A shallow dive into new Justice Department’s Rules on SORNA
Yesterday, the US Department of Justice issued its Ruling on the registration requirements under the Sex Offender Registration and Notification Act (SORNA) that will become effective on January 7, 2022. I will refer to this summary as a “shallow dive” because the document issued by the Attorney General yesterday was 32 pages so there is a lot to unpack and there will still need to be a lot of conferring with other advocacy groups and attorneys to get a consensus on everyone’s understanding of certain rules. We should probably read through the document another dozen times before we post a “deeper dive”, but didn’t want too much time to pass before giving our take.
So, let’s start with some general comments…
It’s important to remember that this document is written by the US Attorney General. The Attorney General is the chief law enforcement officer of the United States. This is written from the perspective of that role. Regardless of the individual writing it, it would be unrealistic for any person representing law enforcement, the prosecution or a victim’s advocate to make these rules less stringent. It’s as if a study was commissioned to determine whether Big Macs cause cancer and Ronald McDonald was appointed to conduct the research. You kinda know the outcome before the test begins.
Another important thing to remember is that the Attorney General didn’t make these laws, the legislature did. Within the law, SORNA grants the Attorney General the authority to interpret and implement it’s requirements, (but not to establish or modify them). To give you a simple illustration, the lawmakers might establish a law that says a house needs to be painted blue. The Attorney General might have the power to establish whether it will be teal or indigo, but does not have the authority to paint it red. In the DOJ’s ruling, the Attorney General, in many cases, didn’t reject the comments or suggestions proposed, he simply said he doesn’t have the power to implement them.
The last point we want to make is that I’m writing this shallow dive for the Florida Action Committee and from the perspective of registrants in Florida. Florida is among the minority of states, districts, territories and tribes that have substantially implemented SORNA. The majority, including 32 states, HAVE NOT substantially implemented SORNA. Because Florida not only has implemented SORNA, but implemented “SORNA on Steroids” (requirements and restrictions MUCH harsher than SORNA), those in Florida will read this document and think, ‘so what, we are already required to do that?’. On the other hand, someone in a state where SORNA was not implemented and has been living under more reasonable restrictions has greater cause for concern after reading this.
Now let’s start with the bad…
Federal registration requirements (under SORNA) are independent of each State’s requirements (In Florida, for example, those would be found in F.S. 943.0435). Last year’s Willman v United States held that even though something might not be a requirement under your State, if it’s in SORNA, you’re still required to do it. It’s the Chinese menu approach where there’s a column A and a column B and you’re forced to eat the most unsavory item from each column. If your state requires registration for 10 years, but SORNA requires 25, it’s 25. If you’re a Tier 1 under SORNA and required to register for 15 years, but Florida requires you register for life, it’s life! The only difference is who is going to come out to arrest you, the Marshals or the Local Sheriff’s office.
A good example of this would be taking a look at last week’s win in the Middle District of Tennessee that held that state’s registration requirements cannot be applied retroactively. Even though the decision came out of a Federal Court, it concerned Tennessee’s state registration law. Using this example, you may not be prosecuted in state court, but you can still be prosecuted in federal court. This leads us to the second “bad”….
The second “bad” is something we alluded to in a post last year. Penalties. Ideally, the Attorney General could have held that SORNA sets the standards (rather the minimum standards), but it’s up to the state to implement and enforce those standards. He didn’t. Technically, the same failure to register could constitute both a Federal Offense and a State offense. The consequences of a registration violation under the federal laws are MUCH harsher than the already harsh sentence under Florida Law. In Florida a failure to register can get you up to 5 years in prison, in the feds it’s up to 10 years (18 U.S. Code § 2250). In Florida a registration violation has a mandatory minimum six months probation, but in the feds there is a mandatory minimum term of supervised release of five years but up to lifetime! (18 U.S.C. § 3583(k)). To give you an example; CP offenses can usually be charged by either the state or the feds, but they often are charged federally because of the harsher penalties and minimum mandatory.
The third “bad” is a provision that already existed in SORNA but was just reinforced the the Attorney General in this document, that is, “sex offenders must also provide ‘‘[a]ny other information required by the Attorney General.” That’s a pretty scary thought. Normally, when registration requirements change, it passes through the lawmaking process, you have some opportunity to present opposition or support, it’s debated in several committees, it’s voted on and finally it’s sent to the governor (or president) where there’s one last shot of a veto. Here, on a whim, the Attorney General can wake up one morning and decide he wants registrants to report every retail business they intent to patronize, and people on the registry need to follow.
