Sex Offender Registration

and Notification

in the United States: 

Current Case Law and Issues

December 2016
Table of Contents

I. Overview of US Sex Offender Registration.....................................................................1

Registration is a Local Activity............................................................................................1

Federal Minimum Standards ...............................................................................................1

National Sex Offender Public Website.................................................................................2

Federal Law Enforcement Databases..................................................................................3

NSOR.............................................................................................................................3

NGI ................................................................................................................................3

NPPS..............................................................................................................................3

CODIS............................................................................................................................3

Federal Corrections.............................................................................................................3

Bureau of Prisons...........................................................................................................3

Bureau of Indian Affairs................................................................................................4

Immigration and Customs Enforcement ........................................................................4

Federal Law Enforcement and Investigations.....................................................................4

Military Registration............................................................................................................4

Publication of Sex Assault Courts-Martial Results .......................................................5

Unique Issues for Registration of UCMJ Convictions ..................................................5

Summary ..............................................................................................................................6

II. Who is Required to Register? ...........................................................................................6

‘Sex Offenders’.....................................................................................................................6

Kidnapping...........................................................................................................................6

‘Catch-All’ Provisions.........................................................................................................7

Comparable Convictions from Other Jurisdictions.............................................................7

Elements vs. Facts................................................................................................................7

Recidivists............................................................................................................................7

III.Registration of Juvenile Offenders...................................................................................7

Juvenile Registration Requirements Vary Across Jurisdictions..........................................8

Issues Unique to Juvenile Adjudications .............................................................................9

Federal Juvenile Delinquency Act.......................................................................................9

IV.Retroactive Application & Ex Post Facto Considerations.............................................9

United States Supreme Court...............................................................................................9
Table of Contents

Significant State Court Decisions......................................................................................10

Additional Court Opinions.................................................................................................10

V. Other Constitutional Issues.............................................................................................10

Varied Successful Challenges............................................................................................11

Other State Constitutional Provisions...............................................................................11

Jury Determination of Obligation to Register as a Sex Offender......................................11

Ineffective Assistance of Counsel.......................................................................................12

Padilla v. Kentucky ......................................................................................................12

NFIB v. Sebelius and Arlington v. FCC............................................................................12

Varied Unsuccessful Challenges........................................................................................12

VI. Community Notification...............................................................................................13

VII. Failure to Register.........................................................................................................13

Failure to Register as a ‘Continuing Offense’................................................................13

Failure to Register as a ‘Strict Liability’ Offense ..........................................................13

Notice ..............................................................................................................................13

Prosecution Based on Failure to Update Information ...................................................14

Venue...............................................................................................................................14

VIII.Residency Restrictions..................................................................................................14

IX. Sex Offender Registration and Notification in Indian Country ...............................14

Tribal Residents and State Registration Responsibilities...............................................15

X. International Relocation and Registration ....................................................................15

XI.Miscellaneous....................................................................................................................16

Defamation.........................................................................................................................16

Fair Credit Reporting Act..................................................................................................16

Homeless & Transient Offenders.......................................................................................17

HUD Housing ....................................................................................................................17

Immigration & Deportation...............................................................................................17

Impeachment......................................................................................................................18

Sentencing Enhancement Under Federal Law ..................................................................18

XII. Conclusion .....................................................................................................................18

Endnotes..................................................................................................................................19
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The Department of Justice makes no claims, promises, or guarantees about the accuracy, 

completeness, or adequacy of the contents of this update, and expressly disclaims liability for errors 

and omissions in the contents of this update. The information appearing in this update is for general 

informational purposes only and is not intended to provide legal advice to any individual or entity. 

We urge you to consult with your own legal advisor before taking any action based on information 

appearing in this update.

I. Overview of US Sex Offender Registration

Sex offender registration and notification systems have been established within the 

United States in a variety of ways. There are a number of resources which are referred to, 

loosely, as ‘sex offender registries.’ For the purposes of clarification, we start this 

summary with an outline of those systems.

Registration is a Local Activity

In the United States, sex offender registration is conducted at the local level. The 

federal government does not have a comprehensive system for directly registering sex 

offenders. Generally speaking, sex offenders in the United States1are required to register 

with law enforcement in each state, locality, territory, or tribe within which they reside, 

work, or attend school.2

Each state has its own distinct sex offender registration and notification system. The 

District of Columbia, the five principal U.S. territories, and over 100 federally-recognized 

Indian Tribes have their own sex offender registration and notification systems, as well.

3

 

Every one of these systems has its own nuances and distinct features. Every jurisdiction 

(meaning each state, territory, or tribe) makes its own determinations about who will be 

required to register, what information those offenders must provide, which offenders will 

be posted on the jurisdiction’s public registry website, and so forth. 

Even though sex offender registration itself is generally not directly administered by 

the federal government, the federal government is involved in sex offender registration and 

notification in a number of meaningful ways.4 

Federal Minimum Standards

Over the last two decades Congress has enacted various measures setting ‘minimum 

standards’ for jurisdictions to implement in their sex offender registration or notification 

systems.5 The first of these was passed in 1994 and is commonly referred to as the 

‘Wetterling Act.’ This Act established a set of minimum standards for registration systems 

for the states.

6

 Two years later, in 1996, ‘Megan’s Law’ was passed as a set of minimum 

standards for community notification.7 The most recent set of standards can be found in 

the Sex Offender Registration and Notification Act (SORNA), which was passed in 2006.8 

SORNA currently governs the federal minimum standards for sex offender registration and 

notification systems.
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If a state, tribe, or territory chooses to refrain from substantially implementing 

SORNA’s standards, the jurisdiction risks losing 10 percent of its Edward R. Byrne Justice

Assistance Grant (Byrne JAG) funds.9 As of September 15, 2016, 17 states, 3 territories, 

and over 100 federally-recognized Indian Tribes have substantially implemented 

SORNA.10 It is important to note that there are still variations in the registration and 

notification laws among jurisdictions that have substantially implemented SORNA.11 

Practitioners are advised to become familiar with the specific registration and notification 

systems in any and all jurisdictions within which they will be working.

National Sex Offender Public Website

The National Sex Offender Public Website (NSOPW), located at www.nsopw.gov, was 

created by the U.S. Department of Justice in 2005 and is administered by the Office of Sex 

Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART

Office).12 NSOPW works much like a search engine: jurisdictions that have their own 

public sex offender registry websites connect to NSOPW by way of a web service or 

automated upload to enable NSOPW to conduct queries against the jurisdictions’ websites. 

Only information that is publicly disclosed on a jurisdiction’s own public sex offender 

registry website will be displayed in NSOPW’s search results, and only the jurisdiction’s 

registry website page will be displayed on the results page of NSOPW. The Department 

of Justice does not administer any of the registration information that is searched whenever 

a query is made through NSOPW, and only ensures that the information that is available 

on jurisdictional websites can be queried through NSOPW.13

The National Sex Offender Public Website

www.nsopw.gov
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Federal Law Enforcement Databases

Federal databases are utilized by law enforcement across the country to access accurate 

information about registered sex offenders. Registering agencies and other units of state 

and local law enforcement submit the information necessary to populate these databases:14 

1. NSOR: The National Sex Offender Registry (NSOR) is a law-enforcement 

only database that is a file of the National Crime Information Center (NCIC) 

database managed by the Federal Bureau of Investigation (FBI) Criminal 

Justice Information Services (CJIS) division. It was created in the late 1990s 

to store data on every registered sex offender in the United States, and to 

provide access to that data to law enforcement nationwide.

15

 

2. NGI: The Next Generation Identification (NGI) system officially replaced 

the legacy fingerprint database at the FBI (IAFIS) in October of 2014.

16

 NGI 

fingerprint records are linked to the offender’s corresponding NSOR record at 

CJIS.

3. NPPS: The National Palm Print System (NPPS) is the database for palm 

prints housed with the FBI. 

4. CODIS: The Combined DNA Index System (CODIS) is the national DNA 

database administered by the FBI.

