[Federal Register Volume 70, Number 49 (Tuesday, March 15, 2005)]
[Notices]
[Pages 12721-12725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5021]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

[Docket No. OAG 107; A.G. Order No. 2760-2005]
RIN 1105-AB08


Guidelines for the PROTECT Act Amendments to the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender Registration Act

AGENCY: Department of Justice.

ACTION: Notice; Proposed guidelines.

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SUMMARY: The United States Department of Justice is publishing Proposed 
Guidelines to implement amendments to the Jacob Wetterling Crimes 
Against Children and Sexually Violent Offender Registration Act enacted 
by the PROTECT Act.

DATES: Comments must be received by May 16, 2005.

ADDRESSES: Comments may be mailed to David J. Karp, Senior Counsel, 
Office of Legal Policy, Room 4509, Main Justice Building, 950 
Pennsylvania Avenue, NW., Washington, DC 20530. Comments may also be 
submitted by the Internet at [email protected]. Electronically 
submitted comments must include Docket No. OAG 107 in the subject box.

SUPPLEMENTARY INFORMATION: Section 170101 of the Violent Crime Control 
and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 2038 
(codified at 42 U.S.C. 14071) contains the Jacob Wetterling Crimes 
Against Children and Sexually Violent Offender Registration Act (the 
``Wetterling Act''). The Wetterling Act provides standards for state 
sex offender registration and community notification programs, and 
directs the Attorney General to issue guidelines for such programs. The 
main set of current Wetterling Act guidelines was published on January 
5, 1999, in the Federal Register (64 FR 572, with corrections at 64 FR 
3590), and a supplementary set of guidelines for the Campus Sex Crimes 
Prevention Act amendment to the Wetterling Act was published on October 
25, 2002, in the Federal Register (67 FR 65598). States that fail to 
comply with the Wetterling Act's standards (as implemented and 
explained in the Attorney General's guidelines) are subject to a 
mandatory 10% reduction of the formula grant funding available 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.
    Subsequent to the publication of the current Wetterling Act 
guidelines, the Wetterling Act was amended by sections 604 and 605 of 
the Prosecutorial Remedies and Other Tools to end the Exploitation of 
Children Today Act of 2003, or PROTECT Act, Pub. L. 108-21, 117 Stat. 
650, 688 (2003). These amendments provide that the means by which a 
State provides information to the public concerning registered sex 
offenders must include an Internet site, and add child pornography 
production and distribution offenses to the list of crimes against 
children for which registration is required under the Wetterling Act's 
standards. Supplementary guidelines are necessary to take account of 
the PROTECT Act amendments to the Wetterling Act.
    Section 604 of the PROTECT Act, relating to Internet sites for sex 
offender information, states that ``[e]ach State shall implement the 
amendment made by this section within 3 years after the date of 
enactment of this Act''--i.e., by April 29, 2006--``except that the 
Attorney General may grant an additional 2 years to a State that is 
making a good faith effort to implement the amendment.'' The amendment 
in section 605 of the PROTECT Act, relating to registration for child 
pornography production and distribution offenses, took effect at the 
time of its enactment, i.e., on April 30, 2003.

Proposed Guidelines

I. Internet Sites for Sex Offender Information

    The community notification provisions of the Wetterling Act that 
predate the PROTECT Act--paragraph (1) and the first sentence of 
paragraph (2) of 42 U.S.C. 14071(e)--have both permissive and mandatory 
aspects. The permissive aspect appears in paragraph (1), which makes it 
clear that the Act

