more like tribes that are allowed to be SORNA
registration jurisdictions under SORNA Sec. 127 and have made
elections to that effect. SORNA Sec. 127(a)(2)(A) provides that the
SORNA registration and notification functions for tribes within the
scope of 18 U.S.C. 1162 are automatically delegated to the state. As
this is a statutory matter, the guidelines cannot change it.
However, the final guidelines have been modified to make it clear
that Sec. 1162 tribes are not excluded from carrying out sex offender
registration and notification functions, either as an exercise of their
sovereign powers to the extent that there is no conflict with the
state's discharge of its responsibilities under SORNA, or pursuant to a
decision by the state that sex offender registration functions can be
most effectively carried out by tribal authorities with respect to sex
offenders subject to the tribe's jurisdiction. Moreover, states have
the same responsibility to carry out the SORNA registration and
notification functions in relation to sex offenders in Sec. 1162
tribal areas as they do in relation to sex offenders in other areas in
the state. The SMART Office will take seriously the need to ensure that
all states within the scope of Sec. 1162 discharge these
responsibilities. The same points apply in relation to the relatively
small number of tribes that were eligible to make an election to be a
SORNA registration jurisdiction under the terms of SORNA Sec.
127(a)(1)(A) but have not made such an election.
Some commenters expressed more specific concerns about ensuring
that tribes that are not SORNA registration jurisdictions receive
notice concerning the entry or presence of sex offenders in their
territories. In this connection, the notification requirements of SORNA
Sec. 121 apply in relation to all entities within a state as described
in that section. This will serve to make information concerning the
location and relocation of sex offenders available to agencies,
organizations, and individuals in tribes that are not SORNA
registration jurisdictions, as with others agencies and organizations
within the state. Specific requirements and means of access to such
information under Sec. 121(b) are discussed in Part VII.B of the
guidelines.
A number of tribal commenters expressed concerns about SORNA Sec.
127(a)(2)(C), which provides for delegation of the SORNA registration
and notification functions to the state or states within which a tribe
is located if ``the Attorney General determines that the tribe has not
substantially implemented the requirements of this subtitle and is not
likely to become capable of doing so within a reasonable amount of
time.'' This provision for involuntary delegation to a state or states
in the specified circumstances was included in SORNA to foreclose any
possibility of uncloseable gaps in the nationwide network of sex
offender registration and notification programs. The Department of
Justice hopes and expects, however, that the occurrence of such an
involuntary delegation will never be necessary, given the strong
interest of the tribes in effective registration and notification for
sex offenders subject to their jurisdictions, and the priority that the
SMART Office gives to working with all tribes and other jurisdictions
to facilitate the implementation of SORNA's requirements in relation to
tribal areas. Moreover, substantial time remains for tribal
implementation efforts. Tribal jurisdictions, like other jurisdictions,
enjoy the three-year grace period provided by SORNA Sec. 124 for SORNA
implementation (commencing on July 27, 2006), and the possibility of an
extension of time for up to an additional two years under that
provision. In addition, Sec. 127(a)(2)(C) does not require an
involuntary delegation if a tribe fails to implement SORNA within the
normally allowed time under Sec. 124, unless the Attorney General
makes a further determination that the tribe is not likely to become
capable of substantially implementing SORNA within a reasonable amount
of time.
IV. Covered Sex Offenses and Sex Offenders
A. Convictions Generally
Tribal Convictions
The proposed guidelines stated that jurisdictions could choose not
to require registration based on Indian tribal sex offense convictions,
where the defendant had not been afforded a right to counsel to which
he would have been entitled in comparable state proceedings. Many
comments received from tribal organizations and individual tribes
objected to this provision. They argued that tribal convictions should
be respected, and noted that many procedural protections for defendants
are provided in tribal proceedings as a matter of federal law and in
practice, including the right to counsel (though defined differently
from the corresponding right in state proceedings). See 25 U.S.C. 1302.
These comments are persuasive. SORNA's registration and
notification requirements are premised on a person's conviction for a
sex offense. See, e.g., SORNA Sec. Sec. 111(1), 113(a). With respect
to covered ``sex offense[s],'' SORNA provides no basis for
differentiating between tribal offenses and offenses under the laws of
other domestic jurisdictions. Rather, it states expressly that ``sex
offense'' includes ``criminal offense[s]'' of specified types, and that
``criminal offense'' in the relevant sense means ``a State, local,
tribal, foreign, or military offense * * * or other criminal offense.''
SORNA Sec. 111(5)(A)(i)-(ii), 111(6) (emphasis added).
Likewise, with respect to ``conviction[s],'' SORNA does not
differentiate between tribal convictions and convictions by other U.S.
jurisdictions. SORNA does incorporate a special proviso with respect to
foreign convictions, stating in Sec. 111(5)(B) that ``[a] foreign
conviction is not a sex offense for the purposes of this title if it
was not obtained with sufficient safeguards for fundamental fairness
and due process for the accused under guidelines or regulations
established under section 112.'' If it had similarly been contemplated
that the Attorney General's guidelines would adopt further conditions
for the effectiveness of Indian tribal convictions under SORNA, one
would have expected SORNA to include some proviso comparable to Sec.
111(5)(B) for tribal convictions. But SORNA contains no such proviso.
The final guidelines accordingly do not differentiate between
tribal convictions and convictions by other United States jurisdictions
as predicates for sex offender registration and notification.
