ACTION ALERT: PROPOSED Additional Adam Walsh Act Guidelines
It has come to our attention, via Sexoffenderresearch and SentencingLaw&Policy, that today the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:
* Gives jurisdictions discretion to exempt juvenile offenders from public website posting
* Provides information concerning the review process for determining that jurisdictions have substantially implemented
* Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
* Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
* Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
* Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
* Requires jurisdictions to have sex offenders report international travel 21 days in advance
* Clarifies mechanism for inter-jurisdictional information sharing and tracking.
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 et seq.) establishes minimum national standards for sex offender registration and notification in the jurisdictions to which it applies. SORNA directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA.
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. (allow states to take minors off of the public Internet registry only)
(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. (disallow Internet public registry to post offender’s email addresses and Internet identifiers)
(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. (to sneak in the proposed International Megan’s Law; restricts international travel and monitors such travel)
(4) Clarify the means to be utilized to ensure consistent inter-jurisdictional information sharing and tracking of sex offenders. (sharing information between states, and perhaps countries)
(5) Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations. (this is a legal protection effort by the Feds to protect themselves legally. Some jurisdictions already do this)
(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. (because only one state (Ohio) has “substantially complied”)
(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. (allow states to avoid retro-active implementation, but does not forbid it. This seems to allow continued retro-active implementation on anyone already on the registry.)
(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.
IV. Retroactive Classes
SORNA’s requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3. However, the SORNA Guidelines state that it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNA implementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction. See 73 FR at 38035–36, 38043, 38046–47, 38063–64. This feature of the Guidelines reflects an assumption that it may not be possible for jurisdictions to identify and register all sex offenders who fall within the SORNA registration categories, particularly where they have left the justice system and merged into the general population long ago, but that it will be feasible for jurisdictions to do so in relation to sex offenders who remain in the justice system or reenter it through a subsequent criminal conviction. See 73 FR at 38046.
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, i.e., those who are no longer prisoners, supervisees, or registrants. It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense. As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.
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.
TAKE ACTION: Submit Your Comments (read and follow instructions carefully)
DATES: Written comments must be postmarked and electronic comments must be submitted on or before July 13, 2010. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period.
ADDRESSES: Comments may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street, NW., Washington, DC 20531.
To ensure proper handling, please reference OAG Docket No. 134 on your correspondence. You may submit comments electronically or view an electronic version of these proposed guidelines at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Linda M. Baldwin, Director, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; Office of Justice Programs, United States Department of Justice, Washington, DC, 202–305–2463.
SUPPLEMENTARY INFORMATION: Posting of Public Comments
Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by
the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONAL IDENTIFYING INFORMATION’’ in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want