Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification Act, 21397-21400 [2016-08249]
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Federal Register / Vol. 81, No. 69 / Monday, April 11, 2016 / Notices
located in contiguous counties are not
expected to provide services to tribal
lands and will be ineligible to complete
the survey. For these entities the burden
will be less than 5 minutes. Of the
remaining 204 prosecutor offices, we
expect a 95% response rate, or 194
offices. It will take the average
respondent an estimated 60 minutes to
respond and 15 minutes for any
response verification.
(6) An estimate of the total public
burden (in hours) associated with the
collection: There are an estimated 243
total burden hours associated with this
collection.
If additional information is required
contact: Jerri Murray, Department
Clearance Officer, United States
Department of Justice, Justice
Management Division, Policy and
Planning Staff, Two Constitution
Square, 145 N Street NE., 3E.405B,
Washington, DC 20530.
Dated: April 5, 2016.
Jerri Murray,
Department Clearance Officer for PRA, U.S.
Department of Justice.
[FR Doc. 2016–08194 Filed 4–8–16; 8:45 am]
BILLING CODE 4410–18–P
DEPARTMENT OF JUSTICE
Office of the Attorney General
[Docket No. OAG 151; AG Order No. 3659–
2016]
RIN 1121–AA87
Supplemental Guidelines for Juvenile
Registration Under the Sex Offender
Registration and Notification Act
Department of Justice.
Notice; proposed guidelines.
AGENCY:
ACTION:
The Sex Offender Registration
and Notification Act (SORNA) requires
registration of individuals convicted of
sex offenses as adults and, in addition,
registration of juveniles adjudicated
delinquent for certain serious sex
offenses. SORNA also provides for a
reduction of justice assistance funding
to eligible jurisdictions that fail to
‘‘substantially implement’’ SORNA’s
requirements, including the juvenile
registration requirement, in their sex
offender registration programs. These
proposed guidelines provide guidance
regarding the substantial
implementation of the juvenile
registration requirement by eligible
jurisdictions. The Justice Department’s
Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering,
and Tracking will examine the
following factors when assessing
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SUMMARY:
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whether a jurisdiction has substantially
implemented SORNA’s juvenile
registration provisions: Policies and
practices to prosecute as adults
juveniles who commit serious sex
offenses; policies and practices to
register juveniles adjudicated
delinquent for serious sex offenses; and
other policies and practices to identify,
track, monitor, or manage juveniles
adjudicated delinquent for serious sex
offenses who are in the community and
to ensure that the records of their
identities and sex offenses are available
as needed for public safety purposes. By
affording jurisdictions greater flexibility
in their efforts to substantially
implement SORNA’s juvenile
registration requirement, the proposed
guidelines will further SORNA’s public
safety objectives in relation to serious
juvenile sex offenders and facilitate
jurisdictions’ substantial
implementation of all aspects of
SORNA. The proposed guidelines
concern only substantial
implementation of SORNA’s juvenile
registration requirement and do not
affect substantial implementation of
SORNA’s registration requirements for
individuals convicted of sex offenses as
adults.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before June 10,
2016. Comments received by mail will
be considered timely if they are
postmarked on or before that date. The
electronic Federal Docket Management
System (FDMS) will accept comments
until midnight Eastern Time at the end
of that day.
ADDRESSES: To ensure proper handling
of comments, please reference OAG
Docket No. 151 in all electronic and
written correspondence. The
Department encourages the electronic
submission of all comments through
https://www.regulations.gov using the
electronic comment form provided on
that site. An electronic copy of this
document is also available at the https://
www.regulations.gov Web site for easy
reference. Paper comments that
duplicate the electronic submission are
not necessary as all comments
submitted to https://www.regulations.gov
will be posted for public review and are
part of the official docket record. Should
you, however, wish to submit written
comments by mail, they should be sent
to Luis C.deBaca, Director, SMART
Office, Office of Justice Programs,
United States Department of Justice, 810
7th St. NW., Washington, DC 20531.
FOR FURTHER INFORMATION CONTACT: Luis
C.deBaca, Director, Office of Sex
Offender Sentencing, Monitoring,
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Apprehending, Registering, and
Tracking; Office of Justice Programs,
United States Department of Justice,
Washington, DC, (202) 514–4689.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments
received are considered part of the
public record and made available for
public inspection online at https://
www.regulations.gov. Such information
includes personal identifying
information (such as your name and
address) voluntarily submitted by the
commenter.
You are not required to submit
personal identifying information in
order to comment on these proposed
guidelines. Nevertheless, if you want to
submit personal identifying information
(such as your name and address) as part
of your comment, but do not want it to
be posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You also must locate
all of the personal identifying
information that you do not want posted
online in the first paragraph of your
comment and identify what information
you want redacted.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You also must
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted on https://
www.regulations.gov.
Personal identifying information and
confidential business information
identified and located as set forth above
will be placed in the agency’s public
docket file, but not posted online. If you
wish to inspect the agency’s public
docket file in person by appointment,
please see the paragraph above entitled
FOR FURTHER INFORMATION CONTACT.
Background
The Sex Offender Registration and
Notification Act (‘‘SORNA’’), title I of
the Adam Walsh Child Protection and
Safety Act of 2006, Public Law 109–248,
was enacted on July 27, 2006. SORNA
(42 U.S.C. 16901 et seq.) establishes
minimum national standards for sex
offender registration and notification in
the jurisdictions to which it applies.
