Final Guidelines for Megan's Law and the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act

DEPARTMENT OF JUSTICE

Office of the Attorney General

[A.G. Order No. 2095-97]

RIN 1105-AA50

Final Guidelines for Megan's Law and the Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registration Act

AGENCY: Department of Justice.

ACTION: Final guidelines.

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[[Page 39010]]

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

Final Guidelines to implement Megan's Law and the Jacob Wetterling

Crimes Against Children and Sexually Violent Offender Registration Act.

EFFECTIVE DATE: July 21, 1997.

FOR FURTHER INFORMATION CONTACT:

Bonnie J. Campbell, Director, Violence Against Women Office, U.S.

Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC

20530, 202-616-8894.

SUPPLEMENTARY INFORMATION: Megan's Law, Public Law 104-145, 110 Stat.

1345, amended subsection (d) of 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), which 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 provisions of the Jacob Wetterling Act amended by

Megan's Law relate to the release of registration information. The

changes in these provisions require conforming changes in the final

guidelines published by the Department of Justice on April 4, 1996 in

the Federal Register (61 FR 15110) to implement the Jacob Wetterling

Act. In addition, other changes in the guidelines are necessary to

resolve questions that have arisen in the Justice Department's review

of state sex offender registration programs and discussion of

compliance requirements with the states.

Megan's Law makes two changes in the Jacob Wetterling Act: (1) It

eliminates a general requirement that information collected under state

registration programs be treated as private data, and (2) it

substitutes mandatory language for previously permissive language

concerning the release of relevant information that is necessary to

protect the public concerning registered offenders.

The time frame for compliance with the Megan's Law amendment to the

Jacob Wetterling Act is the general time frame for compliance with the

Act specified in section 170101(f) (42 U.S.C. 14071(f))--three years

from the Act's original enactment date of September 13, 1994, subject

to a possible extension of two years for states which are making good

faith efforts to come into compliance with the Act. States that fail to

comply with the Megan's Law provisions or other provisions of the Jacob

Wetterling Act within the specified time frame will be subject to a

mandatory 10% reduction of Byrne Formula Grant funding (under 42 U.S.C.

3756), and any funds that are not allocated to noncomplying states will

be reallocated to states that are in compliance.

In addition to changes reflecting the Megan's Law amendment, these

final guidelines include changes that clarify other provisions of the

Jacob Wetterling Act. Since the publication of the original guidelines

for he Act, a large majority of the states have submitted enacted or

proposed sec offender registration provisions to the Department of

Justice for preliminary review concerning compliance with the Act. This

review process has raised a number of questions which indicate that

additional guidance would be helpful. This revision of the guidelines

attempts to address these questions. The main changes or additional

clarifications concern the following issues:

1. The Jacob Wetterling Act provides that registration information

is initially to be taken and submitted by ``the court'' or a ``prison

officer.'' 42 U.S.C. 14071(b) (1) & (2). The purpose of this

requirement is to ensure that a responsible official will obtain

registration information near the time of release and transmit it to

the registration agency. Some states assign this responsibility to

probation or parole officers, who have functions relating to

correctional matters or the execution of sentences, but who might not

be regarded as prison officers or courts on a narrow reading of those

terms. The revised guidelines make it clear that such assignments of

responsibility to such officers are permissible under the Act.

2. The Act provides that, if a person required to register is

released, then the responsible officer must obtain the registration

information and forward it to the registration agency with three days

of receipt. 42 U.S.C. 14071(b)(2). Many states, however, do not wait

until the day of release to obtain registration information, but

require offenders to provide this information some period of time (e.g.

30 days or 60 days) prior to release. The revised guidelines make it

clear that, under the latter type of procedure, it is adequate if the

registration information is forwarded no later than three days after

release because that equally ensures the submission of registration

information within the time frame contemplated by the Act.

3. As noted above, the Act requires that a responsible officer

obtain and transmit the initial registration information. Some states

provide that the responsible officer is to send the initial

registration information concurrently to the state registration agency

and to the appropriate local law enforcement agency, as opposed to

transmitting the information exclusively to the state registration

agency, which would then forward it to the appropriate local law

enforcement agency. The revised guidelines make it clear that the

concurrent transmission approach is allowed because that approach also

results in the availability of the registration information at the

state and local levels as contemplated by the Act.

4. The Act requires registrants to report changes of address within

10 days. 42 U.S.C. 14071(b)(1)(A). Most state registration programs do

not require registrants to send change of address information directly

to the state registration agency but provide that this information is

to be submitted to a local law enforcement agency or other

intermediary, which is then required to forward it to the state

registration agency. The revised guidelines make it clear that

providing for the submission of change of address information in this

manner (through an intermediary) is allowed under the Act. Likewise, a

state could provide for the submission of initial registration

information by the responsible prison officer or court through an

intermediary. See 42 U.S.C. 14071(b)(2).

