Daily Rules, Proposed Rules, and Notices of the Federal Government
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The Sex Offender Registration and Notification Act, which is title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, was enacted on July 27, 2006. SORNA (46 U.S.C. 16901
To this end, the Attorney General issued the
Since the publication of the SORNA Guidelines, issues have arisen in SORNA implementation that require that some aspects of the Guidelines be augmented or modified. Consequently, the Department of Justice is proposing these supplemental guidelines, which do the following:
(1) Allow jurisdictions, in their discretion, to exempt information concerning sex offenders required to register on the basis of juvenile delinquency adjudications from public Web site posting.
(2) Require jurisdictions to exempt sex offenders' e-mail addresses and other Internet identifiers from public Web site posting, pursuant to the KIDS Act, 42 U.S.C. 16915a.
(3) Require jurisdictions to have sex offenders report international travel 21 days in advance of such travel and to submit information concerning such travel to the appropriate Federal agencies and databases.
(4) Clarify the means to be utilized to ensure consistent interjurisdictional information sharing and tracking of sex offenders.
(5) Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations.
(6) Provide additional information concerning the review process for determining that jurisdictions have substantially implemented the SORNA requirements in their programs and continue to comply with these requirements.
(7) Afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction by providing that jurisdictions may limit such registration to cases in which the new conviction is for a felony.
(8) Provide, for Indian tribes that are newly recognized by the Federal government following the enactment of SORNA, authorization and time frames for such tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA.
SORNA includes as covered “sex offender[s]” juveniles at least 14 years old who are adjudicated delinquent for particularly serious sex offenses.
Hence, the Attorney General is exercising his authority under 42 U.S.C. 16918(c)(4) to create additional discretionary exemptions from public Web site disclosure to allow jurisdictions to exempt from public Web site disclosure information concerning sex offenders required to register on the basis of juvenile delinquency adjudications. This change creates a new discretionary, not mandatory, exemption from public Web site disclosure. It does not limit the discretion of jurisdictions to include information concerning sex offenders required to register on the basis of juvenile delinquency adjudications on their public Web sites if they so wish.
The change regarding public Web site disclosure does not authorize treating sex offenders required to register on the basis of juvenile delinquency adjudications differently from sex offenders with adult convictions in other respects. Whether a case involves a juvenile delinquency adjudication in the category covered by SORNA or an adult conviction, SORNA's registration requirements remain applicable,
Jurisdictions are not required to provide registration information concerning sex offenders required to register on the basis of juvenile delinquency adjudications to the entities described in the SORNA Guidelines at 73 FR 38061,
The KIDS Act, which was enacted in 2008, directed the Attorney General to utilize pre-existing legal authorities under SORNA to adopt certain measures relating to sex offenders' “Internet identifiers,” defined to mean e-mail addresses and other designations used for self-identification or routing in Internet communication or posting. The KIDS Act requires the Attorney General to (i) include appropriate Internet identifier information in the registration information sex offenders are required to provide, (ii) specify the time and manner for keeping that information current, (iii) exempt such information from public Web site posting, and (iv) ensure that procedures are in place to notify sex offenders of resulting obligations.
The SORNA Guidelines incorporate requirements (i)-(ii) and (iv), as described above.
The authority under 42 U.S.C. 16918(b)(4) to create additional mandatory exemptions from public Web site disclosure is accordingly exercised to exempt sex offenders' Internet identifiers from public Web site posting. This means that jurisdictions cannot, consistent with SORNA, include sex offenders' Internet identifiers (such as e-mail addresses) in the sex offenders' public Web site postings or otherwise list or post sex offenders' Internet identifiers on the public sex offender Web sites.
This change does not limit jurisdictions' retention and use of sex offenders' Internet identifier information for purposes other than public disclosure, including submission of the information to the national (non-public) databases of sex offender information, sharing of the information with law enforcement and supervision agencies, and sharing of the information with registration authorities in other jurisdictions.
