Office of the Attorney General; Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification Act, 50552-50558 [2016-18106]
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[Docket No. OAG 151; AG Order No. 3714–
2016]
RIN 1121–AA87
Office of the Attorney General;
Supplemental Guidelines for Juvenile
Registration Under the Sex Offender
Registration and Notification Act
Department of Justice.
Final 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 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 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 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: Effective Date: August 1, 2016.
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SUMMARY:
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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:
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF JUSTICE
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,
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
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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,
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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, the
Department of Justice proposed and
solicited public comment on new
supplemental guidelines modifying the
approach the SMART Office will take in
assessing whether a jurisdiction has
substantially implemented SORNA’s
juvenile registration requirement; those
proposed supplemental guidelines were
published in the Federal Register on
April 11, 2016, at 81 FR 21397. The
public comment period closed on June
10, 2016. Following consideration of the
public comments received, the
Department of Justice is now finalizing
these supplemental guidelines. For the
reasons explained below, the new
guidelines will allow consideration of a
broader range of measures that may
protect the public from serious juvenile
sex offenders in determining substantial
implementation.
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
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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
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
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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
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
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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 guidelines, the
Attorney General expands the matters
that the SMART Office will consider in
determining substantial implementation
of this SORNA requirement. This
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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.
Summary of Comments on the Proposed
Supplemental Guidelines
Twenty-six comments were received
from various agencies, organizations,
and individuals. A number of the
comments were favorable to the
proposed supplemental guidelines’
expansion of the matters that the
SMART Office will consider in
determining whether registration
jurisdictions have substantially
implemented SORNA’s juvenile
registration provisions. Some of the
comments urged that the guidelines
should go further, such as by
eliminating all registration of juvenile
sex offenders. As discussed below,
comments of this nature seek actions
that are beyond the legal authority of the
Department of Justice. Such comments
are not germane to the formulation of
these guidelines, which explain how the
SMART Office will approach the
determination whether registration
jurisdictions have substantially
implemented the existing juvenile
registration requirement under SORNA.
The specific comments, with their
identifying designations on
www.regulations.gov shown in brackets,
are as follows:
#1. This comment [DOJ–OAG–2016–
0004–0005], submitted by 15
individuals identified as researchers
with expertise on juvenile sexual
offending, contains three specific
recommendations for revising these
guidelines:
(i) The first recommendation is to
remove all requirements for registration
of youth adjudicated delinquent for sex
offenses, based on studies the
researchers describe as showing that
such registration is ineffective and has
adverse consequences. However, the
Attorney General has no authority to
repeal or amend federal laws by issuing
guidelines, or to nullify SORNA’s
juvenile registration provisions in
particular. See 73 FR at 38036–38,
38040–41, 38050.
(ii) The second recommendation is to
remove all language in these guidelines
that could encourage waiver of juveniles
to adult criminal court, based on a study
the researchers describe as implying
that such waiver policies do not
improve public safety and are subject to
bias. However, these guidelines do not
encourage prosecution of juveniles as
adults. Rather, the guidelines (A)
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recognize that practically all states
authorize or require adult prosecution
for many or all juveniles in SORNA’s
juvenile registration category, and (B)
provide that policies or practices to
prosecute as adults juveniles who
commit serious sex offenses are
appropriately considered in determining
whether a jurisdiction has substantially
implemented SORNA’s juvenile
registration requirement, because adult
prosecution may result in registration
and the availability of adult criminal
sanctions.
(iii) The third recommendation is that
language should be included in the
guidelines supporting the provision of
evidence-based treatment services to
youth adjudicated delinquent of sex
offenses and their caregivers, based on
studies the researchers describe as
demonstrating the efficacy of treatment.
However, the guidelines as drafted
already give weight to policies and
practices to identify, track, monitor, or
manage juveniles adjudicated
delinquent for serious sex offenses—
measures that may include treatment.
#2. This comment [DOJ–OAG–2016–
0004–0020], from two individuals,
refers to and states support for the
recommendations appearing in
comment #1, discussed above.
#3. This comment [DOJ–OAG–2016–
0004–0022], submitted by the National
Juvenile Justice Prosecution Center,
states that these guidelines are a
positive development in balancing
public safety with the developmental
nature and special needs of juvenile
offenders, because they provide a more
well-rounded approach to safety and
greater flexibility.
#4. This comment [DOJ–OAG–2016–
0004–0008], submitted on behalf of 14
organizations and individuals
concerned about the inclusion of youth
on sex offender registries, includes four
specific recommendations and the
conclusion that ‘‘youth registration
should end.’’ Many of the adverse
consequences of juvenile registration
asserted by these commenters would
appear to be related to public disclosure
of juvenile sex offenders’ identities and
offenses as opposed to registration per
se. The Attorney General has already
provided in earlier supplemental
guidelines under SORNA that
registration jurisdictions need not
publicly disclose information about sex
offenders required to register on the
basis of juvenile delinquency
adjudications. See 76 FR at 1636–37.
The specific recommendations in this
comment are as follows:
(i) The first recommendation is to
hold a full public hearing on these
guidelines before finalizing them.
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However, a public hearing is not
necessary to conclude that the measures
identified in these guidelines are
appropriately considered in determining
whether jurisdictions have substantially
implemented SORNA’s juvenile
registration provisions. The comment
does not explain what information
relevant to the formulation of these
guidelines would be conveyed in a
hearing that has not or could not have
been provided in the submitted public
comments on these guidelines, and does
not otherwise provide a persuasive
reason to refrain from issuing these
guidelines pending a hearing.
(ii) The second recommendation is to
convene a task force to study and
recommend best practices for youths
charged with sexual offenses. However,
convening a task force is not necessary
to conclude that these guidelines’ more
flexible approach to determining
substantial implementation is
warranted. The comment does not
explain what information relevant to the
formulation of these guidelines would
be obtained by a task force that has not
or could not have been provided in the
submitted public comments, and does
not otherwise provide a persuasive
reason to refrain from issuing these
guidelines pending the creation of a task
force and completion of its work.
