[Federal Register Volume 61, Number 66 (Thursday, April 4, 1996)]
[Notices]
[Pages 15110-15117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8186]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
[AG Order No. 2014-96]
RIN 1105-AA36
Final Guidelines for the Jacob Wetterling Crimes Against Children
and Sexually Violent Offender Registration Act
agency: Department of Justice.
action: Final guidelines.
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summary: The United States Department of Justice (DOJ) is publishing
Final Guidelines to implement the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act.
effective date: April 4, 1996.
for further information contact: Bonnie J. Campbell, Director, Violence
Against Women Office, U.S. Department of Justice, Tenth and
Pennsylvania Avenue, NW, Washington, DC 20530, 202-616-8894.
supplementary information: Section 170101 of the Violent Crime Control
and Law Enforcement Act of 1994, Public Law 103-322, 108 Stat. 1796,
2038 (codified at 42 U.S.C. 14071), contains the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender Registration Act
(hereafter referred to as the ``Jacob Wetterling Act'' or ``the Act'').
The Act provides a financial incentive for states to establish 10-year
registration requirements for persons convicted of certain crimes
against minors and sexually violent offenses, and to establish a more
stringent set of registration requirements for a sub-class of highly
dangerous sex offenders, characterized as ``sexually violent
predators.'' States that fail to establish such systems within three
years (subject to a possible two year extension) face a 10% reduction
in their Byrne Formula Grant funding (under 42 U.S.C. 3756), and
resulting surplus funds will be reallocated to states that are in
compliance with the Act.
Summary of Comments on the Proposed Guidelines
On April 12, 1995, the U.S. Department of Justice published
Proposed Guidelines in the Federal Register (60 FR 18613) to implement
the Jacob Wetterling Act. The original 90 day comment period expired on
July 11, 1995. To ensure the public ample opportunity to review and
comment on the Proposed Guidelines, on September 14, 1995, the
Department published a notice in the Federal Register to reopen the
comment period for an additional 45 days (60 FR 47760). In addition,
the Department mailed copies of the Proposed Guidelines to state
registration authorities and requested their comments. The extended
comment period closed on October 30, 1995.
Following the publication of the Proposed Guidelines, the
Department of Justice received 19 letters, mostly from state officials.
These letters contained numerous comments, questions, and
recommendations, all of which were carefully considered in developing
the Final Guidelines. A summary of the comments and responses to them
are provided in the following paragraphs.
[[Page 15111]]
A. Coverage of the Jacob Wetterling Act
One respondent expressed concern that the Act does not provide for
sex offender registration and notification in relation to military
offenders who are convicted in court martial proceedings, in
prosecutions under the federal criminal code, or in prosecutions by
foreign host nations. In order to extend registration as far as
possible to categories of convicted sex offenders who may not be within
the scope of the statute as presently formulated, the Guidelines have
been revised to encourage states to consider including federal and
military sex offenders within their registration programs.
B. ``Sexually Violent Predator'' Determinations
1. Necessity for Determination
A number of respondents questioned the need for a two-tier
registration system under which states must adopt means for determining
whether an offender is a ``sexually violent predator'' and follow more
stringent registration procedures for offenders so classified. The
Department recognizes that this scheme may require states to make
changes in their existing registration systems. The two-tier scheme was
established by the Act, however, and cannot be modified by the
Guidelines, absent legislative changes. As explained in the Final
Guidelines, a two-tier approach can be dispensed with only if a state
is willing to subject all persons convicted of a ``sexually violent
offense'' to the more stringent registration requirements and standards
provided by the Act for ``sexually violent predators.''
2. State Board of Experts
A number of commenters posed questions about the composition and
activities of the state boards of experts that will assist sentencing
courts in determining whether an offender is a ``sexually violent
predator''. In particular, respondents questioned the necessity for
using such boards, inquired as to what qualification experts must
possess to serve on the boards, and raised concerns about the timing of
the ``sexually violent predator'' determination. One commenter also
expressed concerns about the ability of small states to assemble panels
of experts.
States wishing to comply with the Act must utilize boards of
experts to assist sentencing courts in making ``sexually violent
predator'' determinations because the statue expressly requires this
procedure. The Guidelines have been clarified to address commenters'
other concerns, however. In particular, the Guidelines make clear that
states are free to (1) determine who qualifies as an expert for
purposes of board participation, (2) utilize out-of-state experts, and
(3) decide at what point the ``sexually violent predator''
determination will be made.
3. Definition of ``Sexually Violent Predator''
A number of commenters expressed concerns about the definition of
``sexually violent predator'' and sought various clarifications in the
definition. The Guidelines have not been changed to reflect these
concerns. The Act itself contains definitions of ``sexually violent
predator'' and the component term ``mental abnormality.'' The
Guidelines cannot alter definitions appearing in the statute. Since the
Act does not define the component term ``personality disorder,'' the
Guidelines already provide that the definition of this term is a matter
of state discretion.
