[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Notices]
[Pages 33696-33708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16391]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Office of the Attorney General
[A.G. Order No. 2166-98]
RIN 1105-AA56
Proposed Guidelines for the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act, as Amended
AGENCY: Department of Justice.
ACTION: Proposed guidelines.
-----------------------------------------------------------------------
SUMMARY: The United States Department of Justice is publishing Proposed
Guidelines to implement the Jacob Wetterling Crimes Against Children
and Sexually Violent Offender Registration Act as amended by Megan's
Law, the Pam Lychner Sexual Offender Tracking and Identification Act of
1996, and section 115 of the General Provisions of Title I of the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1998.
DATES: Comments must be received by August 18, 1998.
ADDRESSES: Comments may be mailed to Bonnie J. Campbell, Director,
Violence Against Women Office, U.S. Department of Justice, 950
Pennsylvania Avenue, NW., Washington, DC 20530, 202-616-8894.
SUPPLEMENTARY INFORMATION: The Pam Lychner Sexual Offender Tracking and
Identification Act of 1996, Pub. L. No. 104-236, 110 Stat. 3093 (the
``Pam Lychner Act''), and section 115 of the General Provisions of
Title I of the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No.
105-119, 111 Stat. 2440, 2461 (the ``CJSA''), amended section 17101 of
the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, 108 Stat. 1796, 2038 (codified at 42 U.S.C. 14071), which
contains the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act (the ``Wetterling Act'' or ``the
Act''). These legislative changes require conforming changes in the
Final Guidelines for the Jacob Wetterling Act and Megan's Law (Pub. L.
No. 104-145, 110 Stat. 1345) that were published by the Department of
Justice on July 21, 1997, in the Federal Register (62 FR 39009).
The Wetterling Act generally sets out minimum standards for state
sex offender registration programs. States that fail to comply with
these standards within the applicable time frame will be subject to a
mandatory 10% reduction of formula grant funding under the Edward Byrne
Memorial State and Local Law Enforcement Assistance Program (42 U.S.C.
3756), which is administered by the Bureau of Justice Assistance of the
Department of Justice. Any funds that are not allocated to noncomplying
states will be reallocated to states that are in compliance.
Information concerning compliance review procedures and requirements
appears in part VIII of these guidelines.
The Wetterling Act's requirements for compliance may be divided
into three categories, each of which carries a different compliance
deadline, depending on the legislation from which it derives:
1. Original requirements. Many of the provisions of the current
formulation of the Wetterling Act derive from the original version of
the Act, which was enacted on September 13, 1994, or from the Megan's
Law amendment to the Act. These include, for example, the basic
requirements to register offenders for at least 10 years; to take
registration information from offenders and to inform them of
registration obligations when they are released; to require registrants
to update address information when they move; to verify the registered
address periodically; and to release registration information as
necessary for public safety. The deadline for compliance with these
features of the Act was September 12, 1997, based on the specification
of 42 U.S.C. 14071(g) that states have three years from the Act's
original enactment date (i.e., September 13, 1994) to achieve
compliance. However, 42 U.S.C. 14071(g) allows a two-year extension of
the deadline for states that are making good faith efforts to achieve
compliance, and states that have been granted this extension have until
September 12, 1999, to comply with these features of the Act.
2. Pam Lychner Act requirements. The Pam Lychner Act's amendments
to the Wetterling Act created a limited number of new requirements for
state registration programs, including a requirement that the
perpetrators of particularly serious offenses and
[[Page 33697]]
recidivists be subject to lifetime registration. The time frame for
compliance with these new requirements is specified in section 10(b) of
the Pam Lychner Act--three years from the Pam Lychner Act's enactment
date of October 3, 1996, subject to a possible extension of two years
for states that are making good faith efforts to come into compliance.
Hence, barring an extension, states will need to comply with these
features of the Act by October 2, 1999.
3. CISA requirements. The CJSA amendments made extensive changes to
the Wetterling Act, many of which afford states greater flexibility in
achieving compliance. Under the effective date provisions in section
115(c) of the CJSA, states immediately have the benefit of amendments
that afford them greater discretion and can rely on these amendments in
determining what changes (if any) are needed in their registration
programs to comply with the Act. For example, the Act as amended by
CJSA affords states discretion concerning the procedures to be used in
periodic verification of registrants' addresses, in contrast to the
Act's original requirement that a specific verification-form procedure
be used. In light of this change, effective immediately, states have
discretion concerning the particular procedures that will be used in
address verification.
While the CJSA's amendments to the Wetterling Act were largely in
the direction of affording states greater discretion, the CJSA did add
some new requirements to the Wetterling Act. For example, the CJSA
added provisions to promote registration of sex offenders in states
where they work or attend school (as well as states of residence) and
to promote registration of federal and military sex offenders. The time
frame for compliance with new requirements under CJSA amendments, as
specified in section 115(c)(2) of the CJSA, is three years from the
CJSA's enactment date of November 26, 1997, subject to a possible
extension of two years for states that are making good faith efforts to
come into compliance. Hence, barring an extension, states will need to
comply with these features of the Act by November 25, 2000.
The proposed guidelines in this publication identify and discuss
separately all of the requirements that states will need to meet by
each of the three specified deadlines, thereby making it clear when
states will need to be in compliance with each element of the
Wetterling Act to maintain eligibility for full Byrne Formula Grant
funding.
Proposed Guidelines
1. General purposes and principles of interpretation. These
guidelines carry out a statutory directive to the Attorney General in
subsection (a)(1) of the Wetterling Act (42 U.S.C. 14071(a)(1)) to
establish guidelines for state registration programs under the Act.
Before turning to the specific provisions of the Act, five general
points should be noted concerning the Act's interpretation and
application.
First, the general objective of the Act is to assist law
enforcement and protect the public from convicted child molesters and
violent sex offenders through requirements of registration and
appropriate release of registration information. The Act is not
intended to, and does not have the effect of, making states less free
than they were under prior law to impose such requirements. Hence, the
Act's standards constitute a floor for state programs, not a ceiling.
States do not have to go beyond the Act's minimum requirements to
maintain eligibility for full Byrne Grant funding, but they retain the
discretion to do so, and state programs do often contain elements that
are not required under the Act's standards. 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.
Second, to comply with the Wetterling Act, states do not have to
revise their registration systems to use technical definitions of
covered sex offenses based on federal law. Rather, subject to certain
constraints, they may use their own criminal law definitions and
categories in defining registration requirements. This point is
explained more fully below.
Third, the Act's definitions of covered offense categories are
tailored to its general purpose of protecting the public from persons
who molest or sexually exploit children and from other sexually violent
offenders. Hence, these definitions do not include all offenses that
involve a sexual element. For example, offenses consisting of
consensual acts between adults are not among the offenses for which
registration is required under the Act, and requiring registration for
persons convicted of such offenses would not further the Act's
objectives.
Fourth, the Wetterling Act contemplates the establishment of
programs that will prescribe registration and notification requirements
for offenders who are subsequently convicted of offenses in the
pertinent categories. The Act does not require states to attempt to
identify and to prescribe such requirements for offenders who are
convicted prior to the establishment of a conforming program.
Nevertheless, the Act does not preclude states from prescribing
registration and notification requirements for offenders convicted
prior to the establishment of the program.
Fifth, the Act sets minimum standards for state registration and
notification programs but does not require that its standards be
implemented by statute. In assessing compliance with the Act, the
totality of a state's rules governing the operation of its registration
and notification program will be considered, including administrative
policies and procedures as well as statutes.
2. Related litigation. Some state registration and notification
systems have been challenged on constitutional grounds. The majority of
courts, and all federal appeals courts, that have dealt with the issue
thus far have held that systems like those contemplated by the
Wetterling Act do not violate released offenders' constitutional
rights. See, e.g., Roe v. Office of Adult Probation, 125 F.3d 47 (2d
Cir. 1997) (Connecticut probation office notification policy); Russell
v. Gregoire, 124 F.3d 1079 (9th Cir. 1997) (Washington state act), cert
denied, 118 S.Ct. 1191 (1998); Doe v. Pataki, 120 F.3d 1263 (2d Cir.
1997) (New York act), cert denied, 118 S.Ct. 1066 (1998); E.B. v.
Verniero, 119 F.3d 1077 (3d Cir. 1997) (New Jersey notification
provisions), cert. denied. 118 S.Ct. 1039 (1998); Artway v. Attorney
General, 81 F.3d Cir. 1996) (New Jersey registration provision); Doe v.