Nominal Variations on ``Conviction''
The proposed guidelines stated that SORNA's requirements are not
waived by nominal or terminological variations in the designations that
jurisdictions use in referring to the dispositions of criminal cases.
For example, SORNA's requirements remain applicable if a jurisdiction
has a procedure under which certain sex offense convictions (e.g.,
those of young adult sex offenders who satisfy certain criteria) are
referred
[[Page 38040]]
to as something other than ``convictions,'' or are nominally
``vacated'' or ``set aside,'' but the sex offender remains subject to
penal consequences based on the conviction. Some commenters objected to
this aspect of the proposed guidelines, arguing that jurisdictions
should be free to make SORNA's requirements inapplicable by such means.
The issue raised by these comments is whether individual
jurisdictions have a free hand to stipulate that the dispositions of
criminal cases do not constitute ``convictions'' for purposes of SORNA.
If that were the case, a jurisdiction could make the SORNA registration
and notification requirements inapplicable to its sex offenders merely
by varying its terminology--referring to certain classes of criminal
convictions for sex offenses by some term other than ``conviction''--
and there would then be no national baseline of covered sex offenders
and registration/notification requirements applicable thereto.
Such an approach would be inconsistent with SORNA's purpose to
establish ``a comprehensive national system for the registration of
[sex] offenders.'' SORNA Sec. 102. SORNA's requirements apply to
anyone who ``was convicted of a sex offense.'' See SORNA Sec. Sec.
111(1) (defining ``sex offender''), 113 (applying SORNA's registration
requirements to ``sex offender[s]''). While the statutory definitions
of sex offenses falling within SORNA's registration categories, see
SORNA Sec. 111(5)-(8), will vary from jurisdiction to jurisdiction,
the meaning of ``convicted'' for purposes of SORNA is a matter of
federal law, and its applicability is not determined by the terminology
a jurisdiction uses in referring to the disposition of a criminal case.
Notably, in light of SORNA Sec. 111(8), even certain juvenile
delinquents are deemed to be ``convicted'' and hence required to
register under SORNA's standards, if the juvenile is at least 14 years
old and the offense for which the juvenile was adjudicated delinquent
is sufficiently serious. But under these commenters' proposal,
jurisdictions could avoid requiring registration for an adult offender
convicted of such a crime merely by using some other term in referring
to the conviction (e.g., ``youthful offender disposition'').
SORNA does not afford such latitude to waive its requirements in
this manner and no change has been made in the final guidelines on this
point.
Juvenile Adjudications
A number of commenters criticized the proposed guidelines'
explanation of SORNA Sec. 111(8), which provides that certain juvenile
delinquency adjudications are to be treated as convictions for
registration purposes under SORNA. Many of these commenters argued that
registration or public notification concerning juveniles adjudicated
delinquent for sex offenses would be inappropriate or
counterproductive, on such grounds as the following: that juveniles are
less likely to reoffend, less culpable, and more amenable to treatment
than adult offenders; that registration of juveniles will deter
reporting of their crimes by their families and will promote avoidance
of adjudicatory dispositions of their cases that reflect the actual
offense conduct; that juveniles subject to registration or notification
will be adversely affected with respect to education, employment,
treatment, socialization, and personal security; and that premising
registration or notification on juvenile delinquency adjudications is
at odds with the characteristics and objectives of juvenile justice
systems, including their requirements of confidentiality and
orientation towards treatment and rehabilitation. The commenters
advanced various recommendations for addressing these concerns,
including not registering juveniles at all, making registration or
notification for juveniles a matter of judicial discretion, or limiting
registration or notification for juveniles to cases involving
particularly violent or serious sex offenses.
The more far reaching proposals for changes concerning the
treatment of juveniles cannot be accepted because they would require a
nullification of the judgment in SORNA that a narrowly defined class of
juvenile delinquency adjudications are to be treated on a par with
adult convictions for registration and notification purposes.
Predecessor bills to SORNA took divergent approaches to this issue.
Some excluded juvenile delinquents entirely from their registration and
notification requirements, while others provided that juvenile
delinquency adjudications would be treated the same as adult
convictions across the board. Compare S. 1086, Sec. Sec. 102(1), 110,
109th Cong., 2d Sess. (2006) (exclusion of juvenile delinquency
adjudications in Senate-passed bill), with H.R. 3132, Sec. 111(3),
109th Cong., 1st Sess. (2005) (juvenile delinquency adjudications
treated the same as adult convictions in House-passed bill).
The resolution of this issue in SORNA as enacted is an intermediate
approach that does not generally require that juveniles be treated the
same as adults, but does affirmatively treat certain juvenile
delinquency adjudications as ``convictions,'' and the juveniles subject
to such adjudications as ``sex offenders'' subject to the SORNA
registration and notification requirements, under the following
criteria: (i) The juvenile must have been at least 14 years old at the
time of the offense, (ii) the offense adjudicated was comparable to or
more severe than aggravated sexual abuse (as described in 18 U.S.C.
2241) or an attempt or conspiracy to commit such an offense, and (iii)
the registration period to which the juvenile is subject may be reduced
from life to 25 years if certain ``clean record'' conditions are
satisfied. See SORNA Sec. Sec. 111(1), (8), 115(b)(3)(B). This is the
legislative decision that the guidelines must ``interpret and
implement.'' SORNA Sec. 112(b). There is no authority to abrogate it
or to approve some basically different system for registering (or not
registering) juveniles adjudicated delinquent for sex offenses.
