97-19047. Final Guidelines for Megan's Law and the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act  

  • [Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
    [Notices]
    [Pages 39009-39020]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-19047]
    
    
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    DEPARTMENT OF JUSTICE
    
    Office of the Attorney General
    [A.G. Order No. 2095-97]
    RIN 1105-AA50
    
    
    Final Guidelines for Megan's Law and the Jacob Wetterling Crimes 
    Against Children and Sexually Violent Offender Registration Act
    
    AGENCY: Department of Justice.
    
    ACTION: Final guidelines.
    
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    [[Page 39010]]
    
    SUMMARY: The United States Department of Justice (DOJ) is publishing 
    Final Guidelines to implement Megan's Law and the Jacob Wetterling 
    Crimes Against Children and Sexually Violent Offender Registration Act.
    
    EFFECTIVE DATE: July 21, 1997.
    
    FOR FURTHER INFORMATION CONTACT:
    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: Megan's Law, Public Law 104-145, 110 Stat. 
    1345, amended subsection (d) of section 170101 of the Violent Crime 
    Control and Law Enforcement Act of 1994, Public Law 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 (hereafter referred to as the ``Jacob Wetterling Act'' 
    or ``the Act''). The provisions of the Jacob Wetterling Act amended by 
    Megan's Law relate to the release of registration information. The 
    changes in these provisions require conforming changes in the final 
    guidelines published by the Department of Justice on April 4, 1996 in 
    the Federal Register (61 FR 15110) to implement the Jacob Wetterling 
    Act. In addition, other changes in the guidelines are necessary to 
    resolve questions that have arisen in the Justice Department's review 
    of state sex offender registration programs and discussion of 
    compliance requirements with the states.
        Megan's Law makes two changes in the Jacob Wetterling Act: (1) It 
    eliminates a general requirement that information collected under state 
    registration programs be treated as private data, and (2) it 
    substitutes mandatory language for previously permissive language 
    concerning the release of relevant information that is necessary to 
    protect the public concerning registered offenders.
        The time frame for compliance with the Megan's Law amendment to the 
    Jacob Wetterling Act is the general time frame for compliance with the 
    Act specified in section 170101(f) (42 U.S.C. 14071(f))--three years 
    from the Act's original enactment date of September 13, 1994, subject 
    to a possible extension of two years for states which are making good 
    faith efforts to come into compliance with the Act. States that fail to 
    comply with the Megan's Law provisions or other provisions of the Jacob 
    Wetterling Act within the specified time frame will be subject to a 
    mandatory 10% reduction of Byrne Formula Grant funding (under 42 U.S.C. 
    3756), and any funds that are not allocated to noncomplying states will 
    be reallocated to states that are in compliance.
        In addition to changes reflecting the Megan's Law amendment, these 
    final guidelines include changes that clarify other provisions of the 
    Jacob Wetterling Act. Since the publication of the original guidelines 
    for he Act, a large majority of the states have submitted enacted or 
    proposed sec offender registration provisions to the Department of 
    Justice for preliminary review concerning compliance with the Act. This 
    review process has raised a number of questions which indicate that 
    additional guidance would be helpful. This revision of the guidelines 
    attempts to address these questions. The main changes or additional 
    clarifications concern the following issues:
        1. The Jacob Wetterling Act provides that registration information 
    is initially to be taken and submitted by ``the court'' or a ``prison 
    officer.'' 42 U.S.C. 14071(b) (1) & (2). The purpose of this 
    requirement is to ensure that a responsible official will obtain 
    registration information near the time of release and transmit it to 
    the registration agency. Some states assign this responsibility to 
    probation or parole officers, who have functions relating to 
    correctional matters or the execution of sentences, but who might not 
    be regarded as prison officers or courts on a narrow reading of those 
    terms. The revised guidelines make it clear that such assignments of 
    responsibility to such officers are permissible under the Act.
        2. The Act provides that, if a person required to register is 
    released, then the responsible officer must obtain the registration 
    information and forward it to the registration agency with three days 
    of receipt. 42 U.S.C. 14071(b)(2). Many states, however, do not wait 
    until the day of release to obtain registration information, but 
    require offenders to provide this information some period of time (e.g. 
    30 days or 60 days) prior to release. The revised guidelines make it 
    clear that, under the latter type of procedure, it is adequate if the 
    registration information is forwarded no later than three days after 
    release because that equally ensures the submission of registration 
    information within the time frame contemplated by the Act.
        3. As noted above, the Act requires that a responsible officer 
    obtain and transmit the initial registration information. Some states 
    provide that the responsible officer is to send the initial 
    registration information concurrently to the state registration agency 
    and to the appropriate local law enforcement agency, as opposed to 
    transmitting the information exclusively to the state registration 
    agency, which would then forward it to the appropriate local law 
    enforcement agency. The revised guidelines make it clear that the 
    concurrent transmission approach is allowed because that approach also 
    results in the availability of the registration information at the 
    state and local levels as contemplated by the Act.
        4. The Act requires registrants to report changes of address within 
    10 days. 42 U.S.C. 14071(b)(1)(A). Most state registration programs do 
    not require registrants to send change of address information directly 
    to the state registration agency but provide that this information is 
    to be submitted to a local law enforcement agency or other 
    intermediary, which is then required to forward it to the state 
    registration agency. The revised guidelines make it clear that 
    providing for the submission of change of address information in this 
    manner (through an intermediary) is allowed under the Act. Likewise, a 
    state could provide for the submission of initial registration 
    information by the responsible prison officer or court through an 
    intermediary. See 42 U.S.C. 14071(b)(2).
        5. The Act requires that the state registration agency notify local 
    law enforcement agencies concerning the release or subsequent movement 
    of registered offenders to their areas. 42 U.S.C. 14071(b) (2) and (4). 
    The revised guidelines make it clear that states have discretion 
    concerning the form this notice will take. Permissible options include, 
    for example, written notice, electronic or telephonic transmission of 
    registration information, and provision of on-line access to 
    registration information.
        6. The Act requires periodic address verification for registered 
    offenders, through the return of nonforwardable address verification 
    forms that are sent to the registered address. 42 U.S.C. 14071(b)(3). 
    Some state registration programs do not have the state registration 
    agency directly send or receive address verification forms but delegate 
    that function to local law enforcement agencies. The revised guidelines 
    clarify that this approach to periodic address verification is 
    permitted under the Act, as long as state procedures ensure that the 
    state registration agency will be promptly made aware if the 
    verification process discloses that the registrant is no longer at the 
    registered address. The revised guidelines also clarify that states, if 
    they wish, may require personal appearance of the registrant at a law 
    enforcement
    