SORNA requires that jurisdictions submit registration information about their 

registered sex offenders to NSOR, and ensure that offenders’ fingerprints have been 

submitted to NGI, palm prints to NPPS, and DNA profiles to CODIS.17

Federal Corrections

Part of the federal government’s involvement with sex offenders who are required to 

register concerns the handling of those offenders as they are housed and subsequently 

discharged from federal correctional institutions. In particular, concerns have been raised 

about notifying local law enforcement when a sex offender is released from federal 

custody. Issues specific to military detention are discussed separately in the section on 

military registration, below.

1. Bureau of Prisons

The Bureau of Prisons (BOP) does not register sex offenders prior to their release from 

incarceration, as registration is primarily a state function. However, 18 U.S.C. § 4042(c)

requires that BOP or a federal probation officer provide notice to the chief law enforcement 

officer and registration officials of any state, tribe, or local jurisdiction whenever a federal 

prisoner required to register under SORNA is released from custody.18 In May of 2014, 

moreover, BOP issued new guidelines governing its release of sex offenders.

19

 
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2. Bureau of Indian Affairs

The Bureau of Indian Affairs (BIA) operates approximately 24 Detention Centers.20 

However, because BIA is an agency of the Department of the Interior, it is not governed 

by the terms of 18 U.S.C. § 4042(c). There are no generally applicable statutory or 

administrative requirements for BIA-operated Detention Centers to provide notice to local 

law enforcement when a sex offender is released from custody. In practice, offenders in 

BIA facilities generally are not registered prior to their release from incarceration.

3. Immigration and Customs Enforcement

The Department of Homeland Security’s (DHS) Immigration and Customs 

Enforcement (ICE) Enforcement and Removal Operations (ERO) is generally responsible 

for detaining and deporting undocumented individuals who are present within the United 

States. As of September 2012, five percent of the nearly 60,000 aliens under an ‘Order of 

Supervision’ in the community after being released from detention and pending deportation 

actions had been previously convicted of a sex offense.21 ICE-ERO has previously been 

faulted for having no regular method of notifying local law enforcement when a sex 

offender, or any offender, is released from ICE-ERO custody.22 However, in 2015 DHS 

put forward a rule amending their Privacy Act provisions to permit the transfer of 

information from DHS to any sex offender registration agency about an offender who is 

released from DHS custody or removed from the United States.23 Like the Bureau of 

Prisons and BIA detention facilities, offenders are not registered prior to their release from 

ICE custody.

Federal Law Enforcement and Investigations

SORNA designated the United States Marshals Service (USMS) as the lead agency in 

investigations of suspected violations of the federal law regarding failure to register as a 

sex offender, which is found at 18 U.S.C. § 2250. In order to further their investigative 

capacity, the USMS established the National Sex Offender Targeting Center (NSOTC) in 

2009.

24

Military Registration

If a person resides, works, or attends school on a military base, depending on the source 

and manner of obtaining the land held by the federal government on which the base is 

located, a state might have no jurisdiction at all over matters occurring thereon. In other 

words, the base may be a ‘federal enclave’ where only federal law applies.25 Because of 

that, in some locations there may be sex offenders present on military bases who are not 

required to register with the state because they live, work and attend school solely on land 

considered to be a federal enclave. 

In 2013, Congress enacted a provision that prohibits any person convicted of a felony 

sex offense from enlisting or being commissioned as an officer in the Armed Forces.26 In 
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August 2014, the Inspector General of the Department of Defense (DoD) issued a report 

regarding DoD’s compliance with SORNA.27 

Prior to 2015, there had been no provision of federal law (since the passage of SORNA) 

which generally enabled or permitted federal authorities to register sex offenders such that 

the information from those registrations would be connected to any national databases. In 

May 2015, Congress amended SORNA to require DoD to provide information to NSOR 

and NSOPW on any sex offender who is adjudged by courts-martial or released from a 

military corrections facility.28 In November 2016, DoD issued an Instruction establishing 

policies for the “identification, notification, monitoring, and tracking of DoD-affiliated 

personnel” who are registered sex offenders.29

Certain components of the Department of Defense have also adopted policies and 

procedures to independently track and monitor sex offenders who are either active duty 

members, civilian employees, contractors, or dependents of active duty members located 

on U.S. military installations at home and abroad.30 For example, the Department of the 

Army now requires all sex offenders who reside or are employed on an Army installation 

(including those outside of the continental United States) to register with the installation 

Provost Marshal.31 

Offenders convicted by military tribunals of registerable sex offenses are required 

under SORNA to register with any jurisdiction where they live, work or go to school, 

subject to the limitations described above.

32 Through a series of statutory and 

administrative cross-references, SORNA requires that persons register as a sex offender 

whenever they have been convicted of a UCMJ offense listed in Department of Defense 

Instruction 1325.07, which was revised in 2013.33

1. Publication of Sex Assault Courts-Martial Results

The U.S. Marine Corps, Navy, and Air Force have all started to publicly disclose 

information about convictions for sex offenses, although such disclosures are not occurring 

on NSOPW at the present time.

34

 While it does not make available a universal list of sexual 

assault Courts-Martial, in 2013, the Army issued a directive to initiate discharge 

proceedings against any active duty convicted sex offender.35 

2. Unique Issues for Registration of UCMJ Convictions

Given the unique structure of the military justice system, certain issues arise that are 

distinct from those in civilian courts. For example, a state-level requirement to register 

based on a conviction of a sex offense in ‘federal court’ was held to also include a courtmartial from a military court.36

 In at least one state, an offender convicted under article 

134 of the UCMJ for an offense relating to child pornography was required to register 

because the offense of conviction was determined to be a “like violation” to a state 

offense.37
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Summary

This hybrid framework of state, territorial, tribal, local, military, and federal laws and 

policies is the context in which the case law regarding sex offender registration and 

notification has developed. The summary which follows intentionally avoids any lengthy

discussion of the legal issues and case law surrounding prosecutions under 18 U.S.C. §

2250, the federal failure to register statute. That topic is worthy of its own guide, and is 

largely beyond the intended scope of this summary.

II. Who is Required to Register?

Nearly all registration requirements in the United States are initially triggered by a 

conviction for a criminal offense.38 Most jurisdictions limit their registration and 

notification systems to persons convicted of sex offenses and non-parental kidnapping of 

a minor. Some states also include other violent or dangerous offenders in their registration 

and notification system.39

‘Sex Offenders’

Federal courts have interpreted SORNA as directly imposing a duty on a person to 

attempt to register if they meet the federal definition of ‘sex offender’.

40

 SORNA’s 

standards call for jurisdictions to register all persons who have been convicted of a tribal, 

territory, military, federal, or state sex offense.41 In addition, certain foreign sex offense 

convictions will also trigger a registration requirement under SORNA.42 Generally 

speaking, however, in practice a jurisdiction will not register an offender unless that 

jurisdiction’s laws require that the offender be registered.43 However, at least one state has 

concluded that if a person has ever been required to register as a sex offender pursuant to 

federal law, that person is required to register in the state.44 In addition, at least one state 

will impose the registration requirements of the originating state, even if the new state’s 

requirements are less stringent.45

Kidnapping

The inclusion of kidnapping offenses in sex offender registration systems is a legacy 

of the federal standards discussed above; these offenses have been retained as registerable

since the passage of the first federal legislation regarding sex offender registration in 1994. 

Inclusion of kidnapping offenses in a jurisdiction’s sex offender registry has been largely 

upheld by the courts.46 

‘Catch-All’ Provisions

When jurisdictions specifically outline the offenses that require registration, there is 

little question as to who is required to register. Most jurisdictions, however, also include 

‘catch-all’ provisions which, in varying forms, generally require any person convicted of

an offense which is ‘by its nature a sex offense’ to register as well. One court recently 

concluded that the state need only prove by ‘clear and convincing’ evidence that an 
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offender engaged in sexual contact in order to qualify under its catch-all registration 

provision,

47 while another held that such proof must meet the ‘beyond a reasonable doubt’ 

standard.48

Comparable Convictions from Other Jurisdictions

A more difficult situation arises when a convicted sex offender moves from one 

jurisdiction to another, and the new jurisdiction has to make a determination as to whether 

the person is required to register there. When a person has an out-of-state conviction, most 

jurisdictions require registration for any offense which is ‘comparable,’ ‘similar,’ or 

‘substantially similar’ to one or more of the receiving jurisdiction’s registerable offenses.

