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Case Law Summary

Sex Offender Registration and Notification in the United States
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I. SORNA Requirements

A. Generally

SORNA requires a conviction-based structure for sex offenders’ registration and notification requirements. In other words, when an individual is convicted and sentenced for a sex offense,[2] SORNA requires that the individual be subject to certain registration and notification requirements.[3] SORNA establishes three classes, or tiers, based on the severity of the offender’s sex offense.[4]

Under SORNA, a sex offender is an individual who is convicted of a sex offense.[5] A jurisdiction must include qualifying sex offenders in its registration scheme.[6]

B. Who Is Required to Register

1. “Conviction” & Offenses That Must Be Included in the Registry

a) “Conviction”

SORNA’s registration and notification requirements apply to individuals convicted of sex offenses[7] under federal, military,[8] state, territorial, local, tribal, or foreign law.[9] For the purposes of SORNA, a “conviction” may arise from a finding of guilt, but it also covers other findings such as withheld adjudications[10] and certain convictions of juveniles.[11]

Most jurisdictions follow a conviction-based structure;[12] however, some jurisdictions use a risk assessment process to determine aspects of sex offenders’ registration and notification requirements, including the duration of registration and frequency with which they must appear.[13] In some jurisdictions, registration will also be required when an individual has been civilly committed,[14] found incompetent to stand trial,[15] or is on furlough.[16] Additionally, offenders may still be required to register even if they have been pardoned for the underlying offense;[17] their conviction for a sex offense has been vacated, expunged, set aside,[18] or was dismissed under a special statutory procedure;[19] or they have relocated to a new jurisdiction.[20]

b) “Sex Offense”

Sex offender registration is typically triggered by an offender’s conviction for a sex offense[21] or nonparental kidnapping of a minor,[22] but some jurisdictions also include other offenders in their registration and notification systems or have separate registries for nonsexual offenses.[23]

While most jurisdictions outline specific offenses requiring registration, some jurisdictions also include “catch-all” provisions, which typically require individuals convicted of an offense that is “by its nature a sex offense,” to register.[24] There are also a handful of jurisdictions where registration is required if an individual commits an offense as a result of sexual compulsion or for purposes of sexual gratification.[25]

Occasionally, what constitutes a sex offense under SORNA or a sex offense requiring registration in one jurisdiction may not qualify as a sex offense in another jurisdiction. This issue usually arises when a convicted sex offender moves from one jurisdiction to another. In determining whether an offense constitutes a “sex offense,” courts typically use one of three approaches, two of which look at the elements of the offense of conviction, including the categorical approach[26] and the modified categorical approach[27] and another that looks at the underlying facts, known as the circumstance-specific approach or noncategorical approach.[28] This analysis can be quite complicated and has led to significant litigation.

c) “Substantially Similar”

Most jurisdictions will require registration if the individual was convicted of an out-of-state offense that is “comparable,” “similar,” or “substantially similar” to one or more of the receiving jurisdiction’s registerable offenses.[29]

2. Independent Duty to Register

Sex offenders have an independent duty to register under SORNA,[30] and several courts have held as such.[31] In other words, federal SORNA obligations are independent of sex offender duties under state, local, territorial, or tribal law.

In practice, unless a jurisdiction’s laws require an offender to register, a jurisdiction generally will not register the offender. As a result, it is possible that an offender will be required to register under SORNA, but, because the jurisdiction’s laws do not require registration for the offense of conviction, the jurisdiction where the offender lives, works, or attends school will refuse to register the offender.[32]

3. Retroactivity

SORNA applies to all sex offenders regardless of the date of conviction.[33] Jurisdictions are also required to appropriately classify and register certain offenders, including those who previously may not have been required to register, but who would be required to register under the jurisdiction’s new SORNA-implementing sex offender registration and notification laws.[34]

4. Homeless & Transient Offenders

SORNA requires that jurisdictions register homeless and transient sex offenders. For the purposes of SORNA, an offender resides in a jurisdiction when the offender has a home in the jurisdiction or habitually lives in the jurisdiction.[35] However, jurisdictions are free to determine who resides in their jurisdiction, thereby requiring registration. Some jurisdictions also require that homeless and transient sex offenders verify their registration information more regularly than sex offenders who have a fixed residence[36] and courts have upheld the constitutionality of the same.[37] Additional issues also often arise in failure-to-register prosecutions involving homeless or transient sex offenders.[38]

5. Registration for Military Convictions

SORNA requires individuals who are convicted of certain military offenses to register as sex offenders in each jurisdiction where the offender lives, works, or is a student.[39] More specifically, anyone convicted of a Uniform Code of Military Justice (UCMJ) offense listed in Department of Defense Instruction 1325.07 must register as a sex offender.[40] Jurisdictions must determine which military convictions will be recognized as registerable offenses and how they will be categorized; however, doing so can be complicated, particularly when a jurisdiction compares military offenses that might have a sexual component (e.g., “Conduct Unbecoming an Officer”) to jurisdiction-level sex offenses.[41]

SORNA also requires registration of sex offenders who are released from military corrections facilities or, upon conviction, if they are not subject to confinement.[42] A separate federal registration program does not exist for sex offenders who are released from military custody.[43] However, the Department of Defense (DoD) is involved with sex offender registration and notification.

