[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Notices]
[Pages 50552-50558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18106]



[[Page 50552]]

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DEPARTMENT OF JUSTICE

[Docket No. OAG 151; AG Order No. 3714-2016]
RIN 1121-AA87


Office of the Attorney General; Supplemental Guidelines for 
Juvenile Registration Under the Sex Offender Registration and 
Notification Act

AGENCY: Department of Justice.

ACTION: Final guidelines.

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SUMMARY: The Sex Offender Registration and Notification Act (``SORNA'') 
requires registration of individuals convicted of sex offenses as 
adults and, in addition, registration of juveniles adjudicated 
delinquent for certain serious sex offenses. SORNA also provides for a 
reduction of justice assistance funding to eligible jurisdictions that 
fail to ``substantially implement'' SORNA's requirements, including the 
juvenile registration requirement, in their sex offender registration 
programs. These guidelines provide guidance regarding the substantial 
implementation of the juvenile registration requirement by eligible 
jurisdictions. The Justice Department's Office of Sex Offender 
Sentencing, Monitoring, Apprehending, Registering, and Tracking will 
examine the following factors when assessing whether a jurisdiction has 
substantially implemented SORNA's juvenile registration provisions: 
policies and practices to prosecute as adults juveniles who commit 
serious sex offenses; policies and practices to register juveniles 
adjudicated delinquent for serious sex offenses; and other policies and 
practices to identify, track, monitor, or manage juveniles adjudicated 
delinquent for serious sex offenses who are in the community and to 
ensure that the records of their identities and sex offenses are 
available as needed for public safety purposes. By affording 
jurisdictions greater flexibility in their efforts to substantially 
implement SORNA's juvenile registration requirement, the guidelines 
will further SORNA's public safety objectives in relation to serious 
juvenile sex offenders and facilitate jurisdictions' substantial 
implementation of all aspects of SORNA. The guidelines concern only 
substantial implementation of SORNA's juvenile registration requirement 
and do not affect substantial implementation of SORNA's registration 
requirements for individuals convicted of sex offenses as adults.

DATES: Effective Date: August 1, 2016.

FOR FURTHER INFORMATION CONTACT: Luis C.deBaca, Director, Office of Sex 
Offender Sentencing, Monitoring, Apprehending, Registering, and 
Tracking; Office of Justice Programs, United States Department of 
Justice, Washington, DC, (202) 514-4689.

SUPPLEMENTARY INFORMATION:

Background

    The Sex Offender Registration and Notification Act (``SORNA''), 
title I of the Adam Walsh Child Protection and Safety Act of 2006, 
Public Law 109-248, was enacted on July 27, 2006. SORNA (42 U.S.C. 
16901 et seq.) establishes minimum national standards for sex offender 
registration and notification in the jurisdictions to which it applies. 
``Jurisdictions'' in the relevant sense are the 50 states, the District 
of Columbia, the five principal U.S. territories, and federally 
recognized Indian tribes that satisfy certain criteria. 42 U.S.C. 
16911(10).
    SORNA provides a financial incentive for eligible jurisdictions to 
adopt its standards, by requiring a 10 percent reduction of federal 
justice assistance funding to an eligible jurisdiction if the Attorney 
General determines that the jurisdiction has failed to ``substantially 
implement'' SORNA. 42 U.S.C. 16925(a). SORNA also directs the Attorney 
General to issue guidelines and regulations to interpret and implement 
SORNA. See id. 16912(b). To this end, the Attorney General issued the 
National Guidelines for Sex Offender Registration and Notification 
(``SORNA Guidelines''), 73 FR 38030, on July 2, 2008, and the 
Supplemental Guidelines for Sex Offender Registration and Notification 
(``Supplemental Guidelines''), 76 FR 1630, on January 11, 2011. The 
Justice Department's Office of Sex Offender Sentencing, Monitoring, 
Apprehending, Registering, and Tracking (``SMART Office'') assists all 
jurisdictions in their SORNA implementation efforts and determines 
whether they have substantially implemented SORNA's requirements in 
their registration and notification programs. See 42 U.S.C. 16945; 73 
FR at 38044, 38047-48; 76 FR at 1638-39.
    In addition to requiring registration based on adult convictions 
for sex offenses, SORNA includes as covered ``sex offender[s]'' 
juveniles at least 14 years old who have been adjudicated delinquent 
for particularly serious sex offenses. 42 U.S.C. 16911(1), (8); see id. 
16913 (setting forth registration requirements). In relation to the 
juvenile registration requirement, as in other contexts, the SMART 
Office ``consider[s] on a case-by-case basis whether jurisdictions' 
rules or procedures that do not exactly follow the provisions of SORNA 
. . . `substantially' implement SORNA, assessing whether the departure 
from a SORNA requirement will or will not substantially disserve the 
objectives of the requirement.'' 73 FR at 38048.
    The SORNA Guidelines explained, in particular, that substantial 
implementation of SORNA need not include registration of juveniles 
adjudicated delinquent for certain lesser offenses within the scope of 
SORNA's juvenile registration provisions. The Guidelines stated that 
jurisdictions can achieve substantial implementation if they cover 
offenses by juveniles at least 14 years old that consist of engaging 
(or attempting or conspiring to engage) in a sexual act with another by 
force or the threat of serious violence or by rendering unconscious or 
involuntarily drugging the victim. Id. at 38050. This interpretation of 
substantial implementation addressed concerns about the potential 
registration of juveniles in some circumstances based on consensual 
sexual activity with other juveniles, which is outside the scope of the 
coverage required by the Guidelines. See id. at 38040-41.
    The Supplemental Guidelines included a subsequent change affecting 
the treatment of all persons required to register on the basis of 
juvenile delinquency adjudications. SORNA authorizes the Attorney 
General to create exemptions from SORNA's requirement that information 
about registered sex offenders be made available to the public through 
Web site postings and other means. See 42 U.S.C. 16918(c)(4), 16921(b). 
The Supplemental Guidelines noted that the SORNA Guidelines had 
endeavored to facilitate jurisdictions' compliance with SORNA's 
registration requirement for ``juveniles at least 14 years old who are 
adjudicated delinquent for particularly serious sex offenses,'' but 
that ``resistance by some jurisdictions to public disclosure of 
information about sex offenders in this class has continued to be one 
of the largest impediments to SORNA implementation.'' 76 FR at 1636. 
The Attorney General accordingly exercised his exemption authority ``to 
allow jurisdictions to exempt from public . . . disclosure information 
concerning sex offenders required to register on the basis of juvenile 
delinquency adjudications.'' Id. This exemption did not change the 
requirement that such juveniles be registered and that information 
about them be transmitted or made available ``to the national (non-
public) databases of sex offender information, to law enforcement and 
supervision agencies,

