ONLINE EXCLUSIVE - Sex offenders want restrictions lifted; sheriffs not reacting yet to court's ruling

Interesting dilemma in Ohio, one which I'm sure registrants do not care about, they want off period, but Ohio is caught between its constitution and the Adam Walsh Act (SORNA). SORNA say, in spite of a State Sup court ruling it must still make efforts to comply with SORNA. So, how does Ohio accomplish that, so far, they are dragging their feet in hopes that someone will come up with an answer. Funny, while SORNA recognized this was possible, it didn't answer (spell out) how to resolve the problem. Apparently even Congress was scratching their heads during the writing of SORNA and everyone still is. As long as the "funding issue" is held over Ohio's head, this will never be solved.

6-15-2010 Ohio:

Saying they are free at last, some sex offenders are calling sheriff's offices and demanding that their pictures and addresses be removed from online listings.

But sheriffs are being told not to alter anything while lawyers and prosecutors work to determine the fallout from a recent Ohio Supreme Court decision.

The justices ruled that six tiers of sex offenders sentenced before Jan. 1, 2008, improperly were reclassified into three federally mandated tiers that have tougher reporting and registration requirements.

The court's mandate to Ohio's attorney general to reclassify the affected sex offenders means some offenders no longer will need to register or report to sheriff's offices.

For example, under the state's Megan's Law classifications, the lowest-level offenders sexually oriented and child-victim oriented were required to register their addresses annually for 10 years.

The adoption of the federal Adam Walsh Act guidelines beginning in 2008 then required many of those same sex criminals to report their addresses for 15 years and to report in-person to a sheriff's office once a year.

Now, thousands of Ohio's 26,000 sex offenders will be shifted back to the 10-year registration, meaning an undetermined number no longer will have to register and are to be removed from offender listings.

Officials say the worst offenders, those classified as sexual predators and child-victim predators, will be unaffected.

Under both Megan's Law and the Adam Walsh Act, those offenders are under lifetime registration requirements and are required to report in-person to a sheriff's office every 90 days.

Bob Cornwell, executive director of the Buckeye State Sheriffs' Association, has been fielding calls from sheriffs who say that some sex offenders are citing the court ruling and insisting they be freed from reporting requirements.

Cornwell has advised the sheriffs to do nothing until they hear from their county prosecutors. The attorney general's office has no estimate of when its reclassification work will be complete and offenders notified.

"I'd rather have the offender mad at the sheriff than the public," Cornwell said. ..Source.. Randy Ludlow

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RI- Implementing sex offender registration law may prove impossible

3-14-2009 Rhode Island:

In 2006, Congress enacted legislation to standardize the way states classify and register sex offenders and to make it easier for the public to learn about an offender’s presence in their communities.

Under the provisions of the federal Sex Offender Registration and Notification Act (SORNA), each state and all federally recognized Indian tribes are required to set up centralized computer banks to track people convicted of sex crimes — even many whose sentences were completed decades ago — and to post detailed information about each of them, along with a photograph, on a Web site that anyone can access.

The aim of the law — also known as the Adam Walsh Child Protection and Safety Act — is to reduce the number of sex crimes committed, especially on child victims, and to increase public safety through improved monitoring of sex offenders as they move from neighborhood to neighborhood and state to state. It establishes an easy way for the public to find out if there’s a sex offender living nearby or working or going to school with them or with members of their families.

Already a homeless convicted rapist has been given a 30-month federal sentence in U.S. District Court in Rhode Island for his failure to register as a sex offender when he moved from Massachusetts to Woonsocket in 2007, as required under SORNA.

But implementation of the law has proven to be a legal and economic nightmare. Some judges have ruled the act unconstitutional. Civil liberties groups, criminal defense attorneys and, surprisingly, even some law enforcement officials, are crying foul. Last week, a veteran sex crimes prosecutor in Louisiana told a subcommittee of the House Judiciary Committee in Washington that implementing the law might actually result in fewer convictions of criminals who prey on young children because it will be hard to get offenders to plead guilty if they know they will be required to register on a Web site as a sex offender for the rest of their lives.

About a dozen states have gone about revising laws, reclassifying offenders and setting up new computer systems to try to comply with the law. But to date, all of them have failed to convince the Department of Justice — which has set a July 27 deadline for compliance — that they have done enough to do what SORNA requires.