[[Page 12722]]

does not place any ceiling on the states' disclosure of registration 
information. See 64 FR at 581 (``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'').
    The mandatory aspect appears in the first sentence of paragraph 
(2), which generally requires States to release relevant information 
that is necessary to protect the public from registered offenders: 
``The State * * * shall release relevant information that is necessary 
to protect the public concerning a specific person required to register 
under this section * * *.'' 42 U.S.C. 14071(e)(2). This creates a floor 
for the disclosure of registration information--States that wish to 
comply with the Wetterling Act's standards must release, by some means, 
information concerning registered offenders to the public as necessary 
for public safety. Section 604 of the PROTECT Act added a second 
sentence to paragraph (2), which provides that the means used to 
effectuate the required public disclosure of registration information 
must include an Internet site: ``The release of information under this 
paragraph shall include the maintenance of an Internet site containing 
such information that is available to the public and instructions on 
the process for correcting information that a person alleges to be 
erroneous.''
    In greater detail, the pre-existing community notification 
requirement of section 14071(e)(2), and its supplementation by the 
PROTECT Act amendment, are as follows:
    With respect to the first sentence of section 14071(e)(2), the 
Attorney General's guidelines explain that the principal objective 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, 
it is not sufficient to release registration information only to law 
enforcement agencies, to other (public or private) agencies or 
organizations, to prospective employers, or to the victims of 
registrants' offenses. Nor are purely permissive or discretionary 
information release programs sufficient. Rather, the release of 
information concerning registrants to members of the public is required 
as necessary to protect the public, both with respect 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.'' See 64 FR at 
581-82.
    Under the first sentence of section 14071(e)(2), however, 
``[s]tates do * * * 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.'' 64 FR at 582. The guidelines accordingly note that, 
consistent with the Wetterling Act, states may adopt different 
approaches concerning the class or classes of registrants on whom 
information will be made available to the public, and the particular 
means by which the information will be made publicly available. See 64 
FR at 582.
    The amendment enacted by section 604 of the PROTECT Act added a 
second sentence to section 14071(e)(2), which requires that the means 
by which a State releases to the public ``such information''--i.e., 
information concerning ``specific person[s] required to register''--
must include the maintenance of an Internet site that contains this 
information. 42 U.S.C. 14072(e)(2) (as amended). In other words, states 
must protect the public by posting on-line information concerning 
specific registrants that the public can access. Prior to the enactment 
of the PROTECT Act, most States had already established publicly 
accessible Web sites containing information on registered sex 
offenders, and the Supreme Court rejected challenges to the 
constitutionality of State programs including such sites in Connecticut 
Department of Public Safety v. Doe, 538 U.S. 1 (2003), and Smith v. 
Doe, 538 U.S. 84 (2003).
    While the new language added by section 604 of the PROTECT Act 
states that the means of disclosing to the public information 
concerning registered sex offenders ``shall include the maintenance of 
an Internet site,'' 42 U.S.C. 14071(e)(2), it does not otherwise alter 
the general principles of the Wetterling Act's community notification 
provisions. Thus, States retain discretion to make judgments concerning 
the necessary extent of such disclosure for public safety purposes, in 
conformity with the understanding of the pre-existing provision (first 
sentence) in section 14071(e)(2). States accordingly may make judgments 
concerning which class or classes of their registrants will be subject 
to disclosure of information through the Internet, what specific 
information will be included on the site concerning these registrants, 
and the means by which this information can be searched.
    Existing sex offender Web sites show variations on these points, 
which do not create any problem concerning compliance with section 
14071(e)(2) as amended: Some States include information on all (or 
nearly all) of their registrants on the Internet, while others limit 
the registrants subject to Internet disclosure based on risk 
classifications or other criteria. In addition to registrants' names, 
the information included on sex offender Web sites commonly includes 
photographs of registrants, information about registrants' offenses, 
and information about registrants' locations, but states differ on 
particulars. States commonly set up their Web sites to allow searches 
by name and by geographic area (such as zip code), but State-to-State 
variations occur in this area as well. Links to existing state Web 
sites may be found at: http://www.usdoj.gov/criminal/ceos/statesexoffender.html and http://www.fbi.gov/hq/cid/cac/states.htm.
    Beyond the general requirement--appearing already in the first 
sentence of section 14071(e)(2)--that the information included on the 
Internet site must include relevant information necessary to protect 
the public, the new language added by the PROTECT Act requires that the 
site include ``instructions on the process for correcting information 
that a person alleges to be erroneous.'' A State could comply with this 
requirement, for example, by including on its Web site information 
identifying the state agency responsible for correcting erroneous 
information, and advising persons that they can contact this agency if 
they believe that information on the site is erroneous. The language 
added by the PROTECT Act does not attempt to prescribe in any greater 
detail the specific standards or procedures that States will use to 
determine whether information on their sex offender Web sites is 
accurate. These standards and procedures accordingly remain a matter of 
State discretion, subject to compliance with other aspects of the 
Wetterling Act, such as section 14071(b)(3)'s provision for periodic 
verification of address information.
    The first sentence of section 14071(e)(2) provides that the 
identity of the victims of registration offenses is not to be released, 
and this constraint applies to Internet disclosure as well as to 
disclosure through other forms of community notification. The existing 
guidelines explain the meaning and application of this limitation. See 
64 FR at 582 (middle column). Otherwise, the Wetterling Act does not 
impose any ceiling on the release of registration

