EFTA01137140.pdf

U.S. Department of Justice Office of Justice Programs Office ofSex Offender Sentencing Monitoring, Apprehending, Registering, and Tracking (SMART) 0 Sex Offender Registration and Notification in the United States: Current Case Law and Issues July 2012 EFTA01137140  Sex Offender Registration and Notification in the United States I. Overview of US Sex Offender Registration' Sex offender registration and notification systems have been established within the United States in a variety of ways. There are a number of resources which are referred to, loosely, as "sex offender registries." For the purposes of clarification, we start this summary with an outline of those systems. A. Registration is a Local Activity In the United States, sex offender registration is conducted at the local level and the federal government does not have a system for registering sex offenders. Generally speaking, sex offenders in the United States2 are required to register with law enforcement of any state, locality, territory, or tribe within which they reside, work, and attend school. Each State has its own distinct sex offender registration and notification system. The District of Columbia and the five principal U.S. territories each have their own systems, as well, and an increasing number of federally-recognized Indian Tribes have their own sex offender registration and notification systems as well.; Every one of these systems has its own nuances and distinct features. Every jurisdiction (meaning each State, Territory, or Tribe) makes its own determinations about who will be required to register, what information those offenders must provide, which offenders will be posted on the jurisdiction's public registry website, and so forth. Even though sex offender registration is not directly administered by the federal government, the federal government is involved in sex offender registration and notification in a number of meaningful ways. B. Federal Minimum Standards Over the last two decades Congress has enacted various measures setting "minimum standards" for jurisdictions to implement in their sex offender registration or notification systems. The first of these was passed in 1994 and is commonly referred to as the "Wetterling Act." This Act established a set of minimum standards for registration systems for the States.4 Two years later, in 1996, "Megan's Law" was passed as a set of minimum standards for community notification! The most recent set of standards can be found in the Sex Offender Registration and Notification Act (SORNA), which was passed in 2006.6 SORNA currently governs the federal minimum standards for sex offender registration and notification systems. If a State, Tribe, or Territory chooses to refrain from substantially implementing SORNA's standards, the jurisdiction risks losing 10 percent of its Edward R. Byrne Justice Assistance Grant (Byrne JAG) funds! To date, 15 States, 2 Territories, and 27 federally-recognized Indian Tribes have substantially implemented SORNA.8 It is important to note that there are still variations in the registration and notification laws Page 1 of 16 EFTA01137141  Sex Offender Registration and Notification in the United States among jurisdictions that have substantially implemented SORNA. Practitioners are advised to become familiar with the specific registration and notification systems in any and all jurisdictions within which they will be working. C. National Sex Offender Public Website The National Sex Offender Public Website (NSOPW), located at www.nsopw.gov, was administratively created by the U.S. Department of Justice in 2005 and is administered by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART), NSOPW works much like a search engine: jurisdictions that have their own public sex offender registry websites connect to NSOPW by way of a web service or automated upload to enable NSOPW to conduct queries against the jurisdictions' websites. Only information that is publicly disclosed on a jurisdiction's own public sex offender registry website will be displayed in NSOPW's search results, and only the jurisdiction's registry website page will be displayed on the results page of NSOPW. The Department of Justice does not administer any of the registration information that is searched whenever a query is made through NSOPW, and only ensures that the information that is available on jurisdictional websites can be queried through NS0PW.10 The National Sex Offender Public Website www.nsopw.gov a a irfJ;ici sir 'SCI .a DRII SIODIN NATIONAI SIX OFFINDFII PURI IC WEBSITE Home Seacco Aboa tiSOPW lAO, Pufaic NeetacV S. Welcome to the Dru SJodin National Sex Offender Public Website (NSOPW) OODONS The Cxv Stodn tlatcnal Sex Oten:of Diablo Wobsdo tliSCPW: coordthatir.: the V $ Department cDfultKe ni a COOperatr4 efGrt t*hsasn unlidcbCen Search Ice Sex CelenSers ... . 