4. Required Documentation
One respondent expressed concern about the extent of documentation
required by the Act concerning treatment received by a ``sexually
violent predator'' for a mental abnormality or personality disorder.
The Guidelines have been modified to reflect this concern. Under the
Final Guidelines, states may comply with the requirement to document an
offender's treatment history simply by noting that the offender
received treatment.
The respondent also proposed that the Guidelines clarify that
documentation of treatment history is a one-time event. However, this
change is unnecessary because nothing in the Act or Guidelines states
or suggests that the treatment history of a ``sexually violent
predator'' must be updated following the initial submission of
information.
5. Interaction with Insanity Defense
One respondent raised questions about the possible interaction
between a determination that an offender is a ``sexually violent
predator'' and the insanity defense. The commenter questioned whether a
state may classify an offender as a ``sexually violent predator'' only
when the offender successfully raised an insanity defense, and also
questioned whether a determination that an offender is a ``sexually
violent predator'' could bolster the offender's insanity claim.
The Guidelines have not been revised to reflect these concerns
because there is no relationship between the two legal categories. Of
course, if an offender had successfully raised an insanity defense, he
could not be convicted for the offense charged, and no registration
requirement based on that offense would arise under the Jacob
Wetterling Act. Further, because the elements in the statutory
definition of ``sexually violent predator'' do not establish the
necessary elements of an insanity defense under state laws, a state
could conclude that an offender is a ``sexually violent predator,''
though the offender could not successfully raise an insanity defense.
Finally, with regard to an offender who was classified as a ``sexually
violent predator'' in connection with a previous prosecution and
conviction, the Act does not contemplate any impact from that
determination on the offender's ability to raise an insanity defense in
a later prosecution.
C. State Law Enforcement Agency
1. Designation of Agency
One commenter posed questions concerning how, when, and by whom the
state law enforcement agency responsible for registration matters is to
be designated, and another expressed concerns about the types of
entities that may be selected. The Guidelines have been revised to
clarify that states have discretion with regard to the means by which
an agency is designated as the state law enforcement agency, the timing
of such a designation, and the agencies that may be designated.
2. Necessity for using a State Agency
A number of respondents questioned the necessity for using a state
agency to receive registration information and conduct address
verification. These commenters noted that in several states,
registration and verification is conducted at the county or local
level, rather than at the state level.
The Guidelines have not been revised to reflect these concerns.
Although the Act provides that registration information is to be shared
with local law enforcement agencies, it requires that this information
be submitted to a state law enforcement agency and that the state
agency also conduct address verification. These procedures, which are
set forth clearly in the Act, cannot be modified by the Guidelines,
absent statutory changes.
D. Public Access to Registration Information
One commenter expressed concern about the effect of the Act on a
state's ability to disseminate registration information to the public.
The Guidelines have not been modified to reflect this concern because
they already
[[Page 15112]]
afford states the maximum discretion in this area that is consistent
with the terms of the Act. The Guidelines make it clear that any
restrictions placed by the Act on the disclosure of information do not
constrain the release of information that a state would have
independently of the operation of the registration system. Further, the
Guidelines note and elaborate on the Act's provisions that registration
information may be disclosed for certain law enforcement and background
check purposes, and as necessary for public safety. The Guidelines also
provide that states have discretion concerning the nature and extent of
disclosure (including community notification and access to information
on request by members of the public) that is necessary for public
safety.
E. Compliance Review
One commenter suggested that the Department provide states with
written feedback concerning their compliance with the Act no later than
the date on which a state receives its Byrne Formula Grant Funding.
This recommendation has not been adopted in the Guidelines because the
Department is still in the process of developing compliance review
procedures. States will be notified about these procedures as they are
developed.
Final Guidelines
These guidelines carry out a statutory directive to the Attorney
General, in section 170101)a)(1), to establish guidelines for
registration systems under the Act. Before turning to the specific
provisions of the Act, four general points should be noted concerning
its interpretation and application.
First, states that wish to achieve compliance with the Jacob
Wetterling Act should understand that its requirements constitute a
floor for state registration systems, not a ceiling, and that they do
not risk the loss of part of their Byrne Formula Grant funding by going
beyond its standards. For example, a state may have a registration
system that covers a broader class of sex offenders than those
identified in the Jacob Wetterling Act, or requires address
verification for such offenders at more frequent intervals than the Act
prescribes, or requires offenders to register for a longer period of
time than the period specified in the Act.
Exercising these options creates no problem of compliance, since
the provisions in the Jacob Wetterling Act concerning duration of
registration, covered offenders, and other matters, do not preclude
states from imposing additional or more stringent requirements than
encompass the Act's baseline requirements. The general objective of the
Act is to protect people from child molesters and violent sex offenders
through registration requirements. It is not intended, and does not
have the effect, of making states less free than they were under prior
law to impose registration requirements for this purpose.