(iii) The third recommendation is to
revise the guidelines to explicitly
incentivize evidence-based rather than
harmful practices, such as a policy that
eschews juvenile registration but
‘‘ensures that every young person
adjudicated of a sexual offense
undergoes a validated evaluation and is
placed in risk and needs-based
programming.’’ As noted above, the
Attorney General has no authority to
nullify SORNA’s juvenile registration
requirement, see 73 FR at 38036–38,
38040–41, 38050, but in determining
whether registration jurisdictions have
substantially implemented that
requirement, the guidelines as drafted
give weight to policies and practices to
identify, track, monitor, or manage
juveniles adjudicated delinquent for
serious sex offenses. These policies and
practices may include evaluation and
programming measures like those
proposed by these commenters. To the
extent this recommendation is directed
against the guidelines’ reference to adult
prosecution of juvenile sex offenders,
the response is the same as with
comment #1 above. These guidelines do
not encourage prosecution of juveniles
as adults. Rather, the guidelines
recognize the prevalence of policies and
practices of adult prosecution of serious
juvenile sex offenders, and they treat
such policies and practices as relevant
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factors in determining whether a
jurisdiction has substantially
implemented SORNA’s juvenile
registration requirement.
(iv) The fourth recommendation is to
move towards a system that reassures
states that they will not lose federal
justice assistance funding if they do not
register youth and discourages state
policies that require youth registration.
However, the Attorney General and the
SMART Office are charged by law with
seeking the substantial implementation
of SORNA by registration jurisdictions,
including SORNA’s juvenile registration
provisions. See 42 U.S.C. 16912, 16923–
26, 16945. It is not consistent with this
responsibility to assure states globally
that they will not lose grant funding if
they do not implement SORNA’s
juvenile registration requirement or to
discourage them from implementing
that requirement. See 73 FR at 38036–
38, 38040–41, 38050.
#5. The authors of this comment
[DOJ–OAG–2016–0004–0023] identify
themselves as the parents of a 16-yearold who is currently incarcerated in a
juvenile facility, and who is subject to
lifetime inclusion on a sex offender
registry, because he had pornographic
pictures on his phone. The commenters
express concern that this will ruin his
life, including preventing him from
being in a high school graduation
ceremony or attending college. The
concerns expressed in the comment
relate to actions taken pursuant to state
law and do not weigh against issuing
guidelines that afford greater flexibility
in determining substantial
implementation of SORNA’s juvenile
registration provisions. SORNA itself
does not require registration based on
juvenile adjudications for pornography
offenses like that described in this
comment. In terms of offense coverage,
it suffices for substantial
implementation of SORNA’s juvenile
registration requirement if jurisdictions
require registration of persons at least 14
years old at the time of the offense based
on delinquency adjudications for
offenses amounting to rape or its
equivalent or an attempt or conspiracy
to commit such an offense. See 73 FR
at 38040–41, 38050. SORNA imposes no
restrictions on registrants’ attending
high school or college. The Attorney
General has provided in previously
issued supplemental guidelines for
SORNA implementation that
jurisdictions need not publicly disclose
information about persons required to
register on the basis of juvenile
delinquency adjudications. See 76 FR at
1636–37.
#6. This comment [DOJ–OAG–2016–
0004–0011], submitted on behalf of the
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Pueblo of Laguna, recommends (i)–(ii)
amending state and federal law to
ensure that youth sex offenders are
placed on registries only after an
individualized assessment, with
periodic review of youth sex offender
registrations, (iii) using youth sex
offender registration information solely
for law enforcement purposes and not
disclosing it publicly, (iv) creating an
impartial body to ensure that all
registration information is accurate and
not misleading and to remove youth
offenders from registries as soon as
registration requirements have ended,
(v) advising juvenile sexual offense
defendants of the consequences of a
conviction or adjudication, including
registration, community notification,
and residency requirements, (vi) taking
account of the need to protect the safety
of people convicted of sex offenses in
deciding the method and scope of
community notification, and (vii)
providing training on relevant youth
issues to officers involved in the
investigation of sexual offenses.
Regarding (i)–(ii), the Attorney General
has no legal authority to amend state or
federal laws, and in particular, cannot
nullify SORNA’s juvenile registration
provisions. See 73 FR at 38036–38,
38040–41, 38050. However, these
guidelines will enable the SMART
Office to consider a broader range of
measures in determining whether
registration jurisdictions have
substantially implemented those
provisions. Regarding (iii), (v), and (vi),
which largely concern community
notification, the Attorney General has
provided in previous SORNA guidelines
that registration jurisdictions need not
publicly disclose information about sex
offenders required to register on the
basis of juvenile delinquency
adjudications. See 76 FR at 1636–37.
Also, regarding (v), SORNA imposes no
restrictions on where sex offenders may
live (‘‘residency requirements’’).
Regarding (iv)–(vii) generally, the
measures proposed do not conflict with
SORNA or these guidelines and
registration jurisdictions are free to
adopt them.
#7. This comment [DOJ–OAG–2016–
0004–0019] states opposition to sex
offender registration generally, ‘‘for all
but high-risk offenders,’’ and in
particular states that the commenter is
vehemently against registration for
persons committing sexual crimes as
juveniles. The comment does not weigh
against issuance of these guidelines,
which explain how the SMART Office
will determine whether registration
jurisdictions have substantially
implemented SORNA’s juvenile
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registration provisions, and allow
consideration of an expanded range of
measures in that determination.
#8. This comment [DOJ–OAG–2016–
0004–0012] proposes eliminating
requirements for juvenile registration
and supporting well-delivered
specialized treatment. However, the
Attorney General has no authority to
eliminate SORNA’s juvenile registration
provisions. See 73 FR at 38036–38,
38040–41, 38050. These guidelines give
weight to policies and practices to
identify, track, monitor, or manage
juveniles adjudicated delinquent for
serious sex offenses, measures that may
include treatment.
#9. The authors of this comment
[DOJ–OAG–2016–0004–0017] identify
themselves as the parents of a 15-yearold boy who is required to register as a
sex offender for 10 years, because of a
child pornography adjudication based
on his sending unsolicited photos of his
genitalia to a female classmate. The
commenters express concern about
adverse effects on their son’s life,
including limitation of employment
opportunities and unsupervised
association with a younger brother, and
they reproduce and endorse the
recommendations set forth in comment
#1. Regarding those recommendations,
see the discussion of comment #1 above.
The comment otherwise relates to
actions taken pursuant to state law and
does not weigh against issuance of these
guidelines, which afford greater
flexibility in determining substantial
implementation of SORNA’s juvenile
registration provisions. SORNA does not
require registration based on juvenile
adjudications for offenses like that
described in this comment. In terms of
offense coverage, it suffices for
substantial implementation of SORNA’s
juvenile registration requirement if
jurisdictions require registration of
persons at least 14 years old at the time
of the offense based on delinquency
adjudications for offenses amounting to
rape or its equivalent or an attempt or
conspiracy to commit such an offense.
