Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act

DEPARTMENT OF JUSTICE

Office of the Attorney General

[AG Order No. 2014-96]

RIN 1105-AA36

Final Guidelines for the Jacob Wetterling Crimes Against Children

and Sexually Violent Offender Registration Act

agency: Department of Justice.

action: Final guidelines.

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summary: The United States Department of Justice (DOJ) is publishing

Final Guidelines to implement the Jacob Wetterling Crimes Against

Children and Sexually Violent Offender Registration Act.

effective date: April 4, 1996.

for further information contact: Bonnie J. Campbell, Director, Violence

Against Women Office, U.S. Department of Justice, Tenth and

Pennsylvania Avenue, NW, Washington, DC 20530, 202-616-8894.

supplementary information: Section 170101 of the Violent Crime Control

and Law Enforcement Act of 1994, Public Law 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

(hereafter referred to as the ``Jacob Wetterling Act'' or ``the Act'').

The Act provides a financial incentive for states to establish 10-year

registration requirements for persons convicted of certain crimes

against minors and sexually violent offenses, and to establish a more

stringent set of registration requirements for a sub-class of highly

dangerous sex offenders, characterized as ``sexually violent

predators.'' States that fail to establish such systems within three

years (subject to a possible two year extension) face a 10% reduction

in their Byrne Formula Grant funding (under 42 U.S.C. 3756), and

resulting surplus funds will be reallocated to states that are in

compliance with the Act.

Summary of Comments on the Proposed Guidelines

On April 12, 1995, the U.S. Department of Justice published

Proposed Guidelines in the Federal Register (60 FR 18613) to implement

the Jacob Wetterling Act. The original 90 day comment period expired on

July 11, 1995. To ensure the public ample opportunity to review and

comment on the Proposed Guidelines, on September 14, 1995, the

Department published a notice in the Federal Register to reopen the

comment period for an additional 45 days (60 FR 47760). In addition,

the Department mailed copies of the Proposed Guidelines to state

registration authorities and requested their comments. The extended

comment period closed on October 30, 1995.

Following the publication of the Proposed Guidelines, the

Department of Justice received 19 letters, mostly from state officials.

These letters contained numerous comments, questions, and

recommendations, all of which were carefully considered in developing

the Final Guidelines. A summary of the comments and responses to them

are provided in the following paragraphs.

[[Page 15111]]

A. Coverage of the Jacob Wetterling Act

One respondent expressed concern that the Act does not provide for

sex offender registration and notification in relation to military

offenders who are convicted in court martial proceedings, in

prosecutions under the federal criminal code, or in prosecutions by

foreign host nations. In order to extend registration as far as

possible to categories of convicted sex offenders who may not be within

the scope of the statute as presently formulated, the Guidelines have

been revised to encourage states to consider including federal and

military sex offenders within their registration programs.

B. ``Sexually Violent Predator'' Determinations

1. Necessity for Determination

A number of respondents questioned the need for a two-tier

registration system under which states must adopt means for determining

whether an offender is a ``sexually violent predator'' and follow more

stringent registration procedures for offenders so classified. The

Department recognizes that this scheme may require states to make

changes in their existing registration systems. The two-tier scheme was

established by the Act, however, and cannot be modified by the

Guidelines, absent legislative changes. As explained in the Final

Guidelines, a two-tier approach can be dispensed with only if a state

is willing to subject all persons convicted of a ``sexually violent

offense'' to the more stringent registration requirements and standards

provided by the Act for ``sexually violent predators.''

2. State Board of Experts

A number of commenters posed questions about the composition and

activities of the state boards of experts that will assist sentencing

courts in determining whether an offender is a ``sexually violent

predator''. In particular, respondents questioned the necessity for

using such boards, inquired as to what qualification experts must

possess to serve on the boards, and raised concerns about the timing of

the ``sexually violent predator'' determination. One commenter also

expressed concerns about the ability of small states to assemble panels

of experts.

States wishing to comply with the Act must utilize boards of

experts to assist sentencing courts in making ``sexually violent

predator'' determinations because the statue expressly requires this

procedure. The Guidelines have been clarified to address commenters'

other concerns, however. In particular, the Guidelines make clear that

states are free to (1) determine who qualifies as an expert for

purposes of board participation, (2) utilize out-of-state experts, and

(3) decide at what point the ``sexually violent predator''

determination will be made.

3. Definition of ``Sexually Violent Predator''

A number of commenters expressed concerns about the definition of

``sexually violent predator'' and sought various clarifications in the

definition. The Guidelines have not been changed to reflect these

concerns. The Act itself contains definitions of ``sexually violent

predator'' and the component term ``mental abnormality.'' The

Guidelines cannot alter definitions appearing in the statute. Since the

Act does not define the component term ``personality disorder,'' the

Guidelines already provide that the definition of this term is a matter

of state discretion.