Second, states that wish to achieve compliance with the Jacob
Wetterling Act also should understand that they may, within certain
constraints, use their own criminal law definitions in defining
registration requirements, and will not necessarily have to revise
their registration systems to use technical definitions of covered sex
offenses based on federal law. This point will be explained more fully
below.
Third, the Jacob Wetterling Act contemplates the establishment of
programs that will impose registration requirements on offenders who
are subsequently convicted of offenses in the pertinent categories. The
Act does not require states to attempt to identify and impose
registration requirements on offenders who were convicted of offenses
in these categories prior to the establishment of a conforming
registration system. Nevertheless, the Act does not preclude states
from imposing any new registration requirements on offenders convicted
prior to the establishment of the registration system.
Fourth, the Act gives states wide latitude in designing
registration programs that best meet their public safety needs. For
instance, the Act allows states to release relevant information
necessary to protect the public, including information released through
community notification programs. Some state registration and
notification systems have been challenged on constitutional grounds. A
few courts have struck down registration requirements in certain cases.
See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994) (on motion for
preliminary relief); State v. Babin, 637 So.2d 814 (La. App. 1994),
writ denied, 644 So.2d 649 (La. 1994); State v. Payne, 633 So.2d 701
(La. App. 1993), writ denied, 637 So.2d 497 (La. 1994); In re Reed, 663
P.2d 216 (Cal. 1983) (en banc). However, a majority of courts that have
dealt with the issue have held that registration systems like those
contemplated by the Jacob Wetterling Act do not violate released
offenders' constitutional rights.
Some recent decisions have held that aspects of New Jersey's
community notification program violate due process guarantees, or
violate ex post facto guarantees as applied to persons who committed
the covered offense prior to enactment of the notification statute. See
Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J.
1995) (appeal pending); W.P. v. Poritz, No. 96-97 (JWB) (D.N.J. Mar.
15, 1996); Diaz v. Whitman, No. 94-6376 (JWB) (D.N.J. Jan. 6, 1995).
However, the Department of Justice believes that the New Jersey
community notification statute at issue in those cases does not violate
the Ex Post Facto Clause and that the Fourteenth Amendment's Due
Process Clause of its own force does not require recognition of such a
liberty interest on the part of offenders affected by that statute, and
has filed ``friend of the court'' briefs in cases challenging the New
Jersey law. Moreover, the New Jersey Supreme Court, in John Doe v.
Deborah Poritz, 662 A.2d 367 (N.J. 1995), upheld the New Jersey
statute, although it imposed certain procedural protections under
federal and state law.
There has been ongoing litigation over the validity of notification
systems in other states as well. see, e.g., Doe v. Pataki, No. 96 Civ.
1657 (DC) (S.D.N.Y.); Nitz v. Otte, No. A95-486CI (JWS) (D. Alaska Jan.
25, 1996) (appeal pending).
The remainder of these guidelines address the provisions of the
Jacob Wetterling Act in the order in which they appear in Section
170101 of the Violent Crime Control and Law Enforcement Act of 1994.
General Provisions--Subsection (a)(1)-(2)
Paragraph (1) of subsection (a) of Sec. 170101 directs the Attorney
General to establish guidelines for state programs that require:
(A) Current address registration for persons convicted of ``a
criminal offense against a victim who is a minor'' or ``a sexually
violent offense,'' and
(B) Current address registration under a different set of
requirements for persons who are determined to be ``sexually violent
predators.''
For purposes of the Act, ``state'' should be understood to
encompass the political units identified in the provision defining
``state'' for purposes of eligibility for Byrne Formula Grant funding
(42 U.S.C. 3791(a)(2)) in light of the tie-in between compliance with
the Act and the allocation of Byrne Formula Grant funding. Hence, the
``states'' that must comply with the Act to maintain full eligibility
for such funding are the fifty states, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam,
and the Northern Mariana Islands.
[[Page 15113]]
Paragraph (2) of subsection (a) states that the determination
whether a person is a ``sexually violent predator'' (which brings the
more stringent registration standards into play), and the determination
that a person is no longer a ``sexually violent predator'' (which
terminates the registration requirement under those standards), shall
be made by the sentencing court after receiving a report by a state
board composed of experts in the field of the behavior and treatment of
sexual offenders.
``State board'' in paragraph (2) should be understood to mean a
body or group containing two or more experts that is authorized by
state law or designated under the authority of state law. Beyond the
requirement that a board must be composed of experts in the field of
the behavior and treatment of sexual offenders, the Act affords states
discretion concerning the selection and composition of such boards. For
example, a state could establish a single permanent board for this
purpose, could establish a system of state-designated boards, or could
authorize the designation of different boards for different courts,
time periods, geographic areas or cases. In addition, the Act permits
states to set their own standards concerning who qualifies as an expert
in the field of the behavior and treatment of sexual offenders for
purposes of board participation, and to utilize qualifying experts from
outside the state to serve on the boards.