    [[Page 39011]]
    
    agency to return an address verification form, as opposed to return of 
    the form through the mail.
        7. The Act contemplates the creation of a gap-free network of state 
    registration programs, under which offenders who are registered in one 
    state cannot escape registration requirements merely by moving to 
    another state. See, e.g., 42 U.S.C. 14071(b) (4) and (5). The revised 
    guidelines effectuate this legislative objective by more clearly 
    defining the obligation of states to register out-of-state offenders 
    who move into the state.
        8. The Act requires that released convicted offenders in the 
    relevant offense categories be subject to registration and period 
    address verification for at least 10 years. 42 U.S.C. 14071(b)(6). This 
    requirement is unqualified, and the revised guidelines make it clear 
    that a state is not in compliance if it allows registration obligations 
    to be waived or terminated before the end of this 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.
        9. Where a person required to register is re-incarcerated for 
    another offense or civilly committed, some states toll registration 
    requirements during the subsequent incarceration or commitment. The 
    revised guidelines clarify that this approach is consistent with the 
    Act because tolling the registration period during confinement results 
    in longer aggregate registration while the registrant is released. In 
    addition, it is unnecessary to carry out address registration and 
    verification procedures during confinement and doing so does not 
    further the Act's objective of protecting the public from released 
    offenders.
        10. The Act prescribes more stringent registration requirements for 
    a subclass of offenders characterized as ``sexually violent 
    predators.'' See 42 U.S.C. 14071(a)(1) and (3)(C)-(E). Some states 
    require that sexually violent predators be civilly committed, as 
    opposed to being subject to more stringent registration requirements. 
    The revised guidelines clarify that this approach may be allowed 
    because it would be superfluous to carry out address registration and 
    verification procedures while such an offender is committed.
        11. The Act requires that the determination whether a person is (or 
    is no longer) a ``sexually violent predator'' be made by the sentencing 
    court. 42 U.S.C. 14071(a)(2). In light of the variation among states in 
    court structure and assignments of judicial responsibility, the revised 
    guidelines clarify that this requirement means only that the 
    determination must be made by a court whose decision is legally 
    competent to trigger the more stringent registration requirements 
    prescribed for sexually violent predators by the Act. It does not mean 
    that ``the sentencing court'' for purposes of the sexually violent 
    predator determination must be the same court in which the offender was 
    convicted for an underlying sexually violent offense.
        12. The Act requires registration by persons convicted of a 
    ``criminal offense against a victim who is a minor.'' 42 U.S.C. 
    14071(a)(1). One of the clauses in the Act's definition of this term 
    covers ``criminal sexual conduct toward a minor.'' 42 U.S.C. 
    14071(a)(3)(A)(iii). The revised guidelines state explicitly that this 
    includes incest offenses against minors. The Act's definition of 
    ``criminal offense against a victim who is a minor'' also includes two 
    clauses relating to solicitation offenses: ``solicitation of a minor to 
    engage in sexual conduct,'' and ``solicitation of a minor to practice 
    prostitution.'' 42 U.S.C. 14071(a)(3)(a)(iv) & (vi). The revised 
    guidelines provide greater detail in explaining the solicitation 
    offenses that state registration systems must cover to comply with 
    these provisions.
        13. The Act also requires registration by persons convicted of a 
    ``sexually violent offense.'' 42 U.S.C. 14071(a)(1). It essentially 
    provides that the term ``sexually violent offense'' means aggravated 
    sexual abuse and sexual abuse as described in federal law or the state 
    criminal code. 42 U.S.C. 14071(a)(3)(B). The revised guidelines clarify 
    that states may comply with this requirement either by covering 
    offenses that meet the federal law definition, or by covering 
    comparable offenses under state law. The availability of the latter 
    option is not limited to states that use the terms ``aggravated sexual 
    abuse'' and ``sexual abuse'' or other specific terminology in referring 
    to sex offenses in their criminal codes.
        14. The revised guidelines clarify that the Act's time limits for 
    reporting initial registration information and change of address 
    information refer to the time within which the information must be 
    submitted or sent, as opposed to the time within which it must be 
    received by the state registration agency.
        15. The Act requires criminal penalties for persons in the relevant 
    offense categories who knowingly fail to register or keep registration 
    information current. 42 U.S.C. 14071(c). The revised guidelines clarify 
    that this neither requires states to allow a defense for offenders who 
    were unaware of the legal obligation to register 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.
        16. The revised guidelines clarify that the Act does not preclude 
    states from taking measures for the security of registrants who have 
    been relocated and provided new identities under federal or state 
    witness protection programs because the Act does not require that the 
    registration system records include the registrant's original name or 
    the registrant's residence prior to the relocation.
        17. The revised guidelines encourage states to require registration 
    for all convicted offenders in the pertinent offense categories, 
    including offenders convicted in federal, military, and Indian tribal 
    courts, as well as offenders convicted in state courts.
        18. The revised guidelines encourage states to ensure that their 
    sex offender registration agencies are ``criminal justice agencies'' as 
    defined in 28 CFR 20.3(c), to permit the free exchange of registration 
    information between state registries and the FBI's records systems.
        Subsequent to the enactment of Megan's Law, congress enacted 
    additional legislation relating to sex offender tracking and 
    registration in the Pam Lychner Sexual Offender Tracking and 
    Identification Act of 1996, Public Law 104-236, 110 Stat. 3093 
    (hereafter referred to as the ``Pan Lychner Act''). The Pam Lychner Act 
    includes, inter alia, amendments to the Jacob Wetterling Act affecting 
    the duration of registration requirements, sexually violent predator 
    certification, fingerprinting of registered offenders, address 
    verification, and reporting of registration information to the FBI. The 
    changes made by the Pam Lychner Act will be the subject of future 
    guidelines. States have until three years from the Pan Lychner Act's 
    enactment date of October 3, 1996 to come into compliance with the 
    features of the Wetterling Act added by the Pam Lychner Act, subject to 
    a possible two-year extension. These new provisions are not addressed 
    in this publication.
    
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    Summary of Comments on the Proposed Guidelines
    
        On April 4, 1997, the U.S. Department of Justice published Proposed 
    Guidelines in the Federal Register (62 FR 16180) to implement Megan's 
    Law and the Jacob Wetterling Crimes Against Children and Sexually 
    Violent Offender Registration Act. The comment period expired on June 
    3, 1997.
        Following the publication of the Proposed Guidelines, the 
    Department received seven comment letters, primarily from state 
    officials and realtors' associations. These letters contained numerous 
    comments, questions and recommendations, all of which were considered 
    carefully in developing the Final Guidelines. A summary of the comments 
    and responses to them are provided in the following paragraphs.
    