5. The Act requires that the state registration agency notify local

law enforcement agencies concerning the release or subsequent movement

of registered offenders to their areas. 42 U.S.C. 14071(b) (2) and (4).

The revised guidelines make it clear that states have discretion

concerning the form this notice will take. Permissible options include,

for example, written notice, electronic or telephonic transmission of

registration information, and provision of on-line access to

registration information.

6. The Act requires periodic address verification for registered

offenders, through the return of nonforwardable address verification

forms that are sent to the registered address. 42 U.S.C. 14071(b)(3).

Some state registration programs do not have the state registration

agency directly send or receive address verification forms but delegate

that function to local law enforcement agencies. The revised guidelines

clarify that this approach to periodic address verification is

permitted under the Act, as long as state procedures ensure that the

state registration agency will be promptly made aware if the

verification process discloses that the registrant is no longer at the

registered address. The revised guidelines also clarify that states, if

they wish, may require personal appearance of the registrant at a law

enforcement

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agency to return an address verification form, as opposed to return of

the form through the mail.

7. The Act contemplates the creation of a gap-free network of state

registration programs, under which offenders who are registered in one

state cannot escape registration requirements merely by moving to

another state. See, e.g., 42 U.S.C. 14071(b) (4) and (5). The revised

guidelines effectuate this legislative objective by more clearly

defining the obligation of states to register out-of-state offenders

who move into the state.

8. The Act requires that released convicted offenders in the

relevant offense categories be subject to registration and period

address verification for at least 10 years. 42 U.S.C. 14071(b)(6). This

requirement is unqualified, and the revised guidelines make it clear

that a state is not in compliance if it allows registration obligations

to be waived or terminated before the end of this period on such

grounds as a finding of rehabilitation or a finding that registration

(or continued registration) would not serve the purposes of the state's

registration provisions. However, if the underlying conviction is

reversed, vacated, or set aside, or if the registrant is pardoned,

registration (or continued registration) is not required under the Act.

9. Where a person required to register is re-incarcerated for

another offense or civilly committed, some states toll registration

requirements during the subsequent incarceration or commitment. The

revised guidelines clarify that this approach is consistent with the

Act because tolling the registration period during confinement results

in longer aggregate registration while the registrant is released. In

addition, it is unnecessary to carry out address registration and

verification procedures during confinement and doing so does not

further the Act's objective of protecting the public from released

offenders.

10. The Act prescribes more stringent registration requirements for

a subclass of offenders characterized as ``sexually violent

predators.'' See 42 U.S.C. 14071(a)(1) and (3)(C)-(E). Some states

require that sexually violent predators be civilly committed, as

opposed to being subject to more stringent registration requirements.

The revised guidelines clarify that this approach may be allowed

because it would be superfluous to carry out address registration and

verification procedures while such an offender is committed.

11. The Act requires that the determination whether a person is (or

is no longer) a ``sexually violent predator'' be made by the sentencing

court. 42 U.S.C. 14071(a)(2). In light of the variation among states in

court structure and assignments of judicial responsibility, the revised

guidelines clarify that this requirement means only that the

determination must be made by a court whose decision is legally

competent to trigger the more stringent registration requirements

prescribed for sexually violent predators by the Act. It does not mean

that ``the sentencing court'' for purposes of the sexually violent

predator determination must be the same court in which the offender was

convicted for an underlying sexually violent offense.

12. The Act requires registration by persons convicted of a

``criminal offense against a victim who is a minor.'' 42 U.S.C.

14071(a)(1). One of the clauses in the Act's definition of this term

covers ``criminal sexual conduct toward a minor.'' 42 U.S.C.

14071(a)(3)(A)(iii). The revised guidelines state explicitly that this

includes incest offenses against minors. The Act's definition of

``criminal offense against a victim who is a minor'' also includes two

clauses relating to solicitation offenses: ``solicitation of a minor to

engage in sexual conduct,'' and ``solicitation of a minor to practice

prostitution.'' 42 U.S.C. 14071(a)(3)(a)(iv) & (vi). The revised

guidelines provide greater detail in explaining the solicitation

offenses that state registration systems must cover to comply with

these provisions.

13. The Act also requires registration by persons convicted of a

``sexually violent offense.'' 42 U.S.C. 14071(a)(1). It essentially

provides that the term ``sexually violent offense'' means aggravated

sexual abuse and sexual abuse as described in federal law or the state

criminal code. 42 U.S.C. 14071(a)(3)(B). The revised guidelines clarify

that states may comply with this requirement either by covering

offenses that meet the federal law definition, or by covering

comparable offenses under state law. The availability of the latter

option is not limited to states that use the terms ``aggravated sexual

abuse'' and ``sexual abuse'' or other specific terminology in referring

to sex offenses in their criminal codes.