The U.S. Congress and DoD have both taken steps to address the issue of convicted sex offenders in the military.[44] Notably, an individual who is required to register as a sex offender is prohibited from enlisting or becoming an officer in the Armed Forces.[45] Both the Army and the Navy require that anyone convicted of a sex offense be processed for administrative separation,[46] and the Army prohibits overseas assignments for any soldier convicted of a sex offense.[47] The Navy also minimizes access by sex offenders to Navy installations and facilities and gives installation commanding officers authority to bar sex offenders from installations.[48]

Additionally, in 2016, DoD issued an instruction establishing policies for the “identification, notification, monitoring and tracking of DoD-affiliated personnel” who are registered sex offenders.[49] Several branches have also adopted policies and procedures to independently track and monitor sex offenders who are active duty members, civilian employees, contractors, or dependents of active duty members located on U.S. military installations at home and abroad.[50] For example, the Army requires all sex offenders who reside or are employed on an Army installation, including those outside of the continental United States, to register with the installation provost marshal.[51]

However, if a military base is located in a “federal enclave,”[52] it is possible that an offender who resides, works, or attends school on that military base may not be required to register with the state or territory where the military base is located.[53] Therefore, in some locations there may be sex offenders present on military bases who are not required to register with the state because they live, work, and attend school solely on land considered to be a federal enclave.

6. Juvenile Registration

SORNA requires registration for a specific subset of juvenile sex offenders who have been adjudicated delinquent of serious sex offenses[54] and for juveniles who are prosecuted as adults.[55] Specifically, SORNA requires that jurisdictions register juveniles who were at least 14 years old at the time of the offense and who have been adjudicated delinquent for committing, attempting, or conspiring to commit a sexual act with another by force or threat of serious violence or by rendering the victim unconscious or involuntarily drugging the victim.[56]

The implementation of this provision varies across jurisdictions,[57] with states differing in how they handle registration of juvenile sex offenders and whether registration is mandatory. Some states only require registration of juveniles adjudicated delinquent of certain sex offenses,[58] some only require registration of juveniles who have reached a certain age, and others only require registration if the juvenile is found to be at risk of reoffending.[59] Some jurisdictions even go beyond SORNA’s requirements.[60] Generally speaking, however, most jurisdictions require registration if a juvenile is convicted of a sex offense in adult court.

Many of the same legal considerations that arise when dealing with adult sex offenders are often applicable to juvenile sex offenders, such as Sixth Amendment,[61] Eighth Amendment,[62] ex post facto,[63] procedural[64] and substantive due process[65] and equal protection challenges,[66] and failure-to-register issues.[67] There are also legal issues unique to juvenile offenders, including jurisdictional issues[68] and challenges based on the Federal Juvenile Delinquency Act.[69] For instance, under this act, which sets forth the procedures governing federal juvenile adjudications, it is required that all records regarding juvenile proceedings remain confidential. However, several courts have held that requiring juveniles who are adjudicated delinquent in federal court to register as sex offenders does not violate the act’s confidentiality provisions.[70]

C. What Registration Requires

1. Tiering & Recidivism

SORNA delineates three tiers of sex offenders based on the nature and seriousness of the offender’s sex offense, the victim’s age, and the offender’s prior sex offense conviction(s),[71] with certain duration and reporting frequency requirements attributed to each tier.[72] When a convicted offender moves to a new jurisdiction, the new (i.e., receiving) jurisdiction must not only determine whether the offender’s sex offense is registerable, but it must also determine how the offense will be tiered or classified.[73]

Under SORNA, an offender who has been convicted of more than one sex offense is subject to heightened registration requirements.[74] Many jurisdictions have enacted similar legislation.[75]

2. Appearance Requirements

SORNA requires that offenders make in-person appearances and register for a duration of time based on the tier of the offense of conviction.[76] However, some jurisdictions provide alternative methods for offenders to register and not all base an offender’s duration of registration or in-person appearances on the tier of the offense of conviction[77]

3. Required Registration Information

Jurisdictions are required to collect certain types of sex offender registration information under SORNA, including, for example, the offender’s name, date of birth, Social Security number, address, fingerprints and palm prints, and a DNA sample.[78]