The next “bad” I can’t call the fourth, fifth, sixth or any number, because it’s a more general “bad” that impacts people in different states in different ways. That is that this document finalized in nearly exact form, the proposed rule published on August 13, 2020. When the proposed rule came out more than a year and a half ago, more than 700 people commented in opposition to them or asking they be modified in certain ways. Essentially, the document put out yesterday tells our population of registrants and activists that they received all our comments, considered them and are moving forward anyhow. Not unexpected, but not good.
So, now the “good”…
Starting with reference to the last “bad” on our list, the Attorney General acknowledges receiving more than 700 comments, acknowledging that “Most of the comments
amounted to general criticisms of sex offender registration or associated public notification requirements… [and] generally argued that sex offender registration is of little or no value in protecting public safety and that any value it may have is outweighed by adverse effects on sex offenders and their families.” He also wrote that, “These comments could not be accepted in this rule making because the Attorney General has no authority to repeal the requirements enacted by Congress.” He didn’t reject or disagree, he just couldn’t do anything. In other words, he wrote ‘I hear what you are saying, but I’m not the guy who has any power to change these things. That’s Congress.’
Secondly, the Attorney General spent the majority of the 32 pages addressing comments. The comments were also addressed in detail, summarizing what were primarily complaints and concerns about the registry. Even if the end result was that the Attorney General doesn’t have the power to do anything about it or disagreed (whether actually disagreeing or for the political reasons alluded to above), he did put it out there. Anyone who reads this document will spend the majority of their time learning about all the arduous, unnecessary, conflicting and confusing tripwires people forced to register have to go through. At minimum, they will know that hundreds of people opposed the regulations, many arguing against the effectiveness of the registry. For us, that’s better exposure than anything we can post on our websites.
Third, the Attorney General reinforced a scienter requirement to registration violations. Scienter is a standard of guilt that requires the person had knowledge that their action was illegal. In response to many people’s concern; he writes, “Section 72.8(a)(1)(iii) in this rule moots fair notice concerns by explaining that sex offenders are not held liable under 18 U.S.C. 2250 for violating registration requirements of which they are unaware.” Now for those in Florida, please keep in mind that this applies to violations of Federal SORNA, not violations of State requirements. Florida’s laws are strict liability. Whether you knew or didn’t know about them, you’re considered guilty.
Fourth, the Attorney General gave some leeway when it comes to International Travel. Under IML, registrants are required to report intended international travel at least 21 days in advance. Under most interpretations, if your child was traveling outside the US and suffered a medical emergency, you were unable to travel to their hospital bedside because you didn’t anticipate the emergency three weeks in advance and give notice. The Attorney General recognized that exceptions to that requirement may
be necessary and appropriate in certain circumstances. In these cases where a registrant “does not anticipate a trip abroad that far in advance 18 U.S.C. 2250(c) would
excuse a sex offender’s failure to report the travel 21 days in advance”. Similarly, the AG excused violations where it is impossible to comply with a requirement.
Fifth, and this is the only time you will hear me say this, one of the “good” parts of reading this from our perspective is that we are in Florida! SORNA’s requirements are so much better in most cases than Florida’s that it doesn’t impact us that much. As I read that “Tier I”s have the opportunity to be removed after 10 years, but max out the requirement at 15 years, I think to myself how great it would be if these were the requirements Floridians needed to abide by. Naturally, we would all much rather have a case come to the Supreme Court abolishing the registry entirely, but a distant second place would be a case that found the patchwork of differing State restrictions to violate equal protection and require that every state adopt SORNA requirements as their own. If we had to live under SORNA, as crappy as it would be, it would actually be an improvement for all of us here in Florida! I realize that’s a very selfish statement to make knowing that there are many registrants in other states that now have to adhere to harsher restrictions, but per my disclaimer at the beginning of this post, I’m looking at it from only the Florida perspective.