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Registering agencies and other units of state and local law enforcement submit the information necessary to populate these databases: I I 1. National Sex Offender Registry: The National Sex Offender Registry (NSOR) is a law-enforcement only database that is a file of the National Crime Information Center (NCIC) database managed by the Federal Bureau of Investigation Criminal Justice Information Services (CJIS) division. It was created in the late 1990s to store data on every registered sex offender in the United States, and to provide law enforcement access to that data nationwide.12 2. IAFIS: The Integrated Automated Fingerprint Identification System (IAFIS) is a national fingerprint database housed with the FBI. IAFIS records are linked to the offender's corresponding NSOR record at CJIS; approximately 95% of the records in NSOR have a corresponding fingerprint in IAFIS.13 3. NPPS: The National Palm Print System (NPPS) is a new database for palm prints housed with the FBI. 4. CODIS: The Combined DNA Index System (CODIS) is the national DNA database administered by the FBI. SORNA requires that jurisdictions submit registration information about their registered sex offenders to NSOR, and to ensure that offenders' fingerprints have been submitted to IAFIS, palm prints to NPPS, and DNA to CODIS.14 E. Federal Corrections Part of the federal government's involvement with sex offenders who are required to register concerns the handling of those offenders as they are housed and subsequently discharged from federal correctional institutions. 18 U.S.C. §4042(c) requires that the Federal Bureau of Prisons (BOP) or Federal Probation Officer provide notice to the chief law enforcement officer and registration officials of any state, tribe, or local jurisdiction whenever a federal prisoner required to register under SORNA is released from custody. Is As of early 2012, BOP does not register sex offenders prior to their release from incarceration, as registration is primarily a state function. The Bureau of Indian Affairs (BIA) operates a number of Detention Centers.16 However, there are no statutory or administrative requirements for these centers to provide notice to local law enforcement when a sex offender is released from custody. In Page 3 of 16 EFTA01137143  Sex Offender Registration and Notification in the United States practice, offenders in BIA facilities generally are not registered prior to their release from incarceration. F. Federal Law Enforcement and Investigations SORNA designated the United States Marshals Service (USMS) as the lead agency in investigations of suspected violations of the federal law regarding failure to register as a sex offender, which is found at 18 U.S.C. §2250. In order to further their investigative capacity, the USMS has established the National Sex Offender Targeting Center (NSOTC). G. Military Registration As previously mentioned, the federal government does not register sex offenders. However, certain components of the Department of Defense have started to adopt policies and procedures to register and monitor sex offenders who are either active duty members, civilian employees, contractors or dependents of active duty members located on U.S. military installations at home and abroad. I7 These polices do not yet connect any military registration system to the greater network of databases and websites described above. If a person resides, works, or attends school on a military base, depending on the source and manner of the land held by the federal government and housing that base, a state might have no jurisdiction at all over matters occurring on the military base. In other words, the base may be a "federal enclave" where only federal law applies.18 However, offenders convicted by military tribunals of registerable sex offenses are required under SORNA to register with any jurisdiction where they live, work or go to school. H. Summary This hybrid framework of state, territorial, tribal, local, and federal laws and policies is the context in which the case law regarding sex offender registration and notification has developed. The summary which follows intentionally avoids a discussion of the legal issues and case law surrounding prosecutions under 18 U.S.C. §2250, the federal failure to register statute. That topic is worthy of its own guide, and is largely beyond the intended scope of this handbook. IL Who is Required to Register? Nearly all registration requirements in the United States are triggered by a conviction for a criminal offense.19 Most jurisdictions limit their registration and notification systems to persons convicted of sex offenses and non-parental kidnapping of a minor. The inclusion of kidnapping offenses is a legacy of the federal standards discussed above; they have remained required included offenses since the passage of the first federal legislation regarding sex offender registration in 1994. Inclusion of kidnapping offenses Page 4 of 16 EFTA01137144  Sex Offender Registration and Notification in the United States in a jurisdiction's sex offender registry has been largely upheld by the courts.20 Some states also include other violent or dangerous offenders in their registration and notification system.2I When jurisdictions specifically outline the offenses that require registration, there is little question as to who is required to register. Most jurisdictions, however, also include "catch-all" provisions which, in varying forms, generally require any person convicted of an offense which is by its nature a sex offense to register as well. A more difficult situation arises when a convicted sex offender moves from one