Congress delegated to the Attorney General the authority to determine whether a jurisdiction has substantially implemented Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA) (see 34 U.S.C. § 20927). The SORNA National Guidelines interpret and define “substantial implementation” and further clarify that the SMART Office is responsible for determining whether a jurisdiction has substantially implemented SORNA requirements (see The National Guidelines for Sex Offender Registration and Notification, Federal Register, July 2, 2008, pp. 38047-48).
When making a substantial implementation determination, the SMART Office is required to follow the standards set forth in SORNA and the Attorney General Guidelines, which indicate that jurisdictions’ programs cannot be approved if they substitute some basically different approach to sex offender registration and notification that does not incorporate SORNA's baseline requirements or if they dispense wholesale with categorical requirements set forth in SORNA. The substantial implementation standard does contemplate that there is some latitude to approve a jurisdiction’s implementation efforts, even if they do not exactly follow in all respects the specifications of SORNA or the National Guidelines.
The National Guidelines require the SMART Office to consider, on a case-by-case basis, whether jurisdictions’ laws and procedures substantially implement SORNA. Accordingly, for each jurisdiction, the SMART Office must assess whether a jurisdiction’s proposed deviation from a particular SORNA requirement does or does not substantially disserve the requirement’s objectives. This approach necessitates an individualized review of each jurisdiction’s SORNA program. After assessing whether a jurisdiction has sufficiently addressed each SORNA requirement, the SMART Office makes an initial determination as to whether a jurisdiction has substantially implemented SORNA, and thereafter an annual determination to ensure ongoing implementation.
To provide the best possible guidance, jurisdictions are encouraged to contact the SMART Office as early as possible when developing any legislation, policies or procedures designed to implement SORNA. The SMART Office will be as flexible as possible within the framework established by SORNA, the National Guidelines and Supplemental Guidelines, and will provide technical assistance to each jurisdiction in its implementation of SORNA.
To download all of the documents, click here.