[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Notices]
[Pages 33696-33708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16391]


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DEPARTMENT OF JUSTICE

Office of the Attorney General
[A.G. Order No. 2166-98]
RIN 1105-AA56


Proposed Guidelines for the Jacob Wetterling Crimes Against 
Children and Sexually Violent Offender Registration Act, as Amended

AGENCY: Department of Justice.

ACTION: Proposed guidelines.

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SUMMARY: The United States Department of Justice is publishing Proposed 
Guidelines to implement the Jacob Wetterling Crimes Against Children 
and Sexually Violent Offender Registration Act as amended by Megan's 
Law, the Pam Lychner Sexual Offender Tracking and Identification Act of 
1996, and section 115 of the General Provisions of Title I of the 
Departments of Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriations Act, 1998.

DATES: Comments must be received by August 18, 1998.

ADDRESSES: Comments may be mailed to 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: The Pam Lychner Sexual Offender Tracking and 
Identification Act of 1996, Pub. L. No. 104-236, 110 Stat. 3093 (the 
``Pam Lychner Act''), and section 115 of the General Provisions of 
Title I of the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 
105-119, 111 Stat. 2440, 2461 (the ``CJSA''), amended section 17101 of 
the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 
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 (the ``Wetterling Act'' or ``the 
Act''). These legislative changes require conforming changes in the 
Final Guidelines for the Jacob Wetterling Act and Megan's Law (Pub. L. 
No. 104-145, 110 Stat. 1345) that were published by the Department of 
Justice on July 21, 1997, in the Federal Register (62 FR 39009).
    The Wetterling Act generally sets out minimum standards for state 
sex offender registration programs. States that fail to comply with 
these standards within the applicable time frame will be subject to a 
mandatory 10% reduction of formula grant funding under the Edward Byrne 
Memorial State and Local Law Enforcement Assistance Program (42 U.S.C. 
3756), which is administered by the Bureau of Justice Assistance of the 
Department of Justice. Any funds that are not allocated to noncomplying 
states will be reallocated to states that are in compliance. 
Information concerning compliance review procedures and requirements 
appears in part VIII of these guidelines.
    The Wetterling Act's requirements for compliance may be divided 
into three categories, each of which carries a different compliance 
deadline, depending on the legislation from which it derives:
    1. Original requirements. Many of the provisions of the current 
formulation of the Wetterling Act derive from the original version of 
the Act, which was enacted on September 13, 1994, or from the Megan's 
Law amendment to the Act. These include, for example, the basic 
requirements to register offenders for at least 10 years; to take 
registration information from offenders and to inform them of 
registration obligations when they are released; to require registrants 
to update address information when they move; to verify the registered 
address periodically; and to release registration information as 
necessary for public safety. The deadline for compliance with these 
features of the Act was September 12, 1997, based on the specification 
of 42 U.S.C. 14071(g) that states have three years from the Act's 
original enactment date (i.e., September 13, 1994) to achieve 
compliance. However, 42 U.S.C. 14071(g) allows a two-year extension of 
the deadline for states that are making good faith efforts to achieve 
compliance, and states that have been granted this extension have until 
September 12, 1999, to comply with these features of the Act.
    2. Pam Lychner Act requirements. The Pam Lychner Act's amendments 
to the Wetterling Act created a limited number of new requirements for 
state registration programs, including a requirement that the 
perpetrators of particularly serious offenses and

[[Page 33697]]

recidivists be subject to lifetime registration. The time frame for 
compliance with these new requirements is specified in section 10(b) of 
the Pam Lychner Act--three years from the Pam Lychner Act's enactment 
date of October 3, 1996, subject to a possible extension of two years 
for states that are making good faith efforts to come into compliance. 
Hence, barring an extension, states will need to comply with these 
features of the Act by October 2, 1999.
    3. CISA requirements. The CJSA amendments made extensive changes to 
the Wetterling Act, many of which afford states greater flexibility in 
achieving compliance. Under the effective date provisions in section 
115(c) of the CJSA, states immediately have the benefit of amendments 
that afford them greater discretion and can rely on these amendments in 
determining what changes (if any) are needed in their registration 
programs to comply with the Act. For example, the Act as amended by 
CJSA affords states discretion concerning the procedures to be used in 
periodic verification of registrants' addresses, in contrast to the 
Act's original requirement that a specific verification-form procedure 
be used. In light of this change, effective immediately, states have 
discretion concerning the particular procedures that will be used in 
address verification.
    While the CJSA's amendments to the Wetterling Act were largely in 
the direction of affording states greater discretion, the CJSA did add 
some new requirements to the Wetterling Act. For example, the CJSA 
added provisions to promote registration of sex offenders in states 
where they work or attend school (as well as states of residence) and 
to promote registration of federal and military sex offenders. The time 
frame for compliance with new requirements under CJSA amendments, as 
specified in section 115(c)(2) of the CJSA, is three years from the 
CJSA's enactment date of November 26, 1997, subject to a possible 
extension of two years for states that are making good faith efforts to 
come into compliance. Hence, barring an extension, states will need to 
comply with these features of the Act by November 25, 2000.
    The proposed guidelines in this publication identify and discuss 
separately all of the requirements that states will need to meet by 
each of the three specified deadlines, thereby making it clear when 
states will need to be in compliance with each element of the 
Wetterling Act to maintain eligibility for full Byrne Formula Grant 
funding.

Proposed Guidelines

    1. General purposes and principles of interpretation. These 
guidelines carry out a statutory directive to the Attorney General in 
subsection (a)(1) of the Wetterling Act (42 U.S.C. 14071(a)(1)) to 
establish guidelines for state registration programs under the Act. 
Before turning to the specific provisions of the Act, five general 
points should be noted concerning the Act's interpretation and 
application.
    First, the general objective of the Act is to assist law 
enforcement and protect the public from convicted child molesters and 
violent sex offenders through requirements of registration and 
appropriate release of registration information. The Act is not 
intended to, and does not have the effect of, making states less free 
than they were under prior law to impose such requirements. Hence, the 
Act's standards constitute a floor for state programs, not a ceiling. 
States do not have to go beyond the Act's minimum requirements to 
maintain eligibility for full Byrne Grant funding, but they retain the 
discretion to do so, and state programs do often contain elements that 
are not required under the Act's standards. For example, a state may 
have a registration system that covers broader classes of offenders 
than those identified in the Act, requires address verification for 
registered 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 Act's provisions 
concerning duration of registration, covered offenders, and other 
matters do not limit state discretion to impose more extensive or 
stringent requirements that encompass the Act's baseline requirements.
    Second, to comply with the Wetterling Act, states do not have to 
revise their registration systems to use technical definitions of 
covered sex offenses based on federal law. Rather, subject to certain 
constraints, they may use their own criminal law definitions and 
categories in defining registration requirements. This point is 
explained more fully below.
    Third, 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, and requiring registration for 
persons convicted of such offenses would not further the Act's 
objectives.
    Fourth, the Wetterling Act contemplates the establishment of 
programs that will prescribe registration and notification requirements 
for offenders who are subsequently convicted of offenses in the 
pertinent categories. The Act does not require states to attempt to 
identify and to prescribe such requirements for offenders who are 
convicted prior to the establishment of a conforming program. 
Nevertheless, the Act does not preclude states from prescribing 
registration and notification requirements for offenders convicted 
prior to the establishment of the program.
    Fifth, the Act sets minimum standards for state registration and 
notification programs but does not require that its standards be 
implemented by statute. In assessing compliance with the Act, the 
totality of a state's rules governing the operation of its registration 
and notification program will be considered, including administrative 
policies and procedures as well as statutes.
    2. Related litigation. Some state registration and notification 
systems have been challenged on constitutional grounds. The majority of 
courts, and all federal appeals courts, that have dealt with the issue 
thus far have held that systems like those contemplated by the 
Wetterling Act do not violate released offenders' constitutional 
rights. See, e.g., Roe v. Office of Adult Probation, 125 F.3d 47 (2d 
Cir. 1997) (Connecticut probation office notification policy); Russell 
v. Gregoire, 124 F.3d 1079 (9th Cir. 1997) (Washington state act), cert 
denied, 118 S.Ct. 1191 (1998); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 
1997) (New York act), cert denied, 118 S.Ct. 1066 (1998); E.B. v. 
Verniero, 119 F.3d 1077 (3d Cir. 1997) (New Jersey notification 
provisions), cert. denied. 118 S.Ct. 1039 (1998); Artway v. Attorney 
General, 81 F.3d Cir. 1996) (New Jersey registration provision); Doe v. 
Kelley, 961 F. Supp. 1105 (W.D. Mich. 1997) (Michigan notification 
provisions); Doe v. Weld, 954 F. Supp. 425 (D. Mass. 1996) 
(Massachusetts registration of juvenile offenders); State v. Pickens, 
558 N.W. 2d 396 (Iowa 1997); Arizona Dep't of Public Safety v. Superior 
Court, 949 P.2d 983 (Ariz. App. 1997); Opinion of the Justices to the 
Senate, 423 Mass. 1201, 668 N.E. 2d 738 (Mass 1996); Doe v. Poritz, 142 
N.J. 1, 662 A.2d 367 (N.J. 1995); State v. Ward, 123 Wash. 2d 488, 869 
P.2d 1062 (Wash. 1994). The United States has filed ``friend of the 
court'' briefs in several of these cases, arguing that sex

