[Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
[Notices]
[Pages 39009-39020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19047]


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DEPARTMENT OF JUSTICE

Office of the Attorney General
[A.G. Order No. 2095-97]
RIN 1105-AA50


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

AGENCY: Department of Justice.

ACTION: Final guidelines.

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[[Page 39010]]

SUMMARY: The United States Department of Justice (DOJ) is publishing 
Final Guidelines to implement Megan's Law and the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender Registration Act.

EFFECTIVE DATE: July 21, 1997.

FOR FURTHER INFORMATION CONTACT:
Bonnie J. Campbell, Director, Violence Against Women Office, U.S. 
Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 
20530, 202-616-8894.

SUPPLEMENTARY INFORMATION: Megan's Law, Public Law 104-145, 110 Stat. 
1345, amended subsection (d) of section 170101 of the Violent Crime 
Control and Law Enforcement Act of 1994, Public Law 103-322, 108 Stat. 
1796, 2038 (codified at 42 U.S.C. 14071), which contains the Jacob 
Wetterling Crimes Against Children and Sexually Violent Offender 
Registration Act (hereafter referred to as the ``Jacob Wetterling Act'' 
or ``the Act''). The provisions of the Jacob Wetterling Act amended by 
Megan's Law relate to the release of registration information. The 
changes in these provisions require conforming changes in the final 
guidelines published by the Department of Justice on April 4, 1996 in 
the Federal Register (61 FR 15110) to implement the Jacob Wetterling 
Act. In addition, other changes in the guidelines are necessary to 
resolve questions that have arisen in the Justice Department's review 
of state sex offender registration programs and discussion of 
compliance requirements with the states.
    Megan's Law makes two changes in the Jacob Wetterling Act: (1) It 
eliminates a general requirement that information collected under state 
registration programs be treated as private data, and (2) it 
substitutes mandatory language for previously permissive language 
concerning the release of relevant information that is necessary to 
protect the public concerning registered offenders.
    The time frame for compliance with the Megan's Law amendment to the 
Jacob Wetterling Act is the general time frame for compliance with the 
Act specified in section 170101(f) (42 U.S.C. 14071(f))--three years 
from the Act's original enactment date of September 13, 1994, subject 
to a possible extension of two years for states which are making good 
faith efforts to come into compliance with the Act. States that fail to 
comply with the Megan's Law provisions or other provisions of the Jacob 
Wetterling Act within the specified time frame will be subject to a 
mandatory 10% reduction of Byrne Formula Grant funding (under 42 U.S.C. 
3756), and any funds that are not allocated to noncomplying states will 
be reallocated to states that are in compliance.
    In addition to changes reflecting the Megan's Law amendment, these 
final guidelines include changes that clarify other provisions of the 
Jacob Wetterling Act. Since the publication of the original guidelines 
for he Act, a large majority of the states have submitted enacted or 
proposed sec offender registration provisions to the Department of 
Justice for preliminary review concerning compliance with the Act. This 
review process has raised a number of questions which indicate that 
additional guidance would be helpful. This revision of the guidelines 
attempts to address these questions. The main changes or additional 
clarifications concern the following issues:
    1. The Jacob Wetterling Act provides that registration information 
is initially to be taken and submitted by ``the court'' or a ``prison 
officer.'' 42 U.S.C. 14071(b) (1) & (2). The purpose of this 
requirement is to ensure that a responsible official will obtain 
registration information near the time of release and transmit it to 
the registration agency. Some states assign this responsibility to 
probation or parole officers, who have functions relating to 
correctional matters or the execution of sentences, but who might not 
be regarded as prison officers or courts on a narrow reading of those 
terms. The revised guidelines make it clear that such assignments of 
responsibility to such officers are permissible under the Act.
    2. The Act provides that, if a person required to register is 
released, then the responsible officer must obtain the registration 
information and forward it to the registration agency with three days 
of receipt. 42 U.S.C. 14071(b)(2). Many states, however, do not wait 
until the day of release to obtain registration information, but 
require offenders to provide this information some period of time (e.g. 
30 days or 60 days) prior to release. The revised guidelines make it 
clear that, under the latter type of procedure, it is adequate if the 
registration information is forwarded no later than three days after 
release because that equally ensures the submission of registration 
information within the time frame contemplated by the Act.
    3. As noted above, the Act requires that a responsible officer 
obtain and transmit the initial registration information. Some states 
provide that the responsible officer is to send the initial 
registration information concurrently to the state registration agency 
and to the appropriate local law enforcement agency, as opposed to 
transmitting the information exclusively to the state registration 
agency, which would then forward it to the appropriate local law 
enforcement agency. The revised guidelines make it clear that the 
concurrent transmission approach is allowed because that approach also 
results in the availability of the registration information at the 
state and local levels as contemplated by the Act.
    4. The Act requires registrants to report changes of address within 
10 days. 42 U.S.C. 14071(b)(1)(A). Most state registration programs do 
not require registrants to send change of address information directly 
to the state registration agency but provide that this information is 
to be submitted to a local law enforcement agency or other 
intermediary, which is then required to forward it to the state 
registration agency. The revised guidelines make it clear that 
providing for the submission of change of address information in this 
manner (through an intermediary) is allowed under the Act. Likewise, a 
state could provide for the submission of initial registration 
information by the responsible prison officer or court through an 
intermediary. See 42 U.S.C. 14071(b)(2).
    5. The Act requires that the state registration agency notify local 
law enforcement agencies concerning the release or subsequent movement 
of registered offenders to their areas. 42 U.S.C. 14071(b) (2) and (4). 
The revised guidelines make it clear that states have discretion 
concerning the form this notice will take. Permissible options include, 
for example, written notice, electronic or telephonic transmission of 
registration information, and provision of on-line access to 
registration information.
    6. The Act requires periodic address verification for registered 
offenders, through the return of nonforwardable address verification 
forms that are sent to the registered address. 42 U.S.C. 14071(b)(3). 
Some state registration programs do not have the state registration 
agency directly send or receive address verification forms but delegate 
that function to local law enforcement agencies. The revised guidelines 
clarify that this approach to periodic address verification is 
permitted under the Act, as long as state procedures ensure that the 
state registration agency will be promptly made aware if the 
verification process discloses that the registrant is no longer at the 
registered address. The revised guidelines also clarify that states, if 
they wish, may require personal appearance of the registrant at a law 
enforcement

[[Page 39011]]