[[Page 12723]]

information or other information concerning registrants, and no 
compliance problems arise from including more (rather than less) 
information on sex offender Web sites.

II. Registration for Child Pornography Production and Distribution 
Offenses

    Section 14071(a)(3)(A) sets out the list of ``criminal offense[s] 
against a victim who is a minor'' for which registration is required 
under the Wetterling Act's standards. Section 605 of the PROTECT Act 
added to this list a new clause (viii) as follows: ``production or 
distribution of child pornography, as described in section 2251, 2252, 
or 2252A of Title 18.'' The cross-referenced provisions are key 
statutes proscribing conduct related to child pornography in the 
chapter of the federal criminal code entitled ``Sexual Exploitation and 
Other Abuse of Children.''
    The Wetterling Act's standards already encompassed registration for 
child pornography production offenses in some measure prior to the 
PROTECT Act amendment. Specifically, 42 U.S.C. 14071(a)(3)(A)(v) 
referred to ``use of a minor in a sexual performance,'' and the 
Attorney General's guidelines explained that this includes ``both live 
performances and using minors in the production of pornography.'' 64 FR 
at 577. However, there was nothing comparable to the PROTECT Act 
amendment's coverage of child pornography distribution (as opposed to 
production) offenses in the previous Wetterling Act provisions.
    These guidelines interpret the new language relating to child 
pornography production and distribution offenses in section 
14071(a)(3)(viii) to mean that registration is required for offenses 
whose gravamen is: (i) Creating or participating in the creation of 
sexually explicit visual depictions of minors, or (ii) making such 
depictions available to others. In greater detail, the principles 
governing state compliance with this provision are as follows:

A. Coverage Based on Substance Rather Than Terminology

    Under section 14071(a)(3)(viii), States must require registration 
for offenses that substantively cover child pornography production or 
distribution, even if those offenses do not specifically use the words 
``produce'' or ``distribute'' in defining their elements. This 
understanding is consistent with the interpretation of all other 
Wetterling Act offense coverage requirements as relating to substance, 
not terminology. For example, section 14071(a)(3)(A)(i) and (ii) 
generally include in the offense coverage list ``kidnapping of a 
minor'' and ``false imprisonment of a minor.'' This does not mean that 
registration is required only when the statute defining an offense 
explicitly uses the words ``kidnapping'' or ``false imprisonment.'' 
Rather, the Attorney General's guidelines explain: ``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.'' 64 FR at 
577.
    The same principle--offense coverage based on substance rather than 
terminology--applies to the PROTECT Act provision for child pornography 
offenses. For example, if a State has an offense that prohibits 
``selling, transferring, or disseminating'' child pornography, that is 
substantively a distribution offense, and States must require 
registration for persons convicted of such offenses to comply with the 
Wetterling Act's standards.