As noted above, subsection (a)(1) requires states to register
persons convicted of certain crimes against minors and sexually violent
offenses, but states are free to go beyond the Act's minimum standards
and include other classes of offenders within their sex offender
registration programs. For example, states are encouraged to require
sex offenders convicted in federal or military courts who reside in
their jurisdictions to register. Although the Act does not require
states to register such offenders, the presence of any convicted sex
offender in the state--whether the offender was prosecuted in a state,
federal, or military court--raises similar public safety concerns. Some
states, including Washington and California, already require sex
offenders convicted in federal or military courts to register.
Definition of ``Criminal Offense Against a Victim Who is a Minor''--
Subsection (a)(3)(A)
The Act prescribes a 10-year registration requirement for persons
convicted of a ``criminal offense against a victim who is a minor.''
Subparagraph (A) of paragraph (3) of subsection (a) defines the term
``criminal offense against a victim who is a minor.'' ``Minor'' should
be understood to mean a person below the age of 18, consistent with the
normal understanding.
The specific clauses in the definition of ``criminal offense
against a victim who is a minor'' are as follows:
(1) Clauses (i) and (ii) cover kidnapping of a minor (except by a
parent) and false imprisonment of a minor (except by a parent). All
states have statutes that define offenses--going by such names as
``kidnapping,'' ``criminal restraint,'' or ``false imprisonment''--
whose gravamen is abduction or unlawful restraint of a person. States
can comply with these clauses by requiring registration for persons
convicted of these statutory offenses whose victims were below the age
of 18. The Act does not require inclusion of these offenses in the
registration requirement when the offender is a parent, but states may
choose to require registration for parents who commit these offenses.
(2) Clause (iii) covers offenses consisting of ``criminal sexual
conduct toward a minor.'' Such offenses include convictions under
general provisions defining sexually assaultive crimes--such as
provisions defining crimes of ``rape,'' ``sexual assault,'' or ``sexual
abuse''--in cases where the victim is in fact a minor. Coverage is not
limited to cases where the victim's age is an element of the offense
(such as prosecutions for specially defined child molestation
offenses).
States can comply with clause (iii) by requiring registration for
persons convicted of all statutory sex offenses under state law whose
elements involve physical contact with a victim, where the victim was
below the age of 18 at the time of the offense. Offenses that do not
involve physical contact, such as exhibitionism, are not subject to the
Act's mandatory registration requirements pursuant to clause (iii), but
states are free to require registration for persons convicted of such
offenses as well if they so choose.
(3) Clause (iv) covers offenses consisting of solicitation of a
minor to engage in sexual conduct. This covers any conviction for an
offense involving the solicitation of conduct that would be covered by
clause (iii) if carried out.
(4) Clause (v) covers offenses consisting of using a minor in a
sexual performance. This includes both live performances and using
minors in the production of pornography.
(5) Clause (vi) covers offenses consisting of solicitation of a
minor to practice prostitution.
(6) Clause (vii) covers offenses consisting of any conduct that by
its nature is a sexual offense against a minor. This clause is intended
to insure uniform coverage of convictions under statutes defining sex
offenses in which the status of the victim as a minor is an element of
an offense, such as specially defined child molestation offenses, and
other offenses prohibiting sexual activity with underage persons.
States can comply with this clause by including convictions under these
statutes uniformly in the registration requirement.
(7) Considered in isolation, clause (viii) gives states discretion
whether to require registration for attempts to commit offenses
described in clauses (i) through (vii). However, any verbal command or
attempted persuasion of the victim to engage in sexual conduct would
bring the offense within the scope of the solicitation clause (clause
(iv)), and make it subject to the Act's mandatory registration
requirements. Moreover, this provision must be considered in
conjunction with the Act's requirement of registration for persons
convicted of a ``sexually violent offense,'' which does not allow the
exclusion of attempts if they are otherwise encompassed within the
definition of a ``sexually violent offense.''
Hence, state discretion to exclude attempted sexual offenses
against minors from registration requirements pursuant to clause (viii)
is limited by other provisions of the Act. The simplest approach for
states would be to include attempted sexual assaults on minors (as well
as completed offenses) uniformly as predicates for the registration
requirement.
At the conclusion of the definition of ``criminal offense against a
victim who is a minor,'' the Act states that (for purposes of the
definition) conduct which is criminal only because of the age of the
victim shall not be considered a criminal offense if the perpetrator is
18 years of age or younger. For example, suppose that state law
prohibits sexual relations with a person below the age of 16, where the
defendant is more than 4 years older than the victim. Suppose further
that an 18-year-old is convicted of violating this prohibition by
engaging in consensual sexual relations with a 13-year-old, where the
conduct would not violate state law but for the victim's age. Under the
provision, if a state did not require such an offender to register, the
state would still be in compliance with the Act. However, here again,
states are free to go beyond the Act's baseline requirements. The
exemption of certain offenders based on age from
[[Page 15114]]
the Act's mandatory registration requirements does not bar states from
including such offenders in their registration systems if they wish.