The exemption of sex offenders' Internet identifiers from public Web site disclosure does not override or limit the requirement that sex offenders' names, including any aliases, be included in their public Web site postings.
Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States.
Since the issuance of the Guidelines, the SMART Office has continued to work with other agencies of the Department of Justice, the Department of Homeland Security, the Department of State, and the Department of Defense on the development of a system for consistently identifying and tracking sex offenders who engage in international travel. Although, as noted, the current Guidelines require reporting of international travel information in certain circumstances, the existing requirements are not sufficient to provide the information needed for tracking such travel consistently.
The authority under 42 U.S.C. 16914(a)(7) to expand the range of required registration information is accordingly exercised to provide that registrants must be required to inform their residence jurisdictions of intended travel outside of the United States at least 21 days in advance of such travel. Pursuant to 42 U.S.C. 16921(b), jurisdictions so informed must provide the international travel information to the U.S. Marshals Service, and must transmit or make available that information to national databases, law enforcement and supervision agencies, and other jurisdictions as provided in the Guidelines.
While notice of international travel will generally be required as described above, it is recognized that requiring 21 days advance notice may occasionally be unnecessary or inappropriate. For example, a sex offender may need to travel abroad unexpectedly because of a family or work emergency. Or separate advance notice of intended international trips may be unworkable and pointlessly burdensome for a sex offender who lives in a northern border state and commutes to Canada for work on a daily basis. Jurisdictions that wish to accommodate such situations should include information about their policies or practices in this area in their submissions to the SMART Office and the SMART Office will determine whether they adequately serve SORNA's international tracking objectives.
SORNA and the SORNA Guidelines require interjurisdictional sharing of registration information in various contexts and SORNA directs the Attorney General, in consultation with the jurisdictions, to develop and support software facilitating the immediate exchange of information among jurisdictions.
Regular use of this tool is essential to ensuring that information is reliably shared among jurisdictions and that interjurisdictional tracking of sex offenders occurs consistently and effectively as SORNA contemplates. For example, if a jurisdiction sends notice that a sex offender has reported an intention to change his residence to another jurisdiction, but the destination jurisdiction fails to access the notice promptly, the sex offender's failure to appear or register in the destination jurisdiction may go unnoticed or detection of the violation may be delayed. Accordingly, to be approved as having substantially implemented SORNA, jurisdictions must, at a minimum, have a policy of regularly accessing the SORNA Exchange Portal to receive messages from other jurisdictions.
Technological improvements may facilitate the creation of new tools that may eventually replace the existing SORNA Exchange Portal. If that occurs, the SMART Office may issue directions to jurisdictions concerning the use of these new tools that jurisdictions will need to follow to be approved as substantially implementing SORNA.
SORNA provides that sex offenders are to be informed of their registration obligations and required to sign acknowledgments that this information has been provided upon their initial registration.
SORNA requires jurisdictions to provide criminal penalties for sex offenders who fail to comply with SORNA's requirements,
The acknowledgment forms signed by sex offenders regarding their registration obligations are likely to be the most consistently available and definitive proof of such knowledge. Including these forms in registration information will make them readily available in the jurisdictions in which sex offenders are initially registered, and will make them available to other jurisdictions pursuant to the provisions of SORNA and the Guidelines for transmission of registration information to other jurisdictions.
The authority under 42 U.S.C. 16914(b)(8) to expand the range of required registration information is accordingly exercised to require that sex offenders' signed acknowledgment forms be included in their registration information. The existing Guidelines already provide that acknowledgment forms covering the SORNA requirements are to be obtained from registrants as part of the SORNA implementation process and thereafter.
The SORNA Guidelines explain that the SMART Office will determine whether jurisdictions have substantially implemented the SORNA requirements in their programs and that jurisdictions are to provide submissions to the SMART Office to facilitate this determination.
SORNA itself and the Guidelines assume throughout that jurisdictions must implement SORNA in practice, not just on paper, and the Guidelines provide many directions and suggestions for putting the SORNA standards into effect.
