Summary of Final National Guidelines for Sex Offender Registration and
Notification For implementation of SORNA
(Title I of the Adam Walsh Child Protection and Safety Act of 2006)
Revised January 2009
This document summarizes key elements of the final National Guidelines for Sex Offender Registration and Notification, to implement SORNA provisions, Title I of the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248) (See http://thomas.loc.gov/cgi-bin/query/D?c109:5:./temp/~c1091hNWna::.)
The final guidelines, released July 2008 by the Office of Justice Programs, Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) Office, follow proposed guidelines released on May 17, 2007. Full text of the final guidelines is at http://www.ojp.usdoj.gov/smart/guidelines.htm.
The NCSL comments to the guidelines, submitted July 30, 2007, are at http://www.ncsl.org/standcomm/sclaw/SexOffenderCorrespondence073007.HTM.
The SORNA guidelines carry forth “minimum national standards” for sex offender registration and notification established in the Act, which apply to jurisdictions defined as the 50 states, the District of Columbia, U.S territories and Indian tribes that elect to function as registration jurisdictions. The final guidelines address “jurisdictions” subject to SORNA’s requirements only with respect to the treatment of Indian tribes. (More on tribes, including related explanation in the final guidelines, and under "Tier definitions".)
The final SORNA guidelines state that the standard of "substantial implementation” is met if a jurisdiction carries out the requirements of SORNA as identified, interpreted and explained in the guidelines. The final guidelines state that substantial compliance is not met by a jurisdiction unless it incorporates "SORNA's baseline requirements." In other words, SORNA is a “floor” not a “ceiling” and states may adopt requirements that exceed those of SORNA. Jurisdictions may not, however "substitute some basically different approach" and meet the substantial compliance requirement. The guidelines also state that substantial compliance "...contemplates that there is some latitude to approve a jurisdiction's implementation efforts even if they do not exactly follow all respects of SORNA or these Guidelines." The examples of latitude given in the guidelines suggest exception and extraordinary circumstances. The guidelines indicate that the SMART Office will consider "case-by-case" whether deviations substantially implement SORNA or depart in a manner that disserves the objectives of the requirement. Jurisdictions are advised to identify and explain elements of their sex offender registration and notification that may be viewed as departure and why the approach taken does not fail to substantially implement SORNA.
The final guidelines indicate that the minimum standards for compliance do not necessarily have to be implemented by statute. In assessing compliance, the SMART Office will look at rules, administrative policies and procedures, and statutes.
Compliance discussion in the guidelines also refers to the grant program created in the Act, the Sex Offender Management Assistance (SOMA) grant program. The final guidelines acknowledge that funds have not been appropriated for the SOMA program as of July 1, 2008; and indicate that additional guidance on application for grants will be provided when funding is provided by Congress. For information on FY07 grants and for future announcements, see http://www.ojp.usdoj.gov/smart/funding.htm.
An interim rule was issued by the Attorney General (28 CFR Part 72 under authority of SORNA 113 (d)) on Feb. 28, 2007, addressing retroactivity. As described in that rule and the final guidelines, the SORNA requirements apply to all sex offenders defined in the Act, including those whose convictions predate the enactment of SORNA. Substantial compliance will require registration of offenders who previously have been convicted of a qualifying sex offense in the following situations in which a sex offender is:
- Currently incarcerated or currently under supervision for either a predicate sex offense or for some other crime;
- Currently registered or subject to preexisting sex offender registration requirement under the state’s law;
- Reentering the justice system as a result of a new conviction (for a sex offense or any other crime).
Retroactivity also applies to:
- Offenders who were convicted of a qualifying offense and who remain within the timeline bounds of the required duration of registration, as set out in the Act on the basis of defined categories (or “tiers”) of offenders.
While pre-SORNA crimes must be considered in determining offender tier levels (see criminal history discussion), states do not have to seek out pre-SORNA convicted sex offenders and register them.
Further discussion of retroactivity is covered under "When registration must occur."
Offenders who must register
SORNA requires registration when a person is convicted of a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a specified offense against a minor; certain listed federal, military and foreign offenses; and attempts or conspiracies to commit the above.
