Oregon Voices Submits Formal Response to Proposed SORNA Regulations

Oregon Voices, an organization devoted to support and advocacy for individuals and families affected by the sex offender registry, submitted yesterday its formal response to the proposed SORNA regulations issued by the federal government last month. Below is an excerpt from that response and a link is provided after the article to the organization’s full response.

“We commend Oregon Voices for formally responding to the proposed SORNA regulations,” stated ACSOL Executive Director Janice Bellucci.  “ACSOL and its allies will submit its response next week prior to or on the October 13 deadline.”

We wish to comment on the proposed rule changes regarding SORNA. The expansions they describe are not warranted by the evidence, and they will cause chaos in the majority of states who have not fully implemented SORNA.

There are well founded reasons that SORNA has been avoided by the majority of jurisdictions. Thirty-one (31) out of 50 states have made the conscious decision to avoid the pitfalls that come with SORNA. Included among these is that the provisions of SORNA are overbroad, expensive to implement and maintain, and fail to achieve desired safety objectives. Furthermore, there are aspects of SORNA that raise a variety of Constitutional questions, which are by no means settled.

The rule-making states that it “is not innovative in terms of policy.” However, statements throughout the document appear to contain novel ideas that appear to have a potentially great impact on the sovereignty of the various states. We ask for clarification and revision of statements reiterated throughout the document—specifically in relationship to the following claims:

The requirements of SORNA apply to all sex offenders. All sex offenders must comply with all requirements of that Act, regardless of when the conviction of the offense for which registration is required occurred (including if the conviction occurred before the enactment of that Act), regardless of whether a jurisdiction in which registration is required has substantially implemented that Act’s requirements or has implemented any particular requirement of that Act, and regardless of whether any particular requirement or class of sex offenders is mentioned in examples in this regulation or in other regulations or guidelines issued by the Attorney General.

This rulemaking should be reconsidered and revised in several parts:

1.  We request revision and clarification of statements that imply that persons convicted of sexual offenses must register within their respective states as SORNA requires, even when the state has made the decision to avoid substantial SORNA compliance in favor of evidence-based registration and monitoring systems.

2.  The policies and laws of the states of the United States should be respected.  Therefore, persons previously convicted of sexual offenses should be excluded from SORNA compliance, both interstate and intrastate, when the jurisdiction in which that person resides is found to be under any of the following conditions:

a)    where state courts have ruled that SORNA cannot be applied to pre-enactment offenders such as for reasons of prohibition on retroactive punishment or due process violation; or

b)    where the offense is not registerable under that state’s laws; or

c)    when a term of registration has been completed under state law; or

d)    when the person previously registered has been relieved of the duty to register under state law.

3.  There should be no influence exercised over or enforcement of intrastate registration when the jurisdiction has made the decision not to comply or participate in SORNA as iterated in 34 U.S.C. 20911(2)-(4), 20913, 20914(a)(1)-(7), 20915, 20918.

In each of these cases, the sovereignty of the individual states to conduct their own justice system is of paramount importance. Ample law exists in each of the 50 states and territories to require re-registration under the laws and procedures of the state when traveling into that state even if the individual registrant is not required to register in the state of conviction.

In most cases where registrants have been released from the registry due to retroactive punishment issues, the person committed the offense long ago and has not committed any subsequent offense (committing a new offense would pull that person back into the current registry scheme). Re-capturing individuals with ages-old convictions into 25-year or lifetime SORNA registration serves no public safety purpose.

There is no evidence to support any claim that SORNA is a superior system to what is used by states. In fact, there is a much greater body of evidence to show that SORNA is a detriment to successful reintegration through its destabilizing impacts.

Particularly in cases where individuals have been deemed by their jurisdiction to be of insignificant risk, or had long ago convictions, a new focus on pulling them into the SORNA scheme serves no public safety purpose, creates confusing double-standards, and places law-abiding persons at serious risk of prosecution while conducting innocuous activities such as traveling on business or vacation.

Indeed, pulling individuals back into an invasive and arduous sex offender registration scheme creates the real risk of destabilizing individuals who have developed prosocial lifestyles that have a correlation to reduction in recidivism (Hanson, 2018, p.58).

The rulemaking repeatedly indicates a premise that individuals deemed by the Federal Government to be subject to SORNA must comply regardless of whether the jurisdiction in which he/she resides has chosen to become compliant or is otherwise released from duty to register. Thus, the implication is that individuals who cannot register in their respective states are subject to arrest by the federal government but may have an affirmative defense under 18 U.S.C. 2250, subsection (c) of section 2250 that they were unable to register. Such a standard of exposing an individual to prosecution is inherently unfair and destructive to persons who will face prosecution for innocent activities and later need to prove their innocence. By the time this can be done, damage to an individual’s life, reputation and stability has already been done.

The vast majority of states have opted not to implement substantial compliance with SORNA for logical reasons. The heavily burdensome requirements of SORNA are tied to the crime of conviction, and there is no evidence whatsoever that this approach has resulted in any increase in public safety.

Download a PDF of Oregon Voices’ response to William Barr:

Oregon Voices Response Docket No OAG 157-1