Sixth, another selfish thing I considered good about the comments is that within the AG’s listing of comments taken into consideration were the ones submitted by FAC. One thing we need to deal with is Hurricane evacuations. The AG wrote, “With respect to § 72.7(b), regarding periodic in-person verification of registration information, the comment proposed providing an alternative to in person verification in instances of natural disasters. The in-person verification requirement is statutory, see 34 U.S.C. 20918, and cannot be changed by rule making. However, § 72.8(a)(2) in this rule explains that noncompliance with SORNA’s requirements (including its in-person appearance requirements) may be excused if compliance is prevented by circumstances beyond the sex offender’s control, circumstances that could include the exigencies presented in natural disasters.” An important disclaimer is that it’s still meaningless to us because Florida makes no such exception despite it being repeatedly brought to their attention (so just because Merrick Garland says he won’t arrest you, Grady Judd still will).
The Seventh relates very closely to the topic of this week’s weekly update about persuasive precedent. This document gives us something to bring to our State’s lawmakers as we ask them to address some of the rules that are impossible to comply with. We can now say, “Look, if the Attorney General of the United States agrees that there are some circumstances that are beyond an individual’s control and should be excused, how can you arrest someone for not reporting within 48 hours when this county’s registration office was closed for the weekend and it was impossible to report?”, or “SORNA does not prescribe or encourage residency or other proximity restrictions, so if the federal government doesn’t find it necessary, ATSA and NCMEC oppose them, why do we need them?”, etc.
I’m sure that after reading through the weekend and after joining the ACSOL Zoom conference to get their perspective, we will do a deeper dive into the impact of yesterday’s ruling. We just didn’t want our members to head into the weekend stressing over something that was anticipated and might not be worth stressing over.
Here’s my take on it… at some level and for better or worse, our member’s voices were heard. The AG might not have the power or political will to change things, but he could have just written a one pager saying ‘after considering the rules and the comments we’re adopting them as written’, yet he didn’t. Most of the document was spent discussing the comments and complaints and I can confidently say that at least I know our submission was read and not tossed in the trash. Even if the 700+ comments didn’t move this Attorney General to action, they certainly moved him to thought and hopefully that thought will be planted in the minds of everyone who reads his document… That and a hefty lawsuit is what can make a difference!
Appreciate all who submitted comments to the AG and would appreciate anyone who wants to share their thoughts below.
Since I live in Maryland i would of taken the opportunity to talk to Merrick Garland if I was allowed. I’m still processing what all of this means and what will be the next step. 700 is more than a handful; however it should of been 70k registrants and loved ones voicing opposition. I rather fight for Freedom than having my thumb in my ear while someone else gets their hands dirty. Time for registrants to get out of the woodwork and stop being afraid of the light shining on them, we are human beings not roaches.
Brandon, you’d be amazed at how many people (of the 80,000 on Florida’s registry) have no idea that FAC exists. If they are not part of this community or a similar state affiliate org, they have no clue these things are going on! We (and as a board member of FAC, I accept accountability for this) need to do a better job of getting the word out and letting people know we exist. It’s not about recruiting members, it’s about disseminating information. You’re right. 700+ comments are better than 70, but not as persuasive as 700,000.
Personally, I’m still very proud that our comments were recognized and feel somewhat respected that they were addressed. This was going to happen with or without the pages of addressing everyone’s comments.
Maybe I missed it, but I had no clue about the commenting section on this.
I try to send links to this site to as many as I can, on the registry and off.
I would post to Facebook, but afraid that Facebook would just take me off.
When I lived in Florida I remember getting something in the mail about FAC. I knew about the organization and checked to see what was going on in Tallahassee. Even though I wasn’t a member I would send emails and phone calls opposing bills. Now I make comments on forums, get registrants and their loved ones involved in advocacy groups in their region and nationally, I’ve gotten my family and my girlfriend’s family members involved, and I’ll be in Washington on March 3, 2023.
Advocacy groups reaching out to registrants is one thing, however registrants shouldn’t let fear/shame or other emotions stop them getting involved. It’s strength in numbers and the more we have making noise for our side.
Thank you FAC for the hours it must have taken to put all this together. It was worth it!
What do they even mean by, ‘Tier I’s have the opportunity to be removed after 10 years’?
Removed from what? There is certainly no Federal registry. Removed from the Federal (but not state) burden to register, perhaps.
Even then, how would that opportunity be exercised? By petitioning your Federal court? Is there any precedent for anyone doing this?