As noted above, a more moderate recommendation advanced by some of
the commenters was that registration or notification for juveniles be
limited to cases involving particularly violent or serious sex
offenses. This is more in line with what SORNA actually does provide,
limiting the predicate offenses for registration based on juvenile
delinquency adjudications to those ``comparable to'' aggravated sexual
abuse as described in 18 U.S.C. 2241 (or an attempt or conspiracy to
commit such an offense).
It was noted in the comments, however, that under the
interpretation of this standard in the proposed guidelines, it could
potentially reach some cases not involving sex offenses of the most
serious nature, such as a case involving a juvenile delinquency
adjudication of a 14-year-old for engaging in consensual sexual play
with an 11-year-old. A number of commenters questioned the suitability
of such juvenile adjudications as the basis for lengthy or lifetime
registration and public notification, and indicated that an inflexible
application of the SORNA juvenile coverage requirement to reach such
cases could constitute a substantial impediment to jurisdictions'
implementation of SORNA.
These comments have provided grounds for further thought concerning
the measures that will be considered substantial implementation of
SORNA in relation to juveniles adjudicated delinquent for sex offenses.
The federal
[[Page 38041]]
offense of aggravated sexual abuse, 18 U.S.C. 2241, which provides the
touchstone for juvenile coverage under SORNA Sec. 111(8), encompasses
a range of serious sexually assaultive conduct that would correspond
roughly to the common understanding of the notion of ``rape.''
Specifically, it proscribes engaging in a sexual act with another by
means of force or the threat of serious violence, or by rendering
unconscious or involuntarily drugging the victim. These aspects of the
offense apply regardless of the age of the perpetrator or victim.
However, there are certain features of 18 U.S.C. 2241 that provide
a broader compass in cases involving victims who fall below specified
age thresholds. Specifically, sexual acts with victims below the age of
12 are covered, even in cases involving no overt violence or coercion.
See 18 U.S.C. 2241(c). In addition, under the associated definition of
covered ``sexual act[s],'' the relevant acts are for the most part
those involving penetration, but direct genital touching--which would
otherwise support only liability for lesser ``sexual contact''
offenses--is treated as a covered ``sexual act'' if the victim is below
the age of 16. See 18 U.S.C. 2246(2)(D).
In relation to the aspects of 18 U.S.C. 2241 that depend specially
on the age of the victim, there is no difficulty in applying them
without qualification as a basis for sex offender registration and
notification in cases involving adult offenders. For example, a 30-
year-old who engages in sexual activity with an 11-year-old plausibly
falls within a class of persons who may constitute a danger to
children, and the protective functions served by SORNA's registration
and notification requirements are implicated, regardless of finer
issues concerning the victim's acquiescence or resistance or the exact
nature of the sexual activity.
In comparison, SORNA's public safety objectives may not be
similarly implicated by juvenile cases like those pointed to by the
commenters, such as a case involving a 14-year-old adjudicated
delinquent based on consensual sexual play with an 11-year-old. Cases
of this type fall within the definitional scope of 18 U.S.C. 2241 only
because of special features of that provision that create liability for
nonviolent or lesser sexual offenses based on the victim's age. But in
such a case, the delinquent may himself be a child who is not far
removed in age from the victim, and the offense may be one that would
not entail comparable registration and notification requirements for an
adult offender, if committed by the adult offender against a victim who
was near in age to himself.
Based on this reconsideration of the juvenile coverage issue, the
final guidelines reflect a judgment that the objectives of SORNA Sec.
111(8) will not be substantially undermined if jurisdictions are
afforded discretion concerning registration and notification for
juveniles adjudicated delinquent on the basis of offenses that are
within the definitional scope of 18 U.S.C. 2241 only because of the age
of the victim. In positive terms, jurisdictions will be considered to
have substantially implemented SORNA in this context if they apply
SORNA's registration and notification requirements to juveniles at
least 14 years old who are adjudicated delinquent for committing
offenses amounting to rape or its equivalent (or an attempt or
conspiracy to commit such an offense), as specified in the final
guidelines.
B. Foreign Convictions
Some commenters expressed the concern that the requirement under
SORNA to register sex offenders based on foreign convictions would
create unmanageable burdens on jurisdictions to assess the fairness of
foreign judicial proceedings. However, the guidelines have been
formulated so as to minimize any such burden. In part, they require
registration categorically based on sex offense convictions under the
laws of four specified foreign countries--Canada, United Kingdom,
Australia, and New Zealand--and based on convictions in countries whose
judicial systems have been favorably assessed in the Country Reports on
Human Rights Practices that are prepared by the U.S. Department of
State. Jurisdictions are not required to exempt any sex offense
convictions in other foreign countries from registration requirements,
but if they wish to do so, they may exempt convictions that they
consider unreliable indicia of factual guilt, utilizing whatever
process or procedure they choose to adopt in making such
determinations. The treatment of foreign convictions has accordingly
not been changed in the final guidelines, except for limited editing to
emphasize the extent of jurisdictions' discretion in approaching this
issue, and correcting a reference to ``Great Britain'' in the proposed
guidelines to refer instead to ``United Kingdom.''
C.-E. Sex Offenses Generally; Specified Offenses Against Minors;
Protected Witnesses
The proposed guidelines' general explanation of SORNA's offense
coverage requirements and exceptions or qualifications relating to
protected witnesses have not been substantially changed in the final
guidelines. Critical comments relating to this aspect of the guidelines
largely reflected misapprehensions that SORNA requires registration
based on offenses that are not in the SORNA registration categories--
e.g., consensual sexual offenses involving minors or youth of like
age--or proposed changes that SORNA does not allow, such as waiving
registration based on offenses in the covered categories unless the
offender is found to meet some threshold of likely dangerousness under
a ``risk assessment'' system.