jurisdiction to another, and the new jurisdiction has to make a determination as to whether the person is required to register there. When a person has an out-of-state conviction, most jurisdictions require registration for any offense which is `comparable,' `similar,' or `substantially similar' to a listed jurisdiction offense.22 However, when a state's registration system treats persons convicted of in-state offenses differently from those convicted out-of-state, equal protection problems may exist.23 Making the determination as to whether an offense fits under one of these "catch-all" or "comparable" provisions has led to a great deal of litigation.24 Some jurisdictions look at just the elements of the offense of conviction, while others will also look at the facts underlying the conviction.25 Often, courts take an expansive view of which offenses will trigger registration requirements; at other times, the approach can be quite narrow.? Further complications may arise when an offender lives on tribal land but was convicted of a state or federal offense. For example, in New Mexico, the State cannot impose a duty to register on enrolled tribal members living on tribal land who have been convicted of federal sex offenses.27 At the same time, in neighboring Arizona, persons living in Indian Country are required to keep their registration current with both the state and the tribe.? Federal courts have interpreted SORNA as directly imposing a duty on a person to 29 attempt to register if they meet the definition of "sex offender" under SORNA. SORNA's standards call for jurisdictions to register all persons who have been convicted of a tribal, territory, military, federal, or state sex offense.3° In addition, certain foreign sex offense convictions will also trigger a registration requirement under SORNA.31 Generally speaking, however, a jurisdiction will not register an offender unless that jurisdiction's lairs require that the offender be registered.3 III. Registration of Juvenile Offenders State juvenile justice systems within the United States have handled juvenile sex offender registration in different ways. For example, in the years prior to SORNA, many jurisdictions chose to require certain juveniles adjudicated delinquent of sex offenses to register as sex offenders, while others did not. SORNA's minimum standards, however, do require registration for certain juvenile offenders adjudicated delinquent of serious sex offenses.33 Page 5 of 16 EFTA01137145  Sex Offender Registration and Notification in the United States Despite SORNA's requirement that juveniles adjudicated delinquent of certain offenses register for SORNA, as with all sex offender registration requirements, the implementation of this provision varies across jurisdictions. Some jurisdictions do not register any juveniles at all; some limit the ages of the offenders who might be registered; some limit the offenses for which they might be registered; and others limit the duration, frequency, or public availability of registration information.34 Some jurisdictions have mandatory registration provisions for certain juveniles, some are discretionary, and some have a hybrid approach.35 As with adult registration requirements, registration requirements for juveniles are generally triggered by the equivalent of a conviction of a sex offense in juvenile court, which is typically referred to as an "adjudication of delinquency." Most jurisdictions mandate registration for juveniles transferred and convicted for sex offenses in adult court. Because of the varying nature of juvenile justice systems across jurisdictions, problems often arise when a juvenile is adjudicated delinquent in one jurisdiction and then moves to another.36 Many of those issues mimic the issues discussed above regarding adult offenders. Nevertheless, there are some issues unique to juvenile court cases. When a jurisdiction requires that juveniles be subject to registration requirements more onerous than those imposed on adults convicted of the same offense, equal protection issues exist.37 In one state, the automatic lifetime registration requirement as applied to adjudicated juveniles was held to violate due process and the prohibition against cruel and unusual punishment.38 When a juvenile court judge refuses to order a juvenile to register, as required by statute, a writ of mandamus may be successfully pursued by the State.39 In 2010 the U.S. Supreme Court granted certiorari in the case of U.S. v. Juvenile Male, a case where the Ninth Circuit had held that the juvenile registration provisions of SORNA were unconstitutional when applied retroactively.40 In its decision, however, the Supreme Court did not in any way address the question of the constitutionality of the retroactive application of SORNA's requirement that certain adjudicated juveniles register as sex offenders.41 IV. Retroactive Application & Ex Post Facto Considerations One of the first issues to be litigated as sex offender registration systems were established across the country was whether or not an offender who had been convicted prior to the passage of the laws requiring registration could be required to register.42 Numerous challenges to the retroactive application of registration laws were heard throughout the 1990s and 