    A. Notification Requirements
    
    1. Duty To Notify
        Three respondents expressed concern about the potential liability 
    of real estate professionals with regard to the notification 
    requirements. All three recommended that the guidelines specify that 
    the sole responsibility for notification lies with the appropriate 
    state law enforcement agency. No further clarification of the Act's 
    provision on this issue is necessary, however. As two of the three 
    respondents noted, ``[t]he federal statute is clear'' that the 
    obligation to release information is placed on the designated state or 
    local agency. Whether and to what extent real estate professionals may 
    or must disclose information in real estate transactions is a matter of 
    state law, and has no bearing on state compliance with the Act.
    2. Notification When Sex Offender Moves Out
        Two of the three same respondents suggested that communities should 
    be notified when a sex offender moves out of an area. The guidelines do 
    not address this issue because the Act itself does not. Thus, this 
    matter is left to the discretion of the states.
    
    B. Sexually Violent Predator
    
    1. Definition
        One respondent objected to the definition of ``sexually violent 
    predator.'' The Act itself, however, contains definitions of ``sexually 
    violent predator'' and the component term ``mental abnormality.'' The 
    guidelines cannot alter definitions appearing in the statute. Since the 
    Act does not define ``personality disorder,'' the guidelines already 
    provide that the definition of this term is a matter of state 
    discretion.
    2. Tracking
        One respondent commented that tracking for high-risk sexual 
    predators should include electronic monitoring. The guidelines do not 
    address this issue because the Act is concerned solely with 
    registration programs and does not address electronic monitoring in any 
    manner. States are free, however, to adopt electronic monitoring or 
    other means of sex offender management.
    
    C. Registration
    
    1. Role of Courts
        One respondent commented that it is not a function of a court to 
    fingerprint, photograph, or obtain much of the personal information 
    specified in the Act. The Act requires that the initial registration 
    information be taken by ``the court'' or ``prison'' officers. The 
    guidelines provide maximum flexibility consistent with the Act through 
    a broad interpretation of those terms. Thus, for example, probation and 
    parole officers, as well as judicial and correctional personnel in a 
    narrower sense, may take initial registration information.
    2. Timing of Transmittal of Registration Information
        One respondent objected that allowing transmission of registration 
    information up to three days after release would not ensure timely 
    notification of an offender's impending release. The time rule for 
    transmission of initial registration information under the Act and 
    guidelines is an outer limit. Thus, states are free to require that the 
    information be submitted at an earlier point.
    3. Notification of Obligation To Register
        One respondent stated that the guidelines suggest that offenders be 
    advised at the time of release of their legal obligation to register 
    and sign an acknowledgment. The respondent recommended that the 
    obligation also should be explained at the time of a guilty plea, 
    sentencing or initial registration, because not all registrants will be 
    subject to incarceration. The notice of registration obligations and 
    signed acknowledgement referred to by the respondent, however, are 
    required explicitly by the Act itself. Moreover, the Act and guidelines 
    impose the same requirements on all sentenced offenders at the time of 
    release, regardless of whether they are released unconditionally from 
    prison, or placed on parole, supervised release, or probation.
    4. Address Verification and Tracking
        One respondent stated that out-of-state or transient offenders 
    could be better tracked and verified through technological solutions 
    rather than through the mail. This respondent further recommended that 
    states should be encouraged to use technology, such as location 
    verification through automatic number identification and offender 
    identification through pin numbers and passwords. The guidelines have 
    not been changed to reflect these comments because the Act requires a 
    particular address verification procedure, involving sending and 
    returning an address verification form. Nothing in the guidelines or in 
    the Act precludes states from adopting otherwise permissible 
    supplemental address verification and tracking procedures, including 
    the technological approaches suggested by the respondent.
    5. Scope of Registration
        One respondent recommended that state registration and notification 
    should go beyond address registration. In particular, the respondent 
    stated that the public should have access to information about where an 
    offender works, law enforcement should know if the offender has had any 
    contact with the law, the offender's phone number should be updated for 
    verifications, and the offender should report compliance with treatment 
    or counseling sessions. The guidelines have not been revised on the 
    basis of these comments because the Act generally does not require 
    these particular measures. Nothing in the guidelines or in the Act 
    precludes states from adopting otherwise permissible supplemental 
    address verification and tracking procedures, including the 
    technological approaches suggested by the respondent.
    6. Cost of Registration
        One respondent recommended that states be encouraged to charge the 
    offender a fee to help cover the cost of monitoring the registration 
    information. The Act does not address the issue of payment, but states 
    are free to impose such requirements.
    7. Availability of Information
        One respondent recommended that information collected on an 
    offender's status within a particular state should be available to 
    prison or court officers taking initial registration information. While 
    it is likely that such information will be available to the officials 
    responsible for taking registration information, the guidelines do not
    
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    address this issue because it is not part of the Act's requirements.
    8. Designation of State Law Enforcement Agency/Intermediary
        One respondent noted that states may wish to use a non-profit 
    organization as the contact point for the dissemination of information 
    to the general public. The same respondent also suggested that either 
    public or private sector entities could be used as intermediaries to 
    submit change of address information. Neither the Act nor the 
    guidelines preclude these approaches, and further clarification of this 
    point does not appear to be necessary. As stated in the guidelines, 
    however, states are encouraged to ensure that the designated state law 
    enforcement agency is a ``criminal justice agency'' as defined in 28 
    CFR 20.3(c), to permit the free exchange of registration information 
    between the state registry and the FBI's record systems.
    
    D. Notice of Release/Movement
    
        One respondent recommended that the term ``electronic 
    transmission'' in relation to notice to local law enforcement agencies 
    should include telephonic reporting. The guidelines clarify that state 
    registration agencies have discretion regarding the form of notice to 
    local law enforcement agencies concerning the presence of registered 
    sex offenders. The possible forms of notice listed in the guidelines 
    are illustrative, not exhaustive. The list of illustrations have been 
    extended to include explicitly ``telephonic'' transmission.
    
    E. Change of Address Reporting/Address Verification
    
    1. Frequency
        One respondent recommended that offenders be required to report 
    monthly. The guidelines have not been changed to reflect this comment 
    because the Act itself only requires annual address verification and 
    quarterly verification for sexually violent predators. As the 
    guidelines already make clear, however, states are free to require more 
    frequent verification.
    2. Ten-year Reporting Requirement
        One respondent recommended that reporting requirements be for a 
    period of 10 years from the conclusion of supervision. The guidelines 
    have not been revised to reflect this comment because the Act only 
    requires a ten-year registration period running from the time of 
    release. As the guidelines already make clear, however, states are free 
    to require registration for longer periods.
    