[[Page 50553]]

and to registration authorities in other jurisdictions.'' Id. at 1637.
    Based on additional experience with SORNA implementation, and 
further reflection on the practicalities and effects of juvenile 
registration, the Department of Justice proposed and solicited public 
comment on new supplemental guidelines modifying the approach the SMART 
Office will take in assessing whether a jurisdiction has substantially 
implemented SORNA's juvenile registration requirement; those proposed 
supplemental guidelines were published in the Federal Register on April 
11, 2016, at 81 FR 21397. The public comment period closed on June 10, 
2016. Following consideration of the public comments received, the 
Department of Justice is now finalizing these supplemental guidelines. 
For the reasons explained below, the new guidelines will allow 
consideration of a broader range of measures that may protect the 
public from serious juvenile sex offenders in determining substantial 
implementation.
    While most states provide for registration of some sex offenders 
based on juvenile delinquency adjudications, many do not or do so only 
on a discretionary basis. See SMART Office, SMART Summary: Prosecution, 
Transfer, and Registration of Serious Juvenile Sex Offenders 10-11, 24-
29 (Mar. 2015) (``SMART Juvenile Summary''), www.smart.gov/pdfs/smartjuvenilessum.pdf. Too rigid an approach to implementation of the 
juvenile registration aspect of SORNA, which affects a limited subclass 
of sex offenders, may conflict at a practical level with the objective 
of implementing SORNA's more broadly applicable reforms, which affect 
the whole universe of convicted sex offenders. This occurs when a 
jurisdiction's unwillingness or inability to implement the juvenile 
registration requirement discourages or stymies further efforts to 
implement SORNA generally, because the deficit regarding juvenile 
registration alone precludes approval of the jurisdiction as having 
substantially implemented SORNA. Moreover, the juvenile registration 
requirement is in some respects unique in terms of its scope and 
rationale and the potential for furthering its objectives by other 
means.
    First, juveniles may be subject to prosecution in either of two 
distinct justice systems--the juvenile justice system or the adult 
criminal justice system. The SORNA Guidelines provide that registration 
jurisdictions may substantially implement SORNA's juvenile registration 
requirement by registering persons at least 14 years old at the time of 
the offense who are adjudicated delinquent for an offense amounting to 
rape or its equivalent, or an attempt or conspiracy to commit such an 
offense. See 73 FR at 38041, 38050. Practically all states authorize or 
require adult prosecution for many or all such juveniles. See SMART 
Juvenile Summary 5-9, 16, 19-23. Where juveniles are prosecuted as 
adults, the resulting convictions are treated as adult convictions 
under SORNA, and SORNA's general provisions require the sex offender to 
register. See 73 FR at 38050.
    Consequently, a jurisdiction may advance SORNA's public safety 
goals in relation to serious juvenile sex offenders not only by 
prescribing mandatory registration for those offenders adjudicated 
delinquent, but also by prosecuting such offenders in the adult 
criminal justice system. Consider a jurisdiction that normally subjects 
sex offenders in SORNA's juvenile registration category to adult 
prosecution and conviction, with resulting registration, but that does 
not have mandatory registration for the relatively few offenders in 
this category who are proceeded against in the juvenile justice system. 
With respect to most sex offenders, the jurisdiction protects the 
public through registration at least as effectively as a jurisdiction 
that proceeds against more offenders as juveniles and has mandatory 
registration based on delinquency adjudications, because all 
individuals convicted of qualifying sex offenses as adults are required 
to register. In some respects, a jurisdiction oriented towards adult 
prosecution of the most serious juvenile sex offenders may more 
effectively advance SORNA's public safety objectives, because 
prosecution as an adult also makes available the more substantial 
incarceration and supervision sanctions of the adult criminal justice 
system. But if mandatory juvenile registration is treated as a sine qua 
non of substantial SORNA implementation, that jurisdiction could not be 
approved as having substantially implemented SORNA.
    A second feature unique to juvenile sex offenders is that SORNA 
requires registration only for certain juveniles who are adjudicated 
delinquent for particularly serious sex offenses--that is, sex offenses 
that are ``comparable to or more serious than aggravated sexual abuse'' 
(or attempt or conspiracy to commit such offenses). 42 U.S.C. 16911(8). 
Jurisdictions that allow for discretionary registration of juveniles 
adjudicated delinquent for sex offenses may in practice capture many of 
the juveniles in SORNA's juvenile registration category--especially 
those who pose the most danger to others--in their registration 
schemes. Rather than simply rejecting a jurisdiction's approach to 
juvenile registration for having a discretionary aspect, examination of 
these registration programs as applied would allow the SMART Office to 
determine whether, when considered as part of a jurisdiction's overall 
registration scheme, this variance does or does not substantially 
disserve SORNA's purposes.
    Considering discretionary juvenile registration might appear to be 
inconsistent with the response to public comments accompanying the 
issuance of the SORNA Guidelines, which stated that registration as ``a 
matter of judicial discretion'' is insufficient to substantially 
implement SORNA's juvenile registration requirement. 73 FR at 38038. 
However, that response addressed comments urging that discretionary 
registration should in itself be considered sufficient implementation 
of SORNA's requirements, ``ignor[ing] what SORNA provides on this 
issue, and instead do[ing] something different that the commenters 
believe to be better policy.'' Id. That is not the approach of these 
guidelines, which contemplate that the SMART Office will consider the 
full range of pertinent measures a jurisdiction may adopt, and do not 
assume that simply replacing a mandatory registration requirement with 
a discretionary one achieves in substance what SORNA requires. For 
example, consider a jurisdiction that (i) largely requires registration 
by sex offenders in SORNA's juvenile registration class because those 
offenders are likely to be prosecuted and convicted in the adult 
criminal justice system, (ii) allows registration on a discretionary 
basis for sex offenders who remain in the juvenile justice system, and 
(iii) provides other effective post-release monitoring and 
identification measures for juvenile sex offenders as discussed below. 
In assessing whether such a jurisdiction has substantially implemented 
SORNA's juvenile registration requirement, it is appropriate to take 
into account the jurisdiction's discretionary registration of 
adjudicated delinquents along with other factors, and doing so does not 
conflict with the prior rejection of approaches that ``ignore[] what 
SORNA provides.'' Id.
    A third feature specific to the juvenile context is the prevalence 
of juvenile confidentiality provisions, which can limit the 
availability of information about the identities, locations, and