V. Classes of Sex Offenders
The proposed guidelines' general explanation of SORNA's ``tiers,''
and their implications for registration and notification requirements,
have not been substantially changed in the final guidelines. The
critical comments received on this aspect of the guidelines largely
amounted to arguments that other means of classifying sex offenders
would be better policy, such as reliance on risk assessments that take
account of a broader range of factors than those authorized in the
SORNA tier definitions. As described and advocated in these comments,
such alternative systems would involve less consistency and
predictability in sex offender registration and notification
requirements, and would make available less information (or no
information) concerning many sex offenders to the authorities or the
public. The comments do not establish that these systems represent a
sounder balancing of interests than the standards enacted in SORNA. In
any event, the adoption of such alternative classification systems
cannot be regarded as substantial implementation of SORNA insofar as
they entail registration and notification requirements that fall below
the SORNA minimum requirements--see the discussion above in connection
with Part II.E of the guidelines--and hence cannot be authorized by the
guidelines.
Some comments received from Indian tribes or tribal organizations
objected to the uniform treatment of tribal sex offense convictions as
supporting only ``tier I'' classification for SORNA purposes. They
noted that this results from the federal law limitation of tribal court
jurisdiction to misdemeanor penalties, though the underlying sex
offense may be serious and would result in felony penalties if
prosecuted in a state jurisdiction or the federal jurisdiction. This
feature of the guidelines cannot be changed because it is statutory.
SORNA Sec. 111(2)-(4)
[[Page 38042]]
classifies sex offenders as tier II or tier III only on the basis of
offenses punishable by imprisonment for more than one year. However, as
with other features of SORNA, the requirements associated with the tier
I classification constitute only minimum standards. Tribal
jurisdictions and other jurisdictions are free to prescribe more
extensive registration and notification requirements for sex offenders
convicted of tribal offenses, taking into account the substantive
nature of the offenses or other factors, notwithstanding the
misdemeanor status of the offenses in terms of the maximum permitted
penalty. The final guidelines make this point more explicitly.
Responding to other comments received, changes have also been made
in Part V to: (i) Clarify further that the elements of the offense of
conviction may be relied on in making tier classifications, except with
respect to victim age; (ii) clarify the operation of tier enhancements
based on recidivism, where the earlier conviction supporting a higher
tier classification occurred prior to the enactment of SORNA or its
implementation in a particular jurisdiction; and (iii) emphasize that
the tier classification criteria do not constitute independent
requirements to register offenders for whom SORNA does not otherwise
require registration.
VI. Required Registration Information
Registration Information Requirements Added by the Guidelines
Some commenters objected globally to the guidelines' requirement
that the sex offender registries obtain certain types of information
that are not expressly required by SORNA Sec. 114, such as e-mail
addresses and comparable Internet identifiers, telephone numbers,
temporary lodging information, travel document information,
professional license information, and date of birth information. The
guidelines have not been changed on this point. Many of these comments
projected that sex offenders would be exposed to harassment or other
adverse consequences because of the public disclosure of such
information, reflecting an incorrect assumption that SORNA or the
guidelines would require that all such information be posted on the
public sex offender websites. The actual website posting requirements
under the guidelines are more limited, and the final guidelines have
been revised to make this point with greater clarity, as discussed in
connection with Part VII of the guidelines below. All of the additional
items are within the scope of the Attorney General's express statutory
authority to require additional registration information. See SORNA
Sec. 114(a)(7), (b)(8). All are justified as means of furthering
SORNA's public safety objectives, as the guidelines explain in their
discussion of the additional required information.
Tribal Concerns
Many of the comments received from Indian tribes or tribal
organizations objected to a specification in the proposed guidelines
that the names and aliases that sex offenders are required to register
include ``traditional names given by family or clan pursuant to ethnic
or tribal tradition.'' The purpose of this provision was to ensure that
the registration information would include the names by which sex
offenders are commonly known in their communities. It was not intended
to require registration or disclosure of secret names of religious or
ceremonial significance, and such names are not needed to further the
purposes of sex offender registration and notification. The final
guidelines have accordingly modified the description of this
requirement so as to limit it to ethnic or tribal names by which the
sex offender is commonly known.
Some of the tribal commenters also expressed concern about the
requirements relating to DNA information from sex offenders, describing
situations in which tribal communities had been misled about the uses
that would be made of DNA samples they provided. However, SORNA's
requirement on this point, as the guidelines explain, is only that
jurisdictions ensure that DNA samples are collected from sex offenders
for purposes of analysis and inclusion in the Combined DNA Index System
(CODIS). The normal rules and procedures for DNA information in CODIS
are tailored to its use for law enforcement identification purposes,
such as matching a perpetrator's DNA collected from crime scene
evidence to DNA taken from an offender. These rules and procedures are
adequately designed to ensure that the analysis of collected DNA
samples and entry of the resulting DNA profiles into CODIS cannot be
used for the improper purposes that concern the commenters, such as
ascertaining the incidence of genetic traits or disorders in
communities or population groups from which the DNA samples are
derived.
Requests for Clarification
Some commenters requested additional guidance or clarification
regarding particular types of required registration information, such
as the information concerning travel and immigration documents, and the
statutory requirement to include information concerning addresses at
which the sex offender ``will'' be an employee. The final guidelines
provide further explanation or clarification on these points.
