What will the new federal SORNA regulations mean?

By Larry and Sandy . . . Not since the initiation of International Megan’s Law (IML) has anything raised such a level of anxiety, confusion, and questions as have the new federal SORNA/AWA guidelines that will become effective January 7, 2022. The only consensus seems to be that whatever happens, it won’t be good.

These recent amendments are not anything new in terms of actions taken by the U.S. Department of Justice (DOJ) to implement the Adam Walsh Act (AWA). The DOJ was tasked by Congress to promulgate regulations which guide the states with implementation of the AWA. Although the AWA was passed and became law in 2006, only eighteen states have thus far been deemed “substantially compliant.”

Many of our advocates mistakenly believe that the remaining states have rejected the AWA. Rather than this being the case, the non-compliant states. for the most part, have not rejected the AWA. In fact, the majority of non-compliant states have submitted request packages to the SMART office (Sex Offender Monitoring, Apprehension, Registration and Tracking) in Washington, DC. The status of each state can be checked here. Clicking on the “implementation review” link will show where the state falls short as well as revealing whether or not the state has applied for compliance.

As for what these amended guidelines are designed to do, the one-sentence answer is that they are intended to assist those states and jurisdictions that desire to become substantially AWA compliant an easier path to accomplish that goal.

A logical question might be which states are the most likely to adopt the new guidelines and which might be least likely. The answer to this is not as speculative as it seems; states that want to be in compliance might well use this as an opportunity to accomplish their objectives with administrative implementation.

However, if a state has a number of significant areas in which it is not up to the federal SORNA standards, just saying, “Yes, we accept the new guidelines,” is not sufficient. All that would do is make it legal to implement the standards. To be compliant, they would have to actually implement them, and that will be more difficult if there are many shortcomings because legislation would be necessary.

So which states might be less likely to adopt these guidelines? Some states, especially the southern ones, already have a registry that exceeds federal AWA requirements in some areas. They may have felt no need to seek compliance, or they may have been turned down on their original application because of a shortcoming in an area they have no intention of rectifying, such as registration of juveniles, for example.

States with a great many deficiencies and deviations from AWA requirements are probably less likely to seek this avenue. Even though they may wish to be compliant, they may face too many difficulties, for a variety of reasons, in actually implementing their registries so that they are acceptable for compliance to the SMART office.

Some states have provisions in their constitutions that prohibit a federal SORNA requirement. Maryland’s constitution, for example, states that no disadvantage can be imposed ex post facto to its citizens, and attempts to impose some of the AWA-required elements have been shot down not once but twice by their highest court, making it less likely that they will try again. The key is their ex post facto provision is broader than that in the U.S. Constitution, so Maryland chooses to provide more protection. So do a number of states. Any state constitution can provide more protection that does the U.S. one; it just can’t provide less.

The same is true with these federal SORNA requirements. A state can do more than required and be compliant; they just can’t do less. These are recommendations to the states. If a state wishes to be fully funded, without any loss of funding, it will do at least these things. It can do more but not less.

However, each state is independent with the right to self-govern. Any state that wishes to do so can add amendments that grant its citizens greater protection, such as Maryland and others have done. Adding constitutional amendments to a state’s constitution is a difficult task but not impossible.

Another question that has arisen regarding the revised AWA guidelines is if they have the potential to affect every person with a previous sexual crime conviction. The federal definition of a person required to register is anyone who has ever been convicted of a sexual crime, even those pre-registry who never had to register. States are highly unlikely to go looking for these individuals, but if they come to the attention of the criminal justice system with any type of felony conviction and they had an old conviction for a sexual crime, they must, according to the federal SORNA scheme, be added to the registry. This too is confusing because if the person’s offense is a Tier I or Tier II, enough time may have passed that the state would not be required to capture that person.

And then the question becomes if it wouldn’t be unconstitutional to redefine who does and doesn’t have to register due to an administrative implementation. This is entering even deeper into unknown territory. Everything a branch of the government does is considered to be constitutional. It isn’t until litigation takes places and a court declares it unconstitutional that the question is answered.