Moreover, the scope of subsection (a)(3)(A)'s exemption is also limited
by other provisions of the Act that require registration of persons
convicted of ``sexually violent offenses'' (as defined in (a)(3)(B)),
with no provision excluding younger offenders where the criminality of
the conduct depends on the victim's age.
Since the Act's registration requirements depend in all
circumstances on conviction of certain types of offenses, states are
not required to mandate registration for juveniles who are adjudicated
delinquent--as opposed to adults convicted of crimes and juveniles
convicted as adults--even if the conduct on which the juvenile
delinquency adjudication is based would constitute an offense giving
rise to a registration requirement if engaged in by an adult. However,
states remain free to require registration for juvenile delinquents,
and the conviction of a juvenile who is prosecuted as an adult does
count as a conviction for purposes of the Act's registration
requirements.
Definition of ``Sexually Violent Offense''--Subsection (a)(3)(B)
The Act prescribes a ten-year registration requirement for
offenders convicted of a ``sexually violent offense,'' as well a for
those convicted of a ``criminal offense against a victim who is a
minor.''
Subparagraph (B) of paragraph (3) defines the term ``sexually
violent offense'' to mean any criminal offense that consists of
aggravated sexual abuse or sexual abuse (as described in sections 2241
and 2242 of title 18, United States Code, or as described in the State
criminal code), or an offense that has as its elements engaging in
physical contact with another person with intent to commit such an
offense. In light of this definition, there are two ways in which a
state could satisfy the requirement of registration for persons
convicted of ``sexually violent offenses'':
First, suppose that a state has offenses in its criminal code that
are designated ``aggravated sexual abuse'' and ``sexual abuse,'' or has
a definitional provision that characterizes certain offenses in its
criminal code (however denominated) as constituting ``aggravated sexual
abuse'' and ``sexual abuse'' for registration purposes or other
purposes. Such a state could comply simply by requiring registration
for all offenders who are convicted of these state offenses, and all
offenders convicted of any state crime that has as its elements
engaging in physical contact with another person with intent to commit
such an offense.
Second, a state could comply by requiring registration for
offenders convicted for criminal conduct that would violate 18 U.S.C.
2241 or section 2242--the federal ``aggravated sexual abuse'' and
``sexual abuse'' offenses--if subject to federal prosecution. (The
second part of the definition in subparagraph (B) of paragraph (3),
relating to physical contact with intent to commit aggravated sexual
abuse or sexual abuse, does not enlarge the class of covered offenses
under the federal law definitions, since sections 2241 and 2242
explicitly encompass attempts as well as completed offenses.)
Specifically, 18 U.S.C. Secs. 2241-42 generally proscribe non-
consensual ``sexual acts'' with anyone, ``sexual acts'' with persons
below the age of 12, and attempts to engage in such conduct. ``Sexual
act'' is generally defined (in 18 U.S.C. 2246(2)) to mean an act
involving any degree of genital or anal penetration, oral-genital or
oral-anal contact, or direct genital touching of a victim below the age
of 16 in certain circumstances even without penetration.
States that elect this second option--requiring registration for
offenses that consist of aggravated sexual abuse or sexual abuse as
defined in federal law provisions (18 U.S.C. 2241-42)--do not
necessarily have to refer to these federal statutes in their
registration provisions, but could alternatively achieve compliance by
requiring registration for the state law offenses that encompass types
of conduct proscribed by 18 U.S.C. 2241-42. Moreover, a state does not
have to have sex offenses whose scope is congruent with 18 U.S.C. 2241-
42 to take the latter approach. If state law does not criminalize some
types of conduct that are covered by 18 U.S.C. 2241-42, then a person
who engages in the conduct will not be subject to prosecution and
conviction under state law, and there will be no basis for a
registration requirement. On the other hand, if state sex offenses are
defined more broadly than 18 U.S.C. 2241-42, then states are free to
require registration for all offenders convicted under these state
provisions (notwithstanding their greater breadth), and this would be
sufficient to ensure coverage of convictions for criminal conduct that
would violate 18 U.S.C. Secs. 2241-42 if subject to federal
prosecution.
Definition of ``Sexually Violent Predator''--Subsection (a)(3)(C)-(E)
Offenders who meet the definition of ``sexually violent predator''
are subject to more stringent registration requirements than other sex
offenders.
(1) Subparagraph (C) defines ``sexually violent predator'' to mean
a person who has been convicted of a sexually violent offense and who
suffers from a mental abnormality or personality disorder that makes
the person likely to engage in predatory sexually violent offenses.