B. Relationship to the Federal Child Pornography Offenses

    Section 14071(a)(3)(A)(viii) refers to ``production or distribution 
of child pornography, as described in section 2251, 2252, or 2252A of 
Title 18.'' The offense elements in the referenced Federal statutes 
involve some complexity, including complications resulting from their 
intermixture with the statutes' specifications of the grounds 
supporting Federal jurisdiction, and from the related technical 
definitions in 18 U.S.C. 2256. In identifying State offenses for which 
registration is required, it is not sufficient for States to apply the 
exact specifications of these Federal offenses and definitions, and to 
require registration only for State offenses that are defined in the 
same way. Reading section 14071(a)(3)(A)(viii) to require registration 
only for State offenses that are fully congruent with the referenced 
Federal crimes would effectively nullify it, because there are unlikely 
to be any State offenses whose elements exactly mirror all the 
definitional particulars and elements (especially jurisdictional 
elements) of these Federal crimes.
    Section 14071(a)(3)(A)(viii) also cannot properly be understood to 
mean that States need to parse through the underlying facts of 
particular convictions, and to match them up to the elements of the 
referenced Federal crimes to determine whether registration is 
required. The prefatory language in section 14071(a)(3)(A) does not 
require coverage of offense conduct that exactly matches the Federal 
law categories listed in that provision. Rather, it refers to coverage 
of a range of offenses which is ``comparable to'' the listed 
categories. This statutory standard was adopted in part to obviate 
compliance problems resulting from ``the degree of detail in the Act's 
definitions and * * * variations among different jurisdictions in the 
terminology and categorizations used in defining sex offenses.'' 64 FR 
at 578.
    Hence, the interpretation and application of section 14071(a)(3)(A) 
must effectuate the legislative intent to ensure registration for child 
pornography production and distribution offenses in a meaningful way, 
while also respecting the legislative policy to avoid unnecessary 
impediments to State compliance that would result from requiring the 
direct application of detailed Federal law definitions. These 
guidelines implement these policies by providing that a State covers a 
comparable range of offenses with respect to the new clause (viii) if 
it requires registration for the State offenses that are directed 
against substantially the types of production or distribution 
activities addressed in 18 U.S.C. 2251, 2252, or 2252A, even though the 
State's definition of these offenses will not be exactly congruent with 
the corresponding Federal crimes. Considering the nature of the conduct 
proscribed by the referenced Federal crimes, this means that a State 
achieves compliance by requiring registration for all State offenses 
whose gravamen is: (i) Creating or participating in the creation of 
sexually explicit visual depictions of minors, or (ii) making such 
depictions available to others.
    As noted above, production offenses of this type, which involve 
using minors in making pornography, were at least partially included in 
the Wetterling Act's offense coverage categories even before the 
PROTECT Act, as one form of ``use of a minor in a sexual performance'' 
under 42 U.S.C. 14071(a)(3)(A)(v). However, in light of the PROTECT 
Act's addition of an express reference to child pornography production 
offenses, States should review their statutes to ensure that they 
consistently require registration for offenses whose gravamen is 
creating or participating in the creation of sexually explicit visual 
depictions of minors. Federal offenses of this type appear in 18 U.S.C. 
2251(a)-(c).
    With respect to distribution offenses, there are generally two 
sorts of offenses that may satisfy the criterion for coverage under the 
new clause (viii)--i.e., offenses whose gravamen is making

[[Page 12724]]