49

 

When a state’s registration system treats persons convicted of in-state offenses differently 

from those convicted out-of-state, equal protection problems may arise.50 On occasion, 

offenders have had their convictions expunged, but still might face registration 

requirements in other states. At least one state has issued an Attorney General opinion 

determining that “out-of-state offenders whose convictions have been expunged must 

register...if they were required to register” in another jurisdiction as a sex offender.51 

Elements vs. Facts

Making the determination as to whether an offense fits under one of these ‘catch-all’

or ‘comparable’ provisions has led to a great deal of litigation.52 Some jurisdictions look 

at just the elements of the offense of conviction, while others will also look at the facts 

underlying the conviction.53 Often, courts take an expansive view of which offenses will 

trigger registration requirements; though sometimes, the approach can be quite narrow.54

Recidivists

In many states, as under SORNA’s requirements, an offender who has been convicted 

of more than one sex offense is subject to heightened registration requirements. One court 

has held that the two (or more) offenses do not need to arise out of separate proceedings in 

order to trigger these increased requirements.55

III. Registration of Juvenile Offenders

State juvenile justice systems within the United States have handled juvenile sex 

offender registration in different ways. For example, at the time of SORNA’s passage, 36 

states required certain juveniles adjudicated delinquent of sex offenses to register as sex 

offenders, while the remainder did not require any such juveniles to register. SORNA’s 

minimum standards do require registration for certain juvenile offenders adjudicated 

delinquent of serious sex offenses.56 Moreover, SORNA does not require jurisdictions to 

disclose information about juveniles adjudicated delinquent on their public registry 

websites.57 

On August 1, 2016, the Juvenile Supplemental Guidelines were published in the 

Federal Register.58 In the event that a jurisdiction does not exactly conform with the 
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juvenile registration requirements under SORNA, the Juvenile Supplemental Guidelines 

permit the SMART Office to expand its inquiry in the process of making a determination 

as to whether a jurisdiction has substantially implemented SORNA’s juvenile registration 

provisions. Specifically, the Juvenile Supplemental Guidelines allow the SMART Office 

to review the following:

(i) Policies and practices to prosecute as adults juveniles who commit serious sex 

offenses; 

(ii) Policies and practices to register juveniles adjudicated delinquent for serious 

sex offenses; and 

(iii) Other policies and practices to identify, track, monitor, or manage juveniles 

adjudicated delinquent for serious sex offenses who are in the community and 

to ensure that the records of their identities and sex offenses are available as 

needed for public safety purposes.59

Juvenile Registration Requirements Vary Across Jurisdictions

Despite SORNA’s requirement that juveniles adjudicated delinquent of certain 

offenses register as a sex offender, the implementation of this provision varies across 

jurisdictions.60 Some jurisdictions do not register any juveniles at all; some limit the ages 

of the offenders who might be registered; some limit the offenses for which they might be 

registered; and others limit the duration, frequency, or public availability of registration 

information.61 Some jurisdictions have mandatory registration provisions for certain 

juveniles, some are discretionary, and some have a hybrid approach.62 At least one 

jurisdiction required a person who committed an offense at age 12 – who would not have 

been required to register under SORNA had an adjudication occurred at the time of the 

offense – to register as an adult because the conviction for that offense did not occur until 

after the individual was 18 years of age.

63

As with adult registration requirements, registration requirements for juveniles are 

generally triggered by the equivalent of a conviction for a sex offense in juvenile court, 

which is typically referred to as an ‘adjudication of delinquency.’ Most jurisdictions 

mandate registration for juveniles transferred and convicted for sex offenses in adult court. 

In addition, one federal circuit court has held that a person previously adjudicated 

delinquent of a SORNA-registerable offense in state court can be ordered to register as a 

sex offender as a mandatory condition of probation for a subsequent, unrelated federal 

conviction.64

Because of the varying nature of juvenile justice systems across jurisdictions, problems 

often arise when a juvenile is adjudicated delinquent in one jurisdiction and then moves to 

another.65 Many of those issues mimic the issues discussed above regarding adult 

offenders.
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Issues Unique to Juvenile Adjudications

There are some issues unique to juvenile court cases. When a jurisdiction requires that 

juveniles be subjected to registration requirements more onerous than those imposed on 

adults convicted of the same offense, equal protection issues exist.66 In two states, the 

automatic lifetime registration requirement as applied to adjudicated juveniles was held to

unconstitutionally violate due process and, in one of those states, the prohibition against 

cruel and unusual punishment.67 However, when a juvenile court judge refuses to order a 

juvenile to register, as required by statute, a writ of mandamus may be successfully pursued 

by the state.

68

 

Federal Juvenile Delinquency Act

There are particular issues which arise when a person is ordered to register by a federal 

court because of a federal adjudication of delinquency for a sex offense.69 In particular, 

multiple courts have held that it is not a contravention of the Federal Juvenile Delinquency 

Act confidentiality provisions to require such individuals to register as a sex offender.

70

IV. Retroactive Application & Ex Post Facto Considerations

One of the first issues to be litigated as sex offender registration systems were 

established across the country was whether or not an offender who had been convicted 

prior to the passage of the laws requiring registration could be required to register.71 

Numerous challenges to the retroactive application of registration laws were heard 

throughout the 1990s and 2000s.

United States Supreme Court 

In 2003, the United States Supreme Court seemingly settled the issue in the case of 

Smith v. Doe, a challenge from a sex offender in the State of Alaska who argued that the 

imposition of registration requirements on him violated the Ex Post Facto clause of the 

Constitution.

72

 The Court held that registration and notification—under the specific facts 

of that case—were not punitive, and could, therefore, be retroactively imposed as 

regulatory actions.73 

While the issue was settled for a time, subsequent litigation has ensued based on 

increased sex offender registration and notification requirements in many jurisdictions 

since the Doe decision.

74 A recent Sixth Circuit case held that Michigan’s SORNAimplementing law was ‘punitive’ and therefore could not be applied retroactively.75 In a 

series of recent cases interpreting 18 U.S.C. § 2250, the Supreme Court has declined to 

take a fresh look at any Ex Post Facto implications raised by the increasing requirements 

which have been placed on registered sex offenders over the last 13 years.76 
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Significant State Court Decisions

There have been seven state supreme courts in recent years that have held that the 

retroactive application of their sex offender registration and notification laws violate their 

respective state constitutions.

77 Other state courts have found issues with the retroactive 

application of their sex offender registration laws in less sweeping fashion.78 In addition, 

in 2016, an unusual series of cases in Kansas first held that the state’s registration system 

was punitive in effect—and thus retroactive application was unconstitutional—then 

overturned that decision.79 Conversely, however, many courts continue to stand by the 

reasoning of the Smith v. Doe case in continuing to affirm the retroactive application of sex 

offender registration laws.80 For example, at least one state that has found an Ex Post Facto 

violation as applied to its own offenders does not apply to persons convicted in another 

state who then relocate.81

Some courts require the specific performance of a plea agreement or court order when 

sex offender registration was not specifically ordered by the sentencing court, was

bargained away as part of plea negotiations, or when an offender was given a specific 

classification or tier at sentencing.82 However, many states continue to permit registration 

and notification under such circumstances. For example, California held that a defendant 

was properly subjected to community notification in 2004 even though he had entered a 

plea agreement in 1991 which was silent on the issue.83

Additional Court Opinions 

A review of pertinent federal and state case law reveals that, in one case, a federal court 

enjoined the enactment of Nevada’s SORNA-implementing legislation based on Ex Post 

Facto concerns;

84 although the federal court injunction has since been lifted,85 the state 

remains involved in litigation on the state level.86 In Texas, a Writ of Mandamus was 

granted compelling the Department of Public Safety to comply with a court order to remove 

an offender from the registry.87 In other states, some offenders have been able to be 

removed from the registry when the statute is changed in a way which inures to their 

benefit,

88 but one court has held that increasing the penalties for a failure to register does 

not violate the Ex Post Facto clause.89

Massachusetts requires a due process hearing before any offender is ordered to comply 

with its full registration requirements, including those offenders convicted prior to the 

registration statute’s effective date.

