34 U.S.C. § 20927(a) sets forth the following penalty for jurisdictions that fail to substantially implement Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA):
For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this [title] shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968.
Thus, a registration jurisdiction that fails to substantially implement SORNA is subject to a 10 percent penalty reduction in its Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) formula funds.
Each of the 50 states, five principal territories, and the District of Columbia qualify for annual allocations under the Byrne JAG formula and therefore are subject to the penalty reduction if they fail to substantially implement the requirements of SORNA.
Calculating allocations under the Byrne JAG formula is a multi-step process. First, initial allocations to the states, territories and the District of Columbia are calculated based on population and violent crime statistics, and certain adjustments are made to ensure awards do not fall below a certain minimum amount of funds for each state, territory and the District of Columbia. These initial allocations determine the amount that is awarded within each of these jurisdictions, but not the amount that is awarded to the state, territory or District of Columbia government itself. Rather, of this initial allocation, 60 percent goes directly to the jurisdiction, whereas 40 percent goes to qualifying units of local government and tribes within that jurisdiction.
Speaking broadly, if a jurisdiction fails to substantially implement SORNA, the 10 percent penalty reduction in its Byrne JAG formula funds will be applied to the 60 percent in direct grants to states, territories, and the District of Columbia, and not the 40 percent in grants to local governments and tribes within the jurisdiction. Important exceptions to this broad statement relate to amounts for required subawards and amounts allocated to small jurisdictions. More information about the JAG formula and the SORNA penalty calculation is available in the Byrne JAG Program Frequently Asked Questions (https://bja.ojp.gov/doc/jag-faqs.pdf
For practical purposes, the penalty will be applied in the fiscal year following the deadline for implementation. For example, if a jurisdiction has been found by the SMART Office to have not substantially implemented SORNA or is no longer substantially implementing SORNA in 2023, the reduction will be 10 percent of the FY 2024 Byrne JAG award, imposed when the FY 2024 awards are made.
For funds withheld, SORNA provides the opportunity to have those funds reallocated. Specifically, under 34 U.S.C. § 20927(c):
Amounts not allocated under a program referred to in this section to a jurisdiction for failure to substantially implement this [title] shall be reallocated under that program to jurisdictions that have not failed to substantially implement this [title] or may be reallocated to a jurisdiction from which they were withheld to be used solely for the purpose of implementing this [title].
For any jurisdiction that has been penalized and wishes to have these funds reallocated to be used solely for implementation of SORNA, that jurisdiction must submit its request in writing to the SMART Office. Requests must include a detailed plan and timeline for substantial implementation. The final decision on such requests will be made by the Assistant Attorney General for the Office of Justice Programs, U.S. Department of Justice.
Jurisdictions have an ongoing obligation to implement and maintain SORNA status, which will be determined annually by the SMART Office. The Byrne JAG reduction penalty may be applied each year a jurisdiction has not implemented SORNA or has been determined by the SMART Office to no longer be substantially implementing SORNA.
Additionally, jurisdictions that have substantially implemented SORNA may have bonus funds applied to their next fiscal year Byrne JAG award. This bonus allocation is calculated based on total funds resulting from the Byrne JAG reductions from non-implementing states, territories and the District of Columbia during that current fiscal year. For example, if a state substantially implemented SORNA in FY 2022, then that state would have additional bonus funds added to its FY 2023 State Byrne JAG award, which will be comprised of Byrne JAG reductions from non-implementing jurisdictions that did not receive reallocation in FY 2022. The amounts available for bonus funds will vary from year to year, depending on the amount of Byrne JAG reductions that are assessed.
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