4. Required Documentation

One respondent expressed concern about the extent of documentation

required by the Act concerning treatment received by a ``sexually

violent predator'' for a mental abnormality or personality disorder.

The Guidelines have been modified to reflect this concern. Under the

Final Guidelines, states may comply with the requirement to document an

offender's treatment history simply by noting that the offender

received treatment.

The respondent also proposed that the Guidelines clarify that

documentation of treatment history is a one-time event. However, this

change is unnecessary because nothing in the Act or Guidelines states

or suggests that the treatment history of a ``sexually violent

predator'' must be updated following the initial submission of

information.

5. Interaction with Insanity Defense

One respondent raised questions about the possible interaction

between a determination that an offender is a ``sexually violent

predator'' and the insanity defense. The commenter questioned whether a

state may classify an offender as a ``sexually violent predator'' only

when the offender successfully raised an insanity defense, and also

questioned whether a determination that an offender is a ``sexually

violent predator'' could bolster the offender's insanity claim.

The Guidelines have not been revised to reflect these concerns

because there is no relationship between the two legal categories. Of

course, if an offender had successfully raised an insanity defense, he

could not be convicted for the offense charged, and no registration

requirement based on that offense would arise under the Jacob

Wetterling Act. Further, because the elements in the statutory

definition of ``sexually violent predator'' do not establish the

necessary elements of an insanity defense under state laws, a state

could conclude that an offender is a ``sexually violent predator,''

though the offender could not successfully raise an insanity defense.

Finally, with regard to an offender who was classified as a ``sexually

violent predator'' in connection with a previous prosecution and

conviction, the Act does not contemplate any impact from that

determination on the offender's ability to raise an insanity defense in

a later prosecution.

C. State Law Enforcement Agency

1. Designation of Agency

One commenter posed questions concerning how, when, and by whom the

state law enforcement agency responsible for registration matters is to

be designated, and another expressed concerns about the types of

entities that may be selected. The Guidelines have been revised to

clarify that states have discretion with regard to the means by which

an agency is designated as the state law enforcement agency, the timing

of such a designation, and the agencies that may be designated.

2. Necessity for using a State Agency

A number of respondents questioned the necessity for using a state

agency to receive registration information and conduct address

verification. These commenters noted that in several states,

registration and verification is conducted at the county or local

level, rather than at the state level.

The Guidelines have not been revised to reflect these concerns.

Although the Act provides that registration information is to be shared

with local law enforcement agencies, it requires that this information

be submitted to a state law enforcement agency and that the state

agency also conduct address verification. These procedures, which are

set forth clearly in the Act, cannot be modified by the Guidelines,

absent statutory changes.

D. Public Access to Registration Information

One commenter expressed concern about the effect of the Act on a

state's ability to disseminate registration information to the public.

The Guidelines have not been modified to reflect this concern because

they already

[[Page 15112]]

afford states the maximum discretion in this area that is consistent

with the terms of the Act. The Guidelines make it clear that any

restrictions placed by the Act on the disclosure of information do not

constrain the release of information that a state would have

independently of the operation of the registration system. Further, the

Guidelines note and elaborate on the Act's provisions that registration

information may be disclosed for certain law enforcement and background

check purposes, and as necessary for public safety. The Guidelines also

provide that states have discretion concerning the nature and extent of

disclosure (including community notification and access to information

on request by members of the public) that is necessary for public

safety.

E. Compliance Review

One commenter suggested that the Department provide states with

written feedback concerning their compliance with the Act no later than

the date on which a state receives its Byrne Formula Grant Funding.

This recommendation has not been adopted in the Guidelines because the

Department is still in the process of developing compliance review

procedures. States will be notified about these procedures as they are

developed.

Final Guidelines

These guidelines carry out a statutory directive to the Attorney

General, in section 170101)a)(1), to establish guidelines for

registration systems under the Act. Before turning to the specific

provisions of the Act, four general points should be noted concerning

its interpretation and application.

First, states that wish to achieve compliance with the Jacob

Wetterling Act should understand that its requirements constitute a

floor for state registration systems, not a ceiling, and that they do

not risk the loss of part of their Byrne Formula Grant funding by going

beyond its standards. For example, a state may have a registration

system that covers a broader class of sex offenders than those

identified in the Jacob Wetterling Act, or requires address

verification for such offenders at more frequent intervals than the Act

prescribes, or requires offenders to register for a longer period of

time than the period specified in the Act.

Exercising these options creates no problem of compliance, since

the provisions in the Jacob Wetterling Act concerning duration of

registration, covered offenders, and other matters, do not preclude

states from imposing additional or more stringent requirements than

encompass the Act's baseline requirements. The general objective of the

Act is to protect people from child molesters and violent sex offenders

through registration requirements. It is not intended, and does not

have the effect, of making states less free than they were under prior

law to impose registration requirements for this purpose.