Kelley, 961 F. Supp. 1105 (W.D. Mich. 1997) (Michigan notification
provisions); Doe v. Weld, 954 F. Supp. 425 (D. Mass. 1996)
(Massachusetts registration of juvenile offenders); State v. Pickens,
558 N.W. 2d 396 (Iowa 1997); Arizona Dep't of Public Safety v. Superior
Court, 949 P.2d 983 (Ariz. App. 1997); Opinion of the Justices to the
Senate, 423 Mass. 1201, 668 N.E. 2d 738 (Mass 1996); Doe v. Poritz, 142
N.J. 1, 662 A.2d 367 (N.J. 1995); State v. Ward, 123 Wash. 2d 488, 869
P.2d 1062 (Wash. 1994). The United States has filed ``friend of the
court'' briefs in several of these cases, arguing that sex
[[Page 33698]]
offender registration and community notification do not impose
punishment for purposes of the Ex Post Facto and Double Jeopardy Clause
or violate privacy or liberty interests guaranteed by the federal
Constitution.
In a few other cases, however, courts have found that certain
applications or provisions of some state systems violate the United
States Constitution or provisions of a state constitution. See, e.g.,
Doe v. Attorney General, 426 Mass. 136, 686 N.E. 2d 1007 (Mass. 1997)
(holding that the Massachusetts act implicates liberty and property
interests protected by the Massachusetts constitution, so that the act
could not be applied to Doe--who had been convicted of ``indecent
assault'' for sexually suggestive touching of an undercover police
officer in an area known for consensual sexual activity between adult
males--without a prior hearing to determine if he individually
presented any threat to persons for whose protection the act was
passed; the court did not rule out the possibility that a categorical
``dangerousness'' determination could be justified by certain other
conviction offenses); State v. Myers, 260 Kan. 669, 923 P. 2d 1024
(Kan. 1996) (holding that due to the breadth of offenses subject to
Kansas registration act and the potentially unlimited scope of
notification, Kansas notification provisions violate the Ex Post Facto
Clause), cert. denied, 117 S. Ct. 2508 (1997). The New Jersey Supreme
Court in Doe v. Poritz (above) also found a state law privacy interest
requiring certain procedural protections, and those procedures were
further elaborated upon by the Third Circuit in E.B. v. Verniero
(above).
In addition, when these guidelines were written, there were appeals
pending in the Sixth Circuit, see Cutshall v. Sundquist, 980 F. Supp.
928 (M.D. Tenn. 1997) (holding that the Tennessee notification
provisions implicate federal and state law privacy and employment
interests, requiring procedural protections prior to notification),
appeal pending, 6th Cir. Nos. 97-6276 & 97-6321, and in the Third
Circuit, see Paul v. Verniero, 3d Cir. No. 97-5791 (from district
court's rejection of constitutional privacy challenge to community
notification). There was also ongoing litigation in federal district
court in Minnesota and in state courts in Ohio and Pennsylvania.
3. Summary and text of guidelines. The following guidelines explain
the interpretation and application of the Wetterling Act's standards
for registration programs and related requirements. All citations in
these guidelines to the Act are to the Act's current text, reflecting
the Megan's Law, Pam Lychner Act, and CJSA amendments. The detailed
explanation is preceded by a table that summarizes the organization of
the guidelines, the major elements of the Act, and the time for
compliance with each element under the enacting legislation.
Summary and Deadlines for Wetterling Act Compliance
I. Ten-Year Minimum Registration for Persons Convicted of a
Criminal Offense Against a Victim Who is a Minor or a Sexually Violent
Offense [Sept. 12, 1997; Possible Two-Year Extension]
A. ``States'' to which the Act applies
B. Duration of registration
C. Coverage of offenses
D. Coverage of offenders
II. Registration and Tracking Procedures; Penalties for Registration
Violations [Sept. 12, 1997; Possible Two-Year Extension]
A. Initial registration procedures
B. Change of address procedures
C. Periodic address verification
D. Penalties for registration violations
III. Release of Registration Information [Sept. 12, 1997; Possible Two-
Year Extension]
IV. Special Registration Requirements Under the Pam Lychner Act for
Recidivists and Aggravated Offenders [Oct. 2, 1999; Possible Two-Year
Extension]
V. Special Registration Requirements Under the CJSA Amendments Relating
to Sexually Violent Predators, Federal and Military Offenders, and Non-
Resident Workers and Students [Nov. 25, 2000; Possible Two-Year
Extension]
A. Heightened sexually violent predator registration or alternative
measures
B. Federal and military offenders; non-resident workers and
students
VI. Participation in the National Sex Offender Registry [Nov. 25, 2000;
Possible Two-Year Extension]
VII. Good Faith Immunity [Available to States Immediately]
VIII. Compliance Review; Consequences of Non-Compliance
Text of Detailed Guidelines for Wetterling Act Compliance
I. Ten-Year Minimum Registration for Persons Convicted of a
Criminal Offense Against a Victim Who is a Minor or a Sexually
Violent Offense [Time For Compliance: September 12, 1997; Possible
Two-Year Extension]
To comply with subsections (a)(1) and (b)(6)(A) of the Wetterling
Act, a state registration program must require current address
registration for a period of 10 years for persons convicted of ``a
criminal offense against a victim who is a minor'' or a ``sexually
violent offense.''
This requirement derives from the Wetterling Act as originally
enacted. The time for compliance is accordingly that provided in 42
U.S.C. 14071(g)--Sept. 12, 1997, or Sept. 12, 1999, for states that
have received a two-year extension based on good faith efforts to
achieve compliance.
The interpretation and application of this requirement are as
follows:
A. ``States'' to Which the Act Applies
For purposes of the Act, ``state'' refers to the political units
identified in the provision defining ``state'' for purposes of
eligibility for Byrne formula Grant funding (42 U.S.C. 3791(a)(2)).
Hence, the ``states'' that must comply with the Act's standards for
registration programs to maintain full eligibility for such funding are
the fifty states, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, American Samoa, Guam, and the Northern
Mariana Islands.
B. Duration of Registration
Subsection (b)(6)(A) provides that the registration requirement
must remain in effect for 10 years following the registrant's release
from prison or placement on parole, supervised release, or probation.
States may choose to establish longer registration periods, and are
required to do so under the Act's standards for certain types of
offenders as discussed in parts IV and V of these guidelines.
Registration requirements of shorter duration than 10 years are not
consistent with the Act. Hence, for example, a state program would not
be in compliance with the Act if it allowed registration obligations to
be waived or terminated before the end of the 10 year period on such
grounds as a finding of rehabilitation or a finding that registration
(or continued registration) would not serve the purposes of the state's
registration provisions. However, if the underlying conviction is
reversed, vacated, or set aside, or if the registrant is pardoned,
registration (or continued registration) is not required under the Act.
Also, in light of a proviso in subsection (b)(6), a state need not
require registration ``during ensuing periods of incarceration.'' The
reference to subsequent ``incarceration'' should be understood to
include periods of civil commitment, as well as imprisonment for the
commission of another criminal offense, since a state may conclude that
it is superfluous to carry out address registration and verification
procedures while the registrant is in either criminal
[[Page 33699]]
or civil confinement. To comply with the Act, a state that does waive
registration during subsequent criminal or civil confinement must
require that registration resume when the registrant is released, if
time remains under the registration period required by the Act.
C. Coverage of Offenses
1. ``Criminal offense against a victim who is a minor''. The Act
requires registration of any person convicted of a ``criminal offense
against a victim who is a minor.'' Subsection (a)(3)(A) defines the
relevant category of offenses. The general purpose of the definition is
to ensure comprehensive registration for persons convicted of offenses
involving sexual molestation or sexual exploitation of minors.
``Minors'' for purposes of the Act means a person below the age of 18.
The specific clauses in the Act's definition of ``criminal offense
against a victim who is a minor'' are as follows:
(1)-(2) Clauses (i) and (ii) cover kidnapping of a minor (except by
a parent) and false imprisonment of a minor (except by a parent). All
states have statutes that define offenses--going by such names as
``kidnapping,'' ``criminal restraint,'' or ``false imprisonment''--
whose gravamen is abduction or unlawful restraint of a person. States
can comply with these clauses by requiring registration for persons
convicted of these statutory offenses whose victims were below the age
of 18. It is a matter of state discretion under these clauses whether
registration should be required for such offenses in cases where the
offender is a parent of the victim.
(3) Clause (iii) covers offenses consisting of ``criminal sexual
conduct toward a minor.'' States can comply with this clause by
requiring registration for persons convicted of all statutory sex
offenses under state law whose elements involve physical contact with a
victim--such as provisions defining crimes of ``rape,'' ``sexual
assault,'' ``sexual abuse,'' or ``incest''--in cases where the victim
was a minor at the time of the offense. Coverage is not limited to
cases where the victim's age is an element of the offense (such as
prosecutions for specially defined child molestation offenses). It is a
matter of state discretion under this clause whether registration
should be required for sex offenses that do not involve physical
contact, such as exhibitionism offenses.