[[Page 33698]]

offender registration and community notification do not impose 
punishment for purposes of the Ex Post Facto and Double Jeopardy Clause 
or violate privacy or liberty interests guaranteed by the federal 
Constitution.
    In a few other cases, however, courts have found that certain 
applications or provisions of some state systems violate the United 
States Constitution or provisions of a state constitution. See, e.g., 
Doe v. Attorney General, 426 Mass. 136, 686 N.E. 2d 1007 (Mass. 1997) 
(holding that the Massachusetts act implicates liberty and property 
interests protected by the Massachusetts constitution, so that the act 
could not be applied to Doe--who had been convicted of ``indecent 
assault'' for sexually suggestive touching of an undercover police 
officer in an area known for consensual sexual activity between adult 
males--without a prior hearing to determine if he individually 
presented any threat to persons for whose protection the act was 
passed; the court did not rule out the possibility that a categorical 
``dangerousness'' determination could be justified by certain other 
conviction offenses); State v. Myers, 260 Kan. 669, 923 P. 2d 1024 
(Kan. 1996) (holding that due to the breadth of offenses subject to 
Kansas registration act and the potentially unlimited scope of 
notification, Kansas notification provisions violate the Ex Post Facto 
Clause), cert. denied, 117 S. Ct. 2508 (1997). The New Jersey Supreme 
Court in Doe v. Poritz (above) also found a state law privacy interest 
requiring certain procedural protections, and those procedures were 
further elaborated upon by the Third Circuit in E.B. v. Verniero 
(above).
    In addition, when these guidelines were written, there were appeals 
pending in the Sixth Circuit, see Cutshall v. Sundquist, 980 F. Supp. 
928 (M.D. Tenn. 1997) (holding that the Tennessee notification 
provisions implicate federal and state law privacy and employment 
interests, requiring procedural protections prior to notification), 
appeal pending, 6th Cir. Nos. 97-6276 & 97-6321, and in the Third 
Circuit, see Paul v. Verniero, 3d Cir. No. 97-5791 (from district 
court's rejection of constitutional privacy challenge to community 
notification). There was also ongoing litigation in federal district 
court in Minnesota and in state courts in Ohio and Pennsylvania.
    3. Summary and text of guidelines. The following guidelines explain 
the interpretation and application of the Wetterling Act's standards 
for registration programs and related requirements. All citations in 
these guidelines to the Act are to the Act's current text, reflecting 
the Megan's Law, Pam Lychner Act, and CJSA amendments. The detailed 
explanation is preceded by a table that summarizes the organization of 
the guidelines, the major elements of the Act, and the time for 
compliance with each element under the enacting legislation.

Summary and Deadlines for Wetterling Act Compliance

    I. Ten-Year Minimum Registration for Persons Convicted of a 
Criminal Offense Against a Victim Who is a Minor or a Sexually Violent 
Offense [Sept. 12, 1997; Possible Two-Year Extension]
    A. ``States'' to which the Act applies
    B. Duration of registration
    C. Coverage of offenses
    D. Coverage of offenders
II. Registration and Tracking Procedures; Penalties for Registration 
Violations [Sept. 12, 1997; Possible Two-Year Extension]
    A. Initial registration procedures
    B. Change of address procedures
    C. Periodic address verification
    D. Penalties for registration violations
III. Release of Registration Information [Sept. 12, 1997; Possible Two-
Year Extension]
IV. Special Registration Requirements Under the Pam Lychner Act for 
Recidivists and Aggravated Offenders [Oct. 2, 1999; Possible Two-Year 
Extension]
V. Special Registration Requirements Under the CJSA Amendments Relating 
to Sexually Violent Predators, Federal and Military Offenders, and Non-
Resident Workers and Students [Nov. 25, 2000; Possible Two-Year 
Extension]
    A. Heightened sexually violent predator registration or alternative 
measures
    B. Federal and military offenders; non-resident workers and 
students
VI. Participation in the National Sex Offender Registry [Nov. 25, 2000; 
Possible Two-Year Extension]
VII. Good Faith Immunity [Available to States Immediately]
VIII. Compliance Review; Consequences of Non-Compliance
Text of Detailed Guidelines for Wetterling Act Compliance

I. Ten-Year Minimum Registration for Persons Convicted of a 
Criminal Offense Against a Victim Who is a Minor or a Sexually 
Violent Offense [Time For Compliance: September 12, 1997; Possible 
Two-Year Extension]

    To comply with subsections (a)(1) and (b)(6)(A) of the Wetterling 
Act, a state registration program must require current address 
registration for a period of 10 years for persons convicted of ``a 
criminal offense against a victim who is a minor'' or a ``sexually 
violent offense.''
    This requirement derives from the Wetterling Act as originally 
enacted. The time for compliance is accordingly that provided in 42 
U.S.C. 14071(g)--Sept. 12, 1997, or Sept. 12, 1999, for states that 
have received a two-year extension based on good faith efforts to 
achieve compliance.
    The interpretation and application of this requirement are as 
follows:

A. ``States'' to Which the Act Applies

    For purposes of the Act, ``state'' refers to 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)). 
Hence, the ``states'' that must comply with the Act's standards for 
registration programs 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.

B. Duration of Registration

    Subsection (b)(6)(A) provides that the registration requirement 
must remain in effect for 10 years following the registrant's release 
from prison or placement on parole, supervised release, or probation. 
States may choose to establish longer registration periods, and are 
required to do so under the Act's standards for certain types of 
offenders as discussed in parts IV and V of these guidelines. 
Registration requirements of shorter duration than 10 years are not 
consistent with the Act. Hence, for example, a state program would not 
be in compliance with the Act if it allowed 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, in light of a proviso in subsection (b)(6), a state need not 
require registration ``during ensuing periods of incarceration.'' The 
reference to subsequent ``incarceration'' should be understood to 
include periods of civil commitment, as well as imprisonment for the 
commission of another criminal offense, since a state may conclude that 
it is superfluous to carry out address registration and verification 
procedures while the registrant is in either criminal

[[Page 33699]]

or civil confinement. To comply with the Act, a state that does waive 
registration during subsequent criminal or civil confinement must 
require that registration resume when the registrant is released, if 
time remains under the registration period required by the Act.

