SMART Watch, Winter 2009

Myth v. Fact: Implementation of the Sex Offender Registration and Notification Act

Myth: The SMART Office is a law enforcement agency that investigates child abuse crimes and can provide the public with information on the prosecution of local crimes.

Fact: The Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Act established the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (the "SMART Office"), a component of the Office of Justice Programs within the U.S. Department of Justice. The SMART Office is authorized by law to administer the standards for sex offender registration and notification that are set forth in SORNA. It is further authorized to cooperate with and provide assistance to states, local governments, tribal governments, and other public and private entities in relation to sex offender registration and notification and other measures for the protection of the public from sexual abuse or exploitation. The SMART Office is not a law enforcement agency. Rather, it is a key federal partner and resource for jurisdictions as they continue to develop and strengthen their sex offender registration and notification programs.

Myth: SORNA requires local governmental units to establish local sex offender registries.

Fact: Local governmental units are not SORNA jurisdictions. Rather, SORNA defines "jurisdictions" as the 50 states, the District of Columbia, the five principal U.S. territories, and certain federally recognized Indian tribes that elect to function as registration jurisdictions. Areas such as counties, towns, or villages within a single SORNA jurisdiction are not considered part of SORNA's definition of "jurisdiction."

Myth: Jurisdictions must implement SORNA standards through statutory changes.

Fact: While SORNA sets minimum standards for jurisdictions' registration and notification programs, it does not necessarily require jurisdictions to implement all of the standards by statute. Hence, in assessing compliance with SORNA, the totality of a jurisdiction's rules governing the operation of its registration and notification program will be considered, including administrative policies and procedures, as well as statutes.

Myth: Jurisdictions must purchase large quantities of costly, digital print-taking equipment to come into compliance with SORNA.

Fact: To comply with SORNA, jurisdictions are NOT required to use digital print-taking devices to obtain registered sex offenders' prints. Rather, jurisdictions may choose to take rolled, inked prints and scan and upload them for inclusion on their registries. Both scanned inked prints and digitally taken prints meet SORNA's immediate transmittal requirement. See Digitized Fingerprints and Palm Prints for more information.

Myth: SORNA requires jurisdictions to spend tens of millions of dollars to implement its requirements.

Fact: Different jurisdictions will have differing cost impacts, and the SMART Office is providing numerous resources without charge to bring registration jurisdictions in to compliance.

• Existing registration schemes. Many registration jurisdictions already have sex offender registration schemes that meet a number of SORNA's requirements. Depending on the current status of a registration jurisdiction's laws, cost estimates for implementation will vary widely and must be approached on a case-by-case basis.
• Grant assistance. In Fiscal Years 2007 and 2008, the SMART Office provided more than $16 million in grant assistance to states, territories, and units of local and tribal governments to create and enhance sex offender registry and notification programs. These grants have been useful in assisting jurisdictions in their efforts to implement SORNA provisions.
• Registry website resources. The SMART Office has provided, free of charge, several web service oriented applications that will assist jurisdictions in meeting SORNA requirements. These include tools that enable jurisdictions to provide community notifications, mapping, and geocoding of sex offender locations. In addition, the SMART Office will provide a tool to perform reverse e-mail address and phone number lookups to let concerned individuals know if a given address is associated with a registered sex offender. Jurisdictions will be able to incorporate all of these tools into their own public sex offender registry websites.
• Tribe and territory sex offender registry system. The SMART Office is providing a full-functioning, SORNA-compliant, sex offender registry system to Indian tribes and territories that must comply with SORNA. Each tribe or territory that elects to use the centralized registry will have its own public website, private administrative website, and database that will make up its sex offender registry system. See "Free Registry Technology for Tribes and Territories" for more information.
• Communication resources. The SMART Office has provided a portal to facilitate information sharing among all of the SORNA registration jurisdictions. Each of the 253 registration jurisdictions (50 states, District of Columbia, 5 U.S. territories, and 197 Indian tribes) has a site on the portal and is eligible to designate users to access it. The portal allows jurisdictions to share documents and registration information, post contact information, and notify other jurisdictions when an offender is relocating.
• Technical assistance. The SMART Office is available for technical assistance of any kind regarding SORNA implementation. Policy advisors and grant specialists are available to assist jurisdictions with their implementation efforts, as well as provide grant solicitation and funding information. In addition, the SMART Office hosts an annual workshop and symposium on Sex Offender Management and Accountability for lawmakers, sex offender registry officials, policy advisors, law enforcement officials, parole and probation officers, prosecutors, and frontline professionals who monitor, register, track, and manage sex offenders.