agency to return an address verification form, as opposed to return of 
the form through the mail.
    7. The Act contemplates the creation of a gap-free network of state 
registration programs, under which offenders who are registered in one 
state cannot escape registration requirements merely by moving to 
another state. See, e.g., 42 U.S.C. 14071(b) (4) and (5). The revised 
guidelines effectuate this legislative objective by more clearly 
defining the obligation of states to register out-of-state offenders 
who move into the state.
    8. The Act requires that released convicted offenders in the 
relevant offense categories be subject to registration and period 
address verification for at least 10 years. 42 U.S.C. 14071(b)(6). This 
requirement is unqualified, and the revised guidelines make it clear 
that a state is not in compliance if it allows registration obligations 
to be waived or terminated before the end of this period on such 
grounds as a finding of rehabilitation or a finding that registration 
(or continued registration) would not serve the purposes of the state's 
registration provisions. However, if the underlying conviction is 
reversed, vacated, or set aside, or if the registrant is pardoned, 
registration (or continued registration) is not required under the Act.
    9. Where a person required to register is re-incarcerated for 
another offense or civilly committed, some states toll registration 
requirements during the subsequent incarceration or commitment. The 
revised guidelines clarify that this approach is consistent with the 
Act because tolling the registration period during confinement results 
in longer aggregate registration while the registrant is released. In 
addition, it is unnecessary to carry out address registration and 
verification procedures during confinement and doing so does not 
further the Act's objective of protecting the public from released 
offenders.
    10. The Act prescribes more stringent registration requirements for 
a subclass of offenders characterized as ``sexually violent 
predators.'' See 42 U.S.C. 14071(a)(1) and (3)(C)-(E). Some states 
require that sexually violent predators be civilly committed, as 
opposed to being subject to more stringent registration requirements. 
The revised guidelines clarify that this approach may be allowed 
because it would be superfluous to carry out address registration and 
verification procedures while such an offender is committed.
    11. The Act requires that the determination whether a person is (or 
is no longer) a ``sexually violent predator'' be made by the sentencing 
court. 42 U.S.C. 14071(a)(2). In light of the variation among states in 
court structure and assignments of judicial responsibility, the revised 
guidelines clarify that this requirement means only that the 
determination must be made by a court whose decision is legally 
competent to trigger the more stringent registration requirements 
prescribed for sexually violent predators by the Act. It does not mean 
that ``the sentencing court'' for purposes of the sexually violent 
predator determination must be the same court in which the offender was 
convicted for an underlying sexually violent offense.
    12. The Act requires registration by persons convicted of a 
``criminal offense against a victim who is a minor.'' 42 U.S.C. 
14071(a)(1). One of the clauses in the Act's definition of this term 
covers ``criminal sexual conduct toward a minor.'' 42 U.S.C. 
14071(a)(3)(A)(iii). The revised guidelines state explicitly that this 
includes incest offenses against minors. The Act's definition of 
``criminal offense against a victim who is a minor'' also includes two 
clauses relating to solicitation offenses: ``solicitation of a minor to 
engage in sexual conduct,'' and ``solicitation of a minor to practice 
prostitution.'' 42 U.S.C. 14071(a)(3)(a)(iv) & (vi). The revised 
guidelines provide greater detail in explaining the solicitation 
offenses that state registration systems must cover to comply with 
these provisions.
    13. The Act also requires registration by persons convicted of a 
``sexually violent offense.'' 42 U.S.C. 14071(a)(1). It essentially 
provides that the term ``sexually violent offense'' means aggravated 
sexual abuse and sexual abuse as described in federal law or the state 
criminal code. 42 U.S.C. 14071(a)(3)(B). The revised guidelines clarify 
that states may comply with this requirement either by covering 
offenses that meet the federal law definition, or by covering 
comparable offenses under state law. The availability of the latter 
option is not limited to states that use the terms ``aggravated sexual 
abuse'' and ``sexual abuse'' or other specific terminology in referring 
to sex offenses in their criminal codes.
    14. The revised guidelines clarify that the Act's time limits for 
reporting initial registration information and change of address 
information refer to the time within which the information must be 
submitted or sent, as opposed to the time within which it must be 
received by the state registration agency.
    15. The Act requires criminal penalties for persons in the relevant 
offense categories who knowingly fail to register or keep registration 
information current. 42 U.S.C. 14071(c). The revised guidelines clarify 
that this neither requires states to allow a defense for offenders who 
were unaware of the legal obligation to register nor precludes states 
from doing so. As a practical matter, states can ensure that offenders 
are aware of their obligations through consistent compliance with the 
Act's provisions for advising offenders of registration requirements at 
the time of release and obtaining a signed acknowledgment that this 
information has been provided.
    16. The revised guidelines clarify that the Act does not preclude 
states from taking measures for the security of registrants who have 
been relocated and provided new identities under federal or state 
witness protection programs because the Act does not require that the 
registration system records include the registrant's original name or 
the registrant's residence prior to the relocation.
    17. The revised guidelines encourage states to require registration 
for all convicted offenders in the pertinent offense categories, 
including offenders convicted in federal, military, and Indian tribal 
courts, as well as offenders convicted in state courts.
    18. The revised guidelines encourage states to ensure that their 
sex offender registration agencies are ``criminal justice agencies'' as 
defined in 28 CFR 20.3(c), to permit the free exchange of registration 
information between state registries and the FBI's records systems.
    Subsequent to the enactment of Megan's Law, congress enacted 
additional legislation relating to sex offender tracking and 
registration in the Pam Lychner Sexual Offender Tracking and 
Identification Act of 1996, Public Law 104-236, 110 Stat. 3093 
(hereafter referred to as the ``Pan Lychner Act''). The Pam Lychner Act 
includes, inter alia, amendments to the Jacob Wetterling Act affecting 
the duration of registration requirements, sexually violent predator 
certification, fingerprinting of registered offenders, address 
verification, and reporting of registration information to the FBI. The 
changes made by the Pam Lychner Act will be the subject of future 
guidelines. States have until three years from the Pan Lychner Act's 
enactment date of October 3, 1996 to come into compliance with the 
features of the Wetterling Act added by the Pam Lychner Act, subject to 
a possible two-year extension. These new provisions are not addressed 
in this publication.

[[Page 39012]]

Summary of Comments on the Proposed Guidelines

    On April 4, 1997, the U.S. Department of Justice published Proposed 
Guidelines in the Federal Register (62 FR 16180) to implement Megan's 
Law and the Jacob Wetterling Crimes Against Children and Sexually 
Violent Offender Registration Act. The comment period expired on June 
3, 1997.
    Following the publication of the Proposed Guidelines, the 
Department received seven comment letters, primarily from state 
officials and realtors' associations. These letters contained numerous 
comments, questions and recommendations, all of which were considered 
carefully in developing the Final Guidelines. A summary of the comments 
and responses to them are provided in the following paragraphs.

A. Notification Requirements

1. Duty To Notify
    Three respondents expressed concern about the potential liability 
of real estate professionals with regard to the notification 
requirements. All three recommended that the guidelines specify that 
the sole responsibility for notification lies with the appropriate 
state law enforcement agency. No further clarification of the Act's 
provision on this issue is necessary, however. As two of the three 
respondents noted, ``[t]he federal statute is clear'' that the 
obligation to release information is placed on the designated state or 
local agency. Whether and to what extent real estate professionals may 
or must disclose information in real estate transactions is a matter of 
state law, and has no bearing on state compliance with the Act.
2. Notification When Sex Offender Moves Out
    Two of the three same respondents suggested that communities should 
be notified when a sex offender moves out of an area. The guidelines do 
not address this issue because the Act itself does not. Thus, this 
matter is left to the discretion of the states.

B. Sexually Violent Predator

1. Definition
    One respondent objected to the definition of ``sexually violent 
predator.'' The Act itself, however, contains definitions of ``sexually 
violent predator'' and the component term ``mental abnormality.'' The 
guidelines cannot alter definitions appearing in the statute. Since the 
Act does not define ``personality disorder,'' the guidelines already 
provide that the definition of this term is a matter of state 
discretion.
2. Tracking
    One respondent commented that tracking for high-risk sexual 
predators should include electronic monitoring. The guidelines do not 
address this issue because the Act is concerned solely with 
registration programs and does not address electronic monitoring in any 
manner. States are free, however, to adopt electronic monitoring or 
other means of sex offender management.