Specified offenses against a minor means these offenses committed against an individual less than 18 years of age:
- Non-parental kidnapping or false imprisonment of a minor;
- Solicitation of a minor to engage in sexual conduct;
- Use of a minor in a sexual performance;
- Solicitation of a minor to practice prostitution;
- Video voyeurism involving a minor;
- Possession, production or distribution of child pornography;
- Criminal sexual conduct involving a minor and related Internet activities; and
- Any conduct that, by its nature, is a sex offense against a minor, including convictions for child molestation, sexual activity with underage persons and child prostitution.
The only exception provided in SORNA for registration of these offenders are those who are afforded protection of the federal or a state witness protection program.
SORNA applies to juveniles prosecuted as adults and to juveniles who have been adjudicated delinquent, are age 14 or older at the time of the commission of an offense which is comparable to or more severe than aggravated sexual abuse (as defined in 18 USC 2241) (http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+990+1++%28%29%20%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%282241%29%29%3ACITE%20%20%20%20%20%20%20%20%20), or attempts or conspiracies to commit such a crime. Aggravated sexual abuse involves use of threat or force or rendering the person unconscious or impaired by a substance administered without the person's knowledge or consent. Also includes knowingly engaging in a sexual act with a person younger than age 12.
The final guidelines clarify this requirement and state that a jurisdiction fulfills SORNA's requirements for juvenile offenders if it registers juveniles at least 14 years or older at the time of the offense who are adjudicated delinquent for an attempted, conspired, or completed offense that involves a "sexual act" by force, threat of serious violence or rendering the victim unconscious or drugged. The final guidelines specify that "sexual act includes any degree of genital or anal penetration, and any oral-genital or oral-anal contact." SORNA does not require states to register juveniles adjudicated delinquent for lesser sexual assaults or non-violent sexual conduct.
Consensual sexual conduct
SORNA addresses and exempts certain consensual sexual conduct from the registration requirements. It excludes offenses involving consensual acts if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least age 13 and the offender was at least four years older than the victim.
The federal law states that a foreign conviction is not a sex offense for purposes of SORNA " . . . if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused.”
The final guidelines set standards to accept Canada, Great Britain, Australia and New Zealand convictions on par with domestic convictions and to accept as same convictions under the laws of any foreign country for which the U.S. Department of State, in its Country Reports on Human Rights Practices, has concluded right to a fair trial existed in the country during the year in which the conviction occurred.
Jurisdictions are required to register qualifying foreign convictions that meet this fundamental fairness and due process standards described. (More on foreign convictions.)
The treatment of foreign convictions was not substantially changed in the final guidelines, but includes editing to emphasize the extent of jurisdictions’ discretion to allow exemptions for convictions that they consider "unreliable indicia of factual guilt," using whatever process they choose to adopt.
Classes of sex offenders
The SORNA guidelines explain that three “tiers” of sex offenders set out in Title I of the Adam Walsh Act “relate to substance, not form or terminology.” States are not required to adopt labels of “tier I, “tier II” and “tier III” sex offenders, according to the guidelines. The tiers affect required duration of registration, frequency of in-person appearances for verification, and extent of website disclosure required by SORNA. States satisfy SORNA requirements if offenders who meet the definitions of each tier are consistently subject to at least the duration, verification and notification requirements of SORNA, regardless of whether such tiers are actually delineated in state law.
The final guidelines state that pre-SORNA convictions must be taken into account in order to determine whether recidivist registration enhancement applies.
The final guidelines further clarify that the tier assignment is to be based on the elements of the conviction offense not the actual facts of the case. There is an exception, however, where the age of the victim would affect the tier determination.
Tier definitions in the act and carried through in the guidelines are:
Criminal history also plays a role in tier categories.
- Any sex offender whose registration offense is punishable by more than one year of imprisonment who has a prior sex offense conviction is at least a tier II offender.
- Any sex offender whose registration offense is punishable by more than one year of imprisonment and who at the time of that offense already satisfied criteria for tier II, is classified as a tier III offender.
The final guidelines clarify that in incorporating pre-SORNA offenses in determination of a registrant's tier level, the jurisdiction is to rely "on the methods and standards they normally use in searching criminal records and on the information appearing in the records so obtained."
