NSCL submits comments on the Supplemental SORNA Guidelines
July 13, 2010
Linda M. Baldwin
Director, SMART Office
Office of Justice Programs
United States Department of Justice
810 7th Street, NW
Washington, DC 20531
Dear Ms. Baldwin:
On behalf of the National Conference of State Legislatures (NCSL) I submit the following comments to the Proposed Supplemental Guidelines to Public Law 109-248 (supplemental guidelines) for the record. NCSL is a bipartisan organization that represents the 50 state legislatures, its commonwealths, the District of Columbia, and the U.S. Territories. We have been actively involved in advocating the states’ position for greater flexibility in the implementation of the Sex Offender Registration and Notification Act (SORNA) since the passage of the underlying Adam Walsh Act in 2006 and more recently last year as the first SORNA implementation deadline approached.
NCSL thanks the SMART Office for its leadership on the issues surrounding the implementation of SORNA. We believe significant progress has been made in tailoring SORNA implementation to the real world of state policy and fiscal capabilities. As states continue to struggle with SORNA implementation, however, NCSL believes that the work of the SMART Office to continue to address state concerns with this process is not yet complete. We urge the SMART Office to continue to provide states greater flexibility in implementation of SORNA and hope that you will continue to provide state outreach and technical support as the final deadline for SORNA substantial implementation approaches in July, 2011. NCSL appreciates the SMART Office’s outreach efforts to date, and hopes that you will continue to include our organization in this process.
With respect to the pending supplemental guidelines, NCSL makes the following comments:
Juvenile Delinquents: States across the country have chosen to treat juveniles differently than adults in the criminal justice system. Many states have made definitive policy choices to work toward rehabilitation of juveniles rather than adopt stringent punitive measures, especially for first time offenders. Some states have also gauged their approach to juvenile sentencing on a risk-based system, rather than an offense-based system. NCSL believes that the new requirement contained in the supplemental guidelines that grants states the discretion to exempt juvenile delinquency adjudications from public website posting and disclosure of registration information for these juveniles to certain schools, public housing, social service, and volunteer entities strikes an important balance between those states that have made well-reasoned policy decisions not to treat juveniles so harshly and those that have gone the other way. This guidance both acknowledges and respects the diversity that exists in this area at the state level. NCSL hopes that the SMART Office will continue to work with states on juvenile registry requirement to ensure the greatest flexibility within the spirit of the law.
Ongoing Implementation Assurance: The supplemental guidelines place an additional requirement on states receiving Byrne/JAG funding - to annually certify to their ongoing substantial implementation with SORNA, and to furnish substantiating documentation to the SMART Office of this ongoing substantial implementation as a part of their Byrne/JAG application process. NCSL objects to this provision as overly burdensome and a potential unfunded federal mandate on states. This requirement would create additional administrative burdens on the states who will now have to compile this information annually as well as increase labor costs for the states. It may cause delay in the Byrne/JAG application process because state agencies and personnel not normally involved in the Byrne/JAG application process must now be consulted in order to compile a complete Byrne/JAG application. This requirement clearly goes beyond the intent of Congress and was neither contemplated in the Adam Walsh Act nor in the Byrne/JAG statute.
This requirement also shifts the responsibility for ensuring and enforcing compliance from the SMART Office, the federal agency tasked with overseeing and enforcing state SORNA implementation, to the already overburdened states. The task of annually obtaining and processing compliance information should be divorced from the Byrne/JAG application process. These are two completely unrelated statutes. The responsibility for ensuring ongoing state SORNA compliance and checking on state actions in this area rests squarely with the SMART Office, not with a state agency charged with making that state’s Byrne/JAG application. If SMART wants jurisdictions to submit annual compliance data on SORNA implementation, it should request state documentation from the appropriate state administering agency as a completely separate process and not weigh down the Byrne/JAG process with additional state requirements not contemplated by Congress in the Byrne/JAG statute. This proposed guidelines revision is unworkable, overly burdensome and NCSL asks that it be removed from the proposed supplemental guidelines.
Retroactive Classes: NCSL has historically opposed the retroactivity requirement contained in the SORNA rule finalized in 2007. States face challenges complying with a rule that requires jurisdictions to register sex offenders with pre-SORNA implementation sex offense convictions who reenter the criminal justice system through a subsequent criminal conviction. NCSL appreciates the efforts of the SMART Office to narrow the retroactivity requirement by limiting the requirement to offenders who reenter the criminal justice system with a new felony conviction only. NCSL maintains, however, that there will still be significant state cost and labor associated with this requirement. In addition, the retroactivity requirement does not express congressional intent because it is not contained in the Adam Walsh Act, creates an unfunded federal mandate on states because there is no federal appropriation specifically designated for this portion of compliance, and as a matter of public policy is not favored in the law because statutes generally apply prospectively, not retroactively as a matter of public policy. NCSL requests that the retroactivity rule be repealed in its entirety.
Newly Recognized Tribes: NCSL appreciates the desire of the SMART Office to work with newly recognized tribes to become SORNA compliant if they elect to be a SORNA jurisdiction. This proposed framework, however, does not relieve the state in which the tribe resides of SORNA implementation responsibilities should that tribe fail to substantially implement SORNA. For example, if a newly recognized tribe elects to become a SORNA jurisdiction, resides in a deemed SORNA compliant state, and does not substantially implement SORNA requirements to the satisfaction of the SMART Office, that state risks incurring the SORNA penalty provision although it has brought its own systems into compliance. NCSL maintains that the state should not have to bear the fiscal and substantive responsibility for a noncompliant tribe. NCSL also recognizes that this inequity may not be able to be remedied through guidelines revision, but may require a statutory change. At a bare minimum, the state in this circumstance should be accorded by guideline revision the same three years given to newly recognized tribes in these proposed guidelines to bring tribal systems into compliance after a tribe has been deemed noncompliant.
NCSL looks forward to continued outreach and discussion on the issues contained in these comments to make SORNA more workable for states. Please contact Susan Parnas Frederick, (202)624-3566, Susan Frederick with any questions or concerns. Thank you for the opportunity to comment on this very important law.
Representative Jerry Madden
Texas House of Representatives
Chair, NCSL Law and Criminal Justice Committee