See 73 FR at 38040–41, 38050. SORNA
imposes no restrictions on registrants’
qualification for employment or on
unsupervised association with younger
children. The Attorney General has
provided in previously issued
supplemental guidelines for SORNA
implementation that jurisdictions need
not publicly disclose information about
persons required to register on the basis
of juvenile delinquency adjudications.
See 76 FR at 1636–37.
#10. This comment [DOJ–OAG–2016–
0004–0004] describes the changes in
these guidelines as a step in the right
direction, but it characterizes SORNA as
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‘‘misguided’’ in relation to juvenile
offenders and encourages exploration of
other methods of sexual abuse
prevention that are less likely to be
counterproductive for juvenile offenders
and that are focused only on juvenile
offenders determined after judicial
review to be a risk. However, the
Attorney General does not have the
authority to override the legislative
judgments embodied in SORNA,
including SORNA’s juvenile registration
provisions. See 73 FR at 38036–38,
38040–41, 38050. The comment also
states that a number of statements in
these guidelines are premised on the
assumption that juveniles will sexually
reoffend, an assumption that the
comment says is not supported by
research. However, these guidelines are
not premised on an assumption about
the extent of re-offense by juvenile sex
offenders. Rather, they explain how the
SMART Office will determine whether
registration jurisdictions have
substantially implemented SORNA’s
juvenile registration provisions and
allow consideration of an expanded
range of measures in making that
determination. Finally, the comment
includes a technical suggestion that a
definition of ‘‘sexual act’’ should be
included in the background information
part of these guidelines, right after the
term is used. The preamble crossreferences the original SORNA
Guidelines, 73 FR at 38050, which
provide the relevant definition of
‘‘sexual act’’. The comment does not
provide a reason why the definition of
this term should be reproduced in these
supplemental guidelines.
#11. This comment [DOJ–OAG–2016–
0004–0024], submitted on behalf of
Human Rights Watch, recommends
deleting two of the three specific factors
these guidelines give weight to—
policies and practices to prosecute as
adults juveniles who commit serious sex
offenses, and policies and practices to
register juveniles adjudicated
delinquent for serious sex offenses. In
support of this recommendation, the
comment argues that adult prosecution
of juveniles and registration of juveniles
have various adverse effects on
juveniles. However, the comment
provides no persuasive reason why the
guidelines should not give weight to
these factors. In determining whether
registration jurisdictions have
substantially implemented SORNA’s
juvenile registration requirement,
policies and practices of adult
prosecution of serious juvenile sex
offenders may be relevant because they
may result in registration and the
availability of adult criminal sanctions,
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and policies and practices of registering
juvenile sex offenders may be relevant
because, even if discretionary, they may
in practice capture many of the
juveniles in SORNA’s juvenile
registration category in the jurisdiction’s
registration scheme.
#12. This comment [DOJ–OAG–2016–
0004–0015], submitted on behalf of the
National District Attorneys Association,
views the guidelines favorably as
providing states with flexibility to
comply with SORNA and protect
community safety while maintaining the
integrity of their juvenile justice
systems.
#13. This comment [DOJ–OAG–2016–
0004–0026], submitted on behalf of the
Lambda Legal Defense and Education
Fund, joins in the recommendations of
comment #4. The comment
particularizes some of the
recommendations of comment #4 to
reference specifically LGBTQ youth and
it asserts that criminal prosecution and
punishment and registration for sex
offenses operate more harshly against
LGBTQ youth. The response to this
comment is essentially the same as the
response to comment #4.
#14. This comment [DOJ–OAG–2016–
0004–0016], submitted on behalf of the
Association for the Treatment of Sexual
Abusers, generally criticizes juvenile
registration and adult prosecution of
juveniles, states support for giving
jurisdictions greater discretion whether
to register children adjudicated for
sexual crimes, thanks the SMART Office
for its continued efforts in developing a
more responsive and nuanced policy,
and provides four specific
recommendations:
(i) The first recommendation is to
develop appropriate assessments taking
account of a youth’s clinical, family,
and environmental situation to
formulate effective, individualized
treatment and management plans for
youth. However, the guidelines as
drafted give weight to policies and
practices to identify, track, monitor, or
manage juveniles adjudicated
delinquent for serious sex offenses,
which may include the measures
described in this comment.
(ii) The second recommendation is to
remove requirements for broad-based
youth registration and notification.
However, SORNA itself requires
registration by certain juveniles
adjudicated delinquent for serious sex
offenses. The Attorney General has no
authority to change what SORNA
provides. These guidelines are
responsive to the concerns expressed in
this comment, within the bounds of the
law, in allowing consideration of a
broader range of measures in
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determining whether jurisdictions have
substantially implemented SORNA’s
juvenile registration requirement. The
Attorney General has already provided
in earlier guidelines under SORNA that
registration jurisdictions need not
engage in public notification regarding
juveniles required to register on the
basis of delinquency adjudications. See
76 FR at 1636–37.
(iii) The third recommendation is to
include language that supports the use
of evidence-based treatment and
management strategies for youth.
However, the guidelines as drafted
already give weight to policies and
practices to identify, track, monitor, or
manage juveniles adjudicated
delinquent for serious sex offenses,
which may include evidence-based
treatment and management strategies.
(iv) The fourth recommendation is to
remove language that promotes the
waiver of youth to adult courts. The
response to comment #1 includes
discussion of this issue.
#15. This comment [DOJ–OAG–2016–
0004–0021], submitted on behalf of Stop
It Now!, supports the recommendations
appearing in comment #1. Those
recommendations are discussed above
in connection with comment #1.
#16. The author of this comment
[DOJ–OAG–2016–0004–0010] criticizes
the sex offender registration system of
his state as adversely impacting
juveniles. The comment asks for a
direction to the 50 states, the District of
Columbia, and the territories to create a
process to remove all their registered
sex offenders who were convicted when
juveniles from every registry by January
2018 and to stop adding new juveniles
immediately. The Attorney General has
no legal authority to issue such a
direction to registration jurisdictions.
#17. This comment [DOJ–OAG–2016–
0004–0006], submitted on behalf of the
Annie E. Casey Foundation, refers to the
letter discussed as comment #1 above,
states concerns and recommendations
similar to those appearing in that letter,
and particularly emphasizes the
commenter’s concern about prosecution
of juveniles as adults. The response to
comment #1 discusses these matters.
#18. This comment [DOJ–OAG–2016–
0004–0014], submitted by the Attorney
General of Alaska, (i) endorses the more
flexible approach of these guidelines to
determining substantial implementation
of SORNA’s juvenile registration
provisions, (ii) notes that the SMART
Office has previously found that Alaska
was not compliant with SORNA’s
juvenile registration requirement, and
(iii) provides information about Alaska’s
system in support of a different
conclusion under the new guidelines.