90 Applying community notification retroactively to 

Massachusetts’ existing level two offenders was recently held to violate due process.91

V. Other Constitutional Issues

As previously mentioned, nearly all persons required to register as sex offenders must 

do so because they have been convicted of a criminal offense. Accordingly, by the time a 

person is actually required to register, a number of constitutional protections have already 

been afforded—namely, those which inure to a defendant throughout the course of a 

criminal trial and sentencing. 
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Varied Successful Challenges

Although the vast majority of constitutional challenges to sex offender registration and 

notification requirements have been unsuccessful, there have been some notable decisions 

based on constitutional grounds. For example, in 2015 a successful challenge was made 

utilizing the Bill of Attainder clause under Article I, Section 9 of the U.S. Constitution.92

Other examples of successful challenges include opinions issued by state or federal 

courts which have held that: the collection of internet identifiers violates the First 

Amendment;93 being ordered to register as a sex offender triggers the protections of 

procedural due process;94 publishing information about an offender’s “primary and 

secondary targets” violates due process;95 being ordered to register as a parole condition 

violates due process when the underlying convictions are not sexual in nature;96 requiring 

registration for a conviction for solicitation, and not prostitution, when each offense had 

the same elements, violates due process;97 a ‘three-strikes’ sentence based on a failure to 

register conviction is cruel and unusual punishment;98 mandatory life imprisonment for a 

second conviction of failure to register is cruel and unusual punishment;99 and requiring an 

offender to continue to register when he had been convicted of having consensual sex with 

his 14-year old girlfriend (he was 18 at the time) and had his case successfully dismissed 

under a deferred disposition is cruel and unusual punishment.100

Other State Constitutional Provisions

In addition to the decisions above, there have been some notable cases regarding the 

interaction between SORNA and the existing registration and notification laws in a state: 

Missouri has held that SORNA preempts state law to the extent that any state constitutional 

concerns are not implicated;101 and North Carolina concluded that SORNA is directly 

incorporated (in part) in to state law and that incorporation is not an unconstitutional 

delegation of legislative authority.102 In addition, the Pennsylvania Supreme Court 

invalidated a portion of its sex offender registration law because it violated the ‘single 

subject’ rule of the Pennsylvania Constitution.103 

Jury Determination of Obligation to Register as a Sex Offender

There are a number of cases decided by the U.S. Supreme Court which do not directly 

address sex offender registration, yet continue to have a bearing on litigation in the field. 

For example, the case of Apprendi v. New Jersey has spawned a number of challenges to 

registration requirements; namely, contending that a jury should be required to determine 

whether an offender should be subject to the additional ‘punishment’ of sex offender 

registration.104 The test as to whether sex offender registration constitutes ‘punishment’ is 

the same as that used to determine whether something is ‘punitive’ for purposes of an Ex 

Post Facto analysis as discussed above. To date, most challenges under Apprendi have 

been unsuccessful.105
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Ineffective Assistance of Counsel

One frequent argument in failure to register cases is that the offender had ineffective 

assistance of counsel during the trial for the underlying sex offense, because counsel did 

not advise them that they would be required to register as a sex offender. Most of these 

cases have focused on sex offender registration as a ‘collateral consequence’

106 of 

conviction; other cases involving whether a guilty plea is knowing, voluntary and 

intelligent have also discussed the issue.107 Recently, though, at least one court has 

concluded that the heightened registration and notification requirements imposed on sex 

offenders has rendered any registration requirement a ‘direct consequence’, rather than a 

‘collateral consequence’, of conviction.108

While most courts do not find any constitutional violation in these circumstances, one 

court held that an affirmative misrepresentation that an offender would not have to register 

as a sex offender is ineffective assistance of counsel;109 another determined that incorrect 

advice to an offender regarding whether he would be required to register as a sex offender 

is ineffective assistance of counsel;

110 and a constitutional violation was found where 

counsel advised that an offender plead guilty to a charge of failure to register when the 

offender had never been convicted of an offense legally requiring registration.111 

Padilla v. Kentucky

Padilla v. Kentucky112 is a Supreme Court case which held that counsel’s failure 

to correctly advise a client that a conviction would count as a deportable offense 

under the Immigration and Naturalization Act was deficient assistance under the 

Sixth Amendment.113 Since the decision in Padilla, a number of cases have 

addressed the issue of whether counsel’s failure to advise their client that a 

conviction would result in sex offender registration also runs afoul of the Sixth 

Amendment; thus far, those challenges have been unsuccessful.

114

 The Supreme 

Court recently concluded that the holding in Padilla does not apply retroactively.115

NFIB v. Sebelius and Arlington v. FCC

While beyond the scope of this update, other cases such as National Federation of 

Independent Business v. Sebelius116 and Arlington v. FCC117 are having an impact on 

certain prosecutions under 18 U.S.C. § 2250.118

Varied Unsuccessful Challenges

In addition to the challenges described above, offenders often raise other constitutional 

objections that lead to litigation. In prosecutions for state-level failure to register cases or 

civil challenges to registration requirements, offenders have launched unsuccessful 

challenges based on the following arguments: takings,119 double jeopardy,120 procedural 

due process,121 substantive due process,122 equal protection,123 the right to a trial by jury,124

right to travel,125 cruel and unusual punishment,126 full faith & credit,127 the supremacy 

clause,128 and separation of powers.129 Another set of constitutional arguments are those 
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advanced by the ‘sovereign citizen movement’ which, though creative, have proven 

unsuccessful.130 In addition, in Bond v. United States,

131 the Supreme Court granted 

standing to sex offenders to challenge SORNA on Tenth Amendment grounds, where 

previously they had no standing to do so, but no challenges on those grounds have been 

successful at the circuit level thus far.132 

VI. Community Notification

Every state, tribe and territory that registers sex offenders also makes publicly available 

certain information about at least some of their sex offenders. While in earlier years 

community notification was handled via public meetings, fliers, and newspaper 

announcements, notification has now expanded to include publicly available and 

searchable websites, which are linked together via NSOPW. In 2016, the Washington 

Supreme Court held the state registry must disclose information about level I offenders to 

a private citizen, even though those offenders are not posted on the state’s public sex 

offender registry website.133

VII. Failure to Register

For an offender to have any motivation for compliance with the sex offender 

registration process, there must be an enforcement component. Nearly all jurisdictions

which require sex offender registration also have a criminal penalty for failure to register. 

The following are a sample of some of the prominent issues which arise in state-level 

failure to register prosecutions.

Failure to Register as a ‘Continuing Offense’

Many jurisdictions hold that a failure to register is a ‘continuing offense,’ much like 

larceny or escape, such that a person cannot be prosecuted for multiple failures to register 

within a given time frame.134 

Failure to Register as a ‘Strict Liability’ Offense

Many jurisdictions require a mens rea of some sort to be proven prior to permitting a 

person to be convicted of failure to register,135 while others hold that it is a strict liability 

offense.136 

Notice

All jurisdictions require that some kind of notice of registration requirements be given 

to a sex offender prior to their being held criminally liable for a failure to register. That 

notice can be ‘imperfect’ and still be sufficient.137 In other cases, the notice can be 

constructive, and still valid.138 However, there are situations where notice will be found 

insufficient.139
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Prosecution Based on Failure to Update Information

Most jurisdictions require sex offenders to update their registration information when 

that registration information changes. In one state, the failure to provide an online 

identifier supported a conviction for failure to register.140 In another, however, a change of 

residence outside of the country did not require the offender to update the state registry, 

and a failure to do so could not be prosecuted under state law.

141

 

Venue

Generally speaking, the proper venue for a failure to register case is the jurisdiction in 

which the person has failed to comply with his registration requirements. In addition, at 

least one state has held that there is no need to prove where an offender was during the 

time that he failed to register.142 The federal failure to register statute, 18 U.S.C. § 2250, 

can also be utilized in cases where there has been interstate travel.