Therefore, a state’s becoming compliant with the Adam Walsh Act through administrative fiat is likely to usher in a fresh new set of lawsuits, something that those of us in this advocacy enthusiastically welcome.

                       
                       

Larry profile

Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.

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23 Thoughts to “What will the new federal SORNA regulations mean?”

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  1. Larry T

    This sounds like more of the same. Extort the states into complying with unconstitutional laws.
    To hell with the Bill of Rights. We’ll do as we please. Export Facto? Doesn’t matter. Once again it’s not punitive, it’s administrative.
    We can enslave the populous and take their freedom and get them to do it under the guise of keeping them safe.
    Dear old Benjamin Franklin said it best when he made this statement. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” 
    Well folks, this is exactly where we are today.
    A judge says it’s continuing punishment, and that continuing punishment is unconstitutional, but the law makers don’t care about the Constitution even though they are sworn to uphold it and protect it. But as Justice Sonia Sotomayor once stated, “The Constitution is still evolving. As it is, it is antiquated and outdated law.”
    And this is the opinion of one who was sworn to defend it.
    Our population has been dumbed down to the point where they are dependent upon someone giving them their opinion.
    It’s a shame that we have become a nation of sheep driven by fear.
    Once we were a nation of independent thinkers. We were a proud people capable of critical thinkers.
    You have to ask yourself, what happened to that great nation who the rest of the world looked up to?
    How did we get into this camouflaged fascist state?
    I have my own opinions, but I hesitate to reveal them here as I would most likely be sensored.
    Larry, Sandy, I appreciate what you and the rest of the staff are doing for us out here. Merry Christmas to you and all who may read this.

    1. Dr.

      Thank you !!!!!!!
      Now we need to find a way back to the constitution and bill of rights…
      Dr.

  2. mut

    that “administrative fiat” sounds like cheap, foreign socialist pile of junk made without regard to safety of the occupants or those on the sidewalk.

  3. JMB

    How come the whole registry hasn’t been challenged in court yet? Seems like all we do is put out small fires. It is clearly unconstitutional and continued punishment. Just the ones the other day on IG I reported a post encouraging killing people on the registry. IG basically stated they were too busy to read the post so the post stayed up. I was once banned for 30 days for comparing Big Media to Nazi propaganda and I get banned for 30 days.

    1. Sandy

      Because there is no “whole registry.” There are 50 registries, and that is just the states and doesn’t count the territories and the many individual jurisdictions.

      JMB, what state are you in? You could start the ball rolling by finding an attorney and challenging the registry in your state on the basis of the harm it has caused you. That is what it will take to bring down the registry in each state, someone succeeding in a suit against each state’s registry with an order from the court to take down the registry. And of course it will be challenged and go to the state supreme court, and, if upheld by them, would be challenged and appealed to be heard by the U.S. Supreme Court. If you had prevailed up to this point, you would definitely have gotten their attention.

      1. Sandy

        Thinking about this issue got me curious, so I went to the site linked in the article and started tallying. I was amazed by the results. Besides the 50 states, there are: 1 district (D.C. of course); 5 territories; and 156 nations distributed among 29 states.

        That makes a total of 212 sex offense registries. Gives a whole new meaning to the term, “the whole registry,” doesn’t it?

    2. lovewillprevail

      I am guessing because public opinion will not support the judges in making the right decision. And besides, it is easier to say Smith vs Doe and dismiss the case.