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Following the issuance of these
guidelines, the SMART Office will
entertain requests for substantial
implementation determinations
regarding juvenile registration in
conformity with the new guidelines,
including requests from jurisdictions
previously subject to negative
determinations under the pre-existing
substantial implementation standards.
#19. The author of this comment
[DOJ–OAG–2016–0004–0018] identifies
himself or herself as the parent of a son
adjudicated for distributing child
pornography, based on sending pictures
of himself to a classmate he had a crush
on when he was 14. The comment states
that the son will have to register as a sex
offender for at least 10 years as a result,
and that he now cannot attend the high
school he attended over the last year or
other schools in the area. The comment
urges that a child should not be labeled
a sex offender for sending a picture of
himself to a friend. The response to this
comment is essentially the same as the
response to comments #5 and #9 above.
The concerns expressed in the comment
relate to actions taken pursuant to state
law and do not weigh against issuing
guidelines that afford greater flexibility
in determining substantial
implementation of SORNA’s juvenile
registration provisions. SORNA does not
require registration based on juvenile
adjudications for offenses like that
described in the comment, does not
restrict where juvenile sex offenders
may go to school, and does not require
public disclosure of identity or other
information for juveniles required to
register on the basis of delinquency
adjudications.
#20. This comment [DOJ–OAG–2016–
0004–0003] recommends that the
SMART Office seek a change in the law
so that states cannot publicly post
information about juvenile registrants
on Web sites unless the registrants are
tried and convicted in adult court. The
comment is not germane to these
guidelines, which are concerned with
substantial implementation of the
juvenile registration requirement under
existing federal law (SORNA). The
Attorney General has already provided
in earlier guidelines under SORNA that
registration jurisdictions need not
publicly post information about persons
required to register on the basis of
juvenile delinquency adjudications. See
76 FR at 1636–37. The comment also
suggests that the SMART Office tell
states that they will be out of
compliance and lose 10% of federal
funding if they have restrictions on
where registrants can live. The SMART
Office has no authority to do so because
SORNA contains nothing that either
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50557
prohibits or requires residency
restrictions.
#21. This comment [DOJ–OAG–2016–
0004–0007], submitted on behalf of the
National Criminal Justice Association,
states support for these guidelines. The
comment notes that some states have
not yet achieved substantial
implementation of SORNA because of
SORNA’s mandatory registration
requirements for specific juvenile
offenses. The comment states that by
allowing the SMART Office to assess
juvenile registration in a more holistic
manner and to review comprehensively
relevant state policies and practices, the
guidelines ‘‘will go a long way in
allowing states . . . to achieve
substantial implementation with the
requirements of SORNA . . . in a way
that protects community safety.’’ Noting
that many states have fallen short of
compliance in relation to required
registration for adjudicated juveniles,
the comment describes these guidelines
as a welcome clarification about the
review the SMART Office will
undertake in assessing whether a
jurisdiction has substantially
implemented SORNA’s juvenile
registration provisions.
#22. This comment [DOJ–OAG–2016–
0004–0025] criticizes sex offender
registration for anyone under 20. As
explained in the responses to other
comments, the Attorney General has no
authority to change sex offender
registration laws, and in particular, no
authority to eliminate SORNA’s juvenile
registration requirement.
#23. This comment [DOJ–OAG–2016–
0004–0002] includes pictures of an
apparently injured individual, with text
representing that the injuries resulted
from an attack occasioned by his
inclusion on a sex offender registry. The
comment says that this is what all
people labeled as sex offenders can
expect from their government. The
comment is not germane to these
guidelines, which explain how the
SMART Office will determine whether
registration jurisdictions have
substantially implemented SORNA’s
juvenile registration requirement. If the
point of the comment is to assert a risk
of violence against sex offenders
resulting from public disclosure of their
identities, the Attorney General has
provided in earlier guidelines that
jurisdictions need not make such
disclosure for sex offenders required to
register on the basis of juvenile
delinquency adjudications. See 76 FR at
1636–37.
#24. This comment [DOJ–OAG–2016–
0004–0013], submitted by the Secretary
of Public Safety and Homeland Security
of the State of Virginia, states support
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for these guidelines. The comment
recounts that Virginia has been
determined to be out of compliance
with SORNA because of state statutes
that do not automatically require
juvenile registration. The comment
characterizes as a very welcome
development the guidelines’ provision
for determining substantial
implementation with SORNA based on
a more comprehensive view of
adjudicated juveniles and expresses
confidence that the new approach will
be beneficial to Virginia in reaching
substantial implementation of SORNA.
As noted above in the response to a
similar comment from the Attorney
General of Alaska (#18), the SMART
Office will entertain requests for
substantial implementation
determinations regarding juvenile
registration in conformity with the new
guidelines, including requests from
jurisdictions previously subject to
negative determinations under the preexisting substantial implementation
standards.
#25. This comment [DOJ–OAG–2016–
0004–0009] is submitted on behalf of
‘‘Just Kids,’’ described as a national
coalition made up of legal experts, child
advocates, juvenile justice policy
experts, and victim advocates concerned
about including youth on sex offender
registries. The commenters overlap with
those submitting comment #4 and the
comment is similar in substance to
comment #4. The response is essentially
the same as that provided above to
comment #4.
#26. This comment [DOJ–OAG–2016–
0004–0027] states that underage
children should not have to suffer
lifelong consequences for a mistake and
asks for the enactment of a law
providing that underage children shown
to be productive citizens during their
rehabilitation can be blemish-free later
in their adult productive life. The
Attorney General does not have the
authority to enact laws and the
comment is not germane to the issuance
or formulation of guidelines concerned
with the determination whether
registration jurisdictions have
substantially implemented SORNA’s
juvenile registration requirement.
In sum, the public comments received
did not provide any persuasive reason
to change or delay finalization of the
proposed guidelines, which are
finalized here without change.
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
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: July 26, 2016.
Loretta E. Lynch
Attorney General.
[FR Doc. 2016–18106 Filed 7–29–16; 8:45 am]
BILLING CODE 4410–18–P
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
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DEPARTMENT OF JUSTICE
[[OMB Number 1100–NEW]
Agency Information Collection
Activities; Proposed eCollection;
eComments Requested Generic
Clearance for the Collection of
Qualitative Feedback on Agency
Service Delivery
U.S. Department of Justice and
various components.
ACTION: 30-Day notice.
