[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