C. Registration

1. Role of Courts
    One respondent commented that it is not a function of a court to 
fingerprint, photograph, or obtain much of the personal information 
specified in the Act. The Act requires that the initial registration 
information be taken by ``the court'' or ``prison'' officers. The 
guidelines provide maximum flexibility consistent with the Act through 
a broad interpretation of those terms. Thus, for example, probation and 
parole officers, as well as judicial and correctional personnel in a 
narrower sense, may take initial registration information.
2. Timing of Transmittal of Registration Information
    One respondent objected that allowing transmission of registration 
information up to three days after release would not ensure timely 
notification of an offender's impending release. The time rule for 
transmission of initial registration information under the Act and 
guidelines is an outer limit. Thus, states are free to require that the 
information be submitted at an earlier point.
3. Notification of Obligation To Register
    One respondent stated that the guidelines suggest that offenders be 
advised at the time of release of their legal obligation to register 
and sign an acknowledgment. The respondent recommended that the 
obligation also should be explained at the time of a guilty plea, 
sentencing or initial registration, because not all registrants will be 
subject to incarceration. The notice of registration obligations and 
signed acknowledgement referred to by the respondent, however, are 
required explicitly by the Act itself. Moreover, the Act and guidelines 
impose the same requirements on all sentenced offenders at the time of 
release, regardless of whether they are released unconditionally from 
prison, or placed on parole, supervised release, or probation.
4. Address Verification and Tracking
    One respondent stated that out-of-state or transient offenders 
could be better tracked and verified through technological solutions 
rather than through the mail. This respondent further recommended that 
states should be encouraged to use technology, such as location 
verification through automatic number identification and offender 
identification through pin numbers and passwords. The guidelines have 
not been changed to reflect these comments because the Act requires a 
particular address verification procedure, involving sending and 
returning an address verification form. Nothing in the guidelines or in 
the Act precludes states from adopting otherwise permissible 
supplemental address verification and tracking procedures, including 
the technological approaches suggested by the respondent.
5. Scope of Registration
    One respondent recommended that state registration and notification 
should go beyond address registration. In particular, the respondent 
stated that the public should have access to information about where an 
offender works, law enforcement should know if the offender has had any 
contact with the law, the offender's phone number should be updated for 
verifications, and the offender should report compliance with treatment 
or counseling sessions. The guidelines have not been revised on the 
basis of these comments because the Act generally does not require 
these particular measures. Nothing in the guidelines or in the Act 
precludes states from adopting otherwise permissible supplemental 
address verification and tracking procedures, including the 
technological approaches suggested by the respondent.
6. Cost of Registration
    One respondent recommended that states be encouraged to charge the 
offender a fee to help cover the cost of monitoring the registration 
information. The Act does not address the issue of payment, but states 
are free to impose such requirements.
7. Availability of Information
    One respondent recommended that information collected on an 
offender's status within a particular state should be available to 
prison or court officers taking initial registration information. While 
it is likely that such information will be available to the officials 
responsible for taking registration information, the guidelines do not

[[Page 39013]]

address this issue because it is not part of the Act's requirements.
8. Designation of State Law Enforcement Agency/Intermediary
    One respondent noted that states may wish to use a non-profit 
organization as the contact point for the dissemination of information 
to the general public. The same respondent also suggested that either 
public or private sector entities could be used as intermediaries to 
submit change of address information. Neither the Act nor the 
guidelines preclude these approaches, and further clarification of this 
point does not appear to be necessary. As stated in the guidelines, 
however, states are encouraged to ensure that the designated state law 
enforcement agency is a ``criminal justice agency'' as defined in 28 
CFR 20.3(c), to permit the free exchange of registration information 
between the state registry and the FBI's record systems.

D. Notice of Release/Movement

    One respondent recommended that the term ``electronic 
transmission'' in relation to notice to local law enforcement agencies 
should include telephonic reporting. The guidelines clarify that state 
registration agencies have discretion regarding the form of notice to 
local law enforcement agencies concerning the presence of registered 
sex offenders. The possible forms of notice listed in the guidelines 
are illustrative, not exhaustive. The list of illustrations have been 
extended to include explicitly ``telephonic'' transmission.

E. Change of Address Reporting/Address Verification

1. Frequency
    One respondent recommended that offenders be required to report 
monthly. The guidelines have not been changed to reflect this comment 
because the Act itself only requires annual address verification and 
quarterly verification for sexually violent predators. As the 
guidelines already make clear, however, states are free to require more 
frequent verification.
2. Ten-year Reporting Requirement
    One respondent recommended that reporting requirements be for a 
period of 10 years from the conclusion of supervision. The guidelines 
have not been revised to reflect this comment because the Act only 
requires a ten-year registration period running from the time of 
release. As the guidelines already make clear, however, states are free 
to require registration for longer periods.

Final Guidelines

    These guidelines carry out a statutory directive to the Attorney 
General, in section 170101(a)(1) (42 U.S.C. 14071(a)(1)), to establish 
guidelines for registration systems under the Act. Before turning to 
the specific provisions of the Act, four general points should be noted 
concerning the Act's interpretation and application.
    First, states that wish to achieve compliance with the Jacob 
Wetterling Act should understand that its requirements constitute a 
floor for state registration systems, not a ceiling, and that they do 
not risk the loss of part of their Byrne Formula Grant funding by going 
beyond its standards. For example, a state may have a registration 
system that covers a broader class of sex offenders than those 
identified in the Jacob Wetterling Act, requires address verification 
for such offenders at more frequent intervals than the Act prescribes, 
or requires offenders to register for a longer period of time than the 
period specified in the Act.
    Exercising these options creates no problem of compliance because 
the provisions in the Jacob Wetterling Act concerning duration of 
registration, covered offenders, and other matters, do not preclude 
states from imposing additional or more stringent requirements that 
encompass the Act's baseline requirements. The general objective of the 
Act is to protect people from child molesters and violent sex offenders 
through registration requirements. It is not intended to, and does not 
have the effect of, making states less free than they were under prior 
law to impose registration requirements for this purpose.
    Second, states that wish to achieve compliance with the Jacob 
Wetterling Act also should understand that they may, within certain 
constraints, use their own criminal law definitions in defining 
registration requirements and will not have to revise their 
registration systems to use technical definitions of covered sex 
offenses based on federal law. This point will be explained more fully 
below.
    Third, the Jacob Wetterling Act contemplates the establishment of 
programs that will impose registration requirements on offenders who 
are subsequently convicted of offenses in the pertinent categories. The 
Act does not require states to attempt to identify and impose 
registration requirements on offenders who were convicted of offenses 
in these categories prior to the establishment of a conforming 
registration system. Nevertheless, the Act does not preclude states 
from imposing any new registration requirements on offenders convicted 
prior to the establishment of the registration system.
    Fourth, the Act's definitions of covered offense categories are 
tailored to its general purpose of protecting the public from persons 
who molest or sexually exploit children and from other sexually violent 
offenders. Hence, these definitions do not include all offenses that 
involve a sexual element. For example, offenses consisting of 
consensual acts between adults are not among the offenses for which 
registration is required under the Act.
    Some state registration and notification systems have been 
challenged on constitutional grounds. The majority of courts that have 
dealt with the issue have held that systems like those contemplated by 
the Jacob Wetterling Act do not violate released offenders' 
constitutional rights. A few courts, however, have found that certain 
provisions of the state systems violate (or likely violate) the 
Constitution. See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994) 
(on motion for preliminary relief) (notification provision), appeal 
dismissed, 85 F.3d 635 (9th Cir. 1996); State v. Babin, 637 So.2d 814 
(La. App.) (retroactive application of notification provision), writ 
denied, 644 So.2d 649 (La. 1994); State v. Payne, 633 So.2d 701 (La. 
App. 1993) (same), writ denied, 637 So.2d 497 (La. 1994); cf. In re 
Reed, 663 P.2d 216 (Cal. 1983) (en banc) (registration requirements for 
misdemeanor offenders violate the California Constitution).
    There has been extensive litigation concerning whether aspects of 
New Jersey's community notification program violate due process or ex 
post facto guarantees as applied to individuals who committed the 
covered offense prior to enactment of the notification statute. The 
Department of Justice believes that the New Jersey community 
notification statute at issue in those cases does not violate the Ex 
Post Facto Clause and that the Fourteenth Amendment's Due Process 
Clause of its own force does not require recognition of such a liberty 
interest on the part of offenders affected by that statute, and has 
filed ``friend of the court'' briefs supporting the New Jersey law.
    The New Jersey Supreme Court, in John Doe v. Poritz, 142 N.J. 1, 
662 A.2d 367 (1995), upheld the New Jersey statute, although it imposed 
certain procedural protections under federal and state law. In Artway 
v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995), the 
District Court held that retroactive application of the