AGENCY:
As part of a Federal
Government-wide effort to streamline
the process to seek feedback from the
public on service delivery, Department
of Justice will be submitting a Generic
Information Collection Request (Generic
ICR): ‘‘Generic Clearance for the
Collection of Qualitative Feedback on
Agency Service Delivery ’’ to OMB for
approval under the Paperwork
Reduction Act (PRA) (44 U.S.C. 3501 et
seq.).
DATES: The purpose of this notice is to
allow for an additional 30 days for
public comment until August 31, 2016.
FOR FURTHER INFORMATION CONTACT: If
you have additional comments
especially on the estimated public
burden or associated response time,
suggestions, or need a copy of the
proposed information collection
instrument with instructions or
additional information, please contact
Jerri Murray, Department Clearance
Officer, lynn.murray2@usdoj.gov; or the
DOJ Desk Officer at 202–395–1743.
Written comments and/or suggestions
can also be directed to the Office of
Management and Budget, Office of
Information and Regulatory Affairs,
Attention Department of Justice Desk
Officer, Washington, DC 205630 or sent
to OIRA_submissions@omb.eop.gov.
SUPPLEMENTARY INFORMATION:
Title: Generic Clearance for the
Collection of Qualitative Feedback on
Agency Service Delivery.
Abstract: The information collection
activity will garner qualitative customer
and stakeholder feedback in an efficient,
timely manner, in accordance with the
Administration’s commitment to
improving service delivery. By
qualitative feedback we mean
information that provides useful
insights on perceptions and opinions,
but are not statistical surveys that yield
quantitative results that can be
generalized to the population of study.
This feedback will provide insights into
customer or stakeholder perceptions,
experiences and expectations, provide
an early warning of issues with service,
or focus attention on areas where
SUMMARY:
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[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Notices]
[Pages 50552-50558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18106]
[[Page 50552]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
[Docket No. OAG 151; AG Order No. 3714-2016]
RIN 1121-AA87
Office of the Attorney General; Supplemental Guidelines for
Juvenile Registration Under the Sex Offender Registration and
Notification Act
AGENCY: Department of Justice.
ACTION: Final 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 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 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 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: Effective Date: August 1, 2016.
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:
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, 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,
[[Page 50553]]
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, the Department of Justice proposed and solicited public
comment on new supplemental guidelines modifying the approach the SMART
Office will take in assessing whether a jurisdiction has substantially
implemented SORNA's juvenile registration requirement; those proposed
supplemental guidelines were published in the Federal Register on April
11, 2016, at 81 FR 21397. The public comment period closed on June 10,
2016. Following consideration of the public comments received, the
Department of Justice is now finalizing these supplemental guidelines.
For the reasons explained below, the new guidelines will allow
consideration of a broader range of measures that may protect the
public from serious juvenile sex offenders in determining substantial
implementation.
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 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
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
[[Page 50554]]
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 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.
Summary of Comments on the Proposed Supplemental Guidelines
Twenty-six comments were received from various agencies,
organizations, and individuals. A number of the comments were favorable
to the proposed supplemental guidelines' expansion of the matters that
the SMART Office will consider in determining whether registration
jurisdictions have substantially implemented SORNA's juvenile
registration provisions. Some of the comments urged that the guidelines
should go further, such as by eliminating all registration of juvenile
sex offenders. As discussed below, comments of this nature seek actions
that are beyond the legal authority of the Department of Justice. Such
comments are not germane to the formulation of these guidelines, which
explain how the SMART Office will approach the determination whether
registration jurisdictions have substantially implemented the existing
juvenile registration requirement under SORNA.
The specific comments, with their identifying designations on
www.regulations.gov shown in brackets, are as follows:
#1. This comment [DOJ-OAG-2016-0004-0005], submitted by 15
individuals identified as researchers with expertise on juvenile sexual
offending, contains three specific recommendations for revising these
guidelines:
(i) The first recommendation is to remove all requirements for
registration of youth adjudicated delinquent for sex offenses, based on
studies the researchers describe as showing that such registration is
ineffective and has adverse consequences. However, the Attorney General
has no authority to repeal or amend federal laws by issuing guidelines,
or to nullify SORNA's juvenile registration provisions in particular.
See 73 FR at 38036-38, 38040-41, 38050.
(ii) The second recommendation is to remove all language in these
guidelines that could encourage waiver of juveniles to adult criminal
court, based on a study the researchers describe as implying that such
waiver policies do not improve public safety and are subject to bias.
However, these guidelines do not encourage prosecution of juveniles as
adults. Rather, the guidelines (A) recognize that practically all
states authorize or require adult prosecution for many or all juveniles
in SORNA's juvenile registration category, and (B) provide that
policies or practices to prosecute as adults juveniles who commit
serious sex offenses are appropriately considered in determining
whether a jurisdiction has substantially implemented SORNA's juvenile
registration requirement, because adult prosecution may result in
registration and the availability of adult criminal sanctions.
(iii) The third recommendation is that language should be included
in the guidelines supporting the provision of evidence-based treatment
services to youth adjudicated delinquent of sex offenses and their
caregivers, based on studies the researchers describe as demonstrating
the efficacy of treatment. However, the guidelines as drafted already
give weight to policies and practices to identify, track, monitor, or
manage juveniles adjudicated delinquent for serious sex offenses--
measures that may include treatment.
#2. This comment [DOJ-OAG-2016-0004-0020], from two individuals,
refers to and states support for the recommendations appearing in
comment #1, discussed above.
#3. This comment [DOJ-OAG-2016-0004-0022], submitted by the
National Juvenile Justice Prosecution Center, states that these
guidelines are a positive development in balancing public safety with
the developmental nature and special needs of juvenile offenders,
because they provide a more well-rounded approach to safety and greater
flexibility.
#4. This comment [DOJ-OAG-2016-0004-0008], submitted on behalf of
14 organizations and individuals concerned about the inclusion of youth
on sex offender registries, includes four specific recommendations and
the conclusion that ``youth registration should end.'' Many of the
adverse consequences of juvenile registration asserted by these
commenters would appear to be related to public disclosure of juvenile
sex offenders' identities and offenses as opposed to registration per
se. The Attorney General has already provided in earlier supplemental
guidelines under SORNA that registration jurisdictions need not
publicly disclose information about sex offenders required to register
on the basis of juvenile delinquency adjudications. See 76 FR at 1636-
37. The specific recommendations in this comment are as follows:
(i) The first recommendation is to hold a full public hearing on
these guidelines before finalizing them.
