The federal government issued proposed regulations to the Sex Offender Registration and Notification Act (SORNA) last month that, if adopted, would create uncertainty in the lives of registrants throughout the country. That is due, in part, to requirements upon individuals that require state action which states may or may not be willing to take. For example, individuals in many states are currently required to register only once a year, however, the proposed regulations would require some of the same individuals to register four times a year. If a state refuses to register individuals four times a year, those individuals could be subject to federal prosecution and a federal prison sentence up to 10 years.
Below is a brief description of topics addressed by the proposed regulations which may or may not be different than an individual’s current registration requirements. The federal regulations, if adopted, would provide the minimum requirements for registrants and would allow state governments to add additional registration requirements.
ACSOL is leading a group of legal professionals from several states that will provide a substantive reply, including legal challenges, to many of the proposed SORNA regulations. The group is meeting on a weekly basis and plans to file a joint reply to the federal government no later than the deadline of October 13, 2020.
Federal law, that is SORNA, will apply to all individuals convicted of a sex offense regardless of when the offense occurred and whether the state where the offense occurred has implemented SORNA. There are currently only 17 of 50 states that have implemented SORNA.
A registrant must register in every jurisdiction where he/she resides, is employed, and/or registers as a student. Registrants must also initially register in the jurisdiction where he/she was convicted.
Individuals assigned to Tier 1 must register for 15 years, however, that period of time can be reduced to 10 years if he/she has a clean record. Individuals assigned to Tier 2 must register for 25 years. Individuals assigned to Tier 3 must register for life unless an exception applies and then registration is limited to 25 years. Individuals must begin to register upon release from custody or upon sentencing. Individuals will be assigned to tiers by the federal government, not by state governments, despite the fact that all registries are operate by state governments, not the federal government.
Registrants must reveal their name, date of birth, social security number and all aliases when they register. In addition, registrants must disclosed “remote communication identifiers” used on the internet or in telephonic communications or postings, including email addresses and telephone numbers. Registrants must identify their residence address, name and address of employer, name and address of place where registrant will be a students, specific information regarding international travel as well as vehicle information for cars, watercraft and aircraft owned or operated by the registrant. Further, registrants must notify local law enforcement if they stay away from their residence for 7 days or longer even if staying in the same town and/or state as well as disclose information regarding any passports or immigration documents issued by other countries.
Registrants must register before release from custody or within 3 business days after sentencing. When registering, registrants must allow the registering agency to take their photograph, to verify information in the registry, to correct information that has changed, and to report any new information. Registrants assigned to Tier 1 must register once a year. Registrants assigned to Tier 2 must register twice a year. Registrants assigned to Tier 3 must register four times a year. If a registrant changes his/her name, residence, employment or school, he/she must register in the new jurisdiction within 3 business days. In addition, registrants must notify their current registration office if they intend to establish residence, employment or school prior to their departure. Registrants must report their intention to travel or to move overseas at least 21 days prior to departure.
If a registrant knowingly fails to register or update his/her information in accordance with the provisions above, he/she may be liable under federal law for failure to register. The penalty for failure to register is up to 10 years in federal prison. If charged with failure to register, a registrant may assert one or more of the following affirmative defenses: uncontrollable circumstances prevented compliance with SORNA, the registrant did not contribute to the creation of those circumstances and the registrant complied with SORNA as soon as circumstances preventing compliance ceased to exist. In addition, SORNA compliance shall be a condition of federal probation, supervised release, or parole and failure to comply with SORNA shall be basis for revocation of release from custody.