The penalty for non-compliance is steep: states that don’t comply will lose 10 percent of the federal financing they receive for sex offender management programs and other law enforcement and justice initiatives. But many states may opt out nonetheless. Already, cash-strapped California has informed the Justice Department that it will not implement SORNA even though it will mean a loss of about $2 million in federal funds this year. The reason is clear: it is estimated that it would cost California more than $59 million to implement everything mandated by the new law.


Attorney General Patrick C. Lynch said that Rhode Island will make an effort to comply, and that legislation is being drafted to make the necessary changes in the law, though it probably won’t be submitted to the General Assembly for consideration until 2010. That means the state won’t meet the Justice Department’s July deadline and will have to ask for at least one, if not two, one-year extensions so it can continue to receive the full amount of money for sex offender management programs and other law enforcement and justice initiatives. To get an extension — which must be requested by April 27 — a state must make the case that it is making an effort to “substantially comply” with the mandates of SORNA. This year, the 10 percent at stake for Rhode Island is $80,000.

But this may all be just a postponement of the inevitable. In an interview last week, Lynch candidly admitted that he doesn’t know whether Rhode Island will ever be able to comply with the mandates of the SORNA law — and whether it would be good public policy to do so.

He cited the “prohibitive cost” of implementation. It would cost millions of dollars to set up a centralized computer bank and hire workers to run it and chase down errant offenders who fail to register or update information about their whereabouts, he said. Implementing the mandates of SORNA in Rhode Island would also require the General Assembly to enact sweeping changes to the state’s juvenile-justice and sex-offender reporting and classification laws.

Under SORNA, a sex offender who is 14 or older would be required to register, with a photo, on the state’s Web site if the sex offense they were brought to court for involved violence or a victim younger than 12. The minor offender — even those whose cases go through secret Family Court trials — would have to update his registration information three times a year for at least 25 years, perhaps for the rest of his life.

Then there’s the issue of retroactivity, another “major bone of contention,” said Lynch. A flood of lawsuits have been filed around the country by defense lawyers representing sex offenders who were not required, as part of their original sentence, to register but who are now being told they must do so because of SORNA. Even those who completed sentences 30 or 40 years ago are now being required to register if they are subsequently convicted of another offense, even if the crime isn’t of a sexual nature.

“You’ve been around the State House. What do you think the chances are” of making such broad changes in the law in just one or two legislative sessions? Lynch asked. “Probably limited and that’s being generous. So we have a fight on our hands but I think we are obligated to bring it to them …”

One of those who is sure to weigh in is Michael A. DiLauro, a Rhode Island assistant public defender who is the legislative liaison for the public defender’s office, which represents indigent defendants. DiLauro calls the mandates of SORNA “both poor social and fiscal policy.”

“Statistics show that children are most often sexually assaulted by a family member or acquaintance. Thus the registration and community notification provisions of the Adam Walsh Act provide a false sense of security and misallocate resources better spent on treatment and other community support mechanisms for offenders. These have proven effective in reducing recidivism.” But registration and community notification, said DiLauro, “can lead to ostracism, homelessness and unemployment, thereby forcing offenders underground, beyond the reach of treatment providers and monitoring by probation and parole officers.”

Since SORNA became law in 2006, there have been nearly 100 cases prosecuted in the federal courts, including the Rhode Island case, where convicted adult sex offenders have been charged with failing to register, a crime punishable by up to 10 years’ imprisonment and a $250,000 fine.

Michael DiTomasso, the homeless Rhode Island defendant, pleaded guilty in Massachusetts in 1995 to raping and abusing a child and committing indecent assaults. He registered as a sex offender in Massachusetts for several years in a row but then failed to re-register within three days of moving to Woonsocket, or to update his previous registry information — both requirements of SORNA. The court record shows that DiTomasso had a history of serious drug abuse but because of his sex offender status, couldn’t enroll in an inpatient drug treatment program. He had no job; in recent years, he’d committed a string of larcenies, probably, the court said, to support his drug habit.

