THE NATIONAL GUIDELINES FOR SEX OFFENDER

THE NATIONAL GUIDELINES FOR SEX OFFENDER REGISTRATION AND

NOTIFICATION

CONTENTS

I. INTRODUCTION ......................................................3

II. GENERAL PRINCIPLES ...............................................5

A. Terminology ........................................................5

B. Minimum National Standards..........................................6

C. Retroactivity ........................................................7

D. Automation—Electronic Databases and Software . . . . . . . . . . . . . . . . . . . . . . . . . 8

E. Implementation......................................................9

III. COVERED JURISDICTIONS ...........................................11

IV. COVERED SEX OFFENSES AND SEX OFFENDERS . . . . . . . . . . . . . . . . . . . . . . 15

A. Convictions Generally ...............................................15

B. Foreign Convictions .................................................16

C. Sex Offenses Generally ..............................................17

D. Specified Offenses Against Minors.....................................18

E. Protected Witnesses .................................................21

V. CLASSES OF SEX OFFENDERS ........................................21

VI. REQUIRED REGISTRATION INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

VII. DISCLOSURE AND SHARING OF INFORMATION . . . . . . . . . . . . . . . . . . . . . . . 33

A. Sex Offender Websites ..............................................33

B. Community Notification and Targeted Disclosures . . . . . . . . . . . . . . . . . . . . . . . 38

VIII. WHERE REGISTRATION IS REQUIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

IX. INITIAL REGISTRATION .............................................44

X. KEEPING THE REGISTRATION CURRENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

A. Changes of Name, Residence, Employment, or School Attendance . . . . . . . . . . 50

B. Changes in Other Registration Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

C. International Travel.................................................53

XI. VERIFICATION/APPEARANCE REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . 54

XII. DURATION OF REGISTRATION ......................................56

XIII. ENFORCEMENT OF REGISTRATION REQUIREMENTS . . . . . . . . . . . . . . . . . 58

Appendix A. Summary of Comments ...........................................61

Appendix B. Title Reference to SORNA Sections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Appendix C. Title Reference to Federal Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Index . .....................................................................94

I. INTRODUCTION

The Sex Offender Registration and Notification Act (“SORNA” or “the Act”), which is

title I of the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248), provides a

new comprehensive set of minimum standards for sex offender registration and notification in

the United States. These Guidelines are issued to provide guidance and assistance to covered

jurisdictions—the 50 States, the District of Columbia, the principal U.S. territories, and Indian

tribal governments—in implementing the SORNA standards in their registration and notification

programs.

The adoption of these Guidelines carries out a statutory directive to the Attorney General,

appearing in SORNA § 112(b), to issue guidelines to interpret and implement SORNA. Other

provisions of SORNA establish the Office of Sex Offender Sentencing, Monitoring,

Apprehending, Registering, and Tracking (the “SMART Office”), a component of the Office of

Justice Programs of the U.S. Department of Justice. The SMART Office is authorized by law to

administer the standards for sex offender registration and notification that are set forth in

SORNA and interpreted and implemented in these Guidelines. It is further authorized to

cooperate with and provide assistance to states, local governments, tribal governments, and other

public and private entities in relation to sex offender registration and notification and other

measures for the protection of the public from sexual abuse or exploitation. See SORNA

§ 146(c). Accordingly, the SMART Office should be regarded by jurisdictions discharging

registration and notification functions as their key partner and resource in the federal government

in further developing and strengthening their sex offender registration and notification programs,

and the SMART Office will provide all possible assistance for this purpose.

The development of sex offender registration and notification programs in the United

States has proceeded rapidly since the early 1990s, and at the present time such programs exist in

all of the states, the District of Columbia, and some of the territories and tribes. These programs

serve a number of important public safety purposes. In their most basic character, the registration

aspects of these programs are systems for tracking sex offenders following their release into the

community. If a sexually violent crime occurs or a child is molested, information available to

law enforcement through the registration program about sex offenders who may have been

present in the area may help to identify the perpetrator and solve the crime. If a particular

released sex offender is implicated in such a crime, knowledge of the sex offender’s whereabouts

through the registration system may help law enforcement in making a prompt apprehension.

The registration program may also have salutary effects in relation to the likelihood of registrants

committing more sex offenses. Registered sex offenders will perceive that the authorities’

knowledge of their identities, locations, and past offenses reduces the chances that they can avoid

detection and apprehension if they reoffend, and this perception may help to discourage them

from engaging in further criminal conduct.

Registration also provides the informational base for the other key aspect of the

programs—notification—which involves making information about released sex offenders more

broadly available to the public. The means of public notification currently include sex offender

websites in all states, the District of Columbia, and some territories, and may involve other forms

of notice as well. The availability of such information helps members of the public to take

common sense measures for the protection of themselves and their families, such as declining the

offer of a convicted child molester to watch their children or head a youth group, or reporting to

the authorities approaches to children or other suspicious activities by such a sex offender. Here

as well, the effect is salutary in relation to the sex offenders themselves, since knowledge by

those around them of their sex offense histories reduces the likelihood that they will be presented

with opportunities to reoffend.

While sex offender registration and notification in the United States are generally carried

out through programs operated by the individual states and other non-federal jurisdictions, their

effectiveness depends on also having effective arrangements for tracking of registrants as they

move among jurisdictions and some national baseline of registration and notification standards.

In a federal union like the United States with a mobile population, sex offender registration could

not be effective if registered sex offenders could simply disappear from the purview of the

registration authorities by moving from one jurisdiction to another, or if registration and

notification requirements could be evaded by moving from a jurisdiction with an effective

program to a nearby jurisdiction that required little or nothing in terms of registration and

notification.

Hence, there have been national standards for sex offender registration in the United

States since the enactment of the Jacob Wetterling Crimes Against Children and Sexually

Violent Offender Act (42 U.S.C. 14071) in 1994. The national standards from their inception

have addressed such matters as the offenses for which registration should be required, updating

and periodic verification of registration information, the duration of registration, public

notification, and continued registration and tracking of sex offenders when they relocate from

one jurisdiction to another.

Following the enactment of the Wetterling Act in 1994, that Act was amended a number

of times, in part reflecting and in part promoting trends in the development of the state

registration and notification programs. Ultimately, Congress concluded that the patchwork of

standards that had resulted from piecemeal amendments should be replaced with a

comprehensive new set of standards—the SORNA reforms, whose implementation these

Guidelines concern—that would close potential gaps and loopholes under the old law, and

generally strengthen the nationwide network of sex offender registration and notification

programs. Important areas of reform under the SORNA standards include:

! Extending the jurisdictions in which registration is required beyond the 50 States, the

District of Columbia, and the principal U.S. territories, to include Indian tribal

jurisdictions.

! Extending the classes of sex offenders and sex offenses for which registration is required.

! Consistently requiring that sex offenders in the covered classes register and keep the

registration current in the jurisdictions in which they reside, work, or go to school.

! Requiring more extensive registration information.

! Adding to the national standards periodic in-person appearances by registrants to verify

and update the registration information.

! Broadening the availability of information concerning registered sex offenders to the

public, through posting on sex offender websites and by other means.

! Adopting reforms affecting the required duration of registration.

In addition, SORNA strengthens the federal superstructure elements that leverage and

support the sex offender registration and notification programs of the registration jurisdictions.

These strengthened elements are: (i) stepped-up federal investigation and prosecution efforts to

assist jurisdictions in enforcing sex offender registration requirements; (ii) new statutory

provisions for the national database and national website (i.e., the National Sex Offender

Registry and the Dru Sjodin National Sex Offender Public Website) that effectively compile

information obtained under the registration programs of the states and other jurisdictions and

make it readily available to law enforcement or the public on a nationwide basis; (iii)

development by the federal government of software tools, which the states and other registration

jurisdictions will be able to use to facilitate the operation of their registration and notification

programs in conformity with the SORNA standards; and (iv) establishment of the SMART

Office to administer the national standards for sex offender registration and notification and to

assist registration jurisdictions in their implementation.

Through the cooperative effort of the 50 States, the District of Columbia, the U.S.

territories, and Indian tribal governments with the responsible federal agencies, the SORNA goal

of an effective and comprehensive national system of registration and notification programs can

be realized, with great benefit to the ultimate objective of “protect[ing] the public from sex

offenders and offenders against children.” SORNA § 102. These Guidelines provide the

blueprint for that effort.

II. GENERAL PRINCIPLES

Before turning to the specific SORNA standards and requirements discussed in the

remainder of these Guidelines, certain general points should be noted concerning the

interpretation and application of the Act and these Guidelines:

A. Terminology

These Guidelines use key terms with the meanings defined in SORNA. In particular, the

term “jurisdiction” is consistently used with the meaning set forth in SORNA § 111(10). As

defined in that provision, it refers to the 50 States, the District of Columbia, the five principal

U.S. territories—i.e., the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern

Mariana Islands, and the United States Virgin Islands—and Indian tribes that elect to function as

registration jurisdictions under SORNA § 127. (For more concerning covered jurisdictions, see

Part III of these Guidelines.) Thus, when these Guidelines refer to “jurisdictions ” implementing

the SORNA registration and notification requirements, the reference is to implementation

of these requirements by the jurisdictions specified in SORNA § 111(10). “Jurisdictions” is not

used to refer to other territorial or political units or subdivisions, such as counties, cities, or

towns of states or territories. Likewise, the term “sex offense” is not used to refer to any and all

crimes of a sexual nature, but rather to those covered by the definition of “sex offense ”

appearing in SORNA § 111(5), and the term “sex offender” has the meaning stated in SORNA

§ 111(1). (For more concerning covered sex offenses and offenders, see Part IV of these

Guidelines.)

SORNA’s registration requirements generally come into play when sex offenders are

released from imprisonment, or when they are sentenced if the sentence does not involve

imprisonment. See SORNA § 113(b). “Imprisonment ” as it is used in SORNA and these

Guidelines refers to incarceration pursuant to a conviction, regardless of the nature of the

institution in which the offender serves the sentence. It is not used in any narrow technical sense,

such as confinement in a state “prison” as opposed to a local “jail.”

SORNA includes a number of references relating to implementation by jurisdictions of

the requirements of “this title.” Section 125 provides a mandatory 10% reduction in certain

federal justice assistance funding for jurisdictions that fail, as determined by the Attorney

General, to substantially implement “this title” within the time frame specified in section 124,

and section 126 authorizes a Sex Offender Management Assistance grant program to help offset

the costs of implementing “this title.” In the context of these provisions, the references to “this

title” function as a shorthand for the SORNA sex offender registration and notification standards.

They do not mean that funding under these provisions is affected by a jurisdiction’s

implementation or non-implementation of reforms unrelated to sex offender registration and

notification that appear in later portions of title I of the Adam Walsh Child Protection and Safety

Act of 2006 (particularly, subtitle C of that title).

Section 125(d) of SORNA states that the provisions of SORNA “that are cast as

directions to jurisdictions or their officials constitute, in relation to States, only conditions

required to avoid the reduction of Federal funding under this section.” Statements in these

Guidelines that SORNA requires jurisdictions to adopt certain measures should be understood

accordingly in their application to the states. Since the SORNA requirements relating to sex

offender registration and notification are, in relation to the states, only partial funding eligibility

conditions, creation of these requirements is within the constitutional authority of the federal

government.

B. Minimum National Standards

SORNA establishes a national baseline for sex offender registration and notification

programs. In other words, the Act generally constitutes a set of minimum national standards and

sets a floor, not a ceiling, for jurisdictions’ programs. Hence, for example, a jurisdiction may

have a system that requires registration by broader classes of convicted offenders than those

identified in SORNA, or that requires, in addition, registration by certain classes of non-convicts

(such as persons acquitted on the ground of insanity of sexually violent crimes or child

molestation offenses, or persons released following civil commitment as sexually dangerous

persons). A jurisdiction may require verification of the registered address or other registration

information by sex offenders with greater frequency than SORNA requires, or by other means in

addition to those required by SORNA (e.g., through the use of mailed address verification forms,

in addition to in-person appearances). A jurisdiction may require sex offenders to register for

longer periods than those required by the SORNA standards. A jurisdiction may require that

changes in registration information be reported by registrants on a more stringent basis than the

SORNA minimum standards—e.g., requiring that changes of residence be reported before the

sex offender moves, rather than within three business days following the move. A jurisdiction

may extend website posting to broader classes of registrants than SORNA requires and may post

more information concerning registrants than SORNA and these Guidelines require.

Such measures, which encompass the SORNA baseline of sex offender registration and

notification requirements but go beyond them, generally have no negative implication concerning

jurisdictions’ implementation of or compliance with SORNA. This is so because the general

purpose of SORNA is to protect the public from sex offenders and offenders against children

through effective sex offender registration and notification, and it is not intended to preclude or

limit jurisdictions’ discretion to adopt more extensive or additional registration and notification

requirements to that end. There is an exception to this general rule in SORNA § 118(b), which

requires that certain types of information, such as victim identity and registrants’ Social Security

numbers, be excluded from jurisdictions’ publicly accessible sex offender websites, as discussed

in Part VII of these Guidelines. In other respects, jurisdictions’ discretion to go further than the

SORNA minimum is not limited.

C. Retroactivity

The applicability of the SORNA requirements is not limited to sex offenders whose

predicate sex offense convictions occur following a jurisdiction’s implementation of a

conforming registration program. Rather, SORNA’s requirements took effect when SORNA was

enacted on July 27, 2006, and they have applied since that time to all sex offenders, including

those whose convictions predate SORNA’s enactment. See 72 FR 8894, 8895-96 (Feb. 28,

2007); 28 CFR 72.3. The application of the SORNA standards to sex offenders whose

convictions predate SORNA creates no ex post facto problem “because the SORNA sex offender

registration and notification requirements are intended to be non-punitive, regulatory measures

adopted for public safety purposes, and hence may validly be applied (and enforced by criminal

sanctions) against sex offenders whose predicate convictions occurred prior to the creation of

these requirements. See Smith v. Doe, 538 U.S. 84 (2003).” 72 FR at 8896.

As a practical matter, jurisdictions may not be able to identify all sex offenders who fall

within the SORNA registration categories, where the predicate convictions predate the enactment

of SORNA or the jurisdiction’s implementation of the SORNA standards in its registration

program, particularly where such sex offenders have left the justice system and merged into the

general population long ago. But many sex offenders with such convictions will remain in (or

reenter) the system because:

! They are incarcerated or under supervision, either for the predicate sex offense or for

some other crime;

! They are already registered or subject to a pre-existing sex offender registration

requirement under the jurisdiction’s law; or

! They hereafter reenter the jurisdiction’s justice system because of conviction for some

other crime (whether or not a sex offense).

Sex offenders in these three classes are within the cognizance of the jurisdiction, and the

jurisdiction will often have independent reasons to review their criminal histories for penal,

correctional, or registration/notification purposes. Accordingly, a jurisdiction will be deemed to

have substantially implemented the SORNA standards with respect to sex offenders whose

predicate convictions predate the enactment of SORNA or the implementation of SORNA in the

jurisdiction’s program if it registers these sex offenders, when they fall within any of the three

classes described above, in conformity with the SORNA standards. (For more about the

registration of sex offenders in these classes, see the discussion under “retroactive classes” in

Part IX of these Guidelines.)

The required retroactive application of the SORNA requirements will also be limited in

some cases by the limits on the required duration of registration. As discussed in Part XII of

these Guidelines, SORNA requires minimum registration periods of varying length for sex

offenders in different categories, defined by criteria relating to the nature of their sex offenses

and their history of recidivism. This means that a sex offender with a pre-SORNA conviction

may have been in the community for a greater amount of time than the registration period

required by SORNA. For example, SORNA § 115 requires registration for 25 years for a sex

offender whose offense satisfies the “tier II” criteria of section 111(3). A sex offender who was

released from imprisonment for such an offense in 1980 is already more than 25 years out from

the time of release. In such cases, a jurisdiction may credit the sex offender with the time elapsed

from his or her release (or the time elapsed from sentencing, in case of a non-incarcerative

sentence), and does not have to require the sex offender to register on the basis of the conviction,

even if the criteria for retroactive application of the SORNA standards under this Part are

otherwise satisfied.

As with other requirements under SORNA and these Guidelines, the foregoing discussion

identifies only the minimum required for SORNA compliance. Jurisdictions are free to require

registration for broader classes of sex offenders with convictions that predate SORNA or the

jurisdiction’s implementation of the SORNA standards in its program.

D. Automation—Electronic Databases and Software

Several features of SORNA contemplate, or will require as a practical matter, the use of

current electronic and cyber technology to seamlessly track sex offenders who move from one

jurisdiction to another, ensure that information concerning registrants is immediately made

available to all interested jurisdictions, and make information concerning sex offenders

immediately available to the public as appropriate. These include provisions for immediate

information sharing among jurisdictions under SORNA § 113(c); a requirement in section 119(b)

that the Attorney General ensure “that updated information about a sex offender is immediately

transmitted by electronic forwarding to all relevant jurisdictions”; and requirements in section

121(b) that sex offender registration information and updates thereto be provided immediately to

various public and private entities and individuals. (For more about these information sharing

requirements and associated time frames, see Parts VII.B and X of these Guidelines.)

Carrying out the SORNA information sharing requirements accordingly will entail

maintenance by jurisdictions of their registries in the form of electronic databases, whose

included information can be electronically transmitted to other jurisdictions and entities. This

point is further discussed in connection with the specific SORNA standards, particularly in Parts

VI, VII, and X of these Guidelines.

Section 123 of SORNA directs the Attorney General, in consultation with the

jurisdictions, to develop and support registry management and website software. The purposes

of the software include facilitating the immediate exchange of sex offender information among

jurisdictions, public access through the Internet to sex offender information and other forms of

community notification, and compliance in other respects with the SORNA requirements. As

required by section 123, the Department of Justice will develop and make available to the

jurisdictions software tools for the operation of their sex offender registration and notification

programs, which will, as far as possible, be designed to automate these processes and enable the

jurisdictions to implement SORNA’s requirements by utilizing the software.

E. Implementation

Section 124 of SORNA sets a general time frame of three years for implementation,

running from the date of enactment of SORNA, i.e., from July 27, 2006. The Attorney General

is authorized to provide up to two one-year extensions of this deadline. Failure to comply within

the applicable time frame would result in a 10% reduction of federal justice assistance funding

under 42 U.S.C. 3750 et seq. (“Byrne Justice Assistance Grant” funding). See SORNA § 125(a).

Funding withheld from jurisdictions because of noncompliance would be reallocated to other

jurisdictions that are in compliance, or could be reallocated to the noncompliant jurisdiction to be

used solely for the purpose of SORNA implementation.

While SORNA sets minimum standards for jurisdictions’ registration and notification

programs, it does not require that its standards be implemented by statute. Hence, in assessing

compliance with SORNA, the totality of a jurisdiction’s rules governing the operation of its

registration and notification program will be considered, including administrative policies and

procedures as well as statutes.

The SMART Office will be responsible for determining whether a jurisdiction has

substantially implemented the SORNA requirements. The affected jurisdictions are encouraged

to submit information to the SMART Office concerning existing and proposed sex offender

registration and notification provisions with as much lead time as possible, so the SMART Office

can assess the adequacy of existing or proposed measures to implement the SORNA

requirements and work with the submitting jurisdictions to overcome any shortfalls or problems.

At the latest, submissions establishing compliance with the SORNA requirements should be

made to the SMART Office at least three months before the deadline date of July 27, 2009—i.e.,

by April 27, 2009—so that the matter can be determined before the Byrne Grant funding

reduction required by SORNA § 125 for noncompliant jurisdictions takes effect. If it is

anticipated that a submitting jurisdiction may need an extension of time as described in SORNA

§ 124(b), the submission to the SMART Office—which should be made by April 27, 2009, as

noted—should include a description of the jurisdiction’s implementation efforts and an

explanation why an extension is needed.

SORNA § 125 refers to “substantial” implementation of SORNA. The standard of

“substantial implementation” is satisfied with respect to an element of the SORNA requirements

if a jurisdiction carries out the requirements of SORNA as interpreted and explained in these

Guidelines. Hence, the standard is satisfied if a jurisdiction implements measures that these

Guidelines identify as sufficient to implement (or “substantially” implement) the SORNA

requirements.

Jurisdictions’ programs cannot be approved as substantially implementing the SORNA

requirements if they substitute some basically different approach to sex offender registration and

notification that does not incorporate SORNA’s baseline requirements—e.g., a “risk assessment”

approach that broadly authorizes the waiver of registration or notification requirements or their

reduction below the minima specified in SORNA on the basis of factors that SORNA does not

authorize as grounds for waiving or limiting registration or notification. Likewise, the

“substantial implementation” standard does not mean that programs can be approved if they

dispense wholesale with categorical requirements set forth in SORNA, such as by adopting

general standards that do not require registration for offenses included in SORNA’s offense

coverage provisions, that set regular reporting periods for changes in registration information that

are longer than those specified in SORNA, or that prescribe less frequent appearances for

verification or shorter registration periods than SORNA requires.

The substantial implementation standard does, however, contemplate that there is some

latitude to approve a jurisdiction’s implementation efforts, even if they do not exactly follow in

all respects the specifications of SORNA or these Guidelines. For example, section 116 of

SORNA requires periodic in-person appearances by sex offenders to verify their registration

information. But in some cases this will be impossible, either temporarily (e.g., in the case of a

sex offender hospitalized and unconscious because of an injury at the time of the scheduled

appearance) or permanently (e.g., in the case of a sex offender who is in a persistent vegetative

state). In other cases, the appearance may not be literally impossible, but there may be reasons to

allow some relaxation of the requirement in light of the sex offender’s personal circumstances.

For example, a sex offender may unexpectedly need to deal with a family emergency at the time

of a scheduled appearance, where failure to make the appearance will mean not verifying the

registration information within the exact time frame specified by SORNA § 116. A jurisdiction

may wish to authorize rescheduling of the appearance in such cases. Doing so would not

necessarily undermine substantially the objectives of the SORNA verification requirements, so

long as the jurisdiction’s rules or procedures require that the sex offender notify the official

responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be

carried out once the interfering circumstance is resolved.

In general, the SMART Office will consider on a case-by-case basis whether

jurisdictions’ rules or procedures that do not exactly follow the provisions of SORNA or these

Guidelines “substantially” implement SORNA, assessing whether the departure from a SORNA

requirement will or will not substantially disserve the objectives of the requirement. If a

jurisdiction is relying on the authorization to approve measures that “substantially” implement

SORNA as the basis for an element or elements in its system that depart in some respect from the

exact requirements of SORNA or these Guidelines, the jurisdiction’s submission to the SMART

Office should identify these elements and explain why the departure from the SORNA

requirements should not be considered a failure to substantially implement SORNA.

Beyond the general standard of substantial implementation, SORNA § 125(b) includes

special provisions for cases in which the highest court of a jurisdiction has held that the

jurisdiction’s constitution is in some respect in conflict with the SORNA requirements. If a

jurisdiction believes that it faces such a situation, it should inform the SMART Office. The

SMART Office will then work with the jurisdiction to see whether the problem can be overcome,

as the statute provides. If it is not possible to overcome the problem, then the SMART Office

may approve the jurisdiction’s adoption of reasonable alternative measures that are consistent

with the purposes of SORNA.

Section 125 of SORNA, as discussed above, provides for a funding reduction for

jurisdictions that do not substantially implement SORNA within the applicable time frame.

Section 126 of SORNA authorizes positive funding assistance—the Sex Offender Management

Assistance (“SOMA”) grant program—to all registration jurisdictions to help offset the costs of

SORNA implementation, with enhanced payments authorized for jurisdictions that effect such

implementation within one or two years of SORNA’s enactment. Congress has not appropriated

funding for the SOMA program at the time of the issuance of these Guidelines. If funding for

this program is forthcoming in the future, additional guidance will be provided concerning

application for grants under the program.

III. COVERED JURISDICTIONS

Section 112(a) of SORNA states that “[e]ach jurisdiction shall maintain a jurisdiction-

wide sex offender registry conforming to the requirements of this title,” and section 124 provides

specific deadlines for “jurisdictions” to carry out the SORNA implementation. Related

definitions appear in section 111(9) and (10). Section 111(9) provides that “sex offender

registry” means a registry of sex offenders and a notification program.

Section 111(10) provides that “jurisdiction” refers to:

! the 50 States;

! the District of Columbia;

! the five principal U.S. territories—the Commonwealth of Puerto Rico, Guam, American

Samoa, the Northern Mariana Islands, and the United States Virgin Islands; and

! Indian tribes to the extent provided in section 127.

Some of the provisions in SORNA are formulated as directions to sex offenders,

including those appearing in sections 113(a)-(b), 113(c) (first sentence), 114(a), 115(a), and 116.

Other SORNA provisions are cast as directions to jurisdictions or their officials, such as those

appearing in sections 113(c) (second sentence), 113(e), 114(b), 117(a), 118, 121(b), and 122. To

meet the requirement under sections 112 and 124 that covered jurisdictions must implement

SORNA in their registration and notification programs, each jurisdiction must incorporate in the

laws and rules governing its registration and notification program the requirements that SORNA

imposes on sex offenders, as well as those that are addressed directly to jurisdictions and their

officials.

While the “jurisdictions” assigned sex offender registration and notification

responsibilities by SORNA are the 50 States, the District of Columbia, the principal territories,

and Indian tribes (to the extent provided in section 127), as described above, this does not limit

the ability of these jurisdictions to carry out these functions through their political subdivisions or

other entities within the jurisdiction. For example, a jurisdiction may assign responsibility for

initially registering sex offenders upon their release from imprisonment to correctional personnel

who are employees of the jurisdiction’s government, but the responsibility for continued tracking

and registration of sex offenders thereafter may be assigned to personnel of local police

departments, sheriffs’ offices, or supervision agencies who are municipal employees. Moreover,

in carrying out their registration and notification functions, jurisdictions are free to utilize (and to

allow their agencies and political subdivisions to utilize) entities and individuals who may not be

governmental agencies or employees in a narrow sense, such as contractors, volunteers, and

community-based organizations that are capable of discharging these functions. SORNA does

not limit jurisdictions’ discretion concerning such matters. Rather, so long as a jurisdiction’s

laws and rules provide consistently for the discharge of the required registration and notification

functions by some responsible individuals or entities, the specifics concerning such assignments

of responsibility are matters within the jurisdiction’s discretion. References in these Guidelines

should be understood accordingly, so that (for example) a reference to an “official” carrying out a

registration function does not mean that the function must be carried out by a government

employee, but rather is simply a way of referring to whatever individual is assigned responsibility

for the function.

With respect to Indian tribes, SORNA recognizes that tribes may vary in their capacities

and preferences regarding the discharge of sex offender registration and notification functions,

and accordingly section 127 of SORNA has special provisions governing the treatment of Indian

tribes as registration jurisdictions or the delegation of registration and notification functions to

the states. Specifically, section 127(a)(1) generally afforded federally recognized Indian tribes a

choice between electing to carry out the sex offender registration and notification functions

specified in SORNA in relation to sex offenders subject to its jurisdiction, or delegating those

functions to a state or states within which the tribe is located. SORNA provided a period of one

year commencing with SORNA’s enactment on July 27, 2006 for tribes to make this choice.

SORNA further required that the election to become a SORNA registration jurisdiction, or to

delegate to a state or states, be made by resolution or other enactment of the tribal council or

comparable governmental body. Hence, the decision must have been made by a tribal

governmental entity—“the tribal council or comparable governmental body”—that has the legal

authority to make binding legislative decisions for the tribe. (However, delegation to the state or

states is automatic for a tribe subject to state law enforcement jurisdiction under 18 U.S.C. 1162,

and for a tribe that did not affirmatively elect to become a SORNA registration jurisdiction on or

prior to July 27, 2007—see the discussion of section 127(a)(2) below.)

If a tribe has elected to be a SORNA registration jurisdiction in conformity with section

127, its functions and responsibilities regarding sex offender registration and notification are the

same as those of a state. Duplication of registration and notification functions by tribes and

states is not required, however, and such tribes may enter into cooperative agreements with the

states for the discharge of these functions, as discussed below in connection with section 127(b).

If a tribe has elected to delegate to a state—or if a delegation to the state occurs pursuant

to section 127(a)(2)—then the state is fully responsible for carrying out the SORNA registration

and notification functions, and the delegation includes an undertaking by the tribe to “provide

access to its territory and such other cooperation and assistance as may be needed to enable [the

state] to carry out and enforce the requirements of [SORNA].” SORNA § 127(a)(1)(B). This

does not mean, however, that tribal authorities in such a tribe are precluded from carrying out sex

offender registration and notification functions. Sovereign powers that these tribes otherwise

possess to prescribe registration and notification requirements for sex offenders subject to their

jurisdiction are not restricted by SORNA, so long as there is no conflict with the state’s discharge

of its responsibilities under SORNA. Moreover, as discussed above, states generally have

discretion concerning the entities within the state through which the SORNA registration and

notification functions are to be carried out, and tribal entities are not excluded. For example,

with respect to a tribe subject to state law enforcement jurisdiction under 18 U.S.C. 1162, the

state may conclude that a tribal agency is best situated to carry out registration functions with

respect to sex offenders residing in the tribe’s territory. In some instances such tribes may have

been operating sex offender registration programs of their own prior to the enactment of

SORNA, and arranging with the tribe for the continued discharge of registration functions by the

tribal authorities may be the most expedient way for the state to carry out the required SORNA

functions in such a tribal area.