‘‘Jurisdictions’’ in the relevant sense are
the 50 states, the District of Columbia,
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Federal Register / Vol. 81, No. 69 / Monday, April 11, 2016 / Notices
the five principal U.S. territories, and
federally recognized Indian tribes that
satisfy certain criteria. 42 U.S.C.
16911(10).
SORNA provides a financial incentive
for eligible jurisdictions to adopt its
standards, by requiring a 10 percent
reduction of federal justice assistance
funding to an eligible jurisdiction if the
Attorney General determines that the
jurisdiction has failed to ‘‘substantially
implement’’ SORNA. 42 U.S.C.
16925(a). SORNA also directs the
Attorney General to issue guidelines
and regulations to interpret and
implement SORNA. See id. 16912(b). To
this end, the Attorney General issued
the National Guidelines for Sex
Offender Registration and Notification
(‘‘SORNA Guidelines’’), 73 FR 38030, on
July 2, 2008, and the Supplemental
Guidelines for Sex Offender Registration
and Notification (‘‘Supplemental
Guidelines’’), 76 FR 1630, on January
11, 2011. The Justice Department’s
Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering,
and Tracking (‘‘SMART Office’’) assists
all jurisdictions in their SORNA
implementation efforts and determines
whether they have substantially
implemented SORNA’s requirements in
their registration and notification
programs. See 42 U.S.C. 16945; 73 FR at
38044, 38047–48; 76 FR at 1638–39.
In addition to requiring registration
based on adult convictions for sex
offenses, SORNA includes as covered
‘‘sex offender[s]’’ juveniles at least 14
years old who have been adjudicated
delinquent for particularly serious sex
offenses. 42 U.S.C. 16911(1), (8); see id.
16913 (setting forth registration
requirements). In relation to the juvenile
registration requirement, as in other
contexts, the SMART Office
‘‘consider[s] on a case-by-case basis
whether jurisdictions’ rules or
procedures that do not exactly follow
the provisions of SORNA . . .
‘substantially’ implement SORNA,
assessing whether the departure from a
SORNA requirement will or will not
substantially disserve the objectives of
the requirement.’’ 73 FR at 38048.
The SORNA Guidelines explained, in
particular, that substantial
implementation of SORNA need not
include registration of juveniles
adjudicated delinquent for certain lesser
offenses within the scope of SORNA’s
juvenile registration provisions. The
Guidelines stated that jurisdictions can
achieve substantial implementation if
they cover offenses by juveniles at least
14 years old that consist of engaging (or
attempting or conspiring to engage) in a
sexual act with another by force or the
threat of serious violence or by
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rendering unconscious or involuntarily
drugging the victim. Id. at 38050. This
interpretation of substantial
implementation addressed concerns
about the potential registration of
juveniles in some circumstances based
on consensual sexual activity with other
juveniles, which is outside the scope of
the coverage required by the Guidelines.
See id. at 38040–41.
The Supplemental Guidelines
included a subsequent change affecting
the treatment of all persons required to
register on the basis of juvenile
delinquency adjudications. SORNA
authorizes the Attorney General to
create exemptions from SORNA’s
requirement that information about
registered sex offenders be made
available to the public through Web site
postings and other means. See 42 U.S.C.
16918(c)(4), 16921(b). The
Supplemental Guidelines noted that the
SORNA Guidelines had endeavored to
facilitate jurisdictions’ compliance with
SORNA’s registration requirement for
‘‘juveniles at least 14 years old who are
adjudicated delinquent for particularly
serious sex offenses,’’ but that
‘‘resistance by some jurisdictions to
public disclosure of information about
sex offenders in this class has continued
to be one of the largest impediments to
SORNA implementation.’’ 76 FR at
1636. The Attorney General accordingly
exercised his exemption authority ‘‘to
allow jurisdictions to exempt from
public . . . disclosure information
concerning sex offenders required to
register on the basis of juvenile
delinquency adjudications.’’ Id. This
exemption did not change the
requirement that such juveniles be
registered and that information about
them be transmitted or made available
‘‘to the national (non-public) databases
of sex offender information, to law
enforcement and supervision agencies,
and to registration authorities in other
jurisdictions.’’ Id. at 1637.
Based on additional experience with
SORNA implementation, and further
reflection on the practicalities and
effects of juvenile registration, these
proposed guidelines modify the
approach the SMART Office will take in
assessing whether a jurisdiction has
substantially implemented SORNA’s
juvenile registration requirement. As
explained below, the modification will
enhance public safety by incentivizing a
broader range of measures that may
protect the public from serious juvenile
sex offenders.
While most states provide for
registration of some sex offenders based
on juvenile delinquency adjudications,
many do not or do so only on a
discretionary basis. See SMART Office,
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SMART Summary: Prosecution,
Transfer, and Registration of Serious
Juvenile Sex Offenders 10–11, 24–29
(Mar. 2015) (‘‘SMART Juvenile
Summary’’), www.smart.gov/pdfs/
smartjuvenilessum.pdf. Too rigid an
approach to implementation of the
juvenile registration aspect of SORNA,
which affects a limited subclass of sex
offenders, may conflict at a practical
level with the objective of implementing
SORNA’s more broadly applicable
reforms, which affect the whole
universe of convicted sex offenders.