The defendant claimed his due-process rights were violated with his arrest for failing to register because Rhode Island hasn’t yet implemented SORNA. But Chief U.S. District Court Judge Mary M. Lisi disagreed and sentenced DiTomasso, who eventually pleaded guilty, to serve 2½ years in prison. Now behind bars, he is appealing his sentence for failing to register. ..News Source.. by Tracy Breton, Journal Staff Writer

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NV- Sex offender act might not be worth its cost to Nevada

2-16-2009 Nevada:

The Adam Walsh Act was an instant controversy in Nevada. As soon as state lawmakers adopted the federal sex offender legislation in 2007, lawyers drew up lawsuits that have kept it tied up in court to this day.

But all the debate between advocates and attorneys over whether the Walsh Act is legal or logical now seems for naught. In this economy, the real question is not whether the Walsh Act is constitutional, but whether it’s too expensive. By many calculations, it is.

Sex offender management boards in California and Colorado have recommended their states reject the Adam Walsh Act — which changes the way states track and monitor sex offenders — in part because of the crippling cost. Other states, including Florida, Iowa, Virginia and Texas, are also doing the math and finding that the federal standard seems more expensive to adopt than to ignore, no matter the penalty.

And there are penalties. States have until July 27 to become compliant with Walsh sex offender regulations or risk losing federal finding. In Nevada, meeting the deadline could safeguard hundreds of thousands of dollars.

But carrying out the provisions of the Walsh Act could cost millions. In a state where the budget is beyond tight, we don’t know what the Walsh Act would cost. While states around us scramble do to the math, nobody in Nevada is crunching the numbers. So with the deadline for compliance looming, no one knows whether Nevada going to spend millions to save thousands.

Part of the reason Nevada doesn’t know how much Walsh will cost may lie in the state’s speedy adoption of the federal act. Nevada is one of eight states that passed Walsh regulations after Congress approved them in 2006. The vast remainder of states instead chose to evaluate the Walsh Act, considering its constitutionality first and then its cost.

Concerns now coming to light in these states were barely discussed in Nevada. Instead, issues with Walsh are being worked out in Nevada courts as a result of those lawsuits levied against the act.

One was filed by the Clark County Public Defender’s Office on the grounds that Walsh unfairly affects juveniles and the other by the Nevada ACLU on the grounds that the law violates due process rights and protection from retroactive punishment. Until these cases are resolved, the state has been barred from enforcing Walsh.

And with the future of Nevada sex offender laws in limbo, government agencies aren’t using their calculators. Why compute the cost of a program that may never come to be?

Attorney General Catherine Cortez Masto, whose office introduced the Walsh Act to Nevada’s Legislature in 2007 and has been defending it in court ever since, said it’s up to the agencies that would be affected to figure out the costs. But representatives of these agencies said nobody is running numbers while the law is stalled in court.

To understand what kind of money Nevada might end up spending — if the law weathers court challenges — we can only look to the calculations of other states. In California, the Sex Offender Management Board came up with an initial assessment of $38 million. Missing the deadline, by comparison, would cost $210,000.

“This is an unfunded mandate,” the board’s chairwoman, Suzanne Brown-McBride said. “There are massive expectations of changes from federal legislation but really no attempt to significantly fund it.”

This complaint has come up before, most notably when the National Conference of State Legislators released a statement last year objecting to elements of the Walsh Act and complaining that it was “crafted without state input or consideration.”

California, though, has a much higher population of sex offenders than Nevada. So perhaps a more apt comparison for Nevada is Virginia, where officials figured it would cost $12.4 million to carry out the Walsh regulations, or $400,000 not to. Or consider Florida: about $3.2 million for Walsh, versus a $2.1 million to $2.8 million penalty for missing the deadline, if not rejecting the sex offender legislation outright. Each state used its own formula, and each came up with the same answer: It would cost more to adopt than to ignore.

So why is the Walsh Act so expensive? Because it would drastically change the way states manage sex offenders. The risk of each to re-offend has to be reconsidered and reclassified. Nevada sex offenders are classified by tiers — the higher the tier, the higher the risk to re-offend. The higher the risk, the closer a sex offender is supposed to be monitored by parole and probation officials. The closer the monitoring, the greater the cost to taxpayers.