[[Page 39014]]

notification provisions of New Jersey's Megan's Law violated the Ex 
Post Facto Clause. On appeal, however, this part of the District 
Court's decision was vacated on ripeness grounds. 81 F.3d 1235, 
rehearing denied, 83 F.3d 594 (3d Cir. 1996). Then, the District Court 
ruled in a class-action case that the notification provisions of New 
Jersey's Megan Law, as modified by the New Jersey Supreme Court's 
decision in Doe, are constitutional, even when retroactively applied. 
W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), appeal pending; see 
also Paul P. v. Verniero, Civ. No. 97-2919 (D.N.J. June 26, 1997) 
(unpub.) (denying preliminary injunction against the prospective 
application of the New Jersey notification act on the grounds that the 
act does not deny due process or impose double jeopardy; Alan A. v. 
Verniero, Civ. No. 97-1288 (D.N.J. June 27, 1997) (unpub., appeal 
pending) (same).
    There is ongoing litigation over the validity of notification 
systems--and particularly the validity of their retroactive 
application--in other states as well. See, e.g., Doe v. Pataki, 940 F. 
Supp. 603 (S.D.N.Y. 1996) (enjoining retroactive application of 
community notification as an ex post factor punishment), appeal 
pending; Doe v. Weld, 1996 WL 769398 (D. Mass. Dec. 17, 1996) 
(declining to enjoin retroactive application of community notification 
provisions); Stearns v. Gregoire, Dkt. No. C95-1486D, slip op. (W.D. 
Wash. Apr. 12, 1996) (same), appeal pending; Opinion of the Justices, 
423 Mass. 1201, 668 N.E.2d 738 (1996) (advisory opinion that community 
notification provisions are constitutional, even as retroactively 
applied); Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996) (holding 
that retroactive application of community notification violates the Ex 
Post Facto Clause), petition for cert. denied,__U.S.__,65 U.S.L.W. 3416 
(June 27, 1997). The United States has filed briefs in several of these 
cases supporting the state laws.
    The remainder of these guidelines addresses the provisions of the 
Jacob Wetterling Act--including the Megan's Law amendment, but not 
including the changes made by the Pam Lychner Act--in the order in 
which they appear in section 170101 of the Violent Crime Control and 
Law Enforcement Act of 1994.

General Provisions--Subsection (a) (1)-(2)

    Paragraph (1) of subsection (a) of section 170101 directs the 
Attorney General to establish guidelines for state programs that 
require:

    (A) current address registration for persons convicted of ``a 
criminal offense against a victim who is a minor'' or ``a sexually 
violent offense, '' and
    (B) current address registration under a different set of 
requirements for persons who are determined to be `'sexually violent 
predators.''

    For purposes of the Act, ``state'' should be understood to 
encompass the political units identified in the provision defining 
``state'' for purposes of eligibility for Byrne Formula Grant funding 
(42 U.S.C. 3791(a)(2)) in light of the tie-in between compliance with 
the Act and the allocation of Byrne Formula Grant funding. Hence, the 
``states'' that must comply with the Act to maintain full eligibility 
for such funding are the fifty states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, 
and the Northern Mariana Islands.
    Paragraph (2) of subsection (a) states that the determination 
whether a person is a ``sexually violent predator'' (which brings the 
more stringent registration standards into play), and the determination 
that a person is no longer a ``sexually violent predator'' (which 
terminates the registration requirement under those more stringent 
standards), shall be made by the sentencing court after receiving a 
report by a state board composed of experts in the field of the 
behavior and treatment of sexual offenders.
    ``State board'' in paragraph (2) should be understood to mean a 
body or group containing two or more experts that is authorized by 
state law or designated under the authority of state law. Beyond the 
requirement that a board must be composed of experts in the field of 
the behavior and treatment of sexual offenders, the Act affords states 
discretion concerning the selection and composition of such boards. For 
example, a state could establish a single permanent board for this 
purpose, could establish a system of state-designated boards, or could 
authorize the designation of different boards for different courts, 
time period, geographic areas or cases. In addition, the Act permits 
states to set their own standards concerning who qualifies as an expert 
in the field of the behavior and treatment of sexual offenders for 
purposes of board participation, and to utilize qualifying experts from 
outside the state to serve on the boards.
    ``Sentencing court'' in paragraph (2) should be understood to mean 
a court whose determination is competent under state law to trigger or 
terminate the more stringent registration requirements the Act 
prescribes for sexually violent predators. It does not mean that `'the 
sentencing court'' for purposes of the sexually violent predator 
determination must be the same court in which the offender was 
convicted for an underlying offense that gave rise to a requirement to 
register.
    As noted above, subsection (a)(1) requires states to register 
persons convicted of certain crimes against minors and sexually violent 
offenses, but states are free to go beyond the Act's minimum standards 
and include other classes of offenders within their sex offender 
registration programs. For example, states are encouraged to require 
sex offenders convicted in federal, military, or Indian tribal courts 
who reside in their jurisdictions to register. Although the Act does 
not require states to register such offenders, the presence of any 
convicted sex offender in the state--whether the offender was 
prosecuted in a state, federal, military, or Indian tribal court--
raises similar public safety concerns. Some states (e.g., Washington 
and California) already require sex offenders convicted in federal or 
military courts to register.
    The Act's requirement is one of current address registration, and 
the Act does not dictate under what name a person must be required to 
register. Hence, the Act does not preclude states from taking measures 
for the security of registrants who have been provided new identities 
and relocated under the federal witness security program (see 18 U.S.C. 
3521 et seq.) or comparable state programs. A state may provide that 
the registration system records will identify such a registrant only by 
his or her new name and that the registration system records will not 
include the pre-relocation address of the registrant or other 
information from which his or her original identity or participation in 
a witness security program could be inferred. States are encouraged to 
make provision in their laws and procedures for the security of such 
registrants and to honor requests from the United States Marshals 
Service and other agencies responsible for witness protection to ensure 
that the identities of these registrants are not compromised. Due to 
the federal statutory preemption concerning what may or may not be 
disclosed about federally protected witnesses, 18 U.S.C. 3521(b)(1)(G) 
& (3), a state's failure to promulgate protective provisions may 
adversely affect its eligibility to send witnesses to, or to receive 
witness data from, the federal witness security program.

