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DEPARTMENT OF JUSTICE

Treasury Department

Docket ID: [Docket No. OAG 121; AG Order No. 2978-2008]

NOTICE: Part II

DOCUMENT ACTION: Final guidelines.

SUBJECT CATEGORY: Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification

DATES: Effective Date: July 2, 2008.

DOCUMENT SUMMARY: The United States Department of Justice is publishing Final Guidelines to interpret and implement the Sex Offender Registration and Notification Act.

SUMMARY: Justice Department,

SUPPLEMENTAL 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. 109248), 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 wellfounded 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 preSORNA (or preSORNAimplementation) 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 sitese.g., fingerprints, palm prints, and DNA informationthat 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 sitesin essence, name information, address information, vehicle information, physical description, sex offenses for which convicted, and a current photographand 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 instate 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. 127the 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 inperson appearances. Questions were also raised whether there is a continuing registration requirement under SORNA beyond initial registrationin 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), 11516, 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 userfriendly form on the SMART Office Web site, which will include a table of contents with page number references
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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.

Jurisdictionspecific questions: Some commentersparticularly state officials with responsibilities relating to sex offender registration or notificationsubmitted 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 standardsbut 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 nonconvicts 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 returnmeasures that are supplementary to inperson 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 areapublic disclosure of registration informationin 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 offenderssuch 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 nonfederal 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 notificationrelated 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, 12427. 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 (nonfederal) jurisdictions for the protection of the public. But ``[w]hen considering preemption, 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 preemptive 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
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that the jurisdictions' programs may go beyond the SORNArequired 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, preemption 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 fiveyear 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
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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 secondguess 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 preSORNA 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 preSORNA 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 preSORNA (or preSORNAimplementation) 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 nonpunitive 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. AutomationElectronic 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
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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 openended 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 ``riskbased'' approaches to sex offender registration and notificationi.e., systems in which registration or notification requirements are premised on individualized risk assessments of offendersshould be approved as substantially implementing SORNA.

The terminology utilized by the commenters on this point distinguishing systems that incorporate SORNA's requirements from ``riskbased'' systemsis 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 inperson 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), 11516, 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.

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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 delinquentseven 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 tribesthe vast majority of those eligible to make an election under Sec. 127elected 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 tribe

FOR FURTHER INFORMATION CONTACT Laura L. Rogers, Director, SMART Office, Office of Justice Programs, United States Department of Justice, Washington, DC, phone: 2025144689, email:
Getsmart@usdoj.gov.