Tier is determined by a psychological evaluation of the offender, an assessment of his crime, history and mind. Walsh would replace this system with a tier calculation based solely on the nature of the crime. This new system would turn many sex offenders who have been deemed low-risk into high-risk offenders overnight. Estimates vary, but Clark County parole and probation officials have said the number of Tier 3 offenders, those posing the highest risk, could jump from fewer than 200 to more than 2,000.

There are other provisions in the act, all designed to create a national, uniform system of monitoring and tracking sex offenders. Proponents of the law say it allows for more protection of children from molesters. Critics say the provisions are aren’t just or effective. But both sides of the debate, it appears, can agree Walsh will cost money.

Even John Walsh, the host of America’s Most Wanted, after whose abducted son the law is named, told The New York Times the price tag has become a problem. Walsh, the Times reported, “suggested Congress postpone the compliance deadline. Mr. Walsh said the many obstacles — most recently the recession, which has made it tough for some states to pay for the law’s provisions — need more time to be worked out.”

Not a single state — including the eight that adopted Walsh regulations — has been deemed “compliant” with the law. And noncompliance means a reduction in funding once the deadline passes.

So how much does Nevada stand to lose? It’s another question that nobody, frankly, has an answer for. When the Walsh Act was passed, the penalty for missing the deadline was 10 percent of a federal grant called the Byrne/JAG fund. In 2007, Nevada got about $2.9 million in Byrne funding. In 2008, that number was cut to just over $1.14 million.

On Thursday, the latest draft of the federal stimulus package included $2 billion for Byrne grants nationwide, which meant Nevada could be awarded an estimated $4 million to $8 million in Byrne money, according to Michelle Hamilton, chief of Nevada’s Office of Criminal Justice Assistance. This would mean Nevada risks from $400,000 to $800,000 for failing to adopt Walsh in time — a bigger carrot to chase, but maybe not big enough.

Nevada Corrections Department Director Howard Skolnik told the Associated Press in 2008 he would need at least $500,000 in emergency federal funding to comply with just one element of the Walsh Act: getting DNA samples from every incarcerated sex offender before release from prison.

The Justice Policy Institute calculated that putting the Walsh Act into place would cost Nevada more than $4 million.

But there are myriad additional costs that cannot be estimated. Because the Walsh Act comes with stiffer penalties for sex offenders, a Florida study of Walsh costs noted that “there may be an impact on the court system and county jails. There may be more trials and less pleas ... there may be an increase in failure-to-register cases.”

And then there is the cost Nevada has paid, not to adopt Walsh, but to defend it.

Cortez Masto’s office has spent months fighting Walsh challenges in court. The Clark County Public Defender has spent months fighting Cortez Masto. No matter who wins, the state has spent considerable amounts just arguing over it. This does not include the case filed by the Nevada ACLU, or the fact that the civil liberties organization won $145,000 in attorney fees from the state last month.

Cortez Masto’s office has been working with the ACLU and other stakeholders to introduce legislation changing certain elements of the Walsh Act during the 2009 legislative session. But this effort to appease all sides presents its own problems. Any changes made to the law probably won’t satisfy the Justice Department, whose understanding of Walsh compliance appears to be nothing short of strict, absolute adoption of the federal act as written.

States still working out the complications of Walsh can file for two one-year deadline extensions. Cortez Masto said her office was planning to request a one-year extension, though a representative of the Justice Department said Friday it had not received the extension application. Extra time to work on Walsh should prevent Nevada from being immediately penalized, though it doesn’t resolve the central question, which is how much it would cost to adopt Walsh, and whether it’s worth the price.

Walsh could be complicated and costly enough to prompt politicians in the states where the act has not yet been voted on to simply decide they aren’t interested. And if this happens, the entire purpose of the Walsh Act, which was to create a national, unified system for dealing with sex offenders in every state, could be undermined — leaving Nevada, as an early adopter, with its hands tied. ..News Source.. by Abigail Goldman

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WI- Wisconsin fights sex offender registry mandate

2-14-2009 Wisconsin:

Delay sought on law requiring thousands more names, details

Wisconsin is fighting to stall a federal deadline to change its sex offender registry that likely will require adding thousands to the list, including those convicted of minor offenses.