[[Page 39015]]

Definition of ``Criminal Offense Against a Victim Who is a Minor''--
Subsection (a)(3)(A)

    The Act prescribes a 10-year registration requirement for persons 
convicted of a ``criminal offense against a victim who is a minor.'' 
Subparagraph (A) of paragraph (3) of subsection (a) defines the term 
``criminal offense against a victim who is a minor.'' ``Minor'' should 
be understood to mean a person below the age of 18.
    States do not have to track the terminology used in the Act's 
definition of ``criminal offense against a victim who is a minor'' in 
defining registration requirements. Rather, compliance depends on 
whether the substantive coverage of a state's registration requirements 
includes the offenses described in subparagraph (A) of paragraph (3).
    The specific clauses in the Act's definition of ``criminal offense 
against a victim who is a minor'' are as follows:
    (1) Clauses (i) and (ii) cover kidnapping of a minor (except by a 
parent) and false imprisonment of a minor (except by a parent). All 
states have statutes that define offenses--going by such names as 
``kidnapping,'' ``criminal restraint,'' or ``false imprisonment--whose 
gravamen is abduction or unlawful restraint of a person. States can 
comply with these clauses by requiring registration for persons 
convicted of these statutory offenses whose victims were below the age 
of 18. The Act does not require inclusion of these offenses in the 
registration requirement when the offender is a parent, but states may 
choose to require registration for parents who commit these offenses.
    (2) Clause (iii) covers offenses consisting of ``criminal sexual 
conduct toward a minor.'' States can comply with this clause by 
requiring registration for persons convicted of all statutory sex 
offenses under state law whose elements involve physical contact with a 
victim--such as provisions defining crimes of ``rape,'' ``sexual 
assault,'' sexual abuse,'' or ``incest''--in cases where the victim was 
in fact a minor at the time of the offense. Coverage is not limited to 
cases where the victim's age is an element of the offense (such as 
prosecutions for specially defined child molestation offenses). 
Offenses that do not involve physical contact, such as exhibitionism, 
are not subject to the Act's mandatory registration requirements 
pursuant to clause (iii), but states are free to require registration 
for persons convicted of such offenses as well if they so choose.
    (3) Clause (iv) covers offenses consisting of solicitation of a 
minor to engage in sexual conduct. The notion of ``sexual conduct'' 
should be understood in the same sense as in clause (iii). Hence, 
states can comply with clause (iv) by consistently requiring 
registration, in cases where the victim was below the age of 18, based 
on:

--A conviction for an offense involving solicitation of the victim 
under a general attempt or solicitation provision, where the object 
offense would be covered by clause (iii), and
--A conviction for an offense involving solicitation of the victim 
under any provision defining a particular crime whose elements include 
soliciting or attempting to engage in sexual activity involving 
physical contact.

    (4) Clause (v) covers offenses consisting of using a minor in a 
sexual performance. This includes both live performances and using 
minors in the production of pornography.
    (5) Clause (vi) covers offenses consisting of solicitation of a 
minor to practice prostitution. The interpretation of this clause is 
parallel to that of clause (iv). States can comply with clause (vi) by 
consistently requiring registration, in cases where the victim was 
below the age of 18, based on:

--A conviction for an offense involving solicitation of the victim 
under a general attempt or solicitation provision, where the object 
offense is a prostitution offense, and
--A conviction for an offense involving solicitation of the victim 
under any provision defining a particular crime whose elements include 
soliciting or attempting to get a person to engage in prostitution.

    (6) Clause (vii) covers offenses consisting of any conduct that by 
its nature is a sexual offense against a minor. This clause is intended 
to insure uniform coverage of convictions under statutes defining sex 
offenses in which the status of the victim as a minor is an element of 
an offense, such as specially defined child molestation offenses, and 
other offenses prohibiting sexual activity with underage persons. 
States can comply with this clause by including convictions under these 
statutes uniformly in the registration requirement.
    (7) Considered in isolation, clause (viii) gives states discretion 
whether to require registration for attempts to commit offenses 
described in clauses (i) through (vii). However, any verbal command or 
attempted persuasion of the victim to engage in sexual conduct would 
bring the offense within the scope of the solicitation clause (clause 
(iv)), and make it subject to the Act's mandatory registration 
requirements. Moreover, this provision must be considered in 
conjunction with the Act's requirement of registration for persons 
convicted of a ``sexually violent offense,'' which does not allow the 
exclusion of attempts if they are otherwise encompassed within the 
definition of a ``sexually violent offense.''
    Hence, state discretion to exclude attempted sexual offenses 
against minors from registration requirements pursuant to clause (viii) 
is limited by other provisions of the Act. The simplest approach for 
states would be to include attempted sexual assaults on minors (as well 
as completed offenses) uniformly as predicates for the registration 
requirement.
    At the conclusion of the definition of ``criminal offense against a 
victim who is a minor.'' the Act states that (for purposes of the 
definition) conduct which is criminal only because of the age of the 
victim shall not be considered a criminal offense if the perpetrator is 
18 years of age or younger. However, here again, states are free to go 
beyond the Act's baseline requirements. The exemption of certain 
offenders based on age from the Act's mandatory registration 
requirements does not bar states from including such offenders in their 
registration systems if they wish. Moreover, the scope of subsection 
(a)(3)(A)'s exemption is also limited by other provisions of the Act 
that require registration of persons convicted of ``sexually violent 
offenses'' (as defined in (a)(3)(B)), with no provision excluding 
younger offenders where the criminality of the conduct depends on the 
victim's age.
    Since the Act's registration requirements depend in all 
circumstances on conviction of certain types of offenses, states are 
not required to mandate registration for juveniles who are adjudicated 
delinquent--as opposed to adults convicted of crimes and juveniles 
convicted as adults--even if the conduct on which the juvenile 
delinquency adjudication is based would constitute an offense giving 
rise to a registration requirement if engaged in by an adult. However, 
states may require registration for juvenile delinquents, and the 
conviction of a juvenile who is prosecuted as an adult does count as a 
conviction for purposes of the Act's registration requirements.

Definition of ``Sexually Violent Offense''--Subsection (a)(3)(B)

    The Act prescribes a 10-year registration requirement for offenders 
convicted of a ``sexually violent offense,'' as well as for those 
convicted

[[Page 39016]]

of a ``criminal offense against a victim who is a minor.''
    Subparagraph (B) of paragraph (3) defines the term ``sexually 
violent offense'' to mean any criminal offense that consists of 
aggravated sexual abuse or sexual abuse (as described in sections 2241 
and 2242 of title 18, United States Code, or as described in the state 
criminal code) or an offense that has as its elements engaging in 
physical contact with another person with intent to commit such an 
offense. In light of this definition, there are two ways in which a 
state could satisfy the requirement of registration for persons 
convicted of ``sexually violent offenses'':
    First, a state could comply by requiring registration for offenders 
convicted for criminal conduct that would violate 18 U.S.C. 2241 or 
2242--the federal ``aggravated sexual abuse'' and ``sexual abuse'' 
offenses--if prosecuted federally. Specifically, sections 2241 and 2242 
generally proscribe non-consensual ``sexual acts'' with anyone, 
``sexual acts'' with persons below the age of 12, and attempts to 
engage in such conduct. ``Sexual act'' is generally defined (in 18 
U.S.C. 2246(2)) to mean an act involving any degree of genital or anal 
penetration, oral-genital or oral-anal contact, or direct genital 
touching of a victim below the age of 16 in certain circumstances. (The 
second part of the definition in subparagraph (B) of paragraph (3), 
relating to physical contact with intent to commit aggravated sexual 
abuse or sexual abuse, does not enlarge the class of covered offenses 
under the federal law definitions because sections 2241 and 2242 
explicitly encompass attempts as well as completed offenses.)
    Second, a state could comply by requiring registration for 
offenders convicted of the state offenses that correspond to the 
federal offenses described above--i.e., the most serious sexually 
assaultive crime or crimes under state law, covering non-consensual 
sexual acts involving penetration--together with state offenses (if 
any) that have as their elements engaging in physical contact with 
another person with intent to commit such a crime.