This occurs when a jurisdiction’s
unwillingness or inability to implement
the juvenile registration requirement
discourages or stymies further efforts to
implement SORNA generally, because
the deficit regarding juvenile
registration alone precludes approval of
the jurisdiction as having substantially
implemented SORNA. Moreover, the
juvenile registration requirement is in
some respects unique in terms of its
scope and rationale and the potential for
furthering its objectives by other means.
First, juveniles may be subject to
prosecution in either of two distinct
justice systems—the juvenile justice
system or the adult criminal justice
system. The SORNA Guidelines provide
that registration jurisdictions may
substantially implement SORNA’s
juvenile registration requirement by
registering persons at least 14 years old
at the time of the offense who are
adjudicated delinquent for an offense
amounting to rape or its equivalent, or
an attempt or conspiracy to commit
such an offense. See 73 FR at 38041,
38050. Practically all states authorize or
require adult prosecution for many or
all such juveniles. See SMART Juvenile
Summary 5–9, 16, 19–23. Where
juveniles are prosecuted as adults, the
resulting convictions are treated as adult
convictions under SORNA, and
SORNA’s general provisions require the
sex offender to register. See 73 FR at
38050.
Consequently, a jurisdiction may
advance SORNA’s public safety goals in
relation to serious juvenile sex offenders
not only by prescribing mandatory
registration for those offenders
adjudicated delinquent, but also by
prosecuting such offenders in the adult
criminal justice system. Consider a
jurisdiction that normally subjects sex
offenders in SORNA’s juvenile
registration category to adult
prosecution and conviction, with
resulting registration, but that does not
have mandatory registration for the
relatively few offenders in this category
who are proceeded against in the
juvenile justice system. With respect to
most sex offenders, the jurisdiction
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protects the public through registration
at least as effectively as a jurisdiction
that proceeds against more offenders as
juveniles and has mandatory
registration based on delinquency
adjudications, because all individuals
convicted of qualifying sex offenses as
adults are required to register. In some
respects, a jurisdiction oriented towards
adult prosecution of the most serious
juvenile sex offenders may more
effectively advance SORNA’s public
safety objectives, because prosecution as
an adult also makes available the more
substantial incarceration and
supervision sanctions of the adult
criminal justice system. But if
mandatory juvenile registration is
treated as a sine qua non of substantial
SORNA implementation, that
jurisdiction could not be approved as
having substantially implemented
SORNA.
A second feature unique to juvenile
sex offenders is that SORNA requires
registration only for certain juveniles
who are adjudicated delinquent for
particularly serious sex offenses—that
is, sex offenses that are ‘‘comparable to
or more serious than aggravated sexual
abuse’’ (or attempt or conspiracy to
commit such offenses). 42 U.S.C.
16911(8). Jurisdictions that allow for
discretionary registration of juveniles
adjudicated delinquent for sex offenses
may in practice capture many of the
juveniles in SORNA’s juvenile
registration category—especially those
who pose the most danger to others—in
their registration schemes. Rather than
simply rejecting a jurisdiction’s
approach to juvenile registration for
having a discretionary aspect,
examination of these registration
programs as applied would allow the
SMART Office to determine whether,
when considered as part of a
jurisdiction’s overall registration
scheme, this variance does or does not
substantially disserve SORNA’s
purposes.
Considering discretionary juvenile
registration might appear to be
inconsistent with the response to public
comments accompanying the issuance
of the SORNA Guidelines, which stated
that registration as ‘‘a matter of judicial
discretion’’ is insufficient to
substantially implement SORNA’s
juvenile registration requirement. 73 FR
at 38038. However, that response
addressed comments urging that
discretionary registration should in
itself be considered sufficient
implementation of SORNA’s
requirements, ‘‘ignor[ing] what SORNA
provides on this issue, and instead
do[ing] something different that the
commenters believe to be better policy.’’
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Id. That is not the approach of these
proposed guidelines, which
contemplate that the SMART Office will
consider the full range of pertinent
measures a jurisdiction may adopt, and
do not assume that simply replacing a
mandatory registration requirement
with a discretionary one achieves in
substance what SORNA requires. For
example, consider a jurisdiction that (i)
largely requires registration by sex
offenders in SORNA’s juvenile
registration class because those
offenders are likely to be prosecuted and
convicted in the adult criminal justice
system, (ii) allows registration on a
discretionary basis for sex offenders
who remain in the juvenile justice
system, and (iii) provides other effective
post-release monitoring and
identification measures for juvenile sex
offenders as discussed below. In
assessing whether such a jurisdiction
has substantially implemented
SORNA’s juvenile registration
requirement, it is appropriate to take
into account the jurisdiction’s
discretionary registration of adjudicated
delinquents along with other factors,
and doing so does not conflict with the
prior rejection of approaches that
‘‘ignore[ ] what SORNA provides.’’ Id.