VII. Disclosure and Sharing of Information
Some of the comments reflected misapprehensions that the guidelines
would require public disclosure of a broader range of sex offender
information than is actually the case. The guidelines identify a
limited number of informational items concerning sex offenders that
must be included on the public sex offender Web sites, essentially
covering name information, address or location information, vehicle
information, physical description, sex offenses for which convicted,
and a current photograph. Other types of registration information are
within the scope of either mandatory or discretionary exemptions from
required public disclosure. The relevant discussion in the final
guidelines has been revised for greater clarity on this point.
Some commenters objected specifically to the required public
disclosure of the addresses of employers of registered sex offenders,
arguing that this information should be exempted from Web site posting,
either on a discretionary or mandatory basis. SORNA itself requires
that the registration information for sex offenders include employer
name and address, but provides a discretionary exemption from public
Web site posting for employer name only (not employer address). Compare
SORNA Sec. 114(a)(4), with SORNA Sec. 118(c)(2). The SORNA provisions
on this point reflect an accommodation of competing interests. On the
one hand, requiring Web site posting of employer name could tar an
employer based on the association with the sex offender and deter
employers from hiring sex offenders. On the other hand, disclosing no
employment-related information or only limited employment-related
information could leave the public unaware concerning sex offenders'
presence in places where they actually spend much of their time (e.g.,
40 hours a week for a sex offender with a full-time job). SORNA
accommodates these interests by requiring that the public Web sites
include employer address information, but leaving it in the discretion
of jurisdictions whether they will include employer name information as
well. The
[[Page 38043]]
comments received provide no adequate basis for the guidelines to
second-guess this legislative judgment concerning the proper
accommodation of these interests, even assuming that there would be
legal authority to do so.
VIII. Where Registration Is Required
The portion of the guidelines relating to the jurisdictions in
which registration is required has been edited to a limited extent for
clarity on some points but has not been substantially changed. Some
commenters misunderstood SORNA and the guidelines as requiring
continued registration with the original jurisdiction of conviction
even if the sex offender has no present residence, employment, or
school attendance relationship with that jurisdiction. Some took
``jurisdiction'' as including political subdivisions of states, and
consequently believed that SORNA prescribes requirements as to the
particular locations within states in which sex offenders must be
required to register--e.g., in which particular county or counties.
SORNA itself and the proposed guidelines do not provide any support for
these misconceptions, and additional language has been included in the
final guidelines to guard against continued misunderstandings of this
type.
IX. Initial Registration
The discussion in this Part has been expanded in the final
guidelines to explain the statutory requirement in section 117(a) of
SORNA that initial registration of incarcerated sex offenders is to be
carried out ``shortly before release.''
Some commenters expressed concern about initial registration in
relation to sex offenders whose predicate sex offense convictions
predate the enactment of SORNA or its implementation in a particular
jurisdiction. The guidelines require registration of such sex offenders
in conformity with SORNA if they remain in the system as prisoners,
supervisees, or registrants, or if they later reenter the system
because of a subsequent criminal conviction. The commenters' concerns
focused heavily on the fourth category--sex offenders who were fully
out of the system at the time of SORNA implementation, but later
reenter it based on conviction for some other crime. Concerns were
expressed that registration of offenders in this category would require
jurisdictions to examine the criminal histories of all new criminal
convicts indefinitely to ascertain whether they have a sex offense
conviction somewhere in the past that would require registration under
the SORNA standards. A particular concern was that in cases in which
the sex offense conviction occurred long ago, information about it
might not be disclosed through an ordinary criminal history check,
potentially necessitating extraordinary records search efforts to
determine whether the offender must register. Concerns also were
expressed about the adequacy of ordinary criminal history information
to determine the extent of registration requirements under SORNA,
including whether the sex offender's registration period has expired or
still has time left to run. For example, whether the victim of a sexual
contact offense was an adult or a minor may make the difference between
the offender's classification as tier I or tier II under the SORNA
standards, with consequent differences in the required registration
period (15 years for tier I versus 25 years for tier II). But the
criminal history information available in a case in which the sex
offense conviction predated a jurisdiction's implementation of SORNA
might show simply conviction of a sexual contact offense with no
indication as to victim age.
The final guidelines address the foregoing concerns by clarifying
that jurisdictions may rely on their normal methods and standards for
obtaining and reviewing criminal history information, and on the
information available in the records obtained by such means, in
ascertaining SORNA registration requirements for sex offenders in the
``retroactive'' classes.
Some of the comments received from Indian tribes or tribal
organizations proposed that the Federal Bureau of Prisons should be
responsible for initial registration of federal sex offenders who will
be released to tribal areas. However, there is a more limited statutory
release procedure for federal sex offenders under 18 U.S.C. 4042(c),
which requires the Federal Bureau of Prisons or federal probation
offices to notify sex offenders of their registration requirements
under SORNA around the time of their release or sentencing. That
provision further requires the Bureau of Prisons and the federal
probation offices to notify state and local law enforcement and
registration agencies in the destination jurisdictions, which include
tribal jurisdictions for sex offenders released to tribal areas. The
failure of such a sex offender to appear in the destination
jurisdiction and register as required would be reportable to federal
authorities as provided in Part XIII of the guidelines, and would
generally result in investigation of the matter by federal supervision
or law enforcement authorities. In the normal situation in which the
released federal sex offender does appear in the destination
jurisdiction as required, that jurisdiction would register the sex
offender as it does sex offenders entering from other jurisdictions.
