9-12-2008 National:
A reader e-mails me and asks if I had seen the following:
“Substantial Implementation”: Basic Requirements
The Final Guidelines make clear that the requirements of SORNA are a baseline that the jurisdictions must comply with. Jurisdictions that utilize a different foundational approach (classifying offenders based on a risk-assessment instead of the elements of their offenses, for example) will not be deemed to be in ‘substantial compliance’. Nevertheless, jurisdictions will retain some latitude with practical implementation issues, such as in-person verification.
Many thoughts went through my head but the first one was "Conflict" because I had read the Guidelines Implementation section (duplicated at the end of this post) and did not see anything that rigid.
Apparently the SMART Office (I always question that term) issued a document titled "Significant Changes to the SORNA Guidelines" at the same time that they issued the final guidelines and sure enough on the top of page-2 you will find that comment.
While the title of that document implies it supersedes the Final Guidelines, I don't know how it can. The public was allowed input to the Proposed Guidelines before they became the Final Guidelines and I do not know of any posting of this as a Proposed Guideline change. If the system of "Proposed" followed by "Final" is the system then this change superseded that system and doesn't seem to be approved by the United States Attorney General.
Is it legal or smart to do that? Thats for lawyers to decide.
Is this an important issue for state legislatures?
Obviously it is because the SMART Office is saying, do it my way and forget anything you were thinking of, then you will be substantially complying with SORNA.
Oh yes, and if you don't do it my way, I will dock your Byrne Grant 10%. Is that coercion, legalized, and how does that square with the Tenth Amendment? Here we have administrative employees telling state legislatures, "Do it my way or else."
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 10th Amendment U.S. ConstitutionI know Congress granted the USAG the power to interpret the Adam Walsh Act, but, does that power flow to the administrative employees that published this "Significant Changes to the SORNA Guidelines" document which supersedes the Final Guidelines?
Is this an important issue for registered sex offenders?
Well, in essence it says, classify registrants (assign tiers) based on the actual offense committed. Sounds fair, if the offense was just committed, but, therein is the problem, the majority of the registrants committed their offenses years ago (5-10-15-20-30-40 even 50 years ago).
And, to make matters worse, there is nothing registrants can do to lower or eliminate the classification. It is, and will be, what it was at the time of the offense. The public will see the registrant, daily, as though s/he had just committed the offense yesterday and will see that for the life of the registrant.. That is cruel and unusual further punishment, unless you pervert the English language to say it isn't.
I do recognize that, further time as a registrant, and a clean record, MAY allow a few to reduce their classification. So sayeth the Adam Walsh Act but these folks are in the minority. The majority have already demonstrated such conduct and time and there is no relief for them, or those with families. Retroactivity starts the cycle over, and there are no controls in place to prevent this from happening again and again and again, into the future.
Is this an important issue for each state lawmaker?
It seems to me that State lawmakers should be screaming to the high heavens because everything they have done over the years, in state law, to rehabilitate these registrants (plea bargains, punishments and promises) in their respective states, is now being set aside by the federal government through this classification system (tier assignments) rendering rehabilitation meaningless.
The powers of the states, state lawmakers, and state court judges is being usurped by this classification system. Most definitely it is an issue for every state supreme court and is a 10th Amendment issue for state lawmakers?
Is this an important issue for the general public?
This is of paramount importance to the general public unless they don't mind living being lied to which is exactly what the Adam Walsh Act does through this classification system. Knowing where a registrant lives, i.e., sleeps, is of lesser importance than knowing something about the registrant's propensity for reoffense.
Prior to the Adam Walsh Act most states had no system of determining a registrant's propensity for reoffense, but some did have a such a system. Those systems are replaced under AWA with a system that tells you nothing about the registrant in today's light. The AWA system speaks not to propensity for reoffense, but instead, categorizes offenses committed into tiers, with each tier representing the seriousness of the offense WHEN IT WAS COMMITTED.
The general public has been groomed and taught over the years that, tier levels -low to high- means propensity for reoffense, likelihood of committing another offense. The new AWA system masks itself in tiers, so that, the general public thinks -propensity for reoffense- but in reality tells the public nothing about a registrant's propensity for reoffense TODAY.
Cleverly written policy, guidelines, and laws do not make the public safer!
Now, where are the lawyers to carry this through the courts and effect change?
eAdvocate
Sec. E. Implementation
Section 124 of SORNA sets a general time frame of three years for implementation, running from the date of enactment of SORNA, i.e., from July 27, 2006. The Attorney General is authorized to provide up to two one-year extensions of this deadline. Failure to comply within the applicable time frame would result in a 10% reduction of federal justice assistance funding under 42 U.S.C. 3750 et seq. (“Byrne Justice Assistance Grant” funding). See SORNA § 125(a). Funding withheld from jurisdictions because of noncompliance would be reallocated to other jurisdictions that are in compliance, or could be reallocated to the noncompliant jurisdiction to be used solely for the purpose of SORNA implementation.
While SORNA sets minimum standards for jurisdictions’ registration and notification programs, it does not require that its standards be implemented by statute. Hence, in assessing compliance with SORNA, the totality of a jurisdiction’s rules governing the operation of its registration and notification program will be considered, including administrative policies and procedures as well as statutes.