2000s. In 2003, the United States Supreme Court seemingly settled the issue in the case of Smith v. Doe, a challenge from a sex offender in the State of Alaska who argued that the imposition of registration requirements on him violated the ex post facto clause of the Page 6 of 16 EFTA01137146  Sex Offender Registration and Notification in the United States Constitution.43 The Court held that registration and notification—under the specific facts of that case—were not punitive, and could, therefore, be retroactively imposed as regulatory actions.44 While the issue was settled for a time, litigation has since ensued based on the increased stringency of sex offender registration and notification requirements in some jurisdictions since the Doe decision.'" There have been four State Supreme Courts in recent years that have held that the retroactive application of their sex offender registration and notification laws violate their respective State Constitutions.46 On the other hand, many state courts have stood by the reasoning of the Doe case in continuing to affirm the retroactive application of their own registration laws.47 For example, in one case, a federal court enjoined the enactment of a state's SORNA- implementing legislation based on ex post facto concerns brought forward by the ACLU,48 although that injunction has since been lifted.49 On the other hand, some offenders have been able to be removed from the registry when the statute is changed in a way which inures to their benefit,S° and another court has held that increasing the penalties for a failure to register does not violate the ex post facto clause.51 In addition, one state requires a due process hearing before any offender is ordered to comply with its full registration requirements, including those convicted prior to the registration statute's effective date.52 V. Other Constitutional Issues As previously mentioned, nearly all persons required to register as sex offenders must do so because they have been convicted of a criminal offense. Accordingly, by the time a person is actually required to register, a number of constitutional protections have already been afforded—namely, those which inure to a defendant throughout the course of a criminal trial and sentencing. Even after those initial protections, however, offenders often raise constitutional concerns that lead to litigation. In prosecutions for state-level failure to register cases or civil challenges to registration requirements, offenders have launched unsuccessful challenges based on the following arguments: double jeopardy,53 procedural due 54 55 process, substantive due process, equal protection,5 ineffective assistance of counse1,57 the Sixth Amendment right to a trial by jury,58 cruel and unusual punishment,59 full faith & credit,6° the supremacy clause,6 and separation of powers.62 Recently, however, in Bond v. U.S.,63 the Supreme Court has granted standing to sex offenders to challenge SORNA on 10th Amendment grounds, where previously they had no standing to do so.64 Although the vast majority of constitutional challenges to sex offender registration and notification requirements have been unsuccessful, there have been some notable Page 7 of 16 EFTA01137147  Sex Offender Registration and Notification in the United States decisions based on constitutional grounds. Examples include opinions issued by state or federal courts which have held that SORNA preempts state law to the extent that any state constitutional concerns are not implicated;65 the collection of intemet identifiers violates the First Amendment;66 being ordered to register as a sex offender triggers the protections of procedural due process;67 publishing information about an offender's "primary and secondary targets" violates due process;68 being ordered to register as a parole condition violates due process when the underlying convictions are not sexual in nature;69 requiring registration for a conviction for solicitation, and not1rostitution, when each offense had the same elements, violates due process;' an affirmative misrepresentation that an offender would not have to register as a sex offender is ineffective assistance of counsel; 71 incorrect advice to an offender regarding whether he would be required to register as a sex offender is ineffective assistance of counsel;72 a "three-strikes" sentence based on a failure to register offense is cruel and unusual punishment;73 mandatory life imprisonment for a second conviction of failure to register is cruel and unusual punishment; 14 and requiring an offender to continue to register when he had been convicted of having consensual sex with his 14-year old girlfriend (he was 18 at the time) and had his case successfully dismissed under a deferred disposition is cruel and unusual punishment.75 There are a number of cases recently decided by the U.S. Supreme Court which will have a bearing on future litigation in the field of sex offender registration and notification. For example, the case of Apprendi v. New Jersey has spawned a number of challenges to registration requirements; namely, contending that a jury should be required to determine whether an offender should be subject to the additional "punishment" of sex offender registration.76 This test as to whether sex offender