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criminal histories of juvenile sex offenders. Potential consequences of 
these confidentiality provisions include that (i) law enforcement 
agencies may lack information about certain sex offenders in their 
areas that could, if known, assist in solving new sex crimes and 
apprehending the perpetrators; (ii) sex offenders may be less 
effectively discouraged from engaging in further criminal conduct, 
because the authorities do not know their identities, locations, and 
criminal histories; and (iii) offenders' histories of sexual violence 
or child molestation, which might disqualify them from positions giving 
them control over or access to potential victims (such as childcare 
positions), may not be disclosed through background check systems or 
affirmative notice to appropriate authorities. These confidentiality 
provisions accordingly may negatively affect the achievement of SORNA's 
public safety objectives. See 73 FR at 38044-45, 38060-61. Congress's 
decision to subject certain juvenile sex offenders to SORNA's 
registration requirements was an effort to overcome risks to the public 
posed by juvenile confidentiality requirements that Congress considered 
too broad. See H.R. Rep. No. 109-218, pt. 1, at 25 (2005).
    A jurisdiction that does not implement juvenile registration in the 
exact manner specified in SORNA's juvenile registration provisions may 
nevertheless adopt other measures that address the underlying concerns 
as part of its substantial implementation of SORNA. For example, a 
jurisdiction may have means of monitoring or tracking juvenile sex 
offenders following release, such as extended post-release supervision 
regimes or address-reporting requirements, that may not incorporate all 
aspects of SORNA's registration system, but that may nevertheless help 
law enforcement agencies to identify the sex offenders in their areas 
and the perpetrators of new sex offenses. Confidentiality requirements 
for juvenile records may be appropriately defined and limited so as not 
to conceal risks to potential victims from persons who committed 
serious sex offenses as juveniles.
    In sum, a number of factors are reasonably considered in 
ascertaining whether a jurisdiction has substantially implemented 
SORNA's juvenile registration provisions, which have not been 
articulated or given weight to the same extent under previous 
guidelines. Accordingly, in these guidelines, the Attorney General 
expands the matters that the SMART Office will consider in determining 
substantial implementation of this SORNA requirement. This expansion 
recognizes that jurisdictions may adopt myriad robust measures to 
protect the public from serious juvenile sex offenders, and will help 
to promote and facilitate jurisdictions' substantial implementation of 
all aspects of SORNA.