Where registration is required
The federal law requires that sex offenders register and keep registration current in each jurisdiction in which he or she resides, is an employee or is a student. An offender’s initial registration also must include registration in the jurisdiction in which convicted if it is different from his or her residence.
In relation to required registration information, the guidelines recognized that a sex offender may reside somewhere without having a definite residence address, and similarly that a sex offender may be employed without fixed or settled employment. For such cases, the final guidelines afford 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 guidelines clarify that “residence” includes, but is not limited to, a typical fixed residence. SORNA requires that sex offenders register in any jurisdiction in which he or she habitually lives or stays, and provides the interpretation that a sex offender "habitually lives" in a place if he or she lives in the jurisdiction for at least 30 days. States are allowed to determine how the 30-day requirement is satisfied, which could be 30 consecutive days, 30 days out of 45 or 30 days out of a calendar year. The final guidelines clarify that a sex offender does not have to be in a jurisdiction for 30 days before the registration requirement begins; rather the requirement that registration occur with three days still applies to intermittent residence in a jurisdiction. Residency is extended to jurisdictions where an offender may habitually stay with another person, in one or more shelters, in a motor home, trailer or houseboat, instead of or in addition to another fixed residence.
Employment and School
Sex offenders must register in the jurisdiction in which they are employed. The guidelines allow jurisdictions to make judgments about when presence in a jurisdiction for employment-related purposes gives rise to the requirement that they register in that jurisdiction, or whether their presence is transient and does not require registration.
Sex offenders also must register in a jurisdiction in which they attend an educational institution, broadly defined, whether or not that is the jurisdiction of residence. Correspondence or Internet courses are exempt, unless the program also involves some physical presence in the jurisdiction at the school.
Required minimum registration information
Required minimum information that must be included in sex offender registration includes items that the offender would normally be in a position to provide; and other information that the jurisdiction must take affirmative action to obtain. The guidelines include supplementary items of information that must be collected and recorded, because of the Attorney General having used the authority provided in the Act to specify additional information requirements.
The required minimum information for inclusion in sex offender registries is:
- Name, aliases and remote communication identifiers and addresses. This includes:
- Internet identifiers and addresses;
- Telephone numbers, both land lines and cell phones; and
- Social Security number (including any previously used false social security numbers.)
- Residence, lodging and travel information. This includes:
- Residence address;
- Other residence information for those without a fixed abode, such as habitual locale, park, shelter or other spots and identifying rural locations without a street address;
- Temporary lodging addresses, which are places where a sex offender resides for seven or more days away from their residence jurisdiction; and
- Travel and immigration documents, including passports and immigration status documents of resident aliens.
- Employment information, including:
- Employer name and address, including places where the sex offender works as a volunteer or otherwise without remuneration.
- Other employment information, such as travel routes of a mobile job and locations to which self-employment might take the offender; and
- Professional licenses authorizing the registrant to engage in an occupation or carry on a trade or business.
- School information, including the name and address of any place where the sex offender is a student or plans to be a student.
- Vehicle information, including the license plate and description of any vehicle owned or operated by the sex offender. This must include information on any vehicle the sex offender regularly drives in the course of employment, with exception that employer fleets do not require individual vehicle identifiers. It also must include watercraft and aircraft license plates and descriptions, if applicable, in addition to land vehicles. And it must include information on where the registrant's vehicle or vehicles are habitually parked, docked or otherwise kept.
- Date of birth (including any previously used false dates of birth.)
- Physical description, including general appearance and characteristics, as well as identifying marks, such as scars or tattoos.
- Electronic text of the registration offense, including the relevant statutory provision. May include in the registration database link to or citation of the statute defining the registration offense, so long as the link and citation are kept current.
- Criminal history and other criminal justice information, including:
- Dates of all arrests and convictions;
- Status of parole, probation or supervised release;
- Registration status, if in violation of registration and location not known; and
- Any outstanding arrest warrants.
- Current digital photograph of the sex offender;
- Digital fingerprints and palm prints;
- DNA sample for purposes of analysis and entry into CODIS.