registration constitutes "punishment" is the same as that used to determine whether something is "punitive" for purposes of an ex post facto analysis as discussed above. To date, most challenges under Apprendi have been unsuccessful.77 Mother Supreme Court case which will impact sex offender registration litigation is Padilla v. Kentucky,78 which held that counsel's failure to correctly advise a client that a conviction would count as a deportable offense under the Immigration and Naturalization Act was deficient assistance under the Sixth Amendment? Since the decision in Padilla, a number of cases have addressed the issue of whether counsel's failure to advise their client that a conviction would result in sex offender registration also runs afoul of the Sixth Amendment.80 VI. Community Notification Every State, Tribe and Territory that registers sex offenders also makes publicly available certain information about at least some of their sex offenders. While this community notification was originally handled via public meetings, fliers, and newspaper announcements, notification has now expanded to include publicly available and searchable websites, which are linked together via NSOPW. At least one Canadian province also makes information publicly available via a website,81 and other countries also have community notification procedures.82 Page 8 of 16 EFTA01137148  Sex Offender Registration and Notification in the United States VII. Failure to Register For an offender to have any motivation for compliance with the sex offender registration process, there must be an enforcement component. Nearly all jurisdictions which require sex offender registration also have a criminal penalty for failure to register. Many jurisdictions hold that a failure to register is a "continuing offense," much like larceny or escape, such that a person cannot be prosecuted for multiple failures to register within a given time frame.83 Many jurisdictions require a mens rea of some sort to be proven prior to permitting a person to be convicted of failure to register,84 while others hold that it is a strict liability offense.85 All jurisdictions require that some kind of notice be given to a sex offender prior to being held criminally liable for a failure to register. That notice can be "imperfect" and still be sufficient.86 In other cases, the notice can be constructive, and still valid.87 Generally speaking, the proper venue for a failure to register case is the jurisdiction in which the person has failed to comply with his registration requirements. In addition, tribal court convictions for a sex offense can form the basis of a failure to register conviction.88 However, one state has held that there is no need to prove where an offender was during the time that he failed to register.89 The federal failure to register statute, 18 U.S.C. §2250, can also be utilized in cases where there has been interstate travel. VIII. Residency Restrictions One of the most debated collateral consequences of a conviction for a sex offense occurs when a jurisdiction chooses to impose residency restrictions on registered sex offenders, that is, restrictions that prohibit registered sex offenders from residing within a certain perimeter of schools, day care centers, parks, and other locations frequented by children. These residency restrictions are generally passed and enforced on a local or municipal level, although, in some circumstances, a state, tribe, or territory might pass such provisions.9° SORNA's minimum standards do not address or require residency restrictions in any way. In some cases, municipal residency restrictions have been invalidated because they were deemed to have been preempted by state law.91 In another case, the residency restriction was deemed to be punitive and therefore not retroactively applicable.92 More frequently, however, these provisions have been upheld.93 IX. Miscellaneous One collateral consequence of a lifetime sex offender registration requirement is that a person is no longer permitted, pursuant to federal law, to be admitted to any "federally assisted housing." However, once a person has been admitted to a program such as Page 9 of 16 EFTA01137149  Sex Offender Registration and Notification in the United States Section 8,95 they cannot be thereafter terminated because of a new, or newly-discovered, lifetime sex offender registration requirement.96 A person may be prosecuted for perjury if they have lied on an application for Section 8 housing about the status of a lifetime registered sex offender living in the residence." Homeless or transient sex offenders have generated a great deal of litigation as states have tried to enforce registration requirements. Many states are rewriting their laws in such a way that these offenders are clearly required to register.98 In most cases, an offender's homelessness has not prevented a successful prosecution for failure to register, although sometimes statutory or evidentiary problems have prevented successful prosecution.99 In one case, the Court found that when an offender repeatedly uses a "mail drop" address as his legal address, he "resides" at that location for the purposes of a prosecution for failure to register as a sex offender.10° Convictions for a failure to register