Summary of Comments on the Proposed Supplemental Guidelines

    Twenty-six comments were received from various agencies, 
organizations, and individuals. A number of the comments were favorable 
to the proposed supplemental guidelines' expansion of the matters that 
the SMART Office will consider in determining whether registration 
jurisdictions have substantially implemented SORNA's juvenile 
registration provisions. Some of the comments urged that the guidelines 
should go further, such as by eliminating all registration of juvenile 
sex offenders. As discussed below, comments of this nature seek actions 
that are beyond the legal authority of the Department of Justice. Such 
comments are not germane to the formulation of these guidelines, which 
explain how the SMART Office will approach the determination whether 
registration jurisdictions have substantially implemented the existing 
juvenile registration requirement under SORNA.
    The specific comments, with their identifying designations on 
www.regulations.gov shown in brackets, are as follows:
    #1. This comment [DOJ-OAG-2016-0004-0005], submitted by 15 
individuals identified as researchers with expertise on juvenile sexual 
offending, contains three specific recommendations for revising these 
guidelines:
    (i) The first recommendation is to remove all requirements for 
registration of youth adjudicated delinquent for sex offenses, based on 
studies the researchers describe as showing that such registration is 
ineffective and has adverse consequences. However, the Attorney General 
has no authority to repeal or amend federal laws by issuing guidelines, 
or to nullify SORNA's juvenile registration provisions in particular. 
See 73 FR at 38036-38, 38040-41, 38050.
    (ii) The second recommendation is to remove all language in these 
guidelines that could encourage waiver of juveniles to adult criminal 
court, based on a study the researchers describe as implying that such 
waiver policies do not improve public safety and are subject to bias. 
However, these guidelines do not encourage prosecution of juveniles as 
adults. Rather, the guidelines (A) recognize that practically all 
states authorize or require adult prosecution for many or all juveniles 
in SORNA's juvenile registration category, and (B) provide that 
policies or practices to prosecute as adults juveniles who commit 
serious sex offenses are appropriately considered in determining 
whether a jurisdiction has substantially implemented SORNA's juvenile 
registration requirement, because adult prosecution may result in 
registration and the availability of adult criminal sanctions.
    (iii) The third recommendation is that language should be included 
in the guidelines supporting the provision of evidence-based treatment 
services to youth adjudicated delinquent of sex offenses and their 
caregivers, based on studies the researchers describe as demonstrating 
the efficacy of treatment. However, the guidelines as drafted already 
give weight to policies and practices to identify, track, monitor, or 
manage juveniles adjudicated delinquent for serious sex offenses--
measures that may include treatment.
    #2. This comment [DOJ-OAG-2016-0004-0020], from two individuals, 
refers to and states support for the recommendations appearing in 
comment #1, discussed above.
    #3. This comment [DOJ-OAG-2016-0004-0022], submitted by the 
National Juvenile Justice Prosecution Center, states that these 
guidelines are a positive development in balancing public safety with 
the developmental nature and special needs of juvenile offenders, 
because they provide a more well-rounded approach to safety and greater 
flexibility.
    #4. This comment [DOJ-OAG-2016-0004-0008], submitted on behalf of 
14 organizations and individuals concerned about the inclusion of youth 
on sex offender registries, includes four specific recommendations and 
the conclusion that ``youth registration should end.'' Many of the 
adverse consequences of juvenile registration asserted by these 
commenters would appear to be related to public disclosure of juvenile 
sex offenders' identities and offenses as opposed to registration per 
se. The Attorney General has already provided in earlier supplemental 
guidelines under SORNA that registration jurisdictions need not 
publicly disclose information about sex offenders required to register 
on the basis of juvenile delinquency adjudications. See 76 FR at 1636-
37. The specific recommendations in this comment are as follows:
    (i) The first recommendation is to hold a full public hearing on 
these guidelines before finalizing them.