[[Page 50555]]
However, a public hearing is not necessary to conclude that the
measures identified in these guidelines are appropriately considered in
determining whether jurisdictions have substantially implemented
SORNA's juvenile registration provisions. The comment does not explain
what information relevant to the formulation of these guidelines would
be conveyed in a hearing that has not or could not have been provided
in the submitted public comments on these guidelines, and does not
otherwise provide a persuasive reason to refrain from issuing these
guidelines pending a hearing.
(ii) The second recommendation is to convene a task force to study
and recommend best practices for youths charged with sexual offenses.
However, convening a task force is not necessary to conclude that these
guidelines' more flexible approach to determining substantial
implementation is warranted. The comment does not explain what
information relevant to the formulation of these guidelines would be
obtained by a task force that has not or could not have been provided
in the submitted public comments, and does not otherwise provide a
persuasive reason to refrain from issuing these guidelines pending the
creation of a task force and completion of its work.
(iii) The third recommendation is to revise the guidelines to
explicitly incentivize evidence-based rather than harmful practices,
such as a policy that eschews juvenile registration but ``ensures that
every young person adjudicated of a sexual offense undergoes a
validated evaluation and is placed in risk and needs-based
programming.'' As noted above, the Attorney General has no authority to
nullify SORNA's juvenile registration requirement, see 73 FR at 38036-
38, 38040-41, 38050, but in determining whether registration
jurisdictions have substantially implemented that requirement, the
guidelines as drafted give weight to policies and practices to
identify, track, monitor, or manage juveniles adjudicated delinquent
for serious sex offenses. These policies and practices may include
evaluation and programming measures like those proposed by these
commenters. To the extent this recommendation is directed against the
guidelines' reference to adult prosecution of juvenile sex offenders,
the response is the same as with comment #1 above. These guidelines do
not encourage prosecution of juveniles as adults. Rather, the
guidelines recognize the prevalence of policies and practices of adult
prosecution of serious juvenile sex offenders, and they treat such
policies and practices as relevant factors in determining whether a
jurisdiction has substantially implemented SORNA's juvenile
registration requirement.
(iv) The fourth recommendation is to move towards a system that
reassures states that they will not lose federal justice assistance
funding if they do not register youth and discourages state policies
that require youth registration. However, the Attorney General and the
SMART Office are charged by law with seeking the substantial
implementation of SORNA by registration jurisdictions, including
SORNA's juvenile registration provisions. See 42 U.S.C. 16912, 16923-
26, 16945. It is not consistent with this responsibility to assure
states globally that they will not lose grant funding if they do not
implement SORNA's juvenile registration requirement or to discourage
them from implementing that requirement. See 73 FR at 38036-38, 38040-
41, 38050.
#5. The authors of this comment [DOJ-OAG-2016-0004-0023] identify
themselves as the parents of a 16-year-old who is currently
incarcerated in a juvenile facility, and who is subject to lifetime
inclusion on a sex offender registry, because he had pornographic
pictures on his phone. The commenters express concern that this will
ruin his life, including preventing him from being in a high school
graduation ceremony or attending college. The concerns expressed in the
comment relate to actions taken pursuant to state law and do not weigh
against issuing guidelines that afford greater flexibility in
determining substantial implementation of SORNA's juvenile registration
provisions. SORNA itself does not require registration based on
juvenile adjudications for pornography offenses like that described in
this comment. In terms of offense coverage, it suffices for substantial
implementation of SORNA's juvenile registration requirement if
jurisdictions require registration of persons at least 14 years old at
the time of the offense based on delinquency adjudications for offenses
amounting to rape or its equivalent or an attempt or conspiracy to
commit such an offense. See 73 FR at 38040-41, 38050. SORNA imposes no
restrictions on registrants' attending high school or college. The
Attorney General has provided in previously issued supplemental
guidelines for SORNA implementation that jurisdictions need not
publicly disclose information about persons required to register on the
basis of juvenile delinquency adjudications. See 76 FR at 1636-37.
#6. This comment [DOJ-OAG-2016-0004-0011], submitted on behalf of
the Pueblo of Laguna, recommends (i)-(ii) amending state and federal
law to ensure that youth sex offenders are placed on registries only
after an individualized assessment, with periodic review of youth sex
offender registrations, (iii) using youth sex offender registration
information solely for law enforcement purposes and not disclosing it
publicly, (iv) creating an impartial body to ensure that all
registration information is accurate and not misleading and to remove
youth offenders from registries as soon as registration requirements
have ended, (v) advising juvenile sexual offense defendants of the
consequences of a conviction or adjudication, including registration,
community notification, and residency requirements, (vi) taking account
of the need to protect the safety of people convicted of sex offenses
in deciding the method and scope of community notification, and (vii)
providing training on relevant youth issues to officers involved in the
investigation of sexual offenses. Regarding (i)-(ii), the Attorney
General has no legal authority to amend state or federal laws, and in
particular, cannot nullify SORNA's juvenile registration provisions.
See 73 FR at 38036-38, 38040-41, 38050. However, these guidelines will
enable the SMART Office to consider a broader range of measures in
determining whether registration jurisdictions have substantially
implemented those provisions. Regarding (iii), (v), and (vi), which
largely concern community notification, the Attorney General has
provided in previous SORNA guidelines that registration jurisdictions
need not publicly disclose information about sex offenders required to
register on the basis of juvenile delinquency adjudications. See 76 FR
at 1636-37. Also, regarding (v), SORNA imposes no restrictions on where
sex offenders may live (``residency requirements''). Regarding (iv)-
(vii) generally, the measures proposed do not conflict with SORNA or
these guidelines and registration jurisdictions are free to adopt them.
#7. This comment [DOJ-OAG-2016-0004-0019] states opposition to sex
offender registration generally, ``for all but high-risk offenders,''
and in particular states that the commenter is vehemently against
registration for persons committing sexual crimes as juveniles. The
comment does not weigh against issuance of these guidelines, which
explain how the SMART Office will determine whether registration
jurisdictions have substantially implemented SORNA's juvenile
[[Page 50556]]
registration provisions, and allow consideration of an expanded range
of measures in that determination.
#8. This comment [DOJ-OAG-2016-0004-0012] proposes eliminating
requirements for juvenile registration and supporting well-delivered
specialized treatment. However, the Attorney General has no authority
to eliminate SORNA's juvenile registration provisions. See 73 FR at
38036-38, 38040-41, 38050. These guidelines give weight to policies and
practices to identify, track, monitor, or manage juveniles adjudicated
delinquent for serious sex offenses, measures that may include
treatment.