Definition of ``Sexually Violent Predator''--Subsection (a)(3) (C)-(E)

    Offenders who meet the definition of ``sexually violent predator'' 
are subject to more stringent registration requirements than other sex 
offenders.
    (1) Subparagraph (C) defines ``sexually violent predator'' to mean 
a person who has been convicted of a sexually violent offense and who 
suffers from a mental abnormality or personality disorder that makes 
the person likely to engage in predatory sexually violent offenses.
    (2) Subparagraph (D) essentially defines ``mental abnormality'' to 
mean a condition involving a disposition to commit criminal sexual acts 
of such a degree that it makes the person a menace to others. There is 
no definition of ``personality disorder'' in the Act; hence, the 
definition of this term is a matter of state discretion. For example, a 
state may choose to utilize the definition of ``personality disorder'' 
that appears in the Diagnostic and Statistical Manual of Mental 
Disorders: DSM-IV. American Psychiatric Association, Diagnostic and 
Statistical Manual of Mental Disorders (4th ed. 1994).
    (3) Subparagraph (E) defines ``predatory'' to mean an act directed 
at a stranger or at a person with whom a relationship has been 
established or promoted for the primary purpose of victimization. As 
noted earlier, the Act provide that the determination whether an 
offender is a ``sexually violent predator'' is to be made by the 
sentencing court with the assistance of a board of experts. The Act 
does not require, or preclude, that all persons convicted of a sexually 
violent offense undergo a determination as to whether they satisfy the 
definition of ``sexually violent predator.'' It also does not specify 
under what conditions such an inquiry must be undertaken. A state that 
wishes to comply with the Act must adopt some approach to this issue, 
but the specifics are a matter of state discretion. For example, a 
state might provide that the decision whether to seek classification of 
an offender as a ``sexually violent predator'' is a matter of judgment 
for prosecutors or might provide that a determination of this question 
should be undertaken routinely when a person is convicted of a sexually 
violent offense and has a prior history of committing such crimes.
    Similarly, the Act affords states discretion with regard to the 
timing of the determination whether an offender is a ``sexually violent 
predator.'' A state may, but need not, provide that a determination on 
this issue be made at the time of sentencing or as a part of the 
original sentence. It could, for example, be made instead by the 
responsible court when the offender has served a term of imprisonment 
and is about to be released from custody.
    As with other features of the Jacob Wetterling Act, the sexually 
violent predator provisions only define baseline requirements for 
states that wish to maintain eligibility for full Byrne Formula Grant 
funding. States are free to impose these more stringent registration 
requirements on a broader class of offenders and may use state law 
categories or definitions for that purpose, without contravening the 
Jacob Wetterling Act. Likewise, while the Act does not require civil 
commitment of sexually violent predators or other offenders under any 
circumstances, states may, if they so wish, require civil commitment of 
persons determined to be sexually violent predators under the Act's 
standards and procedures in lieu of the Act's heightened registration 
requirements for such persons.
    If a state chooses to subject all persons convicted of a ``sexually 
violent offense'' to the more stringent registration requirements and 
standards provided by the Act for ``sexually violent predators,'' then 
a particularized determination that an offender is a ``sexually violent 
predator'' would have no practical effect and would be superfluous. 
Hence, if a state elected this approach, it would not be necessary for 
the state to have ``sexually violent predator'' determinations made by 
the sentencing court or to constitute boards of experts to advise the 
courts concerning such determinations, prior to the commencement of 
registration. In a state that eschewed particularized ``front end'' 
determinations of ``sexually violent predator'' status in this manner, 
however, it would still be necessary to condition termination of the 
registration requirement on a determination by the sentencing court 
(assisted by a board of experts) pursuant to section 170101(b)(6)(B) of 
the Act that the person does not suffer from a mental abnormality or 
personality disorder that would make the person likely to engage in a 
predatory sexually violent offense.

Specifications Concerning State Registration Systems Under the Act--
Subsection (b)

    Paragraphs (1) and (2) of subsection (b) set out duties for prison 
officers and courts in relation to offenders required to register who 
are released from prison or who are placed on any form of post-
conviction supervised release (``parole, supervised release, or 
probation''). The duties generally include taking registration 
information, informing the offender of registration obligations, and 
transmitting the registration information to the designated state law 
enforcement agency.
    The terms ``prison officer'' and ``court'' should be understood to 
include any officer having functions relating to correctional matters, 
offender supervision, or the execution of sentences. Hence, states have 
the option of assigning responsibility for the initial taking and 
transmission of registration

[[Page 39017]]

information to probation or parole officers, as well as to persons who 
are prison or court officers in a narrower sense.
    The specific duties set out in subparagraph (A) of paragraph (1) 
include: (i) Informing the person of the duty to register and obtaining 
the information required for registration (i.e., address information), 
(ii) informing the person that he must give written notice of a new 
address within 10 days to a designated state law enforcement agency if 
he changes residence, (iii) informing the person that, if he changes 
residence to another state, he must inform the registration agency in 
the state he is leaving and must also register the new address with a 
designated state law enforcement agency in the new state within 10 days 
(if the new state has a registration requirement), (iv) obtaining 
fingerprints and a photograph if they have not already been obtained, 
and (v) requiring the person to read and sign form stating that these 
requirements have been explained.
    Beyond these basic requirements, which apply to all registrants, 
subparagraph (B) of paragraph (1) of subsection (b) requires that 
additional information be obtained in relation to a person who is 
required to register as a ``sexually violent predator.'' The 
information that is specifically required under subparagraph (B) is the 
name of the person, identifying factors, anticipated future residence, 
offense history, and documentation of any treatment received for the 
mental abnormality or personality disorder of the person. The Act does 
not require that prison officers or courts conduct an investigation to 
determine the offender's treatment history. For purposes of documenting 
the treatment received, prison officials and courts may rely on 
information that is readily available to them, either from existing 
records or the offender. In addition, prison officers and courts may 
comply with the requirement to document an offender's treatment history 
simply by noting that the offender received treatment for a mental 
abnormality or personality disorder. If states want to require the 
inclusion of more detailed information about the offender's treatment 
history, however, they are free to do so.
    States that wish to comply with the Act will need to adopt statutes 
or administrative provisions to establish the duties specified in 
subsection (b)(1) and ensure that they are carried out. These 
informational requirements, like other requirements in the Act, only 
define minimum standards, and states may require more extensive 
information from offenders. For example, the Act does not require that 
information be obtained relating to registering offenders' employment, 
but states may legitimately wish to know if a convicted child molester 
is seeking or has obtained employment that involves responsibility for 
the care of children.
    As a second example, although it is not required under the Act, 
states are strongly encouraged to collect DNA samples, where permitted 
under applicable legal standards, to be typed and stored in state DNA 
databases. States also are urged to participate in the Federal Bureau 
of Investigation's (FBI's) Combined DNA Index System (CODIS). CODIS is 
the FBI's program of technical assistance to State and local crime 
laboratories that allows that to store and match DNA records from 
convicted offenders and crime scene evidence. The FBI provides CODIS 
software, in addition to user support and training, free of charge, to 
state and local crime laboratories for performing forensic DNA 
analysis. CODIS permits DNA examiners in crime laboratories to exchange 
forensic DNA data on an intrastate level and will enable states to 
exchange DNA records among themselves through the national CODIS 
system. Thus, collection of DNA samples and participation in CODIS 
greatly enhance a state's capacity to investigate and solve crimes 
involving biological evidence, especially serial and stranger rapes.
    Paragraph (2) of subsection (b) states, in part, that the officer 
or court shall forward the registration information obtained from an 
offender who is being released to a designated state law enforcement 
agency within three days. In some states, the responsible official does 
not wait until the time of release to obtain registration information 
but obtains this information some period of time (e.g., 30 days or 60 
days) prior to release. Under such a procedure, it is adequate if the 
registration information is forwarded no later than three days after 
release.
    The Act leaves states discretion in designating an agency as the 
responsible ``state law enforcement agency,'' including the means by 
which such a designation is made, the timing of such a designation, and 
the agencies that may be designated. States are not required to select 
the state police as the designated agency and may choose any agency 
with functions relating to the enforcement of law or protection of 
public safety. For example, states may designate as the pertinent 
``state law enforcement agency'' a correctional agency, a crime 
statistics bureau or criminal records agency, or a department of public 
safety.
    States are encouraged, however, to ensure that the designated state 
law enforcement agency is a ``criminal justice agency'' as defined in 
28 CFR 20.3(c). This will permit the free exchange of registration 
information between the state registry and the FBI's records systems.
    Paragraph (2) of subsection (b) also provides that after receiving 
the registration information from the responsible officer or court, the 
designated state law enforcement agency must immediately enter the 
information into the appropriate state law enforcement record system 
and notify a law enforcement agency having jurisdiction where the 
person expects to reside. The Act leaves states discretion concerning 
the form of notification to the relevant local law enforcement agency. 
Permissible options include, for example, written notice, electronic or 
telephonic transmission of registration information, and provision of 
on-line access to registration information. The Act also leaves states 
discretion in determining which state record system is appropriate for 
storing registration information. States that wish to achieve 
compliance with the Act, however, may need to modify state record 
systems if they are not currently set up to receive all the types of 
information that the Act requires from registrants.
    In some states, the responsible prison officer or court sends the 
initial registration information both to the designated State law 
enforcement agency and to a local law enforcement agency having 
jurisdiction where the registrant will reside, as opposed to 
transmitting the information only to the state agency. This approach is 
allowed, and in such states the state agency need not be required to 
provide notice to the local law enforcement agency because such notice 
would be superfluous in relation to a local law enforcement agency that 
has received the registration information directly from the prison 
officer or court.
    Likewise, the Act does not preclude a state procedure under which 
the prison officer or court transmits the initial registration 
information indirectly to the designated state law enforcement agency 
by sending it in the first instance only to a local law enforcement 
agency having jurisdiction where the registrant will reside, which is 
then required to forward the information to the state agency. 
Procedures of this type will be deemed in compliance, so long as the 
information is submitted or sent to the local law enforcement agency 
within the applicable time frame (no later than three days after 
release), and state procedures ensure that the local agency