C. Coverage of Offenses

    1. ``Criminal offense against a victim who is a minor''. The Act 
requires registration of any person convicted of a ``criminal offense 
against a victim who is a minor.'' Subsection (a)(3)(A) defines the 
relevant category of offenses. The general purpose of the definition is 
to ensure comprehensive registration for persons convicted of offenses 
involving sexual molestation or sexual exploitation of minors. 
``Minors'' for purposes of the Act means a person below the age of 18.
    The specific clauses in the Act's definition of ``criminal offense 
against a victim who is a minor'' are as follows:
    (1)-(2) 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. It is a matter of state discretion under these clauses whether 
registration should be required for such offenses in cases where the 
offender is a parent of the victim.
    (3) 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 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). It is a 
matter of state discretion under this clause whether registration 
should be required for sex offenses that do not involve physical 
contact, such as exhibitionism offenses.
    (4) 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.

    (5) 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.
    (6) 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.

    (7) Clause (vii) covers offenses consisting of any conduct that by 
its nature is a sexual offense against a minor. This clause is intended 
to ensure 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 in the registration requirement. A proviso at the conclusion 
of the Act's definition of ``criminal offense against a victim who is a 
minor'' allows states to exclude from registration requirements persons 
convicted for conduct that is criminal only because of the age of the 
victim if the perpetrator is 18 years of age or younger. Whether 
registration should be required for such offenders is a matter of state 
discretion under the Act.
    (8) Considered in isolation, clause (viii) gives states discretion 
whether to require registration for attempts to commit offenses 
described in clauses (i) through (vii). However, state discretion to 
exclude attempted sexual offenses against minors is limited by other 
provisions of the Act, since 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. Hence, the 
simplest approach for states is to include attempted sexual assaults on 
minors (as well as completed offenses) uniformly as predicates for the 
registration requirement.
    2. ``Sexually violent offense''. The Act prescribes a 10-year 
registration requirement for offenders convicted of a ``sexually 
violent offense,'' as well as for those convicted of a ``criminal 
offense against a victim who is a minor.'' Subsection (a)(3)(B) defines 
the term ``sexually violent offense.'' The general purpose of the 
definition is to require registration of persons convicted of rape or 
rape-like offenses--i.e., non-consensual sexually assaultive crimes 
involving penetration--regardless of the age of the victim. The 
definition refers specifically to any criminal offense that consists of 
aggravated sexual abuse or sexual abuse (as described in sections 2241 
and 2242 of title 18 of the 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 
can satisfy the requirement of registration for persons convicted of 
``sexually violent offenses'':
    First, a state can 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. (The part of the definition 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 can 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.

[[Page 33700]]

    Like the other requirements of the Act, the requirement to register 
persons convicted of sexually violent offenses, regardless of the age 
of the victim, establishes only a baseline for state registration 
programs. Whether registration should be required for additional 
offenses against adult victims is a matter of state discretion under 
the Act.
    3. ``Comparable * * * range of offenses''. As a result of language 
added by the CJSA amendments, states need not comply exactly with the 
specific offense coverage requirements in subparagraph (A) or (B) of 
subsection (a)(3). Rather, a state may comply with the Act by requiring 
registration for persons convicted of offenses in a ``range of offenses 
specified by State law which is comparable to or which exceeds'' the 
range of offenses described in the Act.
    This change reflects a practical recognition by Congress that exact 
state compliance with the Act's offense coverage specifications may be 
difficult because of the degree of detail in the Act's definitions and 
because of the variations among different jurisdictions in the 
terminology and categorizations used in defining sex offenses. See H.R. 
Rep. No. 256, 105th Cong., 1st Sess. 15 (1997). As a result, Congress 
was concerned that some states ``may inadvertently find themselves out 
of compliance with the Wetterling Act'' because the state registration 
provisions ``are not exactly congruent'' with the Act's offense 
categories, ``even if the offenses covered by the [state] program are 
much broader in other respects than required by the Wetterling Act.'' 
Id. The language concerning coverage of a ``comparable'' range of 
offenses was added to address this concern.
    States should aim to have their registration offenses fully 
encompass the offense categories described in the Act and will be 
assured of compliance with the Act's offense coverage requirements if 
they do so. However, in light of the CJSA amendments affording a degree 
of flexibility concerning offense coverage, inadvertent departures from 
the Act's offense category specifications will not necessarily result 
in a finding of non-compliance. Such departures will be allowed if, in 
the judgment of the reviewing authority, they do not substantially 
undermine the objective of comprehensive registration for persons 
convicted of crimes involving sexual molestation or sexual exploitation 
of minors, and of persons convicted of rape or rape-like crimes against 
victims of any age.
    In addition, in assessing compliance, the reviewing authority may 
consider whether a state program imposes registration requirements 
which are broader in other respects than the offense coverage 
specifications of the Act. For example, consistently requiring 
registration for persons convicted of attempted offenses, and of sexual 
assaults against adult victims other than rape-like offenses, goes 
beyond the Act's mandatory standards. Such additional coverage may be 
considered by the reviewing authority in deciding whether the overall 
offense coverage under a state program ``is comparable to or * * * 
exceeds'' the Act's offense coverage specifications.

D. Coverage of Offenders

    1. Resident offenders convicted in other states. In addition to the 
Act's requirement that states register their own offenders in the 
pertinent categories, subsection (b)(7) of the Act requires states, as 
provided in these guidelines, to include in their registration programs 
residents who were convicted in other states.
    To comply with this requirement, states must apply the Act's 
standards to residents who were convicted in other states of a criminal 
offense against a victim who is a minor or a sexually violent offense 
as defined in the Act). Specifically, states must require such persons 
to promptly provide current address information to the appropriate 
authorities when they establish residence in the state, and thereafter 
must apply to such persons all of the Act's standards relating to 
treatment of registered offenders following release including reporting 
of subsequent changes of address, periodic address verification, 
criminal penalties for registration violations, and release of 
registration information as necessary for protection of the public. 
States also should be aware that it is a federal offense for registered 
offenders to change residence to another state without notifying the 
new state of residence and the FBI. See 42 U.S.C. 14072(g)(3) and (i).
    The durational requirements for registration of offenders convicted 
in other states are the same as those for in-state offenders--
registration for at least 10 years or for life as provided in 
subsection (b)(6) of the Act. If a portion of the applicable 
registration period has run while the registrant was residing in 
another state, a new state of residence may give the registrant credit 
for that period. For example, if a person required to register for 10 
years under the Act's standards has lived for six years following 
release in the state of conviction, another state to which the 
registrant moves at that point does not have to require registration 
for more than the four remaining years.
    2. Juvenile delinquents and offenders. The Act's registration 
requirements depend in all circumstances on conviction for certain 
types of offenses. Hence, 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.
    3. Tribal offenders. The Act does not impose any requirements 
relating to registration of persons convicted of sex offenses in Indian 
tribal courts. However, a sex offender convicted in an Indian tribal 
court whose presence is unknown to state authorities or Indian tribal 
authorities raises the same public safety concern as an unregistered 
offender convicted of a similar offense in a state court. States are 
accordingly encouraged to require registration for sex offenders 
subject to their jurisdiction who were convicted in Indian tribal 
courts and to work with tribal authorities to ensure effective 
registration for such persons.
    4. Protected witnesses. The Act requires current address 
registration but 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 true 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.
    States should also be aware that 18 U.S.C. 3521(b)(1)(H), enacted 
by section 115(a)(9) of CJSA, specifically authorizes the Attorney 
General to

[[Page 33701]]

adopt regulations to ``protect the confidentiality of the identity and 
location'' of protected witnesses who are subject to registration 
requirements, ``including prescribing alternative procedures to those 
otherwise provided by Federal or State law for registration and 
tracking of such persons.'' The Attorney General's policy, to the 
maximum extent allowed by security considerations, is to require the 
registration of all federally protected witnesses who otherwise would 
be required to register. However, in the Attorney General's discretion, 
the Attorney General will decide on a case-by-case basis whether these 
registrations will utilize new identities, modified listings, or other 
special conditions or procedures that are warranted to avoid 
inappropriately jeopardizing the safety of the protected witnesses.