VIII. Residency Restrictions

SORNA’s minimum standards do not address or require residency restrictions in any 

way. When a jurisdiction chooses to impose residency restrictions on registered sex 

offenders, it prohibits registered sex offenders from residing within a certain perimeter of 

schools, day care centers, parks, and other locations frequented by children. These 

residency restrictions are generally passed and enforced on a local or municipal level, 

although, in some circumstances, a state, tribe, or territory might pass such provisions.143

This past year in North Carolina, one portion of the state’s residency restriction 

provisions were held to be unconstitutionally vague.144 In California, residency restrictions 

were held unconstitutional as applied on due process grounds.145 In New York and some 

other states, municipal residency restrictions have been invalidated because they were 

deemed to have been preempted by state law.146 In another case, the residency restriction 

was deemed to be punitive and therefore not retroactively applicable.

147

 The Eleventh 

Circuit recently permitted a case to proceed where the plaintiffs allege that Florida’s 

residency restrictions are punitive.

148 More frequently, however, local residency 

restrictions have been upheld,

149 such as in Colorado, where a local ordinance which in 

effect bars certain sex offenders from living within a city was not preempted by state law.150

IX. Sex Offender Registration and Notification in Indian Country

As previously discussed, 42 U.S.C. § 16927 created, for the first time, a carve-out of 

state jurisdiction over sex offenders who live, work, or attend school on the lands of certain 

federally-recognized Indian Tribes. Generally speaking, the tribes that were eligible to optin as SORNA registration jurisdictions are those who are not PL-280 tribes. As of 

September 15, 2016, there are approximately 160 federally-recognized tribes operating as 

SORNA registration jurisdictions; this means that they either have established, or are in 

the process of establishing, a sex offender registration and notification program.
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The vast majority of the more than 100 tribes that have substantially implemented 

SORNA, moreover, have utilized the Model Tribal Code, which was developed by Indian 

Law experts in conjunction with the SMART Office and fully covers all of SORNA’s 

requirements.151 There are many tribes that have more rigorous registration requirements 

than the states within which they are located, particularly for those tribes located within 

states that have not substantially implemented SORNA.152 For example, in addition to 

possible criminal sanctions for failure to register, tribes are also generally able to exclude 

any person (such as a convicted sex offender) from their lands altogether.153

There are legal issues unique to Indian Country which impact the registration of tribal 

sex offenders or the enforcement of sex offender registration requirements against persons 

who reside on tribal lands or were convicted by tribal courts. For example, because of the 

different standards regarding the right to counsel in some tribal courts, it was sometimes 

argued that prosecuting a person based in part on an underlying tribal conviction violates 

the Sixth Amendment of the U.S. Constitution. In 2016, the United States Supreme Court 

settled the issue, holding that tribal-court convictions obtained in proceedings that comply 

with the Indian Civil Rights Act (ICRA) may be used as predicate convictions in a 

subsequent federal prosecution.

154

Tribal Residents and State Registration Responsibilities

Further complications may develop when an offender lives on tribal land but was 

convicted of a state or federal offense. One question which arises is whether an offender 

who exclusively lives, works, and attends school on tribal land can be compelled to register 

with the state within which that tribal land is located. If the offender cannot be compelled 

to register with the state, it falls to the tribe to register the offender, if the tribe has optedin to SORNA’s provisions and is operating as a registration and notification jurisdiction 

under its terms.

For example, in New Mexico, the State cannot impose a duty to register on enrolled 

tribal members living on tribal land who have been convicted of federal sex offenses.155 

At the same time, in neighboring Arizona, persons living in Indian Country are required to 

keep their registration current with both the state and the tribe.156 In Arizona, however, a 

tribal member residing on tribal land cannot be prosecuted under state law for failure to 

register unless a tribe’s registration responsibilities have been delegated to the state via 

SORNA’s delegation procedure.157

X. International Relocation and Registration

In 2011, the SORNA Supplemental Guidelines were issued by the Department of 

Justice, and added a requirement to SORNA’s baseline standards that jurisdictions were 

required to have their offenders inform them of any intended international travel at least 21 

days prior to that travel taking place.158 Per these standards, offenders are to provide 

authorities with information regarding their itinerary and intended destinations, among 

other items, and registration jurisdictions are required to provide this information to the 

National Sex Offender Targeting Center (NSOTC) of the United States Marshals Service.
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Prior to 2016, there had been a circuit split as to whether an offender could be 

prosecuted under 18 U.S.C. § 2250 when an offender leaves the country and fails to notify 

their registration jurisdiction of their departure.159 In the case of Nichols v. United States, 

the Supreme Court held that a sex offender could not be federally prosecuted for a failure 

to notify his registration jurisdiction that he was relocating to the Philippines.

160

On February 8, 2016, President Obama signed the International Megan's Law to Prevent 

Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling 

Sex Offenders (IML).

161 IML (1) codified the requirement that offenders provide 21-day 

advance notice of international travel; (2) specifically authorized the notification program 

of NSOTC; (3) specifically authorized the notification program of DHS’ Angel Watch; (4) 

amended 18 U.S.C. § 2250 to make a failure to provide advance notice of international 

travel a specific criminal violation; and (5) required the State Department to mark the 

passport of any person who is required to register as a sex offender based on a conviction 

where the victim was a minor.162

To date, approximately 30 foreign countries have some form of nationwide or 

provincial sex offender registration systems. South Korea, the Province of Western 

Australia, and certain Canadian provinces also make some information publicly available 

via websites,163 while other countries have different community notification procedures.164 

For more detailed information about foreign sex offender registration and notification 

systems, please see the second edition of the Global Overview of Sex Offender Registration 

and Notification Systems, recently published by the SMART Office.

165

XI. Miscellaneous

The status of having been convicted of a sex offense, being required to register as a sex 

offender, or having failed to register as a sex offender, can trigger other legal issues in a 

variety of contexts.166 In addition to all of the topics discussed above, the following matters 

also arise in these circumstances.

Defamation

Defamation is a civil tort action which can be pursued when someone’s reputation in 

the community has been injured by false or malicious statements.167 Some individuals 

have unsuccessfully made claims under 42 U.S.C. § 1983 on the basis of defamation, when 

they were posted on the sex offender registry website without the due process provided by 

statute.168 

Fair Credit Reporting Act

Certain people have had limited success in pursuing claims under the Fair Credit 

Reporting Act when they have been incorrectly reported by a credit bureau as having prior 

sex offense convictions.169
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Homeless & Transient Offenders

Homeless or transient sex offenders have generated a great deal of litigation as states 

have tried to enforce registration requirements. Many states are rewriting their laws in 

such a way that these offenders are clearly required to register.170 This issue has recently 

come to the fore in the City of Chicago, where there has been a great deal of civil litigation 

based on its policy to deny registration to any sex offender who lacked a fixed address.171 

In most cases, an offender’s homelessness has not prevented a successful prosecution 

for failure to register, although sometimes statutory or evidentiary problems have arisen.

172

 

Differing check-in requirements for homeless offenders as opposed to offenders who have 

a residence address have been affirmed.173 In one case, a court found that when an offender 

repeatedly uses a ‘mail drop’ address as his legal address, he ‘resides’ at that location for 

the purposes of a prosecution for failure to register as a sex offender.174 In another, when 

an offender still technically lived at the same address, even though he lived in an 

outbuilding or his truck rather than the main residence, he could not be prosecuted for a 

failure to update his residence address.175 However, in an attempt to prosecute a long-haul 

trucker for failure to register, a conviction could not be had, even when he had prolonged 

absences from his registered residence.176

HUD Housing

One collateral consequence of a state-imposed lifetime sex offender registration 

requirement is that a person is no longer permitted, pursuant to federal law, to be admitted 

to any “federally assisted housing.”