14. The revised guidelines clarify that the Act's time limits for

reporting initial registration information and change of address

information refer to the time within which the information must be

submitted or sent, as opposed to the time within which it must be

received by the state registration agency.

15. The Act requires criminal penalties for persons in the relevant

offense categories who knowingly fail to register or keep registration

information current. 42 U.S.C. 14071(c). The revised guidelines clarify

that this neither requires states to allow a defense for offenders who

were unaware of the legal obligation to register nor precludes states

from doing so. As a practical matter, states can ensure that offenders

are aware of their obligations through consistent compliance with the

Act's provisions for advising offenders of registration requirements at

the time of release and obtaining a signed acknowledgment that this

information has been provided.

16. The revised guidelines clarify that the Act does not preclude

states from taking measures for the security of registrants who have

been relocated and provided new identities under federal or state

witness protection programs because the Act does not require that the

registration system records include the registrant's original name or

the registrant's residence prior to the relocation.

17. The revised guidelines encourage states to require registration

for all convicted offenders in the pertinent offense categories,

including offenders convicted in federal, military, and Indian tribal

courts, as well as offenders convicted in state courts.

18. The revised guidelines encourage states to ensure that their

sex offender registration agencies are ``criminal justice agencies'' as

defined in 28 CFR 20.3(c), to permit the free exchange of registration

information between state registries and the FBI's records systems.

Subsequent to the enactment of Megan's Law, congress enacted

additional legislation relating to sex offender tracking and

registration in the Pam Lychner Sexual Offender Tracking and

Identification Act of 1996, Public Law 104-236, 110 Stat. 3093

(hereafter referred to as the ``Pan Lychner Act''). The Pam Lychner Act

includes, inter alia, amendments to the Jacob Wetterling Act affecting

the duration of registration requirements, sexually violent predator

certification, fingerprinting of registered offenders, address

verification, and reporting of registration information to the FBI. The

changes made by the Pam Lychner Act will be the subject of future

guidelines. States have until three years from the Pan Lychner Act's

enactment date of October 3, 1996 to come into compliance with the

features of the Wetterling Act added by the Pam Lychner Act, subject to

a possible two-year extension. These new provisions are not addressed

in this publication.

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Summary of Comments on the Proposed Guidelines

On April 4, 1997, the U.S. Department of Justice published Proposed

Guidelines in the Federal Register (62 FR 16180) to implement Megan's

Law and the Jacob Wetterling Crimes Against Children and Sexually

Violent Offender Registration Act. The comment period expired on June

3, 1997.

Following the publication of the Proposed Guidelines, the

Department received seven comment letters, primarily from state

officials and realtors' associations. These letters contained numerous

comments, questions and recommendations, all of which were considered

carefully in developing the Final Guidelines. A summary of the comments

and responses to them are provided in the following paragraphs.

A. Notification Requirements

1. Duty To Notify

Three respondents expressed concern about the potential liability

of real estate professionals with regard to the notification

requirements. All three recommended that the guidelines specify that

the sole responsibility for notification lies with the appropriate

state law enforcement agency. No further clarification of the Act's

provision on this issue is necessary, however. As two of the three

respondents noted, ``[t]he federal statute is clear'' that the

obligation to release information is placed on the designated state or

local agency. Whether and to what extent real estate professionals may

or must disclose information in real estate transactions is a matter of

state law, and has no bearing on state compliance with the Act.

2. Notification When Sex Offender Moves Out

Two of the three same respondents suggested that communities should

be notified when a sex offender moves out of an area. The guidelines do

not address this issue because the Act itself does not. Thus, this

matter is left to the discretion of the states.

B. Sexually Violent Predator

1. Definition

One respondent objected to the definition of ``sexually violent

predator.'' The Act itself, however, 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 ``personality disorder,'' the guidelines already

provide that the definition of this term is a matter of state

discretion.

2. Tracking

One respondent commented that tracking for high-risk sexual

predators should include electronic monitoring. The guidelines do not

address this issue because the Act is concerned solely with

registration programs and does not address electronic monitoring in any

manner. States are free, however, to adopt electronic monitoring or

other means of sex offender management.

C. Registration

1. Role of Courts

One respondent commented that it is not a function of a court to

fingerprint, photograph, or obtain much of the personal information

specified in the Act. The Act requires that the initial registration

information be taken by ``the court'' or ``prison'' officers. The

guidelines provide maximum flexibility consistent with the Act through

a broad interpretation of those terms. Thus, for example, probation and

parole officers, as well as judicial and correctional personnel in a

narrower sense, may take initial registration information.

2. Timing of Transmittal of Registration Information

One respondent objected that allowing transmission of registration

information up to three days after release would not ensure timely

notification of an offender's impending release. The time rule for

transmission of initial registration information under the Act and

guidelines is an outer limit. Thus, states are free to require that the

information be submitted at an earlier point.