The SMART Office will be responsible for determining whether a jurisdiction has substantially implemented the SORNA requirements. The affected jurisdictions are encouraged to submit information to the SMART Office concerning existing and proposed sex offender registration and notification provisions with as much lead time as possible, so the SMART Office can assess the adequacy of existing or proposed measures to implement the SORNA requirements and work with the submitting jurisdictions to overcome any shortfalls or problems. At the latest, submissions establishing compliance with the SORNA requirements should be made to the SMART Office at least three months before the deadline date of July 27, 2009—i.e., by April 27, 2009—so that the matter can be determined before the Byrne Grant funding reduction required by SORNA § 125 for noncompliant jurisdictions takes effect. If it is anticipated that a submitting jurisdiction may need an extension of time as described in SORNA § 124(b), the submission to the SMART Office—which should be made by April 27, 2009, as noted—should include a description of the jurisdiction’s implementation efforts and an explanation why an extension is needed.
SORNA § 125 refers to “substantial” implementation of SORNA. The standard of “substantial implementation” is satisfied with respect to an element of the SORNA requirements if a jurisdiction carries out the requirements of SORNA as interpreted and explained in these Guidelines. Hence, the standard is satisfied if a jurisdiction implements measures that these Guidelines identify as sufficient to implement (or “substantially” implement) the SORNA requirements.
Jurisdictions’ programs cannot be approved as substantially implementing the SORNA requirements if they substitute some basically different approach to sex offender registration and notification that does not incorporate SORNA’s baseline requirements—e.g., a “risk assessment” approach that broadly authorizes the waiver of registration or notification requirements or their reduction below the minima specified in SORNA on the basis of factors that SORNA does not authorize as grounds for waiving or limiting registration or notification. Likewise, the “substantial implementation” standard does not mean that programs can be approved if they dispense wholesale with categorical requirements set forth in SORNA, such as by adopting general standards that do not require registration for offenses included in SORNA’s offense coverage provisions, that set regular reporting periods for changes in registration information that are longer than those specified in SORNA, or that prescribe less frequent appearances for verification or shorter registration periods than SORNA requires.
The substantial implementation standard does, however, contemplate that there is some latitude to approve a jurisdiction’s implementation efforts, even if they do not exactly follow in all respects the specifications of SORNA or these Guidelines. For example, section 116 of SORNA requires periodic in-person appearances by sex offenders to verify their registration information. But in some cases this will be impossible, either temporarily (e.g., in the case of a sex offender hospitalized and unconscious because of an injury at the time of the scheduled appearance) or permanently (e.g., in the case of a sex offender who is in a persistent vegetative state). In other cases, the appearance may not be literally impossible, but there may be reasons to allow some relaxation of the requirement in light of the sex offender’s personal circumstances. For example, a sex offender may unexpectedly need to deal with a family emergency at the time of a scheduled appearance, where failure to make the appearance will mean not verifying the registration information within the exact time frame specified by SORNA § 116. A jurisdiction may wish to authorize rescheduling of the appearance in such cases. Doing so would not necessarily undermine substantially the objectives of the SORNA verification requirements, so long as the jurisdiction’s rules or procedures require that the sex offender notify the official responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be carried out once the interfering circumstance is resolved.
In general, the SMART Office will consider on a case-by-case basis whether jurisdictions’ rules or procedures that do not exactly follow the provisions of SORNA or these Guidelines “substantially” implement SORNA, assessing whether the departure from a SORNA requirement will or will not substantially disserve the objectives of the requirement. If a jurisdiction is relying on the authorization to approve measures that “substantially” implement SORNA as the basis for an element or elements in its system that depart in some respect from the exact requirements of SORNA or these Guidelines, the jurisdiction’s submission to the SMART Office should identify these elements and explain why the departure from the SORNA requirements should not be considered a failure to substantially implement SORNA.
Beyond the general standard of substantial implementation, SORNA § 125(b) includes special provisions for cases in which the highest court of a jurisdiction has held that the jurisdiction’s constitution is in some respect in conflict with the SORNA requirements. If a jurisdiction believes that it faces such a situation, it should inform the SMART Office. The SMART Office will then work with the jurisdiction to see whether the problem can be overcome, as the statute provides. If it is not possible to overcome the problem, then the SMART Office may approve the jurisdiction’s adoption of reasonable alternative measures that are consistent with the purposes of SORNA.
Section 125 of SORNA, as discussed above, provides for a funding reduction for jurisdictions that do not substantially implement SORNA within the applicable time frame. Section 126 of SORNA authorizes positive funding assistance—the Sex Offender Management Assistance (“SOMA”) grant program—to all registration jurisdictions to help offset the costs of SORNA implementation, with enhanced payments authorized for jurisdictions that effect such implementation within one or two years of SORNA’s enactment. Congress has not appropriated funding for the SOMA program at the time of the issuance of these Guidelines. If funding for this program is forthcoming in the future, additional guidance will be provided concerning application for grants under the program.
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