A third feature specific to the juvenile
context is the prevalence of juvenile
confidentiality provisions, which can
limit the availability of information
about the identities, locations, and
criminal histories of juvenile sex
offenders. Potential consequences of
these confidentiality provisions include
that (i) law enforcement agencies may
lack information about certain sex
offenders in their areas that could, if
known, assist in solving new sex crimes
and apprehending the perpetrators; (ii)
sex offenders may be less effectively
discouraged from engaging in further
criminal conduct, because the
authorities do not know their identities,
locations, and criminal histories; and
(iii) offenders’ histories of sexual
violence or child molestation, which
might disqualify them from positions
giving them control over or access to
potential victims (such as childcare
positions), may not be disclosed through
background check systems or
affirmative notice to appropriate
authorities. These confidentiality
provisions accordingly may negatively
affect the achievement of SORNA’s
public safety objectives. See 73 FR at
38044–45, 38060–61. Congress’s
decision to subject certain juvenile sex
offenders to SORNA’s registration
requirements was an effort to overcome
risks to the public posed by juvenile
confidentiality requirements that
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21399
Congress considered too broad. See H.R.
Rep. No. 109–218, pt. 1, at 25 (2005).
A jurisdiction that does not
implement juvenile registration in the
exact manner specified in SORNA’s
juvenile registration provisions may
nevertheless adopt other measures that
address the underlying concerns as part
of its substantial implementation of
SORNA. For example, a jurisdiction
may have means of monitoring or
tracking juvenile sex offenders
following release, such as extended
post-release supervision regimes or
address-reporting requirements, that
may not incorporate all aspects of
SORNA’s registration system, but that
may nevertheless help law enforcement
agencies to identify the sex offenders in
their areas and the perpetrators of new
sex offenses. Confidentiality
requirements for juvenile records may
be appropriately defined and limited so
as not to conceal risks to potential
victims from persons who committed
serious sex offenses as juveniles.
In sum, a number of factors are
reasonably considered in ascertaining
whether a jurisdiction has substantially
implemented SORNA’s juvenile
registration provisions, which have not
been articulated or given weight to the
same extent under previous guidelines.
Accordingly, in these proposed
guidelines, the Attorney General
expands the matters that the SMART
Office will consider in determining
substantial implementation of this
SORNA requirement. This expansion
recognizes that jurisdictions may adopt
myriad robust measures to protect the
public from serious juvenile sex
offenders, and will help to promote and
facilitate jurisdictions’ substantial
implementation of all aspects of
SORNA.
Proposed Supplemental Guidelines for
Juvenile Registration Under the Sex
Offender Registration and Notification
Act
If a jurisdiction does not register
juveniles at least 14 years old who are
adjudicated delinquent for particularly
serious sex offenses in exact conformity
with SORNA’s provisions—for example,
because the jurisdiction uses a
discretionary process for determining
such registration—the SMART Office
will examine the following factors when
assessing whether the jurisdiction has
nevertheless substantially implemented
SORNA’s juvenile registration
requirements: (i) Policies and practices
to prosecute as adults juveniles who
commit serious sex offenses; (ii) policies
and practices to register juveniles
adjudicated delinquent for serious sex
offenses; and (iii) other policies and
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practices to identify, track, monitor, or
manage juveniles adjudicated
delinquent for serious sex offenses who
are in the community and to ensure that
the records of their identities and sex
offenses are available as needed for
public safety purposes. Consistent with
the requirements for other aspects of a
jurisdiction’s program that do not
exactly follow SORNA’s provisions, a
jurisdiction that seeks to rely on these
factors in establishing substantial
implementation must identify any
departure from SORNA’s requirements
in its submission to the SMART Office
and ‘‘explain why the departure from
the SORNA requirements should not be
considered a failure to substantially
implement SORNA.’’ 73 FR at 38048.
The SMART Office will determine that
a jurisdiction relying on these factors
has substantially implemented
SORNA’s juvenile registration
requirement only if it concludes that
these factors, in conjunction with that
jurisdiction’s other policies and
practices, have resulted or will result in
the registration, identification, tracking,
monitoring, or management of juveniles
who commit serious sex offenses, and in
the availability of the identities and sex
offenses of such juveniles as needed for
public safety purposes, in a manner that
does not substantially disserve
SORNA’s objectives.
Dated: March 14, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016–08249 Filed 4–8–16; 8:45 am]
BILLING CODE 4410–18–P
LEGAL SERVICES CORPORATION
Sunshine Act Meeting
The Legal Services
Corporation’s Board of Directors and its
six committees will meet April 17–19,
2016. On Sunday, April 17, the first
meeting will commence at 2:00 p.m.,
Eastern Standard Time (EST), with the
meeting thereafter commencing
promptly upon adjournment of the
immediately preceding meeting. On
Monday, April 18, the first meeting will
commence at 9:00 a.m., EST, with the
next meeting commencing promptly
upon adjournment of the immediately
preceding meeting. On Tuesday, April
19, the first meeting will commence at
8:45 a.m., EST, it will be followed by
the closed session meeting of the Board
of Directors which will commence
promptly upon adjournment of the prior
meeting.
mstockstill on DSK4VPTVN1PROD with NOTICES
DATE AND TIME:
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3333 K Street NW., 3rd Floor,
F. McCalpin Conference Center
Washington, DC 20007.
PUBLIC OBSERVATION: Unless otherwise
noted herein, the Board and all
committee meetings will be open to
public observation. Members of the
public who are unable to attend in
person but wish to listen to the public
proceedings may do so by following the
telephone call-in directions provided
below.