(4) Clause (iv) covers offenses consisting of solicitation of a
minor to engage in sexual conduct. The notion of ``sexual conduct''
should be understood in the same sense as in clause (iii). Hence,
states can comply with clause (iv) by consistently requiring
registration, in cases where the victim was below the age of 18, based
on:
--A conviction for an offense involving solicitation of the victim
under a general attempt or solicitation provision, where the object
offense would be covered by clause (iii), and
--A conviction for an offense involving solicitation of the victim
under any provision defining a particular crime whose elements include
soliciting or attempting to engage in sexual activity involving
physical contact.
(5) Clause (v) covers offenses consisting of using a minor in a
sexual performance. This includes both live performances and using
minors in the production of pornography.
(6) Clause (vi) covers offenses consisting of solicitation of a
minor to practice prostitution. The interpretation of this clause is
parallel to that of clause (iv). States can comply with clause (vi) by
consistently requiring registration, in cases where the victim was
below the age of 18, based on:
--A conviction for an offense involving solicitation of the victim
under a general attempt or solicitation provision, where the object
offense is a prostitution offense, and
--A conviction for an offense involving solicitation of the victim
under any provision defining a particular crime whose elements include
soliciting or attempting to get a person to engage in prostitution.
(7) Clause (vii) covers offenses consisting of any conduct that by
its nature is a sexual offense against a minor. This clause is intended
to ensure coverage of convictions under statutes defining sex offenses
in which the status of the victim as a minor is an element of an
offense, such as specially defined child molestation offenses, and
other offenses prohibiting sexual activity with underage persons.
States can comply with this clause by including convictions under these
statutes in the registration requirement. A proviso at the conclusion
of the Act's definition of ``criminal offense against a victim who is a
minor'' allows states to exclude from registration requirements persons
convicted for conduct that is criminal only because of the age of the
victim if the perpetrator is 18 years of age or younger. Whether
registration should be required for such offenders is a matter of state
discretion under the Act.
(8) Considered in isolation, clause (viii) gives states discretion
whether to require registration for attempts to commit offenses
described in clauses (i) through (vii). However, state discretion to
exclude attempted sexual offenses against minors is limited by other
provisions of the Act, since any verbal command or attempted persuasion
of the victim to engage in sexual conduct would bring the offense
within the scope of the solicitation clause (clause (iv)) and make it
subject to the Act's mandatory registration requirements. Hence, the
simplest approach for states is to include attempted sexual assaults on
minors (as well as completed offenses) uniformly as predicates for the
registration requirement.
2. ``Sexually violent offense''. The Act prescribes a 10-year
registration requirement for offenders convicted of a ``sexually
violent offense,'' as well as for those convicted of a ``criminal
offense against a victim who is a minor.'' Subsection (a)(3)(B) defines
the term ``sexually violent offense.'' The general purpose of the
definition is to require registration of persons convicted of rape or
rape-like offenses--i.e., non-consensual sexually assaultive crimes
involving penetration--regardless of the age of the victim. The
definition refers specifically to any criminal offense that consists of
aggravated sexual abuse or sexual abuse (as described in sections 2241
and 2242 of title 18 of the United States Code, or as described in the
state criminal code), or an offense that has as its elements engaging
in physical contact with another person with intent to commit such an
offense.
In light of this definition, there are two ways in which a state
can satisfy the requirement of registration for persons convicted of
``sexually violent offenses'':
First, a state can comply by requiring registration for offenders
convicted for criminal conduct that would violate 18 U.S.C. 2241 or
2242--the federal ``aggravated sexual abuse'' and ``sexual abuse''
offenses--if prosecuted federally. (The part of the definition relating
to physical contact with intent to commit aggravated sexual abuse or
sexual abuse does not enlarge the class of covered offenses under the
federal law definitions, because sections 2241 and 2242 explicitly
encompass attempts as well as completed offenses.)
Second, a state can comply by requiring registration for offenders
convicted of the state offenses that correspond to the federal offenses
described above--i.e., the most serious sexually assaultive crime or
crimes under state law, covering non-consensual sexual acts involving
penetration--together with state offenses (if any) that have as their
elements engaging in physical contact with another person with intent
to commit such a crime.
[[Page 33700]]
Like the other requirements of the Act, the requirement to register
persons convicted of sexually violent offenses, regardless of the age
of the victim, establishes only a baseline for state registration
programs. Whether registration should be required for additional
offenses against adult victims is a matter of state discretion under
the Act.
3. ``Comparable * * * range of offenses''. As a result of language
added by the CJSA amendments, states need not comply exactly with the
specific offense coverage requirements in subparagraph (A) or (B) of
subsection (a)(3). Rather, a state may comply with the Act by requiring
registration for persons convicted of offenses in a ``range of offenses
specified by State law which is comparable to or which exceeds'' the
range of offenses described in the Act.
This change reflects a practical recognition by Congress that exact
state compliance with the Act's offense coverage specifications may be
difficult because of the degree of detail in the Act's definitions and
because of the variations among different jurisdictions in the
terminology and categorizations used in defining sex offenses. See H.R.
Rep. No. 256, 105th Cong., 1st Sess. 15 (1997). As a result, Congress
was concerned that some states ``may inadvertently find themselves out
of compliance with the Wetterling Act'' because the state registration
provisions ``are not exactly congruent'' with the Act's offense
categories, ``even if the offenses covered by the [state] program are
much broader in other respects than required by the Wetterling Act.''
Id. The language concerning coverage of a ``comparable'' range of
offenses was added to address this concern.
States should aim to have their registration offenses fully
encompass the offense categories described in the Act and will be
assured of compliance with the Act's offense coverage requirements if
they do so. However, in light of the CJSA amendments affording a degree
of flexibility concerning offense coverage, inadvertent departures from
the Act's offense category specifications will not necessarily result
in a finding of non-compliance. Such departures will be allowed if, in
the judgment of the reviewing authority, they do not substantially
undermine the objective of comprehensive registration for persons
convicted of crimes involving sexual molestation or sexual exploitation
of minors, and of persons convicted of rape or rape-like crimes against
victims of any age.
In addition, in assessing compliance, the reviewing authority may
consider whether a state program imposes registration requirements
which are broader in other respects than the offense coverage
specifications of the Act. For example, consistently requiring
registration for persons convicted of attempted offenses, and of sexual
assaults against adult victims other than rape-like offenses, goes
beyond the Act's mandatory standards. Such additional coverage may be
considered by the reviewing authority in deciding whether the overall
offense coverage under a state program ``is comparable to or * * *
exceeds'' the Act's offense coverage specifications.
D. Coverage of Offenders
1. Resident offenders convicted in other states. In addition to the
Act's requirement that states register their own offenders in the
pertinent categories, subsection (b)(7) of the Act requires states, as
provided in these guidelines, to include in their registration programs
residents who were convicted in other states.
To comply with this requirement, states must apply the Act's
standards to residents who were convicted in other states of a criminal
offense against a victim who is a minor or a sexually violent offense
as defined in the Act). Specifically, states must require such persons
to promptly provide current address information to the appropriate
authorities when they establish residence in the state, and thereafter
must apply to such persons all of the Act's standards relating to
treatment of registered offenders following release including reporting
of subsequent changes of address, periodic address verification,
criminal penalties for registration violations, and release of
registration information as necessary for protection of the public.
States also should be aware that it is a federal offense for registered
offenders to change residence to another state without notifying the
new state of residence and the FBI. See 42 U.S.C. 14072(g)(3) and (i).
The durational requirements for registration of offenders convicted
in other states are the same as those for in-state offenders--
registration for at least 10 years or for life as provided in
subsection (b)(6) of the Act. If a portion of the applicable
registration period has run while the registrant was residing in
another state, a new state of residence may give the registrant credit
for that period. For example, if a person required to register for 10
years under the Act's standards has lived for six years following
release in the state of conviction, another state to which the
registrant moves at that point does not have to require registration
for more than the four remaining years.
2. Juvenile delinquents and offenders. The Act's registration
requirements depend in all circumstances on conviction for certain
types of offenses. Hence, states are not required to mandate
registration for juveniles who are adjudicated delinquent--as opposed
to adults convicted of crimes and juveniles convicted as adults--even
if the conduct on which the juvenile delinquency adjudication is based
would constitute an offense giving rise to a registration requirement
if engaged in by an adult. However, states may require registration for
juvenile delinquents, and the conviction of a juvenile who is
prosecuted as an adult does count as a conviction for purposes of the
Act's registration requirements.
3. Tribal offenders. The Act does not impose any requirements
relating to registration of persons convicted of sex offenses in Indian
tribal courts. However, a sex offender convicted in an Indian tribal
court whose presence is unknown to state authorities or Indian tribal
authorities raises the same public safety concern as an unregistered
offender convicted of a similar offense in a state court. States are
accordingly encouraged to require registration for sex offenders
subject to their jurisdiction who were convicted in Indian tribal
courts and to work with tribal authorities to ensure effective
registration for such persons.