Section 127(a)(2) of SORNA specifies three circumstances in which registration and

notification functions are deemed to be delegated to the state or states in which a tribe is located,

even if the tribe did not make an affirmative decision to delegate:

! Under subparagraph (A) of subsection (a)(2), these functions are always delegated to the

state if the tribe is subject to the law enforcement jurisdiction of the state under 18 U.S.C.

1162. (If a tribe’s land is in part subject to state law enforcement jurisdiction under 18

U.S.C. 1162 and in part outside of the areas subject to 18 U.S.C. 1162, then: (i) sex

offender registration and notification functions are automatically delegated to the relevant

state in the portion of the tribal land subject to 18 U.S.C. 1162, and (ii) the tribe could

have made an election between functioning as a registration jurisdiction or delegating

registration and notification functions to the state in the portion of its land that is not

subject to 18 U.S.C. 1162.)

! Under subparagraph (B) of subsection (a)(2), these functions are delegated to the state or

states if the tribe did not make an affirmative election to function as a registration

jurisdiction within one year of the enactment of SORNA—i.e., within one year of July 27,

2006—or rescinds a previous election to function as a registration jurisdiction.

! Under subparagraph (C) of subsection (a)(2), these functions are delegated to the state or

states if the Attorney General determines that the tribe has not substantially implemented

the requirements of SORNA and is not likely to become capable of doing so within a

reasonable amount time.

If a tribe did elect under section 127 to become a SORNA registration jurisdiction,

section 127(b) specifies that this does not mean that the tribe must duplicate registration and

notification functions that are fully carried out by the state or states within which the tribe is

located, and subsection (b) further authorizes the tribes and the states to make cooperative

arrangements for the discharge of some or all of these functions. For example, SORNA § 118

requires jurisdictions to make information concerning their sex offenders available to the public

through the Internet. If a tribe did not want to maintain a separate sex offender website for this

purpose, it would not need to do so, as long as a cooperative agreement was made with the state

to have information concerning the tribe’s registrants posted on the state’s sex offender website.

Likewise, a tribe that has elected to be a SORNA registration jurisdiction remains free to make

cooperative agreements under which the state (or a political subdivision thereof) will handle

registration of the tribe’s sex offenders—such as initially registering these sex offenders,

conducting periodic appearances of the sex offenders to verify the registration information, and

receiving reports by the sex offenders concerning changes in the registration information—to the

extent and in a manner mutually agreeable to the tribe and the state. In general, the use of

cooperative agreements affords tribes flexibility in deciding which functions under SORNA they

would seek to have state authorities perform, and which they wish to control or discharge

directly. For example, the state could carry out certain registration functions, but the tribe could

retain jurisdiction over the arrest within its territory of sex offenders who fail to register, update

registrations, or make required verification appearances, if a cooperative agreement between the

tribe and the state so provided.

Tribes that have elected to be SORNA registration jurisdictions in conformity with

section 127 may also make agreements or enter into arrangements with other such tribes for the

cooperative or shared discharge of registration and notification functions. For example, a group

of tribes with adjacent territories might wish to enter into an agreement under which the

participating tribes contribute resources and information to the extent of their capacities, but the

tribal police department (or some other agency) of one of the tribes in the group has primary

responsibility for the discharge of the SORNA registration functions in relation to sex offenders

subject to the jurisdiction of any of the tribes in the group—such as initially registering sex

offenders who enter the jurisdiction of any of the tribes, receiving information from those sex

offenders concerning subsequent changes in residence or other registration information, and

conducting periodic in-person appearances by the registrants to verify and update the registration

information, as SORNA requires. Likewise, with respect to maintenance of websites providing

public access to sex offender information, as required by SORNA § 118, tribes could enter into

agreements or arrangements among themselves for the shared administration or operation of

websites covering the sex offenders of the participating tribes. So long as such agreements or

arrangements among tribes are designed to ensure that the SORNA registration and notification

functions are carried out consistently in relation to sex offenders subject to the jurisdiction of any

of the participating tribes, discharge of the SORNA responsibilities by such means will be

considered as satisfying the SORNA substantial implementation standard.

IV. COVERED SEX OFFENSES AND SEX OFFENDERS

SORNA refers to the persons required to register under its standards as “sex offenders,”

and section 111(1) of SORNA defines “sex offender” in the relevant sense to mean “an

individual who was convicted of a sex offense.” “Sex offense” is in turn defined in section

111(5) and related provisions. The term encompasses a broad range of offenses of a sexual

nature under the law of any jurisdiction—including offenses under federal, military, state,

territorial, local, tribal, and foreign law, but with some qualification regarding foreign

convictions as discussed below.

A. Convictions Generally

A “sex offender” as defined in SORNA § 111(1) is a person who was “convicted” of a

sex offense. Hence, whether an individual has a sex offense “conviction” determines whether he

or she is within the minimum categories for which the SORNA standards require registration.

Because the SORNA registration requirements are predicated on convictions, registration

(or continued registration) is normally not required under the SORNA standards if the predicate

conviction is reversed, vacated, or set aside, or if the person is pardoned for the offense on the

ground of innocence. This does not mean, however, that nominal changes or terminological

variations that do not relieve a conviction of substantive effect negate the SORNA requirements.

For example, the need to require registration would not be avoided by a jurisdiction’s having a

procedure under which the convictions of sex offenders in certain categories (e.g., young adult

sex offenders who satisfy certain criteria) are referred to as something other than “convictions,”

or under which the convictions of such sex offenders may nominally be “vacated” or “set aside,”

but the sex offender is nevertheless required to serve what amounts to a criminal sentence for the

offense. Rather, an adult sex offender is “convicted” for SORNA purposes if the sex offender

remains subject to penal consequences based on the conviction, however it may be styled.

Likewise, the sealing of a criminal record or other action that limits the publicity or availability

of a conviction, but does not deprive it of continuing legal validity, does not change its status as a

“conviction” for purposes of SORNA.

“Convictions” for SORNA purposes include convictions of juveniles who are prosecuted

as adults. It does not include juvenile delinquency adjudications, except under the circumstances

specified in SORNA § 111(8). Section 111(8) provides that delinquency adjudications count as

convictions “only if the offender is 14 years of age or older at the time of the offense and the

offense adjudicated was comparable to or more severe than aggravated sexual abuse (as

described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to

commit such an offense.”

Hence, SORNA does not require registration for juveniles adjudicated delinquent for all

sex offenses for which an adult sex offender would be required to register, but rather requires

registration only for a defined class of older juveniles who are adjudicated delinquent for

committing particularly serious sexually assaultive crimes (or attempts or conspiracies to commit

such crimes). Considering the relevant aspects of the federal “aggravated sexual abuse” offense

referenced in section 111(8), it suffices for substantial implementation if a jurisdiction applies

SORNA’s requirements to juveniles at least 14 years old at the time of the offense who are

adjudicated delinquent for committing (or attempting or conspiring to commit) offenses under

laws that cover:

! engaging in a sexual act with another by force or the threat of serious violence; or

! engaging in a sexual act with another by rendering unconscious or involuntarily drugging

the victim.

“Sexual act” for this purpose should be understood to include any degree of genital or anal

penetration, and any oral-genital or oral-anal contact. This follows from the relevant portions of

the definition of sexual act in 18 U.S.C. 2246(2), which applies to the 18 U.S.C. 2241

“aggravated sexual abuse” offense. (The summary of comments received on these Guidelines as

initially proposed for public comment may be consulted for further explanation concerning this

understanding of the requirements for substantial implementation of section 111(8).)

As with other aspects of SORNA, the foregoing defines minimum standards. Hence, the

inclusions and exclusions in the definition of “conviction” for purposes of SORNA do not

constrain jurisdictions from requiring registration by additional individuals—e.g., more broadly

defined categories of juveniles adjudicated delinquent for sex offenses—if they are so inclined.

B. Foreign Convictions

Section 111(5)(B) of SORNA instructs that registration need not be required on the basis

of a foreign conviction if the conviction “was not obtained with sufficient safeguards for

fundamental fairness and due process for the accused under guidelines or regulations established

[by the Attorney General].” The following standards are adopted pursuant to section 111(5)(B):

! Sex offense convictions under the laws of Canada, United Kingdom, Australia, and New

Zealand are deemed to have been obtained with sufficient safeguards for fundamental

fairness and due process, and registration must be required for such convictions on the

same footing as domestic convictions.

! Sex offense convictions under the laws of any foreign country are deemed to have been

obtained with sufficient safeguards for fundamental fairness and due process if the U.S.

State Department, in its Country Reports on Human Rights Practices, has concluded that

an independent judiciary generally (or vigorously) enforced the right to a fair trial in that

country during the year in which the conviction occurred. Registration must be required

on the basis of such convictions on the same footing as domestic convictions.

! With respect to sex offense convictions in foreign countries that do not satisfy the criteria

stated above, a jurisdiction is not required to register the convicted person if the

jurisdiction determines—through whatever process or procedure it may choose to

adopt—that the conviction does not constitute a reliable indication of factual guilt

because of the lack of an impartial tribunal, because of denial of the right to respond to

the evidence against the person or to present exculpatory evidence, or because of denial

of the right to the assistance of counsel.

The foregoing standards do not mean that jurisdictions must incorporate these particular

criteria or procedures into their registration systems. Jurisdictions may wish to register all

foreign sex offense convicts, or to register such convicts with fewer qualifications or limitations

than those allowed under the standards set forth above. The stated criteria only define the

minimum categories of foreign convicts for whom registration is required for compliance with

SORNA, and as is generally the case under SORNA, jurisdictions are free to require registration

more broadly than the SORNA minimum.

C. Sex Offenses Generally

The general definition of sex offenses for which registration is required under the

SORNA standards appears in section 111(5)(A). The clauses in the definition cover the

following categories of offenses:

! SEXUAL ACT AND SEXUAL CONTACT OFFENSES (§ 111(5)(A)(i)): The first

clause in the definition covers “a criminal offense that has an element involving a sexual

act or sexual contact with another.” (“Criminal offense” in the relevant sense refers to

offenses under any body of criminal law, including state, local, tribal, foreign, military,

and other offenses, as provided in section 111(6).) The offenses covered by this clause

should be understood to include all sexual offenses whose elements involve: (i) any type

or degree of genital, oral, or anal penetration, or (ii) any sexual touching of or contact

with a person’s body, either directly or through the clothing. Cf. 18 U.S.C. 2246(2)-(3)

(federal law definitions of sexual act and sexual contact).

! SPECIFIED OFFENSES AGAINST MINORS (§ 111(5)(A)(ii)): The second clause in

the definition covers “a criminal offense that is a specified offense against a minor.” The

statute provides a detailed definition of “specified offense against a minor” in section

111(7), which is discussed separately below.

! SPECIFIED FEDERAL OFFENSES (§ 111(5)(A)(iii)): The third clause covers most

sexual offenses under federal law. The clause identifies chapters and offense provisions

in the federal criminal code by citation.

! SPECIFIED MILITARY OFFENSES (§ 111(5)(A)(iv)): The fourth clause covers sex

offenses under the Uniform Code of Military Justice, as specified by the Secretary of

Defense.

! ATTEMPTS AND CONSPIRACIES (§ 111(5)(A)(v)): The final clause in the definition

covers attempts and conspiracies to commit offenses that are otherwise covered by the

definition of “sex offenses.” This includes both offenses prosecuted under general

attempt or conspiracy provisions, where the object offense falls under the SORNA “sex

offense” definition, and particular offenses that are defined as, or in substance amount to,

attempts or conspiracies to commit offenses that are otherwise covered. For example, in

the latter category, a jurisdiction may define an offense of “assault with intent to commit

rape.” Whether or not the word “attempt” is used in the definition of the offense, this is

in substance an offense that covers certain attempts to commit rapes and hence is covered

under the final clause of the SORNA definition.

SORNA § 111(5)(C) qualifies the foregoing definition of “sex offense” to exclude “[a]n

offense involving consensual sexual conduct . . . if the victim was an adult, unless the adult was

under the custodial authority of the offender at the time of the offense, or if the victim was at

least 13 years old and the offender was not more than 4 years older than the victim.” The general

exclusion with respect to consensual sexual offenses involving adult victims means, for example,

that a jurisdiction does not have to require registration based on prostitution offenses that consist

of the offender paying or receiving payment from an adult for a sexual act between them (unless

the victim is under the custodial authority of the offender). The exclusion for certain cases

involving child victims based on victim age and age difference means that a jurisdiction may not

have to require registration in some cases based on convictions under provisions that prohibit

sexual acts or contact (even if consensual) with underage persons. For example, under the laws

of some jurisdictions, an 18-year-old may be criminally liable for engaging in consensual sex

with a 15-year-old. The jurisdiction would not have to require registration in such a case to

comply with the SORNA standards, since the victim was at least 13 and the offender was not

more than four years older.

D. Specified Offenses Against Minors

The offenses for which registration is required under the SORNA standards include any

“specified offense against a minor” as defined in section 111(7). The SORNA § 111(7)

definition of specified offense against a minor covers any offense against a minor—i.e., a person

under the age of 18, as provided in section 111(14)—that involves any of the following:

! KIDNAPPING OR FALSE IMPRISONMENT OF A MINOR (§ 111(7)(A)-(B)): These

clauses cover “[a]n offense (unless committed by a parent or guardian) involving

kidnapping [of a minor]” and “[a]n offense (unless committed by a parent or guardian)

involving false imprisonment [of a minor].” The relevant offenses are those whose

gravamen is abduction or unlawful restraint of a person, which go by different names in

different jurisdictions, such as “kidnapping,” “criminal restraint,” or “false

imprisonment.” Jurisdictions can implement the offense coverage requirement of these

clauses by requiring registration for persons convicted of offenses of this type (however

designated) whose victims were below the age of 18. It is left to jurisdictions’ discretion

under these clauses whether registration should be required for such offenses in cases

where the offender is a parent or guardian of the victim.

! SOLICITATION OF A MINOR TO ENGAGE IN SEXUAL CONDUCT (§ 111(7)(C)):

This clause covers “[s]olicitation [of a minor] to engage in sexual conduct.”

“Solicitation” under this clause and other SORNA provisions that use the term should be

understood broadly to include any direction, request, enticement, persuasion, or

encouragement of a minor to engage in sexual conduct. “Sexual conduct” should be

understood to refer to any sexual activity involving physical contact. (See the discussion

later in this list of “criminal sexual conduct” under section 111(7)(H).) Hence,

jurisdictions can implement the offense coverage requirement under this clause by

requiring registration, in cases where the victim was below the age of 18, based on:

" any conviction for an offense involving solicitation of the victim under a general

attempt or solicitation provision, where the elements of the object offense include

sexual activity involving physical contact, and

" any 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.

! USE OF A MINOR IN A SEXUAL PERFORMANCE (§ 111(7)(D)): This clause covers

offenses involving “[u]se [of a minor] in a sexual performance.” That includes both live

performances and using minors in the production of pornography, and has some overlap

with section 111(7)(G), which expressly covers child pornography offenses.

! SOLICITATION OF A MINOR TO PRACTICE PROSTITUTION (§ 111(7)(E)): This

clause covers offenses involving “[s]olicitation [of a minor] to practice prostitution.”

Jurisdictions can implement the offense coverage requirement under this clause by

requiring registration, in cases where the victim was below the age of 18, based on:

" any 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

" any 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.

! VIDEO VOYEURISM INVOLVING A MINOR (§ 111(7)(F)): This clause covers

“[v]ideo voyeurism as described in section 1801 of title 18, United States Code [against a

minor].” The cited federal offense in essence covers capturing the image of a private area

of another person’s body, where the victim has a reasonable expectation of privacy

against such conduct. Jurisdictions can implement the offense coverage requirement

under this clause by requiring registration for offenses of this type, in cases where the

victim was below the age of 18.

! POSSESSION, PRODUCTION, OR DISTRIBUTION OF CHILD PORNOGRAPHY

(§ 111(7)(G)): This clause covers “possession, production, or distribution of child

pornography.” Jurisdictions can implement the offense coverage requirement under this

clause by requiring registration for offenses whose gravamen is creating or participating

in the creation of sexually explicit visual depictions of persons below the age of 18,

making such depictions available to others, or having or receiving such depictions.

! CRIMINAL SEXUAL CONDUCT INVOLVING A MINOR AND RELATED

INTERNET ACTIVITIES (§ 111(7)(H)): This clause covers “[c]riminal sexual conduct

involving a minor, or the use of the Internet to facilitate or attempt such conduct.” The

definition has two parts:

" The “criminal sexual conduct involving a minor” language in this definition

covers sexual offenses whose elements involve physical contact with the victim—

such as provisions defining crimes of “rape,” “sexual assault,” “sexual abuse,” or

“incest”—in cases where the victim was below 18 at the time of the offense. In

addition, it covers offenses whose elements involve using other persons in

prostitution—such as provisions defining crimes of “pandering,” “procuring,” or

“pimping”—in cases where the victim was below 18 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 prosecution for specially defined child molestation or child

prostitution offenses. Jurisdictions can implement the offense coverage

requirement under the “criminal sexual conduct involving a minor” language of

this clause by requiring registration for “criminal sexual conduct” offenses as

described above whenever the victim was in fact below the age of 18 at the time

of the offense. (Section 111(7)(C) and (E) separately require coverage of offenses

involving solicitation of a minor to engage in sexual conduct or to practice

prostitution, but registration must be required for offenses involving sexual

conduct with a minor or the use of a minor in prostitution in light of section

111(7)(H), whether or not the offense involves “solicitation” of the victim.)

" Jurisdictions can implement the “use of the Internet to facilitate or attempt such

conduct” part of this definition by requiring registration for offenses that involve

use of the Internet in furtherance of criminal sexual conduct involving a minor as

defined above, such as attempting to lure minors through Internet communications

for the purpose of sexual activity.

! CONDUCT BY ITS NATURE A SEX OFFENSE AGAINST A MINOR (§ 111(7)(I)):

The final clause covers “[a]ny conduct that by its nature is a sex offense against a minor.”

It is intended to ensure coverage of convictions under statutes defining sexual offenses in

which the status of the victim as a minor is an element of an offense, such as specially

defined child molestation or child prostitution offenses, and other offenses prohibiting

sexual activity with underage persons. Jurisdictions can comply with the offense

coverage requirement under this clause by including convictions for such offenses in their

registration requirements.

E. Protected Witnesses

The requirement that jurisdictions substantially implement SORNA does not preclude

their taking measures needed to protect the security of individuals who have been provided new

identities and relocated under the federal witness security program (see 18 U.S.C. 3521 et seq.)

or under other comparable witness security programs operated by non-federal jurisdictions. A

jurisdiction may conclude that it is necessary to exclude an individual afforded protection in such

a program from its sex offender registry or from public notification for security reasons, though

the individual otherwise satisfies the criteria for registration and notification under SORNA.

Alternatively, the jurisdiction may choose not to waive registration but may identify the registrant

in the registration system records only by his or her new identity or data, if such modifications

can be so devised that they are not transparent and do not permit the registrant’s original identity

or participation in a witness security program to be inferred. Jurisdictions are permitted and

encouraged to make provision in their laws and procedures to accommodate consideration of the

security of such individuals and to honor requests from the United States Marshals Service and

other agencies responsible for witness protection in order to ensure that their original identities

are not compromised.

With respect to witnesses afforded federal protection, 18 U.S.C. 3521(b)(1)(H)

specifically authorizes the Attorney General to “protect the confidentiality of the identity and

location of persons subject to registration requirements as convicted offenders under Federal or

State law, including prescribing alternative procedures to those otherwise provided by Federal or

State law for registration and tracking of such persons.” U.S. Department of Justice Witness

Security Program officials accordingly determine on a case-by-case basis whether such witnesses

will be required to register, and if registration occurs, whether it will utilize new identities,

modified data, or other special conditions or procedures that are warranted to avoid jeopardizing

the safety of the protected witnesses.

V. CLASSES OF SEX OFFENDERS

Section 111(2)-(4) of SORNA defines three “tiers” of sex offenders. The tier

classifications have implications in three areas: (i) under section 115, the required duration of

registration depends primarily on the tier; (ii) under section 116, the required frequency of in-

person appearances by sex offenders to verify registration information depends on the tier; and

(iii) under section 118(c)(1), information about tier I sex offenders convicted of offenses other

than specified offenses against a minor may be exempted from website disclosure.

The use of the “tier” classifications in SORNA relates to substance, not form or

terminology. Thus, to implement the SORNA requirements, jurisdictions do not have to label

their sex offenders as “tier I,” “tier II,” and “tier III,” and do not have to adopt any other

particular approach to labeling or categorization of sex offenders. Rather, the SORNA

requirements are met so long as sex offenders who satisfy the SORNA criteria for placement in a

particular tier are consistently subject to at least the duration of registration, frequency of in-

person appearances for verification, and extent of website disclosure that SORNA requires for

that tier.

For example, suppose that a jurisdiction decides to subject all sex offenders to lifetime

registration, quarterly verification appearances, and full website posting as described in Part VII

of these Guidelines. That would meet the SORNA requirements with respect to sex offenders

satisfying the “tier III” criteria, and exceed the minimum required by SORNA with respect to sex

offenders satisfying the “tier II” or “tier I” criteria. Hence, such a jurisdiction would be able to

implement the SORNA requirements with respect to all sex offenders without any labeling or

categorization, and without having to assess individual registrants against the tier criteria in the

SORNA definitions. Likewise, any other approach a jurisdiction may devise is acceptable if it

ensures that sex offenders satisfying the criteria for each SORNA tier are subject to duration of

registration, appearance frequency, and website disclosure requirements that meet or exceed

those SORNA requires for the tier.

Turning to the specific tier definitions, SORNA § 111(2) defines “tier I sex offender” to

mean “a sex offender other than a tier II or tier III sex offender.” Thus, tier I is a residual class

that includes all sex offenders who do not satisfy the criteria for tier II or tier III. For example,

tier I includes a sex offender whose registration offense is not punishable by imprisonment for

more than one year, a sex offender whose registration offense is the receipt or possession of child

pornography, and a sex offender whose registration offense is a sexual assault against an adult

that involves sexual contact but not a completed or attempted sexual act. (With respect to the

last-mentioned category, a sexual assault involving a completed or attempted sexual act would

generally result in a tier III classification, as discussed below in connection with SORNA

§ 111(4)(A)(i)), but the offense coverage specifications for tier II and tier III do not otherwise

provide a basis for higher classification of sexual contact or touching offenses involving adult

victims.)

The definitions of tier II and tier III—in section 111(3) and 111(4) respectively—are both

limited to cases in which the offense for which the sex offender is required to register “is

punishable by imprisonment for more than 1 year.” This means that the statutory maximum

penalty possible for the offense exceeds one year. It does not mean that inclusion in these tiers is

limited to cases in which the sex offender is actually sentenced to more than a year of

imprisonment.

Because the definitions of tier II and tier III are limited to certain offenses punishable by

imprisonment for more than one year, and federal law does not permit imprisonment for more

than one year based on Indian tribal court convictions, all tribal court convictions are tier I

offenses. However, sex offenses prosecuted in tribal courts may be serious crimes that would

typically carry higher penalties if prosecuted in non-tribal jurisdictions. As the incidents of the

tier classifications under SORNA only define minimum standards, tribal jurisdictions and other

jurisdictions are free to premise more extensive registration and notification requirements on

tribal court convictions than the minimum SORNA requires for tier I offenders, and may wish to

do so considering the substantive nature of the offense or other factors.

Regardless of which jurisdiction convicts the sex offender, the requirements with respect

to the potential length of imprisonment under the statute relate to individual offenses rather than

to aggregate penalties. For example, suppose that a sex offender is charged in three counts with

the commission of sex offenses each of which is punishable by at most one year of

imprisonment, and upon conviction is sentenced to three consecutive terms of six months of

incarceration. Though the aggregate penalty is 18 months, these convictions do not place the sex

offender above tier I, because each offense was not punishable by more than one year of

imprisonment.

The classification of sex offenders as tier II or tier III under SORNA depends in part on

the nature of the offense for which the sex offender is required to register. In assessing whether

the offense satisfies the criteria for tier II or tier III classification, jurisdictions generally may

premise the determination on the elements of the offense, and are not required to look to

underlying conduct that is not reflected in the offense of conviction. However, where the tier

classification depends on commission of an offense against a victim who is below a certain age,

the requirement to give weight to this factor (victim age) is not limited to cases involving

convictions for offenses whose elements specify that the victim must be below that age. Rather,

the requirement applies as well in cases in which the offender is convicted of a more generally

defined offense that may be committed against victims of varying ages, if the victim was in fact

below the relevant age. For example, in a case in which the sex offender was convicted of a

generally defined “sexual contact” offense, whose elements include no specification as to victim

age, tier II treatment is required if the victim was in fact below 18 (SORNA § 111(3)(A)(iv)), and

tier III treatment is required if the victim was in fact below 13 (SORNA § 111(4)(A)(ii)).

Beyond the requirement of an offense punishable by imprisonment for more than one

year, the specific offense-related criteria for tier II are that the registration offense falls within

one of two lists. In general terms, these lists cover most sexual abuse or exploitation offenses

against minors. (Here as elsewhere in SORNA, “minor” means a person under the age of

18—see SORNA § 111(14).) The first list, appearing in section 111(3)(A), covers offenses

committed against minors that are comparable to or more severe than a number of cited federal

offenses—those under 18 U.S.C. 1591, 2422(b), 2423(a), and 2244—and attempts and

conspiracies to commit such offenses. The second list, appearing in section 111(3)(B), covers

use of a minor in a sexual performance, solicitation of a minor to practice prostitution, and

production or distribution of child pornography. Determining whether a jurisdiction’s offenses

satisfy the criteria for this tier is simplified by recognizing that the various cited and described

offenses essentially cover:

! offenses involving the use of minors in prostitution, and inchoate or preparatory offenses

(including attempts, conspiracies, and solicitations) that are directed to the commission of

such offenses;

! offenses against minors involving sexual contact—i.e., any sexual touching of or contact

with the intimate parts of the body, either directly or through the clothing—and inchoate

or preparatory offenses (including attempts, conspiracies, and solicitations) that are

directed to the commission of such offenses;

! offenses involving use of a minor in a sexual performance; and

! offenses involving the production or distribution of child pornography, i.e., offenses

whose gravamen is creating or participating in the creation of sexually explicit visual

depictions of minors or making such depictions available to others.

Hence, jurisdictions can implement the relevant SORNA requirements by according “tier

II” treatment to sex offenders convicted of offenses of these four types.

The corresponding offense coverage specifications for “tier III” in section 111(4)(A)-(B)

cover offenses punishable by more than one year of imprisonment in the following categories:

! Offenses comparable to or more severe than aggravated sexual abuse or sexual abuse as

described in 18 U.S.C. 2241 and 2242, or an attempt or conspiracy to commit such an

offense (see SORNA § 111(4)(A)(i)). Considering the definitions of the cited federal

offenses, comparable offenses under the laws of other jurisdictions would be those that

cover:

" engaging in a sexual act with another by force or threat (see 18 U.S.C. 2241(a),

2242(1));

" engaging in a sexual act with another who has been rendered unconscious or

involuntarily drugged, or who is otherwise incapable of appraising the nature of

the conduct or declining to participate (see 18 U.S.C. 2241(b), 2242(2)); or

" engaging in a sexual act with a child under the age of 12 (see 18 U.S.C. 2241(c)).

Considering the related definition in 18 U.S.C. 2246(2), “sexual act” for this purpose

would include: (i) oral-genital or oral-anal contact, (ii) any degree of genital or anal

penetration, and (iii) direct genital touching of a child under the age of 16.

! Offenses against a minor below the age of 13 that are comparable to or more severe than

abusive sexual contact as defined in 18 U.S.C. 2244, or an attempt or conspiracy to

commit such an offense (see SORNA § 111(4)(A)(ii)). Considering the definitions of the

federal offenses in 18 U.S.C. 2244 and the related definition in 18 U.S.C. 2246(3),

comparable offenses under the laws of other jurisdictions would be those that cover

sexual touching of or contact with the intimate parts of the body, either directly or

through the clothing, where the victim is under 13.

! Kidnapping of a minor (unless committed by a parent or guardian).

Hence, jurisdictions can implement the relevant SORNA requirements by according “tier

III” treatment to sex offenders convicted of offenses of these three types.