Yes and yes. See U.S. v Melden out of the western district of North Carolina.
FAC #3, providing a link to US v. Melden would’ve been more helpful than just stating the case. It took a bit of research to find. But thanks anyway. Here is a link for anyone interested.
https://scholar.google.com/scholar_case?case=17107276423149172405&q=us+v.+melden&hl=en&as_sdt=40006&as_vis=1
Appreciate the volunteer teamwork— Contributor 3 identified the case, while another volunteer came through with the link to it.
Appreciate if someone has link to opinion in US v Melden tho. I was able to get as far as the order and perhaps am just not tech-savvy (or law-savvy).
There is no opinion, because it was not an appeal. The order was granted at the district court level.
So he states that many of these issues are not things he can change, understood. But he also did not have to adopt the changes either and he did. So seems like he kind of talks out both sides.
Donate dollars, speak up when you can, share your story….that is how we will make change. And we will.
Thanks! There’s a donate button on our homepage.
What does that mean for people who petitioned to get off the registery in their own state… before sornas rules?
Say, they were granted a removal from the registry via court order on year #7 and sorna says you must register for 10 yrs before you can petition for removal? They are considered “off the list” in their state but not on the federal level? Theres no federal registry though?
Just a quick thought comes to mind: Would it be possible to file a lawsuit against the United Staes government (with naming Garland a defendant) at the federal level with every single registrant in the US (and their families) as plaintiffs?
No, it would not. The practicality of getting the consent of every person on the registry is not realistic.
Class Action? Do you have to get consent of the entire class? (Could we establish all SOs in USA as a class?)
ACSOL says they are likely to bring a court challenge once Congress approves these regs.
May as well let them take the lead (and donate to their efforts), rather than Florida Action Committee.
I wish FAC would have a donate button for funds outside of Florida. How many efforts to raise money for certain situations in Florida which could be used to fund lawsuits nationally? I rather donate for a cause nationally than state.
Brandon. our membership is comprised mostly of individuals in Florida. We are the Florida affiliate of a national organization. While we are all concerned about issues that impact people in other states and countries, when we chose which lawsuits to help fund, we have a responsibility to focus on ones that will impact the majority of our membership. It’s also a matter of bandwidth.
The national organization focuses on nationwide issues, other state’s affiliates focus on other states, then there are groups for specific issues, such as international travel. If you have an issue of particular concern to you that is outside the scope of our focus, reach out to us and we will, in turn, reach out to the network and see whether another group is focused on it.
Well written and informative note – thanks! I would add, however, that Florida statute does allow for registration of foreign travel in less than 21 days, if travel was no anticipated.
Big Macs do cause cancer. If it saves one child who can argue against it.
THANK YOU FAC FOR THE ‘FIRST DIVE INTO THIS MORASS’
AT LEAST ONE GOOD, POSITIVE THING IS THAT THE HONORABLE JURIST GARLAND SEEMS TO BE SOMEWHAT FAIR IN INTERPRETING THE INFORMATION AT HAND…
HE IS CORRECT….CONGRESS CREATED THIS MORASS!
HE HAD TO ‘LEGALLY STEER THE WHEEL’ LIKE A RACE CAR DRIVER ON THIS ONE…IT IS ALL POLITICAL!
STILL THE REGISTRY MUST BE ABOLISHED!
thank you FAC for this ‘DIVE’ into the info
Can Double Jeopardy be challenged here? I know we are talking state registry vs federal registry but it does sound like some parts of the law conflict with one another. It was mentioned Florida is a “strict liability” state but won’t that only apply to state rules and not the law of the land and if it does not go over and beyond what a federal guideline is. I am really interested in the interpretation of tier I as Florida to my knowledge does not have a tier system and how we can get off after a certain amount of years
Ask for the forgiveness on the long post here…
This shallow end of the pool review was nice to read. It is the first of the kind I have read on it. Thank you for this.
Just a clarification – the ability to provide less than 21 days international travel notice due to an emergency is not new and has been addressed in previous SORNA Fed Register content. It has been hotly debated on your sibling org’s forum in CA where the chapter and verse of the words giving this permission has been provided (IIRC it is in the 2011 version, but that is offhand and without research). In the end, the LE office where the notification is submitted has the ability to grant the less than 21 days permission due to the late travel need whether it is a family emergency or other, e.g., work related trip. The AG just reiterated it in this version.