have spawned deportation proceedings in some cases. However, a conviction for a state failure to register offense has been found not to be a crime involving "moral turpitude" under the immigration code and, therefore, a person is not removable because of that conviction.101 X. Conclusion The statutes, regulations and laws addressing sex offender registration and notification in the United States are varied and complex. While this handbook seeks to provide updated and accurate information, practitioners are advised to conduct their own research to confirm that they are utilizing the most current information available. For any questions about SORNA itself or for more information about any of the SMART Office projects described in this resource, please feel free to contact us at getsmart@usdoj.gov or visit our website at www.smart.gov. The Department of Justice makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the contents of this update, and expressly disclaims liability for errors and omissions in the contents of this update. The information appearing in this update is for general informational purposes only and is not intended to provide legal advice to any individual or entity. We urge you to consult with your own legal advisor before taking any action based on information appearing in this update. 2 Except for military offenders, addressed in section 1(6). 3 Federally-recognized Indian Tribes located in "PL-280" states will typically have their registration functions handled by the state within which their lands are located. 42 U.S.C. §16927(a)(2)(A), citing Public L. No. 83-280, c. 505, 67 Stat. 588 (1953), codified at 18 U.S.C. §1162 (2006). 4 The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Public L. No. 103.322, *170101, 108 Stat. 2038 (1994). This was an incentive-based system, where States would be penalized (via loss of Federal grant funds) for a failure to implement its terms. The five principal U.S. territories (American Samoa, Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands) were included under Wetterling's requirements by way of Final Guidelines issued in April of 1996. Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 61 Fed. Reg. 15110 (April 4, 1996). Page 10 of 16 EFTA01137150  Sex Offender Registration and Notification in the United States In the same way that the Wetterling Act's provisions were incentive-based (see supra text accompanying note 4), so were the provisions of Megan's Law. 6 42 U.S.C. § 16901 (2006). et seq. All United States Code references are current as of May 2012. Two sets of guidelines have been issued to assist in the implementation of SORNA. The National Guidelines for Sex Offender Registration and Notification 73 Fed. Reg. 38030 (July 2, 2008) [hereinafter Final Guidelines], Supplemental Guidelines for Sex Offender Registration and Notification 76 Fed. Reg. 1630 (Jan. 11, 2011) [hereinafter Supplemental Guidelines]. 7 For any State or Territory, the penalty is contained in 42 U.S.C. § 16925: For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this title shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3750 et seq.). If the 10 percent penalty is assessed, the jurisdiction can apply for reallocation of those funds to use for purposes of implementing SORNA. For Tribes that elected to function as registration jurisdictions, the penalty contained in 42 U.S.C. § 16925 may apply, if the tribe qualifies for that funding, which is determined by formula. However, there is a separate and significant penalty for noncompliance by tribes contained in 42 U.S.C. § 16927: For federally-recognized Indian Tribes that the Attorney General determines have "not substantially implemented the requirements of this subtitle and is not likely to become capable of doing so within a reasonable amount of time," the statute creates automatic delegation of SORNA functions: . .. to another jurisdiction or jurisdictions within which the territory of the tribe is located [and requires the tribe] to provide access to its territory and such other cooperation and assistance as may be needed to enable such other jurisdiction or jurisdictions to carry out and enforce the requirements of [SORNA]. The meaning of "provide access" and other issues regarding delegation of registration and notification responsibilities under SORNA for federally-recognized Indian Tribes is discussed in documents #12 and #13 of the SMART Office's "Topics in SORNA Implementation" series. Current as of July 5, 2012. For the current list of implemented jurisdictions, please visit httplAvww.smart.govinewsroomjurisdictions sorna.htm. The precursor ofNSOPW was NSOPR, the National Sex Offender Public Registry, which was the official name of the website from the time of its administrative creation in 2005 until the passage of SORNA in 2006. Press Release, Dep't of Justice, Office of Justice Programs, Department of Justice Activates National Sex Offender Public Registry Website (July 20, 2005), available at httplAvww.amberalert.govinewsroom/pressreleases/ojp 05 0720.htm. By July of 2006, all fifty states were linked to the Website. Press Release, Dep't of Justice, Office of Justice Programs, All 50 States Linked to Department of Justice National Sex Offender Public Registry Web Site (July 3, 2006), available at http://wvrw.justice.govIoparpr/2006/July/06 ag 414.html. 10 The SMART Office does administer TTSORS (the Tribe and Territory Sex Offender Registry System), which is a system developed particularly for federally-recognized Indian Tribes and U.S. Territories which had not previously operated a sex offender registration system or website. All of the information in TTSORS is supplied and administered by the jurisdictions. The SMART Office, through its contractor, administers the network capacity and connectivity of TTSORS to NSOPW. For example, a local police department might submit an offender's fingerprints to the FBI at the time of arrest. 