In addition to including criteria relating to the nature of the registration offense, the

definitions of tier II and tier III accord significance to a registrant’s history of recidivism.

Specifically, section 111(3)(C) places in tier II any sex offender whose registration offense is

punishable by imprisonment for more than one year, where that offense “occurs after the offender

becomes a tier I sex offender.” Thus, any sex offender whose registration offense is punishable

by more than one year of imprisonment who has a prior sex offense conviction is at least in tier

II. Likewise, section 111(4)(C) places in tier III any sex offender whose registration offense is

punishable by imprisonment for more than one year, where that offense “occurs after the offender

becomes a tier II sex offender.” Thus, any sex offender whose registration offense is punishable

by more than one year of imprisonment, and who at the time of that offense already satisfied the

criteria for inclusion in tier II, is in tier III.

In determining tier enhancements based on recidivism, prior convictions must be taken

into account regardless of when they occurred, including convictions occurring prior to the

enactment of SORNA or its implementation in a particular jurisdiction. For example, consider

an individual who was previously convicted for committing a sexual contact offense (punishable

by more than a year of imprisonment) against a 13-year-old victim in 2000, and who is

subsequently convicted for committing a sexual contact offense (punishable by more than a year

of imprisonment) against a 14-year-old victim in 2010. While the later offense would not in

itself support tier III classification on the basis of section 111(4)(A)(ii), since the victim was not

below 13, tier III treatment would nevertheless be required on the ground of recidivism, since the

earlier offense satisfied the criterion for tier II classification under section 111(3)(A)(iv). It may

not always be possible, however, to obtain a complete record of an offender’s prior convictions,

particularly when they occurred many years or decades ago, and available criminal history

information may be uninformative as to factors such as victim age that can affect the SORNA tier

classification. Jurisdictions may rely on the methods and standards they normally use in

searching criminal records and on the information appearing in the records so obtained in

assessing SORNA tier enhancements based on recidivism.

In applying the SORNA tier definitions, it should be kept in mind that their significance

under SORNA is in determining the extent of registration and notification requirements for

offenders within the SORNA registration categories, and that they do not constitute independent

requirements for jurisdictions to register offenders for whom SORNA does not otherwise require

registration. In particular, the class of juvenile delinquents who are required to register under

SORNA is defined by section 111(8), a class that is narrower in a number of respects than the

class of offenders who satisfy the criteria for tier III classification under section 111(4). (See the

discussion of section 111(8) in Part IV.A of these Guidelines above.) Hence, a juvenile

delinquent’s satisfaction of the criteria for tier III classification under section 111(4) does not in

itself mean that a jurisdiction must require the juvenile to register in order to comply with

SORNA. Rather, that is only the case if the juvenile satisfies the criteria for required registration

of juvenile delinquents under section 111(8).

VI. REQUIRED REGISTRATION INFORMATION

Section 114 of SORNA defines the required minimum informational content of sex

offender registries. It is divided into two lists. The first list, set forth in subsection (a) of section

114, describes information that the registrant will normally be in a position to provide. The

second list, set forth in subsection (b), describes information that is likely to require some

affirmative action by the jurisdiction to obtain, beyond asking the sex offender for the

information. Supplementary to the information that the statute explicitly describes, section

114(a)(7) and (b)(8) authorize the Attorney General to specify additional information that must

be obtained and included in the registry. This expansion authority is utilized to require including

in the registries a number of additional types of information, such as information about

registrants’ e-mail addresses, telephone numbers, and the like, information concerning the

whereabouts of registrants who lack fixed abodes or definite places of employment, and

information about temporary lodging, as discussed below.

Whether a type of information must be obtained by a jurisdiction and included in its sex

offender registry is a distinct question from whether the jurisdiction must make that information

available to the public. Many of the informational items whose inclusion in the registry is

required by section 114 and these Guidelines are not subject to a public disclosure requirement

under SORNA, and some are exempt from public disclosure on a mandatory basis. The public

disclosure requirements under SORNA and exceptions thereto are explained in Part VII of these

Guidelines.

In order to implement requirements for the sharing of registration information appearing

in other sections of SORNA (sections 113(c), 119(b), 121(b)—see Parts VII and X of these

Guidelines for discussion), jurisdictions will need to maintain all required registration

information in digitized form that will enable it to be immediately accessed by or transmitted to

various entities. Hence, the jurisdiction’s registry must be an electronic database, and

descriptions of required types of information in section 114 should consistently be understood as

referring to digitizable information rather than hard copies or physical objects. This does not

mean, however, that all required registration information must be reproduced in a single

segregated database, since the same effect may be achieved by including in the central registry

database links or identification numbers that provide access to the information in other databases

in which it is included (e.g., with respect to criminal history, fingerprint, and DNA information).

These points are further discussed in connection with the relevant informational items.

As with SORNA’s requirements generally, the informational requirements of section 114

and these Guidelines define a floor, not a ceiling, for jurisdictions’ registries. Hence,

jurisdictions are free to obtain and include in their registries a broader range of information than

the minimum requirements described in this Part.

The required minimum informational content for sex offender registries is as follows:

! NAME, ALIASES, AND REMOTE COMMUNICATION IDENTIFIERS AND

ADDRESSES (§ 114(a)(1), (a)(7)):

" NAMES AND ALIASES (§ 114(a)(1)): The registry must include “[t]he name of

the sex offender (including any alias used by the individual).” The names and

aliases required by this provision include, in addition to registrants’ primary or

given names, nicknames and pseudonyms generally, regardless of the context in

which they are used, any designations or monikers used for self-identification in

Internet communications or postings, and ethnic or tribal names by which they are

commonly known.

" INTERNET IDENTIFIERS AND ADDRESSES (§ 114(a)(7)): In the context of

Internet communications there may be no clear line between names or aliases that

are required to be registered under SORNA § 114(a)(1) and addresses that are

used for routing purposes. Moreover, regardless of the label, including in

registries information on designations used by sex offenders for purposes of

routing or self-identification in Internet communications—e.g., e-mail and instant

messaging addresses—serves the underlying purposes of sex offender registration

and notification. Among other potential uses, having this information may help in

investigating crimes committed online by registered sex offenders—such as

attempting to lure children or trafficking in child pornography through the

Internet—and knowledge by sex offenders that their Internet identifiers are known

to the authorities may help to discourage them from engaging in such criminal

activities. The authority under section 114(a)(7) is accordingly exercised to

require that the information included in the registries must include all designations

used by sex offenders for purposes of routing or self-identification in Internet

communications or postings.

" TELEPHONE NUMBERS (§ 114(a)(7)): Requiring sex offenders to provide

their telephone numbers (both for fixed location phones and cell phones) furthers

the objectives of sex offender registration. One obvious purpose in having such

information is to facilitate communication between registration personnel and a

sex offender in case issues arise relating to the sex offender’s registration.

Moreover, as communications technology advances, the boundaries blur between

text-based and voice-based communications media. Telephone calls may be

transmitted through the Internet. Text messages may be sent between cell phones.

Regardless of the particular communication medium, and regardless of whether

the communication involves text or voice, sex offenders may potentially utilize

remote communications in efforts to contact or lure potential victims. Hence,

including phone numbers in the registration information may help in investigating

crimes committed by registrants that involved telephonic communication with the

victim, and knowledge that their phone numbers are known to the authorities may

help sex offenders to resist the temptation to commit crimes by this means. The

authority under section 114(a)(7) is accordingly exercised to require that the

information included in the registries must include sex offenders’ telephone

numbers and any other designations used by sex offenders for purposes of routing

or self-identification in telephonic communications.

! SOCIAL SECURITY NUMBER (§ 114(a)(2), (a)(7)): The registry must include “[t]he

Social Security number of the sex offender.” In addition to any valid Social Security

number issued to the registrant by the government, the information the jurisdiction

requires registrants to provide under this heading must include any number that the

registrant uses as his or her purported Social Security number since registrants may, for

example, attempt to use false Social Security numbers in seeking employment that would

provide access to children. To the extent that purported (as opposed to actual) Social

Security numbers may be beyond the scope of the information required by section

114(a)(2), the authority under section 114(a)(7) is exercised to require that information on

such purported numbers be obtained and included in the registry as well.

! RESIDENCE, LODGING, AND TRAVEL INFORMATION (§ 114(a)(3), (a)(7)):

" RESIDENCE ADDRESS (§ 114(a)(3)): The registry must include “the address of

each residence at which the sex offender resides or will reside.” As provided in

SORNA § 111(13), residence refers to “the location of the individual’s home or

other place where the individual habitually lives.” (For more as to the meaning of

“resides” under SORNA, see Part VIII of these Guidelines.) The statute refers to

places in which the sex offender “will reside” so as to cover situations in which,

for example, a sex offender is initially being registered prior to release from

imprisonment, and hence is not yet residing in the place or location to which he or

she expects to go following release.

" OTHER RESIDENCE INFORMATION (§ 114(a)(7)): Sex offenders who lack

fixed abodes are nevertheless required to register in the jurisdictions in which they

reside, as discussed in Part VIII of these Guidelines. Such sex offenders cannot

provide the residence address required by section 114(a)(3) because they have no

definite “address” at which they live. Nevertheless, some more or less specific

description should normally be obtainable concerning the place or places where

such a sex offender habitually lives—e.g., information about a certain part of a

city that is the sex offender’s habitual locale, a park or spot on the street (or a

number of such places) where the sex offender stations himself during the day or

sleeps at night, shelters among which the sex offender circulates, or places in

public buildings, restaurants, libraries, or other establishments that the sex

offender frequents. Having this type of location information serves the same

public safety purposes as knowing the whereabouts of sex offenders with definite

residence addresses. Hence, the authority under SORNA § 114(a)(7) is exercised

to require that information be obtained about where sex offenders who lack fixed

abodes habitually live with whatever definiteness is possible under the

circumstances. Likewise, in relation to sex offenders who lack a residence

address for any other reason—e.g., a sex offender who lives in a house in a rural

or tribal area that has no street address—the registry must include information that

identifies where the individual has his or her home or habitually lives.

" TEMPORARY LODGING INFORMATION (§ 114(a)(7)): Sex offenders who

reoffend may commit new offenses at locations away from the places in which

they have a permanent or long-term presence. Indeed, to the extent that

information about sex offenders’ places of residence is available to the authorities,

but information is lacking concerning their temporary lodging elsewhere, the

relative attractiveness to sex offenders of molesting children or committing other

sexual crimes while traveling or visiting away from home increases. Hence, to

achieve the objectives of sex offender registration, it is valuable to have

information about other places in which sex offenders are staying, even if only

temporarily. The authority under SORNA § 114(a)(7) is accordingly exercised to

provide that jurisdictions must require sex offenders to provide information about

any place in which the sex offender is staying when away from his residence for

seven or more days, including identifying the place and the period of time the sex

offender is staying there. The benefits of having this information include

facilitating the successful investigation of crimes committed by sex offenders

while away from their normal places of residence, employment, or school

attendance, and decreasing the attractiveness to sex offenders of committing

crimes in such circumstances.

" TRAVEL AND IMMIGRATION DOCUMENTS (§ 114(a)(7)): The authority

under SORNA § 114(a)(7) is exercised to provide that registrants must be

required to produce or provide information about their passports, if they have

passports, and that registrants who are aliens must be required to produce or

provide information about documents establishing their immigration status. The

registry must include digitized copies of these documents, document type and

number information for such documents, or links to another database or databases

that contain such information. Having this type of information in the registries

serves various purposes, including helping to locate and apprehend registrants

who may attempt to leave the United States after committing new sex offenses or

registration violations; facilitating the tracking and identification of registrants

who leave the United States but later reenter while still required to register (see

SORNA § 128); and crosschecking the accuracy and completeness of other types

of information that registrants are required to provide—e.g., if immigration

documents show that an alien registrant is in the United States on a student visa

but the registrant fails to provide information concerning the school attended as

required by SORNA § 114(a)(5).

! EMPLOYMENT INFORMATION (§ 114(a)(4), (a)(7)):

" EMPLOYER NAME AND ADDRESS (§ 114(a)(4)): The registry must include

“[t]he name and address of any place where the sex offender is an employee or

will be an employee.” SORNA § 111(12) explains that “employee” includes “an

individual who is self-employed or works for any other entity, whether

compensated or not.” As the definitional provisions indicate, the information

required under this heading is not limited to information relating to compensated

work or a regular occupation, but includes as well name and address information

for any place where the registrant works as a volunteer or otherwise works

without remuneration. The statute refers to places in which the sex offender “will

be an employee” so as to cover, for example, cases in which a sex offender is

initially being registered prior to release from imprisonment and has secured

employment that will commence upon his release, and other circumstances in

which a sex offender reports an initiation or change of employment to a

jurisdiction before the new employment commences. It does not mean that

jurisdictions must include in their registries merely speculative information sex

offenders have provided about places they may work in the future.

" OTHER EMPLOYMENT INFORMATION (§ 114(a)(7)): A sex offender who is

employed may not have a fixed place of employment—e.g., a long-haul trucker

whose “workplace” is roads and highways throughout the country, a self-

employed handyman who works out of his home and does repair or home-

improvement work at other people’s homes, or a person who frequents sites that

contractors visit to obtain day labor and works for whatever contractor hires him

on a given day. Knowing as far as possible where such a sex offender is in the

course of employment serves the same public safety purposes as the

corresponding information regarding a sex offender who is employed at a fixed

location. The authority under section 114(a)(7) is accordingly exercised to require

that information be obtained and included in the registry concerning the places

where such a sex offender works with whatever definiteness is possible under the

circumstances, such as information about normal travel routes or the general

area(s) in which the sex offender works.

" PROFESSIONAL LICENSES (§ 114(a)(7)): The authority under section

114(a)(7) is exercised to require that information be obtained and included in the

registry concerning all licensing of the registrant that authorizes the registrant to

engage in an occupation or carry out a trade or business. Information of this type

may be helpful in locating the registrant if he or she absconds, may provide a basis

for notifying the responsible licensing authority if the registrant’s conviction of a

sex offense may affect his or her eligibility for the license, and may be useful in

crosschecking the accuracy and completeness of other information the registrant is

required to provide—e.g., if the registrant is licensed to engage in a certain

occupation but does not provide name or place of employment information as

required by section 114(a)(4) for such an occupation.

! SCHOOL INFORMATION (§ 114(a)(5)): The registry must include “[t]he name and

address of any place where the sex offender is a student or will be a student.” Section

111(11) defines “student” to mean “an individual who enrolls in or attends an educational

institution, including (whether public or private) a secondary school, trade or professional

school, and institution of higher education.” As the statutory definition indicates, the

requirement extends to all types of educational institutions. Hence, this information must

be provided for private schools as well as public schools, including both parochial and

non-parochial private schools, and regardless of whether the educational institution is

attended for purposes of secular, religious, or cultural studies. The registration

information requirement of section 114(a)(5) refers to the names and addresses of

educational institutions where a sex offender has or will have a physical presence as a

student. It does not require information about a sex offender’s participating in courses

only remotely through the mail or the Internet. (Internet identifiers and addresses used by

a sex offender in such remote communications, however, must be included in the

registration information as provided in the discussion of “INTERNET IDENTIFIERS

AND ADDRESSES” earlier in this list.) As with residence and employment information,

the statute refers to information about places the sex offender “will be” a student so as to

cover, for example, circumstances in which a sex offender reports to a jurisdiction that he

has enrolled in a school prior to his commencement of attendance at that school. It does

not mean that jurisdictions must include in their registries merely speculative information

sex offenders have provided about places they may attend school in the future.

! VEHICLE INFORMATION (§ 114(a)(6), (a)(7)): The registry must include “[t]he

license plate number and a description of any vehicle owned or operated by the sex

offender.” This includes, in addition to vehicles registered to the sex offender, any

vehicle that the sex offender regularly drives, either for personal use or in the course of

employment. A sex offender may not regularly use a particular vehicle or vehicles in the

course of employment, but may have access to a large number of vehicles for

employment purposes, such as using many vehicles from an employer’s fleet in a delivery

job. In a case of this type, jurisdictions are not required to obtain information concerning

all such vehicles to satisfy SORNA’s minimum informational requirements, but

jurisdictions are free to require such information if they are so inclined. The authority

under § 114(a)(7) is exercised to define and expand the required information concerning

vehicles in two additional respects. First, the term “vehicle” should be understood to

include watercraft and aircraft, in addition to land vehicles, so descriptive information

must be required for all such vehicles owned or operated by the sex offender. The

information must include the license plate number if it is a type of vehicle for which

license plates are issued, or if it has no license plate but does have some other type of

registration number or identifier, then information concerning such a registration number

or identifier must be included. To the extent that any of the information described above

may be beyond the scope of section 114(a)(6), the authority under section 114(a)(7) is

exercised to provide that it must be obtained and included in the registry. Second, the sex

offender must be required to provide and the registry must include information

concerning the place or places where the registrant’s vehicle or vehicles are habitually

parked, docked, or otherwise kept. Having information of this type may help to prevent

flight, facilitate investigation, or effect an apprehension if the registrant is implicated in

the commission of new offenses or violates registration requirements.

! DATE OF BIRTH (§ 114(a)(7)). The authority under § 114(a)(7) is exercised to require

date of birth information for registrants, which must be included in the registry. Since

date of birth is regularly utilized as part of an individual’s basic identification

information, having this information in the registry is of obvious value in helping to

identify, track, and locate registrants. The information the jurisdiction requires registrants

to provide under this heading must include any date that the registrant uses as his or her

purported date of birth—not just his or her actual date of birth—since registrants may, for

example, provide false date of birth information in seeking employment that would

provide access to children.

! PHYSICAL DESCRIPTION (§ 114(b)(1)): The registry must include “[a] physical

description of the sex offender.” This must include a description of the general physical

appearance or characteristics of the sex offender, and any identifying marks, such as scars

or tattoos.

! TEXT OF REGISTRATION OFFENSE (§ 114(b)(2)): The registry must include “[t]he

text of the provision of law defining a criminal offense for which the sex offender is

registered.” As with other information in the registries, this does not mean that the

registry must be a paper records system that includes a hard copy of the statute defining

the registration offense. Rather, the registry must be an electronic database, and the

relevant statutory provision must be included as electronic text. Alternatively, this

requirement can be satisfied by including in the central registry database a link or citation

to the statute defining the registration offense if: (i) doing so provides online access to the

linked or cited provision, and (ii) the link or citation will continue to provide access to the

offense as formulated at the time the registrant was convicted of it, even if the defining

statute is subsequently amended.

! CRIMINAL HISTORY AND OTHER CRIMINAL JUSTICE INFORMATION

(§ 114(b)(3)): The registry must include “[t]he criminal history of the sex offender,

including the date of all arrests and convictions; the status of parole, probation, or

supervised release; registration status [i.e., whether the sex offender is in violation of the

registration requirement and unlocatable]; and the existence of any outstanding arrest

warrants for the sex offender.” This requirement can be satisfied by including the

specified types of information in the central registry database, or by including in that

database links or identifying numbers that provide access to these types of information in

criminal justice databases that contain them.

! CURRENT PHOTOGRAPH (§ 114(b)(4)): The registry information must include “[a]

current photograph of the sex offender.” As with other information in the registries, this

does not mean that the registry must be a paper records system that includes physical

photographs. Rather, the photographs of sex offenders must be included in digitized form

in an electronic registry, so as to permit the electronic transmission of registration

information that is necessary to implement other SORNA requirements. (For more about

the taking of photographs and keeping them current, see the discussion of periodic in-

person appearances in Part XI of these Guidelines.)

! FINGERPRINTS AND PALM PRINTS (§ 114(b)(5)): The registry information must

include “[a] set of fingerprints and palm prints of the sex offender.” As with other

registration information, this should be understood to refer to digitized fingerprint and

palm print information rather than physical fingerprint cards and palm prints. The

requirement can be satisfied by including such digitized fingerprint and palm print

information in the central registry database, or by providing links or identifying numbers

in the central registry database that provide access to fingerprint and palm print

information in other databases for each registered sex offender.

! DNA (§ 114(b)(6)): The registry information must include “[a] DNA sample of the sex

offender.” This means that a DNA sample must be taken, or must have been taken, from

the sex offender, for purposes of analysis and entry of the resulting DNA profile into the

Combined DNA Index System (CODIS). The requirement is satisfied by including

information in the central registry database that confirms collection of such a sample from

the sex offender for purposes of analysis and entry of the DNA profile into CODIS or

inclusion of the sex offender’s DNA profile in CODIS.

! DRIVER’S LICENSE OR IDENTIFICATION CARD (§ 114(b)(7)): The registry

information must include “[a] photocopy of a valid driver’s license or identification card

issued to the sex offender by a jurisdiction.” The requirement can be satisfied by

including a digitized photocopy of the specified documents in the central registry

database for each sex offender to whom such a document has been issued. Alternatively,

it can be satisfied by including in the central registry database links or identifying

numbers that provide access in other databases (such as a Department of Motor Vehicles

database) to the information that would be shown by such a photocopy. As noted, this

requirement pertains to sex offenders to whom drivers’ licenses or identification cards

have been issued. It does not mean that jurisdictions must issue drivers’ licenses or

identification cards to sex offenders to whom they would not otherwise issue such

documents in order to create this type of information for inclusion in the registry.

VII. DISCLOSURE AND SHARING OF INFORMATION

The SORNA requirements for disclosure and sharing of information about registrants

appear primarily in section 118, which is concerned with sex offender websites, and section 121,

which is concerned with community notification in a broader sense and with some more targeted

types of disclosures. The two sections will be discussed separately.

A. Sex Offender Websites

Section 118(a) of SORNA states a general rule that jurisdictions are to “make available

on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all

information about each sex offender in the registry.” This general requirement is subject to

certain mandatory and discretionary exemptions, appearing in subsections (b) and (c) of section

118, which are discussed below. As the later discussion explains, after the mandatory and

discretionary exemptions are taken into account, the affirmative website posting requirements are

limited to specified information concerning sex offenders’ names, addresses or locations, vehicle

descriptions and license plate numbers, physical descriptions, sex offenses for which convicted,

and current photographs.

Currently, all 50 states, the District of Columbia, Puerto Rico, and Guam have sex

offender websites that make information about registered sex offenders available to the public.

The listed jurisdictions may need to modify their existing websites to varying degrees to

implement the requirements of section 118.

Beyond stating a general rule of website posting for sex offender information (subject to

exceptions and limitations as discussed below), subsection (a) of section 118 includes

requirements about the field-search capabilities of the jurisdictions’ websites. In part, it states

that these field search capabilities must include searches by “zip code or geographic radius set by

the user.” In other words, the websites must be so designed that members of the public who

access a website are able to specify particular zip code areas, and are able to specify geographic

radii—e.g., within one mile of a specified address—and thereby bring up on the website the

information about all of the posted sex offenders in the specified zip code or geographic area.

Subsection (a) of section 118 further states that each website “shall also include . . . all

field search capabilities needed for full participation in the Dru Sjodin National Sex Offender

Public Website and shall participate in that website as provided by the Attorney General.” The

statutory basis for the referenced National Sex Offender Public Website (NSOPW) appears in

SORNA § 120. It is operated by the Department of Justice at the address www.nsopr.gov. All

50 states, the District of Columbia, Puerto Rico, and Guam currently participate in the NSOPW,

which provides public access to the information in their respective sex offender websites through

single-query searches on a national site. As noted, participation in the NSOPW is a required

element of SORNA implementation. To satisfy the requirement under section 118(a) of having

“all field search capabilities needed for full participation in the [NSOPW],” jurisdictions’ sex

offender websites must allow searches by name, county, and city/town, as well as having the zip

code and geographic radius search capacities mentioned specifically in the statute.

Other SORNA requirements relating to sex offender websites are discussed in the

remainder of this Subpart under the following headings: mandatory exemptions, discretionary

exemptions and required inclusions, remote communication addresses, and other provisions.

MANDATORY EXEMPTIONS

Section 118(b)(1)-(3) identifies three types of information that are mandatorily exempt

from disclosure, and section 118(b)(4) gives the Attorney General the authority to create

additional mandatory exemptions. The limitations of subsection (b) only constrain jurisdictions

in relation to the information made available on their publicly accessible sex offender websites.

They do not limit the discretion of jurisdictions to disclose these types of information in other

contexts. The types of information that are within the mandatory exemptions from public sex

offender website disclosure are as follows:

! VICTIM IDENTITY: Section 118(b)(1) exempts “the identity of any victim of a sex

offense.” The purpose of this exemption is to protect victim privacy. So long as the

victim is not identified, this does not limit jurisdictions’ discretion to include on the

website information about the nature and circumstances of the offense, which may

include information relating to the victim, such as the age and gender of the victim, and

the conduct engaged in by the sex offender against the victim.

! SOCIAL SECURITY NUMBER: Section 118(b)(2) exempts “the Social Security

number of the sex offender.”

! ARRESTS NOT RESULTING IN CONVICTION: Section 118(b)(3) exempts “any

reference to arrests of the sex offender that did not result in conviction.” As noted, this

mandatory exemption, like the others, only affects the information that may be posted on

a jurisdiction’s public sex offender website. It does not limit a jurisdiction’s use or

disclosure of arrest information in any other context, such as disclosure to law

enforcement agencies for law enforcement purposes, or disclosure to the public (by

means other than posting on the sex offender website) under “open records” laws.

! TRAVEL AND IMMIGRATION DOCUMENT NUMBERS: The authority under

section 118(b)(4) is exercised to exempt the numbers assigned to registrants’ passports

and immigration documents. This exemption reflects concerns that public posting of

such information could facilitate identity theft and could provide a source of passport and

immigration document numbers to individuals seeking to enter, remain in, or travel from

the United States using forged documents or false identities. Like the other mandatory

exemptions, this exemption only affects the information that may be posted on a

jurisdiction’s public sex offender website. It does not limit a jurisdiction’s use or

disclosure of registrants’ travel or immigration document information in any other

context, such as disclosure to agencies with law enforcement, immigration, or national

security functions.

DISCRETIONARY EXEMPTIONS AND REQUIRED INCLUSIONS

Section 118(c)(1)-(3) provides three optional exemptions, which describe information

that jurisdictions may exempt from their websites in their discretion. The first of these is “any

information about a tier I sex offender convicted of an offense other than a specified offense

against a minor.” The meaning of “tier I sex offender” is explained in Part V of these

Guidelines, and the meaning of “specified offense against a minor” is explained in Part IV.D of

these Guidelines. The second and third optional exemptions are, respectively, “the name of an

employer of the sex offender” and “the name of an educational institution where the sex offender

is a student.” As noted, these exclusions are discretionary. Jurisdictions are free to include these

types of information on their sex offender websites if they are so inclined.

Section 118(c)(4) provides a further optional exemption of “any other information

exempted from disclosure by the Attorney General.” This authorization recognizes that there are

some additional types of information that are required to be included in sex offender registries by

section 114, but whose required disclosure through public sex offender websites may reasonably

be regarded by particular jurisdictions as inappropriate or unnecessary. For example, public

access to registrants’ remote communication routing addresses (such as e-mail addresses)

presents both risks and benefits. Minimizing the risks and maximizing the benefits depends on

the appropriate design of the means and form of access. The recommended treatment of such

information is discussed later in this Subpart. A number of other types of required registration

information, such as fingerprints, palm prints, and DNA information, are primarily or exclusively

of interest to law enforcement.

In positive terms, as set out in the list below, there are eight core types of information

whose public disclosure through the sex offender websites has the greatest value in promoting

public safety by enabling members of the public to identify sex offenders, to know where they

are, and to know what crimes they have committed. The list below is an exhaustive list of the

types of registration information that jurisdictions must include on their public sex offender

websites to satisfy the requirements for SORNA implementation. All other types of registration

information are excluded from required website posting, either on a mandatory basis under

section 118(b), on a discretionary basis under section 118(c)(1)-(3), or on the basis of the

Attorney General’s authority to allow additional discretionary exemptions under section

118(c)(4). The list of informational items that jurisdictions must include on their public sex

offender websites is as follows:

! The name of the sex offender, including any aliases.

! The address of each residence at which the sex offender resides or will reside and, if the

sex offender does not have any (present or expected) residence address, other information

about where the sex offender has his or her home or habitually lives. If current

information of this type is not available because the sex offender is in violation of the

requirement to register or unlocatable, the website must so note.

! The address of any place where the sex offender is an employee or will be an employee

and, if the sex offender is employed but does not have a definite employment address,

other information about where the sex offender works.

! The address of any place where the sex offender is a student or will be a student.

! The license plate number and a description of any vehicle owned or operated by the sex

offender.

! A physical description of the sex offender.

! The sex offense for which the sex offender is registered and any other sex offense for

which the sex offender has been convicted.

! A current photograph of the sex offender.

The foregoing list remains subject to the discretionary authority of jurisdictions under

section 118(c)(1) to exempt information about a tier I sex offender convicted of an offense other

than a specified offense against a minor.