sexually explicit visual depictions of minors available to others.
    First, the Supreme Court has held that proscribing the distribution 
of sexually explicit visual depictions of actual minors does not 
violate the First Amendment, even if the depictions do not meet the 
general legal definition of obscenity. See Ashcroft v. Free Speech 
Coalition, 535 U.S. 234, 249-50 (2002); New York v. Ferber, 458 U.S. 
747 (1982). An example of a Federal offense of this type appears in 18 
U.S.C. 2252A(a)(3)(B)(ii), which generally proscribes distribution of 
material containing ``a visual depiction of an actual minor engaging in 
sexually explicit conduct.'' States whose laws define comparable 
offenses must require registration by persons convicted of these 
offenses in order to comply with the Wetterling Act's standards 
following the PROTECT Act amendment.
    Second, States may define offenses that specially proscribe or 
punish the distribution of obscene material depicting a minor. An 
example of a Federal offense of this type appears in 18 U.S.C. 
2252A(a)(3)(B)(i), which generally proscribes distribution of material 
containing ``an obscene visual depiction of a minor engaging in 
sexually explicit conduct.'' States whose laws define comparable 
offenses must likewise require registration by persons convicted of 
these offenses in order to comply with the Wetterling Act's standards 
following the PROTECT Act amendment.
    The distribution offenses for which registration must be required 
include offenses that are defined in terms of advertising or otherwise 
offering to provide to others sexually explicit visual depictions of 
minors, as well as offenses defined in terms of the actual transfer of 
such depictions. See 18 U.S.C. 2251(d), 2252A(a)(3)(B) (distribution 
offenses under the Federal statutes defined to include advertisements 
and offers).
    The application of the foregoing principles does not require States 
to undertake further inquiry concerning the underlying facts in cases 
involving offenses whose statutory definitions are not concerned with 
child pornography. For example, if a person is convicted under a 
statute that generally proscribes the distribution of obscene material, 
without distinctions based on the age of the individual or individuals 
portrayed in the material, registration for such a conviction is not 
necessary to satisfy the offense coverage specification of section 
14071(a)(3)(A)(viii), though it may be possible factually that an 
individual portrayed in the material is a minor. Rather, it is 
sufficient if a State requires registration for its statutory offenses 
that are defined in terms of the production or distribution of child 
pornography, as explained above.

C. Coverage of All Relevant Offenses

    If a State has several offenses that satisfy the criteria for 
coverage under 42 U.S.C. 14071(a)(3)(A)(viii), as explained above, it 
must include all of them as registration offenses to comply with the 
Wetterling Act's standards. For example, if a State has a general child 
pornography distribution offense, and a separate offense of 
distributing child pornography through the Internet, a conforming State 
program must include registration by persons convicted of either 
offense.
    This understanding is consistent with the application of the 
Wetterling Act's offense coverage requirements in relation to other 
categories. For example, if a State has a number of offenses of 
soliciting a minor to practice prostitution (section 
14071(a)(3)(A)(vi))--e.g., a general one, and a more specific one 
concerned with solicitation through the Internet--the Wetterling Act's 
standards would not be satisfied unless both were included as 
registration offenses. The same principle applies to offenses that fall 
under section 14071(a)(3)(A)(viii).

D. Production and Distribution Versus Possession

    The Federal child pornography statutes that are cross-referenced in 
42 U.S.C. 14071(a)(3)(A)(viii) include possession offenses--see 18 
U.S.C. 2252(a)(4), 2252A(a)(5)--but section 14071(a)(3)(A)(viii) only 
refers to child pornography ``production or distribution'' as described 
in those statutes. Hence, States do not have to require registration 
for offenses that involve only possession, as opposed to production or 
distribution, of child pornography.

E. A Floor Rather Than a Ceiling for Offense Coverage

    Like the other features of the Wetterling Act, 42 U.S.C. 
14071(a)(3)(A)(viii) is part of a set of minimum standards for State 
sex offender registration programs, and does not limit State discretion 
to prescribe more stringent or extensive registration requirements. 
Hence, for example, though the Act does not require registration for 
child pornography possession offenses, a State may choose to require 
registration for such offenses, as well as for child pornography 
production and distribution offenses. Going beyond the Wetterling Act's 
minimum standards does not adversely affect compliance with the Act's 
standards or eligibility for full Byrne Formula Grant funding.

III. Application of the Requirements

    As with other standards of the Wetterling Act, a State must apply 
the new standards under sections 604 and 605 of the PROTECT Act to 
offenders who are convicted after the State updates its registration 
program to comply with these standards. States are free to apply the 
new standards as well to offenders who were convicted prior to the 
establishment of a conforming registration program, but a State's 
decision on this point does not affect compliance with the Wetterling 
Act. See the Attorney General's guidelines, 64 FR at 575 (middle 
column, third full paragraph).