Second, states that wish to achieve compliance with the Jacob

Wetterling Act also should understand that they may, within certain

constraints, use their own criminal law definitions in defining

registration requirements, and will not necessarily have to revise

their registration systems to use technical definitions of covered sex

offenses based on federal law. This point will be explained more fully

below.

Third, the Jacob Wetterling Act contemplates the establishment of

programs that will impose registration requirements on offenders who

are subsequently convicted of offenses in the pertinent categories. The

Act does not require states to attempt to identify and impose

registration requirements on offenders who were convicted of offenses

in these categories prior to the establishment of a conforming

registration system. Nevertheless, the Act does not preclude states

from imposing any new registration requirements on offenders convicted

prior to the establishment of the registration system.

Fourth, the Act gives states wide latitude in designing

registration programs that best meet their public safety needs. For

instance, the Act allows states to release relevant information

necessary to protect the public, including information released through

community notification programs. Some state registration and

notification systems have been challenged on constitutional grounds. A

few courts have struck down registration requirements in certain cases.

See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994) (on motion for

preliminary relief); State v. Babin, 637 So.2d 814 (La. App. 1994),

writ denied, 644 So.2d 649 (La. 1994); State v. Payne, 633 So.2d 701

(La. App. 1993), writ denied, 637 So.2d 497 (La. 1994); In re Reed, 663

P.2d 216 (Cal. 1983) (en banc). However, a majority of courts that have

dealt with the issue have held that registration systems like those

contemplated by the Jacob Wetterling Act do not violate released

offenders' constitutional rights.

Some recent decisions have held that aspects of New Jersey's

community notification program violate due process guarantees, or

violate ex post facto guarantees as applied to persons who committed

the covered offense prior to enactment of the notification statute. See

Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J.

1995) (appeal pending); W.P. v. Poritz, No. 96-97 (JWB) (D.N.J. Mar.

15, 1996); Diaz v. Whitman, No. 94-6376 (JWB) (D.N.J. Jan. 6, 1995).

However, the Department of Justice believes that the New Jersey

community notification statute at issue in those cases does not violate

the Ex Post Facto Clause and that the Fourteenth Amendment's Due

Process Clause of its own force does not require recognition of such a

liberty interest on the part of offenders affected by that statute, and

has filed ``friend of the court'' briefs in cases challenging the New

Jersey law. Moreover, the New Jersey Supreme Court, in John Doe v.

Deborah Poritz, 662 A.2d 367 (N.J. 1995), upheld the New Jersey

statute, although it imposed certain procedural protections under

federal and state law.

There has been ongoing litigation over the validity of notification

systems in other states as well. see, e.g., Doe v. Pataki, No. 96 Civ.

1657 (DC) (S.D.N.Y.); Nitz v. Otte, No. A95-486CI (JWS) (D. Alaska Jan.

25, 1996) (appeal pending).

The remainder of these guidelines address the provisions of the

Jacob Wetterling Act in the order in which they appear in Section

170101 of the Violent Crime Control and Law Enforcement Act of 1994.

General Provisions--Subsection (a)(1)-(2)

Paragraph (1) of subsection (a) of Sec. 170101 directs the Attorney

General to establish guidelines for state programs that require:

(A) Current address registration for persons convicted of ``a

criminal offense against a victim who is a minor'' or ``a sexually

violent offense,'' and

(B) Current address registration under a different set of

requirements for persons who are determined to be ``sexually violent

predators.''

For purposes of the Act, ``state'' should be understood to

encompass the political units identified in the provision defining

``state'' for purposes of eligibility for Byrne Formula Grant funding

(42 U.S.C. 3791(a)(2)) in light of the tie-in between compliance with

the Act and the allocation of Byrne Formula Grant funding. Hence, the

``states'' that must comply with the Act to maintain full eligibility

for such funding are the fifty states, the District of Columbia, the

Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam,

and the Northern Mariana Islands.

[[Page 15113]]

Paragraph (2) of subsection (a) states that the determination

whether a person is a ``sexually violent predator'' (which brings the

more stringent registration standards into play), and the determination

that a person is no longer a ``sexually violent predator'' (which

terminates the registration requirement under those standards), shall

be made by the sentencing court after receiving a report by a state

board composed of experts in the field of the behavior and treatment of

sexual offenders.

``State board'' in paragraph (2) should be understood to mean a

body or group containing two or more experts that is authorized by

state law or designated under the authority of state law. Beyond the

requirement that a board must be composed of experts in the field of

the behavior and treatment of sexual offenders, the Act affords states

discretion concerning the selection and composition of such boards. For

example, a state could establish a single permanent board for this

purpose, could establish a system of state-designated boards, or could

authorize the designation of different boards for different courts,

time periods, geographic areas or cases. In addition, the Act permits

states to set their own standards concerning who qualifies as an expert

in the field of the behavior and treatment of sexual offenders for

purposes of board participation, and to utilize qualifying experts from

outside the state to serve on the boards.