#9. The authors of this comment [DOJ-OAG-2016-0004-0017] identify
themselves as the parents of a 15-year-old boy who is required to
register as a sex offender for 10 years, because of a child pornography
adjudication based on his sending unsolicited photos of his genitalia
to a female classmate. The commenters express concern about adverse
effects on their son's life, including limitation of employment
opportunities and unsupervised association with a younger brother, and
they reproduce and endorse the recommendations set forth in comment #1.
Regarding those recommendations, see the discussion of comment #1
above. The comment otherwise relates to actions taken pursuant to state
law and does not weigh against issuance of these guidelines, which
afford greater flexibility in determining substantial implementation of
SORNA's juvenile registration provisions. SORNA does not require
registration based on juvenile adjudications for offenses like that
described in this comment. In terms of offense coverage, it suffices
for substantial implementation of SORNA's juvenile registration
requirement if jurisdictions require registration of persons at least
14 years old at the time of the offense based on delinquency
adjudications for offenses amounting to rape or its equivalent or an
attempt or conspiracy to commit such an offense. See 73 FR at 38040-41,
38050. SORNA imposes no restrictions on registrants' qualification for
employment or on unsupervised association with younger children. The
Attorney General has provided in previously issued supplemental
guidelines for SORNA implementation that jurisdictions need not
publicly disclose information about persons required to register on the
basis of juvenile delinquency adjudications. See 76 FR at 1636-37.
#10. This comment [DOJ-OAG-2016-0004-0004] describes the changes in
these guidelines as a step in the right direction, but it characterizes
SORNA as ``misguided'' in relation to juvenile offenders and encourages
exploration of other methods of sexual abuse prevention that are less
likely to be counterproductive for juvenile offenders and that are
focused only on juvenile offenders determined after judicial review to
be a risk. However, the Attorney General does not have the authority to
override the legislative judgments embodied in SORNA, including SORNA's
juvenile registration provisions. See 73 FR at 38036-38, 38040-41,
38050. The comment also states that a number of statements in these
guidelines are premised on the assumption that juveniles will sexually
reoffend, an assumption that the comment says is not supported by
research. However, these guidelines are not premised on an assumption
about the extent of re-offense by juvenile sex offenders. Rather, they
explain how the SMART Office will determine whether registration
jurisdictions have substantially implemented SORNA's juvenile
registration provisions and allow consideration of an expanded range of
measures in making that determination. Finally, the comment includes a
technical suggestion that a definition of ``sexual act'' should be
included in the background information part of these guidelines, right
after the term is used. The preamble cross-references the original
SORNA Guidelines, 73 FR at 38050, which provide the relevant definition
of ``sexual act''. The comment does not provide a reason why the
definition of this term should be reproduced in these supplemental
guidelines.
#11. This comment [DOJ-OAG-2016-0004-0024], submitted on behalf of
Human Rights Watch, recommends deleting two of the three specific
factors these guidelines give weight to--policies and practices to
prosecute as adults juveniles who commit serious sex offenses, and
policies and practices to register juveniles adjudicated delinquent for
serious sex offenses. In support of this recommendation, the comment
argues that adult prosecution of juveniles and registration of
juveniles have various adverse effects on juveniles. However, the
comment provides no persuasive reason why the guidelines should not
give weight to these factors. In determining whether registration
jurisdictions have substantially implemented SORNA's juvenile
registration requirement, policies and practices of adult prosecution
of serious juvenile sex offenders may be relevant because they may
result in registration and the availability of adult criminal
sanctions, and policies and practices of registering juvenile sex
offenders may be relevant because, even if discretionary, they may in
practice capture many of the juveniles in SORNA's juvenile registration
category in the jurisdiction's registration scheme.
#12. This comment [DOJ-OAG-2016-0004-0015], submitted on behalf of
the National District Attorneys Association, views the guidelines
favorably as providing states with flexibility to comply with SORNA and
protect community safety while maintaining the integrity of their
juvenile justice systems.
#13. This comment [DOJ-OAG-2016-0004-0026], submitted on behalf of
the Lambda Legal Defense and Education Fund, joins in the
recommendations of comment #4. The comment particularizes some of the
recommendations of comment #4 to reference specifically LGBTQ youth and
it asserts that criminal prosecution and punishment and registration
for sex offenses operate more harshly against LGBTQ youth. The response
to this comment is essentially the same as the response to comment #4.
#14. This comment [DOJ-OAG-2016-0004-0016], submitted on behalf of
the Association for the Treatment of Sexual Abusers, generally
criticizes juvenile registration and adult prosecution of juveniles,
states support for giving jurisdictions greater discretion whether to
register children adjudicated for sexual crimes, thanks the SMART
Office for its continued efforts in developing a more responsive and
nuanced policy, and provides four specific recommendations:
(i) The first recommendation is to develop appropriate assessments
taking account of a youth's clinical, family, and environmental
situation to formulate effective, individualized treatment and
management plans for youth. However, the guidelines as drafted give
weight to policies and practices to identify, track, monitor, or manage
juveniles adjudicated delinquent for serious sex offenses, which may
include the measures described in this comment.
(ii) The second recommendation is to remove requirements for broad-
based youth registration and notification. However, SORNA itself
requires registration by certain juveniles adjudicated delinquent for
serious sex offenses. The Attorney General has no authority to change
what SORNA provides. These guidelines are responsive to the concerns
expressed in this comment, within the bounds of the law, in allowing
consideration of a broader range of measures in
[[Page 50557]]
determining whether jurisdictions have substantially implemented
SORNA's juvenile registration requirement. The Attorney General has
already provided in earlier guidelines under SORNA that registration
jurisdictions need not engage in public notification regarding
juveniles required to register on the basis of delinquency
adjudications. See 76 FR at 1636-37.
(iii) The third recommendation is to include language that supports
the use of evidence-based treatment and management strategies for
youth. However, the guidelines as drafted already give weight to
policies and practices to identify, track, monitor, or manage juveniles
adjudicated delinquent for serious sex offenses, which may include
evidence-based treatment and management strategies.
(iv) The fourth recommendation is to remove language that promotes
the waiver of youth to adult courts. The response to comment #1
includes discussion of this issue.
#15. This comment [DOJ-OAG-2016-0004-0021], submitted on behalf of
Stop It Now!, supports the recommendations appearing in comment #1.
Those recommendations are discussed above in connection with comment
#1.
#16. The author of this comment [DOJ-OAG-2016-0004-0010] criticizes
the sex offender registration system of his state as adversely
impacting juveniles. The comment asks for a direction to the 50 states,
the District of Columbia, and the territories to create a process to
remove all their registered sex offenders who were convicted when
juveniles from every registry by January 2018 and to stop adding new
juveniles immediately. The Attorney General has no legal authority to
issue such a direction to registration jurisdictions.