4. Protected witnesses. The Act requires current address
registration but does not dictate under what name a person must be
required to register. Hence, the Act does not preclude states from
taking measures for the security of registrants who have been provided
new identities and relocated under the federal witness security program
(see 18 U.S.C. 3521 et seq.) or comparable state programs. A state may
provide that the registration system records will identify such a
registrant only by his or her new name and that the registration system
records will not include the true pre-relocation address of the
registrant or other information from which his or her original identity
or participation in a witness security program could be inferred.
States are encouraged to make provision in their laws and procedures
for the security of such registrants and to honor requests from the
United States Marshals Service and other agencies responsible for
witness protection to ensure that the identities of these registrants
are not compromised.
States should also be aware that 18 U.S.C. 3521(b)(1)(H), enacted
by section 115(a)(9) of CJSA, specifically authorizes the Attorney
General to
[[Page 33701]]
adopt regulations to ``protect the confidentiality of the identity and
location'' of protected witnesses who are subject to registration
requirements, ``including prescribing alternative procedures to those
otherwise provided by Federal or State law for registration and
tracking of such persons.'' The Attorney General's policy, to the
maximum extent allowed by security considerations, is to require the
registration of all federally protected witnesses who otherwise would
be required to register. However, in the Attorney General's discretion,
the Attorney General will decide on a case-by-case basis whether these
registrations will utilize new identities, modified listings, or other
special conditions or procedures that are warranted to avoid
inappropriately jeopardizing the safety of the protected witnesses.
II. Registration and Tracking Procedures; Penalties for
Registration Violations [September 12, 1997; Possible Two-Year
Extension]
Paragraphs (1)(A) and (2)(A) of subsection (b) of the Act set out
general duties for states in relation to offenders required to register
who are released from prison or who are placed on any form of post-
conviction supervised release (``parole, supervised release, or
probation''). The duties include taking registration information,
informing the offender of registration obligations, making the
information available at the state level and to local law enforcement,
and transmission of conviction data and fingerprints to the FBI.
Paragraphs (4)-(5) of subsection (b) of the Act contain requirements
that are designed to ensure that registration information will be
updated when the registrant changes address and that registrants will
continue to be required to register when they move from one state to
another during the registration period. Subsection (b)(3)(A) states
that ``State procedures shall provide for verification of address at
least annually.''
These requirements generally derive from the Wetterling Act as
originally enacted. The time for compliance is accordingly that
provided in 42 U.S.C. 14071(g)--Sept. 12, 1997, or Sept. 12, 1999, for
states which have received a two-year extension based on good faith
efforts to achieve compliance. However, one aspect of subsection
(b)(1)(A)--a requirement to inform offenders that they must register in
states where they work or attend school, in clause (iii)--derives from
the CJSA and consequently is subject to a longer deadline for
compliance as discussed in part V of these guidelines.
A. Initial Registration Procedures
1. Taking of registration information and informing offenders of
registration obligations. Subsection (b)(1)(A) provides that ``a State
prison officer, the court, or another responsible officer or official''
must carry out specified duties in relation to persons who are required
to register. The purpose of this provision is to ensure that offenders
are made aware of their registration obligations and to preclude
``honor systems'' in which the initial registration depends on the
offender's reporting the information on his own. States have discretion
under the Act concerning what types of officials or officers will be
made responsible for these initial registration functions.
The specific duties set out in subparagraph (A) of paragraph (1)
include: (i) informing the person of the duty to register and obtaining
the information required for registration (i.e., address information),
(ii) informing the person that he must report subsequent changes of
address in the manner provided by state law, (iii) informing the person
that if he moves to another state, he must report the change of address
in the manner provided by state law and comply with any registration
requirement in the new state of residence, (iv) obtaining fingerprints
and a photograph if they have not already been obtained and (v)
requiring the person to read and sign a form stating that these
requirements have been explained.
In addition, the CJSA amended subparagraph (A)(iii) to require that
the person be informed that he also must register in states where he
works or attends school. States must comply with this new requirement
by November 25, 2000 (subject to a possible two-year extension), as
explained in part V of these guidelines.
These informational requirements, like other requirements in the
Act, only define minimum standards. Hence, states may require more
extensive information from offenders. For example, the Act does not
require a state to obtain information about a registrant's expected
employment when it releases him, but a state may legitimately wish to
know if a convicted child molester is seeking or has obtained
employment that involves responsibility for the care of children.
As a second example, states are strongly encouraged to collect DNA
samples, where permitted under applicable legal standards, to be typed
and stored in state DNA databases. States are also urged to participate
in the Federal Bureau of Investigation's (FBI's) Combined DNA Index
System (CODIS). CODIS is the FBI's program of technical assistance to
state and local crime laboratories that allows them to store and match
DNA records from convicted offenders and crime scene evidence. The FBI
provides CODIS software, in addition to user support and training, free
of charge, to state and local crime laboratories for performing
forensic DNA analysis. CODIS permits DNA examiners in crime
laboratories to exchange forensic DNA data on an intrastate level and
will enable states to exchange DNA records among themselves through the
national CODIS system. Thus, collection of DNA samples and
participation in CODIS greatly enhance a state's capacity to
investigate and solve crimes involving biological evidence, especially,
serial and stranger rapes.
2. Transmission of registration information. Paragraph (2)(A) of
subsection (b) states, in part, that the registration information must
be promptly made available to a law enforcement agency having
jurisdiction where the registrant expects to reside and entered into
the appropriate state records system. The purpose of this provision is
to ensure that registration information will be available both to local
law enforcement and at the state level.
States have discretion under the Act concerning the specific
mechanisms and procedures for carrying out this requirement. For
example, a state may provide that the responsible official or officer
is to transmit the registration information concurrently to an
appropriate local law enforcement agency and to the agency responsible
for maintenance of the information at the state level, or may provide
that the information is to be provided in the first instance only to
the local agency or to the state agency, which then transmits it to the
other. States also have discretion concerning the form of notification
or transmission. For example, in meeting the requirement to make the
information available to a law enforcement agency where the registrant
will reside, permissible options include written notice, electronic
transmission of registration information, and provision of on-line
access to registration information.
While the Act generally leaves states discretion concerning
specific procedures for taking and transmitting registration
information, it does require that the information be ``promptly'' made
available to the appropriate recipient agencies (both state and local).
This requirement precludes procedures under which lengthy delays are
allowed
[[Page 33702]]
in the transmission or forwarding of the information. For example, in
relation to registrants released from prison, state procedures must
ensure: (1) that the registration information taken from the offender
will be transmitted prior to release or within a short time (e.g., five
days) thereafter, and (2) that there is no long delay in any subsequent
forwarding of the information required for compliance with the Act,
such as provision of the information to an appropriate local law
enforcement agency by a state agency if only the state agency receives
the information in the first instance.
The Act leaves states discretion in determining which state record
system is appropriate for storing registration information, and which
agency will be responsible at the state level for the maintenance of
this information. As discussed in Part VI of these guidelines, however,
states will be required effective November 25, 2000, to participate in
the National Sex Offender Registry (NSOR), which is administered by the
FBI. States can ensure that they will be able to freely exchange
registration information with the FBI's records systems and comply with
the requirement of participation in NSOR by making a ``criminal justice
agency'' as defined in 28 CFR 20.3(c) responsible for the registration
information at the state level. This continues to leave states with
broad discretion concerning the designation of responsibility for the
state registry, since ``criminal justice agency'' is defined broadly in
the rule and generally includes (inter alia) law enforcement agencies,
correctional and offender supervision agencies, and agencies
responsible for criminal identification activities or criminal history
records.
In addition to requiring procedures that ensure the prompt
availability of the initial registration information both to local law
enforcement and at the state level, paragraph (2)(A) of subsection (b)
requires the prompt transmission of conviction data and fingerprints of
registrants to the FBI. This should not be understood as requiring
duplicative transmission of conviction data and fingerprints to the FBI
at the time of initial registration if the state already has sent this
information to the FBI (e.g., at the time of conviction).
3. Fingerprinting. The final subsection of the Wetterling Act--
which should be designated as subsection (h) but is designated as a
second subsection (g) because of a technical drafting error in section
115(a)(3) of the CJSA--relates to a requirement under the Pam Lychner
Act that certain offenders register directly with the FBI. In
conjunction with other provisions of the Pam Lychner Act, it requires
that fingerprints be obtained from such offenders by the FBI or by a
local law enforcement official pursuant to regulations issued by the
Attorney General. However, section 115(a)(7) of the CJSA deferred the
effective date for direct FBI registration of certain offenders and
issuance of related regulations. Hence, the final subsection of the
Wetterling Act does not impose any requirements on the states at the
present time.
B. Change of Address Procedures
1. Intrastate moves. Subsection (b)(4) provides that registrants
are to report changes of address in the manner provided by state law.
It further provides that state procedures must ensure that the updated
address information is promptly made available to a law enforcement
agency having jurisdiction where the person will reside and entered
into the appropriate state records or data system.