As noted above, subsection (a)(1) requires states to register

persons convicted of certain crimes against minors and sexually violent

offenses, but states are free to go beyond the Act's minimum standards

and include other classes of offenders within their sex offender

registration programs. For example, states are encouraged to require

sex offenders convicted in federal or military courts who reside in

their jurisdictions to register. Although the Act does not require

states to register such offenders, the presence of any convicted sex

offender in the state--whether the offender was prosecuted in a state,

federal, or military court--raises similar public safety concerns. Some

states, including Washington and California, already require sex

offenders convicted in federal or military courts to register.

Definition of ``Criminal Offense Against a Victim Who is a Minor''--

Subsection (a)(3)(A)

The Act prescribes a 10-year registration requirement for persons

convicted of a ``criminal offense against a victim who is a minor.''

Subparagraph (A) of paragraph (3) of subsection (a) defines the term

``criminal offense against a victim who is a minor.'' ``Minor'' should

be understood to mean a person below the age of 18, consistent with the

normal understanding.

The specific clauses in the definition of ``criminal offense

against a victim who is a minor'' are as follows:

(1) Clauses (i) and (ii) cover kidnapping of a minor (except by a

parent) and false imprisonment of a minor (except by a parent). All

states have statutes that define offenses--going by such names as

``kidnapping,'' ``criminal restraint,'' or ``false imprisonment''--

whose gravamen is abduction or unlawful restraint of a person. States

can comply with these clauses by requiring registration for persons

convicted of these statutory offenses whose victims were below the age

of 18. The Act does not require inclusion of these offenses in the

registration requirement when the offender is a parent, but states may

choose to require registration for parents who commit these offenses.

(2) Clause (iii) covers offenses consisting of ``criminal sexual

conduct toward a minor.'' Such offenses include convictions under

general provisions defining sexually assaultive crimes--such as

provisions defining crimes of ``rape,'' ``sexual assault,'' or ``sexual

abuse''--in cases where the victim is in fact a minor. Coverage is not

limited to cases where the victim's age is an element of the offense

(such as prosecutions for specially defined child molestation

offenses).

States can comply with clause (iii) by requiring registration for

persons convicted of all statutory sex offenses under state law whose

elements involve physical contact with a victim, where the victim was

below the age of 18 at the time of the offense. Offenses that do not

involve physical contact, such as exhibitionism, are not subject to the

Act's mandatory registration requirements pursuant to clause (iii), but

states are free to require registration for persons convicted of such

offenses as well if they so choose.

(3) Clause (iv) covers offenses consisting of solicitation of a

minor to engage in sexual conduct. This covers any conviction for an

offense involving the solicitation of conduct that would be covered by

clause (iii) if carried out.

(4) Clause (v) covers offenses consisting of using a minor in a

sexual performance. This includes both live performances and using

minors in the production of pornography.

(5) Clause (vi) covers offenses consisting of solicitation of a

minor to practice prostitution.

(6) Clause (vii) covers offenses consisting of any conduct that by

its nature is a sexual offense against a minor. This clause is intended

to insure uniform coverage of convictions under statutes defining sex

offenses in which the status of the victim as a minor is an element of

an offense, such as specially defined child molestation offenses, and

other offenses prohibiting sexual activity with underage persons.

States can comply with this clause by including convictions under these

statutes uniformly in the registration requirement.

(7) Considered in isolation, clause (viii) gives states discretion

whether to require registration for attempts to commit offenses

described in clauses (i) through (vii). However, any verbal command or

attempted persuasion of the victim to engage in sexual conduct would

bring the offense within the scope of the solicitation clause (clause

(iv)), and make it subject to the Act's mandatory registration

requirements. Moreover, this provision must be considered in

conjunction with the Act's requirement of registration for persons

convicted of a ``sexually violent offense,'' which does not allow the

exclusion of attempts if they are otherwise encompassed within the

definition of a ``sexually violent offense.''

Hence, state discretion to exclude attempted sexual offenses

against minors from registration requirements pursuant to clause (viii)

is limited by other provisions of the Act. The simplest approach for

states would be to include attempted sexual assaults on minors (as well

as completed offenses) uniformly as predicates for the registration

requirement.

At the conclusion of the definition of ``criminal offense against a

victim who is a minor,'' the Act states that (for purposes of the

definition) conduct which is criminal only because of the age of the

victim shall not be considered a criminal offense if the perpetrator is

18 years of age or younger. For example, suppose that state law

prohibits sexual relations with a person below the age of 16, where the

defendant is more than 4 years older than the victim. Suppose further

that an 18-year-old is convicted of violating this prohibition by

engaging in consensual sexual relations with a 13-year-old, where the

conduct would not violate state law but for the victim's age. Under the

provision, if a state did not require such an offender to register, the

state would still be in compliance with the Act. However, here again,

states are free to go beyond the Act's baseline requirements. The

exemption of certain offenders based on age from

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the Act's mandatory registration requirements does not bar states from

including such offenders in their registration systems if they wish.