- Driver's license or identification card. The final guidelines clarify that this applies only to sex offenders for whom such documents have been issued. It does not mean such documents must be issued in order to include a sex offender in the registry and meet SORNA requirements.
Keeping registration information current
The Sex Offender Registration and Notification Act includes requirements that offenders and jurisdictions keep sex offender registration information current and correct.
In-person appearance and related SORNA requirements are:
- Sex offenders are required to report in person within three business days of entering a jurisdiction as a resident, to provide required sex offender registration information. The jurisdiction taking the registration information must require the sex offender to also report any other jurisdictions in which he or she intends to reside, work or attend school.
- Sex offenders are required to appear in person to report any changes of name, residence, employment or student status, also within three business days of any such change;
- The jurisdiction collecting the registration information or updates from an offender must immediately, electronically forward the information to all other relevant jurisdictions, including others where the offender resides, is employed or is a student.
- Jurisdictions must require a sex offender who begins employment or school in the jurisdiction, or changes employers or schools, to appear in person in that jurisdiction to register that information.
- If a jurisdiction is notified by another jurisdiction that a registered sex offender is employed or a student in that jurisdiction, but the offender fails to appear in person to complete the registration requirement there, the offender is considered in violation of the registration requirement.
Other periodic in-person appearances also are required for verification of information and to update the photograph, based on the tier levels established in SORNA:
- An in-person appearance is required in each jurisdiction in which the offender is required to register:
- Each year for a tier I sex offender;
- Every six months for a tier II sex offender; and
- Every three months for a tier III sex offender.
- The personal appearances required of sex offenders also carry the requirement under SORNA that the sex offender submit to a photograph, if the jurisdiction deems an updated photo necessary.
- Jurisdictions also must require that the sex offender review existing information in the registry and correct or change any information as needed.
- Updated information obtained as a result of personal appearances must be immediately, electronically forwarded to all other jurisdictions in which the sex offender has registration requirements.
The final guidelines clarify that jurisdictions have discretion in certain aspects of the personal appearance meetings, so long as the appearances are with an official who can carry out required functions. The guidelines provide discretion that such meetings may be with local law enforcement officials; be combined with meetings between offenders and supervision officers; or take place as visits to an offender's home.
The final guidelines clarify 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.
The final guidelines clarify that an offender must notify a jurisdiction if he is terminating residence, school or employment in that jurisdiction, even if he does not know where he will be living, working or going to school next. Further, the final guidelines clarify that continued registration in the jurisdiction of conviction is never required if the offender no longer resides, works or attends school there.
Also, responding to comments about situations in which a registrant dies, the final guidelines provide advice to jurisdictions about updating registration information and public website postings in such situations.
The Act states and the guidelines reiterate that a grant program is authorized to assist jurisdictions with residence address verification. (See funding.)
Other registration information changes that must be reported:
- Jurisdictions must require registered sex offenders to immediately report changes in vehicle information, temporary absence from residence jurisdiction for seven days or more duration, and changes in Internet identifiers or telephone numbers.
- Changes to any registration information must be immediately, electronically transmitted by the jurisdiction collecting it to all other jurisdictions in which the offender is required to register. Such information sharing includes notice to jurisdictions where the offender reports temporary lodging of seven days or more, regardless of whether that jurisdiction also is one in which he or she otherwise is required to register.
- Jurisdictions in which offenders are required to register under SORNA must require that sex offenders inform the jurisdiction of their intention to move outside the United States. If so informed, the jurisdiction collecting this information must immediately electronically forward the information to all other relevant jurisdictions, and must notify the U.S. Marshals Service for inclusion of this information in the national database. This reporting is intended to aid the Attorney General in cooperative efforts with foreign authorities.
When registration must occur
The law requires that sex offenders register before release from imprisonment or, if not imprisoned, within three business days of sentencing for the registration offense. The final guidelines clarify that "imprisonment" includes incarceration in either a federal, state, or local correctional facility -- whether it is prison or jail.
With respect to the requirement that imprisoned offenders register prior to release, the SORNA guidelines encourage jurisdictions to establish procedures that allow ample time for verifying information, securing information needed from sources other than the offender, posting the information on the state’s website, and carrying out other required notifications and disclosures.