The purpose of this provision is to ensure that current address
information will continue to be available both to local law enforcement
and at the state level. To comply with this part of the Act, states
must require registrants to report changes of address within the state
in a manner which ensures that information concerning the new address
will promptly be made available to local law enforcement in the new
place of residence and at the state level. Thus, states must require
registrants to report changes of address prior to moving, or by some
short time (e.g., 10 days) after moving.
States have discretion under the Act concerning specific mechanisms
and procedures for reporting the updated address information and
ensuring that it reaches the appropriate recipients. For example, many
states require the registrant to notify local law enforcement agencies
(e.g., local sheriffs' offices) in the place he is leaving and the
place to which he is going and then require one of these local agencies
to notify the agency responsible for maintenance of registration
information at the state level. Alternatively, a state may require the
registrant to directly notify a central registration agency at the
state level, which then makes the information available to an
appropriate local law enforcement agency. Another possibility is to
require the registrant to report the change of address to a third
party, such as a probation officer responsible for his supervision, who
then is responsible for notifying a law enforcement agency in the new
place of residence and the state registration agency.
The choice among these alternatives or the election of other
alternatives beyond those described is a matter of state discretion.
States will be in compliance as long as the procedures adopted ensure
the prompt availability of the updated address information to law
enforcement in the relevant local jurisdiction and at the state level.
2. Interstate moves. Subsection (b)(5) states that a registrant who
moves to another state must report the change of address to the
responsible agency in the state he is leaving and must comply with any
registration requirement in the new state of residence. It further
provides that the procedures of the state the registrant is leaving
must ensure that notice is provided promptly to an agency responsible
for registration in the new state of residence, if that state requires
registration.
The purpose of this provision is to ensure a gap-free nationwide
network of state registration programs that reliably tracks all
offenders throughout the applicable period of registration and ensures
that offenders cannot evade registration obligations by moving from one
state to another. Hence, a state's procedures must require the
registrant to report his departure to a responsible agency in the
state, and must provide for prompt notice of the registrant's move by
an agency in the state to the responsible registration authority in the
new state of residence. An ``honor system'' approach, under which it is
left to the registrant to notify the registration authority in the new
state of residence on his own, does not satisfy the Act's requirements.
As discussed in part I.D.1 of these guidelines, the Wetterling
Act's registration requirements ``follow the registrant'' if he moves
to another state, and any state in which he establishes residence must
include him in its registration program if registration is still
required under the Wetterling Act's standards. This includes requiring
the registrant to continue to register for at least the remainder of
the Act's minimum ten-year registration period and to register for life
if he is in a lifetime registration category under subsection (b)(6)(B)
of the Act. Hence, the state a registrant is leaving is strongly
encouraged to provide as part of its notice to the new state of
residence sufficiently detailed information concerning the registrant's
offenses and status to enable the new state to register him without
difficulty in the appropriate category and for the appropriate amount
of time.
[[Page 33703]]
C. Periodic Address Verification
Subsection (b)(3)(A) requires that state procedures provide for the
verification of registrants' addresses at least annually. The purpose
of the requirement of periodic address verification is to ensure that
the authorities will become aware if a registrant has moved away from
the registered address and has failed to report the change of address.
Such procedures are obviously important for effective tracking of sex
offenders and enforcement of registration requirements.
As a result of changes made by the CJSA amendments, the particular
approach to address verification is a matter of state discretion under
the Act. For example, some states verify addresses by having the
responsible state or local agency annually send to the registered
address a nonforwardable address verification form, which the
registrant is required to sign and return within 10 days or some other
limited period. This is one means by which states may comply with the
verification requirement under subsection (b)(3)(A). The legislative
history of the CJSA amendments to the Act noted other possible
approaches: ``A review of State sex offender registry laws indicates
that some States require registrants to appear in person periodically
at local law enforcement agencies to verify their address (and for such
purposes as photographing and fingerprinting). Some States assign
caseworkers to verify periodically that registrants still reside at the
registered address. These * * * procedures effectively verify
registrants' location, and impress on registrants that they are under
observation by the authorities, in addition to making law enforcement
agencies aware of the presence and identity of registered sex offenders
in their neighborhoods.'' H.R. Rep. No. 256, 105th Cong., 1st Sess. 17
(1997).
D. Penalties for Registration Violations
Subsection (d) provides that a person required to register under a
state program established pursuant to the Act who knowingly fails to
register and keep such registration current shall be subject to
criminal penalties. Accordingly, states that wish to comply with the
Act must have criminal provisions covering this situation.
The requirement of criminal penalties for registration violations
under the Act applies both to a state's own offenders who are required
to register and to persons convicted in other states who are required
to register because they have moved into the state to reside.
The Act neither requires states to allow a defense for offenders
who were unaware of their legal registration obligations nor precludes
states from doing so. As a practical matter, states can ensure that
offenders are aware of their obligations through consistent compliance
with the Act's provisions for advising offenders of registration
requirements at the time of release and obtaining a signed
acknowledgment that this information has been provided.
As discussed in part V of these guidelines, the Act as amended by
the CJSA includes provisions that are designed to promote the
registration of federal and military offenders and of non-resident
workers and students. The CJSA amendments did not apply the Act's
mandatory requirement of criminal penalties under state law for
registration violations to federal and military offenders who reside in
the state or to non-resident workers and students. However, Congress
recognized the desirability of fully incorporating such offenders into
state registration programs by statute, see H.R. Rep. No. 256, 105th
Cong., 1st Sess. 18 (1997), and the availability of substantial
sanctions for registration violations by all types of sex offenders is
important to realize the Act's objective of a comprehensive, nationwide
sex offender registration system. Hence, states are strongly encouraged
to provide criminal penalties for registration violations by all
offenders within the scope of the Act, regardless of whether the
registrant is present in the state as a resident, worker, or student,
and regardless of whether registration is premised on a conviction
under the law of a state or under federal or military law.
III. Release of Registration Information [September 12, 1997;
Possible Two-Year Extension]
Subsection (e) of the Act governs the disclosure of information
collected under state registration programs.
This part of the Act derives from the federal Megan's Law amendment
to the Wetterling Act (Pub. L. No. 104-145, 110 Stat. 1345), which is
subject to the same deadline for compliance as the original provisions
of the Act under 42 U.S.C. 14071(g). Hence, the deadline for compliance
is Sept. 12, 1997, or Sept. 12, 1999, for states which have received a
two-year extension based on good faith efforts to achieve compliance.
Paragraph (1) of subsection (e) provides that information collected
under a state registration program may be disclosed for any purpose
permitted under the laws of the state. Hence, there is no requirement
under the Act that registration information be treated as private or
confidential to any greater extent than the state may wish.
Paragraph (2) of subsection (e) provides that the state or any
agency authorized by the state shall release relevant information as
necessary to protect the public. To comply with this requirement, a
state must establish a conforming information release program that
applies to offenders required to register on the basis of convictions
occurring after the establishment of the program. States do not have to
apply new information release standards to offenders whose convictions
predate the establishment of a conforming program, but the Act does not
preclude states from applying such standards retroactively to offenders
convicted earlier if they so wish.
The principal objective of the information release requirement in
paragraph (2) of subsection (e) is to ensure that registration programs
will include means for members of the public to obtain information
concerning registered offenders that is necessary for the protection of
themselves or their families. Hence, a state cannot comply with the Act
by releasing registration information only to law enforcement agencies,
to other governmental or non-governmental agencies or organizations, to
prospective employers, or to the victims of registrants' offenses.
States also cannot comply by having purely permissive or discretionary
authority for officials to release registration information.
Information must be released to members of the public as necessary to
protect the public from registered offenders. This disclosure
requirement applies both in relation to offenders required to register
because of conviction for ``a criminal offense against a victim who is
a minor'' and those required to register because of conviction for a
``sexually violent offense.''
States do, however, retain discretion to make judgments concerning
the circumstances in which, and the extent to which, the disclosure of
registration information to the public is necessary for public safety
purposes and to specify standards and procedures for making these
determinations. Several different approaches to this issue appear in
existing state laws.
One type of approach, which is consistent with the requirements of
the Act, involves particularized risk assessments of registered
offenders, with differing degrees of information release based on the
degree of risk. For example, some states classify registered offenders
in this manner into risk levels, with registration information limited
to law enforcement uses for offenders in
[[Page 33704]]
the ``low risk'' level; notice to organizations with a particular
safety interest (such as schools and other child car entities) for
``medium risk'' offenders; and notice to neighbors for ``high risk''
offenders.
States also are free under the Act to make judgments concerning the
degree of danger posed by different types of offenders and to provide
information disclosure for all offenders (or only offenders) with
certain characteristics or in certain offense categories. For example,
states may decide to focus particularly on child molesters, in light of
the vulnerability of the potential victim class, and on recidivists, in
light of the threat posed by offenders who persistently commit sexual
offenses.