Myth: The 10-percent Byrne Justice Assistance Grant (Byrne JAG) reduction occurs only once.

Fact: SORNA mandates that any state, territory, or the District of Columbia that is found not to be in compliance with SORNA, as determined by the SMART Office, will suffer a 10-percent reduction in Byrne JAG funds each year in which the jurisdiction remains noncompliant with SORNA.

Myth: The Dru Sjodin National Sex Offender Public Website is a national sex offender registration database containing registration information on sex offenders registered throughout the country.

Fact: The Dru Sjodin National Sex Offender Public Website (NSOPW) is not a database; rather, it acts as a search engine to search jurisdictions' sites. Because the data is hosted by each jurisdiction and not by the federal government, search results should be verified by the user in the jurisdiction where the information is posted. Users are advised to log on to pertinent jurisdictions' websites for further information and/or guidance, as appropriate.

Myth: NSOPW is maintained by the Federal Bureau of Investigation (FBI).

Fact: NSOPW is maintained by the SMART Office.

• The Dru Sjodin National Sex Offender Public Website is maintained by the SMART Office. It is accessible, free of charge, to any Internet user.
• The National Sex Offender Registry. The National Sex Offender Registry (NSOR) is a database maintained by the Federal Bureau of Investigation, and accessible only by law enforcement and other criminal justice agencies as part of the National Crime Information Center (NCIC).

Myth: All juvenile sex offenders must register.

Fact: Jurisdictions are only required to register juvenile delinquents if they are both 14 years of age or older at the time of the offense and adjudicated delinquent for certain serious sexually assaultive crimes.

• National Guidelines for Sex Offender Registration and Notification: It suffices for substantial implementation if a jurisdiction applies SORNA's requirements to juveniles at least 14 years old at the time of the offense who are adjudicated delinquent for committing (or attempting or conspiring to commit) offenses under laws that cover—
• Engaging in a sexual act with another by force or the threat of serious violence; or
• Engaging in a sexual act with another by rendering unconscious or involuntarily drugging the victim.

"Sexual act" for this purpose should be understood to include any degree of genital or anal penetration, and any oral-genital or oral-anal contact. See Juvenile Offenders Required to Register Under SORNA: A Fact Sheet for more information.

Myth: SORNA contains residency restrictions.

Fact: Residency restrictions and safety zones are NOT part of SORNA. All such restrictions are the result of jurisdictional or local legislation, not federal law or SORNA. Numerous jurisdictions and local entities do currently restrict sex offenders from living near, or being present within, certain areas (e.g., within a certain distance of schools, parks, or playgrounds). All inquiries regarding residency restrictions or safety zones are a matter to be addressed at the jurisdictional and local level.

A Fond Farewell to Director Laura L. Rogers

The SMART Office would like to extend a fond farewell to Laura L. Rogers, inaugural Director of the SMART Office. President Bush appointed Ms. Rogers in December 2006 to establish the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Since that time, Ms. Rogers expanded the staff to seven, including a Deputy Director, two Policy Advisors, two Grant Program Specialists, an Indian Country advisor, and an Administrative Assistant.

During her tenure, Ms. Rogers accomplished a great deal toward assisting jurisdictions with implementation of the Adam Walsh Child Protection and Safety Act, including traveling throughout the country offering guidance and assistance to jurisdictions. To further these efforts, the SMART Office also began hosting the annual National Workshop and Symposium on Sex Offender Management and Accountability.