The changes are mandated under the Adam Walsh Child Protection and Safety Act, named for a 6-year-old boy who was abducted and murdered in 1981 in Florida. Passed by Congress in 2006, the law has a July 1 deadline that would force Wisconsin to add juveniles to its online registry, create classes of registrants who would appear on the list for set lengths of time and include much more detail about each offender.

The state Department of Corrections is worried about the legal hurdles it has to leap — specifically legislative changes — to comply with the law. Defense attorneys are concerned the expanded definition of a sex offender and the detailed information required on the registry will force them to take to trial minor cases that normally would be resolved through a plea deal.

"We are going to be submitting a request for a one-year extension for substantial compliance with the U.S. Department of Justice which is responsible for review of compliance packages from the states," said Melissa Roberts, director of sex offender programs for the state Department of Corrections.

The federal law allows states to apply for two one-year extensions. No state is in compliance with the requirements and several states have mounted legal challenges against certain aspects of the law, according to a recent New York Times report.

Wisconsin has 18,797 offenders listed on its Web site. That number could balloon under the federal law's requirements, which include:

Adding juveniles to the registry. Wisconsin requires juvenile offenders to register, but does not post the information on the Web site. Wisconsin has 1,891 juvenile registered sex offenders.

Setting up three classes of registrants based on their offenses, with 15-year, 25-year and lifetime registration. Wisconsin has its own standards that require periods of registration ranging from 15 years to life, but they don't sync with the federal standards.

Adding more detailed information to the Web site, including where offenders work or go to school, the kinds of cars they drive and complete listings of offenses. The Web site also must be searchable by municipality, not just ZIP codes.

"We have to look at getting legislative changes made," Roberts said. "Not only is there not enough time to get all the legislative changes made, but there are changes that need to be made in the technology."

Neenah attorney Rob Bellin said he is advising his clients charged with misdemeanor sex offenses — the sort most people don't view on the same level as violent, predatory acts — that they could face the possibility of registration if convicted.

Offenses such as inappropriate touching or having sex with a child older than 16 are misdemeanors now and don't require registration, but they would under the federal mandate.

Bellin points to the case of Adam Burrows, an Outagamie County sheriff's deputy charged with fourth-degree sexual assault. Burrows is accused of fondling a 16-year-old girl, and is going to trial because he can't risk ending up on the sex offender registry.

"For Burrows, I think it would be very difficult to have a job as a police officer if you are a registered sex offender," Bellin said.

Roberts couldn't say for certain how many additional people would have to be added to the state registry for it to comply with the Adam Walsh act, but it could be in the thousands. ..News Source.. by Dan Wilson • Post-Crescent staff writer

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GA- Woman can stay in her home while she sues over sex-offender law

Is this case the reason why Georgia has not yet implmented the Adam Walsh Act provisions?

11-25-2008 Georgia:

Wendy Whitaker, the lead plaintiff in a federal lawsuit challenging Georgia’s sex-offender law, can spend Thanksgiving in her home.

On Monday, a Columbia County judge signed an order giving Whitaker a reprieve. She had been ordered to leave her home outside of Augusta by Thanksgiving because it is within 1,000 feet of a child care center and a church.

Whitaker, 29, is on the sex-offender registry for having oral sex with a high school classmate three weeks before his 16th birthday. Whitaker had just turned 17. She pleaded guilty to sodomy and received five years’ probation.

The order allows Whitaker to stay in her home while her lawsuit makes its way through the court system. On Friday, she filed suit in Columbia County, seeking to have her name eliminated from the registry on grounds that making Whitaker register as a sex offender is cruel and unusual punishment, The suit also sought a halt to her removal from her home in Harlem.


“This is a great relief to Ms. Whitaker,” her lawyer, Sarah Geraghty of the Southern Center for Human Rights, said. “She is grateful she will be able to stay in her home for the Thanksgiving holiday and thereafter while the case is being litigated.”

In a separate, federal lawsuit filed in 2006, Whitaker and other plaintiffs are seeking to overturn the state law’s provisions that make it a crime for sex offenders to live or work within 1,000 feet of places children congregate. That case is pending in U.S. District Court in Atlanta. ..News Source.. by BILL RANKIN, The Atlanta Journal-Constitution

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SORNA News - Guideline Conflict Raises 10th Amendment Issues

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. Constitution

I 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

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Adam Walsh Act Final Guidelines
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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