Jurisdictions are required as part of the initial registration procedure to:
- Inform the sex offender of his or her duties under SORNA (as well as any other duties that exceed SORNA requirements);
- Require the sex offender to read and sign a form stating that duty to register has been explained and is understood;
- Ensure that the sex offender is registered by obtaining the needed information from the offender and submitting the information to the jurisdiction's registry.
Exceptions for retroactive classes of offenders required to register
SORNA guidelines acknowledge the tension between the retroactivity requirement and the three-day requirement for registering qualifying sex offenders. The final guidelines indicate that, for sex offenders with pre-SORNA convictions who are among prisoner, supervision or registered sex offender populations at the time of implementation, jurisdictions should endeavor to register them in conformity with SORNA "as quickly as possible," including fully instructing them about SORNA requirements and obtaining signed statements acknowledging such instructions. The guidelines recognize that "immediate" registration of these offenders may not be possible, and jurisdictions are authorized to phase in SORNA registration for such sex offenders as follows: within one year for tier I offenders; within six months for tier II offenders and within three months for tier III offenders. The guidelines also ask jurisdictions to specify if this timeline is not sufficient so that the SMART office might consider allowing an extension for implementation of this SORNA requirement.
Other special categories of offenders
Other special categories of sex offenders addressed in the guidelines are federal and military sex offenders; sex offenders incarcerated in non-conviction jurisdictions; and those entering the United States with foreign convictions.
The final guidelines clarify that offenders who are released from federal or military custody come under no separate registration system but are required to be integrated into the sex offender registration programs of the states and other non-federal jurisdictions. Federal and military officials are required to notify the receiving jurisdiction authorities of the release of such offenders. The sex offender is required to report in the jurisdiction to which he or she is released within three business days, and the jurisdiction must follow requirements of information collection and sharing. If the jurisdiction is notified of a qualifying federal or military offender and the offender fails to appear and register as required, the jurisdiction must proceed in handling it as a failure to appear case.
The guidelines clarify that registration information for a sex offender imprisoned in a jurisdiction other than the jurisdiction in which he or she was convicted in (such as in a tribal correctional facility or leased prison space in another state) must be collected prior to release from custody and that jurisdiction of imprisonment include the sex offender on the public registry and immediately forward the information to all relevant jurisdictions.
Regarding foreign convictions, the law directs federal officials to establish a system for informing the relevant jurisdictions about anyone entering the United States who is required to register under SORNA. Requirements for these offenders are the same as others—they are required to appear in the receiving jurisdiction within three days to complete registration; the jurisdiction must immediately share this information with other relevant jurisdictions; failure to appear is acted upon as a possible registration violation.
Duration of registration
The duration of SORNA's registration requirement is based on classifications of sex offenders established as a tier system in SORNA (previously described this document.)
The minimum required duration of registration under SORNA is:
- 15 years for tier I sex offenders;
- 25 years for tier II sex offenders; and
- Life for tier III sex offenders.
The registration period begins upon release from custody for an offender who has been incarcerated and at the time of sentencing for an offender who receives a non-prison sentence. Registration requirements may be suspended for any time that an offender is in custody under a civil commitment.
The final guidelines permit, but do not require jurisdictions the option of tolling registration during periods of incarceration or civil commitment subsequent to an offender's initial requirement to register.
How duration of registration requirement may be reduced
SORNA provides "clean record" opportunity for certain tier I and juvenile offenders to reduce the duration of the registration requirement.
A tier I sex offender may reduce by five years the registration requirement if he or she has maintained a clean record for 10 years.
A sex offender who is tier III as a result of a juvenile adjudication may be terminated from the lifetime registration requirement after 25 years of clean record.
(There is no reduction of registration requirement for tier II offenders or for tier III offenders convicted as adults.)
Clean record is defined as having no convictions for an offense for which imprisonment of more than one year may be imposed; no convictions for a sex offense (even one with the maximum penalty of less than one year); successful completion of any periods of supervised release; and completion of an appropriate sex offender treatment program certified by the jurisdiction or by the U.S. Attorney General. The guidelines allow states to design treatment programs and criteria used in determining successful completion.