Moreover, the scope of subsection (a)(3)(A)'s exemption is also limited

by other provisions of the Act that require registration of persons

convicted of ``sexually violent offenses'' (as defined in (a)(3)(B)),

with no provision excluding younger offenders where the criminality of

the conduct depends on the victim's age.

Since the Act's registration requirements depend in all

circumstances on conviction of certain types of offenses, states are

not required to mandate registration for juveniles who are adjudicated

delinquent--as opposed to adults convicted of crimes and juveniles

convicted as adults--even if the conduct on which the juvenile

delinquency adjudication is based would constitute an offense giving

rise to a registration requirement if engaged in by an adult. However,

states remain free to require registration for juvenile delinquents,

and the conviction of a juvenile who is prosecuted as an adult does

count as a conviction for purposes of the Act's registration

requirements.

Definition of ``Sexually Violent Offense''--Subsection (a)(3)(B)

The Act prescribes a ten-year registration requirement for

offenders convicted of a ``sexually violent offense,'' as well a for

those convicted of a ``criminal offense against a victim who is a

minor.''

Subparagraph (B) of paragraph (3) defines the term ``sexually

violent offense'' to mean any criminal offense that consists of

aggravated sexual abuse or sexual abuse (as described in sections 2241

and 2242 of title 18, United States Code, or as described in the State

criminal code), or an offense that has as its elements engaging in

physical contact with another person with intent to commit such an

offense. In light of this definition, there are two ways in which a

state could satisfy the requirement of registration for persons

convicted of ``sexually violent offenses'':

First, suppose that a state has offenses in its criminal code that

are designated ``aggravated sexual abuse'' and ``sexual abuse,'' or has

a definitional provision that characterizes certain offenses in its

criminal code (however denominated) as constituting ``aggravated sexual

abuse'' and ``sexual abuse'' for registration purposes or other

purposes. Such a state could comply simply by requiring registration

for all offenders who are convicted of these state offenses, and all

offenders convicted of any state crime that has as its elements

engaging in physical contact with another person with intent to commit

such an offense.

Second, a state could comply by requiring registration for

offenders convicted for criminal conduct that would violate 18 U.S.C.

2241 or section 2242--the federal ``aggravated sexual abuse'' and

``sexual abuse'' offenses--if subject to federal prosecution. (The

second part of the definition in subparagraph (B) of paragraph (3),

relating to physical contact with intent to commit aggravated sexual

abuse or sexual abuse, does not enlarge the class of covered offenses

under the federal law definitions, since sections 2241 and 2242

explicitly encompass attempts as well as completed offenses.)

Specifically, 18 U.S.C. Secs. 2241-42 generally proscribe non-

consensual ``sexual acts'' with anyone, ``sexual acts'' with persons

below the age of 12, and attempts to engage in such conduct. ``Sexual

act'' is generally defined (in 18 U.S.C. 2246(2)) to mean an act

involving any degree of genital or anal penetration, oral-genital or

oral-anal contact, or direct genital touching of a victim below the age

of 16 in certain circumstances even without penetration.

States that elect this second option--requiring registration for

offenses that consist of aggravated sexual abuse or sexual abuse as

defined in federal law provisions (18 U.S.C. 2241-42)--do not

necessarily have to refer to these federal statutes in their

registration provisions, but could alternatively achieve compliance by

requiring registration for the state law offenses that encompass types

of conduct proscribed by 18 U.S.C. 2241-42. Moreover, a state does not

have to have sex offenses whose scope is congruent with 18 U.S.C. 2241-

42 to take the latter approach. If state law does not criminalize some

types of conduct that are covered by 18 U.S.C. 2241-42, then a person

who engages in the conduct will not be subject to prosecution and

conviction under state law, and there will be no basis for a

registration requirement. On the other hand, if state sex offenses are

defined more broadly than 18 U.S.C. 2241-42, then states are free to

require registration for all offenders convicted under these state

provisions (notwithstanding their greater breadth), and this would be

sufficient to ensure coverage of convictions for criminal conduct that

would violate 18 U.S.C. Secs. 2241-42 if subject to federal

prosecution.

Definition of ``Sexually Violent Predator''--Subsection (a)(3)(C)-(E)

Offenders who meet the definition of ``sexually violent predator''

are subject to more stringent registration requirements than other sex

offenders.

(1) Subparagraph (C) defines ``sexually violent predator'' to mean

a person who has been convicted of a sexually violent offense and who

suffers from a mental abnormality or personality disorder that makes

the person likely to engage in predatory sexually violent offenses.

(2) Subparagraph (D) essentially defines ``mental abnormality'' to

mean a condition involving a disposition to commit criminal sexual acts

of such a degree that it makes the person a menace to others. There is

no definition of ``personality disorder'' in the Act; hence, the

definition of this term is a matter of state discretion. For example, a

state may choose to utilize the definition of ``personality disorder''

that appears in the Diagnostic and Statistical Manual of Mental

Disorders: DSM-IV. American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (4th ed. 1994).