II. Registration and Tracking Procedures; Penalties for 
Registration Violations [September 12, 1997; Possible Two-Year 
Extension]

    Paragraphs (1)(A) and (2)(A) of subsection (b) of the Act set out 
general duties for states 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 include taking registration information, 
informing the offender of registration obligations, making the 
information available at the state level and to local law enforcement, 
and transmission of conviction data and fingerprints to the FBI. 
Paragraphs (4)-(5) of subsection (b) of the Act contain requirements 
that are designed to ensure that registration information will be 
updated when the registrant changes address and that registrants will 
continue to be required to register when they move from one state to 
another during the registration period. Subsection (b)(3)(A) states 
that ``State procedures shall provide for verification of address at 
least annually.''
    These requirements generally derive from the Wetterling Act as 
originally enacted. The time for compliance is accordingly that 
provided in 42 U.S.C. 14071(g)--Sept. 12, 1997, or Sept. 12, 1999, for 
states which have received a two-year extension based on good faith 
efforts to achieve compliance. However, one aspect of subsection 
(b)(1)(A)--a requirement to inform offenders that they must register in 
states where they work or attend school, in clause (iii)--derives from 
the CJSA and consequently is subject to a longer deadline for 
compliance as discussed in part V of these guidelines.

A. Initial Registration Procedures

    1. Taking of registration information and informing offenders of 
registration obligations. Subsection (b)(1)(A) provides that ``a State 
prison officer, the court, or another responsible officer or official'' 
must carry out specified duties in relation to persons who are required 
to register. The purpose of this provision is to ensure that offenders 
are made aware of their registration obligations and to preclude 
``honor systems'' in which the initial registration depends on the 
offender's reporting the information on his own. States have discretion 
under the Act concerning what types of officials or officers will be 
made responsible for these initial registration functions.
    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 report subsequent changes of 
address in the manner provided by state law, (iii) informing the person 
that if he moves to another state, he must report the change of address 
in the manner provided by state law and comply with any registration 
requirement in the new state of residence, (iv) obtaining fingerprints 
and a photograph if they have not already been obtained and (v) 
requiring the person to read and sign a form stating that these 
requirements have been explained.
    In addition, the CJSA amended subparagraph (A)(iii) to require that 
the person be informed that he also must register in states where he 
works or attends school. States must comply with this new requirement 
by November 25, 2000 (subject to a possible two-year extension), as 
explained in part V of these guidelines.
    These informational requirements, like other requirements in the 
Act, only define minimum standards. Hence, states may require more 
extensive information from offenders. For example, the Act does not 
require a state to obtain information about a registrant's expected 
employment when it releases him, but a state 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, states are strongly encouraged to collect DNA 
samples, where permitted under applicable legal standards, to be typed 
and stored in state DNA databases. States are also 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 them to store and match 
DNA records from convicted offenders and crime scene evidence. The FBI 
provides CODIS software, in addition to user support and training, free 
of charge, to state and local crime laboratories for performing 
forensic DNA analysis. CODIS permits DNA examiners in crime 
laboratories to exchange forensic DNA data on an intrastate level and 
will enable states to exchange DNA records among themselves through the 
national CODIS system. Thus, collection of DNA samples and 
participation in CODIS greatly enhance a state's capacity to 
investigate and solve crimes involving biological evidence, especially, 
serial and stranger rapes.
    2. Transmission of registration information. Paragraph (2)(A) of 
subsection (b) states, in part, that the registration information must 
be promptly made available to a law enforcement agency having 
jurisdiction where the registrant expects to reside and entered into 
the appropriate state records system. The purpose of this provision is 
to ensure that registration information will be available both to local 
law enforcement and at the state level.
    States have discretion under the Act concerning the specific 
mechanisms and procedures for carrying out this requirement. For 
example, a state may provide that the responsible official or officer 
is to transmit the registration information concurrently to an 
appropriate local law enforcement agency and to the agency responsible 
for maintenance of the information at the state level, or may provide 
that the information is to be provided in the first instance only to 
the local agency or to the state agency, which then transmits it to the 
other. States also have discretion concerning the form of notification 
or transmission. For example, in meeting the requirement to make the 
information available to a law enforcement agency where the registrant 
will reside, permissible options include written notice, electronic 
transmission of registration information, and provision of on-line 
access to registration information.
    While the Act generally leaves states discretion concerning 
specific procedures for taking and transmitting registration 
information, it does require that the information be ``promptly'' made 
available to the appropriate recipient agencies (both state and local). 
This requirement precludes procedures under which lengthy delays are 
allowed

[[Page 33702]]

in the transmission or forwarding of the information. For example, in 
relation to registrants released from prison, state procedures must 
ensure: (1) that the registration information taken from the offender 
will be transmitted prior to release or within a short time (e.g., five 
days) thereafter, and (2) that there is no long delay in any subsequent 
forwarding of the information required for compliance with the Act, 
such as provision of the information to an appropriate local law 
enforcement agency by a state agency if only the state agency receives 
the information in the first instance.
    The Act leaves states discretion in determining which state record 
system is appropriate for storing registration information, and which 
agency will be responsible at the state level for the maintenance of 
this information. As discussed in Part VI of these guidelines, however, 
states will be required effective November 25, 2000, to participate in 
the National Sex Offender Registry (NSOR), which is administered by the 
FBI. States can ensure that they will be able to freely exchange 
registration information with the FBI's records systems and comply with 
the requirement of participation in NSOR by making a ``criminal justice 
agency'' as defined in 28 CFR 20.3(c) responsible for the registration 
information at the state level. This continues to leave states with 
broad discretion concerning the designation of responsibility for the 
state registry, since ``criminal justice agency'' is defined broadly in 
the rule and generally includes (inter alia) law enforcement agencies, 
correctional and offender supervision agencies, and agencies 
responsible for criminal identification activities or criminal history 
records.
    In addition to requiring procedures that ensure the prompt 
availability of the initial registration information both to local law 
enforcement and at the state level, paragraph (2)(A) of subsection (b) 
requires the prompt transmission of conviction data and fingerprints of 
registrants to the FBI. This 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).
    3. Fingerprinting. The final subsection of the Wetterling Act--
which should be designated as subsection (h) but is designated as a 
second subsection (g) because of a technical drafting error in section 
115(a)(3) of the CJSA--relates to a requirement under the Pam Lychner 
Act that certain offenders register directly with the FBI. In 
conjunction with other provisions of the Pam Lychner Act, it requires 
that fingerprints be obtained from such offenders by the FBI or by a 
local law enforcement official pursuant to regulations issued by the 
Attorney General. However, section 115(a)(7) of the CJSA deferred the 
effective date for direct FBI registration of certain offenders and 
issuance of related regulations. Hence, the final subsection of the 
Wetterling Act does not impose any requirements on the states at the 
present time.