  4. Svejk

    This has been bothering me for some time now. Its timing, intended or not, is very fortuitous for the present administration. They are so mired down in disasters that an outlet for public hate, such as this law will create, is a valuable and welcome distraction to them. Wading through the depths of bureaucratic-speak and legalese, it seems to indicate (at least to me) than anyone who has not served a full 25 years on the registry is to be reinstated. I pray this is not the case. It also says that a convicted person is to be placed on the registry both in the state the crime allegedly occurred in, as well as whatever state they currently reside in (if applicable). I’m wondering if this might put funds-greedy states like FL and NV out of business for keeping people on the registry if their alleged crime was never committed there and they do not reside there.
    I guess the saddest part for me is the fear and panic this is causing for all those who are on the registry or released from it. We always talk tough, as in we should rise up, or we should each kick in $5 to a fund to hire attorneys to fight this injustice. In the end, we’re only as strong as our weakest link, so none of this ever happens. It’s like the old saying: “united we stand, divided we fall.” If this turns out as crazy as it sounds, I’m leaving this country. It’s already bad enough when memes encouraging the killing of sex offenders/pedophiles are openly tolerated on social media.
    On that note, Merry Christmas everyone! Keep your heads down and your powder dry.
    Svejk

  5. CJB

    Is It not the Timing of this Sort of Action, With Suspicion?

    The Order Reviewed by the AG; Then Congress goes on Holiday Recess. Then, the Congress Returns a Day for The Adoption of this Order, so Congress will not be able to Debate This.

    So, the only Thing that can be done in the Interim, which doubt, is for Senior Congress Person to put a Hold on this Order’s Enactment

    Once Again, Timing is Everything!

    So Sad!

    1. TS

      @CJB

      Almost as if they had it planned that way much like appointments of people to positions the other side does not like but cannot do anything about because Congress is on recess and won’t come back to just debate them.

      The House Majority Leader was asked to do something about this before the House went on break, but it appears nothing was done.

      Welcome to America, home of the free because of the brave and held hostage to elected officials and their ways.

  6. The King of Facebook

    “If a state wishes to be fully funded, without any loss of funding, it will do at least these things. It can do more but not less.”
    But it cannot do something that completely disregards the US constitution.

    1. TS

      It can until proven in a court of law that it violates the Constitution. Until then, it is presumed to be legal and in accordance with it. Sadly, no one tells the legislature/Congress most of the time they cannot do something beforehand, but merely lets them waste taxpayer money defending it when they probably know it is in violation once the legal festivities start.

      1. WC_TN

        But that’s how they dodge the voters! “We didn’t do it! The courts did! They forced us! They’re the bad guys; not us!!! If you want to be mad at somebody, be mad at the judges who overturned our law!!”

    2. Ed C

      Remember, nothing is unconstitutional under the U.S. Constitution until the the Supreme Court of the U.S. (SCOTUS) says so. And the Court can always later change its mind. As Justice Jackson said, “We [SCOTUS] are not final because we are infallible, but we are infallible only because we are final.”

      Veritas.

  7. WC_TN

    How is it that capturing people who committed their offenses BEFORE any registry law, including the minimum standards set by the AWA, NOT a violation of the ex post facto clause when it will, from my viewpoint, pull in people who were never obligated to register before?
    What splits the hair that makes retroactive application of restrictions a violation of ex post facto and pulling people in to be affected by the same whose offenses predate any registration scheme currently in existence NOT a violation of ex post fact?

    1. Ed C

      The simple answer is because the registry is not punishment. It is a civil regulatory measure designed to enhance public safety, much like speed limits. Of course we all know that is BS. The registry may be punishing, but until precedent-setting courts (see the recent Pennsylvania decision) declare that specific provisions constitute punishment, ex post facto will not apply. This process can only begin when specific laws are challenged in lower courts. I suspect this is why Sandy wrote that the advocacy community welcomes the spate of lawsuits that may follow the new federal SORNA rules. Doors must be opened before we can walk through them.

      Veritas.

      1. Brian

        So, what you’re saying is, the Munez decision which SCOTUS denied cert is basically reversed, just because these people saying the registry doesn’t violate people rights and the constitution, all the states that have ruled in favor and called these laws, unconstitutional, are going to be reversed, that’s like when the general assembly tried to put residency restrictions in place again, after they already ruled it unconstitutional, I hope I’m right but, I don’t believe they can just undo Munez and put everyone back on the sht list and people who were never on the list or even required to register on the list.