REMOTE COMMUNICATION ADDRESSES

Public access to or disclosure of sex offenders’ remote communication routing addresses

and their equivalent—such as e-mail addresses and telephone numbers—is discussed separately

because the issue presents both risks and benefits and merits careful handling by jurisdictions.

On the one hand, appropriately designed forms of access to such information may further

the public safety objectives of sex offender registration and notification. For example, the

operators of Internet social networking services that serve children may validly wish to check

whether the e-mail addresses of individuals on their user lists are those of registered sex

offenders, so that they can prevent sex offenders from using their services as avenues for Internet

luring of children for purposes of sexual abuse. Likewise, a parent may legitimately wish to

check whether the e-mail address of an unknown individual who is communicating with his or

her child over the Internet is that of a registered sex offender, for the same protective purpose.

On the other hand, some forms of public disclosure of this type of information—such as

including sex offenders’ e-mail addresses as part of the information in their individual listings on

the sex offender websites, which also include their names, locations, etc.—could raise serious

concerns about unintended consequences and misuse. Posting of the information in this form

could provide ready access by sex offenders to the e-mail addresses of other sex offenders,

thereby facilitating networking among such offenders through the Internet for such purposes as:

exchanging information about or providing access to child victims for purposes of sexual abuse;

recruiting confederates and accomplices for the purpose of committing child sexual abuse or

exploitation offenses or other sexually violent crimes; trafficking in child pornography; and

sharing ideas and information about how to commit sexual crimes, avoid detection and

apprehension for committing such crimes, or evade registration requirements.

The public safety benefits of public access in this context may be realized, and the risks

and concerns addressed, by not including remote communication routing addresses or

information that would enable sex offenders to contact each other on the individual public

website postings of registrants, but including on the websites a function by which members of the

public may enter, e.g., an e-mail address or phone number and receive an answer whether the

specified address or number has been registered as that of a sex offender. In the case of a

concerned parent as described above, for example, this could enable the parent to ascertain that

the e-mail address of an individual attempting to communicate through the Internet with his or

her child is the address of a sex offender, but without providing sex offenders access to listings

showing the e-mail addresses of other persons who may share their dispositions to commit sexual

crimes.

Jurisdictions are accordingly permitted and encouraged to provide public access to remote

communication address information included in the sex offender registries, in the form described

above, i.e., a function that allows checking whether specified addresses are included in the

registries as the addresses of sex offenders. The registry management and website software that

the Justice Department is developing pursuant to SORNA § 123 will include software for such a

website function.

OTHER PROVISIONS

The final three subsections in section 118 contain additional website specifications as

follows:

Subsection (d) requires that sites “include, to the extent practicable, links to sex offender

safety and education resources.”

Subsection (e) requires that sites “include instructions on how to seek correction of

information that an individual contends is erroneous.” A jurisdiction could comply with this

requirement, for example, by including on its website information identifying the jurisdiction’s

agency responsible for correcting erroneous information, and advising persons that they can

contact this agency if they believe that information on the site is erroneous.

Subsection (f) requires that sites include “a warning that information on the site should

not be used to unlawfully injure, harass, or commit a crime against any individual named in the

registry or residing or working at any reported address,” and further provides that the warning

“shall note that any such action could result in civil or criminal penalties.”

B. Community Notification and Targeted Disclosures

Section 121(b) of SORNA states that “immediately after a sex offender registers or

updates a registration . . . the information in the registry (other than information exempted from

disclosure by the Attorney General) about that offender” must be provided to various specified

entities and individuals. The requirement that the information must be provided to the specified

recipients “immediately” should be understood to mean that it must be provided within three

business days. Cf. SORNA §§ 113(b)(2), 117(a) (equating within three business days and

“immediately” in relation to initial registration). The requirement that the information be

provided immediately is qualified by section 121(c), which provides that recipients described in

section 121(b)(6)-(7)—i.e., volunteer organizations in which contact with minors or other

vulnerable individuals might occur, and any organization, company, or individual who requests

notification—“may opt to receive the notification . . . no less frequently than once every five

business days.”

These requirements will be discussed in turn in relation to two groups of recipients—a

group of four types of recipients that require special treatment, followed by suggestions for a

uniform approach in relation to the remaining types of recipients. The four types that require

special treatment are as follows:

! NATIONAL DATABASES: Section 121(b)(1) states that the information is to be

provided to “[t]he Attorney General, who shall include that information in the National

Sex Offender Registry or other appropriate databases.” The National Sex Offender

Registry (NSOR) is a national database maintained by the Federal Bureau of Investigation

(FBI), which compiles information from the registration jurisdictions’ sex offender

registries and makes it available to criminal justice agencies on a nationwide basis. The

current statutory basis for NSOR appears in SORNA § 119(a). The statute refers to the

Attorney General including the information submitted by jurisdictions in NSOR “or other

appropriate databases” because some types of registry information described in SORNA

§ 114, such as criminal history information, may be maintained by the FBI in other

databases rather than directly in the NSOR database. In addition, the United States

Marshals Service, which is the lead federal agency in investigating registration violations

by sex offenders and assisting jurisdictions in enforcing their registration requirements,

may establish an additional national database or databases to help in detecting,

investigating, and apprehending sex offenders who violate registration requirements.

Jurisdictions accordingly can implement the requirement of section 121(b)(1) by

submitting to the FBI within three business days the types of registry information that the

FBI includes in NSOR or other national databases, and by submitting information within

the same time frame to other federal agencies (such as the United States Marshals

Service) in conformity with any requirements the Department of Justice or the Marshals

Service may adopt for this purpose.

! LAW ENFORCEMENT AND SUPERVISION AGENCIES: Section 121(b)(2), in part,

identifies as further required recipients “[a]ppropriate law enforcement agencies

(including probation agencies, if appropriate) . . . in each area in which the individual

resides, is an employee or is a student.” “Law enforcement agencies” should be

understood to refer to agencies with criminal investigation or prosecution functions, such

as police departments, sheriffs’ offices, and district attorneys’ offices. “Probation

agencies, if appropriate” should be understood to refer to all offender supervision

agencies that are responsible for a sex offender’s supervision. Jurisdictions can

implement the requirement of section 121(b)(2) by making registration information

available to these agencies within three business days, by any effective

means—permissible options include electronic transmission of registration information

and provision of online access to registration information. Jurisdictions may define the

relevant “area[s]” in which a registrant resides, is an employee, or is a student for

purposes of section 121(b)(2) in accordance with their own policies, or may avoid the

need to have to specify such areas by providing access to sex offender registry

information to law enforcement and supervision agencies generally, since doing so makes

the information available to recipients in all areas (however defined). The authority under

the introductory language in section 121(b) to exempt information from disclosure is not

exercised in relation to these recipients with respect to any of the information required to

be included in registries under section 114 because law enforcement and supervision

agencies need access to complete information about sex offenders to carry out their

protective, investigative, prosecutorial, and supervisory functions.

! JURISDICTIONS: Section 121(b)(3) identifies as required recipients “[e]ach jurisdiction

where the sex offender resides, is an employee, or is a student, and each jurisdiction from

or to which a change of residence, employment, or student status occurs.” This is part of

a broader group of SORNA provisions concerning the exchange of registration

information among jurisdictions and ensuring that all relevant jurisdictions have such

information in an up-to-date form. The implementation of section 121(b)(3) and other

provisions relating to these matters is discussed in Parts IX and X of these Guidelines.

! NATIONAL CHILD PROTECTION ACT AGENCIES: Section 121(b)(4) identifies as

required recipients “[a]ny agency responsible for conducting employment-related

background checks under section 3 of the National Child Protection Act of 1993 (42

U.S.C. 5119a).” The National Child Protection Act (NCPA) provides procedures under

which qualified entities (e.g., prospective employers of child care providers) may request

an authorized state agency to conduct a criminal history background check to obtain

information bearing on an individual’s fitness to have responsibility for the safety and

well-being of children, the elderly, or individuals with disabilities. The authorized

agency makes a determination whether the individual who is the subject of the

background check has been convicted of, or is under indictment for, a crime bearing on

the individual’s fitness for such responsibilities, and conveys that determination to the

qualified entity. Considering the nature of the recipients under section 121(b)(4) and the

functions for which they need information about sex offenders, jurisdictions can

implement section 121(b)(4) by making available to such agencies (i.e., those authorized

to conduct NCPA background checks) within three business days all criminal history

information in the registry relevant to the conduct of such background checks.

Beyond the four categories specified above, section 121(b) requires that sex offender

registration information be provided to several other types of recipients, as follows:

! Each school and public housing agency in each area in which the sex offender resides, is

an employee, or is a student (section 121(b)(2)).

! Social service entities responsible for protecting minors in the child welfare system

(section 121(b)(5)).

! Volunteer organizations in which contact with minors or other vulnerable individuals

might occur (section 121(b)(6)).

! Any organization, company, or individual who requests such notification pursuant to

procedures established by the jurisdiction (section 121(b)(7)).

Implementing the required provision of information about registrants to these entities

potentially presents a number of difficulties for jurisdictions, such as problems in identifying and

maintaining comprehensive lists of recipients in these categories, keeping those lists up to date,

subdividing recipients by “area” with respect to the notification under section 121(b)(2), and

developing means of transmitting or providing access to the information for the various types of

recipients. The objectives of these provisions, however, can be achieved by augmenting public

sex offender websites to include appropriate notification functions. Specifically, a jurisdiction

will be deemed to have satisfied the requirements of these provisions of section 121(b) if it

adopts an automated notification system that incorporates substantially the following features:

! The information required to be included on sex offender websites, as described in Part

VII.A of these Guidelines, is posted on the jurisdiction’s sex offender website within

three business days.

! The jurisdiction’s sex offender website includes a function under which members of the

public and organizations can request notification when sex offenders commence

residence, employment, or school attendance within zip code or geographic radius areas

specified by the requester, where the requester provides an e-mail address to which the

notice is to be sent.

! Upon posting on the jurisdiction’s sex offender website of new residence, employment, or

school attendance information for a sex offender within an area specified by the requester,

the system automatically sends an e-mail notice to the requester that identifies the sex

offender, thus enabling the requester to access the jurisdiction’s website and view the new

information about the sex offender.

VIII. WHERE REGISTRATION IS REQUIRED

Section 113(a) of SORNA provides that a sex offender shall register and keep the

registration current in each jurisdiction in which the sex offender resides, is an employee, or is a

student. Section 113(a) of SORNA further provides that, for initial registration purposes only, a

sex offender must also register in the jurisdiction in which convicted if it is different from the

jurisdiction of residence.

Starting with the last-mentioned requirement—registration in jurisdiction of conviction if

different from jurisdiction of residence—in some cases the jurisdiction in which a sex offender is

convicted is not the same as the jurisdiction to which the sex offender goes to live immediately

following release. For example, a resident of jurisdiction A is convicted for a sex offense in

jurisdiction B. After being released following imprisonment or sentenced to probation in

jurisdiction B, the sex offender returns immediately to jurisdiction A. Although jurisdiction B is

not the sex offender’s jurisdiction of residence following his release or sentencing, jurisdiction B

as the convicting jurisdiction is in the best position initially to take registration information from

the sex offender and to inform him of his registration obligations, as required by SORNA

§ 117(a), and is likely to be the only jurisdiction in a position to do so within the time frames

specified in SORNA §§ 113(b) and 117(a)—i.e., before release from imprisonment, or within 3

business days of sentencing for a sex offender with a non-incarcerative sentence. Hence,

SORNA § 113(a) provides for initial registration in the jurisdiction of conviction in such cases.

SORNA, however, never requires continued registration in the jurisdiction of conviction if the

sex offender does not reside, work, or attend school in that jurisdiction.

Beyond the special case of initial registration in the conviction jurisdiction where it

differs from the residence jurisdiction, section 113(a) requires both registration and keeping the

registration current in each jurisdiction where a sex offender resides, is an employee, or is a

student. Starting with jurisdictions of residence, this means that a sex offender must initially

The notion of “residence” requires definition for this purpose. Requiring registration

only where a sex offender has a residence or home in the sense of a fixed abode would be too

narrow to achieve SORNA’s objective of “comprehensive” registration of sex offenders (see

§ 102), because some sex offenders have no fixed abodes. For example, a sex offender may be

homeless, living on the street or moving from shelter to shelter, or a sex offender may live in

something that itself moves from place to place, such as a mobile home, trailer, or houseboat.

SORNA § 111(13) accordingly defines “resides” to mean “the location of the individual’s home

or other place where the individual habitually lives.” This entails that a sex offender must

! in any jurisdiction in which he has his home; and

! in any jurisdiction in which he habitually lives (even if he has no home or fixed address in

the jurisdiction, or no home anywhere).

The scope of “habitually lives” in this context is not self-explanatory and requires further

definition. An overly narrow definition would undermine the objectives of sex offender

registration and notification under SORNA. For example, consider the case of a sex offender

who nominally has his home in one jurisdiction—e.g., he maintains a mail drop there, or

identifies his place of residence for legal purposes as his parents’ home, where he visits

occasionally—but he lives most of the time with his girlfriend in an adjacent jurisdiction.

Registration in the nominal home jurisdiction alone in such a case would mean that the

registration information is not informative as to where the sex offender is actually residing, and

hence would not fulfill the public safety objectives of tracking sex offenders’ whereabouts

following their release into the community.

“Habitually lives” accordingly should be understood to include places in which the sex

offender lives with some regularity, and with reference to where the sex offender actually lives,

not just in terms of what he would choose to characterize as his home address or place of

residence for self-interested reasons. The specific interpretation of this element of “residence”

these Guidelines adopt is that a sex offender habitually lives in the relevant sense in any place in

which the sex offender lives for at least 30 days. Hence, a sex offender resides in a jurisdiction

for purposes of SORNA if the sex offender has a home in the jurisdiction, or if the sex offender

lives in the jurisdiction for at least 30 days. Jurisdictions may specify in the manner of their

choosing the application of the 30-day standard to sex offenders whose presence in the

jurisdiction is intermittent but who live in the jurisdiction for 30 days in the aggregate over some

longer period of time. Like other aspects of SORNA, the requirement to register sex offenders

who “reside” in the jurisdiction as defined in section 111(13) is a minimum requirement, and

jurisdictions in their discretion may require registration more broadly (for example, based on

presence in the jurisdiction for a period shorter than 30 days).

As to the timing of registration based on changes of residence, the understanding of

“habitually lives” to mean living in a place for at least 30 days does not mean that the registration

of a sex offender who enters a jurisdiction to reside may be delayed until after he has lived in the

jurisdiction for 30 days. Rather, a sex offender who enters a jurisdiction in order to make his

home or habitually live in the jurisdiction must be required to register within three business days,

as discussed in Part X.A of these Guidelines. Likewise, a sex offender who changes his place of

residence within a jurisdiction must be required to report the change within three business days,

as discussed in Part X.A.

SORNA also requires sex offenders to register and keep the registration current in any

jurisdiction in which the sex offender is an employee. Hence, a sex offender who resides in

jurisdiction A and commutes to work in an adjacent jurisdiction B must register and keep the

registration current in both jurisdictions—in jurisdiction A as a resident, and in jurisdiction B as

an employee. SORNA § 111(12) defines “employee” for this purpose to include “an individual

who is self-employed or works for any other entity, whether compensated or not.” As with

residence, the SORNA requirement to register in jurisdictions of employment is not limited to

sex offenders who have fixed places of employment or definite employment addresses. For

example, consider a person residing in jurisdiction A who works out of his home as a handyman,

regularly doing repair or home-improvement work at other people’s houses both in jurisdiction A

and in an adjacent jurisdiction B. Since the sex offender works in both jurisdictions, he must

The implementation measure for these SORNA requirements is for jurisdictions to

require sex offenders who are employed in the jurisdiction, as described above, to register in the

jurisdiction. If a sex offender has some employment-related presence in a jurisdiction, but does

not have a fixed place of employment or regularly work within the jurisdiction, line drawing

questions may arise, and jurisdictions may resolve these questions based on their own judgments.

For example, if a sex offender who is a long haul trucker regularly drives through dozens of

jurisdictions in the course of his employment, it is not required that all such jurisdictions must

make the sex offender register based on his transient employment-related presence, but rather

they may treat such cases in accordance with their own policies. (For more about required

employment information, see the discussion in Part VI of these Guidelines.)

The final SORNA basis of registration is being a student, which SORNA § 111(11)

defines to mean “an individual who enrolls in or attends an educational institution, including

(whether public or private) a secondary school, trade or professional school, and institution of

higher education.” Hence, for example, a sex offender who resides in jurisdiction A, and is

enrolled in a college in an adjacent jurisdiction B to which he commutes for classes, must be

required to register in jurisdiction B as well as jurisdiction A. School enrollment or attendance in

this context should be understood as referring to attendance at a school in a physical sense. It

does not mean that a jurisdiction has to require a sex offender in some distant jurisdiction to

school in the jurisdiction, or based on his taking courses at the school remotely through the

Internet, unless the participation in the educational program also involves some physical

attendance at the school in the jurisdiction.

In the context of SORNA’s requirements concerning the jurisdictions in which sex

offenders must register, as in all other contexts under SORNA and these Guidelines,

“jurisdiction” has the meaning given in SORNA § 111(10)—i.e., it refers to the 50 States, the

District of Columbia, the five principal territories, and Indian tribes so qualifying under section

127. Hence, for example, if a sex offender resides in one county in a state but works in a

different county in the same state, the state may wish to require the sex offender to appear for

registration purposes before the responsible officials in both counties. But this is not a matter

that SORNA addresses. Rather, the relevant “jurisdiction” for SORNA purposes in such a case

is simply the state, and finer questions about particular locations, political subdivisions, or areas

within the state in which a sex offender will be required to register are matters of state discretion

under SORNA.

IX. INITIAL REGISTRATION

Under sections 113(b) and 117(a) of SORNA, jurisdictions must normally require that

sex offenders be initially registered before release from imprisonment for the registration offense

or, in case of a non-imprisonment sentence, within three business days of sentencing for the

registration offense. Upon entry of the registration information into the registry, the initial

registration jurisdiction must immediately forward the registration information to all other

jurisdictions in which the sex offender is required to register. This is required by SORNA

§ 121(b)(3) (registration information is to be provided immediately to “[e]ach jurisdiction where

the sex offender resides, is an employee, or is a student.”). Hence, for example, if an imprisoned

sex offender advises the conviction jurisdiction on initial registration that he will be residing in

another jurisdiction following release, or that he will stay in the conviction jurisdiction but will

be commuting to work in another jurisdiction, the conviction jurisdiction must notify the

expected residence or employment jurisdiction by forwarding to that jurisdiction the sex

offender’s registration information (including the information about the expected residence or

employment in that jurisdiction). The sex offender will then be required to make an in-person

registration appearance within three business days of commencing residence or employment in

that jurisdiction, as discussed in Part X of these Guidelines.

With respect to sex offenders released from imprisonment, section 117(a) states that the

initial registration procedures are to be carried out “shortly before release of the sex offender

from custody.” “Shortly” does not prescribe a specific time frame, but jurisdictions should

implement this requirement in light of the underlying objectives of ensuring that sex offenders

have their registration obligations in mind when they are released, and avoiding situations in

which registration information changes significantly between the time the initial registration

procedures are carried out and the time the offender is released. However, jurisdictions are also

encouraged, as a matter of sound policy, to effect initial registration with sufficient time in

advance whenever possible so that the following can be done before the sex offender is released

into the community: (i) subjecting the registration information provided by the sex offender to

any verification the jurisdiction carries out to ensure accuracy (e.g., cross checking with other

records), (ii) obtaining any information needed for the registry that must be secured from sources

other than the sex offender, (iii) posting of the sex offender’s information on the jurisdiction’s

sex offender website, and (iv) effecting other required notifications and disclosures of

information relating to the sex offender.

The specific initial registration procedures required by section 117(a) are as follows:

! Informing the sex offender of his or her duties under SORNA and explaining those

duties. (Of course if the jurisdiction adopts registration requirements that encompass but

go beyond the SORNA minimum, the sex offender should be informed of the full range

of duties, not only those required by SORNA.)

! Requiring the sex offender to read and sign a form stating that the duty to register has

been explained and that the sex offender understands the registration requirement.

! Ensuring that the sex offender is registered—i.e., obtaining the required registration

information for the sex offender and submitting that information for inclusion in the

registry.

SORNA §§ 113(d) and 117(b) recognize that the normal initial registration procedure

described above will not be feasible in relation to certain special classes of sex offenders, and

provides that the Attorney General may prescribe alternative rules for the registration of such sex

offenders. The specific problem is one of timing; it is not always possible to carry out the initial

registration procedures for sex offenders who are required to register under SORNA prior to

release from imprisonment (or within three days of sentencing) for the registration offense. The

situations in which there may be problems of this type, and the rules adopted for those situations,

are as follows:

RETROACTIVE CLASSES

As discussed in Part II.C of these Guidelines, SORNA applies to all sex offenders,

including those convicted of their registration offenses prior to the enactment of SORNA or prior

to particular jurisdictions’ incorporation of the SORNA requirements into their programs.

Jurisdictions are specifically required to register such sex offenders if they remain in the system

as prisoners, supervisees, or registrants, or if they later reenter the system because of conviction

for some other crime (whether or not the new crime is a sex offense).

In some cases this will create no difficulty for registering these sex offenders in

conformity with the normal SORNA registration procedures. For example, suppose that a sex

offender is convicted of an offense in the SORNA registration categories in 2005, that the

jurisdiction implements SORNA in its registration program in 2008, and that the sex offender is

released on completion of imprisonment in 2010. Such a sex offender can be registered prior to

release from imprisonment in the same manner as sex offenders convicted following the

enactment of SORNA and its implementation by the jurisdiction.

But in other cases this will not be possible, as illustrated by the following examples:

! Example 1: A sex offender convicted by a state for an offense in the SORNA registration

categories is sentenced to probation, or released on post-imprisonment supervision, in

2005. The sex offender is not registered near the time of sentencing or before release

from imprisonment, because the state did not require registration for the offense in

question at that time. The state subsequently implements SORNA in 2008, which will

include registering such a sex offender. But it is impossible to do so near the time of his

sentencing or before his release from imprisonment, because that time is past. Likewise,

a person convicted of a sex offense by an Indian tribal court in, e.g., 2005 may have not

been registered near the time of sentencing or release because the tribe had not yet

established any sex offender registration program at the time. If the person remains under

supervision when the tribe implements SORNA, registration will be required by the

SORNA standards, but the normal time frame for initial registration under SORNA will

have passed some years ago, so registration within that time frame is impossible.

! Example 2: A sex offender is required to register for life by a jurisdiction based on a rape

conviction in 1995 for which he was released from imprisonment in 2005. The sex

offender was initially registered prior to his release from imprisonment on the basis of the

jurisdiction’s existing law, but the information concerning registration duties he was

given at the time of release did not include telling him that he would have to appear

periodically in person to verify and update the registration information (as required by

SORNA § 116), because the jurisdiction did not have such a requirement at the time. So

the sex offender will have to be required to appear periodically for verification and will

have to be given new instructions about that as part of the jurisdiction’s implementation

of SORNA.

! Example 3: A sex offender convicted in 1980 for an offense subject to lifetime

registration under SORNA is released from imprisonment in 1990 but is not required to

registration program. In 2010, following the jurisdiction’s implementation of SORNA,

the sex offender reenters the system because of conviction for a robbery. The jurisdiction

will need to require the sex offender to register based on his 1980 conviction for a sex

offense when he is released from imprisonment for the robbery offense. But it is not

possible to carry out the initial registration procedure for the sex offender prior to his

release from imprisonment for the registration offense—i.e., the sex offense for which he

was convicted in 1980—because that time is past.

With respect to sex offenders with pre-SORNA or pre-SORNA-implementation

convictions who remain in the prisoner, supervision, or registered sex offender populations at the

time of implementation—illustrated by the examples in the first and second bullets

above—jurisdictions should endeavor to register them in conformity with SORNA as quickly as

possible, including fully instructing them about the SORNA requirements, obtaining signed

acknowledgments of such instructions, and obtaining and entering into the registry all

information about them required under SORNA. But this may entail newly registering or re-

registering a large number of sex offenders in the existing sex offender population, and it may

not be feasible for a jurisdiction to do so immediately. Jurisdictions are accordingly authorized

to phase in SORNA registration for such sex offenders in conformity with the appearance

schedule of SORNA § 116. In other words, sex offenders in these existing sex offender

populations who cannot be registered within the normal SORNA time frame (i.e., before release

from imprisonment or within three business days of sentencing for the registration offense) must

be registered by the jurisdiction when it implements the SORNA requirements in its system

within a year for sex offenders who satisfy the tier I criteria, within six months for sex offenders

who satisfy the tier II criteria, and within three months for sex offenders who satisfy the tier III

criteria. If a jurisdiction believes that it is not feasible for the jurisdiction to fully register the

existing sex offender population in conformity with SORNA within these time frames, the

jurisdiction should inform the SMART Office of the difficulty, and the SMART Office will

consider whether an extension of time for implementation of SORNA under section 124(b) is

warranted on that basis.

In cases in which a sex offender reenters the system based on conviction of some other

offense—illustrated by the third example above—and is sentenced or released from

imprisonment following the jurisdiction’s implementation of SORNA, the normal SORNA initial

registration procedures and timing requirements will apply, but with the new offense substituting

for the predicate registration offense as the basis for the time frame. In other words, such a sex

offender must be initially registered in the manner specified in SORNA § 117(a) prior to release

from imprisonment for the new offense that brought him back into the system, or within three

business days of sentencing for the new offense in case of a non-incarcerative sentence.

It may not always be possible to obtain information about earlier convictions of sex

offenders in the classes described above, particularly when they occurred many years or decades

ago, and available criminal history information may be uninformative as to factors such as victim

age that can affect the nature and extent of registration requirements under SORNA.

Jurisdictions may rely on the methods and standards they normally use in searching criminal

records and on the information appearing in the records so obtained in carrying out the

requirements described above to register sex offenders with pre-SORNA (or pre-SORNA-

implementation) sex offense convictions.

FEDERAL AND MILITARY SEX OFFENDERS

There is no separate federal registration program for sex offenders required to register

under SORNA who are released from federal or military custody. Rather, such sex offenders are

integrated into the sex offender registration programs of the states and other (non-federal)

jurisdictions following their release. Provisions of federal law, appearing in 18 U.S.C. 4042(c)

and section 115(a)(8)(C) of Public Law 105-119, require federal and military correctional and

supervision personnel to notify the receiving jurisdiction’s authorities concerning the release to

their areas of such sex offenders so that this integration can be effected. Moreover, these sex

offenders are required to comply with the SORNA registration requirements in the jurisdictions

in which they reside, are employed, or attend school as mandatory conditions of their federal

supervision, as provided in 18 U.S.C. 3563(a)(8), 3583(d), 4209(a), and may be prosecuted under

18 U.S.C. 2250 if they fail to do so.

For example, consider a person convicted of aggravated sexual abuse under 18 U.S.C.

2241, who is released following his completion of the prison term for this offense. As provided

in 18 U.S.C. 4042(c), the Federal Bureau of Prisons is required to inform the sex offender prior

to his release that he must register as required by SORNA, and it notifies law enforcement and

registration authorities in the jurisdiction in which the sex offender will reside following release.

Situations of this type are in principle the same as those in which a sex offender enters a

jurisdiction to reside following conviction in another (non-federal) jurisdiction—see Part X of

these Guidelines for discussion—except that the federal authorities will not have registered the

sex offender in the same manner that a non-federal jurisdiction would. The jurisdiction to which

such a sex offender goes to reside following release from federal custody (or after sentencing for

a federal offense, in case of a non-incarcerative sentence) accordingly must require the sex

offender to appear in person to register within three business days, and must carry out the

procedure described in SORNA § 117(a) when the sex offender appears for that purpose. The

jurisdiction must also immediately forward the registration information for the sex offender to

any other jurisdiction in which the sex offender is required to register under SORNA (e.g., on the

basis of employment), as required by SORNA §121(b)(3). If federal authorities notify the

jurisdiction concerning the release of a sex offender to the jurisdiction, but the sex offender fails

to appear and register as required, the jurisdiction must proceed as discussed in Part XIII of these

Guidelines for cases involving possible violations of registration requirements.

SEX OFFENDERS INCARCERATED IN NON-CONVICTION JURISDICTIONS

A sex offender sentenced to imprisonment may serve his or her prison term in a facility

outside of the convicting jurisdiction. For example, an Indian tribe may not have its own

correctional facility and may accordingly lease bed space from a county jail. Or a state may lease

prison space in a facility in an adjacent state, so that some of its offenders serve their prison

terms in the other state’s facilities. In such a case, the jurisdiction incarcerating the sex offender

may be neither the jurisdiction of conviction nor the jurisdiction of expected residence following

release. But it is likely to be in the best position to initially take the required registration

information from the sex offender and to instruct the sex offender concerning registration

obligations, while the jurisdiction that convicted the sex offender may be in no position to do so

prior to the sex offender’s release, because the facility in which the sex offender is incarcerated is

in another jurisdiction.