Another approach by which states can comply with the Act is to make
information accessible to members of the public on request. This may be
done, for example, by making registration lists open for inspection by
the public, or by establishing procedures to provide information
concerning the registration status of identified individuals in
response to requests by members of the public. As with proactive
notification systems, states that have information-on-request systems
may make judgments about which registered offenders or classes of
registered offenders should be covered and what information will be
disclosed concerning these offenders.
States are encouraged to involve victims and victim advocates in
the development of their information release programs, and in the
process for particularized risk assessments of registrants if the state
program involves such assessments.
A proviso at the end of paragraph (2) of subsection (e) states that
the identity of the victim of an offense that requires registration
under the Act shall not be released. This proviso safeguards victim
privacy by prohibiting disclosure of victim identity to the general
public in the context of information release programs for registered
offenders. It does not bar the dissemination of victim identity
information for law enforcement or other governmental purposes (as
opposed to disclosure to the public) and does not require that a state
limit maintenance of or access to victim identity information in public
records (such as police and court records) that exist independently of
the registration system. Because the purpose of the proviso is to
protect the privacy of victims, its restriction may be waived at the
victim's option.
So long as the victim is not identified, the proviso in paragraph
(2) does not bar including information concerning the characteristics
of the victim and the nature and circumstances of the offense in
information release programs for registered offenders. For example,
states are not barred by the proviso from releasing such information as
victim age and gender, a description of the offender's conduct, and the
geographic area where the offense occurred. However, states are
encouraged to avoid unnecessarily including information that may
inadvertently result in the victim's identity becoming known, such as
identifying a specific familial relationship between the offender and a
victim who still lives in the area.
Concerns have been raised that the disclosure of registration
information to the public under ``community notification'' programs may
result in criminal acts or other reprisals against registrants. While
currently available information does not indicate that this has been a
significant problem under state programs, states are encouraged to
consider including measures in their programs to minimize any
possibility of misuse of the information released under the program.
For example, some states include in their informational notices
statements that the information is provided only for legitimate
protective purposes, and that criminal acts against registrants will
result in prosecution. As a further example, some states provide
special training for officers responsible for community notification
and/or hold community meetings in connection with the provision of
notice to the community concerning a registrant's presence.
IV. Special Registration Requirements Under The Pam Lychner Act for
Recidivists and Aggravated Offenders [October 2, 1999; Possible
Two-Year Extension]
Subsection (b)(6)(B)(i)-(ii) of the Act requires lifetime
registration for persons in two categories: (1) registrants who have a
prior conviction for an offense for which registration is required by
the Act, and (2) registrants who have been convicted of an ``aggravated
offense.''
This requirement derives from an amendment to the Wetterling Act
enacted by the Pam Lychner Act. The time for compliance is accordingly
that provided in section 10(b) of the Pam Lychner Act--Oct. 2, 1999,
subject to a possible two-year extension for states making good faith
efforts to come into compliance.
Subsection (b)(6)(B)(i) requires lifetime registration for certain
recidivist. States can comply with this provision by requiring
offenders to register for life where the following conditions are
satisfied: (1) the current offense is one for which registration is
required by the Act--i.e., an offense in the range of offenses
specified in subsection (a)(3)(A)-(B) or a comparable range of
offenses, and (2) the offender has a prior conviction for an offense
for which registration is required by the Act.
Subsection (b)(6)(B)(ii) requires lifetime registration for persons
convicted of an ``aggravated offense,'' even on a first conviction.
``Aggravated offense'' refers to state offenses comparable to
aggravated sexual abuse as defined in federal law (18 U.S.C. 2241),
which principally encompasses: (1) engaging in sexual acts involving
penetration with victims of any age through the use of force or the
threat of serious violence, and (2) engaging in sexual acts involving
penetration with victims below the age of 12. Hence, states can comply
with this provision by requiring lifetime registration for persons
convicted of the state offenses which cover such conduct.
A state is not in compliance with subsection (b)(6)(B) (i) or (ii)
if it has a procedure or authorization for terminating the registration
of convicted offenders within the scope of these provisions at any
point in their lifetimes. However, if the underlying conviction is
reversed, vacated, or set aside, or if the registrant is pardoned,
registration (or continued registration) is not required under the Act.
Likewise, if the applicability of the lifetime registration requirement
is premised on a prior conviction pursuant to subsection (b)(6)(B)(i),
it become inapplicable if the prior conviction is reversed, vacated, or
set aside, or if the registrant is pardoned for the prior conviction
offense.
The proviso in subsection (b)(6) that registration need not be
required ``during ensuing periods of incarceration'' applies to
registrants subject to lifetime registration. Hence, states are not
required to carry out address registration and verification procedures
for such registrants during subsequent periods in which the registrant
is imprisoned or civilly committed. To comply with the Act, a state
that does waive registration for such registrants during subsequent
criminal or civil confinement must require that registration resume
when the registrant is released.
[[Page 33705]]
V. Special Registration Requirements Under The CJSA Amendments Relating
to Sexually Violent Predators. Federal and Military Offenders, and Non-
Resident Workers and Students [November 25, 2000; Possible Two-Year
Extension]
Subsections (a)(2), (a)(3)(C)-(E), (b)(1)(B), and (b)(6)(B)(iii) of
the Act prescribe heightened registration requirements for persons who
are determined to be ``sexually violent predators'' under specified
procedures. These provisions also, however, allow the approval of
alternative procedures and of alternative measures of comparable or
greater effectiveness in protecting the public.
Subsection (b)(7) of the Act requires states, as provided in these
guidelines, to ensure that procedures are in place to accept
registration information from (1) residents convicted of a federal
offense or sentenced by a court martial, and (2) nonresident offenders
who have crossed into another state in order to work or attend school.
Because these requirements, in their current form, derive from the
CJSA, the time for compliance is that provided in section 115(c)(2) of
the CJSA--Nov. 25, 2000, subject to a possible two-year extension for
states making good faith efforts to come into compliance.
A. Heightened Sexually Violent Predator Registration or Alternative
Measures
1. Heightened sexually violent predator registration. Subparagraphs
(B)-(E) of subsection (a)(3) contain the Act's definition of ``sexually
violent predator'' and related definitions. Subparagraph (C) defines
``sexually violent predator'' to mean a person who has been convicted
of a sexually violent offense and who suffers from a medical
abnormality or personality disorder that makes the person likely to
engage in predatory sexually violent offense. Subparagraph (D)
essentially defines ``medical abnormality'' to mean a condition
involving a disposition to commit criminal sexual acts of such a degree
that it makes the person a menace to others. The definition of
``personality disorder'' is a matter of state discretion since the Act
includes no specification on this point. For example, a state may
choose to utilize the definition of ``personality disorder'' that
appears in the Diagnostic and Statistical Manual of Medical Disorders:
DSM-IV. American Psychiatric Association, Diagnostic and Statistical
Manual of Medical Disorders (4th ed. 1994). Subparagraph (E) defines
``predatory'' to mean an act directed at a stranger or at a person with
whom a relationship has been established or promoted for the primary
purpose of victimization.
A state that wishes to comply with the Act's provisions concerning
sexually violent predator registration must adopt some approach to
deciding when a determination will be sought as to whether a particular
offender is a sexually violent predator. However, the specifics are a
matter of state discretion. For example, a state might commit the
decision whether to seek classification of an offender as a sexually
violent predator to the judgment of prosecutors, or might provide that
a determination of this question should be undertaken routinely when a
person is convicted of a sexually violent offense and has a prior
history of committing such crimes. Similarly, the Act affords states
discretion with regard to the timing of the determination whether an
offender is a ``sexually violent predator.'' A state may, but need not,
provide that a determination on this issue be made at the time of
sentencing or as a part of the original sentence. It could, for
example, be made instead when the offender has served a term of
imprisonment and is about to be released from custody.
Subparagraphs (A) and (B) of subsection (a)(2) govern the
procedures for making the sexually violent predator determination.
Subparagraph (A) states that the determination is to be made by a court
after considering the recommendation of a board composed of experts in
the behavior and treatment of sex offenders, victims' rights advocates,
and representatives of law enforcement agencies. However, subparagraph
(B) allows the Attorney General to waive these requirements where a
state has established alternative procedures or legal standards for
designating a person as a sexually violent predator.
The waiver authority under subparagraph (B), which was added by the
CJSA amendments, recognizes that a judicial determination informed by
the recommendations of a board of mixed composition is not the only
approach states may validly adopt to secure appropriate input and make
fair determinations. For example, at a sentencing proceeding or other
hearing to determine sexually violent predator status, a state might
provide for input concerning psychological assessment through expert
testimony; input from the law enforcement perspective through the
prosecutor's presentation; and input from the perspective of victims
through allocation or testimony by the victim(s) of the underlying
sexually violent offense or offenses. Moreover, judicial determinations
concerning sexually violent predator status are not the only legitimate
approach since, for example, a state may decide to assign
responsibility for such determinations to a parole board or other
administrative agency with adjudicatory functions. Because there are
many valid approaches that states may devise, the particular approach
taken to determining whether an offender is a sexually violent predator
as defined in the Act will be treated as a matter of state discretion
under the Act.