X. Keeping the Registration Current
Some commenters expressed concern about requiring sex offenders to
report changes of certain types of registration information through in-
person appearances. For example, SORNA Sec. 113(c) requires that
changes of employment be reported through in-person appearances within
three business days. Consider the effect, for example, in relation to a
sex offender who obtains work--e.g., construction work or other manual
labor--by showing up each morning at a site that contractors visit to
recruit day labor. If the sex offender's employer varied day to day,
the requirement to report changes in employment through in-person
appearances might effectively require the sex offender to make an in-
person appearance to report his recent employment history every few
days, with attendant burdens on the jurisdiction and the offender.
In relation to required registration information, the proposed
guidelines recognized that sex offenders may reside somewhere without
having definite residence addresses, and similarly that sex offenders
may be employed without fixed or settled employment. For such cases,
Part VI of the guidelines affords necessary flexibility by providing
that jurisdictions are to obtain information concerning such transient
residence or employment with whatever definiteness is possible under
the circumstances. The final guidelines incorporate comparable
provisions in Part X so as to afford jurisdictions flexibility in
dealing with the reporting of changes in residence or employment by sex
offenders whose residence or employment is transient in character.
Comments were also received concerning a potential gap in the
reporting requirements for sex offenders who terminate residence,
employment, or school attendance in a jurisdiction but do not have any
definite expectation about residing, working, or attending school
elsewhere. For example, consider the case of a transient sex offender
who is moving out of a state in which he has been living, but cannot
say in which state or other jurisdiction he will reside next. The
proposed guidelines did not address the reporting requirements in such
situations with adequate clarity. The final guidelines provide that the
requirement for sex offenders to keep
[[Page 38044]]
the registration current includes requiring them to report consistently
the termination of residence, employment, or school attendance to the
appropriate jurisdiction in which they have been registered, regardless
of whether any new place of residence, employment, or school attendance
can be identified.
Responding to comments and questions received, a final paragraph
also has been added to Part X in the final guidelines to clarify
further that the SORNA requirement that registrants report changes in
registration information through in-person appearances pertains only to
changes in name and to changes in residence, employment, or school
attendance between or within jurisdictions. The manner in which sex
offenders are to report other changes in registration information is a
matter within jurisdictions' discretion.
XI. Verification/Appearance Requirements
The discussion of SORNA's requirement of periodic in-person
appearances by registrants to verify and update registration
information has not been substantially modified in the final guidelines
because it did not draw extensive comments, and no comments received
provided any persuasive reasons to change the discussion of this
requirement. However, responding to comments about situations in which
a registrant dies, a paragraph has been added to Part XI in the final
guidelines to provide advice to jurisdictions about the updating of
registration information and public Web site postings in such
situations.
XII. Duration of Registration
As discussed in earlier portions of the summary, the explanation
concerning the required duration of registration is revised in the
final guidelines. The changes clarify further (i) the discretionary
nature of tolling during subsequent periods in which the sex offender
is in custody, and (ii) the discretion of jurisdictions to adopt
registration periods that are longer than the required SORNA minimum.
XIII. Enforcement of Registration Requirements
The discussion of enforcement of registration requirements in the
proposed guidelines has not been modified in the final guidelines
because it did not draw extensive comment and the comments received did
not provide any persuasive reasons to change this part.
The National Guidelines for Sex Offender Registration and Notification
Contents
I. Introduction
II. General Principles
A. Terminology
B. Minimum National Standards
C. Retroactivity
D. Automation--Electronic Databases and Software
E. Implementation
III. Covered Jurisdictions
IV. Covered Sex Offenses and Sex Offenders
A. Convictions Generally
B. Foreign Convictions
C. Sex Offenses Generally
D. Specified Offenses Against Minors
E. Protected Witnesses
V. Classes of Sex Offenders
VI. Required Registration Information
VII. Disclosure and Sharing of Information
A. Sex Offender Websites
B. Community Notification and Targeted Disclosures
VIII. Where Registration is Required
IX. Initial Registration
X. Keeping the Registration Current
A. Changes of Name, Residence, Employment, or School Attendance
B. Changes in Other Registration Information
C. International Travel
XI. Verification/Appearance Requirements
XII. Duration of Registration
XIII. Enforcement of Registration Requirements
I. Introduction
The Sex Offender Registration and Notification Act (``SORNA'' or
``the Act''), which is title I of the Adam Walsh Child Protection and
Safety Act of 2006 (Pub. L. 109-248), provides a new comprehensive set
of minimum standards for sex offender registration and notification in
the United States. These Guidelines are issued to provide guidance and
assistance to covered jurisdictions--the 50 States, the District of
Columbia, the principal U.S. territories, and Indian tribal
governments--in implementing the SORNA standards in their registration
and notification programs.
The adoption of these Guidelines carries out a statutory directive
to the Attorney General, appearing in SORNA Sec. 112(b), to issue
guidelines to interpret and implement SORNA. Other provisions of SORNA
establish the Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (the ``SMART Office''), a
component of the Office of Justice Programs of the U.S. Department of
Justice. The SMART Office is authorized by law to administer the
standards for sex offender registration and notification that are set
forth in SORNA and interpreted and implemented in these Guidelines. It
is further authorized to cooperate with and provide assistance to
states, local governments, tribal governments, and other public and
private entities in relation to sex offender registration and
notification and other measures for the protection of the public from
sexual abuse or exploitation. See SORNA Sec. 146(c). Accordingly, the
SMART Office should be regarded by jurisdictions discharging
registration and notification functions as their key partner and
resource in the federal government in further developing and
strengthening their sex offender registration and notification
programs, and the SMART Office will provide all possible assistance for
this purpose.