177

 However, once a person has been admitted to a 

program such as Section 8,

178 they cannot be thereafter terminated because of a new, or 

newly-discovered, lifetime sex offender registration requirement.179 A person may be 

prosecuted for perjury if they have lied on an application for Section 8 housing about the 

status of a lifetime registered sex offender living in the residence.180 One recent case 

permitted the termination of a beneficiary’s assistance based only on the address displayed 

on the public sex offender registry website for a jurisdiction.181

Immigration & Deportation

A recent case analyzed in detail the requirement of the Adam Walsh Act that a person 

convicted of a specified offense against a minor is not entitled to file a petition to sponsor 

a fiancé or family member unless the Secretary of the Department of Homeland Security 

determines that the offender poses no risk to the person on whose behalf the petition is 

filed.182

Convictions for a failure to register have triggered subsequent deportation proceedings 

in some cases. There is a circuit split as to whether a conviction for a state failure to register 

offense is a crime involving ‘moral turpitude’ under the immigration code such that a 

person is removable because of that conviction.183
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Impeachment

Generally speaking, rules of evidence permit attacking the credibility of a witness by 

way of introducing evidence of certain prior convictions. In one state, a conviction for 

failure to register was determined to be a ‘crime of deception’, rendering it admissible in a 

subsequent criminal trial to impeach the defendant’s testimony.184

Sentencing Enhancement Under Federal Law

Under federal law, additional punishment can result if certain crimes are committed 

while an offender is required to register as a sex offender. Under 18 U.S.C. § 2260A, the 

commission of certain offenses against a minor while the perpetrator is required to register 

as a sex offender under any law will result in a ten year mandatory minimum sentence to 

run consecutively to any other sentences imposed.

185

 The retroactive application of these 

provisions does not violate the Ex Post Facto clause.186

XII. Conclusion

The statutes, regulations and laws addressing sex offender registration and notification 

in the United States are varied and complex. While this summary seeks to provide updated 

and accurate information, practitioners are advised to conduct their own research to 

confirm that they are utilizing the most current information available and applicable in their 

jurisdiction. 

 For any questions about SORNA itself or for more information about any of the 

SMART Office projects described in this resource, please feel free to contact the SMART 

Office at asksmart@usdoj.gov or visit our website at www.smart.gov.
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1 Except for military offenders, addressed in more detail below, in section I.

2 Colleges must also annually include in a security report a statement advising the campus community 

the location where information about registered sex offenders on campus may be obtained. Violence Against 

Women Act; Final Rule, 79 Fed. Reg. 62,785-86 (Oct. 20, 2014).

3 Federally-recognized Indian Tribes located in ‘PL-280’ states will typically have their registration 

functions handled by the state within which their lands are located. 42 U.S.C. § 16927(a)(2)(A), citing Pub. 

L. No. 83-280, c. 505, 67 Stat. 588 (1953) (codified at 18 U.S.C. § 1162). 

4 CONG. RESEARCH SERVICE REPORT 7-5700, FEDERAL INVOLVEMENT IN SEX OFFENDER 

REGISTRATION AND NOTIFICATION: OVERVIEW AND ISSUES FOR CONGRESS, IN BRIEF (March 25, 2015), 

https://www.fas.org/sgp/crs/misc/R43954.pdf. 

5 For a comprehensive legislative history of federal sex offender registration and notification 

legislation, see Lori McPherson, The Sex Offender Registration and Notification Act (SORNA) At 10 Years: 

History, Implementation, and the Future, 64 Drake L. Rev. 741 (2016), available at

https://lawreviewdrake.files.wordpress.com/2015/01/mcpherson-final.pdf.

6

Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. 

No. 103-322, § 170101, 108 Stat. 2038 (1994). This was an incentive-based system, where States would be 

penalized (via loss of federal grant funds) for a failure to implement its terms. The five principal U.S. 

territories (American Samoa, Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the 

U.S. Virgin Islands) were included under Wetterling’s requirements by way of Final Guidelines issued in 

April of 1996. Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent 

Offender Registration Act, 61 Fed. Reg. 15,110 (April 4, 1996).

7

In the same way that the Wetterling Act’s provisions were incentive-based (see supra text 

accompanying note 6), so were the provisions of Megan’s Law.

8 42 U.S.C. §§ 16901-16946. All United States Code references are current as of July 2016. Three

sets of guidelines have been issued to assist in the implementation of SORNA. The National Guidelines for 

Sex Offender Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008) [hereinafter Final 

Guidelines], Supplemental Guidelines for Sex Offender Registration and Notification, 76 Fed. Reg. 1630 

(Jan. 11, 2011) [hereinafter Supplemental Guidelines], Supplemental Guidelines for Juvenile Registration 

under the Sex Offender Registration and Notification Act, 81 Fed. Reg. 50,552 (Aug. 1, 2016) [hereinafter 

Juvenile Supplemental Guidelines]. Guidelines provisions, standing alone, do not create an additional basis 

for criminal liability under 18 U.S.C. § 2250, United States v. Belaire, 480 Fed. Appx. 284 (5th Cir. 2012) 

(defendant could not be prosecuted for failing to update ‘temporary lodging’ information when neither 

originating nor destination state required such information to be provided); but see United States v. Piper, 

2013 U.S. Dist. LEXIS 113059 (D. Vt. Aug. 12, 2013).

9 For any State or Territory, the penalty is contained in 42 U.S.C. § 16925: 

For any fiscal year after the end of the period for implementation, a jurisdiction that fails, 

as determined by the Attorney General, to substantially implement this title shall not 

receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the 

jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe 

Streets Act of 1968 (42 U.S.C. § 3750, et seq.). 

If the 10 percent penalty is assessed, the jurisdiction can apply for reallocation of those funds to use 

for purposes of implementing SORNA.

For Tribes that elected to function as registration jurisdictions, the penalty contained in 42 U.S.C. § 

16925 may apply, if the tribe qualifies for that funding, which is determined by formula. However, there is 

a separate and significant penalty for non-compliance by tribes contained in 42 U.S.C. § 16927: For any 

federally-recognized Indian Tribe that the Attorney General determines has “not substantially implemented 

the requirements of [SORNA] and is not likely to become capable of doing so within a reasonable amount of 

time,” the statute creates automatic delegation of SORNA functions: 

ENDNOTES
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. . . to another jurisdiction or jurisdictions within which the territory of the tribe is located 

[and requires the tribe] to provide access to its territory and such other cooperation and 

assistance as may be needed to enable such other jurisdiction or jurisdictions to carry out 

and enforce the requirements of [SORNA].

The meaning of “provide access” and other issues regarding delegation of registration and 

notification responsibilities under SORNA for federally-recognized Indian Tribes is discussed in documents 

#12 and #13 of the SMART Office’s “Topics in SORNA Implementation” series, 

http://www.smart.gov/pdfs/SORNA_ImplementationDocuments.pdf.

10 Current as of October 1, 2016. For the current list of implemented jurisdictions, please visit 

http://www.smart.gov/newsroom_jurisdictions_sorna.htm. For a comprehensive report on the efforts and 

challenges in implementing SORNA, see GAO-13-211, SEX OFFENDER REGISTRATION AND NOTIFICATION 

ACT:JURISDICTIONS FACE CHALLENGES TO IMPLEMENTING THE ACT, AND STAKEHOLDERS REPORT POSITIVE 

AND NEGATIVE EFFECTS (2013), available at http://www.gao.gov/assets/660/652032.pdf.

11 Official reports detailing the systems of each jurisdiction for which an official report has been 

completed by the SMART Office are available at http://www.smart.gov/sorna-map.htm.

12 The precursor of NSOPW was NSOPR, the National Sex Offender Public Registry, which was the 

official name of the website from the time of its administrative creation in 2005 until the passage of SORNA 

in 2006. Press Release, Dep’t of Justice, Office of Justice Programs, Department of Justice Activates 

National Sex Offender Public Registry Website (July 20, 2005), available at 

http://www.amberalert.gov/newsroom/pressreleases/ojp_05_0720.htm. By July of 2006, all fifty states were 

linked to NSOPR. Press Release, Dep’t of Justice, Office of Justice Programs, All 50 States Linked to 

Department of Justice National Sex Offender Public Registry Website (July 3, 2006), available at

http://www.justice.gov/opa/pr/2006/July/06_ag_414.html. 