CALL-IN DIRECTIONS FOR OPEN SESSIONS:
• Call toll-free number: 1–866–451–
4981;
• When prompted, enter the
following numeric pass code:
5907707348
• When connected to the call, please
immediately ‘‘MUTE’’ your telephone.
Members of the public are asked to
keep their telephones muted to
eliminate background noises. To avoid
disrupting the meeting, please refrain
from placing the call on hold if doing so
will trigger recorded music or other
sound. From time to time, the presiding
Chair may solicit comments from the
public.
LOCATION:
Institutional Advancement
Committee—Open, except that the
meeting may be closed to the public to
receive a briefing on the donor report.**
Audit Committee—Open, except that
the meeting may be closed to the public
to hear a briefing on the Office of
Compliance and Enforcement’s active
enforcement matters, and a report on the
integrity of electronic data.**
A verbatim written transcript will be
made of the closed sessions of the
Board, Institutional Advancement
Committee, and Audit Committee. The
transcript of any portions of the closed
sessions falling within the relevant
provisions of the Government in the
Sunshine Act, 5 U.S.C. 552b(c)(6) and
(10), will not be available for public
inspection. A copy of the General
Counsel’s Certification that, in his
opinion, the closing is authorized by
law will be available upon request.
MATTERS TO BE CONSIDERED:
April 17, 2016
Institutional Advancement Committee
1. Approval of agenda
2. Approval of minutes of the
Committee’s meeting on January 29,
MEETING SCHEDULE
2016
3. Approval of minutes of the
Time *
Committee’s telephonic meeting on
March 22, 2016
Sunday, April 17, 2016:
4. Development Report
1. Institutional Advancement
Committee ...........................
2:00 p.m. 5. Update on Leaders Council
2. Communications Sub6. Public Comment
committee of the Institu7. Consider and act on other business
tional Advancement Com8. Consider and act on motion to
mittee
adjourn open session meeting and
3. Governance & Performance
proceed to a closed session
Review Committee
Closed Session
Monday, April 18, 2016:
1. Approval of the minutes of the
1. Operations & Regulations
Committee’s Closed Session
Committee ...........................
9:00 a.m.
meeting on January 29, 2016
2. Delivery of Legal Services
2. Donor Report
Committee.
3. Consider and act on motion to
3. Audit Committee.
4. Finance Committee.
adjourn the meeting
5. Board of Directors.
Tuesday, April 19, 2016:
1. Board of Directors ...............
April 17, 2016
8:45 a.m.
Open, except as
noted below.
Board of Directors—Open, except
that, upon a vote of the Board of
Directors, a portion of the meeting may
be closed to the public to hear briefings
by management and LSC’s Inspector
General, and to consider and act on the
General Counsel’s report on potential
and pending litigation involving LSC,
and on a list of prospective funders.**
Communications Subcommittee of the
Institutional Advancement Committee
Open Session
1. Approval of agenda
2. Approval of minutes of the
Subcommittee’s meeting on January
29, 2016
3. Communications analytics update
4. Update on youth pamphlet
5. Public comment
6. Consider and act on other business
7. Consider and act on motion to
adjourn the meeting
* Please note that all times in this notice are in
Eastern Standard Time.
** Any portion of the closed session consisting
solely of briefings does not fall within the Sunshine
Act’s definition of the term ‘‘meeting’’ and,
therefore, the requirements of the Sunshine Act do
not apply to such portion of the closed session. 5
U.S.C. 552b(a)(2) and (b). See also 45 CFR
§ 1622 1622.3.
STATUS OF MEETING:
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Agencies
[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Notices]
[Pages 21397-21400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08249]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Office of the Attorney General
[Docket No. OAG 151; AG Order No. 3659-2016]
RIN 1121-AA87
Supplemental Guidelines for Juvenile Registration Under the Sex
Offender Registration and Notification Act
AGENCY: Department of Justice.
ACTION: Notice; proposed guidelines.
-----------------------------------------------------------------------
SUMMARY: The Sex Offender Registration and Notification Act (SORNA)
requires registration of individuals convicted of sex offenses as
adults and, in addition, registration of juveniles adjudicated
delinquent for certain serious sex offenses. SORNA also provides for a
reduction of justice assistance funding to eligible jurisdictions that
fail to ``substantially implement'' SORNA's requirements, including the
juvenile registration requirement, in their sex offender registration
programs. These proposed guidelines provide guidance regarding the
substantial implementation of the juvenile registration requirement by
eligible jurisdictions. The Justice Department's Office of Sex Offender
Sentencing, Monitoring, Apprehending, Registering, and Tracking will
examine the following factors when assessing whether a jurisdiction has
substantially implemented SORNA's juvenile registration provisions:
Policies and practices to prosecute as adults juveniles who commit
serious sex offenses; policies and practices to register juveniles
adjudicated delinquent for serious sex offenses; and other policies and
practices to identify, track, monitor, or manage juveniles adjudicated
delinquent for serious sex offenses who are in the community and to
ensure that the records of their identities and sex offenses are
available as needed for public safety purposes. By affording
jurisdictions greater flexibility in their efforts to substantially
implement SORNA's juvenile registration requirement, the proposed
guidelines will further SORNA's public safety objectives in relation to
serious juvenile sex offenders and facilitate jurisdictions'
substantial implementation of all aspects of SORNA. The proposed
guidelines concern only substantial implementation of SORNA's juvenile
registration requirement and do not affect substantial implementation
of SORNA's registration requirements for individuals convicted of sex
offenses as adults.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before June 10, 2016. Comments received by mail will
be considered timely if they are postmarked on or before that date. The
electronic Federal Docket Management System (FDMS) will accept comments
until midnight Eastern Time at the end of that day.