The development of sex offender registration and notification
programs in the United States has proceeded rapidly since the early
1990s, and at the present time such programs exist in all of the
states, the District of Columbia, and some of the territories and
tribes. These programs serve a number of important public safety
purposes. In their most basic character, the registration aspects of
these programs are systems for tracking sex offenders following their
release into the community. If a sexually violent crime occurs or a
child is molested, information available to law enforcement through the
registration program about sex offenders who may have been present in
the area may help to identify the perpetrator and solve the crime. If a
particular released sex offender is implicated in such a crime,
knowledge of the sex offender's whereabouts through the registration
system may help law enforcement in making a prompt apprehension. The
registration program may also have salutary effects in relation to the
likelihood of registrants committing more sex offenses. Registered sex
offenders will perceive that the authorities' knowledge of their
identities, locations, and past offenses reduces the chances that they
can avoid detection and apprehension if they reoffend, and this
perception may help to discourage them from engaging in further
criminal conduct.
Registration also provides the informational base for the other key
aspect of the programs--notification--which involves making information
about released sex offenders more broadly available to the public. The
means of public notification currently include sex offender Web sites
in all states, the District of Columbia, and some territories, and may
involve other forms of notice as well. The availability of such
information helps members of the public to take common sense measures
for the protection of
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themselves and their families, such as declining the offer of a
convicted child molester to watch their children or head a youth group,
or reporting to the authorities approaches to children or other
suspicious activities by such a sex offender. Here as well, the effect
is salutary in relation to the sex offenders themselves, since
knowledge by those around them of their sex offense histories reduces
the likelihood that they will be presented with opportunities to
reoffend.
While sex offender registration and notification in the United
States are generally carried out through programs operated by the
individual states and other non-federal jurisdictions, their
effectiveness depends on also having effective arrangements for
tracking of registrants as they move among jurisdictions and some
national baseline of registration and notification standards. In a
federal union like the United States with a mobile population, sex
offender registration could not be effective if registered sex
offenders could simply disappear from the purview of the registration
authorities by moving from one jurisdiction to another, or if
registration and notification requirements could be evaded by moving
from a jurisdiction with an effective program to a nearby jurisdiction
that required little or nothing in terms of registration and
notification.
Hence, there have been national standards for sex offender
registration in the United States since the enactment of the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender Act
(42 U.S.C. 14071) in 1994. The national standards from their inception
have addressed such matters as the offenses for which registration
should be required, updating and periodic verification of registration
information, the duration of registration, public notification, and
continued registration and tracking of sex offenders when they relocate
from one jurisdiction to another.
Following the enactment of the Wetterling Act in 1994, that Act was
amended a number of times, in part reflecting and in part promoting
trends in the development of the state registration and notification
programs. Ultimately, Congress concluded that the patchwork of
standards that had resulted from piecemeal amendments should be
replaced with a comprehensive new set of standards--the SORNA reforms,
whose implementation these Guidelines concern--that would close
potential gaps and loopholes under the old law, and generally
strengthen the nationwide network of sex offender registration and
notification programs. Important areas of reform under the SORNA
standards include:
Extending the jurisdictions in which registration is required
beyond the 50 States, the District of Columbia, and the principal U.S.
territories, to include Indian tribal jurisdictions.
Extending the classes of sex offenders and sex offenses for which
registration is required.
Consistently requiring that sex offenders in the covered classes
register and keep the registration current in the jurisdictions in
which they reside, work, or go to school.
Requiring more extensive registration information.
Adding to the national standards periodic in-person appearances by
registrants to verify and update the registration information.
Broadening the availability of information concerning registered
sex offenders to the public, through posting on sex offender Web sites
and by other means.
Adopting reforms affecting the required duration of registration.
In addition, SORNA strengthens the federal superstructure elements
that leverage and support the sex offender registration and
notification programs of the registration jurisdictions. These
strengthened elements are: (i) Stepped-up federal investigation and
prosecution efforts to assist jurisdictions in enforcing sex offender
registration requirements; (ii) new statutory provisions for the
national database and national Web site (i.e., the National Sex
Offender Registry and the Dru Sjodin National Sex Offender Public Web
site) that effectively compile information obtained under the
registration programs of the states and other jurisdictions and make it
readily available to law enforcement or the public on a nationwide
basis; (iii) development by the federal government of software tools,
which the states and other registration jurisdictions will be able to
use to facilitate the operation of their registration and notification
programs in conformity with the SORNA standards; and (iv) establishment
of the SMART Office to administer the national standards for sex
offender registration and notification and to assist registration
jurisdictions in their implementation.
Through the cooperative effort of the 50 States, the District of
Columbia, the U.S. territories, and Indian tribal governments with the
responsible federal agencies, the SORNA goal of an effective and
comprehensive national system of registration and notification programs
can be realized, with great benefit to the ultimate objective of
``protect[ing] the public from sex offenders and offenders against
children.'' SORNA Sec. 102. These Guidelines provide the blueprint for
that effort.
II. General Principles
Before turning to the specific SORNA standards and requirements
discussed in the remainder of these Guidelines, certain general points
should be noted concerning the interpretation and application of the
Act and these Guidelines:
A. Terminology
These Guidelines use key terms with the meanings defined in SORNA.