    Final Guidelines
    
        These guidelines carry out a statutory directive to the Attorney 
    General, in section 170101(a)(1) (42 U.S.C. 14071(a)(1)), to establish 
    guidelines for registration systems under the Act. Before turning to 
    the specific provisions of the Act, four general points should be noted 
    concerning the Act's interpretation and application.
        First, states that wish to achieve compliance with the Jacob 
    Wetterling Act should understand that its requirements constitute a 
    floor for state registration systems, not a ceiling, and that they do 
    not risk the loss of part of their Byrne Formula Grant funding by going 
    beyond its standards. For example, a state may have a registration 
    system that covers a broader class of sex offenders than those 
    identified in the Jacob Wetterling Act, requires address verification 
    for such 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 provisions in the Jacob Wetterling Act concerning duration of 
    registration, covered offenders, and other matters, do not preclude 
    states from imposing additional or more stringent requirements that 
    encompass the Act's baseline requirements. The general objective of the 
    Act is to protect people from child molesters and violent sex offenders 
    through registration requirements. It is not intended to, and does not 
    have the effect of, making states less free than they were under prior 
    law to impose registration requirements for this purpose.
        Second, states that wish to achieve compliance with the Jacob 
    Wetterling Act also should understand that they may, within certain 
    constraints, use their own criminal law definitions in defining 
    registration requirements and will not have to revise their 
    registration systems to use technical definitions of covered sex 
    offenses based on federal law. This point will be explained more fully 
    below.
        Third, the Jacob Wetterling Act contemplates the establishment of 
    programs that will impose registration requirements on offenders who 
    are subsequently convicted of offenses in the pertinent categories. The 
    Act does not require states to attempt to identify and impose 
    registration requirements on offenders who were convicted of offenses 
    in these categories prior to the establishment of a conforming 
    registration system. Nevertheless, the Act does not preclude states 
    from imposing any new registration requirements on offenders convicted 
    prior to the establishment of the registration system.
        Fourth, 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.
        Some state registration and notification systems have been 
    challenged on constitutional grounds. The majority of courts that have 
    dealt with the issue have held that systems like those contemplated by 
    the Jacob Wetterling Act do not violate released offenders' 
    constitutional rights. A few courts, however, have found that certain 
    provisions of the state systems violate (or likely violate) the 
    Constitution. See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994) 
    (on motion for preliminary relief) (notification provision), appeal 
    dismissed, 85 F.3d 635 (9th Cir. 1996); State v. Babin, 637 So.2d 814 
    (La. App.) (retroactive application of notification provision), writ 
    denied, 644 So.2d 649 (La. 1994); State v. Payne, 633 So.2d 701 (La. 
    App. 1993) (same), writ denied, 637 So.2d 497 (La. 1994); cf. In re 
    Reed, 663 P.2d 216 (Cal. 1983) (en banc) (registration requirements for 
    misdemeanor offenders violate the California Constitution).
        There has been extensive litigation concerning whether aspects of 
    New Jersey's community notification program violate due process or ex 
    post facto guarantees as applied to individuals who committed the 
    covered offense prior to enactment of the notification statute. The 
    Department of Justice believes that the New Jersey community 
    notification statute at issue in those cases does not violate the Ex 
    Post Facto Clause and that the Fourteenth Amendment's Due Process 
    Clause of its own force does not require recognition of such a liberty 
    interest on the part of offenders affected by that statute, and has 
    filed ``friend of the court'' briefs supporting the New Jersey law.
        The New Jersey Supreme Court, in John Doe v. Poritz, 142 N.J. 1, 
    662 A.2d 367 (1995), upheld the New Jersey statute, although it imposed 
    certain procedural protections under federal and state law. In Artway 
    v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995), the 
    District Court held that retroactive application of the
    
    [[Page 39014]]
    
    notification provisions of New Jersey's Megan's Law violated the Ex 
    Post Facto Clause. On appeal, however, this part of the District 
    Court's decision was vacated on ripeness grounds. 81 F.3d 1235, 
    rehearing denied, 83 F.3d 594 (3d Cir. 1996). Then, the District Court 
    ruled in a class-action case that the notification provisions of New 
    Jersey's Megan Law, as modified by the New Jersey Supreme Court's 
    decision in Doe, are constitutional, even when retroactively applied. 
    W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), appeal pending; see 
    also Paul P. v. Verniero, Civ. No. 97-2919 (D.N.J. June 26, 1997) 
    (unpub.) (denying preliminary injunction against the prospective 
    application of the New Jersey notification act on the grounds that the 
    act does not deny due process or impose double jeopardy; Alan A. v. 
    Verniero, Civ. No. 97-1288 (D.N.J. June 27, 1997) (unpub., appeal 
    pending) (same).
        There is ongoing litigation over the validity of notification 
    systems--and particularly the validity of their retroactive 
    application--in other states as well. See, e.g., Doe v. Pataki, 940 F. 
    Supp. 603 (S.D.N.Y. 1996) (enjoining retroactive application of 
    community notification as an ex post factor punishment), appeal 
    pending; Doe v. Weld, 1996 WL 769398 (D. Mass. Dec. 17, 1996) 
    (declining to enjoin retroactive application of community notification 
    provisions); Stearns v. Gregoire, Dkt. No. C95-1486D, slip op. (W.D. 
    Wash. Apr. 12, 1996) (same), appeal pending; Opinion of the Justices, 
    423 Mass. 1201, 668 N.E.2d 738 (1996) (advisory opinion that community 
    notification provisions are constitutional, even as retroactively 
    applied); Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996) (holding 
    that retroactive application of community notification violates the Ex 
    Post Facto Clause), petition for cert. denied,__U.S.__,65 U.S.L.W. 3416 
    (June 27, 1997). The United States has filed briefs in several of these 
    cases supporting the state laws.
        The remainder of these guidelines addresses the provisions of the 
    Jacob Wetterling Act--including the Megan's Law amendment, but not 
    including the changes made by the Pam Lychner Act--in the order in 
    which they appear in section 170101 of the Violent Crime Control and 
    Law Enforcement Act of 1994.
    
    General Provisions--Subsection (a) (1)-(2)
    
        Paragraph (1) of subsection (a) of section 170101 directs the 
    Attorney General to establish guidelines for state programs that 
    require:
    
        (A) current address registration for persons convicted of ``a 
    criminal offense against a victim who is a minor'' or ``a sexually 
    violent offense, '' and
        (B) current address registration under a different set of 
    requirements for persons who are determined to be `'sexually violent 
    predators.''
    