13 The SMART Office administers the Tribe and Territory Sex Offender Registry System (TTSORS), 

which is a system developed particularly for federally-recognized Indian Tribes and U.S. Territories which 

had not previously operated a sex offender registration system or website. All of the information in TTSORS 

is supplied and administered by the jurisdictions. More information about TTSORS is available at 

http://www.smart.gov/pdfs/TTSORSFactSheet.pdf.

14 For example, a local police department might submit an offender’s fingerprints to the FBI at the 

time of arrest.

15 See Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. No. 104-236, 

110 Stat. 3093.

16 NGI Officially Replaces IAFIS—Yields More Search Options and Investigative Leads, and 

Increased Identification Accuracy (Oct. 24, 2014), https://www.fbi.gov/services/cjis/cjis-link/ngi-officiallyreplaces-iafis-yields-more-search-options-and-investigative-leads-and-increased-identification-accuracy.

17 In many cases, an offender will have had their fingerprints, palm prints or DNA submitted prior to 

the registration process, as part of their arrest, sentencing, incarceration, or at some other point in the 

processing of their case. Registration agencies are not required to submit duplicate entries to federal 

databases where a fingerprint, palm print, or DNA record already exists. Final Guidelines, supra note 8, at 

38,057.

18 18 U.S.C. § 4042(c). The Bureau of Prisons is a Department of Justice subdivision and part of the 

Executive Branch. Federal probation officers are governed by the Administrative Office of the United States 

Courts, a Judicial Branch Office.

19 Program Statement 5110.15, Notification Requirements Upon Release of Sex Offenders, Violent 

Offenders, and Drug Traffickers (May 16, 2014), available at 

http://www.bop.gov/policy/progstat/5110_017.pdf. The form utilized by BOP to provide notice of 

registration responsibilities to its prisoners upon release can be found at 

http://www.bop.gov/policy/forms/BP_A0648.pdf. 

20 Office of the Inspector General, Report #2015-WR-012, BUREAU OF INDIAN AFFAIRS FUNDED 

AND/OR OPERATED DETENTION PROGRAMS (Feb. 2016) at p. 3 (“As of April 2015, the detention program 

consisted of 88 detention facilities in Indian Country that BIA funded or operated. BIA operates 24 of these 

facilities, tribes operate 48 facilities under Pub. L. No. 93-638 contracts, and 16 facilities operate under 

self-governance compact agreements.”), available at 

https://www.doioig.gov/sites/doioig.gov/files/2015WR012Public.pdf.
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21 GAO-13-832, ICE COULD BETTER INFORM OFFENDERS IT SUPERVISES OF REGISTRATION 

RESPONSIBILITIES AND NOTIFY JURISDICTIONS WHEN OFFENDERS ARE REMOVED (2013) at p. 1, available at 

http://www.gao.gov/assets/660/657831.pdf.

22 See id.

23 Notice of Amendment of Privacy Act System of Records, 80 Fed. Reg. 24,269 § HH (April 30, 

2015). ICE-ERO is now using the SORNA Exchange Portal to provide notifications to jurisdictions when a 

sex offender is released from ICE-ERO custody. For additional information about the SORNA Exchange 

Portal, see http://www.smart.gov/pdfs/SORNA_Portalfactsheet.pdf. 

24 The National Center for Missing and Exploited Children (NCMEC) operates the Sex Offender 

Tracking Team (SOTT) which is collocated with NSOTC in Crystal City, Virginia. SOTT publishes a biannual survey of the number of registered sex offenders in the United States. 

http://www.missingkids.com/en_US/documents/Sex_Offenders_Map.pdf. As of June 2016, there were 

851,870 registered sex offenders in the United States. For more information about SOTT, see 

http://www.missingkids.com/SOTT. 

25 ‘Federal Enclave’ is a legal term of art which refers to property that is either in whole or in part 

under the law enforcement jurisdiction of the United States Government. See generally the ‘Enclave Clause,’

U.S. CONST. art. I, § 8, cl. 17 (“[The Congress shall have Power...] [t]o exercise exclusive Legislation in all 

Cases whatsoever, over such District (not exceeding ten miles square) as may, by Cession of particular States, 

and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise 

like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same

shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”); see also

40 U.S.C. § 3112 (2006) (concerning federal jurisdiction). A similar issue arises regarding offenders located 

within National Parks or other federally-held land that holds the status of ‘federal enclave’.

26 National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 523, 126 Stat. 

1723 (codified at 10 U.S.C. § 504 note). This general prohibition also extends to federal convictions, juvenile 

adjudications, and situations where the disposition of the case requires the person to register as a sex offender, 

regardless of the offense of conviction. Enlistment, Appointment, and Induction Criteria, 32 C.F.R. § 

66.6(b)(8)(iii) (2015).

27 DODIG-2014-103, Evaluation of DoD Compliance with the Sex Offender Registration and 

Notification Act (August 29, 2014), http://www.dodig.mil/pubs/documents/DODIG-2014-103.pdf. 

28 Military Sex Offender Reporting Act of 2015 (Title V of the Justice for Victims of Trafficking Act 

of 2015), Pub. L. No. 114-22, § 502, 129 Stat. 227 (codified at 42 U.S.C. § 16928a).

29 Registered Sex Offender (RSO) Management in DoD, Dep’t of Defense Instruction 5525.20 

(November 14, 2016), http://www.dtic.mil/whs/directives/corres/pdf/552520_dodi_2016.pdf. This 

instruction repealed a memorandum previously issued in 2015: Registered Sex Offender (RSO) 

Identification, Notification, and Monitoring in DoD, Directive-Type Memorandum (DTM) 15-003 (March 

26, 2015), http://www.dtic.mil/whs/directives/corres/pdf/DTM15003.pdf.

30 See Army Regulation 190-45, § 2-7 (2007).

31 Registration of Sex Offenders on Army Installations (inside and outside the Continental United 

States), 32 C.F.R. § 635.6 (2015). Provost Marshal officials have also been directed to seek to establish 

Memoranda of Understanding with state and local sex offender registration officials to facilitate the flow of 

information regarding sex offenders (along with other criminal justice information). Establishing 

Memoranda of Understanding, 32 C.F.R. § 635.20 (2015); see also Army Regulation 27-10, §§ 24-1 to 24-

4 (May 11, 2016) (Registration of Military Sexual Offenders), 

http://www.apd.army.mil/Search/ePubsSearch/ePubsSearchDownloadPage.aspx?docID=0902c8518003514

c; 

Policy for Sex Offender Tracking, Assignment, and Installation Access Restrictions, CNIC Instruction 

1752.1 (Feb. 7, 2011),

http://www.cnic.navy.mil/content/dam/cnic/hq/pdfs/n93_housing/cnic_instructions/CNICINST%201752.1

%20Sex%20Offender%20Policy.pdf.

32 United States v. Kebodeaux, 133 S.Ct. 2496 (2013). 

33 Administration of Military Correctional Facilities and Clemency and Parole Authority, Dep’t of 

Defense Instruction 1325.07, Appx. 4 to Enc. 2 (March 11, 2013),

http://www.dtic.mil/whs/directives/corres/pdf/132507p.pdf. Although the United States Coast Guard is 

technically a part of the Department of Homeland Security, this Instruction also governs their proceedings. 

See Kebodeaux, 133 S.Ct. at 2496.
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34 Navy courts-martial results are available every month, and the most recent report can be found at 

http://www.navy.mil/submit/display.asp?story_id=95679 (June 2016). USMC courts-martial summaries 

are available by region and can be viewed at 

http://www.mciwest.marines.mil/StaffOffices/LegalServicesSupportSectionWest/CourtMartialResults.aspx

and 

http://www.mcieast.marines.mil/StaffOffices/LegalServicesSupportSectionEast/EasternRegionalTrialCoun

selOffice/CourtsMartialResults.aspx (courts-martial page does not appear to be populated at the time of 

publication); a summary version is available on a monthly basis for all courts-martial, the latest being from 

April 2016, at http://www.marines.mil/Portals/61/Docs/CourtsMartial201604.pdf. Recent monthly 

summary of Air Force Courts-Martial can be found at 

http://www.afjag.af.mil/Portals/77/documents/Jun16_Results.pdf?ver=2016-08-30-113200-147. 