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However, a public hearing is not necessary to conclude that the 
measures identified in these guidelines are appropriately considered in 
determining whether jurisdictions have substantially implemented 
SORNA's juvenile registration provisions. The comment does not explain 
what information relevant to the formulation of these guidelines would 
be conveyed in a hearing that has not or could not have been provided 
in the submitted public comments on these guidelines, and does not 
otherwise provide a persuasive reason to refrain from issuing these 
guidelines pending a hearing.
    (ii) The second recommendation is to convene a task force to study 
and recommend best practices for youths charged with sexual offenses. 
However, convening a task force is not necessary to conclude that these 
guidelines' more flexible approach to determining substantial 
implementation is warranted. The comment does not explain what 
information relevant to the formulation of these guidelines would be 
obtained by a task force that has not or could not have been provided 
in the submitted public comments, and does not otherwise provide a 
persuasive reason to refrain from issuing these guidelines pending the 
creation of a task force and completion of its work.
    (iii) The third recommendation is to revise the guidelines to 
explicitly incentivize evidence-based rather than harmful practices, 
such as a policy that eschews juvenile registration but ``ensures that 
every young person adjudicated of a sexual offense undergoes a 
validated evaluation and is placed in risk and needs-based 
programming.'' As noted above, the Attorney General has no authority to 
nullify SORNA's juvenile registration requirement, see 73 FR at 38036-
38, 38040-41, 38050, but in determining whether registration 
jurisdictions have substantially implemented that requirement, the 
guidelines as drafted give weight to policies and practices to 
identify, track, monitor, or manage juveniles adjudicated delinquent 
for serious sex offenses. These policies and practices may include 
evaluation and programming measures like those proposed by these 
commenters. To the extent this recommendation is directed against the 
guidelines' reference to adult prosecution of juvenile sex offenders, 
the response is the same as with comment #1 above. These guidelines do 
not encourage prosecution of juveniles as adults. Rather, the 
guidelines recognize the prevalence of policies and practices of adult 
prosecution of serious juvenile sex offenders, and they treat such 
policies and practices as relevant factors in determining whether a 
jurisdiction has substantially implemented SORNA's juvenile 
registration requirement.
    (iv) The fourth recommendation is to move towards a system that 
reassures states that they will not lose federal justice assistance 
funding if they do not register youth and discourages state policies 
that require youth registration. However, the Attorney General and the 
SMART Office are charged by law with seeking the substantial 
implementation of SORNA by registration jurisdictions, including 
SORNA's juvenile registration provisions. See 42 U.S.C. 16912, 16923-
26, 16945. It is not consistent with this responsibility to assure 
states globally that they will not lose grant funding if they do not 
implement SORNA's juvenile registration requirement or to discourage 
them from implementing that requirement. See 73 FR at 38036-38, 38040-
41, 38050.
    #5. The authors of this comment [DOJ-OAG-2016-0004-0023] identify 
themselves as the parents of a 16-year-old who is currently 
incarcerated in a juvenile facility, and who is subject to lifetime 
inclusion on a sex offender registry, because he had pornographic 
pictures on his phone. The commenters express concern that this will 
ruin his life, including preventing him from being in a high school 
graduation ceremony or attending college. The concerns expressed in the 
comment relate to actions taken pursuant to state law and do not weigh 
against issuing guidelines that afford greater flexibility in 
determining substantial implementation of SORNA's juvenile registration 
provisions. SORNA itself does not require registration based on 
juvenile adjudications for pornography offenses like that described in 
this comment. In terms of offense coverage, it suffices for substantial 
implementation of SORNA's juvenile registration requirement if 
jurisdictions require registration of persons at least 14 years old at 
the time of the offense based on delinquency adjudications for offenses 
amounting to rape or its equivalent or an attempt or conspiracy to 
commit such an offense. See 73 FR at 38040-41, 38050. SORNA imposes no 
restrictions on registrants' attending high school or college. The 
Attorney General has provided in previously issued supplemental 
guidelines for SORNA implementation that jurisdictions need not 
publicly disclose information about persons required to register on the 
basis of juvenile delinquency adjudications. See 76 FR at 1636-37.
    #6. This comment [DOJ-OAG-2016-0004-0011], submitted on behalf of 
the Pueblo of Laguna, recommends (i)-(ii) amending state and federal 
law to ensure that youth sex offenders are placed on registries only 
after an individualized assessment, with periodic review of youth sex 
offender registrations, (iii) using youth sex offender registration 
information solely for law enforcement purposes and not disclosing it 
publicly, (iv) creating an impartial body to ensure that all 
registration information is accurate and not misleading and to remove 
youth offenders from registries as soon as registration requirements 
have ended, (v) advising juvenile sexual offense defendants of the 
consequences of a conviction or adjudication, including registration, 
community notification, and residency requirements, (vi) taking account 
of the need to protect the safety of people convicted of sex offenses 
in deciding the method and scope of community notification, and (vii) 
providing training on relevant youth issues to officers involved in the 
investigation of sexual offenses. Regarding (i)-(ii), the Attorney 
General has no legal authority to amend state or federal laws, and in 
particular, cannot nullify SORNA's juvenile registration provisions. 
See 73 FR at 38036-38, 38040-41, 38050. However, these guidelines will 
enable the SMART Office to consider a broader range of measures in 
determining whether registration jurisdictions have substantially 
implemented those provisions. Regarding (iii), (v), and (vi), which 
largely concern community notification, the Attorney General has 
provided in previous SORNA guidelines that registration jurisdictions 
need not publicly disclose information about sex offenders required to 
register on the basis of juvenile delinquency adjudications. See 76 FR 
at 1636-37. Also, regarding (v), SORNA imposes no restrictions on where 
sex offenders may live (``residency requirements''). Regarding (iv)-
(vii) generally, the measures proposed do not conflict with SORNA or 
these guidelines and registration jurisdictions are free to adopt them.
    #7. This comment [DOJ-OAG-2016-0004-0019] states opposition to sex 
offender registration generally, ``for all but high-risk offenders,'' 
and in particular states that the commenter is vehemently against 
registration for persons committing sexual crimes as juveniles. The 
comment does not weigh against issuance of these guidelines, which 
explain how the SMART Office will determine whether registration 
jurisdictions have substantially implemented SORNA's juvenile