4. Updating Information

SORNA specifies that sex offenders must keep their registration information current,[79] and most jurisdictions also require that sex offenders update their registration information when their information changes.[79] Failure to do so may lead to a prosecution for failure to register under state and federal law.[81]

5. Immediate Transfer of Information

SORNA requires immediate information sharing among jurisdictions[82] and with various public and private entities and individuals. When a sex offender initially registers or updates his or her information with a jurisdiction, that jurisdiction is required to immediately share the offender’s information with, and notify, any other jurisdiction where the sex offender resides, works, or goes to school, and each jurisdiction from or to which a change of residence, employment, or student status occurs.[83] This includes notification to any relevant sex offender registration jurisdictions under SORNA.

In order to comply with SORNA’s information-sharing requirements, jurisdictions are required to enter information on all of their registered sex offenders into the appropriate databases,[84] including the jurisdiction’s public sex offender registry,[85] and several federal law enforcement databases such as the National Sex Offender Registry (NSOR),[86] the Next Generation Index (NGI),[87] and the Combined DNA Index System (CODIS).[88]

6. International Travel

Sex offenders who intend to travel outside of the United States for any period of time must inform their residence jurisdiction 21 days in advance, and jurisdictions are then required to notify the U.S. Marshals Service and update the sex offender’s registration information in the national databases regarding such travel.[89] Implementation of this requirement varies by jurisdiction,[90] and offenders’ attempts to challenge this requirement on constitutional grounds have typically failed.[91]

D. Where Registration Is Required

SORNA requires that a sex offender register with law enforcement in the jurisdiction of conviction[92] and in any jurisdiction in which the offender resides, is an employee, or is a student.[93] Most jurisdictions similarly require that sex offenders register in each jurisdiction in which the offender resides, is an employee, or is a student.[94]

E. When Registration Is Required

1. Registration (Initial)

Under SORNA, a sex offender is required to register prior to release from custody if sentenced to a period of incarceration, or, if the sex offender is not sentenced to a term of imprisonment, the offender is required to register at the time of sentencing.[95] Most jurisdictions have similar requirements in place.

2. Duration & Tolling

Under SORNA, tier I offenders are required to register for 15 years, tier II offenders are required to register for 25 years, and tier III offenders are required to register for life.[96] Some jurisdictions follow a similar tiering structure or a dichotomous tiering structure, whereas others require lifetime registration for all sex offenders.[97] Jurisdictions are not required to apply registration requirements to sex offenders during periods in which they are in custody or civilly committed.[98] They also are not required to “toll” the registration period during subsequent periods of confinement.[99] However, some jurisdictions do.[100]

F. Public Registry Website Requirements & Community Notification

SORNA requires that every jurisdiction maintain a public sex offender registry website and the website must contain specific information on each sex offender in the registry.[101] Each jurisdiction must also participate fully in the Dru Sjodin National Sex Offender Public Website (NSOPW),[102] including taking the necessary steps to enable all field search capabilities required by NSOPW.

NSOPW was created by the U.S. Department of Justice in 2005 and is administered by the SMART Office.[103] NSOPW operates much like a search engine and uses web services to search each jurisdiction’s public registry website. It is the only government system to link state, territory, and tribal public sex offender registry websites from a national search site. NSOPW is not a national database of all registered sex offenders and only information that is publicly listed on a jurisdiction’s public sex offender registry website will display in NSOPW’s search results. Each jurisdiction owns and is responsible for the accuracy of the information displayed on NSOPW and the Department of Justice ensures only that jurisdictions’ registry websites can be queried through, and results displayed on, NSOPW.

SORNA requires that jurisdictions include information about all sex offenders in their public sex offender registry website.[104] However, some information may be excluded from a jurisdiction’s public sex offender registry website, including information about a tier I sex offender convicted of an offense other than a “specified offense against a minor,” the name of a sex offender’s employer, and the name of the school where a sex offender is a student.[105] Additionally, SORNA does not require jurisdictions disclose information about juveniles adjudicated delinquent on their public registry websites.[106]

Notably, some jurisdictions require only certain types of offenders to be publicly posted on the jurisdiction’s public registry website.[107] As a result, if an offender is not displayed on the jurisdiction’s public registry website, the offender will not appear on NSOPW.

G. Indian Country

Under SORNA, select federally recognized tribes may opt-in as SORNA registration jurisdictions and register sex offenders who live, work, or attend school on tribal lands.[108]

All adult sex offenders convicted of a registerable sex offense who live, work, or go to school on tribal lands must register with a tribal jurisdiction if the tribe has opted-in to SORNA’s provisions and is operating as a registration and notification jurisdiction, regardless of whether the offender is a native, non-native or tribal member.[109] Offenders who live, work, or go to school exclusively on tribal lands may also be required to register with the state in which the tribal lands are located.