ADDRESSES: To ensure proper handling of comments, please reference OAG
Docket No. 151 in all electronic and written correspondence. The
Department encourages the electronic submission of all comments through
https://www.regulations.gov using the electronic comment form provided
on that site. An electronic copy of this document is also available at
the https://www.regulations.gov Web site for easy reference. Paper
comments that duplicate the electronic submission are not necessary as
all comments submitted to https://www.regulations.gov will be posted for
public review and are part of the official docket record. Should you,
however, wish to submit written comments by mail, they should be sent
to Luis C.deBaca, Director, SMART Office, Office of Justice Programs,
United States Department of Justice, 810 7th St. NW., Washington, DC
20531.
FOR FURTHER INFORMATION CONTACT: Luis C.deBaca, Director, Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking; Office of Justice Programs, United States Department of
Justice, Washington, DC, (202) 514-4689.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at https://www.regulations.gov. Such information includes personal identifying
information (such as your name and address) voluntarily submitted by
the commenter.
You are not required to submit personal identifying information in
order to comment on these proposed guidelines. Nevertheless, if you
want to submit personal identifying information (such as your name and
address) as part of your comment, but do not want it to be posted
online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You also must
locate all of the personal identifying information that you do not want
posted online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
https://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
Background
The Sex Offender Registration and Notification Act (``SORNA''),
title I of the Adam Walsh Child Protection and Safety Act of 2006,
Public Law 109-248, was enacted on July 27, 2006. SORNA (42 U.S.C.
16901 et seq.) establishes minimum national standards for sex offender
registration and notification in the jurisdictions to which it applies.
``Jurisdictions'' in the relevant sense are the 50 states, the District
of Columbia,
[[Page 21398]]
the five principal U.S. territories, and federally recognized Indian
tribes that satisfy certain criteria. 42 U.S.C. 16911(10).
SORNA provides a financial incentive for eligible jurisdictions to
adopt its standards, by requiring a 10 percent reduction of federal
justice assistance funding to an eligible jurisdiction if the Attorney
General determines that the jurisdiction has failed to ``substantially
implement'' SORNA. 42 U.S.C. 16925(a). SORNA also directs the Attorney
General to issue guidelines and regulations to interpret and implement
SORNA. See id. 16912(b). To this end, the Attorney General issued the
National Guidelines for Sex Offender Registration and Notification
(``SORNA Guidelines''), 73 FR 38030, on July 2, 2008, and the
Supplemental Guidelines for Sex Offender Registration and Notification
(``Supplemental Guidelines''), 76 FR 1630, on January 11, 2011. The
Justice Department's Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (``SMART Office'') assists all
jurisdictions in their SORNA implementation efforts and determines
whether they have substantially implemented SORNA's requirements in
their registration and notification programs. See 42 U.S.C. 16945; 73
FR at 38044, 38047-48; 76 FR at 1638-39.
In addition to requiring registration based on adult convictions
for sex offenses, SORNA includes as covered ``sex offender[s]''
juveniles at least 14 years old who have been adjudicated delinquent
for particularly serious sex offenses. 42 U.S.C. 16911(1), (8); see id.
16913 (setting forth registration requirements). In relation to the
juvenile registration requirement, as in other contexts, the SMART
Office ``consider[s] on a case-by-case basis whether jurisdictions'
rules or procedures that do not exactly follow the provisions of SORNA
. . . `substantially' implement SORNA, assessing whether the departure
from a SORNA requirement will or will not substantially disserve the
objectives of the requirement.'' 73 FR at 38048.
The SORNA Guidelines explained, in particular, that substantial
implementation of SORNA need not include registration of juveniles
adjudicated delinquent for certain lesser offenses within the scope of
SORNA's juvenile registration provisions. The Guidelines stated that
jurisdictions can achieve substantial implementation if they cover
offenses by juveniles at least 14 years old that consist of engaging
(or attempting or conspiring to engage) in a sexual act with another by
force or the threat of serious violence or by rendering unconscious or
involuntarily drugging the victim. Id. at 38050. This interpretation of
substantial implementation addressed concerns about the potential
registration of juveniles in some circumstances based on consensual
sexual activity with other juveniles, which is outside the scope of the
coverage required by the Guidelines. See id. at 38040-41.
The Supplemental Guidelines included a subsequent change affecting
the treatment of all persons required to register on the basis of
juvenile delinquency adjudications. SORNA authorizes the Attorney
General to create exemptions from SORNA's requirement that information
about registered sex offenders be made available to the public through
Web site postings and other means. See 42 U.S.C. 16918(c)(4), 16921(b).