In such cases, the jurisdiction incarcerating the sex offender must carry out the initial

registration procedure described in SORNA § 117(a) prior to releasing the sex offender and must

immediately forward the registration information for the sex offender to any other jurisdiction in

which the sex offender is required to register under SORNA (e.g., on the basis of expected

residence), as required by SORNA § 121(b)(3).

REGISTRANTS BASED ON FOREIGN CONVICTIONS

Persons with foreign sex offense convictions are often required to register under SORNA,

as discussed in Part IV.B of these Guidelines. Section 128 of SORNA directs the Attorney

General, in consultation with the Secretary of State and the Secretary of Homeland Security, to

establish a system for informing the relevant jurisdictions about persons entering the United

States who are required to register under SORNA. Persons with foreign sex offense convictions

provide an additional class who cannot be initially registered within the normal SORNA time

frame. Since they are convicted and imprisoned in a foreign country, no domestic jurisdiction

would normally be in a position to register them prior to their release from imprisonment (or near

the time of sentencing in case of a non-incarcerative sentence).

The procedure for initial registration of such persons is logically the same as that for

other analogous classes discussed above: A jurisdiction must require a person with a foreign

conviction for which registration is required under SORNA to appear in person to register within

three business days of entering the jurisdiction to reside or commencing employment or school

attendance in the jurisdiction. If the sex offender has not previously been registered by another

jurisdiction, the jurisdiction must carry out the initial registration procedure as provided in

SORNA § 117(a) when the sex offender appears. The jurisdiction must immediately forward the

registration information to any other jurisdiction in which the sex offender is required to register

under SORNA. If a jurisdiction is notified, by federal authorities pursuant to SORNA § 128 or

otherwise, that a sex offender is entering the United States and is expected to be locating in the

jurisdiction, but the sex offender fails to appear and register as required, the jurisdiction must

follow the procedures discussed in Part XIII of these Guidelines for cases involving possible

violations of registration requirements.

X. KEEPING THE REGISTRATION CURRENT

There are a number of provisions in SORNA that are designed to ensure that changes in

registration information are promptly reported, and that the registration information is kept fully

up to date in all jurisdictions in which the sex offender is required to register:

! Section 113(a) provides that a sex offender must keep the registration current in each

jurisdiction in which the sex offender resides, is an employee, or is a student.

! Section 113(c) provides that a sex offender must, not later than three business days after

each change of name, residence, employment, or student status, appear in person in at

least one jurisdiction in which the sex offender is required to register and inform that

jurisdiction of all changes in the information required for that sex offender in the sex

offender registry. It further provides that that information must immediately be provided

to all other jurisdictions in which the sex offender is required to register.

! Section 119(b) provides that updated information about a sex offender must be

immediately transmitted by electronic forwarding to all relevant jurisdictions.

! Section 121(b)(3) provides that immediately after a sex offender registers or updates a

registration, the information in the registry (other than any exempted from disclosure by

the Attorney General) must be provided to each jurisdiction where the sex offender

resides, is an employee, or is a student, and each jurisdiction from or to which a change of

residence, employment, or student status occurs.

! Section 128 directs the Attorney General, in consultation with the Secretary of State and

the Secretary of Homeland Security, to establish a system for informing relevant

jurisdictions about persons entering the United States who are required to register under

SORNA.

Implementation of these provisions requires the definition of implementation measures

that can be carried out by the individual jurisdictions, whose collective effect will be to realize

these provisions’ objectives. The remainder of this Part of these Guidelines details the required

implementation measures.

A. Changes of Name, Residence, Employment, or School Attendance

The in-person appearance requirements of section 113(c) described above serve to

ensure—in connection with the most substantial types of changes bearing on the identification or

location of sex offenders (name, residence, employment, school attendance)—that there will be

an opportunity to obtain all required registration information from sex offenders in an up to date

form, including direct meetings for this purpose between the sex offenders and the personnel or

agencies who will be responsible for their registration. The purposes served by in-person

appearances under the SORNA standards are further explained in Part XI of these Guidelines, in

relation to the periodic in-person appearance requirements of section 116.

The required implementation measures for the appearances required by section 113(c)—

and other information updating/sharing and enforcement provisions under SORNA as they bear

on such appearances—are as follows:

! RESIDENCE JURISDICTIONS: Each jurisdiction must require a sex offender who

enters the jurisdiction to reside, or who is registered in the jurisdiction as a resident and

changes his or her name or place of residence within the jurisdiction, to appear in person

to register or update the registration within three business days. Also, each jurisdiction in

which a sex offender is registered as a resident must:

" require the sex offender to inform the jurisdiction if the sex offender intends to

commence residence, employment, or school attendance in another jurisdiction;

and

" if so informed by the sex offender, notify that other jurisdiction by transmitting

the sex offender’s registration information (including the information concerning

the sex offender’s expected residence, employment, or school attendance in that

jurisdiction) immediately by electronic forwarding to that jurisdiction.

! EMPLOYMENT JURISDICTIONS: Each jurisdiction must require a sex offender who

commences employment in the jurisdiction, or changes employer or place of employment

in the jurisdiction, to appear in person to register or update the registration within three

business days.

! SCHOOL JURISDICTIONS: Each jurisdiction must require a sex offender who

commences school attendance in the jurisdiction, or changes the school attended or place

of school attendance in the jurisdiction, to appear in person to register or update the

registration within three business days.

! INFORMATION SHARING: In all cases in which a sex offender makes an in-person

appearance in a jurisdiction and registers or updates a registration as described above, the

jurisdiction must immediately transmit by electronic forwarding the registration

information for the sex offender (including any updated information concerning name,

residence, employment, or school attendance provided in the appearance) to all other

jurisdictions in which:

" the sex offender is or will be required to register as a resident, employee, or

student; or

" the sex offender was required to register as a resident, employee, or student until

the time of a change of residence, employment, or student status reported in the

appearance, even if the sex offender may no longer be required to register in that

jurisdiction in light of the change of residence, employment, or student status.

! FAILURE TO APPEAR: If a jurisdiction is notified that a sex offender is expected to

commence residence, employment, or school attendance in the jurisdiction, but the sex

offender fails to appear for registration as required, the jurisdiction must inform the

jurisdiction that provided the notification that the sex offender failed to appear, and must

follow the procedures for cases involving possible violations of registration requirements,

as discussed in Part XIII of these Guidelines.

Defining changes in such matters as residence and employment may present special

difficulties in relation to sex offenders who lack fixed residence or employment. For example, a

homeless sex offender may sleep on a different park bench each night. Or the employer of a sex

offender who does day labor, working for whatever contractor hires him on a given day, may

change on a daily basis. In such cases, a jurisdiction is not required to treat all such changes as

changes in residence or employment status that bring into play the requirement to conduct an in-

person appearance within three business days for purposes of reporting the change. Rather, as

discussed in Part VI of these Guidelines, the information in the registry describing the places of

residence or employment for sex offenders who lack fixed residence or employment may be in

more general terms, and jurisdictions may limit their reporting requirements to changes that

would entail some modification of the registry information relating to these matters.

In one respect, the foregoing procedures for updating registration information through in-

person appearances do not fully ensure that registrations will be kept current with respect to

residence, employment, and school attendance information, because they relate to situations in

which future information about these matters is available. But that is not always the case. For

example, a transient sex offender may be leaving the jurisdiction in which he is registered as a

resident, but may be unable to say where he will be living thereafter. Or a sex offender registered

as an employee or student in a jurisdiction may quit his job or leave school, but may have no

prospect for subsequent employment or education at the time. If such changes were not reported,

the affected jurisdictions’ registries would not be kept current, but rather would contain outdated

information showing sex offenders to be residing, employed, or attending school in places where

they no longer are. Accordingly, a jurisdiction in which a sex offender is registered as a resident,

employee, or student must also require the sex offender to inform the jurisdiction if the sex

offender is terminating residence, employment, or school attendance in the jurisdiction, even if

there is no ascertainable or expected future place of residence, employment, or school attendance

for the sex offender.

B. Changes in Other Registration Information

By incorporating the foregoing procedures into their registration programs, jurisdictions

can implement the SORNA requirements for keeping the registration current in relation to name,

residence, employment, and school attendance information. The registration information that sex

offenders are required to provide under SORNA § 114, however, as discussed in Part VI of these

Guidelines, includes as well information about vehicles owned or operated by sex offenders,

temporary lodging information—i.e., information about any place in which a sex offender is

staying when away from his residence for seven or more days—and information about

designations that sex offenders use for self-identification or routing purposes in Internet

communications or postings or telephonic communications. If changes occur in these types of

information, the changes may eventually be reported as part of the periodic verification

appearances required by section 116 of SORNA, as discussed in Part XI of these Guidelines. But

the registration information may become in some respects seriously out of date if the verification

appearances are relied on exclusively for this purpose.

For example, if a sex offender is on a yearly appearance schedule, the sex offender’s

motor vehicle information may be a year out of date by the time the sex offender reports at the

next appearance that he has acquired a new vehicle. Temporary lodging at places away from a

sex offender’s residence might not be reported until long after the time when the sex offender

was at the temporary location. Likewise, given the ease with which Internet addresses and

identifiers and telephone numbers are added, dropped, or changed, the value of requiring

information about them from registrants could be seriously undermined if they were only

required to report changes periodically in the context of general verification meetings.

Hence, an additional implementation measure is necessary to keep registrations current

with respect to these informational items:

! Each jurisdiction in which a sex offender is registered as a resident must require the sex

offender to report immediately changes in vehicle information, temporary lodging

information, and changes in designations used for self-identification or routing in Internet

communications or postings or telephonic communications, and must immediately

transmit such changes in the registration information by electronic forwarding to all other

jurisdictions in which the sex offender is required to register.

! In addition, with respect to temporary lodging information, the residence jurisdiction

must immediately transmit the information by electronic forwarding to the jurisdiction in

which the temporary lodging by the sex offender takes place (if different from the

residence jurisdiction), even if that is not a jurisdiction in which the sex offender is

required to register.

C. International Travel

A sex offender who moves to a foreign country may pass beyond the reach of U.S.

jurisdictions and hence may not be subject to any enforceable registration requirement under U.S.

law unless and until he or she returns to the United States. But effective tracking of such sex

offenders remains a matter of concern to the United States and its domestic jurisdictions, and

some measures relating to them are necessary for implementation of SORNA.

Relevant provisions include SORNA § 128, which directs the Attorney General to

establish a system for informing domestic jurisdictions about persons entering the United States

who are required to register under SORNA, and 18 U.S.C. 2250(a)(2)(B), which makes it a

federal crime for a sex offender to travel in foreign commerce and knowingly fail to register or

update a registration as required by SORNA. To carry out its responsibilities under these

provisions, the Department of Justice needs to know if sex offenders registered in U.S.

jurisdictions are leaving the country, since such offenders will be required to resume registration

if they later return to the United States to live, work, or attend school while still within their

registration periods. Also, both for sex offenders who are convicted in the United States and then

go abroad, and for sex offenders who are initially convicted in other countries, identifying such

sex offenders when they enter or reenter the United States will require cooperative efforts

between the Department of Justice (including the United States Marshals Service) and agencies

of foreign countries. As a necessary part of such cooperative activities, foreign authorities may

expect U.S. authorities to inform them about sex offenders coming to their jurisdictions from the

United States, in return for their advising the United States about sex offenders coming to the

United States from their jurisdictions. For this reason as well, federal authorities in the United

States will need information about sex offenders leaving domestic jurisdictions to go abroad in

order to effectively carry out the requirements of SORNA § 128 and enforce 18 U.S.C.

2250(a)(2)(B).

International travel also implicates the requirement of SORNA § 113(a) that sex

offenders keep the registration current in all jurisdictions in which they reside, work, or attend

school. If a sex offender simply leaves the country and does not inform the jurisdiction or

jurisdictions in which he has been registered, then the requirement to keep the registration current

will not have been fulfilled. Rather, the registry information in the domestic jurisdictions will

show that the sex offender is residing in the jurisdiction (or present as an employee or student)

when that is no longer the case.

In addition, a sex offender who goes abroad may remain subject in some respects to U.S.

jurisdiction. For example, a sex offender may be leaving to live on an overseas U.S. military

base, as a service member, dependent, or employee, or to work as or for a U.S. military

contractor in another country. In such cases, notification about the individual’s status as a sex

offender and intended activities abroad is of interest to federal authorities, because the presence

of sex offenders implicates the same public safety concerns in relation to communities abroad for

which the United States has responsibility (such as U.S. military base communities in foreign

countries) as it does in relation to communities within the United States.

The following requirements accordingly apply in relation to sex offenders who leave the

United States:

! Each jurisdiction in which a sex offender is registered as a resident must require the sex

offender to inform the jurisdiction if the sex offender intends to commence residence,

employment, or school attendance outside of the United States.

! If so informed by the sex offender, the jurisdiction must: (i) notify all other jurisdictions

in which the sex offender is required to register through immediate electronic forwarding

of the sex offender’s registration information (including the information concerning the

sex offender’s expected residence, employment, or school attendance outside of the

United States), and (ii) notify the United States Marshals Service and update the sex

offender’s registration information in the national databases pursuant to the procedures

under SORNA § 121(b)(1).

SORNA does not require that all notifications to jurisdictions by sex offenders

concerning changes in their registration information be made through in-person appearances.

Rather, the in-person appearance requirement of SORNA § 113(c) relates to changes in name,

and to changes in residence, employment, or school attendance between jurisdictions or within

jurisdictions, which jurisdictions must require sex offenders to report through in-person

appearances under the circumstances expressly identified in Subpart A of this Part. The means

by which sex offenders are required to report other changes in registration information discussed

in this Part are matters that jurisdictions may determine in their discretion.

XI. VERIFICATION/APPEARANCE REQUIREMENTS

Section 116 of SORNA states that “[a] sex offender shall appear in person, allow the

jurisdiction to take a current photograph, and verify the information in each registry in which that

offender is required to be registered not less frequently than”: (i) each year for a tier I sex

offender, (ii) every six months for a tier II sex offender, and (iii) every three months for a tier III

sex offender. Jurisdictions accordingly must require such periodic appearances by sex offenders

who reside or are employees or students in the jurisdiction, since sex offenders must register in

the jurisdictions of their residence, employment, and school attendance, as explained in Part VIII

of these Guidelines. As with other SORNA requirements, jurisdictions may require in-person

appearances by sex offenders with greater frequency than the minimum required by section 116.

The in-person appearance requirements of section 116 further the purposes of sex

offender registration and notification in a number of ways. A sex offender’s physical appearance,

like that of any other person, will change in the course of time. The in-person appearance

requirements provide reasonably frequent opportunities to obtain a photograph of the sex

offender and a physical description that reflects his or her current appearance, types of

registration information that are required by section 114(b)(1), (4). The in-person appearances

further provide an opportunity to review with the sex offender the full range of information in the

registry, and to obtain from the sex offender information about any changes in the registration

information or new information that has not been reported since the initial registration or the last

appearance.

Beyond these functions of directly helping to ensure the accuracy and currency of the

registration information, the appearance requirement ensures periodic face-to-face encounters

between the sex offender and persons responsible for his or her registration. For example, if the

appearance requirement is implemented by a jurisdiction to require that registrants report to local

police departments or sheriffs’ offices, these meetings help to familiarize law enforcement

personnel with the sex offenders in their areas. This may contribute to the effective discharge of

the local law enforcement agency’s protective and investigative functions in relation to these sex

offenders, and help to ensure that the agency’s responsibility to track these sex offenders is taken

seriously and consistently enforced. Likewise, from the perspective of the sex offender, periodic

in-person encounters with officials responsible for their monitoring may help to impress on them

with greater vividness than remote communications that their identities, locations, and past

criminal conduct are known to the authorities. Hence, there is a reduced likelihood of their

avoiding detection and apprehension if they reoffend, and this may help them to resist the

temptation to reoffend.

As long as the appearances involve meetings between the sex offenders and officials who

can carry out the required functions of the meetings, the specific arrangements for such

appearances and the officials who will conduct them are matters that jurisdictions may determine

in their discretion. For example, jurisdictions may require sex offenders to report to local law

enforcement offices for this purpose, or may combine the appearances with meetings between

sex offenders and their supervision officers if they are under supervision, or may have law

enforcement, supervision, or registration personnel visit with sex offenders at their homes or

meet with them at other arranged locations.

The specific requirements for the conduct of such appearances are as follows:

! Appearances must be conducted at least annually for sex offenders satisfying the “tier I”

criteria, at least semiannually for sex offenders satisfying the “tier II” criteria, and at least

quarterly for sex offenders satisfying the “tier III” criteria. (The “tier” classifications and

what they entail are explained in Part V of these Guidelines.)

! The sex offender must allow a current photograph to be taken. This does not mean that

jurisdictions must require officials conducting these meetings to take a new photograph at

every appearance and enter the new photograph into the registry. Where the official sees

that the sex offender’s appearance has not changed significantly from a photograph in the

registry, it may be concluded that the existing photograph remains sufficiently current and

the taking of a new photograph does not have to be required in such circumstances.

! The sex offender must be required to review the existing information in the registry that

is within his or her knowledge, to correct any item that has changed or is otherwise

inaccurate, and to provide any new information there may be in the required registration

information categories.

! Upon entry of the updated information into the registry, it must be immediately

transmitted by electronic forwarding to all other jurisdictions: (i) in which the sex

offender is or will be required to register as a resident, employee, or student, or (ii) in

which the sex offender was required to register as a resident, employee, or student until

the time of a change of residence, employment, or student status reported in the

appearance, even if the sex offender may no longer be required to register in that

jurisdiction in light of the updated information. (This is necessary to carry out

information sharing requirements appearing in SORNA §§ 119(b) and 121(b)(3).)

It may come to the attention of a jurisdiction’s registration authorities that a sex offender

has died when the sex offender fails to appear for a scheduled appearance under section 116 or by

other means. While SORNA does not address the updating of registration information in such

circumstances, jurisdictions are encouraged, as a matter of sound policy, to promptly update the

information in the registry and the jurisdiction’s public sex offender website to reflect the

registrant’s death, and to notify any other jurisdiction in which he was required to register. This

does not necessarily mean, however, that all references to the sex offender should be removed

from the registry and the website. Maintenance of historical information concerning a sex

offender in the registry—together with the information that he is deceased—may remain of

value, for example, in facilitating the solution of crimes he committed before his death by

showing where he was at the time of the crimes. Likewise, maintenance of a public website

posting for the sex offender (including the information that he is deceased) may remain of value

since, for example, such a posting could enable victims of his crimes who have been checking on

his status and location to ascertain that he is no longer alive.

Like other SORNA registration requirements, the in-person appearance requirements of

section 116 are only minimum standards. They do not limit, and are not meant to discourage,

adoption by jurisdictions of more extensive or additional measures for verifying registration

information. Thus, jurisdictions may require verification of registration information with greater

frequency than that required by section 116, and may wish to include in their systems additional

means of verification for registration information, such as mailing address verification forms to

the registered residence address that the sex offender is required to sign and return, and cross-

checking information provided by the sex offender for inclusion in the registry against other

records systems. Section 631 of the Adam Walsh Act (P.L. 109-248) authorizes a separate grant

program to assist in residence address verification for sex offenders. Additional guidance will be

provided concerning application for grants under that program if funding for the program

becomes available.

XII. DURATION OF REGISTRATION

Section 115(a) of SORNA specifies the minimum required duration of sex offender

registration. It generally requires that sex offenders keep the registration current for 15 years in

case of a tier I sex offender, for 25 years in case of a tier II sex offender, and for the life of the

sex offender in case of a tier III sex offender, “excluding any time the sex offender is in custody

or civilly committed.” (The tier classifications and their import are explained in Part V of these

Guidelines.) The required registration period begins to run upon release from custody for a sex

offender sentenced to incarceration for the registration offense, and begins to run at the time of

sentencing for a sex offender who receives a nonincarcerative sentence for the offense.

The proviso relating to custody or civil commitment reflects the fact that the SORNA

procedures for keeping up the registration—including appearances to report changes of residence

or other key information under section 113(c), and periodic appearances for verification under

section 116—generally presuppose the case of a sex offender who is free in the community.

Where a sex offender is confined, the public is protected against the risk of his reoffending in a

more direct way, and more certain means are available for tracking his whereabouts. Hence,

SORNA does not require that jurisdictions apply the registration procedures applicable to sex

offenders in the community during periods in which a sex offender is in custody or civilly

committed.

However, jurisdictions are not required to “toll” the running of the registration period

during such subsequent periods of confinement. For example, consider a sex offender released

from imprisonment in 2010 who is subject to 25 years of registration under the SORNA

standards as a tier II offender, where the sex offender is subsequently convicted during the

registration period for committing a robbery and imprisoned for three years for that offense. If

the jurisdiction would otherwise require the sex offender to register until 2035 (the 25 year

SORNA minimum), it may wish to extend that to 2038 so that the three years the sex offender

spent in prison for the robbery is effectively not credited towards the running of the registration

period. But that is a matter in the jurisdiction’s discretion. Terminating the registration in 2035

would also be consistent with SORNA’s requirements.

Subsection (b) of section 115 allows the registration period to be reduced by 5 years for a

tier I sex offender who has maintained a “clean record” for 10 years, and allows registration to be

terminated for a tier III sex offender required to register on the basis of a juvenile delinquency

adjudication if the sex offender has maintained a “clean record” for 25 years. (The circumstances

in which registration is required on the basis of juvenile delinquency adjudications are explained

in Part IV.A of these Guidelines.) There is no authorization to reduce the required 25-year

duration of registration for tier II sex offenders, or to reduce the required lifetime registration for

tier III sex offenders required to register on the basis of adult convictions.

The specific requirements under section 115(b) to satisfy the “clean record” precondition

for reduction of the registration period are as follows:

! The sex offender must not be convicted of any offense for which imprisonment for more

than one year may be imposed (§ 115(b)(1)(A)).

! The sex offender must not be convicted of any sex offense (§ 115(b)(1)(B)). In contrast

to section 115(b)(1)(A), section 115(b)(1)(B) is not limited to cases in which the offense

is one potentially punishable by imprisonment for more than a year. Hence, conviction

for a sex offense prevents satisfaction of the “clean record” requirement, even if the

maximum penalty for the offense is less than a year.

! The sex offender must successfully complete any periods of supervised release,

probation, and parole (§ 115(b)(1)(C)). The requirement of “successfully” completing

periods of supervision means completing these periods without revocation.

! The sex offender must successfully complete an appropriate sex offender treatment

program certified by a jurisdiction or by the Attorney General (§ 115(b)(1)(D)).

Jurisdictions may make their own decisions concerning the design of such treatment

programs, and jurisdictions may choose the criteria to be applied in determining whether

a sex offender has “successfully” completed a treatment program, which may involve

relying on the professional judgment of the persons who conduct or oversee the treatment

program.

XIII. ENFORCEMENT OF REGISTRATION REQUIREMENTS

This final part of the Guidelines discusses enforcement of registration requirements under

the SORNA provisions. It initially discusses the penalties for registration violations under

SORNA, and then the practical procedures for investigating and dealing with such violations.

SORNA contemplates that substantial criminal penalties will be available for registration

violations at the state, local, and federal levels. Section 113(e) of SORNA requires jurisdictions

(other than Indian tribes) to provide a criminal penalty that includes a maximum term of

imprisonment greater than one year for the failure of a sex offender to comply with the SORNA

requirements. Hence, a jurisdiction’s implementation of SORNA includes having a failure-to-

(Indian tribes are not included in this requirement because tribal court jurisdiction does not

extend to imposing terms of imprisonment exceeding a year.) Section 141(a) of SORNA enacted

18 U.S.C. 2250, a new federal failure-to-register offense, which provides federal criminal

penalties of up to 10 years of imprisonment for sex offenders required to register under SORNA

who knowingly fail to register or update a registration as required where circumstances

supporting federal jurisdiction exist, such as interstate or international travel by a sex offender, or

conviction of a federal sex offense for which registration is required. Federal sex offenders are

also required to comply with the SORNA registration requirements as mandatory conditions of

their federal probation, supervised release, or parole, as provided pursuant to amendments

adopted by section 141(d)-(e), (j) of SORNA.

In terms of practical enforcement measures, SORNA § 122 requires that an appropriate

official notify the Attorney General and appropriate law enforcement agencies of failures by sex

offenders to comply with registration requirements, and that such registration violations must be

reflected in the registries. The section further provides that the official, the Attorney General,

and each such law enforcement agency are to take any appropriate action to ensure compliance.

Complementary measures for federal enforcement appear in section 142, which directs the

Attorney General to use the resources of federal law enforcement, including the United States

Marshals Service, to assist jurisdictions in locating and apprehending sex offenders who violate

registration requirements. (Also, SORNA § 623 authorizes grants by the Attorney General to

states, local governments, tribal governments, and other public and private entities to assist in

enforcing sex offender registration requirements—additional guidance will be provided

concerning application for grants under this provision if funding is made available for this

program.)

Translating the requirements of section 122 into practical procedures that will ensure

effective enforcement of sex offender registration requires further definition. Jurisdictions can

implement the requirements of section 122 by adopting the following procedures:

! Information may be received by a jurisdiction indicating that a sex offender has

absconded—i.e., has not registered at all, or has moved to some unknown place other

than the registered place of residence. For example, a sex offender may fail to make a

scheduled appearance for periodic verification of registration information in his

jurisdiction of residence as required by SORNA § 116, or may fail to return an address

verification form mailed to the registered address in a jurisdiction that uses that

verification procedure. Or a jurisdiction may receive notice from some other jurisdiction

providing grounds to expect that a sex offender will be coming to live in the

jurisdiction—such as notice that a sex offender will be moving to the jurisdiction from a

jurisdiction in which he was previously registered, or notice from federal authorities

about the expected arrival in the jurisdiction of a released federal sex offender or sex

offender entering the United States from abroad—but the sex offender then fails to appear

and register as required. Or a jurisdiction may notify another jurisdiction, based on

information provided by a sex offender, that the sex offender will be relocating to the

other jurisdiction, but the supposed destination jurisdiction thereafter informs the original

registration jurisdiction that the sex offender has failed to appear and register.

! When such information is received by a jurisdiction indicating that a sex offender may

have absconded, whether one registered in the jurisdiction or expected to arrive from

another jurisdiction, an effort must be made to determine whether the sex offender has

actually absconded. If non-law enforcement registration personnel cannot determine this,

then a law enforcement agency with jurisdiction to investigate the matter must be

notified. Also, if the information indicating the possible absconding came through notice

from another jurisdiction or federal authorities, the authorities that provided the

notification must be informed that the sex offender has failed to appear and register.

! If a jurisdiction receives information indicating that a sex offender may have absconded,

as described in the preceding bullets, and takes the measures described therein but cannot

locate the sex offender, then the jurisdiction must take the following steps:

" The information in the registry must be revised to reflect that the sex offender is

an absconder or unlocatable.

" A warrant must be sought for the sex offender’s arrest, if the legal requirements

for doing so are satisfied.

" The United States Marshals Service, which is the lead federal agency for

investigating sex offender registration violations, must be notified. Also, the

jurisdiction must update the National Sex Offender Registry to reflect the sex

offender’s status as an absconder or unlocatable and enter the sex offender into the

National Crime Information Center Wanted Person File (assuming issuance of a

warrant meeting the requirement for entry into that file).

The foregoing procedures must be adopted for possible absconder cases to implement

SORNA § 122. In addition, a jurisdiction’s policies must require appropriate follow-up

measures when information is received indicating violation of the requirement to register in

jurisdictions of employment or school attendance, whether or not a violation of the requirement

to register in jurisdictions of residence is implicated. Specifically, a jurisdiction may receive

information indicating that a sex offender may be employed or attending school in the

jurisdiction but has not registered as required—for example, failure by the sex offender to appear

for a required periodic in-person appearance in the employment or school jurisdiction, as

required by SORNA § 116, or failure by a sex offender to appear and register in the jurisdiction

following receipt of notice from another jurisdiction that the sex offender is expected to be

commencing employment or school attendance in the jurisdiction. In such cases, an effort must

be made to determine whether the sex offender is actually employed or attending school in the

jurisdiction but has failed to register. If (non-law enforcement) registration personnel cannot

determine this, then a law enforcement agency with jurisdiction to investigate the matter must be

notified.

__________________________ ____________________________________

Date Michael B. Mukasey

Attorney General

Appendix A. Summary of Comments

DEPARTMENT OF JUSTICE

[Docket No. OAG 121; AG Order No. 2978-2008 ]

RIN 1105-AB28

Office of the Attorney General; The National Guidelines for

Sex Offender Registration and Notification

AGENCY: Department of Justice.

ACTION: Final guidelines.