12 See The Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Public L. No. 104.236, 110 Stat. 3093. 13 Conversation with Kimberly Lough, FBI CJIS Division, NCIC Operations and Policy Unit, 2010. Page 11 of 16 EFTA01137151  Sex Offender Registration and Notification in the United States In many cases, an offender will have had their fingerprints, palm prints or DNA submitted prior to the registration process, as part of their arrest, sentencing, incarceration, or at some other point in the processing of their case. Registration agencies are not required to submit duplicate entries to federal databases where a fingerprint, palm print, or DNA record already exists. Final Guidelines, supra note 6, at 38057. 15 18 U.S.C. 64042(c). The Bureau of Prisons is a Department of Justice subdivision and part of the Executive Branch. Federal Probation Officers are governed by the Administrative Office of the United States Courts, a Judicial Branch Office. 16 BIA is part of the Department of the Interior, in the Executive Branch. See generally Bureau of Indian Affairs' Detention Facilities Office of the Inspector General Report N WR-EV-BIA-0005-2010 ("BIA reported that as of September 2009, the detention program consisted of 94 detention facilities: 23 bureau-operated facilities, 52 tribally-operated facilities under Public Law (P.L.) 93.638 contracts, and 19 tribally.operated facilities under self-governance compact agreements"). 17 See Army Regulation 190-45, §2-7 (2007). IR "Federal Enclave" is a legal term of art which refers to property that is either in whole or in part under the law enforcement jurisdiction of the United States Government. See generally the "Enclave Clause," U.S. CONST. Art. I, §8, cl. 17 ("[The Congress shall have Power...] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings"); see also 40 U.S.C. §3112 (2006) (concerning federal jurisdiction). A similar issue arises regarding offenders located within National Parks or other federally-held land that holds the status of "federal enclave." 19 In some jurisdictions, registration is required when a person has been civilly committed, received a withheld adjudication, found Not Guilty by Reason of Insanity or incompetent to stand trial, or when ordered to register by a probation officer. See Mayo v. People, 181 P.3d 1207 (Colo. Ct. App. 2008) (civil commitment triggered requirement to register); Price v. State, 43 So.3d 854 (Fla. Dist. Ct. App. 5th Dist. 2010) (withheld adjudication); State v. Olsson, 958 N.E.2d 356 (111. App. 2011) (defendant found incompetent to stand trial was required to register); In re Kasckarow, 2011 N.Y. Misc. LEXIS 5074 (Oct. 25, 2011) (nolo contendere plea and withheld adjudication in Florida registerable in New York); but see United States v. Moore, 449 Fed. Appx. 667 (9th Cir. 2011) (probation condition under SORNA requiring registration for a tier I offender more than 15 years after the conviction was invalid). In addition, some jurisdictions require registration even if an offender has been pardoned of the underlying offense, In re Edwards, 720 S.E.2d 462 (S.C. 2011), citing S.C. Code § 23.3-430(F), and in some jurisdictions an offender can remain on the public registry website even if that offender no longer has any meaningful ties to the jurisdiction, Doe v. O'Donnell, 924 N.Y.S.2d 684 (N.Y. App. Div. 3d Dep't 2011). See Rainer v. State, 690 S.E.2d 827 (Ga. 2010) (non-parental false imprisonment is registerable); Moffitt v. Commonwealth, 360 S.W.3d 247 (Ky. Ct. App. 2012) (citing the legislative history of the Wetterling Act to support registration for kidnapping); People v. Knox, 903 N.E.2d 1149 (N.Y. 2009) (non- parental kidnapping and unlawful imprisonment is registerable); State v. Smith, 780 N.W.2d 90 (Wisc. 2010) (non-parental false imprisonment is registerable). 21 For example, Montana's Violent Offender registry (http://svcalt.mt.gov/svor/search.asp) is displayed together with its sex offender registry information. Cf Mont. Code §46-23-502(13) (definition of "violent offense"). 