On the CA forum, where this topic is hotly discussed, I have encouraged those there to write to the US House of Reps Majority Leader who has the ability to get the House to stop this implementation. The local House of Rep officials too should be written. Bottom line, the DOJ is preempting the House with their ability to review this by implementing these rules while the House is on the Christmas recess. They published these two days before the recess starts and have them effective three days before they return for the 2nd session of the current Congress. This is akin to seating a nomination or appointment of someone who is not favored during the recess much to chagrin of elected officials who did not get to review them and possibly object. It is shady and dirty to do it.
Pretty much what DOJ is doing, in my mind, is violating Due Process of the American people through the delegation of power given to the AG by the House by not allowing the House to review these while in session.
Florida Statutes already addressed this. 943.0435(7) states, “Any travel that is not known by the sexual offender 21 days before the departure date must be reported in person to the sheriff’s office as soon as possible before departure.”
It’s not “a thing” on either the state or federal level because if either prevented travel completely absent 3 weeks notice it would clearly be a violation of the right to travel (in my opinion). It’s written into SORNA and 943.0435 but the reality is, if someone invites you on Thursday to hop over to the Bahamas the next day for a little gambling junket at the Atlantis, you can still go and give them one day’s notice if you just found out about the trip 24 hours before. Not sure why it’s even written into the statute.
That is an interesting take on a less than 21 days and the last minute invite to a trip which is granted despite no emergency. If that is the situation, then the world can be your oyster…
Thanks for that perspective.
” In many cases, hedidn’t reject the comments or suggestions proposed, he simply said he doesn’t have the power to implement them.”
Several people submitted a comment about him having the ability to define Conviction under SORNA. He does have this power to implement. Conviction should not include just a guilty plea where deferred adjudication was given, but should be based on the actual judgment of Conviction. Most of the who had these have sealed records. Whats the point of pleading to something like that, if the public registry does the opposite?
So without being overly dramatic, basically we are now and will always be considered lower class citizens in this country. Congress will never go against the registry. Too many people are misinformed about it’s effectiveness. The AG can say it’s not doing what it was intended, but when other groups say it needs to be stricter to do more, that’s what the people will want. I’m so over all of this. My charge was from 09/2006. I shouldn’t have to jump through all this new hoops. I do the right thing with no benefit other than they won’t send me back to prison for something that is supposed to be civil! I’ll happily move on to the next stage of existence soon please. This life is worth nothing. I’m nothing to these people.
Janice Bellucci will be having a call on Saturday to share her legal groups intent regarding the full implementation of SORNA. Go to their site ACSOL to get further details.
Correct and thanks for pointing that out, Vicki. I didn’t want to usurp ACSOL’s initiative by having a bunch of FAC peeps bogging down her meeting, but I’m comfortable enough in my relationship with Janice to encourage everyone interested to listen in…
Here is the info: ACSOL will hold an emergency Zoom meeting this Saturday starting at 10:00 AM, Pacific Time, that can be accessed here: https://us02web.zoom.us/j/81731413618 or by telephone at 669-900-6833 (Meeting ID: 817 3141 3618) with additional information regarding the final SORNA regulations.
Done, Not sure where, from either the Rules or this post, you walked away from reading either with that belief as a take-away. Nowhere does it use the words “lower class citizens” or anything similar and the AG certainly never admitted it’s not doing what was intended. Done, I understand your general frustration with the registry, but I think you need to re-read what was written above and in the actual document from the AG before coming to these conclusions.
Ok this has me confused. I was registered in 2003 in Florida. I received just probation, a withheld of adjudication (this has saved me so much headache in life) but i had to register Either 20 or 25 years i cant remember what it was at the time. Next year it will be 19 years.
I moved to Washington State in 2015 and here I’m a Level 1 which is almost nothing they come to my door once a year randomly i say hello I sign a piece of paper and that’s it. Nothing is published anywhere, i don’t have to talk to them unless i plan on moving or change jobs.
I was planning on my first step in registry removal next year here in Washington as they allow out of state people to do so at the 15 year mark which i could’ve done this awhile ago but Since I’m on Florida regardless i was taking my time and just causally putting aside money for a lawyer (cheapest I’ve found is 3k)
Is This article stating I cannot be removed in the state of Washington because Florida wont remove me there? I realize Florida is a separate battle but i was hoping to at least remove myself from Washington registry even if its just 1 state out of 50 figuring it may help my case to get off Florida when the time comes for me to challenge my registry relief there.