        For purposes of the Act, ``state'' should be understood to 
    encompass 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)) in light of the tie-in between compliance with 
    the Act and the allocation of Byrne Formula Grant funding. Hence, the 
    ``states'' that must comply with the Act 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.
        Paragraph (2) of subsection (a) states that the determination 
    whether a person is a ``sexually violent predator'' (which brings the 
    more stringent registration standards into play), and the determination 
    that a person is no longer a ``sexually violent predator'' (which 
    terminates the registration requirement under those more stringent 
    standards), shall be made by the sentencing court after receiving a 
    report by a state board composed of experts in the field of the 
    behavior and treatment of sexual offenders.
        ``State board'' in paragraph (2) should be understood to mean a 
    body or group containing two or more experts that is authorized by 
    state law or designated under the authority of state law. Beyond the 
    requirement that a board must be composed of experts in the field of 
    the behavior and treatment of sexual offenders, the Act affords states 
    discretion concerning the selection and composition of such boards. For 
    example, a state could establish a single permanent board for this 
    purpose, could establish a system of state-designated boards, or could 
    authorize the designation of different boards for different courts, 
    time period, geographic areas or cases. In addition, the Act permits 
    states to set their own standards concerning who qualifies as an expert 
    in the field of the behavior and treatment of sexual offenders for 
    purposes of board participation, and to utilize qualifying experts from 
    outside the state to serve on the boards.
        ``Sentencing court'' in paragraph (2) should be understood to mean 
    a court whose determination is competent under state law to trigger or 
    terminate the more stringent registration requirements the Act 
    prescribes for sexually violent predators. It does not mean that `'the 
    sentencing court'' for purposes of the sexually violent predator 
    determination must be the same court in which the offender was 
    convicted for an underlying offense that gave rise to a requirement to 
    register.
        As noted above, subsection (a)(1) requires states to register 
    persons convicted of certain crimes against minors and sexually violent 
    offenses, but states are free to go beyond the Act's minimum standards 
    and include other classes of offenders within their sex offender 
    registration programs. For example, states are encouraged to require 
    sex offenders convicted in federal, military, or Indian tribal courts 
    who reside in their jurisdictions to register. Although the Act does 
    not require states to register such offenders, the presence of any 
    convicted sex offender in the state--whether the offender was 
    prosecuted in a state, federal, military, or Indian tribal court--
    raises similar public safety concerns. Some states (e.g., Washington 
    and California) already require sex offenders convicted in federal or 
    military courts to register.
        The Act's requirement is one of current address registration, and 
    the Act 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 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. Due to 
    the federal statutory preemption concerning what may or may not be 
    disclosed about federally protected witnesses, 18 U.S.C. 3521(b)(1)(G) 
    & (3), a state's failure to promulgate protective provisions may 
    adversely affect its eligibility to send witnesses to, or to receive 
    witness data from, the federal witness security program.
    
    [[Page 39015]]
    
    Definition of ``Criminal Offense Against a Victim Who is a Minor''--
    Subsection (a)(3)(A)
    
        The Act prescribes a 10-year registration requirement for persons 
    convicted of a ``criminal offense against a victim who is a minor.'' 
    Subparagraph (A) of paragraph (3) of subsection (a) defines the term 
    ``criminal offense against a victim who is a minor.'' ``Minor'' should 
    be understood to mean a person below the age of 18.
        States do not have to track the terminology used in the Act's 
    definition of ``criminal offense against a victim who is a minor'' in 
    defining registration requirements. Rather, compliance depends on 
    whether the substantive coverage of a state's registration requirements 
    includes the offenses described in subparagraph (A) of paragraph (3).
        The specific clauses in the Act's definition of ``criminal offense 
    against a victim who is a minor'' are as follows:
        (1) 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. The Act does not require inclusion of these offenses in the 
    registration requirement when the offender is a parent, but states may 
    choose to require registration for parents who commit these offenses.
        (2) 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 
    in fact 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). 
    Offenses that do not involve physical contact, such as exhibitionism, 
    are not subject to the Act's mandatory registration requirements 
    pursuant to clause (iii), but states are free to require registration 
    for persons convicted of such offenses as well if they so choose.
        (3) 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.
    
        (4) 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.
        (5) 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.
    
        (6) Clause (vii) covers offenses consisting of any conduct that by 
    its nature is a sexual offense against a minor. This clause is intended 
    to insure uniform 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 uniformly in the registration requirement.
        (7) Considered in isolation, clause (viii) gives states discretion 
    whether to require registration for attempts to commit offenses 
    described in clauses (i) through (vii). However, 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. Moreover, this provision must be considered in 
    conjunction with the Act's requirement of registration for persons 
    convicted of a ``sexually violent offense,'' which does not allow the 
    exclusion of attempts if they are otherwise encompassed within the 
    definition of a ``sexually violent offense.''
        Hence, state discretion to exclude attempted sexual offenses 
    against minors from registration requirements pursuant to clause (viii) 
    is limited by other provisions of the Act. The simplest approach for 
    states would be to include attempted sexual assaults on minors (as well 
    as completed offenses) uniformly as predicates for the registration 
    requirement.
        At the conclusion of the definition of ``criminal offense against a 
    victim who is a minor.'' the Act states that (for purposes of the 
    definition) conduct which is criminal only because of the age of the 
    victim shall not be considered a criminal offense if the perpetrator is 
    18 years of age or younger. However, here again, states are free to go 
    beyond the Act's baseline requirements. The exemption of certain 
    offenders based on age from the Act's mandatory registration 
    requirements does not bar states from including such offenders in their 
    registration systems if they wish. Moreover, the scope of subsection 
    (a)(3)(A)'s exemption is also limited by other provisions of the Act 
    that require registration of persons convicted of ``sexually violent 
    offenses'' (as defined in (a)(3)(B)), with no provision excluding 
    younger offenders where the criminality of the conduct depends on the 
    victim's age.
        Since the Act's registration requirements depend in all 
    circumstances on conviction of certain types of offenses, 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.
    