In particular, the term ``jurisdiction'' is consistently used with the
meaning set forth in SORNA Sec. 111(10). As defined in that provision,
it refers to the 50 States, the District of Columbia, the five
principal U.S. territories--i.e., the Commonwealth of Puerto Rico,
Guam, American Samoa, the Northern Mariana Islands, and the United
States Virgin Islands--and Indian tribes that elect to function as
registration jurisdictions under SORNA Sec. 127. (For more concerning
covered jurisdictions, see Part III of these Guidelines.) Thus, when
these Guidelines refer to ``jurisdictions'' implementing the SORNA
registration and notification requirements, the reference is to
implementation of these requirements by the jurisdictions specified in
SORNA Sec. 111(10). ``Jurisdictions'' is not used to refer to other
territorial or political units or subdivisions, such as counties,
cities, or towns of states or territories. Likewise, the term ``sex
offense'' is not used to refer to any and all crimes of a sexual
nature, but rather to those covered by the definition of ``sex offense
'' appearing in SORNA Sec. 111(5), and the term ``sex offender'' has
the meaning stated in SORNA Sec. 111(1). (For more concerning covered
sex offenses and offenders, see Part IV of these Guidelines.)
SORNA's registration requirements generally come into play when sex
offenders are released from imprisonment, or when they are sentenced if
the sentence does not involve imprisonment. See SORNA Sec. 113(b).
``Imprisonment '' as it is used in SORNA and these Guidelines refers to
incarceration pursuant to a conviction, regardless of the nature of the
institution in which the offender serves the sentence. It is not used
in any narrow technical sense, such as confinement in a state
``prison'' as opposed to a local ``jail.''
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SORNA includes a number of references relating to implementation by
jurisdictions of the requirements of ``this title.'' Section 125
provides a mandatory 10% reduction in certain federal justice
assistance funding for jurisdictions that fail, as determined by the
Attorney General, to substantially implement ``this title'' within the
time frame specified in section 124, and section 126 authorizes a Sex
Offender Management Assistance grant program to help offset the costs
of implementing ``this title.'' In the context of these provisions, the
references to ``this title'' function as a shorthand for the SORNA sex
offender registration and notification standards. They do not mean that
funding under these provisions is affected by a jurisdiction's
implementation or non-implementation of reforms unrelated to sex
offender registration and notification that appear in later portions of
title I of the Adam Walsh Child Protection and Safety Act of 2006
(particularly, subtitle C of that title).
Section 125(d) of SORNA states that the provisions of SORNA ``that
are cast as directions to jurisdictions or their officials constitute,
in relation to States, only conditions required to avoid the reduction
of Federal funding under this section.'' Statements in these Guidelines
that SORNA requires jurisdictions to adopt certain measures should be
understood accordingly in their application to the states. Since the
SORNA requirements relating to sex offender registration and
notification are, in relation to the states, only partial funding
eligibility conditions, creation of these requirements is within the
constitutional authority of the federal government.
B. Minimum National Standards
SORNA establishes a national baseline for sex offender registration
and notification programs. In other words, the Act generally
constitutes a set of minimum national standards and sets a floor, not a
ceiling, for jurisdictions' programs. Hence, for example, a
jurisdiction may have a system that requires registration by broader
classes of convicted offenders than those identified in SORNA, or that
requires, in addition, registration by certain classes of non-convicts
(such as persons acquitted on the ground of insanity of sexually
violent crimes or child molestation offenses, or persons released
following civil commitment as sexually dangerous persons). A
jurisdiction may require verification of the registered address or
other registration information by sex offenders with greater frequency
than SORNA requires, or by other means in addition to those required by
SORNA (e.g., through the use of mailed address verification forms, in
addition to in-person appearances). A jurisdiction may require sex
offenders to register for longer periods than those required by the
SORNA standards. A jurisdiction may require that changes in
registration information be reported by registrants on a more stringent
basis than the SORNA minimum standards--e.g., requiring that changes of
residence be reported before the sex offender moves, rather than within
three business days following the move. A jurisdiction may extend Web
site posting to broader classes of registrants than SORNA requires and
may post more information concerning registrants than SORNA and these
Guidelines require.
Such measures, which encompass the SORNA baseline of sex offender
registration and notification requirements but go beyond them,
generally have no negative implication concerning jurisdictions'
implementation of or compliance with SORNA. This is so because the
general purpose of SORNA is to protect the public from sex offenders
and offenders against children through effective sex offender
registration and notification, and it is not intended to preclude or
limit jurisdictions' discretion to adopt more extensive or additional
registration and notification requirements to that end. There is an
exception to this general rule in SORNA Sec. 118(b), which requires
that certain types of information, such as victim identity and
registrants' Social Security numbers, be excluded from jurisdictions'
publicly accessible sex offender Web sites, as discussed in Part VII of
these Guidelines. In other respects, jurisdictions' discretion to go
further than the SORNA minimum is not limited.
C. Retroactivity
The applicability of the SORNA requirements is not limited to sex
offenders whose predicate sex offense convictions occur following a
jurisdiction's implementation of a conforming registration program.
Rather, SORNA's requirements took effect when SORNA was enacted on July
27, 2006, and they have applied since that time to all sex offenders,
including those whose convictions predate SORNA's enactment. See 72 FR
8894, 8895-96 (Feb. 28, 2007); 28 CFR 72.3. The application of the
SORNA standards to sex offenders whose convictions predate S