IV. Procedure for Compliance

    Section 604 of the PROTECT Act, relating to Internet sites for sex 
offender information, provides that each State ``shall implement the 
amendment made by this section within 3 years after the date of 
enactment of this Act, except that the Attorney General may grant an 
additional 2 years to a State that is making a good faith effort to 
implement the amendment made by this section.'' 42 U.S.C. 14071 note. 
Since the PROTECT Act was enacted on April 30, 2003, the compliance 
deadline for States in relation to the establishment of Internet sites 
that comply with the second sentence of section 14071(e)(2) is April 
29, 2006, subject to a possible extension until April 29, 2008, based 
on good faith efforts. Byrne Formula Grant awards to States that are 
not in compliance by the applicable deadline are subject to a mandatory 
10% reduction in light of section 14071(f)(2).
    States are encouraged to submit information concerning existing or 
contemplated Internet sites that comply with section 14071(e)(2) with 
as much lead-time as possible. This will enable the reviewing authority 
to assess the status of State compliance and to suggest any necessary 
changes to achieve compliance before the funding reduction goes into 
effect. At the latest, to maintain eligibility for full Byrne Formula 
Grant funding following April 29, 2006, States must submit to the 
Bureau of Justice Assistance by February 29, 2006, information that 
shows compliance, in the reviewing authority's judgment, with the 
Internet site requirement of section 14071(e)(2), or a written 
explanation of why compliance cannot be achieved within that period and 
a description of the good faith efforts that justify an

[[Page 12725]]

extension of time (but not more than two years) for achieving 
compliance.
    Section 605 of the PROTECT Act, relating to the inclusion of child 
pornography production and distribution offenses as registration 
offenses under section 14071(a)(3)(A), went into effect at the time of 
its enactment on April 30, 2003. Byrne Formula Grant awards to States 
that are not in compliance with this requirement are subject to a 
mandatory 10% reduction in light of section 14071(f)(2). States are 
encouraged to submit information concerning existing or proposed 
provisions that comply with this requirement as soon as possible, if 
they have not already done so, in order to enable the reviewing 
authority to assess the status of State compliance and to suggest any 
necessary changes to achieve compliance.
    In some instances, States have already submitted information 
bearing on their registration program's compliance with the offense 
coverage requirements of section 605 of the PROTECT Act, and the 
reviewing authority may already have reviewed such submissions in order 
to assist the States as promptly as possible, even prior to the 
issuance of formal guidelines. While these earlier reviews must be 
understood as provisional in character, and subject to further review 
under these guidelines as necessary or appropriate, no further 
submission may be needed from States which already provided information 
to the reviewing authority for purposes of review. However, in light of 
the articulation of standards in these guidelines, such States should 
review offense coverage under their existing or proposed registration 
provisions, and should supplement their previous submissions if 
necessary. As noted above, States which have not yet submitted 
information to the reviewing authority bearing on compliance with 
section 605 of the PROTECT Act should do so as soon as possible.
    If a State's Byrne Formula Grant funding is reduced because of a 
failure to comply with the amendments enacted by section 604 or 605 of 
the PROTECT Act, the State may regain eligibility for full funding in 
later program years by establishing compliance with all applicable 
standards of the Wetterling Act in such later years. As noted above, 
the general guidelines for the Wetterling Act were published on January 
5, 1999, and appear at 64 FR 572 (with corrections at 64 FR 3590, 
January 22, 1999), and supplementary guidelines for the Campus Sex 
Crimes Prevention Act amendment to the Wetterling Act were published on 
October 25, 2002, and appear at 67 FR 65598. The PROTECT Act amendments 
which these supplementary guidelines address are only parts of the 
Wetterling Act's standards. To maintain eligibility for full Byrne 
Formula Grant funding, States must comply with all of the Wetterling 
Act's standards.
    After the reviewing authority has determined that a State is in 
compliance with the Wetterling Act, the State has a continuing 
obligation to maintain its system's consistency with the Wetterling 
Act's standards, and 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 Wetterling Act.

    Dated: March 7, 2005.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 05-5021 Filed 3-14-05; 8:45 am]
BILLING CODE 4410-18-P