    Definition of ``Sexually Violent Offense''--Subsection (a)(3)(B)
    
        The Act prescribes a 10-year registration requirement for offenders 
    convicted of a ``sexually violent offense,'' as well as for those 
    convicted
    
    [[Page 39016]]
    
    of a ``criminal offense against a victim who is a minor.''
        Subparagraph (B) of paragraph (3) defines the term ``sexually 
    violent offense'' to mean any criminal offense that consists of 
    aggravated sexual abuse or sexual abuse (as described in sections 2241 
    and 2242 of title 18, 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 could satisfy the requirement of registration for persons 
    convicted of ``sexually violent offenses'':
        First, a state could 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. Specifically, sections 2241 and 2242 
    generally proscribe non-consensual ``sexual acts'' with anyone, 
    ``sexual acts'' with persons below the age of 12, and attempts to 
    engage in such conduct. ``Sexual act'' is generally defined (in 18 
    U.S.C. 2246(2)) to mean an act involving any degree of genital or anal 
    penetration, oral-genital or oral-anal contact, or direct genital 
    touching of a victim below the age of 16 in certain circumstances. (The 
    second part of the definition in subparagraph (B) of paragraph (3), 
    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 could 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.
    
    Definition of ``Sexually Violent Predator''--Subsection (a)(3) (C)-(E)
    
        Offenders who meet the definition of ``sexually violent predator'' 
    are subject to more stringent registration requirements than other sex 
    offenders.
        (1) Subparagraph (C) defines ``sexually violent predator'' to mean 
    a person who has been convicted of a sexually violent offense and who 
    suffers from a mental abnormality or personality disorder that makes 
    the person likely to engage in predatory sexually violent offenses.
        (2) Subparagraph (D) essentially defines ``mental 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. There is 
    no definition of ``personality disorder'' in the Act; hence, the 
    definition of this term is a matter of state discretion. For example, a 
    state may choose to utilize the definition of ``personality disorder'' 
    that appears in the Diagnostic and Statistical Manual of Mental 
    Disorders: DSM-IV. American Psychiatric Association, Diagnostic and 
    Statistical Manual of Mental Disorders (4th ed. 1994).
        (3) 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. As 
    noted earlier, the Act provide that the determination whether an 
    offender is a ``sexually violent predator'' is to be made by the 
    sentencing court with the assistance of a board of experts. The Act 
    does not require, or preclude, that all persons convicted of a sexually 
    violent offense undergo a determination as to whether they satisfy the 
    definition of ``sexually violent predator.'' It also does not specify 
    under what conditions such an inquiry must be undertaken. A state that 
    wishes to comply with the Act must adopt some approach to this issue, 
    but the specifics are a matter of state discretion. For example, a 
    state might provide that the decision whether to seek classification of 
    an offender as a ``sexually violent predator'' is a matter of judgment 
    for 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 by the 
    responsible court when the offender has served a term of imprisonment 
    and is about to be released from custody.
        As with other features of the Jacob Wetterling Act, the sexually 
    violent predator provisions only define baseline requirements for 
    states that wish to maintain eligibility for full Byrne Formula Grant 
    funding. States are free to impose these more stringent registration 
    requirements on a broader class of offenders and may use state law 
    categories or definitions for that purpose, without contravening the 
    Jacob Wetterling Act. Likewise, while the Act does not require civil 
    commitment of sexually violent predators or other offenders under any 
    circumstances, states may, if they so wish, require civil commitment of 
    persons determined to be sexually violent predators under the Act's 
    standards and procedures in lieu of the Act's heightened registration 
    requirements for such persons.
        If a state chooses to subject all persons convicted of a ``sexually 
    violent offense'' to the more stringent registration requirements and 
    standards provided by the Act for ``sexually violent predators,'' then 
    a particularized determination that an offender is a ``sexually violent 
    predator'' would have no practical effect and would be superfluous. 
    Hence, if a state elected this approach, it would not be necessary for 
    the state to have ``sexually violent predator'' determinations made by 
    the sentencing court or to constitute boards of experts to advise the 
    courts concerning such determinations, prior to the commencement of 
    registration. In a state that eschewed particularized ``front end'' 
    determinations of ``sexually violent predator'' status in this manner, 
    however, it would still be necessary to condition termination of the 
    registration requirement on a determination by the sentencing court 
    (assisted by a board of experts) pursuant to section 170101(b)(6)(B) of 
    the Act that the person does not suffer from a mental abnormality or 
    personality disorder that would make the person likely to engage in a 
    predatory sexually violent offense.
    
    Specifications Concerning State Registration Systems Under the Act--
    Subsection (b)
    
        Paragraphs (1) and (2) of subsection (b) set out duties for prison 
    officers and courts 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 generally include taking registration 
    information, informing the offender of registration obligations, and 
    transmitting the registration information to the designated state law 
    enforcement agency.
        The terms ``prison officer'' and ``court'' should be understood to 
    include any officer having functions relating to correctional matters, 
    offender supervision, or the execution of sentences. Hence, states have 
    the option of assigning responsibility for the initial taking and 
    transmission of registration
    
    [[Page 39017]]
    