For registrants who have been determined to be ``sexually violent
predators'' under the Act's definitions, the Act prescribes three
special registration requirements:
First, subsection (b)(1)(B) provides that the initial registration
information obtained from a sexually violent predator must include
``the name of the person, identifying factors, anticipated future
residence, offense history, and documentation of any treatment received
for the mental abnormality or personality disorder of the person.'' In
determining whether offenders have received treatment, the officers
responsible for obtaining the initial registration information may rely
on information that is readily available to them, either from existing
records or the offender, and may comply with the requirement to
document an offender's treatment history simply by noting that the
offender received treatment. If states want to require the inclusion of
more detailed information about offenders' treatment history, however,
they are free to do so.
Second, subsection (b)(3)(B) requires quarterly address
verification for sexually violent predators, as opposed to the annual
address verification required for registrants generally under
subsection (b)(3)(A). Part II.C of these guidelines provides a general
explanation of the Act's address verification requirement.
Third, subsection (b)(6)(B)(iii) requires lifetime registration for
sexually violent predators. This requirement is unqualified. While
language in subsection (a)(1)(B) of the Act alludes to possible
termination of sexually violent predator status under subsection
(b)(6)(B), this is a relic of earlier versions of the Act that has no
referent in the Act's current text following the Pam Lychner Act and
CJSA amendments.
Hence, for example, a state is not in compliance with the Act's
requirements if it allows registration to be terminated for a person
who has been found to be a sexually violent predator on the basis of a
later determination that the person is no longer a sexually violent
predator
[[Page 33706]]
or has been rehabilitated. However, if the underlying conviction for a
sexually violent offense is reversed, vacated, or set aside, or if the
registrant is pardoned for the offense, registration (or continued
registration) as a sexually violent predator is not required under the
Act. Moreover, the proviso in subsection (b)(6) that registration need
not be required ``during ensuing periods of incarceration'' applies to
sexually violent predators. Hence, states are not required to carry out
address registration and verification procedures when a sexually
violent predator is subsequently imprisoned or civilly committed. To
comply with the Act, a state that does waive registration for sexually
violent predators during subsequent criminal or civil confinement must
require that registration resume when the registrant is released.
2. Alternative measures of comparable or greater effectiveness.
Subparagraph (C) of subsection (a)(2) authorizes the Attorney General
to approve ``alternative measures of comparable or greater
effectiveness in protecting the public from unusually dangerous or
recidivistic sexual offenders in lieu of the specific measures set
forth in this section regarding sexually violent predators.'' This
authorization was added by the CJSA, reflecting Congress's recognition
that few states followed the Act's specific provisions concerning
sexually violent predators; that it would be difficult for many states
to do so; and that states can ``incorporate other features into their
systems which further the objective of protecting the public from
particularly dangerous sex offenders.'' H.R. Rep. No. 256, 105th Cong.,
1st Sess. 15 (1997).
The legislative history of the CJSA identified a number of factors
that would be pertinent to a determination whether a state has adopted
alternative measures of comparable or greater effectiveness:
States can * * * incorporate other features into their systems which
further the objective of protecting the public from particularly
dangerous sex offenders. For example, some State programs have
registration periods for broadly defined categories of sex offenders
which are much longer than the basic 10-year registration period under
the Wetterling Act. This may provide more protection for the public
than heightened registration requirements limited to a relatively small
class of offenders who would be classified as sexually violent
predators. * * * Moreover, some States require civil commitment,
lifetime supervision, or very long periods of imprisonment for sexually
violent predators or broader classes of serious sex offenders.
[Subsection (a)(2)] makes it clear that alternative approaches like
these can be approved if a State's approach is equally effective or
more effective in protecting the public from particularly dangerous sex
offenders.
H.R. Rep. No. 256 105th Cong., 1st Sess. 15 (1997).
Hence, for example, the reviewing authority will approve a state
system as providing alternative measures ``of comparable or greater
effectiveness'' if the state applies the principal heightened
registration requirements under the Act's sexually violent predator
provisons--i.e., lifetime registration and quarterly address
verification--to a class of offenders that is generally broader than
``sexually violent predators.'' Since ``sexually violent predators''
are, by definition, a subclass of persons convicted of a ``sexually
violent offense,'' a state has obviously adopted an alternative measure
of comparable or greater effectiveness if it requires lifetime
registration and quarterly address verification uniformly for persons
in the broader class of those convicted of a ``sexually violent
offense.''
For states that follow other approaches, the determination whether
``alternative measures of comparable or greater effectiveness'' have
been adopted will be made on a case-by-case basis.
B. Federal and Military Offenders: Non-Resident Workers and Students
Subsection (b)(7) of the Act requires states, as provided in these
guidelines, to ensure that procedures are in place to accept
registration information from: (1) residents convicted of federal
offenses or sentenced by courts martial, and (2) nonresident offenders
who cross into other states in order to work or attend school.
This requirement was added to close two gaps in the Wetterling Act
standards for registration programs. First, Congress was concerned
about the lack of any provision for registration of persons convicted
of federal sex offenses--such as those defined in chapters 109A, 110,
and 117 of title 18, United States Code--and the lack of any provision
for registration of persons convicted of sexual offenses under the
Uniform Code of Military Justice while in the armed forces. Second,
Congress was concerned about the commission of offenses by registered
offenders at or near their place of work or study, where the local
authorities are unaware of the offenders' presence in those areas
because they reside in a different state. The new provisions relating
to registration of federal and military offenders, and non-resident
workers and students, were added to address these concerns.
1. Federal and military offenders. In relation to federal and
military offenders, states can comply with the new requirement under
subsection (b)(7) by accepting in their registration programs address
information from such offenders who reside in the state, where the
federal convictions or court martial sentence was for a criminal
offense against a victim who is a minor or a sexually violent offense
(as defined in the Act).
Congress did not otherwise make the Act's mandatory standards for
state registration programs applicable to federal and military
offenders. Congress, however, did note that ``it would be preferable
that States fully incorporate federal offenders [and] persons sentenced
by courts martial * * * into their registration and notification
programs by statute.'' H.R. Rep. No. 256, 105th Cong., 1st Sess. 18
(1997). As a practical matter, the presence in a state of a sex
offender whose whereabouts are unknown to the authorities poses the
same potential danger to the public, regardless of whether the offender
was convicted in a state court for a state offense or for a comparable
offense under federal or military law.
Hence, as a matter of sound policy, states are strongly encouraged
to subject federal and military offenders to the full panoply of
registration requirements and procedures established for state
offenders, including reporting of subsequent changes of address
following the initial registration, periodic address verification,
criminal penalties for registration violations, and release of
registration information as necessary for protection of the public.
Some states currently put sex offenders convicted in federal or
military courts on the same footing as state offenders under their
registration programs; all states are encouraged to adopt this
approach.
States should be aware that the CJSA enacted provisions that impose
complementary obligations on federal authorities to facilitate state
registration of federal and military offenders. Specifically,
provisions in section 115(a)(8) of the CJSA require federal and
military authorities to notify state and local law enforcement and
registration agencies concerning the release or subsequent movement to
their areas of federal and military sex offenders. In addition, under
amendments in section 115(a)(8) of the CJSA, federal sex
[[Page 33707]]
offenders are required to register in states where they reside, work,
or attend school as mandatory conditions of probation, parole, and post
imprisonment supervised release. State and local officers accordingly
are encouraged to notify federal authorities of any failure by such
offenders to register, so that appropriate action can be taken with
respect to their federal release status. States also should be aware
that section 115 of the CJSA amended the federal failure-to-register
offense (42 U.S.C. 14072(i)) in order to bring within its scope federal
and military sex offenders who fail to register.
2. Non-resident workers and students. Subsection (b)(7)(B) of the
Act requires states to accept registration information from non-
residents who have come into the state to work or attend school.
Related provisions appear in subsections (a)(3)(F)-(G) and (c). As
specified in these provisions, the workers from whom registration
information must be accepted include those who have any sort of full-
time or part-time employment in the state, with or without
compensation, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year. The students from whom
registration information must be accepted include those who are
enrolled in any type of school in the state on a full-time or part-time
basis.
The Act's provisions regarding non-resident workers and students
sometimes refer to persons who cross into another state ``in order to
work or attend school'' and sometimes refer to persons who are may be
in another state where the person ``is employed,'' ``carries on a
vocation,'' or ``is a student.'' These are merely terminological
variations; the Act's various references to non-resident workers and
students all refer to the same classes of persons, as defined above.