The Supplemental Guidelines noted that the SORNA Guidelines had
endeavored to facilitate jurisdictions' compliance with SORNA's
registration requirement for ``juveniles at least 14 years old who are
adjudicated delinquent for particularly serious sex offenses,'' but
that ``resistance by some jurisdictions to public disclosure of
information about sex offenders in this class has continued to be one
of the largest impediments to SORNA implementation.'' 76 FR at 1636.
The Attorney General accordingly exercised his exemption authority ``to
allow jurisdictions to exempt from public . . . disclosure information
concerning sex offenders required to register on the basis of juvenile
delinquency adjudications.'' Id. This exemption did not change the
requirement that such juveniles be registered and that information
about them be transmitted or made available ``to the national (non-
public) databases of sex offender information, to law enforcement and
supervision agencies, and to registration authorities in other
jurisdictions.'' Id. at 1637.
Based on additional experience with SORNA implementation, and
further reflection on the practicalities and effects of juvenile
registration, these proposed guidelines modify the approach the SMART
Office will take in assessing whether a jurisdiction has substantially
implemented SORNA's juvenile registration requirement. As explained
below, the modification will enhance public safety by incentivizing a
broader range of measures that may protect the public from serious
juvenile sex offenders.
While most states provide for registration of some sex offenders
based on juvenile delinquency adjudications, many do not or do so only
on a discretionary basis. See SMART Office, SMART Summary: Prosecution,
Transfer, and Registration of Serious Juvenile Sex Offenders 10-11, 24-
29 (Mar. 2015) (``SMART Juvenile Summary''), www.smart.gov/pdfs/smartjuvenilessum.pdf. Too rigid an approach to implementation of the
juvenile registration aspect of SORNA, which affects a limited subclass
of sex offenders, may conflict at a practical level with the objective
of implementing SORNA's more broadly applicable reforms, which affect
the whole universe of convicted sex offenders. This occurs when a
jurisdiction's unwillingness or inability to implement the juvenile
registration requirement discourages or stymies further efforts to
implement SORNA generally, because the deficit regarding juvenile
registration alone precludes approval of the jurisdiction as having
substantially implemented SORNA. Moreover, the juvenile registration
requirement is in some respects unique in terms of its scope and
rationale and the potential for furthering its objectives by other
means.
First, juveniles may be subject to prosecution in either of two
distinct justice systems--the juvenile justice system or the adult
criminal justice system. The SORNA Guidelines provide that registration
jurisdictions may substantially implement SORNA's juvenile registration
requirement by registering persons at least 14 years old at the time of
the offense who are adjudicated delinquent for an offense amounting to
rape or its equivalent, or an attempt or conspiracy to commit such an
offense. See 73 FR at 38041, 38050. Practically all states authorize or
require adult prosecution for many or all such juveniles. See SMART
Juvenile Summary 5-9, 16, 19-23. Where juveniles are prosecuted as
adults, the resulting convictions are treated as adult convictions
under SORNA, and SORNA's general provisions require the sex offender to
register. See 73 FR at 38050.
Consequently, a jurisdiction may advance SORNA's public safety
goals in relation to serious juvenile sex offenders not only by
prescribing mandatory registration for those offenders adjudicated
delinquent, but also by prosecuting such offenders in the adult
criminal justice system. Consider a jurisdiction that normally subjects
sex offenders in SORNA's juvenile registration category to adult
prosecution and conviction, with resulting registration, but that does
not have mandatory registration for the relatively few offenders in
this category who are proceeded against in the juvenile justice system.
With respect to most sex offenders, the jurisdiction
[[Page 21399]]
protects the public through registration at least as effectively as a
jurisdiction that proceeds against more offenders as juveniles and has
mandatory registration based on delinquency adjudications, because all
individuals convicted of qualifying sex offenses as adults are required
to register. In some respects, a jurisdiction oriented towards adult
prosecution of the most serious juvenile sex offenders may more
effectively advance SORNA's public safety objectives, because
prosecution as an adult also makes available the more substantial
incarceration and supervision sanctions of the adult criminal justice
system. But if mandatory juvenile registration is treated as a sine qua
non of substantial SORNA implementation, that jurisdiction could not be
approved as having substantially implemented SORNA.
A second feature unique to juvenile sex offenders is that SORNA
requires registration only for certain juveniles who are adjudicated
delinquent for particularly serious sex offenses--that is, sex offenses
that are ``comparable to or more serious than aggravated sexual abuse''
(or attempt or conspiracy to commit such offenses). 42 U.S.C. 16911(8).
Jurisdictions that allow for discretionary registration of juveniles
adjudicated delinquent for sex offenses may in practice capture many of
the juveniles in SORNA's juvenile registration category--especially
those who pose the most danger to others--in their registration
schemes. Rather than simply rejecting a jurisdiction's approach to
juvenile registration for having a discretionary aspect, examination of
these registration programs as applied would allow the SMART Office to
determine whether, when considered as part of a jurisdiction's overall
registration scheme, this variance does or does not substantially
disserve SORNA's purposes.
Considering discretionary juvenile registration might appear to be
inconsistent with the response to public comments accompanying the
issuance of the SORNA Guidelines, which stated that registration as ``a
matter of judicial discretion'' is insufficient to substantially
implement SORNA's juvenile registration requirement. 73 FR at 38038.
