Final SORNA Guidelines Published

Thanks to the many people who have sent me the link to the published SORNA Guidelines. These Guidelines pertain to the registration requirements of the AWA. I'm reading through the Guidelines now and will post my thoughts here later. In the meantime, you can read the Guidelines here.

TalkLeft is covering the release of the Guidelines here.

Update: After reading through the Guidelines, a few things stuck out to me. These throughts aren't anywhere near a comprehensive summary of the Guidelines.

First, I found the completely gratuitous language justifying federal involvement interesting:

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.

Since I think the SORNA provisions face serious Commerce Clause problems, I focused on this statement. Although it probably has limited legal import, I think this gap-filling argument might make appearances in future government briefs. I don't think it describes what the AWA actually does, but I think a court might find it persuasive.

Second, the Guidelines play a bit of politics aimed at states, like Illinois, that have refused to implement the AWA because of its harsh requirements for listing juvenile sex crimes:

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.

Third, the Guidelines provide elaboration for what online information a sex offender must include in the registry:

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.

The section could have been clearer, but I take the language to mean that all instant messaging, social networking, and email names must be included in the registry. I'm sure at some point in the near future there will be an offender who gets a long sentence for failure to include an email address.

Overall, I don't there were a lot of surprises in the Guidelines (or maybe I'm too jaded to some of the problems of the SORNA provisions). If anything else sticks out to you, feel free to comment.

Comments

[David Hess]

I am struck by the fact that (at least to my eyes) there are no discernible differences from the proposed guidelines they issued last year. They seem to have pretty much ignored the submitted comments. I wonder why it took them so long? Considering the SMART office's lackadaisical pace, it is hard to imagine that many states actually will implement AWA by the July, 2009 deadline.

[George]

Would the Waybright court find the gratuitous language persuasive? The Federal justification still does not overcome the Commerce Clause problems stemming from the requirement to register to begin with if the registrant never leaves his/her state. Further, the same public safety goals could be accomplished without a public registry. A police database could still satisfy law enforcement goals and a semi-private database open to those with a need to know, who could show ID and access the database with good reason, like someone hiring a babysitter or a mother thinking of dating, , as used to be done in California and how they do it in England after rejecting our method.

The justifications fail or are weak.

[George]

The “tier" system is what make SORNA vulnerable. In oral arguments the SCOTUS made a big deal out of the fact that the state only posted public information and was not judging the dangerousness of the subjects, which is why no hearing and due process was required. The “tier" system however does make a tacit judgment of dangerousness. This cannot hide that fact:

"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 inperson
appearances for verification, and extent of website disclosure that SORNA requires for
that tier." (p 22).

Everyone knows that a tier III is more dangerous, more of a risk, than a tier I and all a defense attorney has to do is poll or research public opinion online. Even if the state does not display a tier level, those who are a tier I, and therefore less dangerous, will be obvious. By the process of elimination, both tier II and tier III, because of the information posted, are more dangerous, and therefore a hearing to determine dangerousness is required.

[George]

It appears that the guidelines intentionally trump federalism:

"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."

Would the Waybright court accept that?

[Corey Yung]

I don't think that the Waybright court would change its mind based upon the Guidelines. Then again, I think the Waybright's court reasoning is likely to remain an outlier opinion. I do think the language and rationales of the Guidelines could find their way into a different court's opinion. And if the AWA eventually makes its way to the USSC, I think the rationale will be one of the things before them.

[Ilah]

As always, I find the register-your-vacation requirements disturbing. Others may see it as minor, but the intrusions are larger than they appear, and enforcement would require greater intrusions onto everyday freedoms of all citizens.

Also disturbing are the encouragements to add phone numbers and email addresses to the publicly available information. Do note that the SMART office concerns about making that information public is limited to the possibility registrants will "network."

[David Hess]

I agree with you on the vacation provision. This just means that RSOs and their families will take a lot of 6 day vacations or change motels before the 7 day limit. Many will just not observe this provision and just take their chances on not getting caught.

[disillusion1998]

Reading just a small part of these guidelines makes me extremely angry and makes me want to gravely harm the United States and the majority of its idiotic citizens. Is it illegal to feel that way? Perhaps not for regular citizens, but is it illegal for a registered sex offender to feel that way? Is it illegal to tell people I feel that way? And finally, is it illegal to say that I intend to act on my feelings? Just some basic questions I have.

The state in which I live, Georgia, is a criminal regime. I guess the whole country is heading that way. I'll tell you a basic truth - applying these laws to me has not increased "public safety" or "protected children" by even the slightest, tiniest degree. I don't live within 1,000 feet of schools, day cares, parks, etc., etc., etc., etc., etc., etc., etc. Big deal. That never mattered and never will. But, these laws have caused me to act on a frequent basis with no concern for Georgia and that will never end. I was never a danger to the public in a way that these laws would ever help control but I would be lying if I said I wasn't now. Oh well, it's not because of anything that would be a "sex offense" so I doubt anyone cares. After all, we don't even worry about registering murderers and other similar upstanding citizens.

[jjoe]

No. 45 in the FAQ document. How can the provision by legal if not enacted by state statute? Does this mean any AWA violation is automatically a federal crime?
http://www.ojp.usdoj.gov/smart/pdfs/faq_sorna_guidelines.pdf

"45. Do Jurisdictions have to make statutory changes in order to substantially implement SORNA?

No. While SORNA sets minimum standards for jurisdictions’ registration and notification programs, it does not require that these 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."

[Bobby Boothe]

To many innoncent men and women are being convicted on sex crimes. How can anyone get a fair trail in this country that is all you see on tv. Example a preacher was accused by grandauhter in kentucky. He was a preacher. He spent 15 months in kentucky prison after a jury trail was convicted on hearsay. Granddaughter went to authorities and told the that she had lied he did not sexual abuse her 15 years old. He was released where is the justice in this case. If she had not told the truth he would have been there for years. No innoncent person should spend one day in prison. Where is the justic in this case.