3. Notification of Obligation To Register

One respondent stated that the guidelines suggest that offenders be

advised at the time of release of their legal obligation to register

and sign an acknowledgment. The respondent recommended that the

obligation also should be explained at the time of a guilty plea,

sentencing or initial registration, because not all registrants will be

subject to incarceration. The notice of registration obligations and

signed acknowledgement referred to by the respondent, however, are

required explicitly by the Act itself. Moreover, the Act and guidelines

impose the same requirements on all sentenced offenders at the time of

release, regardless of whether they are released unconditionally from

prison, or placed on parole, supervised release, or probation.

4. Address Verification and Tracking

One respondent stated that out-of-state or transient offenders

could be better tracked and verified through technological solutions

rather than through the mail. This respondent further recommended that

states should be encouraged to use technology, such as location

verification through automatic number identification and offender

identification through pin numbers and passwords. The guidelines have

not been changed to reflect these comments because the Act requires a

particular address verification procedure, involving sending and

returning an address verification form. Nothing in the guidelines or in

the Act precludes states from adopting otherwise permissible

supplemental address verification and tracking procedures, including

the technological approaches suggested by the respondent.

5. Scope of Registration

One respondent recommended that state registration and notification

should go beyond address registration. In particular, the respondent

stated that the public should have access to information about where an

offender works, law enforcement should know if the offender has had any

contact with the law, the offender's phone number should be updated for

verifications, and the offender should report compliance with treatment

or counseling sessions. The guidelines have not been revised on the

basis of these comments because the Act generally does not require

these particular measures. Nothing in the guidelines or in the Act

precludes states from adopting otherwise permissible supplemental

address verification and tracking procedures, including the

technological approaches suggested by the respondent.

6. Cost of Registration

One respondent recommended that states be encouraged to charge the

offender a fee to help cover the cost of monitoring the registration

information. The Act does not address the issue of payment, but states

are free to impose such requirements.

7. Availability of Information

One respondent recommended that information collected on an

offender's status within a particular state should be available to

prison or court officers taking initial registration information. While

it is likely that such information will be available to the officials

responsible for taking registration information, the guidelines do not

[[Page 39013]]

address this issue because it is not part of the Act's requirements.

8. Designation of State Law Enforcement Agency/Intermediary

One respondent noted that states may wish to use a non-profit

organization as the contact point for the dissemination of information

to the general public. The same respondent also suggested that either

public or private sector entities could be used as intermediaries to

submit change of address information. Neither the Act nor the

guidelines preclude these approaches, and further clarification of this

point does not appear to be necessary. As stated in the guidelines,

however, states are encouraged to ensure that the designated state law

enforcement agency is a ``criminal justice agency'' as defined in 28

CFR 20.3(c), to permit the free exchange of registration information

between the state registry and the FBI's record systems.

D. Notice of Release/Movement

One respondent recommended that the term ``electronic

transmission'' in relation to notice to local law enforcement agencies

should include telephonic reporting. The guidelines clarify that state

registration agencies have discretion regarding the form of notice to

local law enforcement agencies concerning the presence of registered

sex offenders. The possible forms of notice listed in the guidelines

are illustrative, not exhaustive. The list of illustrations have been

extended to include explicitly ``telephonic'' transmission.

E. Change of Address Reporting/Address Verification

1. Frequency

One respondent recommended that offenders be required to report

monthly. The guidelines have not been changed to reflect this comment

because the Act itself only requires annual address verification and

quarterly verification for sexually violent predators. As the

guidelines already make clear, however, states are free to require more

frequent verification.

2. Ten-year Reporting Requirement

One respondent recommended that reporting requirements be for a

period of 10 years from the conclusion of supervision. The guidelines

have not been revised to reflect this comment because the Act only

requires a ten-year registration period running from the time of

release. As the guidelines already make clear, however, states are free

to require registration for longer periods.

Final Guidelines

These guidelines carry out a statutory directive to the Attorney

General, in section 170101(a)(1) (42 U.S.C. 14071(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 the Act's 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, 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 because

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 that

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 to, 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 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's definitions of covered offense categories are

tailored to its general purpose of protecting the public from persons

who molest or sexually exploit children and from other sexually violent

offenders. Hence, these definitions do not include all offenses that

involve a sexual element. For example, offenses consisting of

consensual acts between adults are not among the offenses for which

registration is required under the Act.

Some state registration and notification systems have been

challenged on constitutional grounds. The majority of courts that have

dealt with the issue have held that systems like those contemplated by

the Jacob Wetterling Act do not violate released offenders'

constitutional rights. A few courts, however, have found that certain

provisions of the state systems violate (or likely violate) the

Constitution. See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994)

(on motion for preliminary relief) (notification provision), appeal

dismissed, 85 F.3d 635 (9th Cir. 1996); State v. Babin, 637 So.2d 814

(La. App.) (retroactive application of notification provision), writ

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

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

Reed, 663 P.2d 216 (Cal. 1983) (en banc) (registration requirements for

misdemeanor offenders violate the California Constitution).