Enforcement of the registration requirement
SORNA requires that jurisdictions establish a minimum penalty that must be in place for offenders who fail to comply with registration requirements. And, it requires notice to the Attorney General and notation in a jurisdiction's sex offender registry that an offender is in violation of the requirement.
The SORNA guidelines indicate that states will meet enforcement compliance by having:
- A criminal penalty for failure to register that includes maximum imprisonment exceeding one year;
- Procedures for cross-jurisdiction notice of a sex offender's failure to appear as expected;
- Procedures to prompt law enforcement investigation of possible absconders;
- Procedures requiring a warrant be sought for arrest of a sex offender who remains unlocatable by law enforcement, if legal requirements for such warrant are met;
- Procedures for notifying the U.S. Marshals Service and updated notice to the National Sex Offender Registry that a sex offender is an absconder or unlocatable, for entry in the National Crime Information Center Wanted Person file.
- Procedures for follow-up when information is received indicating that a sex offender may not be registered or complying with in-person appearance to verify registration in jurisdictions where he or she is employed or attending school. Law enforcement personnel with authority to investigate must be notified if non-law enforcement personnel cannot ascertain employment or school attendance and the corresponding registration requirement.
Dissemination of sex offender registration information
SORNA requires jurisdictions to make readily available on the Internet, to all jurisdictions and the public, certain information about each sex offender in the registry. All registration information required to be collected by a jurisdiction is to be recorded in digitized form to enable immediate electronic access and transmittal.
Sex offender website requirements
The guidelines expand the SORNA in setting requirements for publicly available sex offender registration websites. The websites must be capable of:
- Searching by zip code or geographic radius set by the user (as provided for in the federal statute), and
- Having all field search capabilities needed for full participation in the National Sex Offender Public Website (NSOPW) (see http://www.nsopr.gov/) that, according to the final guidelines, includes allowing searches by name, county and city or town.
SORNA requires that sex offender registration public websites include:
- The name of the sex offender, including aliases;
- Address of each residence or where the sex offender habitually lives.
- Address of the sex offender's employer;
- Address of any place where the sex offender is a student;
- The license plate number and description of any vehicle owned or operated by the sex offender;
- A physical description of the sex offender;
- A current photograph of the sex offender; and
- The sex offense for which the sex offender is registered and any other sex offenses for which he or she has been convicted.
SORNA also sets mandatory exemptions to the information that can be included on the websites. Items that can not be included are:
- Victim identity, although such things as the age and gender of the victim and the conduct engaged in by the sex offender are allowed;
- Social security number of the offender;
- Arrests not resulting in conviction are excluded from information that may be posted on the public registry.
- Travel and immigration documents.
Optional exemptions included in the final SORNA guidelines are:
- Information about a tier I sex offender convicted of an offense other than a specified offense against a minor;
- The name of an employer or school are optional;
- Other information that the jurisdiction regards as inappropriate or unnecessary, notably email addresses and other Internet identifiers, may be excluded.
Requirements of sex offender registration public websites also include:
- Links to sex offender safety and education resources (to the extent practicable);
- Instructions on how to seek correction of information that an individual contends is in error; and
- A warning statement that the website information should not be used to unlawfully injure, harass or commit a crime against any individual named.
The final guidelines discourage states from including on websites email or other addresses or information that would enable sex offenders to contact each other. The guidelines suggest instead that jurisdictions include on websites a function by which members of the public may enter an email address or phone number and receive an answer whether it belongs to a registered sex offender. This is a recommendation, not a requirement in the guidelines, which also indicate that the registry management and website software to come from the Department of Justice Department will include that feature.
The final guidelines also clarify that certain other items such as fingerprints, palm prints and DNA must be collected as part of the registration requirement, but are of primary or exclusive interest to law enforcement, not for public disclosure.
Information sharing among jurisdictions and with various entities
SORNA requires immediate, electronic information sharing about sex offenders to all relevant jurisdictions. Immediate, as used in SORNA, means "within 3 business days." Upon initial registration in the jurisdiction in which a sex offender was convicted, that jurisdiction must immediately forward the information to other jurisdictions in which the offender is required to register.