(2) Subparagraph (D) essentially defines ``mental abnormality'' to
mean a condition involving a disposition to commit criminal sexual acts
of such a degree that it makes the person a menace to others. There is
no definition of ``personality disorder'' in the Act; hence, the
definition of this term is a matter of state discretion. For example, a
state may choose to utilize the definition of ``personality disorder''
that appears in the Diagnostic and Statistical Manual of Mental
Disorders: DSM-IV. American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 1994).
(3) Subparagraph (E) defines ``predatory'' to mean an act directed
at a stranger or at a person with whom a relationship has been
established or promoted for the primary purpose of victimization.
As noted earlier, the Act provides that the determination whether
an offender is a ``sexually violent predator'' is to be made by the
sentencing court with the assistance of a board of experts. The Act
does not require, or preclude, that all persons convicted of a sexually
violent offense undergo a determination as to whether they satisfy the
definition of ``sexually violent predator.'' It also does not specify
under what conditions such an inquiry must be undertaken. A state that
wishes to comply with the Act must adopt some approach to this issue,
but the specifics are a matter of state discretion. For example, a
state might provide that the decision whether to seek classification of
an offender as a ``sexually violent predator'' is a matter of judgment
for prosecutors, or might provide that a determination of this question
should be undertaken routinely when a person is convicted of a sexually
violent offense and has a prior history of committing such crimes.
Similarly, the Act affords states discretion with regard to the
timing of the determination whether an offender is a ``sexually violent
predator.'' A sate may, but need not, provide that a determination on
this issue be made at the time of sentencing or as a part of the
[[Page 15115]]
original sentence. It could, for example, be made instead by the
sentencing court when the offender has served a term of imprisonment
and is about to be released from custody. In addition, a determination
whether an offender is a ``sexually violent predator'' need not be made
by the judge who imposed the original sentence, so long as the
determination is made in the same court that imposed the sentence.
As with other features of the Jacob Wetterling Act, the sexually
violent predator provisions only define baseline requirements for
states that wish to maintain eligibility for full Byrne Formula Grant
funding. States are free to impose these more stringent registration
requirements on a broader class of offenders, and may use state law
categories or definitions for that purpose, without contravening the
Jacob Wetterling Act.
If a state chooses to subject all persons convicted of a ``sexually
violent offense'' to the more stringent registration requirements and
standards provided by the Act for ``sexually violent predators,'' then
a particularized determination that an offender is a ``sexually violent
predator'' would have no practical effect and would be superfluous.
Hence, if a state elected this approach, it would not be necessary for
the state to have ``sexually violent predator'' determinations made by
the sentencing court, or to constitute boards of experts to advise the
courts concerning such determinations, prior to the commencement of
registration. In a state that eschewed particularized ``front end''
determinations of ``sexually violent predator'' status in this manner,
however, it would still be necessary to condition termination of the
registration requirement on a determination by sentencing court
(assisted by a board of experts) pursuant to section 170101(b)(6)(B) of
the Act that the person does not suffer from a mental abnormality or
personality disorder that would make the person likely to engage in a
predatory sexually violent offense.
Specifications concerning State Registration Systems under the Act--
Subsection (b)
Paragraph (1) of subsection (b) sets out duties for prison
officials and courts in relation to offenders required to register who
are released from prison, or who are placed on any form of post-
conviction supervised release ``parole, supervised release, or
probation'').
The duties, set out in subparagraph (A) of paragraph (1), include:
(i) informing the person of the duty to register and obtaining the
information required for registration (i.e., address information), (ii)
informing the person that he must give written notice of a new address
within 10 days to a designated state law enforcement agency if he
changes residence, (iii) informing the person that, if he changes
residence to another state, he must inform the registration agency in
the state he is leaving, and must also register the new address with a
designated state law enforcement agency in the new state within 10 days
(if the new state has a registration requirement), (iv) obtaining
fingerprints and a photograph if they have not already been obtained,
and (v) requiring the person to read and sign a form stating that these
requirements have been explained.
Beyond these basic requirements, which apply to all registrants,
subparagraph (B) of paragraph (1) of subsection (b) requires that
additional information be obtained in relation to a person who is
required to register as a ``sexually violent predator.'' The
information that is specifically required under subparagraph (B) is the
name of the person, identifying factors, anticipated future residence,
offense history, and documentation of any treatment received for the
mental abnormality or personality disorder of the person. The Act does
not require that prison officials or courts conduct an investigation to
determine the offender's treatment history. For purposes of documenting
the treatment received, prison officials and courts may rely on
information that is readily available to them, either from existing
records or the offender. In addition, prison officials and courts may
comply with the requirement to document an offender's treatment history
simply by noting that the offender received treatment for a mental
abnormality or personality disorder. If states want to require the
inclusion of more detailed information about the offender's treatment
history, however, they are free to do so.
States that wish to comply with the Act will need to adopt statutes
or administrative provisions to establish the duties specified in
subsection (b)(1) and ensure that they are carried out. These
informational requirements, like other requirements in the Act, only
define minimum standards, and states may require more extensive
information from offenders. For example, the Act does not require that
information be obtained relating to registering offenders' employment,
but states may legitimately wish to know if a convicted child molester
is seeking or has obtained employment that involves responsibility for
the care for children.