There has been extensive litigation concerning whether aspects of

New Jersey's community notification program violate due process or ex

post facto guarantees as applied to individuals who committed the

covered offense prior to enactment of the notification statute. 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 supporting the New Jersey law.

The New Jersey Supreme Court, in John Doe v. Poritz, 142 N.J. 1,

662 A.2d 367 (1995), upheld the New Jersey statute, although it imposed

certain procedural protections under federal and state law. In Artway

v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 1995), the

District Court held that retroactive application of the

[[Page 39014]]

notification provisions of New Jersey's Megan's Law violated the Ex

Post Facto Clause. On appeal, however, this part of the District

Court's decision was vacated on ripeness grounds. 81 F.3d 1235,

rehearing denied, 83 F.3d 594 (3d Cir. 1996). Then, the District Court

ruled in a class-action case that the notification provisions of New

Jersey's Megan Law, as modified by the New Jersey Supreme Court's

decision in Doe, are constitutional, even when retroactively applied.

W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), appeal pending; see

also Paul P. v. Verniero, Civ. No. 97-2919 (D.N.J. June 26, 1997)

(unpub.) (denying preliminary injunction against the prospective

application of the New Jersey notification act on the grounds that the

act does not deny due process or impose double jeopardy; Alan A. v.

Verniero, Civ. No. 97-1288 (D.N.J. June 27, 1997) (unpub., appeal

pending) (same).

There is ongoing litigation over the validity of notification

systems--and particularly the validity of their retroactive

application--in other states as well. See, e.g., Doe v. Pataki, 940 F.

Supp. 603 (S.D.N.Y. 1996) (enjoining retroactive application of

community notification as an ex post factor punishment), appeal

pending; Doe v. Weld, 1996 WL 769398 (D. Mass. Dec. 17, 1996)

(declining to enjoin retroactive application of community notification

provisions); Stearns v. Gregoire, Dkt. No. C95-1486D, slip op. (W.D.

Wash. Apr. 12, 1996) (same), appeal pending; Opinion of the Justices,

423 Mass. 1201, 668 N.E.2d 738 (1996) (advisory opinion that community

notification provisions are constitutional, even as retroactively

applied); Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996) (holding

that retroactive application of community notification violates the Ex

Post Facto Clause), petition for cert. denied,__U.S.__,65 U.S.L.W. 3416

(June 27, 1997). The United States has filed briefs in several of these

cases supporting the state laws.

The remainder of these guidelines addresses the provisions of the

Jacob Wetterling Act--including the Megan's Law amendment, but not

including the changes made by the Pam Lychner 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 section 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.

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 more stringent

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 period, 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.

``Sentencing court'' in paragraph (2) should be understood to mean

a court whose determination is competent under state law to trigger or

terminate the more stringent registration requirements the Act

prescribes for sexually violent predators. It does not mean that `'the

sentencing court'' for purposes of the sexually violent predator

determination must be the same court in which the offender was

convicted for an underlying offense that gave rise to a requirement to

register.

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, military, or Indian tribal 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, military, or Indian tribal court--

raises similar public safety concerns. Some states (e.g., Washington

and California) already require sex offenders convicted in federal or

military courts to register.

The Act's requirement is one of current address registration, and

the Act does not dictate under what name a person must be required to

register. Hence, the Act does not preclude states from taking measures

for the security of registrants who have been provided new identities

and relocated under the federal witness security program (see 18 U.S.C.

3521 et seq.) or comparable state programs. A state may provide that

the registration system records will identify such a registrant only by

his or her new name and that the registration system records will not

include the pre-relocation address of the registrant or other

information from which his or her original identity or participation in

a witness security program could be inferred. States are encouraged to

make provision in their laws and procedures for the security of such

registrants and to honor requests from the United States Marshals

Service and other agencies responsible for witness protection to ensure

that the identities of these registrants are not compromised. Due to

the federal statutory preemption concerning what may or may not be

disclosed about federally protected witnesses, 18 U.S.C. 3521(b)(1)(G)

& (3), a state's failure to promulgate protective provisions may

adversely affect its eligibility to send witnesses to, or to receive

witness data from, the federal witness security program.

[[Page 39015]]

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.

States do not have to track the terminology used in the Act's

definition of ``criminal offense against a victim who is a minor'' in

defining registration requirements. Rather, compliance depends on

whether the substantive coverage of a state's registration requirements

includes the offenses described in subparagraph (A) of paragraph (3).

The specific clauses in the Act's 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.'' States can comply with this clause by

requiring registration for persons convicted of all statutory sex

offenses under state law whose elements involve physical contact with a

victim--such as provisions defining crimes of ``rape,'' ``sexual

assault,'' sexual abuse,'' or ``incest''--in cases where the victim was

in fact a minor at the time of the offense. 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).