    information to probation or parole officers, as well as to persons who 
    are prison or court officers in a narrower sense.
        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 give written notice of a new 
    address within 10 days to a designated state law enforcement agency if 
    he changes residence, (iii) informing the person that, if he changes 
    residence to another state, he must inform the registration agency in 
    the state he is leaving and must also register the new address with a 
    designated state law enforcement agency in the new state within 10 days 
    (if the new state has a registration requirement), (iv) obtaining 
    fingerprints and a photograph if they have not already been obtained, 
    and (v) requiring the person to read and sign form stating that these 
    requirements have been explained.
        Beyond these basic requirements, which apply to all registrants, 
    subparagraph (B) of paragraph (1) of subsection (b) requires that 
    additional information be obtained in relation to a person who is 
    required to register as a ``sexually violent predator.'' The 
    information that is specifically required under subparagraph (B) is 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. The Act does 
    not require that prison officers or courts conduct an investigation to 
    determine the offender's treatment history. For purposes of documenting 
    the treatment received, prison officials and courts may rely on 
    information that is readily available to them, either from existing 
    records or the offender. In addition, prison officers and courts may 
    comply with the requirement to document an offender's treatment history 
    simply by noting that the offender received treatment for a mental 
    abnormality or personality disorder. If states want to require the 
    inclusion of more detailed information about the offender's treatment 
    history, however, they are free to do so.
        States that wish to comply with the Act will need to adopt statutes 
    or administrative provisions to establish the duties specified in 
    subsection (b)(1) and ensure that they are carried out. These 
    informational requirements, like other requirements in the Act, only 
    define minimum standards, and states may require more extensive 
    information from offenders. For example, the Act does not require that 
    information be obtained relating to registering offenders' employment, 
    but states 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, although it is not required under the Act, 
    states are strongly encouraged to collect DNA samples, where permitted 
    under applicable legal standards, to be typed and stored in state DNA 
    databases. States also are 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 that 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.
        Paragraph (2) of subsection (b) states, in part, that the officer 
    or court shall forward the registration information obtained from an 
    offender who is being released to a designated state law enforcement 
    agency within three days. In some states, the responsible official does 
    not wait until the time of release to obtain registration information 
    but obtains this information some period of time (e.g., 30 days or 60 
    days) prior to release. Under such a procedure, it is adequate if the 
    registration information is forwarded no later than three days after 
    release.
        The Act leaves states discretion in designating an agency as the 
    responsible ``state law enforcement agency,'' including the means by 
    which such a designation is made, the timing of such a designation, and 
    the agencies that may be designated. States are not required to select 
    the state police as the designated agency and may choose any agency 
    with functions relating to the enforcement of law or protection of 
    public safety. For example, states may designate as the pertinent 
    ``state law enforcement agency'' a correctional agency, a crime 
    statistics bureau or criminal records agency, or a department of public 
    safety.
        States are encouraged, however, to ensure that the designated state 
    law enforcement agency is a ``criminal justice agency'' as defined in 
    28 CFR 20.3(c). This will permit the free exchange of registration 
    information between the state registry and the FBI's records systems.
        Paragraph (2) of subsection (b) also provides that after receiving 
    the registration information from the responsible officer or court, the 
    designated state law enforcement agency must immediately enter the 
    information into the appropriate state law enforcement record system 
    and notify a law enforcement agency having jurisdiction where the 
    person expects to reside. The Act leaves states discretion concerning 
    the form of notification to the relevant local law enforcement agency. 
    Permissible options include, for example, written notice, electronic or 
    telephonic transmission of registration information, and provision of 
    on-line access to registration information. The Act also leaves states 
    discretion in determining which state record system is appropriate for 
    storing registration information. States that wish to achieve 
    compliance with the Act, however, may need to modify state record 
    systems if they are not currently set up to receive all the types of 
    information that the Act requires from registrants.
        In some states, the responsible prison officer or court sends the 
    initial registration information both to the designated State law 
    enforcement agency and to a local law enforcement agency having 
    jurisdiction where the registrant will reside, as opposed to 
    transmitting the information only to the state agency. This approach is 
    allowed, and in such states the state agency need not be required to 
    provide notice to the local law enforcement agency because such notice 
    would be superfluous in relation to a local law enforcement agency that 
    has received the registration information directly from the prison 
    officer or court.
        Likewise, the Act does not preclude a state procedure under which 
    the prison officer or court transmits the initial registration 
    information indirectly to the designated state law enforcement agency 
    by sending it in the first instance only to a local law enforcement 
    agency having jurisdiction where the registrant will reside, which is 
    then required to forward the information to the state agency. 
    Procedures of this type will be deemed in compliance, so long as the 
    information is submitted or sent to the local law enforcement agency 
    within the applicable time frame (no later than three days after 
    release), and state procedures ensure that the local agency
    
    [[Page 39018]]
    
    will forward the information promptly to the state agency. In a state 
    with this type of procedure, having the state agency notify a local law 
    enforcement agency from which it received the initial registration 
    information would be superfluous and is not required.
        Paragraph (2) of subsection (b) further provides that the state law 
    enforcement agency shall immediately transmit the conviction data and 
    fingerprints to the FBI. The Act 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).
        Paragraph (3) of subsection (b) relates to verification of the 
    offender's address. In essence, annual verification of address with the 
    designated state law enforcement agency is required for all offenders 
    through the return within 10 days of an address verification form sent 
    by the agency to the registrant. However, the verification intervals 
    are 90 days (rather than a year) for ``sexually violent predators.''
        As noted earlier, these are baseline requirements which do not bar 
    states from requiring verification of address at shorter intervals than 
    those specified in the Act. Likewise, states may, if they wish, 
    strengthen the requirements for transmission and return of verification 
    forms beyond the minimum required by the Act, such as requiring 
    registrants to appear in person at a law enforcement agency to return 
    verification forms that have been sent to their residences.
        In some states, the designated state law enforcement agency does 
    not directly carry out address verification but develops verification 
    forms which are sent out and received by local law enforcement 
    agencies. This delegation of responsibility for the verification 
    function is allowed, so long as the procedure specified in the Act for 
    periodic address verification through transmission and return of a 
    verification form is complied with, and state procedures ensure that 
    the designated state law enforcement agency will promptly be made aware 
    if the verification process discloses that the registrant is no longer 
    at the registered address.
        As indicated above, under paragraph (1)(A) of subsection (b) of the 
    Act, registrants are required to submit or send change of address 
    information within 10 days of the change of residence. Paragraph (4) of 
    subsection (b) requires the designated state law enforcement agency to 
    notify other interested law enforcement agencies of a change of address 
    by the registrant. Specifically, when a registrant changes residence to 
    a new address, the designated law enforcement agency must (i) notify a 
    law enforcement agency having jurisdiction where the registrant will 
    reside, and (ii) if the registrant moves to a new state, notify the law 
    enforcement agency with which the offender must register in the new 
    state (if the new state has a registration requirement).
        Under many state registration programs, registrants do not send 
    change of address information directly to the designated state law 
    enforcement agency but provide this information to a local law 
    enforcement agency or other intermediary (such as a probation officer), 
    which is then required to forward it to the state agency. This approach 
    is allowed under the Act, so long as the registrant is required to 
    submit or send change of address information to the intermediary within 
    the time frame specified by the Act (no later than 10 days after the 
    change of address), and state procedures ensure that the intermediary 
    will forward the information promptly to the designated state law 
    enforcement agency. If the intermediary that receives the change of 
    address information in the first instance is a local law enforcement 
    agency having jurisdiction where the registrant will reside, then the 
    designated state law enforcement agency does not have to notify that 
    local law enforcement agency of the change of address because doing so 
    would be superfluous. If, however, the intermediary is a local law 
    enforcement agency in the place from which the registrant is moving, 
    the requirement remains of immediately notifying a law enforcement 
    agency having jurisdiction over the new place of residence. Either the 
    state agency or the local law enforcement agency that receives the 
    change of address information in the first instance must provide such 
    notification.
        Paragraph (5) requires a person convicted of an offense that 
    requires registration under the Act who moves to another state to 
    register within 10 days with a designated state law enforcement agency 
    in his new state of residence (if the new state has a registration 
    requirement). This entails responsibilities for states in relation to 
    out-of-state offenders who move into the state, as well as personal 
    responsibilities for the registrant. To comply with the Act, a state 
    registration program must require registration by out-of-state 
    offenders in the Act's offense categories who move into the state and 
    must provide that such offenders are required to register within 10 
    days of establishing residence in the State.
        Subparagraph (A) of paragraph (6) states that the registration 
    requirement remains in effect for 10 years. As noted earlier, states 
    may choose to establish longer registration periods, but registration 
    requirements of shorter duration are not consistent with the Act. 
    Hence, for example, a state program is not in compliance with the Act 
    if it allows 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, a state 
    may toll registration requirements during periods in which an offender 
    is incarcerated for another offense or civilly committed because it is 
    superfluous to carry out address registration and verification 
    procedures while the registrant is confined.
        Subparagraph (B) of paragraph (6) states that the registration 
    requirement for ``sexually violent predators'' under the Act terminates 
    upon a determination that the offender no longer suffers from a mental 
    abnormality or personality disorder that would make him likely to 
    engage in a predatory sexually violent offense. This provision does not 
    require review of the offender's status at any particular interval. For 
    example, a state could set a minimum period of 10 years before 
    entertaining a request to review the status of a ``sexually violent 
    predator,'' the same period as the general minimum registration period 
    for sex offenders under the Act.
        The termination provision in subparagraph (B) of paragraph (6) only 
    affects the requirement that a person register as a `'sexually violent 
    predator'' under subparagraph (B) of subsection (a)(1) of the Jacob 
    Wetterling Act. It does not limit states in imposing more extensive 
    registration requirements under their own laws. Moreover, even if it 
    has been determined as provided in subparagraph (B) of paragraph (6) 
    that a person is no longer a ``sexually violent predator,'' this does 
    not relieve the person of the 10-year registration requirement under 
    other provisions of the Jacob Wetterling Act which applies to any 
    person convicted of a ``criminal offense against a victim who is a 
    minor'' or a ``sexually violent offense.''
    