As of July 2022, approximately 157 federally recognized tribes are operating as SORNA registration jurisdictions and have established, or are in the process of establishing, a sex offender registration and notification program. Of those, 136 have substantially implemented SORNA.[110] Some tribes have even passed more rigorous registration requirements than the states within which they are located.[111]

There are a host of unique legal issues specific to Indian Country that may arise, including jurisdictional issues,[112] challenges under the Double Jeopardy Clause of the Fifth Amendment,[113] Sixth Amendment challenges raised by persons who were convicted by tribal courts,[114] and the exclusion of certain individuals from tribal lands,[115] as well as issues concerning the registration of tribal sex offenders and/or the enforcement of sex offender registration requirements against native persons who committed their offense on tribal lands[116] or when an offender resides on tribal land but was convicted of a state or federal offense.[117]

H. Federal Incarceration

A separate federal registration program does not exist for sex offenders who are released from federal custody.[118] However, certain federal government agencies, including the Bureau of Prisons (BOP), the Bureau of Indian Affairs (BIA),[119] and the Department of Homeland Security (DHS), are involved with sex offender registration and notification and at least one agency (BOP) is required to notify local law enforcement when sex offenders are released from federal correctional facilities.[120] Additionally, these sex offenders are required to comply with SORNA’s registration requirements as mandatory conditions of their federal supervision.[121]

Whenever a federal prisoner who is required to register under SORNA is released, BOP is required to provide, prior to release, the offender’s release and registration information to state, tribal, and local law enforcement and registration officials.[122] BOP is also required to notify prisoners of their registration responsibilities.[123] BOP does not register sex offenders prior to their release from incarceration.

BIA, which provides law enforcement, judicial, and detention services to some federally recognized tribes, is not required to notify local law enforcement when a sex offender is released from a BIA-operated detention center. However, BIA’s policies do allow for such notification.[124] BIA does not register sex offenders prior to their release from incarceration.

DHS’s Immigration and Customs Enforcement (ICE) is responsible for detaining and deporting undocumented individuals who are present within the United States.[125] In 2015, DHS issued a rule that allows DHS to transfer information about any offender who is released from DHS custody or removed from the United States to any sex offender registration agency.[126] DHS also does not register offenders prior to their release from ICE custody.

I. Reduction of Registration Periods

Under limited circumstances, SORNA allows for the reduction of the registration period for certain sex offenders.[127] Similar provisions exist under state law.[128] Additionally, in at least one state, the duration of registration required under SORNA is considered when a determination is being made about whether an offender’s registration period can be reduced.[129]

J. Failure to Register

1. Generally

Federal law makes it a crime for sex offenders to fail to register or update their registration as required by SORNA.[130] Most states have similar laws, providing a criminal penalty for failure to register as a sex offender.[131]

Under SORNA, the U.S. Marshals Service is responsible for assisting jurisdictions in locating and apprehending sex offenders who violate their sex offender registration requirements.[132]

2. Strict Liability / Mens Rea

Jurisdictions treat failure to register cases differently in that some hold it as a strict liability offense, whereas others require proof of criminal intent (or mens rea).[133] Strict liability offenses do not require proof of criminal intent.

Under federal law, an offender must “knowingly” fail to register as required by SORNA in order to be convicted of an offense under 18 U.S.C. § 2250.[134]

3. Notice of Requirement to Register

All jurisdictions are required to notify sex offenders of their duty to register before they can be held criminally liable for failing to register.[135] Notice can be imperfect or constructive,[136] however, some jurisdictions require actual notice.[137] In at least one instance, a sex offender is also subject to prosecution under § 2250(a), even if he has not received notice of SORNA’s registration requirements pursuant to 34 U.S.C. § 20917.[138]

4. Continuing Offense

Some jurisdictions hold that a failure to register is a “continuing offense” and, as such, an individual can be prosecuted only for a single failure to register within a given time frame.[139]

5. Travel

Interstate travel is generally a necessary element of an 18 U.S.C. § 2250 failure to register offense where it involves a state sex offender.[140] Some jurisdictions’ failure to register offenses include a similar “travel” element.[141]

6. Venue

In a prosecution for failure to register, the proper venue is generally the jurisdiction where an individual has failed to comply with his or her registration requirements.[142] Additionally, in at least one state, there is no need to prove where an offender was during the time that the offender failed to register.[143]

7. Impeachment

Sometimes, evidence of an offender’s conviction for failure to register has been used for purposes of impeachment and to attack a witness’s credibility.[144]