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. The notion of ``sexual conduct''

should be understood in the same sense as in clause (iii). Hence,

states can comply with clause (iv) by consistently requiring

registration, in cases where the victim was below the age of 18, based

on:

--A conviction for an offense involving solicitation of the victim

under a general attempt or solicitation provision, where the object

offense would be covered by clause (iii), and

--A conviction for an offense involving solicitation of the victim

under any provision defining a particular crime whose elements include

soliciting or attempting to engage in sexual activity involving

physical contact.

(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. The interpretation of this clause is

parallel to that of clause (iv). States can comply with clause (vi) by

consistently requiring registration, in cases where the victim was

below the age of 18, based on:

--A conviction for an offense involving solicitation of the victim

under a general attempt or solicitation provision, where the object

offense is a prostitution offense, and

--A conviction for an offense involving solicitation of the victim

under any provision defining a particular crime whose elements include

soliciting or attempting to get a person to engage in 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. However, here again, states are free to go

beyond the Act's baseline requirements. The exemption of certain

offenders based on age from 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 may 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 10-year registration requirement for offenders

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

convicted

[[Page 39016]]

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, a state could comply by requiring registration for offenders

convicted for criminal conduct that would violate 18 U.S.C. 2241 or

2242--the federal ``aggravated sexual abuse'' and ``sexual abuse''

offenses--if prosecuted federally. Specifically, sections 2241 and 2242

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. (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 because sections 2241 and 2242

explicitly encompass attempts as well as completed offenses.)

Second, a state could comply by requiring registration for

offenders convicted of the state offenses that correspond to the

federal offenses described above--i.e., the most serious sexually

assaultive crime or crimes under state law, covering non-consensual

sexual acts involving penetration--together with state offenses (if

any) that have as their elements engaging in physical contact with

another person with intent to commit such a crime.

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 provide 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 state may, but need not, provide that a determination on

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

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

responsible court when the offender has served a term of imprisonment

and is about to be released from custody.

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. Likewise, while the Act does not require civil

commitment of sexually violent predators or other offenders under any

circumstances, states may, if they so wish, require civil commitment of

persons determined to be sexually violent predators under the Act's

standards and procedures in lieu of the Act's heightened registration

requirements for such persons.

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 the 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)

Paragraphs (1) and (2) of subsection (b) set out duties for prison

officers 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 generally include taking registration

information, informing the offender of registration obligations, and

transmitting the registration information to the designated state law

enforcement agency.

The terms ``prison officer'' and ``court'' should be understood to

include any officer having functions relating to correctional matters,

offender supervision, or the execution of sentences. Hence, states have

the option of assigning responsibility for the initial taking and

transmission of registration

[[Page 39017]]

information to probation or parole officers, as well as to persons who

are prison or court officers in a narrower sense.

The specific 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 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 officers 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 officers 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 of children.

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

states are strongly encouraged to collect DNA samples, where permitted

under applicable legal standards, to be typed and stored in state DNA

databases. States also are urged to participate in the Federal Bureau

of Investigation's (FBI's) Combined DNA Index System (CODIS). CODIS is

the FBI's program of technical assistance to State and local crime

laboratories that allows that 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 enhance a state's capacity to investigate and solve crimes

involving biological evidence, especially serial and stranger rapes.

Paragraph (2) of subsection (b) states, in part, that the officer

or court shall forward the registration information obtained from an

offender who is being released to a designated state law enforcement

agency within three days. In some states, the responsible official does

not wait until the time of release to obtain registration information

but obtains this information some period of time (e.g., 30 days or 60

days) prior to release. Under such a procedure, it is adequate if the

registration information is forwarded no later than three days after

release.

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 are encouraged, however, to ensure that the designated state

law enforcement agency is a ``criminal justice agency'' as defined in

28 CFR 20.3(c). This will permit the free exchange of registration

information between the state registry and the FBI's records systems.

Paragraph (2) of subsection (b) also provides that 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 concerning

the form of notification to the relevant local law enforcement agency.

Permissible options include, for example, written notice, electronic or

telephonic transmission of registration information, and provision of

on-line access to registration information. The Act also 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 they are not currently set up to receive all the types of

information that the Act requires from registrants.

In some states, the responsible prison officer or court sends the

initial registration information both to the designated State law

enforcement agency and to a local law enforcement agency having

jurisdiction where the registrant will reside, as opposed to

transmitting the information only to the state agency. This approach is

allowed, and in such states the state agency need not be required to

provide notice to the local law enforcement agency because such notice

would be superfluous in relation to a local law enforcement agency that

has received the registration information directly from the prison

officer or court.

Likewise, the Act does not preclude a state procedure under which

the prison officer or court transmits the initial registration

information indirectly to the designated state law enforcement agency

by sending it in the first instance only to a local law enforcement

agency having jurisdiction where the registrant will reside, which is

then required to forward the information to the state agency.