(3) Subparagraph (E) defines ``predatory'' to mean an act directed

at a stranger or at a person with whom a relationship has been

established or promoted for the primary purpose of victimization.

As noted earlier, the Act provides that the determination whether

an offender is a ``sexually violent predator'' is to be made by the

sentencing court with the assistance of a board of experts. The Act

does not require, or preclude, that all persons convicted of a sexually

violent offense undergo a determination as to whether they satisfy the

definition of ``sexually violent predator.'' It also does not specify

under what conditions such an inquiry must be undertaken. A state that

wishes to comply with the Act must adopt some approach to this issue,

but the specifics are a matter of state discretion. For example, a

state might provide that the decision whether to seek classification of

an offender as a ``sexually violent predator'' is a matter of judgment

for prosecutors, or might provide that a determination of this question

should be undertaken routinely when a person is convicted of a sexually

violent offense and has a prior history of committing such crimes.

Similarly, the Act affords states discretion with regard to the

timing of the determination whether an offender is a ``sexually violent

predator.'' A sate may, but need not, provide that a determination on

this issue be made at the time of sentencing or as a part of the

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original sentence. It could, for example, be made instead by the

sentencing court when the offender has served a term of imprisonment

and is about to be released from custody. In addition, a determination

whether an offender is a ``sexually violent predator'' need not be made

by the judge who imposed the original sentence, so long as the

determination is made in the same court that imposed the sentence.

As with other features of the Jacob Wetterling Act, the sexually

violent predator provisions only define baseline requirements for

states that wish to maintain eligibility for full Byrne Formula Grant

funding. States are free to impose these more stringent registration

requirements on a broader class of offenders, and may use state law

categories or definitions for that purpose, without contravening the

Jacob Wetterling Act.

If a state chooses to subject all persons convicted of a ``sexually

violent offense'' to the more stringent registration requirements and

standards provided by the Act for ``sexually violent predators,'' then

a particularized determination that an offender is a ``sexually violent

predator'' would have no practical effect and would be superfluous.

Hence, if a state elected this approach, it would not be necessary for

the state to have ``sexually violent predator'' determinations made by

the sentencing court, or to constitute boards of experts to advise the

courts concerning such determinations, prior to the commencement of

registration. In a state that eschewed particularized ``front end''

determinations of ``sexually violent predator'' status in this manner,

however, it would still be necessary to condition termination of the

registration requirement on a determination by sentencing court

(assisted by a board of experts) pursuant to section 170101(b)(6)(B) of

the Act that the person does not suffer from a mental abnormality or

personality disorder that would make the person likely to engage in a

predatory sexually violent offense.

Specifications concerning State Registration Systems under the Act--

Subsection (b)

Paragraph (1) of subsection (b) sets out duties for prison

officials and courts in relation to offenders required to register who

are released from prison, or who are placed on any form of post-

conviction supervised release ``parole, supervised release, or

probation'').

The duties, set out in subparagraph (A) of paragraph (1), include:

(i) informing the person of the duty to register and obtaining the

information required for registration (i.e., address information), (ii)

informing the person that he must give written notice of a new address

within 10 days to a designated state law enforcement agency if he

changes residence, (iii) informing the person that, if he changes

residence to another state, he must inform the registration agency in

the state he is leaving, and must also register the new address with a

designated state law enforcement agency in the new state within 10 days

(if the new state has a registration requirement), (iv) obtaining

fingerprints and a photograph if they have not already been obtained,

and (v) requiring the person to read and sign a form stating that these

requirements have been explained.

Beyond these basic requirements, which apply to all registrants,

subparagraph (B) of paragraph (1) of subsection (b) requires that

additional information be obtained in relation to a person who is

required to register as a ``sexually violent predator.'' The

information that is specifically required under subparagraph (B) is the

name of the person, identifying factors, anticipated future residence,

offense history, and documentation of any treatment received for the

mental abnormality or personality disorder of the person. The Act does

not require that prison officials or courts conduct an investigation to

determine the offender's treatment history. For purposes of documenting

the treatment received, prison officials and courts may rely on

information that is readily available to them, either from existing

records or the offender. In addition, prison officials and courts may

comply with the requirement to document an offender's treatment history

simply by noting that the offender received treatment for a mental

abnormality or personality disorder. If states want to require the

inclusion of more detailed information about the offender's treatment

history, however, they are free to do so.

States that wish to comply with the Act will need to adopt statutes

or administrative provisions to establish the duties specified in

subsection (b)(1) and ensure that they are carried out. These

informational requirements, like other requirements in the Act, only

define minimum standards, and states may require more extensive

information from offenders. For example, the Act does not require that

information be obtained relating to registering offenders' employment,

but states may legitimately wish to know if a convicted child molester

is seeking or has obtained employment that involves responsibility for

the care for children.