#17. This comment [DOJ-OAG-2016-0004-0006], submitted on behalf of
the Annie E. Casey Foundation, refers to the letter discussed as
comment #1 above, states concerns and recommendations similar to those
appearing in that letter, and particularly emphasizes the commenter's
concern about prosecution of juveniles as adults. The response to
comment #1 discusses these matters.
#18. This comment [DOJ-OAG-2016-0004-0014], submitted by the
Attorney General of Alaska, (i) endorses the more flexible approach of
these guidelines to determining substantial implementation of SORNA's
juvenile registration provisions, (ii) notes that the SMART Office has
previously found that Alaska was not compliant with SORNA's juvenile
registration requirement, and (iii) provides information about Alaska's
system in support of a different conclusion under the new guidelines.
Following the issuance of these guidelines, the SMART Office will
entertain requests for substantial implementation determinations
regarding juvenile registration in conformity with the new guidelines,
including requests from jurisdictions previously subject to negative
determinations under the pre-existing substantial implementation
standards.
#19. The author of this comment [DOJ-OAG-2016-0004-0018] identifies
himself or herself as the parent of a son adjudicated for distributing
child pornography, based on sending pictures of himself to a classmate
he had a crush on when he was 14. The comment states that the son will
have to register as a sex offender for at least 10 years as a result,
and that he now cannot attend the high school he attended over the last
year or other schools in the area. The comment urges that a child
should not be labeled a sex offender for sending a picture of himself
to a friend. The response to this comment is essentially the same as
the response to comments #5 and #9 above. The concerns expressed in the
comment relate to actions taken pursuant to state law and do not weigh
against issuing guidelines that afford greater flexibility in
determining substantial implementation of SORNA's juvenile registration
provisions. SORNA does not require registration based on juvenile
adjudications for offenses like that described in the comment, does not
restrict where juvenile sex offenders may go to school, and does not
require public disclosure of identity or other information for
juveniles required to register on the basis of delinquency
adjudications.
#20. This comment [DOJ-OAG-2016-0004-0003] recommends that the
SMART Office seek a change in the law so that states cannot publicly
post information about juvenile registrants on Web sites unless the
registrants are tried and convicted in adult court. The comment is not
germane to these guidelines, which are concerned with substantial
implementation of the juvenile registration requirement under existing
federal law (SORNA). The Attorney General has already provided in
earlier guidelines under SORNA that registration jurisdictions need not
publicly post information about persons required to register on the
basis of juvenile delinquency adjudications. See 76 FR at 1636-37. The
comment also suggests that the SMART Office tell states that they will
be out of compliance and lose 10% of federal funding if they have
restrictions on where registrants can live. The SMART Office has no
authority to do so because SORNA contains nothing that either prohibits
or requires residency restrictions.
#21. This comment [DOJ-OAG-2016-0004-0007], submitted on behalf of
the National Criminal Justice Association, states support for these
guidelines. The comment notes that some states have not yet achieved
substantial implementation of SORNA because of SORNA's mandatory
registration requirements for specific juvenile offenses. The comment
states that by allowing the SMART Office to assess juvenile
registration in a more holistic manner and to review comprehensively
relevant state policies and practices, the guidelines ``will go a long
way in allowing states . . . to achieve substantial implementation with
the requirements of SORNA . . . in a way that protects community
safety.'' Noting that many states have fallen short of compliance in
relation to required registration for adjudicated juveniles, the
comment describes these guidelines as a welcome clarification about the
review the SMART Office will undertake in assessing whether a
jurisdiction has substantially implemented SORNA's juvenile
registration provisions.
#22. This comment [DOJ-OAG-2016-0004-0025] criticizes sex offender
registration for anyone under 20. As explained in the responses to
other comments, the Attorney General has no authority to change sex
offender registration laws, and in particular, no authority to
eliminate SORNA's juvenile registration requirement.
#23. This comment [DOJ-OAG-2016-0004-0002] includes pictures of an
apparently injured individual, with text representing that the injuries
resulted from an attack occasioned by his inclusion on a sex offender
registry. The comment says that this is what all people labeled as sex
offenders can expect from their government. The comment is not germane
to these guidelines, which explain how the SMART Office will determine
whether registration jurisdictions have substantially implemented
SORNA's juvenile registration requirement. If the point of the comment
is to assert a risk of violence against sex offenders resulting from
public disclosure of their identities, the Attorney General has
provided in earlier guidelines that jurisdictions need not make such
disclosure for sex offenders required to register on the basis of
juvenile delinquency adjudications. See 76 FR at 1636-37.
#24. This comment [DOJ-OAG-2016-0004-0013], submitted by the
Secretary of Public Safety and Homeland Security of the State of
Virginia, states support
[[Page 50558]]
for these guidelines. The comment recounts that Virginia has been
determined to be out of compliance with SORNA because of state statutes
that do not automatically require juvenile registration. The comment
characterizes as a very welcome development the guidelines' provision
for determining substantial implementation with SORNA based on a more
comprehensive view of adjudicated juveniles and expresses confidence
that the new approach will be beneficial to Virginia in reaching
substantial implementation of SORNA. As noted above in the response to
a similar comment from the Attorney General of Alaska (#18), the SMART
Office will entertain requests for substantial implementation
determinations regarding juvenile registration in conformity with the
new guidelines, including requests from jurisdictions previously
subject to negative determinations under the pre-existing substantial
implementation standards.
#25. This comment [DOJ-OAG-2016-0004-0009] is submitted on behalf
of ``Just Kids,'' described as a national coalition made up of legal
experts, child advocates, juvenile justice policy experts, and victim
advocates concerned about including youth on sex offender registries.
The commenters overlap with those submitting comment #4 and the comment
is similar in substance to comment #4. The response is essentially the
same as that provided above to comment #4.
#26. This comment [DOJ-OAG-2016-0004-0027] states that underage
children should not have to suffer lifelong consequences for a mistake
and asks for the enactment of a law providing that underage children
shown to be productive citizens during their rehabilitation can be
blemish-free later in their adult productive life. The Attorney General
does not have the authority to enact laws and the comment is not
germane to the issuance or formulation of guidelines concerned with the
determination whether registration jurisdictions have substantially
implemented SORNA's juvenile registration requirement.
In sum, the public comments received did not provide any persuasive
reason to change or delay finalization of the proposed guidelines,
which are finalized here without change.
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
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: July 26, 2016.
Loretta E. Lynch
Attorney General.
[FR Doc. 2016-18106 Filed 7-29-16; 8:45 am]
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