As a second example, although it is not required under the Act,
states are strongly encouraged to collect DNA samples from registering
offenders to be typed and stored in state DNA databases. States also
are urged to participate in the FBI's Combined DNA Index System
(CODIS). CODIS is the FBI's program of technical assistance to state
and local crime laboratories that allows them to store and match DNA
records from convicted offenders and crime scene evidence. The FBI
provides CODIS software, in addition to user support and training, free
of charge, to state and local crime laboratories for performing
forensic DNA analysis. CODIS permits DNA examiners in crime
laboratories to exchange forensic DNA data on an intrastate level, and
will enable states to exchange DNA records among themselves through the
national CODIS system. Thus, collection of DNA samples and
participation in CODIS greatly enhances a state's capacity to
investigate and solve crimes involving biological evidence, especially
serial and stranger rapes.
Paragraph (2) of subsection (b) states that the responsible officer
or court shall forward the registration information to a designated
state law enforcement agency within three days after receipt of the
information. The Act leaves states discretion in designating an agency
as the responsible ``state law enforcement agency,'' including the
means by which such a designation is made, the timing of such a
designation, and the agencies that may be designated. States are not
required to select the state police as the designated agency, and may
choose any agency with functions relating to the enforcement of law or
protection of public safety. For example, states may designate as the
pertinent ``State law enforcement agency'' a correctional agency, a
crime statistics bureau or criminal records agency, or a department of
public safety. States also are permitted to employ a private contractor
to carry out the functions of the designated state law enforcement
agency.
After receiving the registration information from the responsible
officer or court, the designated state law enforcement agency must
immediately enter the information into the appropriate state law
enforcement record system and notify a law enforcement agency having
jurisdiction where the person expects to reside. The Act leaves states
discretion in determining which state record system is appropriate for
storing registration information. States that wish to achieve
compliance with the Act, however, may need to modify state record
systems if
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they are not currently set up to receive all the types of information
that the Act requires from registrants.
The state law enforcement agency is also required to transmit
immediately the conviction data and fingerprints to the Federal Bureau
of Investigation. No changes will be required in the national records
system because the Act only requires transmission of conviction data
and fingerprints, which the FBI already receives. The Act should not be
understood as requiring duplicative transmission of conviction data and
fingerprints to the FBI at the time of initial registration if the
state already has sent this information to the FBI (e.g., at the time
of conviction).
Paragraph (3) of subsection (b) relates to verification of the
offender's address. In essence, annual verification of address with the
designated state law enforcement agency is required for offenders
generally, through the return within ten days of an address
verification form sent by the agency to the registrant. However, the
verification intervals are 90 days (rather than a year) for ``sexually
violent predators.'' As noted earlier, these are baseline requirements
which do not bar states from requiring verification of address at
shorter intervals than those specified in the Act.
Paragraph (4) requires the designated state law enforcement agency
to notify other interested law enforcement agencies of a change of
address by the registrant. Specifically, when a registrant changes
residence to a new address, the designated law enforcement agency must
(i) notify a law enforcement agency having jurisdiction where the
registrant will reside, and (ii) if the registrant moves to a new
state, notify the law enforcement agency with which the offender must
register in the new state (if the new state has a registration
requirement).
Paragragph (5) further requires an offender who moves out of state
to register within ten days with a designated state law enforcement
agency in his new state of residence (if the new state has a
registration requirement). This partially reiterates the requirements
concerning notice of changes of address by the offender that were
described above.
Subparagraph (A) of paragraph (6) states that the registration
requirement remains in effect for ten years. As noted earlier, states
may choose to establish longer registration periods.
Subparagraph (B) of paragraph (6) states that the registration
requirement for ``sexually violent predators'' under the Act terminates
upon a determination that the offender no longer suffers from a mental
abnormality or personality disorder that would make him likely to
engage in a predatory sexually violent offense. This provision does not
require review of the offender's status at any particular interval. For
example, a state could set a minimum period of 10 years before
entertaining a request to review the status of a ``sexually violent
predator,'' the same period as the general minimum registration period
for sex offenders under the Act.
Moreover, this termination provision only affects the requirement
that a person register as a ``sexually violent predator'' under
subparagraph (B) of subsection (a)(1) of the Jacob Wetterling Act. It
does not limit states in imposing more extensive registration
requirements under their own laws, and does not limit any registration
requirement that arises independently under other provisions of the
Jacob Wetterling Act from the person's conviction of a ``criminal
offense against a victim who is a minor'' or a ``sexually violent
offense.''