B. Change of Address Procedures

    1. Intrastate moves. Subsection (b)(4) provides that registrants 
are to report changes of address in the manner provided by state law. 
It further provides that state procedures must ensure that the updated 
address information is promptly made available to a law enforcement 
agency having jurisdiction where the person will reside and entered 
into the appropriate state records or data system.
    The purpose of this provision is to ensure that current address 
information will continue to be available both to local law enforcement 
and at the state level. To comply with this part of the Act, states 
must require registrants to report changes of address within the state 
in a manner which ensures that information concerning the new address 
will promptly be made available to local law enforcement in the new 
place of residence and at the state level. Thus, states must require 
registrants to report changes of address prior to moving, or by some 
short time (e.g., 10 days) after moving.
    States have discretion under the Act concerning specific mechanisms 
and procedures for reporting the updated address information and 
ensuring that it reaches the appropriate recipients. For example, many 
states require the registrant to notify local law enforcement agencies 
(e.g., local sheriffs' offices) in the place he is leaving and the 
place to which he is going and then require one of these local agencies 
to notify the agency responsible for maintenance of registration 
information at the state level. Alternatively, a state may require the 
registrant to directly notify a central registration agency at the 
state level, which then makes the information available to an 
appropriate local law enforcement agency. Another possibility is to 
require the registrant to report the change of address to a third 
party, such as a probation officer responsible for his supervision, who 
then is responsible for notifying a law enforcement agency in the new 
place of residence and the state registration agency.
    The choice among these alternatives or the election of other 
alternatives beyond those described is a matter of state discretion. 
States will be in compliance as long as the procedures adopted ensure 
the prompt availability of the updated address information to law 
enforcement in the relevant local jurisdiction and at the state level.
    2. Interstate moves. Subsection (b)(5) states that a registrant who 
moves to another state must report the change of address to the 
responsible agency in the state he is leaving and must comply with any 
registration requirement in the new state of residence. It further 
provides that the procedures of the state the registrant is leaving 
must ensure that notice is provided promptly to an agency responsible 
for registration in the new state of residence, if that state requires 
registration.
    The purpose of this provision is to ensure a gap-free nationwide 
network of state registration programs that reliably tracks all 
offenders throughout the applicable period of registration and ensures 
that offenders cannot evade registration obligations by moving from one 
state to another. Hence, a state's procedures must require the 
registrant to report his departure to a responsible agency in the 
state, and must provide for prompt notice of the registrant's move by 
an agency in the state to the responsible registration authority in the 
new state of residence. An ``honor system'' approach, under which it is 
left to the registrant to notify the registration authority in the new 
state of residence on his own, does not satisfy the Act's requirements.
    As discussed in part I.D.1 of these guidelines, the Wetterling 
Act's registration requirements ``follow the registrant'' if he moves 
to another state, and any state in which he establishes residence must 
include him in its registration program if registration is still 
required under the Wetterling Act's standards. This includes requiring 
the registrant to continue to register for at least the remainder of 
the Act's minimum ten-year registration period and to register for life 
if he is in a lifetime registration category under subsection (b)(6)(B) 
of the Act. Hence, the state a registrant is leaving is strongly 
encouraged to provide as part of its notice to the new state of 
residence sufficiently detailed information concerning the registrant's 
offenses and status to enable the new state to register him without 
difficulty in the appropriate category and for the appropriate amount 
of time.

[[Page 33703]]

C. Periodic Address Verification

    Subsection (b)(3)(A) requires that state procedures provide for the 
verification of registrants' addresses at least annually. The purpose 
of the requirement of periodic address verification is to ensure that 
the authorities will become aware if a registrant has moved away from 
the registered address and has failed to report the change of address. 
Such procedures are obviously important for effective tracking of sex 
offenders and enforcement of registration requirements.
    As a result of changes made by the CJSA amendments, the particular 
approach to address verification is a matter of state discretion under 
the Act. For example, some states verify addresses by having the 
responsible state or local agency annually send to the registered 
address a nonforwardable address verification form, which the 
registrant is required to sign and return within 10 days or some other 
limited period. This is one means by which states may comply with the 
verification requirement under subsection (b)(3)(A). The legislative 
history of the CJSA amendments to the Act noted other possible 
approaches: ``A review of State sex offender registry laws indicates 
that some States require registrants to appear in person periodically 
at local law enforcement agencies to verify their address (and for such 
purposes as photographing and fingerprinting). Some States assign 
caseworkers to verify periodically that registrants still reside at the 
registered address. These * * * procedures effectively verify 
registrants' location, and impress on registrants that they are under 
observation by the authorities, in addition to making law enforcement 
agencies aware of the presence and identity of registered sex offenders 
in their neighborhoods.'' H.R. Rep. No. 256, 105th Cong., 1st Sess. 17 
(1997).

D. Penalties for Registration Violations

    Subsection (d) provides that a person required to register under a 
state program established pursuant to the Act who knowingly fails to 
register and keep such registration current shall be subject to 
criminal penalties. Accordingly, states that wish to comply with the 
Act must have criminal provisions covering this situation.
    The requirement of criminal penalties for registration violations 
under the Act applies both to a state's own offenders who are required 
to register and to persons convicted in other states who are required 
to register because they have moved into the state to reside.
    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.
    As discussed in part V of these guidelines, the Act as amended by 
the CJSA includes provisions that are designed to promote the 
registration of federal and military offenders and of non-resident 
workers and students. The CJSA amendments did not apply the Act's 
mandatory requirement of criminal penalties under state law for 
registration violations to federal and military offenders who reside in 
the state or to non-resident workers and students. However, Congress 
recognized the desirability of fully incorporating such offenders into 
state registration programs by statute, see H.R. Rep. No. 256, 105th 
Cong., 1st Sess. 18 (1997), and the availability of substantial 
sanctions for registration violations by all types of sex offenders is 
important to realize the Act's objective of a comprehensive, nationwide 
sex offender registration system. Hence, states are strongly encouraged 
to provide criminal penalties for registration violations by all 
offenders within the scope of the Act, regardless of whether the 
registrant is present in the state as a resident, worker, or student, 
and regardless of whether registration is premised on a conviction 
under the law of a state or under federal or military law.

III. Release of Registration Information [September 12, 1997; 
Possible Two-Year Extension]

    Subsection (e) of the Act governs the disclosure of information 
collected under state registration programs.
    This part of the Act derives from the federal Megan's Law amendment 
to the Wetterling Act (Pub. L. No. 104-145, 110 Stat. 1345), which is 
subject to the same deadline for compliance as the original provisions 
of the Act under 42 U.S.C. 14071(g). Hence, the deadline for compliance 
is Sept. 12, 1997, or Sept. 12, 1999, for states which have received a 
two-year extension based on good faith efforts to achieve compliance.
    Paragraph (1) of subsection (e) provides that information collected 
under a state registration program may be disclosed for any purpose 
permitted under the laws of the state. Hence, there is no requirement 
under the Act that registration information be treated as private or 
confidential to any greater extent than the state may wish.
    Paragraph (2) of subsection (e) provides that the state or any 
agency authorized by the state shall release relevant information as 
necessary to protect the public. To comply with this requirement, 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 principal objective of the information release requirement in 
paragraph (2) of subsection (e) 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. Hence, 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 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 Act, 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 registration information limited 
to law enforcement uses for offenders in

[[Page 33704]]

the ``low risk'' level; notice to organizations with a particular 
safety interest (such as schools and other child car entities) for 
``medium risk'' offenders; and notice to neighbors for ``high risk'' 
offenders.
    States also are 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 by which states can comply 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, or by establishing procedures to provide information 
concerning the registration status of identified individuals in 
response to requests by members of the public. 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 these 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.
    A proviso at the end of paragraph (2) of subsection (e) 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) that 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.
    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. However, states are 
encouraged to avoid unnecessarily including information that may 
inadvertently result in the victim's identity becoming known, such as 
identifying a specific familial relationship between the offender and a 
victim who still lives in the area.
    Concerns have been raised that the disclosure of registration 
information to the public under ``community notification'' programs may 
result in criminal acts or other reprisals against registrants. While 
currently available information does not indicate that this has been a 
significant problem under state programs, states are encouraged to 
consider including measures in their programs to minimize any 
possibility of misuse of the information released under the program. 
For example, some states include in their informational notices 
statements that the information is provided only for legitimate 
protective purposes, and that criminal acts against registrants will 
result in prosecution. As a further example, some states provide 
special training for officers responsible for community notification 
and/or hold community meetings in connection with the provision of 
notice to the community concerning a registrant's presence.