SUMMARY: The United States Department of Justice is publishing Final Guidelines to

interpret and implement the Sex Offender Registration and Notification Act.

EFFECTIVE DATE: July 2, 2008.

FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, SMART Office,

Office of Justice Programs, United States Department of Justice, Washington, DC, phone: 202-

514-4689, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registration Act (42 U.S.C. 14071) in 1994,

there have been national standards for sex offender registration and notification in the United

States. All states currently have sex offender registration and notification programs and have

endeavored to implement the Wetterling Act standards in their existing programs.

Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248), the

Sex Offender Registration and Notification Act (SORNA), contains a comprehensive revision of

the national standards for sex offender registration and notification. The SORNA reforms are

generally designed to strengthen and increase the effectiveness of sex offender registration and

notification for the protection of the public, and to eliminate potential gaps and loopholes under

the pre-existing standards by means of which sex offenders could attempt to evade registration

requirements or the consequences of registration violations.

Section 112(b) of SORNA (42 U.S.C. 16912(b)) directs the Attorney General to issue

guidelines to interpret and implement SORNA. The Department of Justice published proposed

guidelines in the Federal Register on May 30, 2007, for this purpose. See 72 FR 30209 (May 30,

2007). The comment period ended on August 1, 2007.

These final guidelines provide guidance and assistance to the states and other

jurisdictions in incorporating the SORNA requirements into their sex offender registration and

notification programs. Matters addressed in the guidelines include general principles for

SORNA implementation; the jurisdictions responsible for implementing the SORNA standards

in their programs; the sex offenders required to register under SORNA and the registration and

notification requirements they are subject to based on the nature of their offenses and the extent

of their recidivism; the information to be included in the sex offender registries and the

disclosure and sharing of such information; the jurisdictions in which sex offenders are required

to register; the procedures for initially registering sex offenders and for keeping the registration

current and the registration information up to date; the duration of registration; and the means of

enforcing registration requirements.

A summary of the comments received on the proposed guidelines follows, including

discussion of changes in the final guidelines based on the comments received, followed by the

text of the final guidelines.

Summary of Comments on the Proposed Guidelines

Approximately 275 comments were received on the proposed guidelines. The

Department of Justice appreciates the interest and insight reflected in the many submissions and

communications, and has considered them carefully. In general, the comments did not show a

need to change the overall character of the guidelines, but in some areas the commenters

provided persuasive reasons to change the proposed guidelines’ treatment of significant issues, or

pointed to a need to provide further clarification about them.

The initial portion of this summary reviews the most significant and most common issues

raised in the comments, and identifies changes made in the final guidelines relating to these

issues. The remainder of the summary thereafter runs through the provisions of the guidelines in

the order in which they appear, and discusses in greater detail the comments on each topical area

in the guidelines and changes made (or not made) on the basis of public comments.

Tribal issues: Comments were received from a number of Indian tribal organizations and

individual tribes that expressed their strong commitment to the protection of their communities

from sex offenders through effective registration and notification. These comments, however,

emphasized the importance of consulting and involving tribal representatives in all aspects of

SORNA implementation affecting tribal interests, and presented well-founded proposals for

changing a number of provisions in the guidelines. Specific changes in the final guidelines based

on these comments include: (i) clarifying that groups of tribes may enter into cooperative

arrangements among themselves to effect the substantial implementation of the SORNA

requirements, (ii) striking a provision of the proposed guidelines that was seen as according less

respect to tribal sex offense convictions than to sex offense convictions in other jurisdictions, and

(iii) modifying a requirement for sex offenders to register ethnic or tribal names whose

formulation was overly broad in the proposed guidelines. The comments received on tribal

issues and resulting changes in the final guidelines are further discussed below in connection

with § 127 of SORNA, the meaning of “conviction” for purposes of SORNA, and required

registration information under SORNA.

Treatment of juveniles: Comments were received from various groups and individuals

objecting to SORNA’s treatment of juvenile delinquents. The relevant SORNA provisions

require registration for juveniles at least 14 years old who are adjudicated delinquent for

committing particularly serious sexually assaultive crimes (offenses “comparable to aggravated

sexual abuse”). These comments could not be accommodated in the guidelines to the extent that

they simply express disagreement with the legislative decision in SORNA § 111(8) that a

narrowly defined class of juvenile delinquents should be subject to SORNA’s requirements, or

propose that jurisdictions be deemed to have substantially implemented SORNA even if they

globally dispense with SORNA’s registration and notification requirements in relation to

juveniles. However, the comments have provided grounds for further thought about the

implementation of § 111(8)’s requirement that juveniles at least age 14 adjudicated delinquent

for offenses comparable to aggravated sexual abuse be registered, resulting in a substantial

change in the final guidelines’ treatment of this issue. As revised, the guidelines explain that it is

sufficient for substantial implementation of this aspect of SORNA to require registration for

(roughly speaking) juveniles at least age 14 who are adjudicated delinquent for offenses

equivalent to rape or attempted rape, but not for those adjudicated delinquent for lesser sexual

assaults or non-violent sexual conduct. The comments received on this issue and the changes

made on the basis of the comments are further discussed below in connection with the

“substantial implementation” standard under SORNA and in connection with SORNA’s concept

of “conviction” (parts II.E and IV.A of the guidelines).

Retroactivity: Some commenters objected to, or expressed concerns about, provisions of

the guidelines that require that jurisdictions apply the SORNA requirements “retroactively” to

certain categories of offenders whose sex offense convictions predate the enactment of SORNA

or its implementation in a particular jurisdiction. The guidelines specifically require registering

in conformity with SORNA sex offenders who remain in the system as prisoners, supervisees, or

registrants, or who reenter the system through a subsequent criminal conviction. Some

comments of this type opined that Congress was simply wrong in enacting SORNA’s

requirements for sex offender registration and notification, and that the Attorney General should

mitigate the resulting harm by defining their scope of application as narrowly as possible. This

premise cannot be accepted or acted on in issuing guidelines to “interpret and implement”

SORNA, as SORNA § 112(b) requires the Attorney General to do. Other commenters, however,

expressed concerns of a more practical nature, based on potential difficulties in finding older

convictions and determining whether registration is required for them under SORNA’s standards.

The final guidelines address this concern by clarifying that jurisdictions may rely on their normal

methods and standards in searching criminal records for this purpose, and that information about

underlying offense conduct or circumstances does not have to be sought beyond that appearing in

available criminal history information. Parallel explanation has also been provided in relation to

pre-SORNA (or pre-SORNA-implementation) convictions that raise a sex offender’s tier

classification under SORNA on grounds of recidivism.

Information subject to website posting: Some state officials who submitted comments

expressed concern that their jurisdictions would be required to post various types of registration

information on their public sex offender websites—e.g., fingerprints, palm prints, and DNA

information—that would be of no real interest to the public or inappropriate for public

disclosure. However, the guidelines identify a limited number of informational items concerning

a sex offender that must be included on the websites—in essence, name information, address

information, vehicle information, physical description, sex offenses for which convicted, and a

current photograph—and do not require website posting of registration information outside of

these categories. The guidelines in their final formulation have been revised for greater clarity

concerning the information that must be included on jurisdictions’ sex offender websites and the

information that need not be included.

Registration jurisdictions: Some commenters raised questions about in-state registration

requirements, such as whether a sex offender who resides in one county and is employed in

another would have to register in both counties. The answer is that this is a matter of state

discretion. The “jurisdictions” in which SORNA requires registration are the 50 States, the five

principal territories, the District of Columbia, and Indian tribes that have elected to be

registration jurisdictions in conformity with § 127—the definition does not cover counties, cities,

towns, or other political subdivisions of states or other covered jurisdictions. SORNA § 113(a)

provides that sex offenders must register in the jurisdictions (as so defined) in which they live,

work, or attend school, but SORNA does not prescribe finer requirements as to the particular

area(s) or location(s) within individual states, territories, or tribes where sex offenders must

registration requirement under SORNA—beyond initial registration—in relation to the

jurisdiction in which a sex offender was originally convicted for the registration offense, if the

sex offender does not reside, work, or attend school in that jurisdiction. The answer is no. While

SORNA itself (§§ 111(10), 113(a)) and the proposed guidelines reflect these points, some

additional explicit language has been added about them in the final guidelines to foreclose future

misunderstandings of this type.

Offense of conviction versus underlying conduct: Some commenters raised questions

or provided recommendations as to whether the application of SORNA’s requirements depends

on the elements of the offense for which the sex offender is convicted or the underlying offense

conduct. The answer to this question may affect whether registration is required by SORNA at

all, and may affect the “tier” classification of offenders under the SORNA standards. The

general answer is that jurisdictions are not required by SORNA to look beyond the elements of

the offense of conviction in determining registration requirements, except with respect to victim

age. The discussion of the tier classifications has been edited in the final guidelines to make this

point more clearly.

Duration of registration: Some commenters expressed uncertainties or criticisms

relating to provisions in the guidelines affecting the duration of registration. The matters raised

included (i) whether the running of the registration period is suspended by the subsequent

incarceration of the sex offender or other subsequent events (tolling), and (ii) the conditions for

reducing registration periods. The discussion of these issues has been revised in some respects in

the final guidelines for greater clarity.

Risk assessments: Some commenters asked whether a jurisdiction could be considered to

have substantially implemented the SORNA requirements if the jurisdiction globally dispensed

with those requirements and instead based sex offender registration or notification on

individualized risk assessments of sex offenders. The answer is no, for reasons that are further

discussed in connection with “substantial implementation” later in this summary. This does not

mean, however, that SORNA bars jurisdictions from utilizing risk assessments in their systems if

they so wish. Jurisdictions may have reasons for carrying out such assessments independent of

registration/notification issues, such as to inform decisions concerning the conditions or duration

of supervision, and they remain free to utilize such assessments as a basis for prescribing

registration or notification requirements that exceed the minimum required by SORNA. For

example, there is no inconsistency with SORNA if a jurisdiction prescribes a longer registration

period or more frequent verification appearances than the minimum required under SORNA

§§ 111(2)-(4), 115-16, based on a risk assessment indicating that a sex offender is at “high risk”

of reoffending, or if a jurisdiction includes on its public sex offender website information

showing the results of risk assessments of individual offenders.

Aids to implementation: Some of the commenters recommended the development of

practical information technology and documentary tools to facilitate SORNA implementation.

Various measures of this sort will be pursued. The final guidelines themselves will be available

in a more user-friendly form on the SMART Office website, which will include a table of

contents with page number references and an index. Per the directive in SORNA § 123, software

is being developed and communications systems arrangements are being made that will facilitate

the interjurisdictional exchange of registration information, automate the posting of information

to sex offender websites and the operation of such websites in conformity with the SORNA

requirements, and otherwise enable jurisdictions to implement the SORNA requirements in their

programs as far as possible by using these technological tools. Additional implementation tools

the SMART Office is developing include: a database of statutes ranging back to approximately

1960 for all SORNA jurisdictions, which jurisdictions will be able to link to from their registries

to provide the text of the conviction offense for each registered sex offender; a statutory matrix

of sex offense provisions from all SORNA jurisdictions, which will assist jurisdictions in

ascertaining the SORNA registration and notification requirements applicable to offenders

convicted of these offenses; checklists that jurisdictions will be able to use to evaluate whether

the SORNA requirements are met in their programs and to structure their submissions to the

SMART Office establishing SORNA implementation; model forms that jurisdictions will be able

to use to inform sex offenders about their obligations under SORNA; and model templates for

jurisdictions to use to create cooperative agreements.

Jurisdiction-specific questions: Some commenters—particularly state officials with

responsibilities relating to sex offender registration or notification—submitted extensive

questions, comments, and observations relating to the implementation of SORNA in their

jurisdictions. This summary does not attempt to provide an exhaustive account of such

submissions, or to respond to them point by point. The number of specific questions or

comments of this type is very large and many of them relate to matters that may not arise in, and

may not be of interest to, jurisdictions other than the particular jurisdiction that submitted the

questions. Also, these comments largely did not propose changes in the guidelines, but perhaps

sought confirmation of the guidelines’ meaning in relation to certain matters, or practical advice

or suggestions for implementing the SORNA requirements in particular state systems. The

SMART Office’s cooperative work with all jurisdictions in their SORNA implementation efforts

will provide a more satisfactory means of answering questions and addressing matters of this

type than this summary of comments on the proposed SORNA implementation guidelines.

Residency restrictions and other misunderstandings: A number of commenters

submitted critical comments concerning supposed requirements that do not appear in SORNA or

the guidelines. For example, some commenters complained that SORNA or the guidelines

would prevent sex offenders from living in many areas. But SORNA’s requirements are

informational in nature and do not restrict where sex offenders can live. To the extent that states,

other SORNA jurisdictions, or municipalities prescribe restrictions on areas that sex offenders

may enter or reside in, it is a matter in their discretion, and any objections to such restrictions

would need to be addressed to the governmental entities that adopt them. As a second example,

some commenters assumed that there is little or no difference between the treatment of adult sex

offenders and juveniles under SORNA and the guidelines, and that SORNA would require

registration by teenagers based on consensual sexual conduct with other teenagers of similar age.

No changes have been made in the guidelines on the basis of such comments because they

involve incorrect assumptions concerning matters that SORNA and the guidelines do not require.

Objections to SORNA: Some of the comments stated objections to SORNA generally,

to specific sex offender registration or notification requirements prescribed by SORNA, or to

features of the guidelines that straightforwardly reflect SORNA’s requirements. Changes have

not been made in the guidelines based on such comments because the Attorney General has no

authority to repeal or overrule the national standards for sex offender registration and notification

that are embodied in SORNA. Rather, the Attorney General’s responsibility is to interpret and

implement those standards in the guidelines, as required by SORNA § 112(b).

The remainder of this summary discusses comments received on the guidelines’

provisions in the order in which those provisions appear in the guidelines.

I. Introduction

No comments were received that provided any persuasive reason to change the

Introduction, and it remains the same in the final guidelines.

II. General Principles

A. Terminology

The proposed guidelines, following the express definition in SORNA § 111(10), used the

term “jurisdictions” to refer to the 50 States, the District of Columbia, the five principal U.S.

territories, and Indian tribes so qualifying under § 127. Some comments received nevertheless

reflected a misunderstanding of “jurisdictions” in some contexts in the guidelines as including

political subdivisions of states (e.g., counties). Additional explanation about the meaning of

“jurisdiction” has been added in the “terminology” section in the final guidelines to foreclose

misunderstandings of this type. A paragraph has also been added explaining the use of the term

“imprisonment” in SORNA and the guidelines.

B. Minimum National Standards

The proposed guidelines stated that SORNA generally establishes minimum national

standards, setting a floor, not a ceiling, for jurisdictions’ sex offender registration and notification

programs. Hence, jurisdictions may adopt requirements that encompass the SORNA baseline of

sex offender registration and notification requirements but exceed them in relation to such

matters as: the classes of persons who will be required to register; the means by, and frequency

with which, registration information will be verified; the duration of registration; the time for

reporting of changes in registration information; and the classes of registrants and the

information about them that will be included on public sex offender websites.

Some commenters took issue with this basic premise of the guidelines, asserting that

SORNA was meant to prescribe the most as well as the least that jurisdictions may do, hence

precluding jurisdictions from adopting sex offender registration and notification measures that go

beyond those required by SORNA. This view is mistaken, as may be seen from the provisions of

SORNA and the Adam Walsh Act, the history of the national standards for sex offender

registration and notification, and the general principles regarding preemption of state regulation

by federal law.

Considering first the provisions of SORNA, § 119(a) provides the current statutory basis

for the National Sex Offender Registry (NSOR), a central database maintained by the FBI that

compiles information from the state sex offender registries and makes it available to law

enforcement agencies on a nationwide basis. Section 119(a) states specifically that “[t]he

Attorney General shall maintain a national database at the Federal Bureau of Investigation for

each sex offender and any other person required to register in a jurisdiction’s sex offender

registry.” (Emphasis added.) Hence, the authorizing provision for NSOR contemplates

expressly that NSOR’s contents will not be limited to persons satisfying the SORNA § 111(1),

(5)-(8) definition of “sex offender”—which defines the universe of individuals required to

person[s]” whom jurisdictions require to register. For example, as the guidelines note,

jurisdictions may choose to require registration by certain classes of persons who are non-

convicts and hence outside the SORNA definition of “sex offender”—such as persons acquitted

of sexually violent crimes or child molestation offenses on the ground of insanity, or persons

released following civil commitment as sexually dangerous persons. SORNA § 119(a) explicitly

confirms the propriety of including information on such registrants in NSOR. If, however, there

had been a legislative objective to exclude all such persons from any requirement to register, as

these commenters suppose, it would have been perverse for SORNA to provide that these

persons are to be included in the National Sex Offender Registry.

SORNA § 120, which provides the statutory basis for the Dru Sjodin National Sex

Offender Public Website, similarly shows that SORNA was not intended to prescribe the

maximum that jurisdictions may do. The website in question, maintained by the Department of

Justice at www.nsopr.gov, is a search mechanism that provides convenient access through a

single national site to the information available on the individual jurisdictions’ public sex

offender websites. Section 120(b) states that “[t]he Website shall include relevant information

for each sex offender and other person listed on a jurisdiction’s Internet site.” (Emphasis added.)

Hence, the provision for the national public website expressly contemplates, and allows for the

inclusion of, registrants in addition to those satisfying the SORNA definition of “sex offender,”

and assumes that there will be public notification concerning such registrants through website

posting. On the view of the commenters who assert that the SORNA standards define a ceiling

for jurisdictions’ programs, SORNA establishes a federal policy against registration and

notification for persons who do not satisfy the SORNA definition of “sex offender.” However, if

a jurisdiction violates this alleged federal policy by requiring such persons to register and posting

them on its sex offender website, then the violation is to be compounded by posting them on the

national sex offender website as well, as SORNA § 120 requires. There is no merit to an

understanding that would impute to SORNA such contradictory objectives.

A third provision of similar import is 18 U.S.C. 4042(c) (entitled “notice of sex offender

release”), which requires notice to state and local law enforcement and to state or local sex

offender registration agencies concerning the release to their areas of certain federal prisoners

and probationers. The persons for whom such release notice is required are those “required to

person in a category specified by the Attorney General.” 18 U.S.C. 4042(c)(1), (3), as amended

by SORNA § 141(f)-(g). The “any other person” language provides the Attorney General the

authority to facilitate jurisdictions’ registration requirements that go beyond the SORNA

minimum by affording release notice to the jurisdictions’ registration authorities concerning

persons who may be subject to such broader requirements, even if they are not required to

against jurisdictions’ registering individuals who are not required to register by SORNA.

A fourth provision of this type, appearing later in the Adam Walsh Act, is § 631, which

authorizes funding to assist jurisdictions in periodic verification of the registered addresses of sex

offenders. The history of this provision indicates that its purpose is to support special measures

jurisdictions may adopt to ensure that sex offenders remain at their registered addresses, such as

mailing to the registered address verification forms that the sex offender is required to sign and

return—measures that are supplementary to in-person appearances by sex offenders, which are

the only means of periodic verification of registration information that SORNA requires in its

enacted form. Compare SORNA §§ 116, 631, with H.R. 3132, §§ 116, 118, 109th Cong., 1st

Sess. (2005) (as passed by the House of Representatives). However, under the commenters’

theory that SORNA defines the maximum sex offender registration measures jurisdictions may

adopt, there would be no room for a program like that authorized in § 631 of the Adam Walsh

Act to encourage additional measures promoting effective sex offender tracking and location.

The general history and formulation of SORNA also imply that jurisdictions have

discretion to go beyond the minimum registration and notification measures required by SORNA.

SORNA was preceded by the national standards for sex offender registration under the Jacob

Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (42 U.S.C.

14071), which was initially enacted in 1994.

The general approach of SORNA parallels that of the Wetterling Act. Both enactments

set forth standards that address the various aspects of sex offender tracking and public

notification, but they do not purport to exhaust the measures that jurisdictions may wish to adopt

for these purposes, or to preempt additional regulation by jurisdictions of persons who have

committed sexual offenses. The Attorney General’s guidelines under the Wetterling Act

consistently interpreted that Act’s requirements as minimum standards that states are free to

exceed. See 64 FR 572, 575 (1999) (“[T]he Act’s standards constitute a floor for state programs,

not a ceiling . . . . 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.”); 62 FR 39009, 39013 (1997)

(same); 61 FR 15110, 15112 (1996) (same); see also 70 FR 12721, 12724 (2005) (same

understanding in proposed guidelines for final amendments to the Wetterling Act preceding

enactment of SORNA).

Given that this understanding of the national standards under the Wetterling Act was set

forth in public guidelines for over a decade prior to the enactment of the successor national

standards of SORNA, the reasonable expectation at the time of SORNA’s enactment was that the

SORNA standards would be understood in the same way, absent a new legislative direction to

the contrary. Hence, continuing the approach of the Wetterling Act, SORNA does not bar

jurisdictions from adopting additional regulation of sex offenders for the protection of the public,

beyond the specific measures that SORNA requires.

Under both the Wetterling Act and SORNA, the “floor, not ceiling” principle is qualified

in one area. Specifically, in relation to public disclosure of information on registrants, the

Wetterling Act standards required release of relevant information necessary to protect the public,

but with the proviso that “the identity of a victim of an offense that requires registration under

this section shall not be released.” 42 U.S.C. 14071(e)(2). The exclusion of victim identity from

public disclosure is carried forward in SORNA § 118(b), which specifies “mandatory

exemptions” from the posting of registration information on jurisdictions’ sex offender websites.

Specifically, § 118(b)(1) states that a jurisdiction shall exempt from disclosure “the identity of

any victim of a sex offense.” In addition, reflecting that SORNA § 114 requires a broader range

of registration information than had been required under the Wetterling Act standards, some of

which may be inappropriate for public disclosure through website posting, SORNA § 118(b)

states additional mandatory exemptions for Social Security numbers, arrests not resulting in

conviction, and any other information exempted from disclosure by the Attorney General.

The statement of these limited exceptions provides further confirmation for the general

principle that SORNA’s aim is to define a floor, not a ceiling, for jurisdictions’ sex offender

registration and notification programs. Under both the Wetterling Act and SORNA, there is one

area—public disclosure of registration information—in which there is an overt legislative

decision that the federal law standards should impose some affirmative limitation on how far

jurisdictions may go. In both the Wetterling Act and SORNA this judgment is reflected in

explicit statutory provisions stating that certain information shall not be disclosed. So a model

for instructing jurisdictions about what they should not do exists, and one would expect similar

express statements of limitation had SORNA been meant to prescribe upper bounds on

jurisdictions’ registration measures in other areas. In SORNA, however, as in the Wetterling

Act, such statements of limitation do not appear in other contexts.

The practical consequences of reinterpreting the national standards to establish a ceiling

for jurisdictions’ registration and notification programs must also be considered. During the

period in which the Wetterling Act defined the national baseline for sex offender registration and

notification, states were free to go beyond the specified minimum, as discussed above, and

commonly did so. For example, the Wetterling Act standards required 10 years of registration

for sex offenders generally, and lifetime registration for aggravated offenders and recidivists. See

42 U.S.C. 14071(b)(6). But many jurisdictions have adopted durational requirements for

registration that exceed the Wetterling Act’s minimum, and may also exceed the current SORNA

minimum in relation to many sex offenders—such as making lifetime registration the norm in

relation to registrants generally, as may be provided in some existing registration programs.

Hence, taking the SORNA standards as a ceiling for such programs would require many

jurisdictions to reduce or eliminate sex offender registration and notification requirements that

they were free to adopt under the Wetterling Act standards and currently apply in their programs.

That is not plausibly the objective of a law (SORNA) enacted with the general purpose of

strengthening sex offender registration and notification in the United States.

The general principles governing federal preemption of state regulation lead to the same

conclusion. SORNA’s regulatory system for sex offenders involves a combination of federal and

non-federal elements. In part, SORNA directly prescribes registration requirements that sex

offenders must comply with, and authorizes the Attorney General to augment or further specify

those requirements in certain areas. See §§ 113(a)-(d), 114(a), 115(a), 116. These requirements

are subject to direct federal enforcement, including prosecution under 18 U.S.C. 2250 where

violations occur under circumstances supporting federal jurisdiction, and prescription of

compliance with the SORNA requirements as mandatory conditions of supervision for federal

sex offenders under 18 U.S.C. 3563(a)(8), 3583(d). SORNA provides incentives for states and

other covered jurisdictions to incorporate its registration requirements for sex offenders, and

other registration and notification-related measures set out in other provisions of SORNA, into

their own sex offender registration and notification programs. See §§ 112(a), 113(c) (second

sentence), 113(e), 114(b), 117, 118, 121, 122, 124-27. The overall SORNA scheme also

incorporates federal superstructure and assistance measures that support and leverage the

jurisdictions’ individual registration and notification programs. See §§ 119, 120, 122, 123, 128,

142, 144, 146. The Attorney General is authorized to issue guidelines and regulations to

interpret and implement SORNA. See § 112(b).

The commenters who took issue with the “floor, not ceiling” principle in the proposed

guidelines asserted that the registration and notification requirements set out in SORNA are

meant to be exhaustive and preemptive, precluding any additional regulation of released sex

offenders by (non-federal) jurisdictions for the protection of the public. But “[w]hen considering

pre-emption, we start with the assumption that the historic police powers of the States were not

to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (internal quotation marks

omitted).

One way a “clear and manifest” preemptive purpose may be shown is through “explicit

pre-emptive language.” 501 U.S. at 605. But SORNA contains no explicit preemption

provision, which says that states or other jurisdictions cannot adopt regulatory measures beyond

those that SORNA requires. The various provisions in SORNA regarding jurisdictions’

implementation of SORNA are best understood as being satisfied if a jurisdiction incorporates

the SORNA requirements in its program, with no negative implication concerning the

jurisdiction’s discretion to adopt additional requirements. See SORNA §§ 112(a) (each

jurisdiction to maintain a sex offender registry conforming to the requirements of SORNA), 124

(each jurisdiction to implement SORNA within specified time frames), 125 (funding reduction

for jurisdictions that fail to substantially implement SORNA), 126 (authorizing funding

assistance for implementation of SORNA).

Absent explicit preemption, “Congress’ intent to supersede state law in a given area may

nonetheless be implicit if a scheme of federal regulation is so pervasive as to make reasonable

the inference that Congress left no room for the States to supplement it.” 501 U.S. at 605

(internal quotation marks omitted). SORNA, however, obviously leaves room for states (and

other jurisdictions) to supplement its requirements. As discussed above, this point is recognized

in provisions of SORNA relating to its federal superstructure elements, such as the National Sex

Offender Registry and the Dru Sjodin National Sex Offender Website, which expressly

presuppose that the jurisdictions’ programs may go beyond the SORNA-required minimum.

Preemption may also be inferred if “the Act of Congress . . . touch[es] a field in which the

federal interest is so dominant that the federal system will be assumed to preclude enforcement of

state laws on the same subject.” 501 U.S. at 605 (internal quotation marks omitted). There is,

however, no such predominant federal interest with respect to sex offender registration and

notification. The interest of the individual states (and other covered jurisdictions) in the

protection of their people from sex offenders through appropriate regulatory measures and public

disclosure of relevant information is at least equal to that of the federal government, and falls

within an area of traditional state power and responsibility.

Another ground for inferring preemption is “if the goals sought to be obtained and the

obligations imposed reveal a purpose to preclude state authority.” 501 U.S. at 605 (internal

quotation marks omitted). Here as well, SORNA does not support such an inference. The

general purpose of SORNA is “to protect the public from sex offenders and offenders against

children,” and to that end Congress in SORNA “establish[ed] a comprehensive national system

for the registration of those offenders.” SORNA § 102. The SORNA requirements are

“comprehensive” in the sense that SORNA provides a full set of national baseline requirements

and procedures for sex offender registration and notification, replacing the previous national

standards under the Wetterling Act. See SORNA § 129 (repeal of Wetterling Act upon

completion of implementation period for SORNA). Moreover, SORNA is more comprehensive

and contemplates greater uniformity among jurisdictions than the previous Wetterling Act

standards in that it generally establishes a higher national baseline. But the

“comprehensive[ness]” of the SORNA requirements cannot be understood to reflect an intent to

preclude any and all differences among jurisdictions. Some provisions in SORNA expressly

authorize variations among jurisdictions. See §§ 118(c) (discretionary exemption of certain

information from website posting by jurisdictions), 125(b) (authorizing accommodation of state

constitutional restrictions). Various other SORNA provisions, as discussed above, recognize that

jurisdictions may go beyond the SORNA minimum and they provide for the accommodation of

such differences in SORNA’s federal superstructure elements, including the National Sex

Offender Registry and the Dru Sjodin National Sex Offender Website. These express provisions

are at odds with any understanding of the “comprehensive[ness]” of the SORNA standards in a

preemptive sense, so as to preclude the adoption by states or other covered jurisdictions of

measures that seek to go further in order to advance SORNA’s basic purpose, i.e., “[i]n order to

protect the public from sex offenders and offenders against children.” SORNA § 102.

