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.