In addition, Ms. Rogers supervised the establishment of the Adam Walsh Act Implementation Grants, oversaw the redesign of the Dru Sjodin National Sex Offender Public Website, and guided the development of web-based software resources provided free to jurisdictions. Under Ms. Rogers' direction, the SMART Office created and began publication of this newsletter, SMART Watch, and formed a working group on the International Tracking of Sex Offenders.

Ms. Rogers has accomplished much in a short period of time. The SMART Office is grateful for her leadership during this beginning phase of implementation. We wish her well in all her future endeavors.

News

Extension Request for SORNA Compliance

It has been more than 2 years since the Adam Walsh Child Protection and Safety Act was signed into law by President Bush. Title I of the Act, the Sex Offender Registration and Notification Act (SORNA), requires that jurisdictions substantially implement the minimum criteria required for sex offender registration and notification by July 27, 2009. SORNA does provide, however, that all registration jurisdictions can request up to two 1-year extensions for implementation.

If your jurisdiction plans to request an extension, the SMART Office asks that all extension requests be submitted by April 27, 2009. There is no penalty for submitting an extension request in advance of April 2009. For example, if a 1-year implementation extension is granted on January 30, 2009, the new compliance deadline would remain July 27, 2010. Given the expected high number of submissions for compliance and extension requests, early submissions will be reviewed on an expedited basis.

Successful extension requests should contain the following information:

• A detailed list of all efforts made by your jurisdiction toward substantial implementation.
• Any existing or proposed legislation, code or ordinance, or procedural or regulatory changes designed to bring the jurisdiction into compliance with SORNA. Provide details about the status of each proposed change.
• Information about the creation of any task force responsible for bringing the jurisdiction into compliance with SORNA. Include a task force membership list, the approximate number of times and dates the task force has met, and notable actions or outcomes from the task force efforts.
• Attendance of registration officials, legislators, tribal leaders, or other interested parties at professional trainings regarding SORNA, including the SMART workshop and symposium, and local, regional, or tribal training events.
• A public sex offender registry update. This update should include information on whether your jurisdiction has or intends to use the free software resources developed and provided by the SMART Office. If your jurisdiction does not intend to use these software resources, include information on your plan for achieving SORNA's minimum public sex offender registry requirements.
• A list of any SORNA technical assistance requests made to the SMART Office.
• A working plan for coming into compliance with SORNA by the extended deadline or, for tribes, within a reasonable time period after the deadline.

To receive an official extension, a letter from the agency tasked with implementation by the jurisdiction, or in the case of a tribe, a letter from the highest elected tribal official, must be submitted to—

Director, SMART Office
U.S. Department of Justice
810 Seventh St. NW, Suite 8240
Washington, DC 20531

For further assistance with filing an extension request, please contact the SMART Office at [email protected] or call 202-514-4689.

Specific Offenses Included Under SORNA

Most jurisdictions are familiar with the general categories of sex offenses that require registration under the Sex Offender Registration and Notification Act (SORNA); however, several sex offenses encompassed by SORNA merit special mention. Jurisdictions will need to ensure that all offenders convicted of the following categories of offenses are included in their registration schemes:

• "Intent" offenses
• Tribal offenses
• Territory offenses
• Military offenses
• Federal offenses
• Foreign offenses

"Intent" Offenses

SORNA clearly identifies that jurisdictions must register sex offenders convicted of "attempts" and "conspiracies" to commit SORNA qualifying sex offenses. The National Guidelines on Sex Offender Registration and Notification clarify that, within this requirement, jurisdictions must register offenses that include a specific element of "intent" to commit a sex offense. Examples of this requirement include, "breaking and entering with the intent to rape," or "assault with intent to commit aggravated sexual assault."

For further explanation, see page 18 of the National Guidelines on Sex Offender Registration and Notification.