    Criminal Penalties for Registration Violations--Subsection (c)
    
        The Act provides that a person required to register under a state
    
    [[Page 39019]]
    
    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 will 
    need to enact criminal provisions covering this situation as part of, 
    or in conjunction with, the legislation defining their registration 
    systems, if they have not already done so.
        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. If the 
    violation by a registrant consists of failing to return an address 
    verification form within 10 days of receipt, the state may allow a 
    defense if the registrant can prove that he did not in fact change his 
    residence address, as provided in subsection (b)(3)(A)(iv).
    
    Release of Registration Information--Subsection (d)
    
        Subsection (d) governs the disclosure of information collected 
    under a state registration program. This part of the Act has been 
    amended by the federal Megan's Law (Pub. L. 104-145, 110 Stat. 1345). 
    To comply with the Megan's Law amendment, 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 Megan's Law amendment made two important changes from the prior 
    law: First, subsection (d) originally provided that information 
    collected under state registration programs is to be treated as private 
    data, subject to limited exceptions. The Megan's Law amendment has 
    repealed the general ``private data'' restriction and has substituted 
    an affirmative statement (in subsection(d)(1) that information 
    collected under a state registration program may be disclosed for any 
    purpose permitted under the law of the state. Hence, under the current 
    law, there is no requirement that registration information be treated 
    as private or confidential to any greater extent than the state may 
    wish.
        Second, paragraph(2) of subsection(d), as amended, provides that 
    the designated state law enforcement agency, and any local law 
    enforcement agency authorized by the state agency, shall release 
    relevant information that is necessary to protect the public concerning 
    a specific person required to register under the Act. In contrast, the 
    prior law only provided that information may be released for this 
    purpose.
        The principal objective of this change 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. In light of this 
    change, 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 mandatory 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 Jacob Wetterling Act as amended, 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 (1) registration information limited to law enforcement uses for 
    offenders in the ``low risk'' level, (2) notice to organizations with a 
    particular safety interest (such as schools and other child care 
    entities) for ``medium risk'' offenders, and (3) notice to neighbors 
    for ``high risk'' offenders.
        States are also 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 consistent 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, by establishing call-in numbers which members of the public can 
    contact to obtain information on the registration status of identified 
    individuals, or by providing such information in response to written 
    requests. 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 theses 
    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.
        Paragraph(2) of subsection(d) does not deprive states of the 
    authority to exercise centralized control over the release of 
    information, or if the state prefers, to have local agencies make 
    determinations concerning public safety needs and information release.
        A proviso at the end of paragraph (2) 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) which 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.
    
    [[Page 39020]]
    
        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.
    
    Immunity for Good Faith Conduct--Subsection (e)
    
        Subsection (e) states that law enforcement agencies, employees of 
    law enforcement agencies, and state officials shall be immune from 
    liability for good faith conduct under the Act.
    
    Compliance--Subsection (f)
    
        States have three years from the date of enactment (i.e., September 
    13, 1994) to come into compliance with the Act, unless the Attorney 
    General grants an additional two years where a state is making good 
    faith efforts at implementation. States that fail to come into 
    compliance within the specified time period 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.
        To maintain eligibility for full Byrne Grant formula funding after 
    September 13, 1997, states must submit to the Bureau of Justice 
    Assistance by July 13, 1997, their existing or proposed registration 
    and notification systems for sex offenders. These submissions will be 
    reviewed to determine the status of state compliance with the Act. In 
    addition, any state that has not been able to establish a registration 
    and notification system in compliance with the Act must submit to the 
    Bureau of Justice Assistance by July 13, 1997, a written explanation of 
    why compliance has not been achieved and a description of the state's 
    good faith efforts that may justify an extension of time (of not 
    greater than two years) for achieving compliance. States also will be 
    required to submit information in subsequent program years concerning 
    any changes in sex offender registration systems that may affect 
    compliance with the Act.
    
        Dated: July 14, 1997.
    Janet Reno,
    Attorney General.
    [FR Doc. 97-19047 Filed 7-18-97; 8:45 am]
    BILLING CODE 4410-18-M
    
    
    

Document Information

Effective Date:
7/21/1997
Published:
07/21/1997
Department:
Justice Department
Entry Type:
Notice
Action:
Final guidelines.
Document Number:
97-19047
Dates:
July 21, 1997.
Pages:
39009-39020 (12 pages)
Docket Numbers:
A.G. Order No. 2095-97
RINs:
1105-AA50: Guidelines for Megan's Law and the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act
RIN Links:
https://www.federalregister.gov/regulations/1105-AA50/guidelines-for-megan-s-law-and-the-jacob-wetterling-crimes-against-children-and-sexually-violent-off
PDF File:
97-19047.pdf