[[Page 50556]]

registration provisions, and allow consideration of an expanded range 
of measures in that determination.
    #8. This comment [DOJ-OAG-2016-0004-0012] proposes eliminating 
requirements for juvenile registration and supporting well-delivered 
specialized treatment. However, the Attorney General has no authority 
to eliminate SORNA's juvenile registration provisions. See 73 FR at 
38036-38, 38040-41, 38050. These guidelines give weight to policies and 
practices to identify, track, monitor, or manage juveniles adjudicated 
delinquent for serious sex offenses, measures that may include 
treatment.
    #9. The authors of this comment [DOJ-OAG-2016-0004-0017] identify 
themselves as the parents of a 15-year-old boy who is required to 
register as a sex offender for 10 years, because of a child pornography 
adjudication based on his sending unsolicited photos of his genitalia 
to a female classmate. The commenters express concern about adverse 
effects on their son's life, including limitation of employment 
opportunities and unsupervised association with a younger brother, and 
they reproduce and endorse the recommendations set forth in comment #1. 
Regarding those recommendations, see the discussion of comment #1 
above. The comment otherwise relates to actions taken pursuant to state 
law and does not weigh against issuance of these guidelines, which 
afford greater flexibility in determining substantial implementation of 
SORNA's juvenile registration provisions. SORNA does not require 
registration based on juvenile adjudications for offenses like that 
described in this comment. In terms of offense coverage, it suffices 
for substantial implementation of SORNA's juvenile registration 
requirement if jurisdictions require registration of persons at least 
14 years old at the time of the offense based on delinquency 
adjudications for offenses amounting to rape or its equivalent or an 
attempt or conspiracy to commit such an offense. See 73 FR at 38040-41, 
38050. SORNA imposes no restrictions on registrants' qualification for 
employment or on unsupervised association with younger children. The 
Attorney General has provided in previously issued supplemental 
guidelines for SORNA implementation that jurisdictions need not 
publicly disclose information about persons required to register on the 
basis of juvenile delinquency adjudications. See 76 FR at 1636-37.
    #10. This comment [DOJ-OAG-2016-0004-0004] describes the changes in 
these guidelines as a step in the right direction, but it characterizes 
SORNA as ``misguided'' in relation to juvenile offenders and encourages 
exploration of other methods of sexual abuse prevention that are less 
likely to be counterproductive for juvenile offenders and that are 
focused only on juvenile offenders determined after judicial review to 
be a risk. However, the Attorney General does not have the authority to 
override the legislative judgments embodied in SORNA, including SORNA's 
juvenile registration provisions. See 73 FR at 38036-38, 38040-41, 
38050. The comment also states that a number of statements in these 
guidelines are premised on the assumption that juveniles will sexually 
reoffend, an assumption that the comment says is not supported by 
research. However, these guidelines are not premised on an assumption 
about the extent of re-offense by juvenile sex offenders. Rather, they 
explain how the SMART Office will determine whether registration 
jurisdictions have substantially implemented SORNA's juvenile 
registration provisions and allow consideration of an expanded range of 
measures in making that determination. Finally, the comment includes a 
technical suggestion that a definition of ``sexual act'' should be 
included in the background information part of these guidelines, right 
after the term is used. The preamble cross-references the original 
SORNA Guidelines, 73 FR at 38050, which provide the relevant definition 
of ``sexual act''. The comment does not provide a reason why the 
definition of this term should be reproduced in these supplemental 
guidelines.
    #11. This comment [DOJ-OAG-2016-0004-0024], submitted on behalf of 
Human Rights Watch, recommends deleting two of the three specific 
factors these guidelines give weight to--policies and practices to 
prosecute as adults juveniles who commit serious sex offenses, and 
policies and practices to register juveniles adjudicated delinquent for 
serious sex offenses. In support of this recommendation, the comment 
argues that adult prosecution of juveniles and registration of 
juveniles have various adverse effects on juveniles. However, the 
comment provides no persuasive reason why the guidelines should not 
give weight to these factors. In determining whether registration 
jurisdictions have substantially implemented SORNA's juvenile 
registration requirement, policies and practices of adult prosecution 
of serious juvenile sex offenders may be relevant because they may 
result in registration and the availability of adult criminal 
sanctions, and policies and practices of registering juvenile sex 
offenders may be relevant because, even if discretionary, they may in 
practice capture many of the juveniles in SORNA's juvenile registration 
category in the jurisdiction's registration scheme.
    #12. This comment [DOJ-OAG-2016-0004-0015], submitted on behalf of 
the National District Attorneys Association, views the guidelines 
favorably as providing states with flexibility to comply with SORNA and 
protect community safety while maintaining the integrity of their 
juvenile justice systems.
    #13. This comment [DOJ-OAG-2016-0004-0026], submitted on behalf of 
the Lambda Legal Defense and Education Fund, joins in the 
recommendations of comment #4. The comment particularizes some of the 
recommendations of comment #4 to reference specifically LGBTQ youth and 
it asserts that criminal prosecution and punishment and registration 
for sex offenses operate more harshly against LGBTQ youth. The response 
to this comment is essentially the same as the response to comment #4.
    #14. This comment [DOJ-OAG-2016-0004-0016], submitted on behalf of 
the Association for the Treatment of Sexual Abusers, generally 
criticizes juvenile registration and adult prosecution of juveniles, 
states support for giving jurisdictions greater discretion whether to 
register children adjudicated for sexual crimes, thanks the SMART 
Office for its continued efforts in developing a more responsive and 
nuanced policy, and provides four specific recommendations:
    (i) The first recommendation is to develop appropriate assessments 
taking account of a youth's clinical, family, and environmental 
situation to formulate effective, individualized treatment and 
management plans for youth. However, the guidelines as drafted give 
weight to policies and practices to identify, track, monitor, or manage 
juveniles adjudicated delinquent for serious sex offenses, which may 
include the measures described in this comment.
    (ii) The second recommendation is to remove requirements for broad-
based youth registration and notification. However, SORNA itself 
requires registration by certain juveniles adjudicated delinquent for 
serious sex offenses. The Attorney General has no authority to change 
what SORNA provides. These guidelines are responsive to the concerns 
expressed in this comment, within the bounds of the law, in allowing 
consideration of a broader range of measures in