As a second example, although it is not required under the Act,

states are strongly encouraged to collect DNA samples from registering

offenders to be typed and stored in state DNA databases. States also

are urged to participate in the FBI's Combined DNA Index System

(CODIS). CODIS is the FBI's program of technical assistance to state

and local crime laboratories that allows them to store and match DNA

records from convicted offenders and crime scene evidence. The FBI

provides CODIS software, in addition to user support and training, free

of charge, to state and local crime laboratories for performing

forensic DNA analysis. CODIS permits DNA examiners in crime

laboratories to exchange forensic DNA data on an intrastate level, and

will enable states to exchange DNA records among themselves through the

national CODIS system. Thus, collection of DNA samples and

participation in CODIS greatly enhances a state's capacity to

investigate and solve crimes involving biological evidence, especially

serial and stranger rapes.

Paragraph (2) of subsection (b) states that the responsible officer

or court shall forward the registration information to a designated

state law enforcement agency within three days after receipt of the

information. The Act leaves states discretion in designating an agency

as the responsible ``state law enforcement agency,'' including the

means by which such a designation is made, the timing of such a

designation, and the agencies that may be designated. States are not

required to select the state police as the designated agency, and may

choose any agency with functions relating to the enforcement of law or

protection of public safety. For example, states may designate as the

pertinent ``State law enforcement agency'' a correctional agency, a

crime statistics bureau or criminal records agency, or a department of

public safety. States also are permitted to employ a private contractor

to carry out the functions of the designated state law enforcement

agency.

After receiving the registration information from the responsible

officer or court, the designated state law enforcement agency must

immediately enter the information into the appropriate state law

enforcement record system and notify a law enforcement agency having

jurisdiction where the person expects to reside. The Act leaves states

discretion in determining which state record system is appropriate for

storing registration information. States that wish to achieve

compliance with the Act, however, may need to modify state record

systems if

[[Page 15116]]

they are not currently set up to receive all the types of information

that the Act requires from registrants.

The state law enforcement agency is also required to transmit

immediately the conviction data and fingerprints to the Federal Bureau

of Investigation. No changes will be required in the national records

system because the Act only requires transmission of conviction data

and fingerprints, which the FBI already receives. The Act should not be

understood as requiring duplicative transmission of conviction data and

fingerprints to the FBI at the time of initial registration if the

state already has sent this information to the FBI (e.g., at the time

of conviction).

Paragraph (3) of subsection (b) relates to verification of the

offender's address. In essence, annual verification of address with the

designated state law enforcement agency is required for offenders

generally, through the return within ten days of an address

verification form sent by the agency to the registrant. However, the

verification intervals are 90 days (rather than a year) for ``sexually

violent predators.'' As noted earlier, these are baseline requirements

which do not bar states from requiring verification of address at

shorter intervals than those specified in the Act.

Paragraph (4) requires the designated state law enforcement agency

to notify other interested law enforcement agencies of a change of

address by the registrant. Specifically, when a registrant changes

residence to a new address, the designated law enforcement agency must

(i) notify a law enforcement agency having jurisdiction where the

registrant will reside, and (ii) if the registrant moves to a new

state, notify the law enforcement agency with which the offender must

register in the new state (if the new state has a registration

requirement).

Paragragph (5) further requires an offender who moves out of state

to register within ten days with a designated state law enforcement

agency in his new state of residence (if the new state has a

registration requirement). This partially reiterates the requirements

concerning notice of changes of address by the offender that were

described above.

Subparagraph (A) of paragraph (6) states that the registration

requirement remains in effect for ten years. As noted earlier, states

may choose to establish longer registration periods.

Subparagraph (B) of paragraph (6) states that the registration

requirement for ``sexually violent predators'' under the Act terminates

upon a determination that the offender no longer suffers from a mental

abnormality or personality disorder that would make him likely to

engage in a predatory sexually violent offense. This provision does not

require review of the offender's status at any particular interval. For

example, a state could set a minimum period of 10 years before

entertaining a request to review the status of a ``sexually violent

predator,'' the same period as the general minimum registration period

for sex offenders under the Act.

Moreover, this termination provision only affects the requirement

that a person register as a ``sexually violent predator'' under

subparagraph (B) of subsection (a)(1) of the Jacob Wetterling Act. It

does not limit states in imposing more extensive registration

requirements under their own laws, and does not limit any registration

requirement that arises independently under other provisions of the

Jacob Wetterling Act from the person's conviction of a ``criminal

offense against a victim who is a minor'' or a ``sexually violent

offense.''