Finally, “[e]ven when Congress has not chosen to occupy a particular field, pre-emption

may occur to the extent that state and federal law actually conflict.” 501 U.S. at 605. The

comments received on the proposed guidelines included one argument along these lines, relating

specifically to the provisions in SORNA § 115 concerning the duration of registration.

By way of background, subsection (a) of § 115 requires a sex offender to register “for the

full registration period . . . unless the offender is allowed a reduction under subsection (b).” The

“full registration period[s]” specified in subsection (a) of § 115 are 15 years for tier I sex

offenders, 25 years for tier II sex offenders, and life for tier III sex offenders. Subsection (b) of

§ 115 in turn provides that the full registration period required by federal law shall be reduced for

certain sex offenders who maintain a “clean record” as defined in the statute. Specifically, the

“full registration period” specified for tier I sex offenders in subsection (a)(1) is 15 years, but if

the sex offender maintains a clean record for 10 years, subsection (b) reduces by five years the

period for which subsection (a) would otherwise require such a sex offender to register. The

other “clean record” reduction of the registration period required by federal law under § 115(b) is

for tier III sex offenders registered on the basis of juvenile delinquency adjudications who

maintain a clean record for 25 years; no reduction is authorized for tier II sex offenders or for tier

III sex offenders registered on the basis of adult convictions.

One of the commenters argued that these provisions presuppose that the “full registration

period[s]” specified in § 115(a) are the longest registration periods SORNA allows jurisdictions

to impose on sex offenders. For if a jurisdiction required lifetime registration for a tier I sex

offender, the five-year reduction of the full registration period § 115(b) requires in case the sex

offender maintains a “clean record” for 10 years could not meaningfully be applied.

However, in the context of § 115, the federal registration periods described in subsection

(a) are referred to as the “full” registration periods to distinguish such periods from the reduced

federal registration periods required under subsection (b) if certain “clean record” conditions are

satisfied. There is no basis for taking subsection (a)’s requirement that sex offenders register for

the periods specified in that subsection as implying that jurisdictions cannot prescribe longer or

additional registration requirements for sex offenders. Subsection (b) of § 115 provides that the

period for which SORNA requires a sex offender to register shall be reduced upon satisfaction of

the “clean record” conditions specified in that subsection, but no inference follows that states (or

other jurisdictions) lack the discretion to require on their own authority that sex offenders

continue to register beyond the periods that SORNA requires them to register.

Hence, a jurisdiction has not failed to implement the SORNA requirements if it

terminates registration for tier I sex offenders after they have maintained “clean records” for 10

years, as § 115(b) allows. But if a jurisdiction chooses instead to require longer periods of

registration for such offenders, including lifetime registration, it has done nothing that SORNA

prohibits. As with SORNA’s requirements generally, § 115’s durational requirements for

registration define the minimum, and not the maximum, requirements for the jurisdictions’

registration programs.

Accordingly, no change has been made in the final guidelines as to the general principle

that SORNA defines a floor, not a ceiling, for jurisdictions’ sex offender registration and

notification programs. Changes in the final guidelines relating to this issue are limited to edits in

Parts II.B and XII for greater clarity on the points reflected in the foregoing discussion.

C. Retroactivity

The proposed guidelines require the application by a jurisdiction of SORNA’s

requirements to sex offenders convicted prior to the enactment of SORNA or its implementation

in the jurisdiction, if they remain in the system as prisoners, supervisees, or registrants, or if they

reenter the system because of subsequent criminal convictions. Some commenters objected to

this feature of the proposed guidelines as adversely affecting sex offenders in these classes.

However, the effects of SORNA’s registration and notification requirements on sex offenders are

much the same regardless of whether their sex offense convictions occurred before or after

SORNA’s enactment or its implementation in a particular jurisdiction. Likewise, the public

safety concerns presented by sex offenders are much the same, regardless of when they were

convicted. The SORNA standards reflect a legislative judgment that SORNA’s registration and

notification requirements, even if disagreeable from the standpoint of sex offenders who are

subject to them, are justified by the resulting benefits in promoting public safety. The comments

received do not establish that this legislative judgment is wrong, and in any event such a premise

could not be accepted in the formulation of guidelines whose objective is to “interpret and

implement” SORNA’s standards, see SORNA § 112(b), not to second-guess the legislative

policies they embody.

Moreover, the specific provisions of the guidelines relating to “retroactivity” incorporate

some features that may limit their effect on sex offenders with older convictions. While

SORNA’s requirements apply to all sex offenders, regardless of when they were convicted, see

28 CFR 72.3, the guidelines do not require jurisdictions to identify and register every such sex

offender. Rather, as stated in the guidelines, a jurisdiction will be considered to have

substantially implemented SORNA if it applies SORNA’s requirements to sex offenders who

remain in the system as prisoners, supervisees, or registrants, or reenter the system through

subsequent convictions. So the guidelines do not require a jurisdiction to register in conformity

with SORNA sex offenders who have fully left the system and merged into the general

population at the time the jurisdiction implements SORNA, if they do not reoffend. A further

limitation permitted by the guidelines is that a jurisdiction may credit a sex offender with a pre-

SORNA conviction with the time elapsed from his release (or the time elapsed from sentencing,

in case of a nonincarcerative sentence) in determining what, if any, remaining registration time is

required. To the extent that a jurisdiction exercises this option, the effect of retroactive

application on sex offenders with pre-SORNA convictions may be further reduced.

Where the critical comments about the guidelines’ treatment of retroactivity went beyond

considerations that fail to distinguish sex offenders with pre-SORNA (or pre-SORNA-

implementation) convictions from those with more recent convictions, they tended to argue that

retroactive application of SORNA’s requirements would be unconstitutional, or would be unfair

to sex offenders who could not have anticipated the resulting applicability of SORNA’s

requirements at the time of their entry of a guilty plea to the predicate sex offense. However, as

non-punitive regulatory measures, the SORNA requirements do not implicate the Constitution’s

prohibition of ex post facto laws. Moreover, fairness does not require that an offender, at the

time he acknowledges his commission of the crime and pleads guilty, be able to anticipate all

future regulatory measures that may be adopted in relation to persons like him for public safety

purposes. The comments received provided no persuasive distinction on these points between

the SORNA requirements and the sex offender registration and notification measures upheld by

the Supreme Court against an ex post facto challenge in Smith v. Doe, 538 U.S. 84 (2003).

For the foregoing reasons, no changes have been made in the final guidelines relating to

retroactivity based on the comments alleging an adverse effect on sex offenders. Some critical

comments were also received relating to the guidelines’ treatment of retroactivity based on

potential practical difficulties for jurisdictions in identifying offenders in the relevant classes and

determining what SORNA requires in relation to them. These comments are discussed below in

connection with Part IX of the guidelines.

D. Automation – Electronic Databases and Software

Some commenters asked for a more extensive set of technological or documentary tools

to facilitate the implementation of SORNA in their jurisdictions. The SMART Office is

developing, and will make available to jurisdictions, a wide range of tools of this type.

Descriptions of many of them appear in the initial portion of this summary, under the caption

“aids to implementation.”

E. Implementation

The final guidelines, like the proposed guidelines, explain the “substantial

implementation” standard for jurisdictions’ implementation of the SORNA requirements as

affording a limited latitude to approve measures that do not exactly follow the provisions of

SORNA or the guidelines, where the departure from a SORNA requirement does not

substantially disserve the requirement’s objective. Some commenters urged that a much broader

understanding of the “substantial implementation” standard should be adopted, under which a

jurisdiction’s registration and notification system could be approved even if the jurisdiction made

no effort to do (either exactly or approximately) what SORNA requires according to its terms,

but rather adopted a fundamentally different approach to sex offender registration and

notification generally or to particular registration or notification requirements.

In practical terms, this understanding of “substantial implementation” would potentially

negate all of the particular legislative judgments in SORNA concerning sex offender registration

and notification requirements. It would effectively treat them as a set of suggestions for

furthering public safety in relation to released sex offenders, which could be dispensed with

based on arguments that other approaches would further that general objective, though not

encompassing the specific minimum measures that SORNA prescribes or anything close to those

measures.

This reinterpretation of the substantial implementation standard has not been adopted in

the final guidelines because it would defeat SORNA’s objective of establishing a national

baseline for sex offender registration and notification. Section 125 of SORNA illuminates this

point. Subsection (a) of that section requires a reduction of Byrne Grant funding to jurisdictions

that fail to “substantially implement this title [i.e., SORNA]” within the applicable time frame.

Subsection (b) of the section recognizes, however, that there may be some instances in which a

jurisdiction cannot substantially implement SORNA “because of a demonstrated inability to

implement certain provisions that would place a jurisdiction in violation of its constitution, as

determined by a ruling of the jurisdiction’s highest court.” In such circumstances, the section

provides that the Attorney General and the jurisdiction are to consult to verify that there is an

actual conflict between the state constitution and SORNA’s requirements and to determine

whether any such conflict can be reconciled. If there proves to be an irreconcilable conflict, then

special provision is made for such situations, as provided in § 125(b)(3): “If the jurisdiction is

unable to substantially implement this title because of a limitation imposed by the jurisdiction’s

constitution, the Attorney General may determine that the jurisdiction is in compliance with this

Act if the jurisdiction has made, or is in the process of implementing reasonable alternative

procedures or accommodations, which are consistent with the purposes of this Act.”

Hence, § 125 distinguishes between two standards for approval of a jurisdiction’s

SORNA implementation efforts: (i) the generally applicable standard of “substantial

implementation,” and (ii) a more permissive standard allowing reasonable alternative procedures

or accommodations that are consistent with SORNA’s purposes. The latter (more permissive)

standard is applicable only to the extent that there is an irreconcilable conflict between

substantial implementation of SORNA’s requirements and what the jurisdiction’s constitution

allows.

The commenters who have urged an open-ended understanding of the “substantial

implementation” standard would collapse the distinction drawn by § 125 between substantial

implementation on the one hand and, on the other, alternative measures that do not substantially

implement SORNA’s requirements but aim to further its purposes in some more general way.

Under § 125, the latter are allowed only if state constitutional restrictions preclude doing

substantially what SORNA requires according to its terms. But under these commenters’ view,

alternative measures could be allowed without any particular limitation, even where a

jurisdiction’s constitution creates no impediment to doing what SORNA’s provisions prescribe.

Given the clear distinction that § 125 draws between substantial implementation of SORNA and

adoption of alternative measures that are consistent with SORNA’s purposes (but do not

substantially implement SORNA), the commenters’ view on this point cannot be reconciled with

SORNA.

This point can be illustrated concretely by considering specific alternatives that some

commenters have proposed. For example, some commenters have urged that “risk-based”

approaches to sex offender registration and notification—i.e., systems in which registration or

notification requirements are premised on individualized risk assessments of offenders—should

be approved as substantially implementing SORNA.

The terminology utilized by the commenters on this point—distinguishing systems that

incorporate SORNA’s requirements from “risk-based” systems—is misleading, in that SORNA

gives weight to various factors that are reasonably related to the risk that sex offenders may pose

to others and the need for protective measures. Not all persons who have committed offenses of

a sexual nature are required to register under SORNA’s standards, but only those convicted for

“sex offenses” as defined in SORNA § 111(5). The definition incorporates a number of

limitations, including general exclusions of offenses involving consensual sexual conduct

between adults, and of offenses involving consensual sexual conduct with minors at least 13

years old where the offender is not more than four years older. Within the universe of sex

offenders who are required to register under the SORNA standards, SORNA does not prescribe

registration and notification requirements indiscriminately. Rather, SORNA varies the required

duration of registration, the frequency of required in-person appearances for verification, and

required public notification through website posting, based on “tier” criteria that take account of

such factors as the nature and seriousness of the offense, the age of the victim, and the extent of

the offender’s recidivism. See SORNA § 111(2)-(4), 115-16, 118(c)(1). SORNA also reduces

the periods for which it requires sex offenders to register in certain circumstances based on

criteria relating to the offender’s subsequent conduct, including avoidance of further offending,

successful completion of supervision, and successful completion of treatment. See SORNA

§ 115(b)(1). Moreover, given that SORNA generally defines a floor rather than a ceiling for

jurisdictions’ registration and notification programs, there is no inconsistency with SORNA if a

jurisdiction carries out risk assessments of offenders that take into account a broader range of

factors, and prescribes registration or notification requirements beyond the SORNA minimum

requirements based on the results of such assessments.

These commenters’ recommendation, however, is that systems should be approved as

substantially implementing SORNA that do not incorporate the SORNA minimum requirements,

but rather prescribe lesser registration or notification requirements (or no requirements) for sex

offenders, unless they are deemed to meet some threshold or level of risk based on risk

assessments that take account of factors beyond those allowed under SORNA’s provisions. The

grounds offered in support of this recommendation are that such systems arguably offer various

benefits in comparison with SORNA’s standards, such as focusing registration and notification

more effectively on the offenders who are likely to pose the greatest risk to the public, and

providing registrants with an incentive to follow the rules and improve their behavior, where

doing so may reduce their risk scores and hence result in a reduction or termination of

registration or notification.

This recommendation cannot be accepted because the systems described by such

commenters do not substantially implement the SORNA requirements, and do not attempt to do

so. Rather, they propose to forego implementation of what SORNA does require in favor of

pursuing different approaches that the commenters view as preferable means of promoting public

safety from sex offenders.

There is one circumstance in which SORNA allows the approval of such alternative

measures to be considered. Suppose that the highest court of a jurisdiction rules that the

jurisdiction’s constitution does not permit certain registration or notification measures required

by SORNA to be taken in relation to a sex offender, unless the offender is found to satisfy some

threshold or level of risk based on a risk assessment that gives weight to factors that SORNA’s

specific provisions do not allow as grounds for waiving or reducing registration or notification

requirements. In the presence of such an irreconcilable conflict with the jurisdiction’s

constitution, the Attorney General would be permitted under SORNA § 125(b)(3) to approve the

jurisdiction’s adoption of reasonable alternative procedures that are consistent with SORNA’s

purposes, but that incorporate reliance on risk assessments and depart from compliance with

SORNA’s specific requirements to the extent necessitated by the conflict. However, the

commenters’ recommendation is that systems going below the SORNA-required minima based

on risk assessments should be allowed as “substantial implementation” of SORNA even where

implementing SORNA according to its terms would not conflict with the jurisdiction’s

constitution. This recommendation cannot be accepted because it is inconsistent with the

distinction that § 125 draws between substantial implementation of SORNA and reasonable

alternative measures that do not substantially implement SORNA but are consistent with

SORNA’s purposes. Understanding “substantial implementation” so broadly would potentially

reduce SORNA’s specific standards to mere advice, and would conflict with the provisions in

§ 125 that specially authorize a more permissive standard only under narrowly defined

circumstances involving constitutional conflicts.

The response is essentially the same to other specific alternatives that some commenters

have urged as “substantially implementing” SORNA, such as not requiring registration by

juveniles adjudicated delinquent for sex offenses under any circumstances, or making registration

or notification for such delinquents a matter of judicial discretion. SORNA § 111(8)

incorporates considered legislative judgments concerning the class of juvenile delinquency

adjudications that are to be treated as “convictions” for purposes of SORNA’s registration and

notification requirements, a point that is discussed in greater detail below in connection with Part

IV.A of the guidelines. The effect of the § 111(8) definition is that the application of SORNA’s

registration and notification requirements to juvenile delinquents is generally limited to those

who are at least 14 years old and who are adjudicated delinquent for the most serious sexually

assaultive crimes. In addition, SORNA § 115(b)(3)(B) allows the registration periods for persons

required to register based on juvenile delinquency adjudications to be reduced in certain

circumstances, based on their subsequent good behavior, where no corresponding reduction is

allowed for offenders required to register based on adult convictions.

These commenters’ proposal is in effect that a jurisdiction should be deemed to have

substantially implemented SORNA with respect to the treatment of juveniles adjudicated

delinquent for sex offenses if it ignores what SORNA provides on this issue, and instead does

something different that the commenters believe to be better policy. As with the earlier example

of “risk assessment” systems, there are circumstances under which SORNA would allow

alternative approaches with respect to juvenile delinquents to be considered. Suppose, for

example, that the highest court of a jurisdiction holds that the jurisdiction’s constitution does not

permit categorical registration or notification requirements for juvenile delinquents—even for the

narrowly defined class of juveniles adjudicated delinquent for the most serious sexually

assaultive crimes, as described in SORNA § 111(8). Rather, the court holds that the

jurisdiction’s constitution requires that such measures be contingent on judicial determinations

that registration or notification is appropriate for particular juveniles. In the presence of such an

irreconcilable conflict with the jurisdiction’s constitution, the Attorney General would be

permitted under SORNA § 125(b)(3) to approve the jurisdiction’s adoption of reasonable

alternative procedures that are consistent with SORNA’s purposes, but that depart from

compliance with SORNA’s requirements regarding juveniles to the extent necessitated by the

conflict. However, the commenters’ proposal is that the same latitude should be afforded as

“substantial implementation” of SORNA even where there is no conflict with the jurisdiction’s

constitution in implementing SORNA’s provisions regarding juveniles according to their terms.

This is not consistent with SORNA for the reasons discussed above.

For the foregoing reasons, no change has been made in the final guidelines as to the basic

understanding of the substantial implementation standard. There is some limited modification in

the final guidelines’ explanation of this standard for greater clarity concerning the points noted in

the discussion above.

III. Covered Jurisdictions

The comments received did not show a need to change the guidelines’ explanation

concerning the “jurisdictions” that are subject to SORNA’s requirements, except with respect to

the treatment of Indian tribes.

Section 127 of SORNA provides the standards that determine whether an Indian tribe is a

registration jurisdiction for purposes of SORNA. Section 127 generally afforded tribes an

election between carrying out the SORNA requirements as jurisdictions subject to its provisions,

or electing to delegate the SORNA registration and notification functions to the states within

which the tribes are located. The period for such elections by tribes under § 127 ended on July

27, 2007. Within that period, close to 200 tribes—the vast majority of those eligible to make an

election under § 127—elected to be SORNA registration jurisdictions. Tribes that have made

this election are not required to duplicate sex offender registration and notification functions that

are carried out by the states in which they are located, and are free to enter into agreements with

such states for the shared or cooperative discharge of these functions, as provided in § 127(b).

The discussion of § 127 in the guidelines has been updated to reflect the expiration of the period

for tribal elections under that provision.

As noted at the start of this summary, there are also substantive changes in the final

guidelines that have been adopted on the basis of comments received from groups or associations

of tribes, individual tribes, or their representatives, relating to the status or treatment of Indian

tribes as SORNA jurisdictions or associated consequences. These include some changes of

broad effect.

The final guidelines provide that tribes may enter into cooperative arrangements among

themselves to effect the substantial implementation of the SORNA requirements. For example, a

group of tribes with adjacent territories may find it helpful to enter into an agreement under

which the participating tribes contribute resources and information to the extent of their

capacities, but the tribal police department (or some other agency) of one of the tribes in the

group has primary responsibility for the direct discharge of the various functions required for

registration of sex offenders subject to the jurisdiction of any of the tribes in the group. Under

such an arrangement, the responsible agency in the selected tribe might generally handle initially

registering sex offenders who enter the jurisdiction of any of the tribes in the group, receiving

information from those sex offenders concerning subsequent changes in residence or other

registration information, and conducting periodic in-person appearances by the registrants to

verify and update the registration information, as SORNA requires. Likewise, with respect to

maintenance of websites providing public access to sex offender information, as required by

SORNA § 118, one option for a tribe—explicitly authorized by SORNA § 127(b)(2)—would be

to adopt a cooperative agreement with a state in which it is located to include information

concerning the sex offenders subject to the tribe’s jurisdiction on the state’s sex offender website.

But an additional option afforded under the final guidelines is for tribes to enter into agreements

or arrangements among themselves for the shared administration or operation of websites

covering the sex offenders of the participating tribes.

Although SORNA does not explicitly authorize intertribal agreements or arrangements

for the cooperative discharge of registration and notification functions, there is no inconsistency

between appropriately designed arrangements of this type and realization of SORNA’s

substantive objectives for sex offender registration and notification. Moreover, such

arrangements may facilitate tribal implementation of SORNA by allowing the pooling of

resources and expertise and avoiding the need for duplication of effort among tribes with similar

registration and notification responsibilities. The implementation of the SORNA requirements

by tribes through such cooperative arrangements with other tribes will accordingly be considered

as satisfying the SORNA substantial implementation standard.

Beyond concerns about facilitating cooperative intertribal efforts, which are addressed in

the final guidelines as discussed above, a common theme in the comments received from tribes

or tribal organizations was concern about the treatment of tribes that are not registration

jurisdictions for SORNA purposes. Some commenters urged that tribes subject to state law

enforcement jurisdiction under 18 U.S.C. 1162 be treated more like tribes that are allowed to be

SORNA registration jurisdictions under SORNA § 127 and have made elections to that effect.

SORNA § 127(a)(2)(A) provides that the SORNA registration and notification functions for

tribes within the scope of 18 U.S.C. 1162 are automatically delegated to the state. As this is a

statutory matter, the guidelines cannot change it.

However, the final guidelines have been modified to make it clear that § 1162 tribes are

not excluded from carrying out sex offender registration and notification functions, either as an

exercise of their sovereign powers to the extent that there is no conflict with the state’s discharge

of its responsibilities under SORNA, or pursuant to a decision by the state that sex offender

registration functions can be most effectively carried out by tribal authorities with respect to sex

offenders subject to the tribe’s jurisdiction. Moreover, states have the same responsibility to

carry out the SORNA registration and notification functions in relation to sex offenders in § 1162

tribal areas as they do in relation to sex offenders in other areas in the state. The SMART Office

will take seriously the need to ensure that all states within the scope of § 1162 discharge these

responsibilities. The same points apply in relation to the relatively small number of tribes that

were eligible to make an election to be a SORNA registration jurisdiction under the terms of

SORNA § 127(a)(1)(A) but have not made such an election.

Some commenters expressed more specific concerns about ensuring that tribes that are

not SORNA registration jurisdictions receive notice concerning the entry or presence of sex

offenders in their territories. In this connection, the notification requirements of SORNA § 121

apply in relation to all entities within a state as described in that section. This will serve to make

information concerning the location and relocation of sex offenders available to agencies,

organizations, and individuals in tribes that are not SORNA registration jurisdictions, as with

others agencies and organizations within the state. Specific requirements and means of access to

such information under § 121(b) are discussed in Part VII.B of the guidelines.

A number of tribal commenters expressed concerns about SORNA § 127(a)(2)(C), which

provides for delegation of the SORNA registration and notification functions to the state or states

within which a tribe is located if “the Attorney General determines that the tribe has not

substantially implemented the requirements of this subtitle and is not likely to become capable of

doing so within a reasonable amount of time.” This provision for involuntary delegation to a

state or states in the specified circumstances was included in SORNA to foreclose any possibility

of uncloseable gaps in the nationwide network of sex offender registration and notification

programs. The Department of Justice hopes and expects, however, that the occurrence of such an

involuntary delegation will never be necessary, given the strong interest of the tribes in effective

registration and notification for sex offenders subject to their jurisdictions, and the priority that

the SMART Office gives to working with all tribes and other jurisdictions to facilitate the

implementation of SORNA’s requirements in relation to tribal areas. Moreover, substantial time

remains for tribal implementation efforts. Tribal jurisdictions, like other jurisdictions, enjoy the

three-year grace period provided by SORNA § 124 for SORNA implementation (commencing on

July 27, 2006), and the possibility of an extension of time for up to an additional two years under

that provision. In addition, § 127(a)(2)(C) does not require an involuntary delegation if a tribe

fails to implement SORNA within the normally allowed time under § 124, unless the Attorney

General makes a further determination that the tribe is not likely to become capable of

substantially implementing SORNA within a reasonable amount of time.

IV. Covered Sex Offenses and Sex Offenders

A. Convictions Generally

Tribal Convictions

The proposed guidelines stated that jurisdictions could choose not to require registration

based on Indian tribal sex offense convictions, where the defendant had not been afforded a right

to counsel to which he would have been entitled in comparable state proceedings. Many

comments received from tribal organizations and individual tribes objected to this provision.

They argued that tribal convictions should be respected, and noted that many procedural

protections for defendants are provided in tribal proceedings as a matter of federal law and in

practice, including the right to counsel (though defined differently from the corresponding right

in state proceedings). See 25 U.S.C. 1302.

These comments are persuasive. SORNA’s registration and notification requirements are

premised on a person’s conviction for a sex offense. See, e.g., SORNA §§ 111(1), 113(a). With

respect to covered “sex offense[s],” SORNA provides no basis for differentiating between tribal

offenses and offenses under the laws of other domestic jurisdictions. Rather, it states expressly

that “sex offense” includes “criminal offense[s]” of specified types, and that “criminal offense”

in the relevant sense means “a State, local, tribal, foreign, or military offense . . . or other

criminal offense.” SORNA § 111(5)(A)(i)-(ii), 111(6) (emphasis added).

Likewise, with respect to “conviction[s],” SORNA does not differentiate between tribal

convictions and convictions by other U.S. jurisdictions. SORNA does incorporate a special

proviso with respect to foreign convictions, stating in § 111(5)(B) that “[a] foreign conviction is

not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for

fundamental fairness and due process for the accused under guidelines or regulations established

under section 112.” If it had similarly been contemplated that the Attorney General’s guidelines

would adopt further conditions for the effectiveness of Indian tribal convictions under SORNA,

one would have expected SORNA to include some proviso comparable to § 111(5)(B) for tribal

convictions. But SORNA contains no such proviso.

The final guidelines accordingly do not differentiate between tribal convictions and

convictions by other United States jurisdictions as predicates for sex offender registration and

notification.

Nominal Variations on “Conviction”

The proposed guidelines stated that SORNA’s requirements are not waived by nominal or

terminological variations in the designations that jurisdictions use in referring to the dispositions

of criminal cases. For example, SORNA’s requirements remain applicable if a jurisdiction has a

procedure under which certain sex offense convictions (e.g., those of young adult sex offenders

who satisfy certain criteria) are referred to as something other than “convictions,” or are

nominally “vacated” or “set aside,” but the sex offender remains subject to penal consequences

based on the conviction. Some commenters objected to this aspect of the proposed guidelines,

arguing that jurisdictions should be free to make SORNA’s requirements inapplicable by such

means.

The issue raised by these comments is whether individual jurisdictions have a free hand

to stipulate that the dispositions of criminal cases do not constitute “convictions” for purposes of

SORNA. If that were the case, a jurisdiction could make the SORNA registration and

notification requirements inapplicable to its sex offenders merely by varying its

terminology—referring to certain classes of criminal convictions for sex offenses by some term

other than “conviction”—and there would then be no national baseline of covered sex offenders

and registration/notification requirements applicable thereto.

Such an approach would be inconsistent with SORNA’s purpose to establish “a

comprehensive national system for the registration of [sex] offenders.” SORNA § 102.

SORNA’s requirements apply to anyone who “was convicted of a sex offense.” See SORNA

§§ 111(1) (defining “sex offender”), 113 (applying SORNA’s registration requirements to “sex

offender[s]”). While the statutory definitions of sex offenses falling within SORNA’s

registration categories, see SORNA § 111(5)-(8), will vary from jurisdiction to jurisdiction, the

meaning of “convicted” for purposes of SORNA is a matter of federal law, and its applicability is

not determined by the terminology a jurisdiction uses in referring to the disposition of a criminal

case. Notably, in light of SORNA § 111(8), even certain juvenile delinquents are deemed to be

“convicted” and hence required to register under SORNA’s standards, if the juvenile is at least

14 years old and the offense for which the juvenile was adjudicated delinquent is sufficiently

serious. But under these commenters’ proposal, jurisdictions could avoid requiring registration

for an adult offender convicted of such a crime merely by using some other term in referring to

the conviction (e.g., “youthful offender disposition”).

SORNA does not afford such latitude to waive its requirements in this manner and no

change has been made in the final guidelines on this point.

Juvenile Adjudications

A number of commenters criticized the proposed guidelines’ explanation of SORNA

§ 111(8), which provides that certain juvenile delinquency adjudications are to be treated as

convictions for registration purposes under SORNA. Many of these commenters argued that

registration or public notification concerning juveniles adjudicated delinquent for sex offenses

would be inappropriate or counterproductive, on such grounds as the following: that juveniles are

less likely to reoffend, less culpable, and more amenable to treatment than adult offenders; that

registration of juveniles will deter reporting of their crimes by their families and will promote

avoidance of adjudicatory dispositions of their cases that reflect the actual offense conduct; that

juveniles subject to registration or notification will be adversely affected with respect to

education, employment, treatment, socialization, and personal security; and that premising

registration or notification on juvenile delinquency adjudications is at odds with the

characteristics and objectives of juvenile justice systems, including their requirements of

confidentiality and orientation towards treatment and rehabilitation. The commenters advanced

various recommendations for addressing these concerns, including not registering juveniles at all,

making registration or notification for juveniles a matter of judicial discretion, or limiting

registration or notification for juveniles to cases involving particularly violent or serious sex

offenses.