The final guidelines indicate that, as required by section 123 of the Act, the Department of Justice will develop and make available software tools for the operation of sex offender registration and notification programs. These tools are to help states automate the process and implement requirements that:
- States provide sex offender registry information to the Attorney General for the National Sex Offender Registry (NSOR) or other appropriate databases, which may include other databases housing criminal history record information.
- Registry information is shared among law enforcement and supervision agencies, defined as police departments, sheriff’s offices, district attorney’s offices and probation agencies responsible for sex offender supervision.
- Registry information is shared with jurisdictions where the sex offender resides, is employed or is a student, including from to or which a change of such status occurs.
- Registry information is provided to any organization responsible for employment-related background checks under the National Child Protection Act of 1993 (42 U.S.C. 5119a - http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+4766+0++%28%29%20%20AND%20%28%2842%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%285119a%29%29%3ACITE%20%20%20%20%20%20%20%20%20), for purposes of their meeting requirements of that law.
Any updated sex offender registration information also must be provided to:
- Schools and public housing agencies in each area where an offender resides, work or goes to school;
- Social service entities responsible for protecting children in the child welfare system;
- Volunteer organizations in which contact with minors or other vulnerable individuals might occur; and
- Any organization, company or individual who requests such notification under procedures established by the jurisdiction.
The final guidelines suggest that objectives of these information-sharing requirements can be achieved by augmenting sex offender registry public websites to include appropriate notification functions. A jurisdiction will satisfy SORNA's notification provisions by adopting:
- An automated notification system;
- A website that includes all of the information required on each sex offender within three days of collection of the information;
- A function under which members of the public and organizations can request notification when sex offenders commence residence, employment or school attendance within zip code or geographic radius specified and when requester provides an email address to which the notice is sent;
- A system that automatically sends an email notice to the requester when new information is posted.
The only allowed exception to the immediate three-day requirement for transmittal of information is that volunteer organizations, other organizations, companies or individuals who request notification may choose to receive notification every five business days.
Tribes had until July 27, 2007, to declare whether they would become a SORNA registration jurisdiction or delegate registration and notification functions to a state or states. Eligible tribes that elected to be a SORNA registration jurisdiction must meet the same requirements as other jurisdictions. Tribes may enter into cooperative agreements with states or with one another for the discharge of some or all of the functions required under SORNA. The guidelines suggest that use of cooperative agreements provides tribes with flexibility in deciding which functions under SORNA they would seek to have states perform, and which they wish to control or discharge directly.
Absent an affirmative tribal decision to carry out and enforce SORNA requirements, those responsibilities are delegated to the state or states. Functions also are delegated to the state or states if the Attorney General determines that the tribe has not substantially implemented the requirements of SORNA and is not likely to become capable of doing so within a reasonable time frame.
The final guidelines do not differentiate between tribal convictions and convictions by other United States jurisdictions as predicates for sex offender registration and notification. 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. Therefore, where a tribe has delegated registration authority to a State, the tribal authorities will still retain their sovereign powers, and as such, may engage in whatever sex offender registration and notification functions they wish, so as long as there is not conflict with the state's responsibilities under SORNA.
In addition, the final guidelines are explicit in that jurisdictions are free to require enhanced registration requirements based on tribal convictions and not classify all tribal convictions as tier I offenses, as had been indicated in the proposed guidelines.
- April 27, 2009, is the deadline for jurisdictions to submit compliance to the SMART office.
- July 27, 2009, is the deadline for jurisdictions to have substantially implemented SORNA requirements. Failure to do so will result in a mandatory 10 percent reduction in Byrne Justice Assistance Grant funding. The Attorney General is authorized to provide up to two one-year extensions of this deadline (which effectively prevents Byrne JAG reduction for the duration of the extension.)
This summary is intended to supplement, not replace, review of the full SORNA guidelines (links provided at beginning of this document). All interpretation of the federal act and compliance is by the SMART Office, Laura L. Rogers, director, Office of Justice Programs, U.S. Department of Justice, Washington, D.C. at (202) 514-4689.
NCSL's Criminal Justice Program is in Denver, Colorado, at (303) 364-7700; or email@example.com. NCSL's Law and Criminal Justice Federal Affairs Counsel in Washington, D.C., is at (202) 624-5400, ext. 3566.