[[Page 39018]]

will forward the information promptly to the state agency. In a state 
with this type of procedure, having the state agency notify a local law 
enforcement agency from which it received the initial registration 
information would be superfluous and is not required.
    Paragraph (2) of subsection (b) further provides that the state law 
enforcement agency shall immediately transmit the conviction data and 
fingerprints to the FBI. The Act should not be understood as requiring 
duplicative transmission of conviction data and fingerprints to the FBI 
at the time of initial registration if the state already has sent this 
information to the FBI (e.g., at the time of conviction).
    Paragraph (3) of subsection (b) relates to verification of the 
offender's address. In essence, annual verification of address with the 
designated state law enforcement agency is required for all offenders 
through the return within 10 days of an address verification form sent 
by the agency to the registrant. However, the verification intervals 
are 90 days (rather than a year) for ``sexually violent predators.''
    As noted earlier, these are baseline requirements which do not bar 
states from requiring verification of address at shorter intervals than 
those specified in the Act. Likewise, states may, if they wish, 
strengthen the requirements for transmission and return of verification 
forms beyond the minimum required by the Act, such as requiring 
registrants to appear in person at a law enforcement agency to return 
verification forms that have been sent to their residences.
    In some states, the designated state law enforcement agency does 
not directly carry out address verification but develops verification 
forms which are sent out and received by local law enforcement 
agencies. This delegation of responsibility for the verification 
function is allowed, so long as the procedure specified in the Act for 
periodic address verification through transmission and return of a 
verification form is complied with, and state procedures ensure that 
the designated state law enforcement agency will promptly be made aware 
if the verification process discloses that the registrant is no longer 
at the registered address.
    As indicated above, under paragraph (1)(A) of subsection (b) of the 
Act, registrants are required to submit or send change of address 
information within 10 days of the change of residence. Paragraph (4) of 
subsection (b) requires the designated state law enforcement agency to 
notify other interested law enforcement agencies of a change of address 
by the registrant. Specifically, when a registrant changes residence to 
a new address, the designated law enforcement agency must (i) notify a 
law enforcement agency having jurisdiction where the registrant will 
reside, and (ii) if the registrant moves to a new state, notify the law 
enforcement agency with which the offender must register in the new 
state (if the new state has a registration requirement).
    Under many state registration programs, registrants do not send 
change of address information directly to the designated state law 
enforcement agency but provide this information to a local law 
enforcement agency or other intermediary (such as a probation officer), 
which is then required to forward it to the state agency. This approach 
is allowed under the Act, so long as the registrant is required to 
submit or send change of address information to the intermediary within 
the time frame specified by the Act (no later than 10 days after the 
change of address), and state procedures ensure that the intermediary 
will forward the information promptly to the designated state law 
enforcement agency. If the intermediary that receives the change of 
address information in the first instance is a local law enforcement 
agency having jurisdiction where the registrant will reside, then the 
designated state law enforcement agency does not have to notify that 
local law enforcement agency of the change of address because doing so 
would be superfluous. If, however, the intermediary is a local law 
enforcement agency in the place from which the registrant is moving, 
the requirement remains of immediately notifying a law enforcement 
agency having jurisdiction over the new place of residence. Either the 
state agency or the local law enforcement agency that receives the 
change of address information in the first instance must provide such 
notification.
    Paragraph (5) requires a person convicted of an offense that 
requires registration under the Act who moves to another state to 
register within 10 days with a designated state law enforcement agency 
in his new state of residence (if the new state has a registration 
requirement). This entails responsibilities for states in relation to 
out-of-state offenders who move into the state, as well as personal 
responsibilities for the registrant. To comply with the Act, a state 
registration program must require registration by out-of-state 
offenders in the Act's offense categories who move into the state and 
must provide that such offenders are required to register within 10 
days of establishing residence in the State.
    Subparagraph (A) of paragraph (6) states that the registration 
requirement remains in effect for 10 years. As noted earlier, states 
may choose to establish longer registration periods, but registration 
requirements of shorter duration are not consistent with the Act. 
Hence, for example, a state program is not in compliance with the Act 
if it allows registration obligations to be waived or terminated before 
the end of the 10 year period on such grounds as a finding of 
rehabilitation, or a finding that registration (or continued 
registration) would not serve the purposes of the state's registration 
provisions. However, if the underlying conviction is reversed, vacated, 
or set aside, or if the registrant is pardoned, registration (or 
continued registration) is not required under the Act. Also, a state 
may toll registration requirements during periods in which an offender 
is incarcerated for another offense or civilly committed because it is 
superfluous to carry out address registration and verification 
procedures while the registrant is confined.
    Subparagraph (B) of paragraph (6) states that the registration 
requirement for ``sexually violent predators'' under the Act terminates 
upon a determination that the offender no longer suffers from a mental 
abnormality or personality disorder that would make him likely to 
engage in a predatory sexually violent offense. This provision does not 
require review of the offender's status at any particular interval. For 
example, a state could set a minimum period of 10 years before 
entertaining a request to review the status of a ``sexually violent 
predator,'' the same period as the general minimum registration period 
for sex offenders under the Act.
    The termination provision in subparagraph (B) of paragraph (6) only 
affects the requirement that a person register as a `'sexually violent 
predator'' under subparagraph (B) of subsection (a)(1) of the Jacob 
Wetterling Act. It does not limit states in imposing more extensive 
registration requirements under their own laws. Moreover, even if it 
has been determined as provided in subparagraph (B) of paragraph (6) 
that a person is no longer a ``sexually violent predator,'' this does 
not relieve the person of the 10-year registration requirement under 
other provisions of the Jacob Wetterling Act which applies to any 
person convicted of a ``criminal offense against a victim who is a 
minor'' or a ``sexually violent offense.''