Tribal Offenses

Many state and territorial jurisdictions are unfamiliar with the criminal codes governing Indian Country. Any tribal offense that meets the SORNA definition of "sex offense" must be captured in a jurisdiction's registration scheme. Because federal law limits all tribal convictions to sentences of less than 1 year, by default, these convictions fall into a SORNA tier I classification. However, all registration jurisdictions have discretion to classify these convictions in a higher tier.

Currently, some tribes do not maintain a written criminal code. There are multiple strategies that jurisdictions can employ to capture the tribal offenses that must be registered under SORNA. The SMART Office is available to discuss possible legislative or regulatory solutions to this issue.

Territory Offenses

SORNA incorporates the five principal U.S. territories (Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands) as registration jurisdictions. All SORNA registration jurisdictions will need to specifically include on their registry relevant sex offenders convicted from any of these five principal U.S. territories.

Military Offenses

Determining which military sex offense convictions require registration can be a complicated task. SORNA references the relevant offenses in subsections (5)(a)(iv) and (6) of 42 U.S.C. § 16911. By way of a series of cross-references, the list of military convictions that require registration is found in the Code of Federal Regulations (CFR), specifically at 28 C.F.R. § 571.72. The sex offenses listed in this CFR provision historically have corresponded to the Uniform Code of Military Justice (UCMJ). However, the UCMJ was restructured and expanded to include additional offenses with new organization at the end of 2007 (see 10 U.S.C. § 920 et. seq.).

The CFR provision has not yet been amended following the restructuring of the UCMJ. The SMART Office is currently working with the U.S. Department of Defense (DoD) to update the CFR provision and to facilitate the updating of DoD's standing instruction regarding sex offender registration.

The SMART Office is available to discuss the details of these military regulations and military offense registration requirements. When drafting legislation, it is important for jurisdictions to remember that many military offenses (e.g., conduct unbecoming) do not have a substantially similar counterpart on any state, tribal, or territory level.

Federal Offenses

SORNA specifically lists the federal sex offenses that require registration by way of reference to U.S. Code chapter headings. For clarity, the specific federal offenses requiring registration, as listed in SORNA, can be found in the SMART Compliance Checklist.

As with military offenses, there are federal offenses requiring registration (such as engaging in foreign travel with the intent to participate in illegal sexual conduct with a minor) that do not have a substantially similar counterpart on the state, tribal, or territory level.

Foreign Offenses

SORNA requires that jurisdictions register sex offense convictions obtained in certain foreign countries. The National Guidelines on Sex Offender Registration and Notification recognizes that some foreign judicial systems may not sustain court systems with equivalent fundamental fairness and due process that is constitutionally mandated in the United States. In the Guidelines, four countries—United Kingdom, Canada, Australia, and New Zealand—are recognized as maintaining judicial systems equivalent to the United States, and all sex offenders present in the United States with a SORNA-qualifying conviction from one of these listed countries must be registered. For all other countries, jurisdictions will need to refer to the U.S. Department of State's Annual Country Report on Human Rights for the year the conviction was obtained to determine if an offender received the same fundamental fairness and due process he or she would have received if prosecuted in the United States and, if so, then require the offender to register.

To find out if a certain foreign country met this standard for a particular year, therefore requiring registration for any sex offense conviction during that year, go to the State Department's Human Rights webpage.

Capturing foreign convictions presents a challenge in legislative or regulatory drafting, as a jurisdiction strives toward compliance with SORNA. The SMART Office is available to discuss additional ideas or assistance toward that end.

2009 National Symposium on Sex Offender Management and Accountability

The SMART Office is pleased to announce that this year's symposium is being held in Houston, Texas, from April 21–23, 2009. The symposium is expected to draw more than 800 participants from around the country.

There is no registration fee.

What Is Being Covered?

The symposium will encompass both plenary and breakout sessions with three tracks:

• Policy.
• Law Enforcement and Supervision.
• Indian Country.