Procedures of this type will be deemed in compliance, so long as the

information is submitted or sent to the local law enforcement agency

within the applicable time frame (no later than three days after

release), and state procedures ensure that the local agency

[[Page 39018]]

will forward the information promptly to the state agency. In a state

with this type of procedure, having the state agency notify a local law

enforcement agency from which it received the initial registration

information would be superfluous and is not required.

Paragraph (2) of subsection (b) further provides that the state law

enforcement agency shall immediately transmit the conviction data and

fingerprints to the FBI. 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 all offenders

through the return within 10 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. Likewise, states may, if they wish,

strengthen the requirements for transmission and return of verification

forms beyond the minimum required by the Act, such as requiring

registrants to appear in person at a law enforcement agency to return

verification forms that have been sent to their residences.

In some states, the designated state law enforcement agency does

not directly carry out address verification but develops verification

forms which are sent out and received by local law enforcement

agencies. This delegation of responsibility for the verification

function is allowed, so long as the procedure specified in the Act for

periodic address verification through transmission and return of a

verification form is complied with, and state procedures ensure that

the designated state law enforcement agency will promptly be made aware

if the verification process discloses that the registrant is no longer

at the registered address.

As indicated above, under paragraph (1)(A) of subsection (b) of the

Act, registrants are required to submit or send change of address

information within 10 days of the change of residence. Paragraph (4) of

subsection (b) 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).

Under many state registration programs, registrants do not send

change of address information directly to the designated state law

enforcement agency but provide this information to a local law

enforcement agency or other intermediary (such as a probation officer),

which is then required to forward it to the state agency. This approach

is allowed under the Act, so long as the registrant is required to

submit or send change of address information to the intermediary within

the time frame specified by the Act (no later than 10 days after the

change of address), and state procedures ensure that the intermediary

will forward the information promptly to the designated state law

enforcement agency. If the intermediary that receives the change of

address information in the first instance is a local law enforcement

agency having jurisdiction where the registrant will reside, then the

designated state law enforcement agency does not have to notify that

local law enforcement agency of the change of address because doing so

would be superfluous. If, however, the intermediary is a local law

enforcement agency in the place from which the registrant is moving,

the requirement remains of immediately notifying a law enforcement

agency having jurisdiction over the new place of residence. Either the

state agency or the local law enforcement agency that receives the

change of address information in the first instance must provide such

notification.

Paragraph (5) requires a person convicted of an offense that

requires registration under the Act who moves to another state to

register within 10 days with a designated state law enforcement agency

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

requirement). This entails responsibilities for states in relation to

out-of-state offenders who move into the state, as well as personal

responsibilities for the registrant. To comply with the Act, a state

registration program must require registration by out-of-state

offenders in the Act's offense categories who move into the state and

must provide that such offenders are required to register within 10

days of establishing residence in the State.

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

requirement remains in effect for 10 years. As noted earlier, states

may choose to establish longer registration periods, but registration

requirements of shorter duration are not consistent with the Act.

Hence, for example, a state program is not in compliance with the Act

if it allows registration obligations to be waived or terminated before

the end of the 10 year period on such grounds as a finding of

rehabilitation, or a finding that registration (or continued

registration) would not serve the purposes of the state's registration

provisions. However, if the underlying conviction is reversed, vacated,

or set aside, or if the registrant is pardoned, registration (or

continued registration) is not required under the Act. Also, a state

may toll registration requirements during periods in which an offender

is incarcerated for another offense or civilly committed because it is

superfluous to carry out address registration and verification

procedures while the registrant is confined.

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.

The termination provision in subparagraph (B) of paragraph (6) 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. Moreover, even if it

has been determined as provided in subparagraph (B) of paragraph (6)

that a person is no longer a ``sexually violent predator,'' this does

not relieve the person of the 10-year registration requirement under

other provisions of the Jacob Wetterling Act which applies to any

person convicted 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

[[Page 39019]]

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.

The Act neither requires states to allow a defense for offenders

who were unaware of their legal registration obligations nor precludes

states from doing so. As a practical matter, states can ensure that

offenders are aware of their obligations through consistent compliance

with the Act's provisions for advising offenders of registration

requirements at the time of release and obtaining a signed

acknowledgment that this information has been provided. 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. This part of the Act has been

amended by the federal Megan's Law (Pub. L. 104-145, 110 Stat. 1345).

To comply with the Megan's Law amendment, a state must establish a

conforming information release program that applies to offenders

required to register on the basis of convictions occurring after the

establishment of the program. States do not have to apply new

information release standards to offenders whose convictions predate

the establishment of a conforming program, but the Act does not

preclude states from applying such standards retroactively to offenders

convicted earlier if they so wish.