The more far reaching proposals for changes concerning the treatment of juveniles cannot

be accepted because they would require a nullification of the judgment in SORNA that a

narrowly defined class of juvenile delinquency adjudications are to be treated on a par with adult

convictions for registration and notification purposes. Predecessor bills to SORNA took

divergent approaches to this issue. Some excluded juvenile delinquents entirely from their

registration and notification requirements, while others provided that juvenile delinquency

adjudications would be treated the same as adult convictions across the board. Compare S. 1086,

§§ 102(1), 110, 109th Cong., 2d Sess. (2006) (exclusion of juvenile delinquency adjudications in

Senate-passed bill), with H.R. 3132, § 111(3), 109th Cong., 1st Sess. (2005) (juvenile

delinquency adjudications treated the same as adult convictions in House-passed bill).

The resolution of this issue in SORNA as enacted is an intermediate approach that does

not generally require that juveniles be treated the same as adults, but does affirmatively treat

certain juvenile delinquency adjudications as “convictions,” and the juveniles subject to such

adjudications as “sex offenders” subject to the SORNA registration and notification

requirements, under the following criteria: (i) the juvenile must have been at least 14 years old at

the time of the offense, (ii) the offense adjudicated was comparable to or more severe than

aggravated sexual abuse (as described in 18 U.S.C. 2241) or an attempt or conspiracy to commit

such an offense, and (iii) the registration period to which the juvenile is subject may be reduced

from life to 25 years if certain “clean record” conditions are satisfied. See SORNA §§ 111(1),

(8), 115(b)(3)(B). This is the legislative decision that the guidelines must “interpret and

implement.” SORNA § 112(b). There is no authority to abrogate it or to approve some basically

different system for registering (or not registering) juveniles adjudicated delinquent for sex

offenses.

As noted above, a more moderate recommendation advanced by some of the commenters

was that registration or notification for juveniles be limited to cases involving particularly violent

or serious sex offenses. This is more in line with what SORNA actually does provide, limiting

the predicate offenses for registration based on juvenile delinquency adjudications to those

“comparable to” aggravated sexual abuse as described in 18 U.S.C. 2241 (or an attempt or

conspiracy to commit such an offense).

It was noted in the comments, however, that under the interpretation of this standard in

the proposed guidelines, it could potentially reach some cases not involving sex offenses of the

most serious nature, such as a case involving a juvenile delinquency adjudication of a 14-year-old

for engaging in consensual sexual play with an 11-year-old. A number of commenters

questioned the suitability of such juvenile adjudications as the basis for lengthy or lifetime

registration and public notification, and indicated that an inflexible application of the SORNA

juvenile coverage requirement to reach such cases could constitute a substantial impediment to

jurisdictions’ implementation of SORNA.

These comments have provided grounds for further thought concerning the measures that

will be considered substantial implementation of SORNA in relation to juveniles adjudicated

delinquent for sex offenses. The federal offense of aggravated sexual abuse, 18 U.S.C. 2241,

which provides the touchstone for juvenile coverage under SORNA § 111(8), encompasses a

range of serious sexually assaultive conduct that would correspond roughly to the common

understanding of the notion of “rape.” Specifically, it proscribes engaging in a sexual act with

another by means of force or the threat of serious violence, or by rendering unconscious or

involuntarily drugging the victim. These aspects of the offense apply regardless of the age of the

perpetrator or victim.

However, there are certain features of 18 U.S.C. 2241 that provide a broader compass in

cases involving victims who fall below specified age thresholds. Specifically, sexual acts with

victims below the age of 12 are covered, even in cases involving no overt violence or coercion.

See 18 U.S.C. 2241(c). In addition, under the associated definition of covered “sexual act[s],”

the relevant acts are for the most part those involving penetration, but direct genital

touching—which would otherwise support only liability for lesser “sexual contact” offenses—is

treated as a covered “sexual act” if the victim is below the age of 16. See 18 U.S.C. 2246(2)(D).

In relation to the aspects of 18 U.S.C. 2241 that depend specially on the age of the victim,

there is no difficulty in applying them without qualification as a basis for sex offender

registration and notification in cases involving adult offenders. For example, a 30-year-old who

engages in sexual activity with an 11-year-old plausibly falls within a class of persons who may

constitute a danger to children, and the protective functions served by SORNA’s registration and

notification requirements are implicated, regardless of finer issues concerning the victim’s

acquiescence or resistance or the exact nature of the sexual activity.

In comparison, SORNA’s public safety objectives may not be similarly implicated by

juvenile cases like those pointed to by the commenters, such as a case involving a 14-year-old

adjudicated delinquent based on consensual sexual play with an 11-year-old. Cases of this type

fall within the definitional scope of 18 U.S.C. 2241 only because of special features of that

provision that create liability for nonviolent or lesser sexual offenses based on the victim’s age.

But in such a case, the delinquent may himself be a child who is not far removed in age from the

victim, and the offense may be one that would not entail comparable registration and notification

requirements for an adult offender, if committed by the adult offender against a victim who was

near in age to himself.

Based on this reconsideration of the juvenile coverage issue, the final guidelines reflect a

judgment that the objectives of SORNA § 111(8) will not be substantially undermined if

jurisdictions are afforded discretion concerning registration and notification for juveniles

adjudicated delinquent on the basis of offenses that are within the definitional scope of 18 U.S.C.

2241 only because of the age of the victim. In positive terms, jurisdictions will be considered to

have substantially implemented SORNA in this context if they apply SORNA’s registration and

notification requirements to juveniles at least 14 years old who are adjudicated delinquent for

committing offenses amounting to rape or its equivalent (or an attempt or conspiracy to commit

such an offense), as specified in the final guidelines.

B. Foreign Convictions

Some commenters expressed the concern that the requirement under SORNA to register

sex offenders based on foreign convictions would create unmanageable burdens on jurisdictions

to assess the fairness of foreign judicial proceedings. However, the guidelines have been

formulated so as to minimize any such burden. In part, they require registration categorically

based on sex offense convictions under the laws of four specified foreign countries—Canada,

United Kingdom, Australia, and New Zealand—and based on convictions in countries whose

judicial systems have been favorably assessed in the Country Reports on Human Rights Practices

that are prepared by the U.S. Department of State. Jurisdictions are not required to exempt any

sex offense convictions in other foreign countries from registration requirements, but if they wish

to do so, they may exempt convictions that they consider unreliable indicia of factual guilt,

utilizing whatever process or procedure they choose to adopt in making such determinations.

The treatment of foreign convictions has accordingly not been changed in the final guidelines,

except for limited editing to emphasize the extent of jurisdictions’ discretion in approaching this

issue, and correcting a reference to “Great Britain” in the proposed guidelines to refer instead to

“United Kingdom.”

C.-E. Sex Offenses Generally; Specified Offenses Against Minors; Protected

Witnesses

The proposed guidelines’ general explanation of SORNA’s offense coverage

requirements and exceptions or qualifications relating to protected witnesses have not been

substantially changed in the final guidelines. Critical comments relating to this aspect of the

guidelines largely reflected misapprehensions that SORNA requires registration based on

offenses that are not in the SORNA registration categories—e.g., consensual sexual offenses

involving minors or youth of like age—or proposed changes that SORNA does not allow, such as

waiving registration based on offenses in the covered categories unless the offender is found to

meet some threshold of likely dangerousness under a “risk assessment” system.

V. Classes of Sex Offenders

The proposed guidelines’ general explanation of SORNA’s “tiers,” and their implications

for registration and notification requirements, have not been substantially changed in the final

guidelines. The critical comments received on this aspect of the guidelines largely amounted to

arguments that other means of classifying sex offenders would be better policy, such as reliance

on risk assessments that take account of a broader range of factors than those authorized in the

SORNA tier definitions. As described and advocated in these comments, such alternative

systems would involve less consistency and predictability in sex offender registration and

notification requirements, and would make available less information (or no information)

concerning many sex offenders to the authorities or the public. The comments do not establish

that these systems represent a sounder balancing of interests than the standards enacted in

SORNA. In any event, the adoption of such alternative classification systems cannot be regarded

as substantial implementation of SORNA insofar as they entail registration and notification

requirements that fall below the SORNA minimum requirements—see the discussion above in

connection with Part II.E of the guidelines—and hence cannot be authorized by the guidelines.

Some comments received from Indian tribes or tribal organizations objected to the

uniform treatment of tribal sex offense convictions as supporting only “tier I” classification for

SORNA purposes. They noted that this results from the federal law limitation of tribal court

jurisdiction to misdemeanor penalties, though the underlying sex offense may be serious and

would result in felony penalties if prosecuted in a state jurisdiction or the federal jurisdiction.

This feature of the guidelines cannot be changed because it is statutory. SORNA § 111(2)-(4)

classifies sex offenders as tier II or tier III only on the basis of offenses punishable by

imprisonment for more than one year. However, as with other features of SORNA, the

requirements associated with the tier I classification constitute only minimum standards. Tribal

jurisdictions and other jurisdictions are free to prescribe more extensive registration and

notification requirements for sex offenders convicted of tribal offenses, taking into account the

substantive nature of the offenses or other factors, notwithstanding the misdemeanor status of the

offenses in terms of the maximum permitted penalty. The final guidelines make this point more

explicitly.

Responding to other comments received, changes have also been made in Part V to: (i)

clarify further that the elements of the offense of conviction may be relied on in making tier

classifications, except with respect to victim age; (ii) clarify the operation of tier enhancements

based on recidivism, where the earlier conviction supporting a higher tier classification occurred

prior to the enactment of SORNA or its implementation in a particular jurisdiction; and (iii)

emphasize that the tier classification criteria do not constitute independent requirements to

VI. Required Registration Information

Registration Information Requirements Added by the Guidelines

Some commenters objected globally to the guidelines’ requirement that the sex offender

registries obtain certain types of information that are not expressly required by SORNA §114,

such as e-mail addresses and comparable Internet identifiers, telephone numbers, temporary

lodging information, travel document information, professional license information, and date of

birth information. The guidelines have not been changed on this point. Many of these comments

projected that sex offenders would be exposed to harassment or other adverse consequences

because of the public disclosure of such information, reflecting an incorrect assumption that

SORNA or the guidelines would require that all such information be posted on the public sex

offender websites. The actual website posting requirements under the guidelines are more

limited, and the final guidelines have been revised to make this point with greater clarity, as

discussed in connection with Part VII of the guidelines below. All of the additional items are

within the scope of the Attorney General’s express statutory authority to require additional

registration information. See SORNA § 114(a)(7), (b)(8). All are justified as means of

furthering SORNA’s public safety objectives, as the guidelines explain in their discussion of the

additional required information.

Tribal Concerns

Many of the comments received from Indian tribes or tribal organizations objected to a

specification in the proposed guidelines that the names and aliases that sex offenders are required

to register include “traditional names given by family or clan pursuant to ethnic or tribal

tradition.” The purpose of this provision was to ensure that the registration information would

include the names by which sex offenders are commonly known in their communities. It was not

intended to require registration or disclosure of secret names of religious or ceremonial

significance, and such names are not needed to further the purposes of sex offender registration

and notification. The final guidelines have accordingly modified the description of this

requirement so as to limit it to ethnic or tribal names by which the sex offender is commonly

known.

Some of the tribal commenters also expressed concern about the requirements relating to

DNA information from sex offenders, describing situations in which tribal communities had been

misled about the uses that would be made of DNA samples they provided. However, SORNA’s

requirement on this point, as the guidelines explain, is only that jurisdictions ensure that DNA

samples are collected from sex offenders for purposes of analysis and inclusion in the Combined

DNA Index System (CODIS). The normal rules and procedures for DNA information in CODIS

are tailored to its use for law enforcement identification purposes, such as matching a

perpetrator’s DNA collected from crime scene evidence to DNA taken from an offender. These

rules and procedures are adequately designed to ensure that the analysis of collected DNA

samples and entry of the resulting DNA profiles into CODIS cannot be used for the improper

purposes that concern the commenters, such as ascertaining the incidence of genetic traits or

disorders in communities or population groups from which the DNA samples are derived.

Requests for Clarification

Some commenters requested additional guidance or clarification regarding particular

types of required registration information, such as the information concerning travel and

immigration documents, and the statutory requirement to include information concerning

addresses at which the sex offender “will” be an employee. The final guidelines provide further

explanation or clarification on these points.

VII. Disclosure and Sharing of Information

Some of the comments reflected misapprehensions that the guidelines would require

public disclosure of a broader range of sex offender information than is actually the case. The

guidelines identify a limited number of informational items concerning sex offenders that must

be included on the public sex offender websites, essentially covering name information, address

or location information, vehicle information, physical description, sex offenses for which

convicted, and a current photograph. Other types of registration information are within the scope

of either mandatory or discretionary exemptions from required public disclosure. The relevant

discussion in the final guidelines has been revised for greater clarity on this point.

Some commenters objected specifically to the required public disclosure of the addresses

of employers of registered sex offenders, arguing that this information should be exempted from

website posting, either on a discretionary or mandatory basis. SORNA itself requires that the

registration information for sex offenders include employer name and address, but provides a

discretionary exemption from public website posting for employer name only (not employer

address). Compare SORNA § 114(a)(4), with SORNA § 118(c)(2). The SORNA provisions on

this point reflect an accommodation of competing interests. On the one hand, requiring website

posting of employer name could tar an employer based on the association with the sex offender

and deter employers from hiring sex offenders. On the other hand, disclosing no employment-

related information or only limited employment-related information could leave the public

unaware concerning sex offenders’ presence in places where they actually spend much of their

time (e.g., 40 hours a week for a sex offender with a full-time job). SORNA accommodates

these interests by requiring that the public websites include employer address information, but

leaving it in the discretion of jurisdictions whether they will include employer name information

as well. The comments received provide no adequate basis for the guidelines to second-guess

this legislative judgment concerning the proper accommodation of these interests, even assuming

that there would be legal authority to do so.

VIII. Where Registration Is Required

The portion of the guidelines relating to the jurisdictions in which registration is required

has been edited to a limited extent for clarity on some points but has not been substantially

changed. Some commenters misunderstood SORNA and the guidelines as requiring continued

registration with the original jurisdiction of conviction even if the sex offender has no present

residence, employment, or school attendance relationship with that jurisdiction. Some took

“jurisdiction” as including political subdivisions of states, and consequently believed that

SORNA prescribes requirements as to the particular locations within states in which sex

offenders must be required to register—e.g., in which particular county or counties. SORNA

itself and the proposed guidelines do not provide any support for these misconceptions, and

additional language has been included in the final guidelines to guard against continued

misunderstandings of this type.

IX. Initial Registration

The discussion in this Part has been expanded in the final guidelines to explain the

statutory requirement in section 117(a) of SORNA that initial registration of incarcerated sex

offenders is to be carried out “shortly before release.”

Some commenters expressed concern about initial registration in relation to sex offenders

whose predicate sex offense convictions predate the enactment of SORNA or its implementation

in a particular jurisdiction. The guidelines require registration of such sex offenders in

conformity with SORNA if they remain in the system as prisoners, supervisees, or registrants, or

if they later reenter the system because of a subsequent criminal conviction. The commenters’

concerns focused heavily on the fourth category—sex offenders who were fully out of the system

at the time of SORNA implementation, but later reenter it based on conviction for some other

crime. Concerns were expressed that registration of offenders in this category would require

jurisdictions to examine the criminal histories of all new criminal convicts indefinitely to

ascertain whether they have a sex offense conviction somewhere in the past that would require

registration under the SORNA standards. A particular concern was that in cases in which the sex

offense conviction occurred long ago, information about it might not be disclosed through an

ordinary criminal history check, potentially necessitating extraordinary records search efforts to

determine whether the offender must register. Concerns also were expressed about the adequacy

of ordinary criminal history information to determine the extent of registration requirements

under SORNA, including whether the sex offender’s registration period has expired or still has

time left to run. For example, whether the victim of a sexual contact offense was an adult or a

minor may make the difference between the offender’s classification as tier I or tier II under the

SORNA standards, with consequent differences in the required registration period (15 years for

tier I versus 25 years for tier II). But the criminal history information available in a case in which

the sex offense conviction predated a jurisdiction’s implementation of SORNA might show

simply conviction of a sexual contact offense with no indication as to victim age.

The final guidelines address the foregoing concerns by clarifying that jurisdictions may

rely on their normal methods and standards for obtaining and reviewing criminal history

information, and on the information available in the records obtained by such means, in

ascertaining SORNA registration requirements for sex offenders in the “retroactive” classes.

Some of the comments received from Indian tribes or tribal organizations proposed that

the Federal Bureau of Prisons should be responsible for initial registration of federal sex

offenders who will be released to tribal areas. However, there is a more limited statutory release

procedure for federal sex offenders under 18 U.S.C. 4042(c), which requires the Federal Bureau

of Prisons or federal probation offices to notify sex offenders of their registration requirements

under SORNA around the time of their release or sentencing. That provision further requires the

Bureau of Prisons and the federal probation offices to notify state and local law enforcement and

registration agencies in the destination jurisdictions, which include tribal jurisdictions for sex

offenders released to tribal areas. The failure of such a sex offender to appear in the destination

jurisdiction and register as required would be reportable to federal authorities as provided in Part

XIII of the guidelines, and would generally result in investigation of the matter by federal

supervision or law enforcement authorities. In the normal situation in which the released federal

sex offender does appear in the destination jurisdiction as required, that jurisdiction would

X. Keeping the Registration Current

Some commenters expressed concern about requiring sex offenders to report changes of

certain types of registration information through in-person appearances. For example, SORNA

§113(c) requires that changes of employment be reported through in-person appearances within

three business days. Consider the effect, for example, in relation to a sex offender who obtains

work—e.g., construction work or other manual labor—by showing up each morning at a site that

contractors visit to recruit day labor. If the sex offender’s employer varied day to day, the

requirement to report changes in employment through in-person appearances might effectively

require the sex offender to make an in-person appearance to report his recent employment history

every few days, with attendant burdens on the jurisdiction and the offender.

In relation to required registration information, the proposed guidelines recognized that

sex offenders may reside somewhere without having definite residence addresses, and similarly

that sex offenders may be employed without fixed or settled employment. For such cases, Part

VI of the guidelines affords necessary flexibility by providing that jurisdictions are to obtain

information concerning such transient residence or employment with whatever definiteness is

possible under the circumstances. The final guidelines incorporate comparable provisions in Part

X so as to afford jurisdictions flexibility in dealing with the reporting of changes in residence or

employment by sex offenders whose residence or employment is transient in character.

Comments were also received concerning a potential gap in the reporting requirements

for sex offenders who terminate residence, employment, or school attendance in a jurisdiction but

do not have any definite expectation about residing, working, or attending school elsewhere. For

example, consider the case of a transient sex offender who is moving out of a state in which he

has been living, but cannot say in which state or other jurisdiction he will reside next. The

proposed guidelines did not address the reporting requirements in such situations with adequate

clarity. The final guidelines provide that the requirement for sex offenders to keep the

registration current includes requiring them to report consistently the termination of residence,

employment, or school attendance to the appropriate jurisdiction in which they have been

registered, regardless of whether any new place of residence, employment, or school attendance

can be identified.

Responding to comments and questions received, a final paragraph also has been added to

Part X in the final guidelines to clarify further that the SORNA requirement that registrants

report changes in registration information through in-person appearances pertains only to changes

in name and to changes in residence, employment, or school attendance between or within

jurisdictions. The manner in which sex offenders are to report other changes in registration

information is a matter within jurisdictions’ discretion.

XI. Verification/Appearance Requirements

The discussion of SORNA’s requirement of periodic in-person appearances by registrants

to verify and update registration information has not been substantially modified in the final

guidelines because it did not draw extensive comments, and no comments received provided any

persuasive reasons to change the discussion of this requirement. However, responding to

comments about situations in which a registrant dies, a paragraph has been added to Part XI in

the final guidelines to provide advice to jurisdictions about the updating of registration

information and public website postings in such situations.

XII. Duration of Registration

As discussed in earlier portions of the summary, the explanation concerning the required

duration of registration is revised in the final guidelines. The changes clarify further (i) the

discretionary nature of tolling during subsequent periods in which the sex offender is in custody,

and (ii) the discretion of jurisdictions to adopt registration periods that are longer than the

required SORNA minimum.

XIII. Enforcement of Registration Requirements

The discussion of enforcement of registration requirements in the proposed guidelines has

not been modified in the final guidelines because it did not draw extensive comment and the

comments received did not provide any persuasive reasons to change this part.

Appendix B. Title Reference to SORNA sections.

§102. Declaration of purpose

§111. Relevant definitions, including Amie Zyla expansion of sex offender definition and

expanded inclusion of child predators.

§112. Registry requirements for jurisdictions.

§113. Registry requirements for sex offenders.

§114. Information required in registration.

§115. Duration of registration requirement.

§116. Periodic in person verification.

§117. Duty to notify sex offenders of registration requirements and to register.

§118. Public access to sex offender information through the internet.

§119. National Sex Offender Registry.

§120. Dru Sjodin National Sex Offender Public Website.

§121. Megan Nicole Kanka and Alexandra Nicole Zapp Community Notification Program

§122. Actions to be taken when sex offender fails to comply.

§123. Development and availability of registry management and website software.

§124. Period for implementation by jurisdictions.

§125. Failure of jurisdiction to comply.

§126. Sex Offender Management Assistance (SOMA) Program.

§127. Election by Indian tribes.

§128. Registration of sex offenders entering the United States.

§129. Repeal of predecessor sex offender program.

§141. Amendments to title 18, United States Code, relating to sex offender requirements.

§142. Federal assistance with respect to violations of registration requirements.

§144. Federal assistance in identification and location of sex offenders relocated as a result of a

major disaster.

§146. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and

Tracking.

Appendix C. Title Reference to Federal Statutes

18 U.S.C. 1162. State jurisdiction over offenses committed by or against Indians in the

Indian Country.

18 U.S.C. 1591. Sex trafficking of children or by force, fraud or coercion.

18 U.S.C. 2241. Aggravated sexual abuse.

18 U.S.C. 2242. Sexual abuse.

18 U.S.C. 2244. Abusive sexual contact.

18 U.S.C. 2246. Definitions for chapter; (sexual abuse chapter).

18 U.S.C. 2250. Failure to register.

18 U.S.C. 2422(b). Coercion and enticement.

18 U.S.C. 2423(a). Transportation of minors with intent to engage in criminal sexual

activity.

18 U.S.C. 3521. Witness relocation and protection.

18 U.S.C. 3563(a)(8). Conditions of probation; for a person required to register under the Sex

Offender Registration and Notification Act.

18 U.S.C. 3583(d). Conditions of supervised release.

18 U.S.C. 4042(c). Duties of Bureau of Prisons; notice of sex offender release.

42 U.S.C. 3750. Name of program; Edward Byrne Memorial Justice Assistance Grant

Program.

42 U.S.C. 5119(a). Reporting child abuse crime information

INDEX

Absconded Offenders………….......................................................................………………59

Attempts and Conspiracies............................................................................…16, 18-20, 22-24

Automation.............................................................................................................................8-9

Byrne Grant Reduction.....................................................................................................…9-10

Change of Registration Information.........................................................................…50-53, 56

Clean Record Reduction……………......….......................................................…………57-58

CODIS…..................................................................................................................................33

Compliance Deadlines..........................................................................................................9-10

Constitutional Conflict with SORNA Requirements...............................................................11

Conviction…..................................................................................................................…15-17

Cooperative Agreements................................................................................................…13-14

Criminal History……………........................................................................……32, 39, 40, 47

Date of Birth…….......................................................................................………………31-32

Day Laborer……...........................................................................................................…30, 51

Determination of Tiers……………........................................................…………………21-25

Digitized…….............................................................…..…………......…………26, 29, 32, 33

DNA Sample…................................................................................…......………………26, 33

Driver’s License…...........................................................................................………………33

Duration of Registration…………...................................................…......……………8, 56-58

Electronic Databases...............................................................................................…8-9, 26, 32

Email Notification System…….........................................................……......………………41

Employee……………..................................................................…………......…………29-30

Employment Information......................................................................................……29-30, 36

Extension Requests.....................................................................................................…9-10, 47

Federal Convictions…………………..........................................…………......…18, 23, 47-48

Fingerprints………...........................................................................………......…………32-33

Foreign Convictions………...............................................…………………......……16-17, 48

Frequency of Registration….....................................................................…......…………….54

Habitually Lives………………………................................................………28-29, 36, 42-43

Immediately……………………….......................……....................……8-9, 38, 44, 48-52, 56

Implementation Deadline......................................................................................................9-10

Imprisonment…....................................................................…......……….......………………6

Incarceration in Non-Conviction Jurisdiction..........................................................................48

Indian Tribes...................................................................................................................…12-15

Information Sharing...........................................................................................................51, 56

In-person Appearances Upon Change of Information, When Required.............................50-52

In-person Appearances, Periodic……………………................................................……54-56

International Travel………………....................................................................…………53-54

Internet Identifiers…………………...................................................……......….………27, 31

Jurisdiction………..................................................………………………......….………11-12

Juvenile Adjudications…...........................................………………………......……16, 25, 57

Law Enforcement and Supervision Agencies………....................................................…12, 39

Military Convictions…………………………...........................………………......…18, 47-48

Minor, Specified Offenses Against …..........................................................................17, 18-21

Minor……………………....................................................………………….….......………18

Name……………………….............................................……………………...……......27, 36

National Child Protection Act Agencies……...................……………………………......… 40

National Sex Offender Registry…………..............................................…......…….…5, 39, 60

Palm Prints…………………....................................................................…......…………32-33

Passports and Immigration Documents.........................................................................…29, 35

Phone Numbers……………………...........................................………......…27-28, 37-38, 52

Photograph………………....................................................................……......…32, 36, 54-55

Physical Description……........................................................................…….....….……32, 36

Professional Licensing….....................................................................................……………30

Protected Witnesses.................................................................................................................21

Recidivism………………….........................................................................……......………25

Residence Address…...........................................................................……………......…28, 36

Resides………...............................................................................................………......……42

Retroactive Application………........................................................………………......…45-47

School Information.............................................................................................…30-31, 36, 41

Sealed Records.....................................................................................................................…15

Sex Offender Registry Public Websites: Generally…………………....................………33-34

Sex Offender Registry Public Websites: Information that may not be displayed…...........34-35

Sex Offender Registry Public Websites: Required Information…………………..…......36, 38

Sex Offender Registry Public Websites: Search Capacity…………………........….......……34

Sex Offender Treatment Programs……………………..................................................……58

Sexual Act………………............................................................…………........……16, 17, 24

Sexual Contact………………............................................………………….......17, 22, 23, 24

Sex Offenses.......................................................................................................................17-21

Attempts and Conspiracies..........................................................................................18

Child Pornography Offenses........................................................................................20

Criminal Sexual Conduct Involving a Minor...............................................................20

Conduct By Its Nature a Sex Offense Against a Minor...............................................21

False Imprisonment................................................................................................18-19

Federal Offenses..........................................................................................................18

Foreign Offenses..........................................................................................................15

Internet-Facilitated Crimes Against a Minor...............................................................20

Kidnapping.............................................................................................................18-19

Local Offenses.............................................................................................................15

Military Offenses.........................................................................................................18

Sexual Act and Sexual Contact Offenses....................................................................17

Solicitation of a Minor to Engage in Sexual Conduct.................................................19

Solicitation of a Minor to Practice Prostitution...........................................................19

State Offenses..............................................................................................................15

Territorial Offenses......................................................................................................15

Tribal Offenses.............................................................................................................15

Use of Minor in a Sexual Performance........................................................................19

Video Voyeurism Involving a Minor...........................................................................20

Social Security Number….....................................................………..……………......…28, 35

Software Resources................................................................................................…......8-9, 38

SOMA Grants.....................................................................................................................….11

Student……………………..............................................................................……......…30-31

Substantial Implementation Standard…..........................................................……......….10-11

Temporary Lodging Information…………....................................…………......……29, 52-53

Text of Registration Offense………..........................................……………......……………32

Transient Employment……..........................................................................................….30, 43

Tiers, Generally..................................................................................................................21-22

Tiers, Recidivist Offenders......................................................................................................24

Tier I Offender Exception..................................................................................................35, 37

Tier I Offenses……………………..............................................................…......………22-23

Tier II Offenses…………………….........................................................……......………23-24

Tier III Offenses…………………...........................................................…….......………24-25

Tolling of Registration Time……...................................................….……….......…………57

Tribal Convictions…………………..................................................……………......15, 22-23

Vehicle Information….......................................................………………..........……31, 36, 52

Victim Age...................................................................................................................23, 25, 47