Presentations will cover a wide range of topics related to sex offender management, as well as implementation of the Sex Offender Registration and Notification Act (SORNA). The SMART Office also will be showcasing the redesigned Dru Sjodin National Sex Offender Public Website.

Who Should Attend?

Professionals in the field should attend, including:

• Law enforcement officials.
• Parole officers.
• Probation officers.
• Federal, state, and local prosecutors.
• Tribal leaders.
• Sex offender monitoring officials.
• Sex offender registry technical personnel.
• SORNA policy advisors.

Where Can I Find Out More?

Find out more about the symposium here.

2008 Grant Awards and Future Funding Opportunities

In September 2008, the SMART Office awarded 27 grants, totaling $3.9 million, under the Support for Adam Walsh Act Implementation Grant Program. The grants were awarded as follows:

• Eleven to federally recognized Indian tribes.
• Five to states.
• Ten to units of local government.
• One to a territory.

These awards support an array of projects, including enhancements to information technology programs, support for sex offender registration programs, and multiagency task force operations targeting noncompliant sex offenders.

Under the Comprehensive Approaches to Sex Offender Management Training and Technical Assistance Program, the SMART Office awarded a national-level training and technical assistance grant to Fox Valley Technical College to develop a national curriculum on sex offender management and accountability. The curriculum will be provided to jurisdictions throughout the Nation and will incorporate Sex Offender Registration and Notification Act (SORNA) issues as they relate to sex offender management. This grant also supports the development of a tribal curriculum to be offered to tribes that have elected to implement SORNA requirements. Recognizing that tribes have not previously been required to act as sex offender registration jurisdictions, the SMART Office will use the curriculum and technical assistance provided through this grant to support tribes with SORNA implementation and build tribal capacity to establish and maintain sex offender registration programs.

The Funding Resources page of the SMART Office website lists all grant awards. Click on the program title to see who was funded under the Support for Adam Walsh Act Implementation Grant Program and the Comprehensive Approaches to Sex Offender Management Training and Technical Assistance Program.

The SMART Office anticipates releasing two solicitations in Fiscal Year (FY) 2009. Funding for applications submitted under these solicitations is contingent on a final FY 2009 federal budget. To find out more about future funding opportunities from the SMART Office, begin checking Grants.gov and the SMART Office website in January 2009.

Justice Department and Indian Law Expert Working Groups Convened

The SMART Office has convened two Indian Country working groups. The first group consists of Indian Country experts from the U.S. Department of Justice and is focusing on complex issues of law raised during implementation of the Sex Offender Registration and Notification Act (SORNA) in Indian Country. This group initially met in September 2008 and continues to work on these issues with the Office of Justice Programs' SMART Office and the Office of General Counsel.

In addition, the SMART Office is working with several respected Indian law experts from around the country on model codes, memorandums of agreement, and cooperative agreements. This second working group met in November 2008, in the District of Columbia. Ongoing participants in this endeavor with SMART staff are—

• Joshua J. Breedlove, Staff Attorney for the Mississippi Band of Choctaw Indians.
• M. Brent Leonhard, Deputy Attorney General for the Confederated Tribes of the Umatilla Indian Reservation.
• Pablo H. Padilla, Attorney with the Nordhaus Law Firm.
• Sarah Deer, Professor, William Mitchell School of Law.
• Maureen White Eagle, Attorney with the Tribal Law and Policy Institute.
• Hallie Bonger White, Attorney and Executive Director for the Southwest Center for Law and Policy.
• Michelle Rivard, Associate Director, Tribal Judicial Institute, University of North Dakota School of Law.
• Sarah Brubaker, Prosecutor for the Grand Traverse Band of Ottawa and Chippewa Indians.
• Virginia Davis, Associate Counsel for the National Congress of American Indians.

The goal of this working group is to provide a SORNA-compliant template or sample language for tribal leaders to consider as they work to implement SORNA by the statutory deadline.