Criminal Penalties for Registration Violations--Subsection (c)

    The Act provides that a person required to register under a state

[[Page 39019]]

program established pursuant to the Act who knowingly fails to register 
and keep such registration current shall be subject to criminal 
penalties. Accordingly, states that wish to comply with the Act will 
need to enact criminal provisions covering this situation as part of, 
or in conjunction with, the legislation defining their registration 
systems, if they have not already done so.
    The Act neither requires states to allow a defense for offenders 
who were unaware of their legal registration obligations nor precludes 
states from doing so. As a practical matter, states can ensure that 
offenders are aware of their obligations through consistent compliance 
with the Act's provisions for advising offenders of registration 
requirements at the time of release and obtaining a signed 
acknowledgment that this information has been provided. If the 
violation by a registrant consists of failing to return an address 
verification form within 10 days of receipt, the state may allow a 
defense if the registrant can prove that he did not in fact change his 
residence address, as provided in subsection (b)(3)(A)(iv).

Release of Registration Information--Subsection (d)

    Subsection (d) governs the disclosure of information collected 
under a state registration program. This part of the Act has been 
amended by the federal Megan's Law (Pub. L. 104-145, 110 Stat. 1345). 
To comply with the Megan's Law amendment, a state must establish a 
conforming information release program that applies to offenders 
required to register on the basis of convictions occurring after the 
establishment of the program. States do not have to apply new 
information release standards to offenders whose convictions predate 
the establishment of a conforming program, but the Act does not 
preclude states from applying such standards retroactively to offenders 
convicted earlier if they so wish.
    The Megan's Law amendment made two important changes from the prior 
law: First, subsection (d) originally provided that information 
collected under state registration programs is to be treated as private 
data, subject to limited exceptions. The Megan's Law amendment has 
repealed the general ``private data'' restriction and has substituted 
an affirmative statement (in subsection(d)(1) that information 
collected under a state registration program may be disclosed for any 
purpose permitted under the law of the state. Hence, under the current 
law, there is no requirement that registration information be treated 
as private or confidential to any greater extent than the state may 
wish.
    Second, paragraph(2) of subsection(d), as amended, provides that 
the designated state law enforcement agency, and any local law 
enforcement agency authorized by the state agency, shall release 
relevant information that is necessary to protect the public concerning 
a specific person required to register under the Act. In contrast, the 
prior law only provided that information may be released for this 
purpose.
    The principal objective of this change is to ensure that 
registration programs will include means for members of the public to 
obtain information concerning registered offenders that is necessary 
for the protection of themselves or their families. In light of this 
change, a state cannot comply with the Act by releasing registration 
information only to law enforcement agencies, to other governmental or 
non-governmental agencies or organizations, to prospective employers, 
or to the victims of registrants' offenses. States also cannot comply 
by having purely permissive or discretionary authority for officials to 
release registration information. Information must be released to 
members of the public as necessary to protect the public from 
registered offenders. This mandatory disclosure requirement applies 
both in relation to offenders required to register because of 
conviction for ``a criminal offense against a victim who is a minor'' 
and those required to register because of conviction for a ``sexually 
violent offense.''
    States do, however, retain discretion to make judgments concerning 
the circumstances in which, and the extent to which, the disclosure of 
registration information to the public is necessary for public safety 
purposes and to specify standards and procedures for making these 
determinations. Several different approaches to this issue appear in 
existing state laws.
    One type of approach, which is consistent with the requirements of 
the Jacob Wetterling Act as amended, involves particularized risk 
assessments of registered offenders, with differing degrees of 
information release based on the degree of risk. For example, some 
states classify registered offenders in this manner into risk levels, 
with (1) registration information limited to law enforcement uses for 
offenders in the ``low risk'' level, (2) notice to organizations with a 
particular safety interest (such as schools and other child care 
entities) for ``medium risk'' offenders, and (3) notice to neighbors 
for ``high risk'' offenders.
    States are also free under the Act to make judgments concerning the 
degree of danger posed by different types of offenders and to provide 
information disclosure for all offenders (or only offenders) with 
certain characteristics or in certain offense categories. For example, 
states may decide to focus particularly on child molesters, in light of 
the vulnerability of the potential victim class, and on recidivists, in 
light of the threat posed by offenders who persistently commit sexual 
offenses.
    Another approach consistent with the Act is to make information 
accessible to members of the public on request. This may be done, for 
example, by making registration lists open for inspection by the 
public, by establishing call-in numbers which members of the public can 
contact to obtain information on the registration status of identified 
individuals, or by providing such information in response to written 
requests. As with proactive notification systems, states that have 
information-on-request systems may make judgments about which 
registered offenders or classes of registered offenders should be 
covered and what information will be disclosed concerning theses 
offenders.
    States are encouraged to involve victims and victim advocates in 
the development of their information release programs and in the 
process for particularized risk assessments of registrants if the state 
program involves such assessments.
    Paragraph(2) of subsection(d) does not deprive states of the 
authority to exercise centralized control over the release of 
information, or if the state prefers, to have local agencies make 
determinations concerning public safety needs and information release.
    A proviso at the end of paragraph (2) states that the identity of 
the victim of an offense that requires registration under the Act shall 
not be released. This proviso safeguards victim privacy by prohibiting 
disclosure of victim identity to the general public in the context of 
information release programs for registered offenders. It does not bar 
the dissemination of victim identity information for law enforcement or 
other governmental purposes (as opposed to disclosure to the public) 
and does not require that a state limit maintenance of or access to 
victim identity information in public records (such as police and court 
records) which exist independently of the registration system. Because 
the purpose of the proviso is to protect the privacy of victims, its 
restriction may be waived at the victim's option.

[[Page 39020]]

    So long as the victim is not identified, the proviso in paragraph 
(2) does not bar including information concerning the characteristics 
of the victim and the nature and circumstances of the offense in 
information release programs for registered offenders. For example, 
states are not barred by the proviso from releasing such information as 
victim age and gender, a description of the offender's conduct, and the 
geographic area where the offense occurred.

Immunity for Good Faith Conduct--Subsection (e)

    Subsection (e) states that law enforcement agencies, employees of 
law enforcement agencies, and state officials shall be immune from 
liability for good faith conduct under the Act.

Compliance--Subsection (f)

    States have three years from the date of enactment (i.e., September 
13, 1994) to come into compliance with the Act, unless the Attorney 
General grants an additional two years where a state is making good 
faith efforts at implementation. States that fail to come into 
compliance within the specified time period will be subject to a 
mandatory 10% reduction of Byrne Formula Grant funding, and any funds 
that are not allocated to noncomplying states will be reallocated to 
states that are in compliance.
    To maintain eligibility for full Byrne Grant formula funding after 
September 13, 1997, states must submit to the Bureau of Justice 
Assistance by July 13, 1997, their existing or proposed registration 
and notification systems for sex offenders. These submissions will be 
reviewed to determine the status of state compliance with the Act. In 
addition, any state that has not been able to establish a registration 
and notification system in compliance with the Act must submit to the 
Bureau of Justice Assistance by July 13, 1997, a written explanation of 
why compliance has not been achieved and a description of the state's 
good faith efforts that may justify an extension of time (of not 
greater than two years) for achieving compliance. States also will be 
required to submit information in subsequent program years concerning 
any changes in sex offender registration systems that may affect 
compliance with the Act.

    Dated: July 14, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-19047 Filed 7-18-97; 8:45 am]
BILLING CODE 4410-18-M