However, that response addressed comments urging that discretionary
registration should in itself be considered sufficient implementation
of SORNA's requirements, ``ignor[ing] what SORNA provides on this
issue, and instead do[ing] something different that the commenters
believe to be better policy.'' Id. That is not the approach of these
proposed guidelines, which contemplate that the SMART Office will
consider the full range of pertinent measures a jurisdiction may adopt,
and do not assume that simply replacing a mandatory registration
requirement with a discretionary one achieves in substance what SORNA
requires. For example, consider a jurisdiction that (i) largely
requires registration by sex offenders in SORNA's juvenile registration
class because those offenders are likely to be prosecuted and convicted
in the adult criminal justice system, (ii) allows registration on a
discretionary basis for sex offenders who remain in the juvenile
justice system, and (iii) provides other effective post-release
monitoring and identification measures for juvenile sex offenders as
discussed below. In assessing whether such a jurisdiction has
substantially implemented SORNA's juvenile registration requirement, it
is appropriate to take into account the jurisdiction's discretionary
registration of adjudicated delinquents along with other factors, and
doing so does not conflict with the prior rejection of approaches that
``ignore[ ] what SORNA provides.'' Id.
A third feature specific to the juvenile context is the prevalence
of juvenile confidentiality provisions, which can limit the
availability of information about the identities, locations, and
criminal histories of juvenile sex offenders. Potential consequences of
these confidentiality provisions include that (i) law enforcement
agencies may lack information about certain sex offenders in their
areas that could, if known, assist in solving new sex crimes and
apprehending the perpetrators; (ii) sex offenders may be less
effectively discouraged from engaging in further criminal conduct,
because the authorities do not know their identities, locations, and
criminal histories; and (iii) offenders' histories of sexual violence
or child molestation, which might disqualify them from positions giving
them control over or access to potential victims (such as childcare
positions), may not be disclosed through background check systems or
affirmative notice to appropriate authorities. These confidentiality
provisions accordingly may negatively affect the achievement of SORNA's
public safety objectives. See 73 FR at 38044-45, 38060-61. Congress's
decision to subject certain juvenile sex offenders to SORNA's
registration requirements was an effort to overcome risks to the public
posed by juvenile confidentiality requirements that Congress considered
too broad. See H.R. Rep. No. 109-218, pt. 1, at 25 (2005).
A jurisdiction that does not implement juvenile registration in the
exact manner specified in SORNA's juvenile registration provisions may
nevertheless adopt other measures that address the underlying concerns
as part of its substantial implementation of SORNA. For example, a
jurisdiction may have means of monitoring or tracking juvenile sex
offenders following release, such as extended post-release supervision
regimes or address-reporting requirements, that may not incorporate all
aspects of SORNA's registration system, but that may nevertheless help
law enforcement agencies to identify the sex offenders in their areas
and the perpetrators of new sex offenses. Confidentiality requirements
for juvenile records may be appropriately defined and limited so as not
to conceal risks to potential victims from persons who committed
serious sex offenses as juveniles.
In sum, a number of factors are reasonably considered in
ascertaining whether a jurisdiction has substantially implemented
SORNA's juvenile registration provisions, which have not been
articulated or given weight to the same extent under previous
guidelines. Accordingly, in these proposed guidelines, the Attorney
General expands the matters that the SMART Office will consider in
determining substantial implementation of this SORNA requirement. This
expansion recognizes that jurisdictions may adopt myriad robust
measures to protect the public from serious juvenile sex offenders, and
will help to promote and facilitate jurisdictions' substantial
implementation of all aspects of SORNA.
Proposed Supplemental Guidelines for Juvenile Registration Under the
Sex Offender Registration and Notification Act
If a jurisdiction does not register juveniles at least 14 years old
who are adjudicated delinquent for particularly serious sex offenses in
exact conformity with SORNA's provisions--for example, because the
jurisdiction uses a discretionary process for determining such
registration--the SMART Office will examine the following factors when
assessing whether the jurisdiction has nevertheless substantially
implemented SORNA's juvenile registration requirements: (i) Policies
and practices to prosecute as adults juveniles who commit serious sex
offenses; (ii) policies and practices to register juveniles adjudicated
delinquent for serious sex offenses; and (iii) other policies and
[[Page 21400]]
practices to identify, track, monitor, or manage juveniles adjudicated
delinquent for serious sex offenses who are in the community and to
ensure that the records of their identities and sex offenses are
available as needed for public safety purposes. Consistent with the
requirements for other aspects of a jurisdiction's program that do not
exactly follow SORNA's provisions, a jurisdiction that seeks to rely on
these factors in establishing substantial implementation must identify
any departure from SORNA's requirements in its submission to the SMART
Office and ``explain why the departure from the SORNA requirements
should not be considered a failure to substantially implement SORNA.''
73 FR at 38048. The SMART Office will determine that a jurisdiction
relying on these factors has substantially implemented SORNA's juvenile
registration requirement only if it concludes that these factors, in
conjunction with that jurisdiction's other policies and practices, have
resulted or will result in the registration, identification, tracking,
monitoring, or management of juveniles who commit serious sex offenses,
and in the availability of the identities and sex offenses of such
juveniles as needed for public safety purposes, in a manner that does
not substantially disserve SORNA's objectives.
Dated: March 14, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-08249 Filed 4-8-16; 8:45 am]
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