Resources

New and Improved Dru Sjodin National Sex Offender Public Website

Since its debut in 2005, more than 17 million parents, employers, and other concerned members of the public have accessed the Dru Sjodin National Sex Offender Public Website (NSOPW) to identify registered sex offenders not only in their own neighborhoods, but in other communities and states, as well. As a secure and reliable national search site, NSOPW continues to be a crucial resource to safeguard the public against sex offenders and promote safety and security in communities across the country.

The website, initially known as the National Sex Offender Public Registry (NSOPR), was established in 2005. It was renamed the Dru Sjodin National Sex Offender Public Website in 2006 by the Adam Walsh Child Protection and Safety Act to more accurately reflect its purpose and to honor 22-year-old college student Dru Sjodin of Grand Forks, North Dakota, who was kidnapped and murdered on November 22, 2003, by a sex offender who crossed state lines to commit his crime. In accordance with the new name, the domain name has been changed to www.nsopw.gov.

Because NSOPW is a vital component of public safety, it is imperative that the website include the most up-to-date information and technological features available. Since NSOPW was launched 3 years ago, website development, design, and functionality has improved. Accordingly, the SMART Office, in conjunction with the Institute for Intergovernmental Research, recently redesigned NSOPW to ensure its continued success. On December 1, 2008, a new version of NSOPW, along with its new domain name, was launched with several improvements and enhancements (see press release). The website includes:

• Improved navigation. NSOPW has better graphics and an improved navigation system that provides a more user-friendly experience.
• Improved search features. Realizing that NSOPW's search capabilities are paramount to its success, an assessment was made of how most people use the site to search for information. In response to those findings, improved "standard" and "advanced" search options were implemented that are more consistent with the way that searches are conducted on NSOPW. These improved features provide a more streamlined search, producing relevant results more rapidly.
• Frequently Asked Questions. Answers to commonly posed questions are now available on the Frequently Asked Questions page of the website.
• Links to participating jurisdictions' registry websites. Providing these links allows users to easily access a specific jurisdiction for additional information.

The website will continue to be enhanced as more jurisdictions sign on and as they work to comply with the Sex Offender Registration and Notification Act (SORNA), thereby increasing the amount of information provided to NSOPW and ultimately to the public.

Free Registry Technology for Tribes and Territories

Under the Sex Offender Registration and Notification Act (SORNA), non-PL 280 tribes were able to elect to function as a sex offender registration jurisdiction or to delegate this responsibility to the state. Out of 212 tribes eligible to make this decision, 197 ultimately elected to take on the sex offender registration responsibilities. Currently, the 197 tribes and three U.S. territories are without an online registry. These jurisdictions must establish a public sex offender registry to comply with SORNA. Many tribes have expressed concern about the technological requirements to register and track sex offenders.

To assist in this endeavor, the SMART Office, in partnership with the Institute for Intergovernmental Research, is developing the Tribal and Territory Sex Offender Registry System (TTSORS). This free tool is being created to provide the 197 Indian tribes and three territories with a fully functioning online sex offender registry. Each tribe or territory that elects to use the registry system will have its own public website, private administrative website, and database that will make up its sex offender registry system.

• The public website will allow the general public to search for sex offenders within the registry, register a physical address so they are notified when sex offenders relocate near them, and search for email addresses that belong to registered sex offenders.
• The private administrative website will be a secure site used by approved tribal members or territory officials to add, edit, and delete registered sex offender information and to manage the design of the public website.
• The database will store the information about registered sex offenders within the territory or on the tribal reservation.

In addition, the tribes and territories that elect to use TTSORS will automatically be connected to and participate with the Dru Sjodin National Sex Offender Public Website, which is another requirement of SORNA.

To make TTSORS as efficient as possible, the jurisdictional registries will be hosted in a central location, relieving participating tribes and territories of the responsibility for purchasing or managing any new hardware. Furthermore, tribes or territories will need only a single computer with Internet access to use the system and to manage their own sex offender registry. Contact the SMART Office for further information.