IV. Special Registration Requirements Under The Pam Lychner Act for 
Recidivists and Aggravated Offenders [October 2, 1999; Possible 
Two-Year Extension]

    Subsection (b)(6)(B)(i)-(ii) of the Act requires lifetime 
registration for persons in two categories: (1) registrants who have a 
prior conviction for an offense for which registration is required by 
the Act, and (2) registrants who have been convicted of an ``aggravated 
offense.''
    This requirement derives from an amendment to the Wetterling Act 
enacted by the Pam Lychner Act. The time for compliance is accordingly 
that provided in section 10(b) of the Pam Lychner Act--Oct. 2, 1999, 
subject to a possible two-year extension for states making good faith 
efforts to come into compliance.
    Subsection (b)(6)(B)(i) requires lifetime registration for certain 
recidivist. States can comply with this provision by requiring 
offenders to register for life where the following conditions are 
satisfied: (1) the current offense is one for which registration is 
required by the Act--i.e., an offense in the range of offenses 
specified in subsection (a)(3)(A)-(B) or a comparable range of 
offenses, and (2) the offender has a prior conviction for an offense 
for which registration is required by the Act.
    Subsection (b)(6)(B)(ii) requires lifetime registration for persons 
convicted of an ``aggravated offense,'' even on a first conviction. 
``Aggravated offense'' refers to state offenses comparable to 
aggravated sexual abuse as defined in federal law (18 U.S.C. 2241), 
which principally encompasses: (1) engaging in sexual acts involving 
penetration with victims of any age through the use of force or the 
threat of serious violence, and (2) engaging in sexual acts involving 
penetration with victims below the age of 12. Hence, states can comply 
with this provision by requiring lifetime registration for persons 
convicted of the state offenses which cover such conduct.
    A state is not in compliance with subsection (b)(6)(B) (i) or (ii) 
if it has a procedure or authorization for terminating the registration 
of convicted offenders within the scope of these provisions at any 
point in their lifetimes. 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. 
Likewise, if the applicability of the lifetime registration requirement 
is premised on a prior conviction pursuant to subsection (b)(6)(B)(i), 
it become inapplicable if the prior conviction is reversed, vacated, or 
set aside, or if the registrant is pardoned for the prior conviction 
offense.
    The proviso in subsection (b)(6) that registration need not be 
required ``during ensuing periods of incarceration'' applies to 
registrants subject to lifetime registration. Hence, states are not 
required to carry out address registration and verification procedures 
for such registrants during subsequent periods in which the registrant 
is imprisoned or civilly committed. To comply with the Act, a state 
that does waive registration for such registrants during subsequent 
criminal or civil confinement must require that registration resume 
when the registrant is released.

[[Page 33705]]

V. Special Registration Requirements Under The CJSA Amendments Relating 
to Sexually Violent Predators. Federal and Military Offenders, and Non-
Resident Workers and Students [November 25, 2000; Possible Two-Year 
Extension]

    Subsections (a)(2), (a)(3)(C)-(E), (b)(1)(B), and (b)(6)(B)(iii) of 
the Act prescribe heightened registration requirements for persons who 
are determined to be ``sexually violent predators'' under specified 
procedures. These provisions also, however, allow the approval of 
alternative procedures and of alternative measures of comparable or 
greater effectiveness in protecting the public.
    Subsection (b)(7) of the Act requires states, as provided in these 
guidelines, to ensure that procedures are in place to accept 
registration information from (1) residents convicted of a federal 
offense or sentenced by a court martial, and (2) nonresident offenders 
who have crossed into another state in order to work or attend school.
    Because these requirements, in their current form, derive from the 
CJSA, the time for compliance is that provided in section 115(c)(2) of 
the CJSA--Nov. 25, 2000, subject to a possible two-year extension for 
states making good faith efforts to come into compliance.

A. Heightened Sexually Violent Predator Registration or Alternative 
Measures

    1. Heightened sexually violent predator registration. Subparagraphs 
(B)-(E) of subsection (a)(3) contain the Act's definition of ``sexually 
violent predator'' and related definitions. Subparagraph (C) defines 
``sexually violent predator'' to mean a person who has been convicted 
of a sexually violent offense and who suffers from a medical 
abnormality or personality disorder that makes the person likely to 
engage in predatory sexually violent offense. Subparagraph (D) 
essentially defines ``medical 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. The definition of 
``personality disorder'' is a matter of state discretion since the Act 
includes no specification on this point. For example, a state may 
choose to utilize the definition of ``personality disorder'' that 
appears in the Diagnostic and Statistical Manual of Medical Disorders: 
DSM-IV. American Psychiatric Association, Diagnostic and Statistical 
Manual of Medical Disorders (4th ed. 1994). 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.
    A state that wishes to comply with the Act's provisions concerning 
sexually violent predator registration must adopt some approach to 
deciding when a determination will be sought as to whether a particular 
offender is a sexually violent predator. However, the specifics are a 
matter of state discretion. For example, a state might commit the 
decision whether to seek classification of an offender as a sexually 
violent predator to the judgment of 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 when the offender has served a term of 
imprisonment and is about to be released from custody.
    Subparagraphs (A) and (B) of subsection (a)(2) govern the 
procedures for making the sexually violent predator determination. 
Subparagraph (A) states that the determination is to be made by a court 
after considering the recommendation of a board composed of experts in 
the behavior and treatment of sex offenders, victims' rights advocates, 
and representatives of law enforcement agencies. However, subparagraph 
(B) allows the Attorney General to waive these requirements where a 
state has established alternative procedures or legal standards for 
designating a person as a sexually violent predator.
    The waiver authority under subparagraph (B), which was added by the 
CJSA amendments, recognizes that a judicial determination informed by 
the recommendations of a board of mixed composition is not the only 
approach states may validly adopt to secure appropriate input and make 
fair determinations. For example, at a sentencing proceeding or other 
hearing to determine sexually violent predator status, a state might 
provide for input concerning psychological assessment through expert 
testimony; input from the law enforcement perspective through the 
prosecutor's presentation; and input from the perspective of victims 
through allocation or testimony by the victim(s) of the underlying 
sexually violent offense or offenses. Moreover, judicial determinations 
concerning sexually violent predator status are not the only legitimate 
approach since, for example, a state may decide to assign 
responsibility for such determinations to a parole board or other 
administrative agency with adjudicatory functions. Because there are 
many valid approaches that states may devise, the particular approach 
taken to determining whether an offender is a sexually violent predator 
as defined in the Act will be treated as a matter of state discretion 
under the Act.
    For registrants who have been determined to be ``sexually violent 
predators'' under the Act's definitions, the Act prescribes three 
special registration requirements:
    First, subsection (b)(1)(B) provides that the initial registration 
information obtained from a sexually violent predator must include 
``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.'' In 
determining whether offenders have received treatment, the officers 
responsible for obtaining the initial registration information may rely 
on information that is readily available to them, either from existing 
records or the offender, and may comply with the requirement to 
document an offender's treatment history simply by noting that the 
offender received treatment. If states want to require the inclusion of 
more detailed information about offenders' treatment history, however, 
they are free to do so.
    Second, subsection (b)(3)(B) requires quarterly address 
verification for sexually violent predators, as opposed to the annual 
address verification required for registrants generally under 
subsection (b)(3)(A). Part II.C of these guidelines provides a general 
explanation of the Act's address verification requirement.
    Third, subsection (b)(6)(B)(iii) requires lifetime registration for 
sexually violent predators. This requirement is unqualified. While 
language in subsection (a)(1)(B) of the Act alludes to possible 
termination of sexually violent predator status under subsection 
(b)(6)(B), this is a relic of earlier versions of the Act that has no 
referent in the Act's current text following the Pam Lychner Act and 
CJSA amendments.
    Hence, for example, a state is not in compliance with the Act's 
requirements if it allows registration to be terminated for a person 
who has been found to be a sexually violent predator on the basis of a 
later determination that the person is no longer a sexually violent 
predator