The Megan's Law amendment made two important changes from the prior

law: First, subsection (d) originally provided that information

collected under state registration programs is to be treated as private

data, subject to limited exceptions. The Megan's Law amendment has

repealed the general ``private data'' restriction and has substituted

an affirmative statement (in subsection(d)(1) that information

collected under a state registration program may be disclosed for any

purpose permitted under the law of the state. Hence, under the current

law, there is no requirement that registration information be treated

as private or confidential to any greater extent than the state may

wish.

Second, paragraph(2) of subsection(d), as amended, provides that

the designated state law enforcement agency, and any local law

enforcement agency authorized by the state agency, shall release

relevant information that is necessary to protect the public concerning

a specific person required to register under the Act. In contrast, the

prior law only provided that information may be released for this

purpose.

The principal objective of this change is to ensure that

registration programs will include means for members of the public to

obtain information concerning registered offenders that is necessary

for the protection of themselves or their families. In light of this

change, a state cannot comply with the Act by releasing registration

information only to law enforcement agencies, to other governmental or

non-governmental agencies or organizations, to prospective employers,

or to the victims of registrants' offenses. States also cannot comply

by having purely permissive or discretionary authority for officials to

release registration information. Information must be released to

members of the public as necessary to protect the public from

registered offenders. This mandatory disclosure requirement applies

both in relation to offenders required to register because of

conviction for ``a criminal offense against a victim who is a minor''

and those required to register because of conviction for a ``sexually

violent offense.''

States do, however, retain discretion to make judgments concerning

the circumstances in which, and the extent to which, the disclosure of

registration information to the public is necessary for public safety

purposes and to specify standards and procedures for making these

determinations. Several different approaches to this issue appear in

existing state laws.

One type of approach, which is consistent with the requirements of

the Jacob Wetterling Act as amended, involves particularized risk

assessments of registered offenders, with differing degrees of

information release based on the degree of risk. For example, some

states classify registered offenders in this manner into risk levels,

with (1) registration information limited to law enforcement uses for

offenders in the ``low risk'' level, (2) notice to organizations with a

particular safety interest (such as schools and other child care

entities) for ``medium risk'' offenders, and (3) notice to neighbors

for ``high risk'' offenders.

States are also free under the Act to make judgments concerning the

degree of danger posed by different types of offenders and to provide

information disclosure for all offenders (or only offenders) with

certain characteristics or in certain offense categories. For example,

states may decide to focus particularly on child molesters, in light of

the vulnerability of the potential victim class, and on recidivists, in

light of the threat posed by offenders who persistently commit sexual

offenses.

Another approach consistent with the Act is to make information

accessible to members of the public on request. This may be done, for

example, by making registration lists open for inspection by the

public, by establishing call-in numbers which members of the public can

contact to obtain information on the registration status of identified

individuals, or by providing such information in response to written

requests. As with proactive notification systems, states that have

information-on-request systems may make judgments about which

registered offenders or classes of registered offenders should be

covered and what information will be disclosed concerning theses

offenders.

States are encouraged to involve victims and victim advocates in

the development of their information release programs and in the

process for particularized risk assessments of registrants if the state

program involves such assessments.

Paragraph(2) of subsection(d) does not deprive states of the

authority to exercise centralized control over the release of

information, or if the state prefers, to have local agencies make

determinations concerning public safety needs and information release.

A proviso at the end of paragraph (2) states that the identity of

the victim of an offense that requires registration under the Act shall

not be released. This proviso safeguards victim privacy by prohibiting

disclosure of victim identity to the general public in the context of

information release programs for registered offenders. It does not bar

the dissemination of victim identity information for law enforcement or

other governmental purposes (as opposed to disclosure to the public)

and does not require that a state limit maintenance of or access to

victim identity information in public records (such as police and court

records) which exist independently of the registration system. Because

the purpose of the proviso is to protect the privacy of victims, its

restriction may be waived at the victim's option.

[[Page 39020]]

So long as the victim is not identified, the proviso in paragraph

(2) does not bar including information concerning the characteristics

of the victim and the nature and circumstances of the offense in

information release programs for registered offenders. For example,

states are not barred by the proviso from releasing such information as

victim age and gender, a description of the offender's conduct, and the

geographic area where the offense occurred.

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.

To maintain eligibility for full Byrne Grant formula funding after

September 13, 1997, states must submit to the Bureau of Justice

Assistance by July 13, 1997, their existing or proposed registration

and notification systems for sex offenders. These submissions will be

reviewed to determine the status of state compliance with the Act. In

addition, any state that has not been able to establish a registration

and notification system in compliance with the Act must submit to the

Bureau of Justice Assistance by July 13, 1997, a written explanation of

why compliance has not been achieved and a description of the state's

good faith efforts that may justify an extension of time (of not

greater than two years) for achieving compliance. States also will 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: July 14, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97-19047 Filed 7-18-97; 8:45 am]

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