Criminal Penalties for Registration Violations--Subsection (c)
The Act provides that a person required to register under a state
program established pursuant to the Act who knowingly fails to register
and keep such registration current shall be subject to criminal
penalties. Accordingly, states that wish to comply with the Act will
need to enact criminal provisions covering this situation as part of,
or in conjunction with, the legislation defining their registration
systems, if they have not already done so. If the violation by a
registrant consists of failing to return an address verification form
within 10 days of receipt, the state may allow a defense if the
registrant can prove that he did not in fact change his residence
address, as provided in subsection (b)(3)(A)(iv).
Release of Registration Information--Subsection (d)
Subsection (d) governs the disclosure of ``information collected
under a State registration program.'' Restrictions on the release of
information under this subsection do not constrain the release of
information that a state would have independently of the operation of
the registration system. For example, a state will normally have
criminal history information about an offender, and will often have
current address information as part of general probation or parole
supervision requirements, independently of any special requirements
imposed as part of the sex offender registration system. The Act does
not limit the release of such information.
Subsection (d) states specifically that the information collected
under a state registration program shall be treated as private data,
except under specified conditions.
The first condition under which disclosure is authorized--paragraph
(1)--is that ``such information may be disclosed to law enforcement
agencies for law enforcement purposes.'' This exemption permits use of
the information for all law enforcement purposes, including all police,
prosecutorial, release supervision, correctional, and judicial uses.
Paragragph (2) in subsection (d) says that registration information
may be disclosed to government agencies conducting confidential
background checks. ``Confidential'' should be understood to mean a
background check where information is disclosed to an interested party
or parties--such as a background check conducted by a government agency
that provides information concerning prospective employees to public or
private employers--as opposed to release of the information to the
general public. Release to the public, and other non-law enforcement,
non-background check uses, are governed by paragraph (3).
Paragragph (3) in subsection (d) says that the designated state law
enforcement agency, and any local law enforcement agency authorized by
the state agency, may release relevant information that is necessary to
protect the public concerning a specific person required to register
under this section. The Act does not impose any limitations on the
standards and procedures that states may adopt for determining when
public safety necessitates community notification. For example, states
could implement this authority by engaging in particularized
determinations that individual offenders are sufficiently dangerous to
require community notification concerning the offender's presence.
Alternatively, states could make categorical judgments that protection
of the public necessitates community notification with respect to all
offenders with certain characteristics or in certain offense
categories.
Releases of information for public-protection purposes short of
general community notification--such as giving notice about an
offender's location to the victims of his offenses, or to agencies or
organizations in specified categories--are also permitted under
paragraph (3).
The language in paragraph (3), like that in paragraphs (1) and (2),
is permissive, and does not require states
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to release information. Paragraph (3) also does not deprive states of
the authority to exercise centralized control over the release of
information, or if the state prefers, to generally authorize local
agencies to release information as necessary. In addition to permitting
proactive community notification and other notification, as discussed
above, paragraph (3) and other provisions of the Act do not bar states
from making registration information available upon request, if it is
determined that such access is necessary for the protection of the
public concerning who are required to register.
A proviso at the end of paragraph (3) in subsection (d) states that
the identity of the victim of an offense that requires registration
under the Act shall not be released. The purpose of this proviso is to
protect the privacy of victims, and its restrictions may accordingly be
waived at the victim's option. The proviso only applies to paragraph
(3), and does not limit the disclosure of victim identity pursuant to
paragraphs (1) and (2), relating to law enforcement uses and
confidential background checks.
Immunity for Good Faith Conduct--Subsection (e)
Subsection (e) states that law enforcement agencies, employees of
law enforcement agencies, and state officials shall be immune from
liability for good faith conduct under the Act.
Compliance--Subsection (f)
States have three years from the date of enactment (i.e., September
13, 1994) to come into compliance with the Act unless the Attorney
General grants an additional two years where a state is making good
faith efforts at implementation. States that fail to come into
compliance within the specified time period will be subject to a
mandatory 10% reduction of Byrne Formula Grant funding, and any funds
that are not allocated to noncomplying states will be reallocated to
states that are in compliance. The reallocated funds will be
distributed among complying states in proportion to their populations.
States are encouraged to submit descriptions of their existing or
proposed registration systems for sex offenders to the Department of
Justice as promptly as possible. States may find it convenient, for
example, to submit such descriptions in conjunction with their
applications for Byrne Formula Grant funding. These submissions will
enable the Department of Justice to review the status of state
compliance with the Act, and to suggest any necessary changes to
achieve compliance before the funding reduction goes into effect.
To maintain eligibility for full Byrne Formula Grant funding
following the end of the three-year implementation period provided by
the Act, states will be required to submit information that shows
compliance with the Act in at least one program year, or an explanation
of why compliance cannot be achieved within that period and a
description of good faith efforts that justify an extension of time
(but not more than two years) for achieving compliance. States will
also be required to submit information in subsequent program years
concerning any changes in sex offender registration systems that may
affect compliance with the Act.
Dated: March 27, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-8186 Filed 4-3-96; 8:45 am]
BILLING CODE 4410-01-M