Criminal Penalties for Registration Violations--Subsection (c)

The Act provides that a person required to register under a state

program established pursuant to the Act who knowingly fails to register

and keep such registration current shall be subject to criminal

penalties. Accordingly, states that wish to comply with the Act will

need to enact criminal provisions covering this situation as part of,

or in conjunction with, the legislation defining their registration

systems, if they have not already done so. If the violation by a

registrant consists of failing to return an address verification form

within 10 days of receipt, the state may allow a defense if the

registrant can prove that he did not in fact change his residence

address, as provided in subsection (b)(3)(A)(iv).

Release of Registration Information--Subsection (d)

Subsection (d) governs the disclosure of ``information collected

under a State registration program.'' Restrictions on the release of

information under this subsection do not constrain the release of

information that a state would have independently of the operation of

the registration system. For example, a state will normally have

criminal history information about an offender, and will often have

current address information as part of general probation or parole

supervision requirements, independently of any special requirements

imposed as part of the sex offender registration system. The Act does

not limit the release of such information.

Subsection (d) states specifically that the information collected

under a state registration program shall be treated as private data,

except under specified conditions.

The first condition under which disclosure is authorized--paragraph

(1)--is that ``such information may be disclosed to law enforcement

agencies for law enforcement purposes.'' This exemption permits use of

the information for all law enforcement purposes, including all police,

prosecutorial, release supervision, correctional, and judicial uses.

Paragragph (2) in subsection (d) says that registration information

may be disclosed to government agencies conducting confidential

background checks. ``Confidential'' should be understood to mean a

background check where information is disclosed to an interested party

or parties--such as a background check conducted by a government agency

that provides information concerning prospective employees to public or

private employers--as opposed to release of the information to the

general public. Release to the public, and other non-law enforcement,

non-background check uses, are governed by paragraph (3).

Paragragph (3) in subsection (d) says that the designated state law

enforcement agency, and any local law enforcement agency authorized by

the state agency, may release relevant information that is necessary to

protect the public concerning a specific person required to register

under this section. The Act does not impose any limitations on the

standards and procedures that states may adopt for determining when

public safety necessitates community notification. For example, states

could implement this authority by engaging in particularized

determinations that individual offenders are sufficiently dangerous to

require community notification concerning the offender's presence.

Alternatively, states could make categorical judgments that protection

of the public necessitates community notification with respect to all

offenders with certain characteristics or in certain offense

categories.

Releases of information for public-protection purposes short of

general community notification--such as giving notice about an

offender's location to the victims of his offenses, or to agencies or

organizations in specified categories--are also permitted under

paragraph (3).

The language in paragraph (3), like that in paragraphs (1) and (2),

is permissive, and does not require states

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to release information. Paragraph (3) also does not deprive states of

the authority to exercise centralized control over the release of

information, or if the state prefers, to generally authorize local

agencies to release information as necessary. In addition to permitting

proactive community notification and other notification, as discussed

above, paragraph (3) and other provisions of the Act do not bar states

from making registration information available upon request, if it is

determined that such access is necessary for the protection of the

public concerning who are required to register.

A proviso at the end of paragraph (3) in subsection (d) states that

the identity of the victim of an offense that requires registration

under the Act shall not be released. The purpose of this proviso is to

protect the privacy of victims, and its restrictions may accordingly be

waived at the victim's option. The proviso only applies to paragraph

(3), and does not limit the disclosure of victim identity pursuant to

paragraphs (1) and (2), relating to law enforcement uses and

confidential background checks.

Immunity for Good Faith Conduct--Subsection (e)

Subsection (e) states that law enforcement agencies, employees of

law enforcement agencies, and state officials shall be immune from

liability for good faith conduct under the Act.

Compliance--Subsection (f)

States have three years from the date of enactment (i.e., September

13, 1994) to come into compliance with the Act unless the Attorney

General grants an additional two years where a state is making good

faith efforts at implementation. States that fail to come into

compliance within the specified time period will be subject to a

mandatory 10% reduction of Byrne Formula Grant funding, and any funds

that are not allocated to noncomplying states will be reallocated to

states that are in compliance. The reallocated funds will be

distributed among complying states in proportion to their populations.

States are encouraged to submit descriptions of their existing or

proposed registration systems for sex offenders to the Department of

Justice as promptly as possible. States may find it convenient, for

example, to submit such descriptions in conjunction with their

applications for Byrne Formula Grant funding. These submissions will

enable the Department of Justice to review the status of state

compliance with the Act, and to suggest any necessary changes to

achieve compliance before the funding reduction goes into effect.

To maintain eligibility for full Byrne Formula Grant funding

following the end of the three-year implementation period provided by

the Act, states will be required to submit information that shows

compliance with the Act in at least one program year, or an explanation

of why compliance cannot be achieved within that period and a

description of good faith efforts that justify an extension of time

(but not more than two years) for achieving compliance. States will

also be required to submit information in subsequent program years

concerning any changes in sex offender registration systems that may

affect compliance with the Act.

Dated: March 27, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96-8186 Filed 4-3-96; 8:45 am]

BILLING CODE 4410-01-M