[[Page 33706]]

or has been rehabilitated. However, if the underlying conviction for a 
sexually violent offense is reversed, vacated, or set aside, or if the 
registrant is pardoned for the offense, registration (or continued 
registration) as a sexually violent predator is not required under the 
Act. Moreover, the proviso in subsection (b)(6) that registration need 
not be required ``during ensuing periods of incarceration'' applies to 
sexually violent predators. Hence, states are not required to carry out 
address registration and verification procedures when a sexually 
violent predator is subsequently imprisoned or civilly committed. To 
comply with the Act, a state that does waive registration for sexually 
violent predators during subsequent criminal or civil confinement must 
require that registration resume when the registrant is released.
    2. Alternative measures of comparable or greater effectiveness. 
Subparagraph (C) of subsection (a)(2) authorizes the Attorney General 
to approve ``alternative measures of comparable or greater 
effectiveness in protecting the public from unusually dangerous or 
recidivistic sexual offenders in lieu of the specific measures set 
forth in this section regarding sexually violent predators.'' This 
authorization was added by the CJSA, reflecting Congress's recognition 
that few states followed the Act's specific provisions concerning 
sexually violent predators; that it would be difficult for many states 
to do so; and that states can ``incorporate other features into their 
systems which further the objective of protecting the public from 
particularly dangerous sex offenders.'' H.R. Rep. No. 256, 105th Cong., 
1st Sess. 15 (1997).
    The legislative history of the CJSA identified a number of factors 
that would be pertinent to a determination whether a state has adopted 
alternative measures of comparable or greater effectiveness:
States can * * * incorporate other features into their systems which 
further the objective of protecting the public from particularly 
dangerous sex offenders. For example, some State programs have 
registration periods for broadly defined categories of sex offenders 
which are much longer than the basic 10-year registration period under 
the Wetterling Act. This may provide more protection for the public 
than heightened registration requirements limited to a relatively small 
class of offenders who would be classified as sexually violent 
predators. * * * Moreover, some States require civil commitment, 
lifetime supervision, or very long periods of imprisonment for sexually 
violent predators or broader classes of serious sex offenders. 
[Subsection (a)(2)] makes it clear that alternative approaches like 
these can be approved if a State's approach is equally effective or 
more effective in protecting the public from particularly dangerous sex 
offenders.
    H.R. Rep. No. 256 105th Cong., 1st Sess. 15 (1997).
    Hence, for example, the reviewing authority will approve a state 
system as providing alternative measures ``of comparable or greater 
effectiveness'' if the state applies the principal heightened 
registration requirements under the Act's sexually violent predator 
provisons--i.e., lifetime registration and quarterly address 
verification--to a class of offenders that is generally broader than 
``sexually violent predators.'' Since ``sexually violent predators'' 
are, by definition, a subclass of persons convicted of a ``sexually 
violent offense,'' a state has obviously adopted an alternative measure 
of comparable or greater effectiveness if it requires lifetime 
registration and quarterly address verification uniformly for persons 
in the broader class of those convicted of a ``sexually violent 
offense.''
    For states that follow other approaches, the determination whether 
``alternative measures of comparable or greater effectiveness'' have 
been adopted will be made on a case-by-case basis.

B. Federal and Military Offenders: Non-Resident Workers and Students

    Subsection (b)(7) of the Act requires states, as provided in these 
guidelines, to ensure that procedures are in place to accept 
registration information from: (1) residents convicted of federal 
offenses or sentenced by courts martial, and (2) nonresident offenders 
who cross into other states in order to work or attend school.
    This requirement was added to close two gaps in the Wetterling Act 
standards for registration programs. First, Congress was concerned 
about the lack of any provision for registration of persons convicted 
of federal sex offenses--such as those defined in chapters 109A, 110, 
and 117 of title 18, United States Code--and the lack of any provision 
for registration of persons convicted of sexual offenses under the 
Uniform Code of Military Justice while in the armed forces. Second, 
Congress was concerned about the commission of offenses by registered 
offenders at or near their place of work or study, where the local 
authorities are unaware of the offenders' presence in those areas 
because they reside in a different state. The new provisions relating 
to registration of federal and military offenders, and non-resident 
workers and students, were added to address these concerns.
    1. Federal and military offenders. In relation to federal and 
military offenders, states can comply with the new requirement under 
subsection (b)(7) by accepting in their registration programs address 
information from such offenders who reside in the state, where the 
federal convictions or court martial sentence was for a criminal 
offense against a victim who is a minor or a sexually violent offense 
(as defined in the Act).
    Congress did not otherwise make the Act's mandatory standards for 
state registration programs applicable to federal and military 
offenders. Congress, however, did note that ``it would be preferable 
that States fully incorporate federal offenders [and] persons sentenced 
by courts martial * * * into their registration and notification 
programs by statute.'' H.R. Rep. No. 256, 105th Cong., 1st Sess. 18 
(1997). As a practical matter, the presence in a state of a sex 
offender whose whereabouts are unknown to the authorities poses the 
same potential danger to the public, regardless of whether the offender 
was convicted in a state court for a state offense or for a comparable 
offense under federal or military law.
    Hence, as a matter of sound policy, states are strongly encouraged 
to subject federal and military offenders to the full panoply of 
registration requirements and procedures established for state 
offenders, including reporting of subsequent changes of address 
following the initial registration, periodic address verification, 
criminal penalties for registration violations, and release of 
registration information as necessary for protection of the public. 
Some states currently put sex offenders convicted in federal or 
military courts on the same footing as state offenders under their 
registration programs; all states are encouraged to adopt this 
approach.
    States should be aware that the CJSA enacted provisions that impose 
complementary obligations on federal authorities to facilitate state 
registration of federal and military offenders. Specifically, 
provisions in section 115(a)(8) of the CJSA require federal and 
military authorities to notify state and local law enforcement and 
registration agencies concerning the release or subsequent movement to 
their areas of federal and military sex offenders. In addition, under 
amendments in section 115(a)(8) of the CJSA, federal sex

[[Page 33707]]

offenders are required to register in states where they reside, work, 
or attend school as mandatory conditions of probation, parole, and post 
imprisonment supervised release. State and local officers accordingly 
are encouraged to notify federal authorities of any failure by such 
offenders to register, so that appropriate action can be taken with 
respect to their federal release status. States also should be aware 
that section 115 of the CJSA amended the federal failure-to-register 
offense (42 U.S.C. 14072(i)) in order to bring within its scope federal 
and military sex offenders who fail to register.
    2. Non-resident workers and students. Subsection (b)(7)(B) of the 
Act requires states to accept registration information from non-
residents who have come into the state to work or attend school. 
Related provisions appear in subsections (a)(3)(F)-(G) and (c). As 
specified in these provisions, the workers from whom registration 
information must be accepted include those who have any sort of full-
time or part-time employment in the state, with or without 
compensation, for more than 14 days, or for an aggregate period 
exceeding 30 days in a calendar year. The students from whom 
registration information must be accepted include those who are 
enrolled in any type of school in the state on a full-time or part-time 
basis.
    The Act's provisions regarding non-resident workers and students 
sometimes refer to persons who cross into another state ``in order to 
work or attend school'' and sometimes refer to persons who are may be 
in another state where the person ``is employed,'' ``carries on a 
vocation,'' or ``is a student.'' These are merely terminological 
variations; the Act's various references to non-resident workers and 
students all refer to the same classes of persons, as defined above.
    States can comply with the Act's requirement to accept registration 
information from non-resident workers and students by accepting 
registration information from such persons, where the person would be 
required to register in his state of residence under the Act's 
standards. The ``registration information'' the state must accept from 
such a registrant to comply with the Act is, at a minimum, information 
concerning the registrant's place of employment or the school attended 
in the state and his address in his state of residence. States are free 
to accept or require more extensive information if they wish, such as 
information concerning any place of lodging the registrant may have in 
the state for purposes of work or school attendance.
    Congress did not otherwise make the Act's mandatory standards for 
state registration programs applicable to non-resident workers and 
students, but did note that ``it would be preferable that States fully 
incorporate * * * offenders crossing State borders to work or go to 
school * * * into their registration and notification programs by 
statute.'' H.R. Rep. No. 256, 105th Cong., 1st Sess. 18 (1997). States 
are encouraged to include measures in their registration systems that 
will ensure effective registration of non-resident workers and 
students, including provision of criminal penalties under state law for 
such offenders who fail to register and release of registration 
information concerning such offenders as necessary for public safety. 
States also should be aware that section 115 of the CJSA amended the 
federal failure-to-register offense (42 U.S.C. 14072(i)) in order to 
bring within its scope non-resident workers and students who fail to 
register.
    In addition to requiring states to accept registration information 
from non-resident workers and students, the CJSA amendments added, as 
part of subsection (b)(1)(A)(iii), a requirement to inform a registrant 
in the initial registration process that he must register in a state 
where he is employed, carries on a vocation, or is a student. As 
discussed in Part II.A of these guidelines, subsection (b)(1)(A) of the 
Act has always required that offenders be informed of the general duty 
to register, of the duty to report subsequent changes of address, and 
of the duty to register in any state of residence. States can readily 
supplement their procedures for informing offenders of registration 
obligations to include the information that the offender also must 
register in any state where he is employed, carries on a vocation, or 
is a student.