States can comply with the Act's requirement to accept registration
information from non-resident workers and students by accepting
registration information from such persons, where the person would be
required to register in his state of residence under the Act's
standards. The ``registration information'' the state must accept from
such a registrant to comply with the Act is, at a minimum, information
concerning the registrant's place of employment or the school attended
in the state and his address in his state of residence. States are free
to accept or require more extensive information if they wish, such as
information concerning any place of lodging the registrant may have in
the state for purposes of work or school attendance.
Congress did not otherwise make the Act's mandatory standards for
state registration programs applicable to non-resident workers and
students, but did note that ``it would be preferable that States fully
incorporate * * * offenders crossing State borders to work or go to
school * * * into their registration and notification programs by
statute.'' H.R. Rep. No. 256, 105th Cong., 1st Sess. 18 (1997). States
are encouraged to include measures in their registration systems that
will ensure effective registration of non-resident workers and
students, including provision of criminal penalties under state law for
such offenders who fail to register and release of registration
information concerning such offenders as necessary for public safety.
States also should be aware that section 115 of the CJSA amended the
federal failure-to-register offense (42 U.S.C. 14072(i)) in order to
bring within its scope non-resident workers and students who fail to
register.
In addition to requiring states to accept registration information
from non-resident workers and students, the CJSA amendments added, as
part of subsection (b)(1)(A)(iii), a requirement to inform a registrant
in the initial registration process that he must register in a state
where he is employed, carries on a vocation, or is a student. As
discussed in Part II.A of these guidelines, subsection (b)(1)(A) of the
Act has always required that offenders be informed of the general duty
to register, of the duty to report subsequent changes of address, and
of the duty to register in any state of residence. States can readily
supplement their procedures for informing offenders of registration
obligations to include the information that the offender also must
register in any state where he is employed, carries on a vocation, or
is a student.
VI. Participation in The National Sex Offender Registry [November
25, 2000; Possible Two-Year Extension]
Subsection (b)(2)(B) of the Act requires states to ``participate in
the national database established under section 14072(b)''--i.e., the
National Sex Offender Registry (NSOR)--``in accordance with guidelines
issued by the Attorney General, including transmission of current
address information and other information on registrants to the extent
provided by the guidelines.''
This requirement derives from the amendment of the Wetterling Act
by section 115(a)(2)(B) of CJSA. The time for compliance is accordingly
that provided in section 115(c)(2) of CJSA--Nov. 25, 2000, subject to a
possible two-year extension for states making good faith efforts to
come into compliance. At the present time, many states are already
participating in NSOR, and the remainder are strongly encouraged to do
so as promptly as possible.
States should be aware that participation in NSOR is a condition
for determining that a state has a ``minimally sufficient'' sex
offender registration program as defined in 42 U.S.C. 14072(a)(3).
Pursuant to section 115(a)(7) of the CJSA, states have until October 2,
1999, to establish ``minimally sufficient'' programs (subject to a
possible two-year extension for states making good faith efforts). In
states that have not established ``minimally sufficient'' programs by
that time, the FBI will be required to directly register sex offenders
convicted in the state, and there will be correlative responsibilities
on such states to facilitate FBI registration of their sex offenders as
provided in 42 U.S.C. 14072(h)(1) and (k). Hence, the failure of a
state to participate in NSOR by October 2, 1999, may result in
otherwise avoidable federal intervention in sex offender registration
in the state.
States should also be aware that under the National Sex Offender
Registry Assistance Program (NSOR-AP), funding is available from the
Bureau of Justice Statistics of the United States Department of Justice
to facilitate state participation in NSOR and upgrade state sex
offender registries. States desiring additional information concerning
this funding program should contact the Bureau of Justice Statistics.
In accordance with 42 U.S.C. 14072(b), the FBI has established an
interim version of NSOR (the ``Interim Registry'') to track the
whereabouts and movement of persons required to register under sex
offender registration programs. The Interim Registry functions as a
``pointer'' system, indicating on an individual's FBI Identification
Record the fact that the individual is a registered sex offender and
the name and location of the state agency that maintains the offender's
registration information.
The FBI will be issuing regulations concerning state participation
in NSOR. To participate in NSOR under current procedures, states must
submit the following information on registrants to the FBI: the name
under which the person is registered; the registering agency's name and
location; the date of registration; and the date registration expires.
Upon the submission of this information, a notice indicating that an
individual is a registered sex offender and listing the information
will be
[[Page 33708]]
included on the individual's FBI Identification Record.
The FBI is in the process of modifying the National Crime
Information Center (NCIC) to establish a new crime information system
which will be known as ``NCIC 2000.'' NCIC 2000, which is expected to
go on-line in mid-1999, will include a Convicted Sexual Offender
Registry File that will serve as the permanent National Sex Offender
Registry (the ``Permanent Registry''). In the Permanent Registry, sex
offender registration information will be entered directly into the
NCIC Convicted Sexual Offender Registry File, via the NCIC
communication circuit, and will include such information as the
offender's name and address and details regarding the conviction
resulting in registration. States will receive further guidance
concerning participation in the Permanent Registry through future
modifications of regulations and guidelines.
VII. Good Faith Immunity [Available to States Immediately]
Subsection (f) states that law enforcement agencies, employees of
law enforcement agencies, independent contractors acting at the
direction of such agencies, and state officials shall be immune from
liability for good faith conduct under the Act, Inclusion of this
provision in the Act was necessary to protect state actors and
contractors involved in registration and notification programs for
unwarranted exposure to liability, since the states cannot legislate
immunities to liability under federal causes of action. This part of
the Act does not impose any requirement on states and the character of
state law provisions regarding the scope of immunity or liability will
not be considered in the compliance review under the Act.
VIII. Compliance Review; Consequences of Non-Compliance
The time states have to comply with the Act's requirements depends
on the legislation from which the requirements derive, as specified in
these guidelines. Thus, the initial deadline for complying with
requirements derived from the Wetterling Act as originally enacted or
from Megan's Law was September 12, 1997, and the deadline is now
September 12, 1999, for states that have received a two-year extension
based on good faith efforts to achieve compliance. Requirements
deriving from the Pam Lychner Act must be complied with by October 2,
1999, subject to a possible two-year extension for states making good
faith efforts to comply. Requirements deriving from the CJSA must be
complied with by November 25, 2000, subject to a possible two-year
extension for states making good faith efforts to comply.
These deadlines set outer limits for state compliance to avoid a
reduction of Byrne Formula Grant funding. States are strongly
encouraged to attempt to achieve compliance with all parts of the Act
as quickly as possible to maximize the benefits of the Act's reforms.
States that fail to come into compliance within the specified time
periods will be subject to a mandatory 10% reduction of Byrne Formula
Grant funding, and any funds that are not allocated to noncomplying
states will be reallocated to states that are in compliance. If a
state's funding has been reduced because it has failed to comply with
the Act's requirements by an applicable deadline, the state may regain
eligibility for full funding in later program years by establishing
compliance with all applicable requirements of the Act in such later
years.
States are encouraged to submit information concerning existing and
proposed sex offender registration provisions to the Bureau of Justice
Assistance with as much lead-time as possible. This will enable the
reviewing authority to assess the status of state compliance with the
Act and to suggest any necessary changes to achieve compliance before
the funding reduction goes into effect. At the latest, state
submissions must be provided on the following timetable:
To maintain eligiblity for full Byrne Formula Grant funding
following September 12, 1999--the end of the implementation period for
the Act's original requirements and Megan's Law, for states that have
received the two-year ``good faith'' extension--such states must submit
to the Bureau of Justice Assistance by July 12, 1999, information that
shows compliance, in the reviewing authority's judgment, with the
requirements described in parts I, II, and III of these guidelines.
To maintain eligibility for full Byrne Formula Grant funding
following October 2, 1999--the end of the implementation period for the
Pam Lychner Act requirements, absent an extension--states must submit
to the Bureau of Justice Assistance by July 12, 1999, information that
shows compliance, in the reviewing authority's judgment, with the
requirements described in part IV of these guidelines, or a written
explanation of why compliance cannot be achieved within that period and
a description of the good faith efforts that justify an extension of
time (but not more than two years) for achieving compliance.
To maintain eligibility for full Byrne Grant funding following
November 25, 2000--the end of the implementation period for the CJSA
requirements, absent an extension--states must submit to the Bureau of
Justice Assistance by September 25, 2000, information that shows
compliance, in the reviewing authority's judgment, with the
requirements described in the parts V and VI of these guidelines, or a
written explanation of why compliance cannot be achieved within that
period and a description of the good faith efforts that justify an
extension of time (but not more than two years) for achieving
compliance.
After the reviewing authority has determined that a state is in
compliance with the Act, the state will be required as part of the
Byrne Formula Grant application process in subsequent program years to
certify that the state remains in compliance with the Act.
Dated: June 13, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-16391 Filed 6-18-98; 8:45 am]
BILLING CODE 4410-BB-M