This refers to Federal requirements under SORNA. There is nothing in our commentary that refers to Washington.
This is interesting because I am in a similar situation. I also received probation with adjudication withheld. Unlike you I am at my 20 year mark next April 2022.
I moved to California in 2005 where I registered and which was until just last year it was for life just as with Florida. This is the first year of a tiered system (I am tier 1) which allows one to petition for removal here in California. I have retained an attorney to assist me (far from a sure thing but not totally impossible) and if successful, I then plan on attempting to have an attorney file a petition to remove from Florida next year at the 20 year mark.
Can you tell me the name of the attorney you have researched? You can contact the admin of this board for my email. As we are in similar situation, the result of my case (next year) could greatly benefit you as I would be attempting one year later.
All this talk about the “good” and the “bad” about it, but there is NOTHING good about it at all. Its all bad because registries exists. And since the AG couldn’t do anything about it, then why did we write letters and make phone calls? It all seems to have been a waste of time now. I wrote letters, made phone calls, and had my family and friends do the same, all for naught.
Disgusted in Michigan
Your statements hold lots of validity!
At the End of the Day, The Entire Criminal Justice System is a $268 Billion “Corporation”, of which $26 Billion is ‘ALLOTTED’ to those Persons Who are Forced on the Registry
–I am currently awaiting some ‘CITATIONS’ to prove the aforementioned
But this is what ‘some’ are saying in Washington DC
Once I have full clarification, I will Post the Citation
Even IF the Dollar Amounts were cut in HALF, it is still a MIGHTY BEAST TO FIGHT!
I’m surprised FAC hasn’t picked up on the CNN producer charged with multiple child sex crimes in a federal indictment. These are the folks who call us scum.
CNN producer accused of child sex crimes once decried growing news stories of child abuse cases in old tweet
https://www.foxnews.com/media/cnn-producer-john-griffin-old-tweet
So a sexual abuser once stated that sexual abuse is wrong?
Clearly they are referring to the not uncommon situation where a person in authority or in this case an influential individual is overly vocal about their disgust of item X when they are in fact doing item X and simply are trying to deflect attention from themselves.
FAC do we know whether FSORNA defines internet identifiers more broadly than FL?
If so, that would seem to affect thousands of FL registrants, despite Judge Hinkle’s ruling in our favor.
(I had this thought after listening to Janice Belucci on the ACSOL call)
How how is for us in Florida push something like the tiers ? Tier 1, 2 and 3? I think this will help a lot of us in the mean time, while we look to abolish the registry. I think is more doable. The state will be more likely to hear about a tier change than to abolish the registry. We should put forward and support a law suit on this
Tiers make sense in theory, but in reality are based on convictions and not actual risk. Even if a state has tiers nothing can stop them from adding more convictions to tier 3. Right now I’m in a tiered state, just like state of conviction. Has nothing to do with my risk, just my conviction. I understand tiers seem like a step forward, yet if you give them an inch they’ll take 40 miles with no off ramp for some registrants. Personally I don’t think Florida will ever do tiers because the state will lose money.
FL has two tiers (though they don’t call them that) and no Tier I.
Tiers have potential only where they are risk-based. But FSORNA, FL law, and many other states exclude risk assessment from tiering. Only a few states employ risk assessment in their tier assignments, and they have had to be FSORNA-noncompliant to do so.
In the Florida legislature, when it comes to registrants, risk is presumed and irrebutable. I haven’t seen any bill proposals aimed at changing that, but I would be willing to consider supporting and advocating for such a change. Many FAC members are low risk and deserve to be lowest tier or (better) no tier at all.
It’s becoming clear to me that none if this, not even some miraculous S.Ct. ruling overturning SORNA matters much. Why? Because i would still have the state reg. To deal with. Then Congress would just hurry up and pass a new registry law and the AG would implement some emergency crap and we’d start all over. Friends, the rules of civilty and decency and especially the Constitution are openly flaunted and since all of this was horseshit to begin with what makes anyone believe playing by rules and winning will matter? Let’s ask the Cherokee Nation how that worked out for them.