VI. Participation in The National Sex Offender Registry [November 
25, 2000; Possible Two-Year Extension]

    Subsection (b)(2)(B) of the Act requires states to ``participate in 
the national database established under section 14072(b)''--i.e., the 
National Sex Offender Registry (NSOR)--``in accordance with guidelines 
issued by the Attorney General, including transmission of current 
address information and other information on registrants to the extent 
provided by the guidelines.''
    This requirement derives from the amendment of the Wetterling Act 
by section 115(a)(2)(B) of CJSA. The time for compliance is accordingly 
that provided in section 115(c)(2) of CJSA--Nov. 25, 2000, subject to a 
possible two-year extension for states making good faith efforts to 
come into compliance. At the present time, many states are already 
participating in NSOR, and the remainder are strongly encouraged to do 
so as promptly as possible.
    States should be aware that participation in NSOR is a condition 
for determining that a state has a ``minimally sufficient'' sex 
offender registration program as defined in 42 U.S.C. 14072(a)(3). 
Pursuant to section 115(a)(7) of the CJSA, states have until October 2, 
1999, to establish ``minimally sufficient'' programs (subject to a 
possible two-year extension for states making good faith efforts). In 
states that have not established ``minimally sufficient'' programs by 
that time, the FBI will be required to directly register sex offenders 
convicted in the state, and there will be correlative responsibilities 
on such states to facilitate FBI registration of their sex offenders as 
provided in 42 U.S.C. 14072(h)(1) and (k). Hence, the failure of a 
state to participate in NSOR by October 2, 1999, may result in 
otherwise avoidable federal intervention in sex offender registration 
in the state.
    States should also be aware that under the National Sex Offender 
Registry Assistance Program (NSOR-AP), funding is available from the 
Bureau of Justice Statistics of the United States Department of Justice 
to facilitate state participation in NSOR and upgrade state sex 
offender registries. States desiring additional information concerning 
this funding program should contact the Bureau of Justice Statistics.
    In accordance with 42 U.S.C. 14072(b), the FBI has established an 
interim version of NSOR (the ``Interim Registry'') to track the 
whereabouts and movement of persons required to register under sex 
offender registration programs. The Interim Registry functions as a 
``pointer'' system, indicating on an individual's FBI Identification 
Record the fact that the individual is a registered sex offender and 
the name and location of the state agency that maintains the offender's 
registration information.
    The FBI will be issuing regulations concerning state participation 
in NSOR. To participate in NSOR under current procedures, states must 
submit the following information on registrants to the FBI: the name 
under which the person is registered; the registering agency's name and 
location; the date of registration; and the date registration expires. 
Upon the submission of this information, a notice indicating that an 
individual is a registered sex offender and listing the information 
will be

[[Page 33708]]

included on the individual's FBI Identification Record.
    The FBI is in the process of modifying the National Crime 
Information Center (NCIC) to establish a new crime information system 
which will be known as ``NCIC 2000.'' NCIC 2000, which is expected to 
go on-line in mid-1999, will include a Convicted Sexual Offender 
Registry File that will serve as the permanent National Sex Offender 
Registry (the ``Permanent Registry''). In the Permanent Registry, sex 
offender registration information will be entered directly into the 
NCIC Convicted Sexual Offender Registry File, via the NCIC 
communication circuit, and will include such information as the 
offender's name and address and details regarding the conviction 
resulting in registration. States will receive further guidance 
concerning participation in the Permanent Registry through future 
modifications of regulations and guidelines.

VII. Good Faith Immunity [Available to States Immediately]

    Subsection (f) states that law enforcement agencies, employees of 
law enforcement agencies, independent contractors acting at the 
direction of such agencies, and state officials shall be immune from 
liability for good faith conduct under the Act, Inclusion of this 
provision in the Act was necessary to protect state actors and 
contractors involved in registration and notification programs for 
unwarranted exposure to liability, since the states cannot legislate 
immunities to liability under federal causes of action. This part of 
the Act does not impose any requirement on states and the character of 
state law provisions regarding the scope of immunity or liability will 
not be considered in the compliance review under the Act.

VIII. Compliance Review; Consequences of Non-Compliance

    The time states have to comply with the Act's requirements depends 
on the legislation from which the requirements derive, as specified in 
these guidelines. Thus, the initial deadline for complying with 
requirements derived from the Wetterling Act as originally enacted or 
from Megan's Law was September 12, 1997, and the deadline is now 
September 12, 1999, for states that have received a two-year extension 
based on good faith efforts to achieve compliance. Requirements 
deriving from the Pam Lychner Act must be complied with by October 2, 
1999, subject to a possible two-year extension for states making good 
faith efforts to comply. Requirements deriving from the CJSA must be 
complied with by November 25, 2000, subject to a possible two-year 
extension for states making good faith efforts to comply.
    These deadlines set outer limits for state compliance to avoid a 
reduction of Byrne Formula Grant funding. States are strongly 
encouraged to attempt to achieve compliance with all parts of the Act 
as quickly as possible to maximize the benefits of the Act's reforms.
    States that fail to come into compliance within the specified time 
periods 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. If a 
state's funding has been reduced because it has failed to comply with 
the Act's requirements by an applicable deadline, the state may regain 
eligibility for full funding in later program years by establishing 
compliance with all applicable requirements of the Act in such later 
years.
    States are encouraged to submit information concerning existing and 
proposed sex offender registration provisions to the Bureau of Justice 
Assistance with as much lead-time as possible. This will enable the 
reviewing authority to assess the status of state compliance with the 
Act and to suggest any necessary changes to achieve compliance before 
the funding reduction goes into effect. At the latest, state 
submissions must be provided on the following timetable:
    To maintain eligiblity for full Byrne Formula Grant funding 
following September 12, 1999--the end of the implementation period for 
the Act's original requirements and Megan's Law, for states that have 
received the two-year ``good faith'' extension--such states must submit 
to the Bureau of Justice Assistance by July 12, 1999, information that 
shows compliance, in the reviewing authority's judgment, with the 
requirements described in parts I, II, and III of these guidelines.
    To maintain eligibility for full Byrne Formula Grant funding 
following October 2, 1999--the end of the implementation period for the 
Pam Lychner Act requirements, absent an extension--states must submit 
to the Bureau of Justice Assistance by July 12, 1999, information that 
shows compliance, in the reviewing authority's judgment, with the 
requirements described in part IV of these guidelines, or a written 
explanation of why compliance cannot be achieved within that period and 
a description of the good faith efforts that justify an extension of 
time (but not more than two years) for achieving compliance.
    To maintain eligibility for full Byrne Grant funding following 
November 25, 2000--the end of the implementation period for the CJSA 
requirements, absent an extension--states must submit to the Bureau of 
Justice Assistance by September 25, 2000, information that shows 
compliance, in the reviewing authority's judgment, with the 
requirements described in the parts V and VI of these guidelines, or a 
written explanation of why compliance cannot be achieved within that 
period and a description of the good faith efforts that justify an 
extension of time (but not more than two years) for achieving 
compliance.
    After the reviewing authority has determined that a state is in 
compliance with the Act, the state will be required as part of the 
Byrne Formula Grant application process in subsequent program years to 
certify that the state remains in compliance with the Act.

    Dated: June 13, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-16391 Filed 6-18-98; 8:45 am]
BILLING CODE 4410-BB-M