22 See Doe v. Board, 925 N.E.2d 533 (Mass. 2010) (Maine conviction for unlawful sexual contact registerable in Massachusetts); Skaggs v. Neb. State Patrol, 804 N.W.2d 611 (Neb. 2011) (California conviction registerable in Nebraska); Lozada v. South Carolina Law Enforcement Division, 719 S.E.2d 258 (S.C. 2011) (Pennsylvania conviction for unlawful restraint registerable as kidnapping in South Carolina); In re Shaquille O'Neal B., 684 S.E.2d 549 (S.C. 2009) (North Carolina juvenile adjudication for `indecent liberties between children' registerable in South Carolina); but see People v. Brooks, 2012 Colo. App. LEXIS 456 (March 29, 2012) (Texas conviction not registerable in Colorado); Sharma v. State, 670 S.E.2d 494 (Ga. App. 2008) (Texas conviction not registerable in Georgia); State v. Frederick, 251 P.3d 48 (Kan. 2011) (Minnesota adjudication for criminal sexual conduct not registerable in Kansas because it is not a "conviction" under Kansas law); State v. Hall, 252 P.3d 770, cert. granted, 2011 N.M. LEXIS 363 (N.M. Page 12 of 16 EFTA01137152  Sex Offender Registration and Notification in the United States 2011) (California conviction for "annoying or molesting children" not registerable in New Mexico); Ex parte Harbin, 297 S.W.3d 283 (Tex. Crim. App. 2009) (California conviction for "annoying or molesting a child" not registerable in Texas); State v. Howe, 212 P.3d 565 (Wash. 2009) (California conviction for "lewd acts upon a child" not registerable in Washington); State v. Werneth, 197 P.3d 1195 (Wash. App. 2008) (Georgia conviction for Child Molestation not registerable in Washington State). 23 See Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95 (3d Cir. 2008) (Pennsylvania's disparate treatment of in-state and out-of-state offenders violated the Equal Protection Clause of the 14th Amendment). 24 See United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (I8 USC §1470 registerable under SORNA, even though it is not listed); United States v. Byun, 539 F.3d 982 (9th Cir. 2008) (conviction for alien smuggling which had underlying facts of sex trafficking properly triggered registration); United States v. Hahn, 551 F. 3d 977 (10th Cir. 2008) (probation conditions properly required registration in a fraud case when there was a prior state conviction for a sex offense); United States v. Jensen, 278 Fed. Appx. 548 (6th Cir. 2008) (Conspiracy to Commit Sexual Abuse is a registerable offense); but see United States v. Jimenez, 275 Fed. Appx. 433 (5th Cir. 2008) (where only evidence of sexual misconduct was three unsubstantiated police reports, registration requirement was inappropriate); State v. Coman, 273 P.3d 301 (Kan. 2012) (bestiality is not a registerable offense); State v. Haynes, 760 N.W.2d 283 (Mich. App. 2008) (bestiality not registerable). s See, e.g., Doe v. Sex Offender Registry Bd., 925 N.E.2d 533 (Mass. 2010) (may not consider facts underlying the conviction). 26 See, e.g., State v. Duran, 967 A.2d 184 (Md. 2009) (highlighting the narrow approach, the Court determined that Indecent Exposure was not registerable because the lewdness element of the crime incorporated conduct that was not sexual in addition to that which could be sexual). 27 State v. Atcitty, 215 P.3d 90 (N.M. 2009). 28 United States v. Begay, 622 F.3d 1187 (9th Cir. 2010). 29 42 U.S.C. *16911(1). The bulk of these cases have been appeals of convictions under 18 U.S.C. §2250 and interpret the "initial registration" requirement contained in 42 U.S.C. §16913. See Carr v. United States, 130 S. Ct. 2229 (2010). "Sex Offense" is defined in 42 U.S.C. §16911(5RA). For guidance on which persons convicted of UCMJ offenses are required to register, see United States v. Jones, 383 Fed. Appx. 885 (11th Cir. 2010), citing Department of Defense Instruction 1325.7 (available at httplAvww.militarylawyers.com/uploads/DoD Updated Sexual Offense Reporting_Requirements.pdf). 31 42 U.S.C. §16911(5XB). In other words, there will be situations where SORNA imposes a registration requirement directly on an offender, but the jurisdiction where that offender lives, works or attends school refuses to register him, because the jurisdiction's laws do not require registration for the offense of conviction. 33 SORNA's minimum standards require that jurisdictions register juveniles who were at least 14 years old at the time of the offense and who have been adjudicated delinquent for committing (or attempting or conspiring to commit) a sexual act with another by force, by the threat of serious violence, or by rendering unconscious or drugging the victim. "Sexual Act" is defined in 18 U.S.C. §2246. The Supplemental Guidelines for Sex Offender Registration and Notification give jurisdictions full discretion over whether they will post information about juveniles adjudicated delinquent of sex offenses on their public registry website. Supplemental Guidelines, supra note 6 at 1636.37. 34 See, e.g., Clark v. State, 957 A.2d 1 (Del. 2008) (lifetime registration requirement for juvenile was not contravened by requirement to consider the "best interests of the child" in fashioning a disposition). Some states go beyond SORNA's requirements. See, e.g., In re J.L., 800 N.W.2d 720 (S.D. 2011) (14 year-old boy adjudicated delinquent for consensual sex with his 12 year-old girlfriend was ordered to register for life). 35 See, e.g., N.V. v. State, 2008 Ark. App. LEXIS 207 (March 5, 2008) (due process hearing required F6rior to juvenile being required to register). See, e.g., In re Crockett, 159 Cal. App. 4th 751 (Cal. App. 1st Dist. 2008) (juvenile adjudicated delinquent of sex offense in Texas was not required to register when he moved to California). 17 See In re Z.B., 757 N.W.2d 595 (S.D. 2008) (treating juvenile sex offenders convicted of the same crimes as adult sex offenders differently and more harshly than the adult sex offenders served no rational purpose and violated the Equal