Hence, implementation of SORNA is not just a matter of adopting laws or rules that facially direct the performance of the measures required by SORNA. It entails actually carrying out those measures and, as noted, various forms of guidance and assistance have been provided to that end. Accordingly, in reviewing jurisdictions' requests for approval as having substantially implemented SORNA, the SMART Office will not be limited to facial examination of registration laws and policies, but rather will undertake such inquiry as is needed to ensure that jurisdictions are substantially implementing SORNA's requirements in practice. Jurisdictions can facilitate approval of their systems by including in their submissions to the SMART Office information concerning practical implementation measures and mechanisms, in addition to relevant laws and rules, such as policy and procedure manuals, description of infrastructure and technology resources, and information about personnel and budgetary measures relating to the operation of the jurisdiction's registration and notification system. The SMART Office may require jurisdictions to provide additional information, beyond that proffered in their submissions, as needed for a determination.
Jurisdictions that have substantially implemented SORNA have a continuing obligation to maintain their system's consistency with current SORNA standards. Those that are grantees under the Byrne Justice Assistance Grant program will be required in connection with the annual grant application process to establish that their systems continue to meet SORNA standards. This will entail providing information as directed by the SMART Office, in addition to the information otherwise included in Byrne Grant applications, so that the SMART Office can verify continuing implementation. Jurisdictions that do not apply for Byrne Grants will also be required to demonstrate periodically that their systems continue to meet SORNA standards as directed by the SMART Office, and to provide such information
If a jurisdiction's Byrne Justice Assistance Grant funding is reduced because of non-implementation of SORNA, it may regain eligibility for full funding in later program years by substantially implementing SORNA in such later years. The SMART Office will continue to work with all jurisdictions to ensure substantial implementation of SORNA and verify that they continue to meet the requirements of SORNA on an ongoing basis.
SORNA's requirements apply to all sex offenders, regardless of when they were convicted.
Experience supports a qualification of this assumption in relation to sex offenders who have fully exited the justice system but later reenter it through a subsequent criminal conviction for a non-sex offense that is relatively minor in character. (Where the subsequent conviction is for a sex offense it independently requires registration under SORNA.) In many jurisdictions the volume of misdemeanor prosecutions is large and most such cases may need to be disposed of in a manner that leaves little time or opportunity for examining the defendant's criminal history and ascertaining whether it contains some past sex offense conviction that would entail a present registration requirement under SORNA. In contrast, where the subsequent offense is a serious crime, ordinary practice is likely to involve closer scrutiny of the defendant's past criminal conduct, and ascertaining whether it includes a prior conviction requiring registration under SORNA should not entail an onerous new burden on jurisdictions.
These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system,
This allowance only establishes the minimum required for substantial implementation of SORNA in this context. Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction's registration law.
SORNA affords eligible federally-recognized Indian tribes a one-year period, running from the date of SORNA's enactment on July 27, 2006, to elect whether to become SORNA registration jurisdictions or to delegate their registration functions to the states within which they are located.
Where the normal starting point of a statutory time limit for taking an action cannot sensibly be applied to a certain entity, the statute may be construed to allow the entity a reasonable amount of time to take the action.
This principle will be applied to 42 U.S.C. 16927 to allow Indian tribes that receive Federal recognition following the enactment of SORNA a reasonable amount of time to elect whether to become SORNA registration jurisdictions as provided in that section, and to allow such tribes a reasonable amount of time for substantial implementation of SORNA if they elect to be SORNA registration jurisdictions. In assessing what constitutes a reasonable amount of time for these purposes, the Department of Justice will look to the amount of time SORNA generally affords for tribal elections and for jurisdictions' implementation of the SORNA requirements. Hence, a tribe receiving Federal recognition after SORNA's enactment that otherwise qualifies to make the election under § 16927(a) will be afforded a period of one year to make the election, running from the date of the tribe's recognition or the date of publication of these supplemental guidelines, whichever is later. Likewise, such a tribe will be afforded a period of three years for SORNA implementation, running from the same starting point, subject to up to two possible one-year extensions.