[[Page 50557]]

determining whether jurisdictions have substantially implemented 
SORNA's juvenile registration requirement. The Attorney General has 
already provided in earlier guidelines under SORNA that registration 
jurisdictions need not engage in public notification regarding 
juveniles required to register on the basis of delinquency 
adjudications. See 76 FR at 1636-37.
    (iii) The third recommendation is to include language that supports 
the use of evidence-based treatment and management strategies for 
youth. However, the guidelines as drafted already give weight to 
policies and practices to identify, track, monitor, or manage juveniles 
adjudicated delinquent for serious sex offenses, which may include 
evidence-based treatment and management strategies.
    (iv) The fourth recommendation is to remove language that promotes 
the waiver of youth to adult courts. The response to comment #1 
includes discussion of this issue.
    #15. This comment [DOJ-OAG-2016-0004-0021], submitted on behalf of 
Stop It Now!, supports the recommendations appearing in comment #1. 
Those recommendations are discussed above in connection with comment 
#1.
    #16. The author of this comment [DOJ-OAG-2016-0004-0010] criticizes 
the sex offender registration system of his state as adversely 
impacting juveniles. The comment asks for a direction to the 50 states, 
the District of Columbia, and the territories to create a process to 
remove all their registered sex offenders who were convicted when 
juveniles from every registry by January 2018 and to stop adding new 
juveniles immediately. The Attorney General has no legal authority to 
issue such a direction to registration jurisdictions.
    #17. This comment [DOJ-OAG-2016-0004-0006], submitted on behalf of 
the Annie E. Casey Foundation, refers to the letter discussed as 
comment #1 above, states concerns and recommendations similar to those 
appearing in that letter, and particularly emphasizes the commenter's 
concern about prosecution of juveniles as adults. The response to 
comment #1 discusses these matters.
    #18. This comment [DOJ-OAG-2016-0004-0014], submitted by the 
Attorney General of Alaska, (i) endorses the more flexible approach of 
these guidelines to determining substantial implementation of SORNA's 
juvenile registration provisions, (ii) notes that the SMART Office has 
previously found that Alaska was not compliant with SORNA's juvenile 
registration requirement, and (iii) provides information about Alaska's 
system in support of a different conclusion under the new guidelines. 
Following the issuance of these guidelines, the SMART Office will 
entertain requests for substantial implementation determinations 
regarding juvenile registration in conformity with the new guidelines, 
including requests from jurisdictions previously subject to negative 
determinations under the pre-existing substantial implementation 
standards.
    #19. The author of this comment [DOJ-OAG-2016-0004-0018] identifies 
himself or herself as the parent of a son adjudicated for distributing 
child pornography, based on sending pictures of himself to a classmate 
he had a crush on when he was 14. The comment states that the son will 
have to register as a sex offender for at least 10 years as a result, 
and that he now cannot attend the high school he attended over the last 
year or other schools in the area. The comment urges that a child 
should not be labeled a sex offender for sending a picture of himself 
to a friend. The response to this comment is essentially the same as 
the response to comments #5 and #9 above. The concerns expressed in the 
comment relate to actions taken pursuant to state law and do not weigh 
against issuing guidelines that afford greater flexibility in 
determining substantial implementation of SORNA's juvenile registration 
provisions. SORNA does not require registration based on juvenile 
adjudications for offenses like that described in the comment, does not 
restrict where juvenile sex offenders may go to school, and does not 
require public disclosure of identity or other information for 
juveniles required to register on the basis of delinquency 
adjudications.
    #20. This comment [DOJ-OAG-2016-0004-0003] recommends that the 
SMART Office seek a change in the law so that states cannot publicly 
post information about juvenile registrants on Web sites unless the 
registrants are tried and convicted in adult court. The comment is not 
germane to these guidelines, which are concerned with substantial 
implementation of the juvenile registration requirement under existing 
federal law (SORNA). The Attorney General has already provided in 
earlier guidelines under SORNA that registration jurisdictions need not 
publicly post information about persons required to register on the 
basis of juvenile delinquency adjudications. See 76 FR at 1636-37. The 
comment also suggests that the SMART Office tell states that they will 
be out of compliance and lose 10% of federal funding if they have 
restrictions on where registrants can live. The SMART Office has no 
authority to do so because SORNA contains nothing that either prohibits 
or requires residency restrictions.
    #21. This comment [DOJ-OAG-2016-0004-0007], submitted on behalf of 
the National Criminal Justice Association, states support for these 
guidelines. The comment notes that some states have not yet achieved 
substantial implementation of SORNA because of SORNA's mandatory 
registration requirements for specific juvenile offenses. The comment 
states that by allowing the SMART Office to assess juvenile 
registration in a more holistic manner and to review comprehensively 
relevant state policies and practices, the guidelines ``will go a long 
way in allowing states . . . to achieve substantial implementation with 
the requirements of SORNA . . . in a way that protects community 
safety.'' Noting that many states have fallen short of compliance in 
relation to required registration for adjudicated juveniles, the 
comment describes these guidelines as a welcome clarification about the 
review the SMART Office will undertake in assessing whether a 
jurisdiction has substantially implemented SORNA's juvenile 
registration provisions.
    #22. This comment [DOJ-OAG-2016-0004-0025] criticizes sex offender 
registration for anyone under 20. As explained in the responses to 
other comments, the Attorney General has no authority to change sex 
offender registration laws, and in particular, no authority to 
eliminate SORNA's juvenile registration requirement.
    #23. This comment [DOJ-OAG-2016-0004-0002] includes pictures of an 
apparently injured individual, with text representing that the injuries 
resulted from an attack occasioned by his inclusion on a sex offender 
registry. The comment says that this is what all people labeled as sex 
offenders can expect from their government. The comment is not germane 
to these guidelines, which explain how the SMART Office will determine 
whether registration jurisdictions have substantially implemented 
SORNA's juvenile registration requirement. If the point of the comment 
is to assert a risk of violence against sex offenders resulting from 
public disclosure of their identities, the Attorney General has 
provided in earlier guidelines that jurisdictions need not make such 
disclosure for sex offenders required to register on the basis of 
juvenile delinquency adjudications. See 76 FR at 1636-37.
    #24. This comment [DOJ-OAG-2016-0004-0013], submitted by the 
Secretary of Public Safety and Homeland Security of the State of 
Virginia, states support