  8. Brian

    Well, seeing that the Pennsylvania constitution has greater protection than other states , I just don’t think they’re going to let this happen to Pa residents, along with other states that may be similar, with the Munez decision, ex post facto comes into play, which has already ruled that, you can’t just add on new laws and apply them to people currently on the registry, however, they can pass the laws and when someone commits new offenses, then they can apply it to those persons, but not anyone who was never required to register, people who were on the registry and were let off, due to the Munez decision and people who are currently on the registry, they already tried putting people back on the registry in 2012, which they accomplished for 5 or 6 years, until Munez, states like Pa aren’t going to let this sht fly folks, and it’s going to be challenged, you have all these states with all different SO registry’s, their own rules and regulations and now they’re going to alter them all, now they’re trying to make one big registry it seems but, then they’re altering over 200 registry’s which means, altering millions of registrants requirements, in turn will trigger, mass challenges and lawsuits, sorry but, this will take the entire registry down, of corse, they will try and revert everyone back to the old registry but, it will no longer be, because it will be repealed, so like our old registry, there is no registry to put people back on, the registry will be, abolished, once and for all, these politicians are getting to big for their underwear, not as smart as they think they are.

  9. Chris Brown

    If they state says its not punishment,then how to they got by with having felonies everywhere if a “civil law” is broken?

  10. Chris Brown

    I can sum up the whole its ” civil not punitive” theory in one sentence,” don’t piss down my back and tell me its raining”
    Actually I wouldn’t care about being in the registry if it was truly civil,but the vagueness of the laws allows uneducated
    Sferiffs deputies to go lie to a magistrate and get an arrest warrant

  11. Tina

    You cannot take 1 set of hard fast rules and apply it to an infinite number of situations and expect it to be just and/or fair for the majority or even the minority. It is simple math. We have been programmed to believe that there is a victim and a perpetrator, never considering what the alleged perpetrator has been through. Rather than JUSICE we should be focusing on EQUITY. We need to start looking at what humans beings have been through that brings them to where they are and administer help for all people from that place regardless of label. If you commit a heinous act then something is obviously wrong and you should receive help. This is the way forward and anyone who claims otherwise doesn’t really care whether children or adults are sexually assaulted. They merely care about using the alleged offenders to measure their own state of being and as long as they view themselves as better than the alleged offenders, otherwise known as human beings, anything they do is alright in their eyes. All the “dead offenders don’t reoffend’ memes added together have never saved even one child or adult from sexual assault but they do inhibit people from seeking help. We all know that sexual assault is bad folks, we don’t need your self righteous declarations to show us you honestly believe that you’re better than people who offend. That is truly a grade school level of understanding about this problem. God help us all from this antiquated, immature and self righteous blathering that is littering cyber space as it is a large part of the problem.

  12. Jerald Hood

    This is nothing more than pure slavery and slavery was abolished in 1865 we are all slaves of the government.

    1. Good Citizen

      I can see how you would view it as a form of slavery, and Ive looked this up years ago. The closest I could find was Involuntary Servitude which may be like Indentured Servitude see Article 2 clause 2 in the Constitution. Every since the first case in Alaska it was said it was Civil in nature, not that it is Civil, big difference in wording. But even if it was Civil, why are all the laws under Criminal Statues, and not Civil, and all penalties are Criminal, and not Civil.
      I think Its an unconstitutional Law or laws since they seem to be stacking them, to make it harder to challenge. When laws are stacked its intended to stick around for 100s of years. Its not easy getting to a higher court it takes money, time, and a lawyer who is willing to go against the grain, and put their career on the table for a principle. Not every lawyer is up for this. I always say ask more than one lawyer what they think on a law, and you’ll get different responses lol… Just because one said it one way does not mean they’re right, and the rest are wrong.