[[Page 50558]]

for these guidelines. The comment recounts that Virginia has been 
determined to be out of compliance with SORNA because of state statutes 
that do not automatically require juvenile registration. The comment 
characterizes as a very welcome development the guidelines' provision 
for determining substantial implementation with SORNA based on a more 
comprehensive view of adjudicated juveniles and expresses confidence 
that the new approach will be beneficial to Virginia in reaching 
substantial implementation of SORNA. As noted above in the response to 
a similar comment from the Attorney General of Alaska (#18), the SMART 
Office will entertain requests for substantial implementation 
determinations regarding juvenile registration in conformity with the 
new guidelines, including requests from jurisdictions previously 
subject to negative determinations under the pre-existing substantial 
implementation standards.
    #25. This comment [DOJ-OAG-2016-0004-0009] is submitted on behalf 
of ``Just Kids,'' described as a national coalition made up of legal 
experts, child advocates, juvenile justice policy experts, and victim 
advocates concerned about including youth on sex offender registries. 
The commenters overlap with those submitting comment #4 and the comment 
is similar in substance to comment #4. The response is essentially the 
same as that provided above to comment #4.
    #26. This comment [DOJ-OAG-2016-0004-0027] states that underage 
children should not have to suffer lifelong consequences for a mistake 
and asks for the enactment of a law providing that underage children 
shown to be productive citizens during their rehabilitation can be 
blemish-free later in their adult productive life. The Attorney General 
does not have the authority to enact laws and the comment is not 
germane to the issuance or formulation of guidelines concerned with the 
determination whether registration jurisdictions have substantially 
implemented SORNA's juvenile registration requirement.
    In sum, the public comments received did not provide any persuasive 
reason to change or delay finalization of the proposed guidelines, 
which are finalized here without change.

Supplemental Guidelines for Juvenile Registration Under the Sex 
Offender Registration and Notification Act

    If a jurisdiction does not register juveniles at least 14 years old 
who are adjudicated delinquent for particularly serious sex offenses in 
exact conformity with SORNA's provisions--for example, because the 
jurisdiction uses a discretionary process for determining such 
registration--the SMART Office will examine the following factors when 
assessing whether the jurisdiction has nevertheless substantially 
implemented SORNA's juvenile registration requirements: (i) Policies 
and practices to prosecute as adults juveniles who commit serious sex 
offenses; (ii) policies and practices to register juveniles adjudicated 
delinquent for serious sex offenses; and (iii) other policies and 
practices to identify, track, monitor, or manage juveniles adjudicated 
delinquent for serious sex offenses who are in the community and to 
ensure that the records of their identities and sex offenses are 
available as needed for public safety purposes. Consistent with the 
requirements for other aspects of a jurisdiction's program that do not 
exactly follow SORNA's provisions, a jurisdiction that seeks to rely on 
these factors in establishing substantial implementation must identify 
any departure from SORNA's requirements in its submission to the SMART 
Office and ``explain why the departure from the SORNA requirements 
should not be considered a failure to substantially implement SORNA.'' 
73 FR at 38048. The SMART Office will determine that a jurisdiction 
relying on these factors has substantially implemented SORNA's juvenile 
registration requirement only if it concludes that these factors, in 
conjunction with that jurisdiction's other policies and practices, have 
resulted or will result in the registration, identification, tracking, 
monitoring, or management of juveniles who commit serious sex offenses, 
and in the availability of the identities and sex offenses of such 
juveniles as needed for public safety purposes, in a manner that does 
not substantially disserve SORNA's objectives.

    Dated: July 26, 2016.
Loretta E. Lynch
Attorney General.
[FR Doc. 2016-18106 Filed 7-29-16; 8:45 am]
 BILLING CODE 4410-18-P