35 Antonieto Rico, Army to Discharge Convicted Sex Offenders, MILITARY TIMES (Nov. 20, 2013), 

https://web.archive.org/web/20131127165311/http://www.militarytimes.com/article/20131120/NEWS/311

200024/Army-discharge-convicted-sex-offenders. 

36 Billingsley v. Alabama, 2012 Ala. Crim. App. LEXIS 112 (Ala. Crim. App. 2012).

37 Doe v. Sex Offender Registry Board, 23 N.E.3d 938 (Mass. 2015).

38 Withheld adjudications have been held to require registration under SORNA. See United States v. 

Bridges, 901 F. Supp. 2d 677 (W.D. Va. 2012), aff’d, 741 F.3d 464 (4th Cir. 2014) (withheld adjudication in 

Florida registerable under SORNA); Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013) (“suspended imposition 

of sentence” is a ‘conviction’ under SORNA). In some jurisdictions, registration is required when a person 

has been civilly committed, received a withheld adjudication, found ‘Not Guilty by Reason of Insanity’ or 

incompetent to stand trial, or when ordered to register by a probation officer. See Mayo v. People, 181 P.3d 

1207 (Colo. App. 2008) (civil commitment triggered requirement to register); Price v. State, 43 So.3d 854 

(Fla. Dist. Ct. App. 2010) (withheld adjudication); State v. Cardona, 986 N.E.2d 66 (Ill. 2013) (a finding of 

‘not not guilty’ for an incompetent defendant sufficient to require registration); State v. Olsson, 958 N.E.2d 

356 (Ill. App. Ct. 2011) (defendant found incompetent to stand trial was required to register); In re

Kasckarow, 936 N.Y.S.2d 498 (N.Y. Sup. Ct. 2013) (nolo contendere plea and withheld adjudication in 

Florida registerable in New York); Walters v. Cooper, 739 S.E.2d 185 (N.C. Ct. App.), aff’d, 748 S.E.2d 144 

(N.C. 2013) (‘Prayer for Judgment Continued’ on a charge of sexual battery is a final conviction triggering 

requirement to register). But see United States v. Moore, 449 Fed. Appx. 677 (9th Cir. 2011) (probation 

condition under SORNA requiring registration for a tier I offender more than 15 years after the conviction 

was invalid). In addition, some jurisdictions require registration even if an offender has been pardoned of 

the underlying offense, In re Edwards, 720 S.E.2d 462 (S.C. 2011), had their underlying complaint dismissed 

and pleas vacated under a special statutory procedure, People v. Hamdon, 225 Cal. App. 4th 1065 (2014) 

(procedure under California Penal Code 1203.4a), Witten v. State, 145 So. 3d 625 (Miss. 2014) (procedure 

under California Penal Code 1203.4a), had their conviction for a sex offense vacated on double jeopardy 

grounds, Montoya v. Driggers, 320 P.3d 987 (N.M. 2014), and in some jurisdictions an offender can remain 

on the public registry website even if that offender no longer has any meaningful ties to the jurisdiction, Doe 

v. O’Donnell, 924 N.Y.S.2d 684 (N.Y. App. Div. 2011). But see Stallworth v. Mississippi, 160 So.3d 1161 

(Miss. 2015) (expungement of underlying conviction from Maryland entitles the defendant to relief from 

registration responsibilities in Mississippi).

39 For example, Montana’s Violent Offender registry (http://svcalt.mt.gov/svor/search.asp) is displayed 

together with its sex offender registry information. See Mont. Code § 46-23-502(13) (definition of ‘violent 

offense’). Other states have registries for other kinds of offenses. See In re M.A., 43 N.E.3d 86 (Ill. 2015) 

(13 year-old added to Illinois’ ‘Murderer and Violent Offender Against Youth’ registry); State v. Brown, 301 

P.3d 789 (Kan. Ct. App. 2013) (describing Kansas’ drug offense registry); Thomas Croci, First State 

Terrorist Registry in the Nation, NEW YORK STATE SENATE (June 15, 2016), 

https://www.nysenate.gov/newsroom/press-releases/thomas-d-croci/first-state-terrorist-registry-nation, 

State v. Galloway, 50 N.E.3d 1001 (Ohio Ct. App. 2015) (discussing Ohio’s Arson registry); Tennessee 

Animal Abuse Registry, TENNESSEE BUREAU OF INVESTIGATION, https://www.tn.gov/tbi/topic/tennesseeanimal-abuse-registry; Alex Byrd, Officials Target Abuse Recidivism, LONGVIEW NEWS-JOURNAL (Oct. 11, 

2014), available at http://www.news-journal.com/news/2014/oct/11/officials-target-abuse-recidivism 

(Texas establishes domestic violence registry); Ben Winslow, Governor Signs More Bills into Law, Including 

‘White Collar Crime Registry’, FOX 13 NOW (March 24, 2015), available at 

http://fox13now.com/2015/03/24/governor-signs-more-bills-into-law-including-white-collar-crime-registry/

(Utah). 
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40 42 U.S.C. § 16911(1). The bulk of these cases have been appeals of convictions under 18 U.S.C. § 

2250 and interpret the “initial registration” requirement contained in 42 U.S.C. § 16913. See Carr v. United 

States, 560 U.S. 438 (2010).

41 “Sex Offense” is defined in 42 U.S.C. § 16911(5)(A). For guidance on which persons convicted of 

UCMJ offenses are required to register, see United States v. Jones, 383 Fed. Appx. 885 (11th Cir. 2010) and 

Dep’t of Defense Instruction 1325.07, supra n. 33.

42 42 U.S.C. § 16911(5)(B). See McCarty v. Roos, 2014 U.S. Dist. LEXIS 48363 (D. Nev., Apr. 8 

2014) (describing the standard for registering a Japanese conviction under SORNA); Board of Examiners v. 

D’Agostino, 2015 N.Y. App. Div. LEXIS 5735 (July 2, 2015) (Cambodian conviction registerable in New 

York). 

43 In other words, there will be situations where SORNA imposes a registration requirement directly 

on an offender, but the jurisdiction where that offender lives, works or attends school refuses to register him, 

because the jurisdiction’s laws do not require registration for the offense of conviction. See Dep’t of Pub. 

Safety v. Doe, 94 A.3d 791 (Md. 2014) (State is not required to register an offender if the state’s laws do not 

require it).

44 Doe v. Toelke, 389 S.W.3d 165 (Mo. 2012) (“the [state] registration requirements apply to any 

person who ‘has been’ required to register as a sex offender pursuant to federal law. Consequently, even if 

Doe presently is not required to register pursuant to SORNA, he ‘has been’ required to register as a sex 

offender and, therefore, is required to register [with the state].”) (offender convicted in 1983 required to 

register, even though Missouri law only requires registration of persons convicted on or after January 1, 

1995).

45 Oulman v. Setter, 2014 Minn. App. Unpub. LEXIS 842 (Aug. 4, 2014) (Colorado registration 

requirements imposed on offender who relocated to Minnesota).

46 See Rainer v. State, 690 S.E.2d 827 (Ga. 2010) (non-parental false imprisonment is registerable), 

Moffitt v. Commonwealth, 360 S.W.3d 247 (Ky. Ct. App. 2012) (citing the legislative history of the 

Wetterling Act to support registration for kidnapping); People v. Knox, 903 N.E.2d 1149 (N.Y. 2009) (nonparental kidnapping and unlawful imprisonment is registerable); State v. Smith, 780 N.W.2d 90 (Wisc. 2010) 

(non-parental false imprisonment is registerable).

47 State v. Norman, 824 N.W.2d 739 (Neb. 2013).

48 In re K.B., 285 P.3d 389 (Kan. Ct. App. 2012).

49 See Doe v. Board, 925 N.E.2d 533 (Mass. 2010) (Maine conviction for unlawful sexual contact 

registerable in Massachusetts); Skaggs v. Neb. State Patrol, 804 N.W.2d 611 (Neb. 2011) (California 

conviction registerable in Nebraska); Lozada v. South Carolina Law Enforcement Division, 719 S.E.2d 258 

(S.C. 2011) (Pennsylvania conviction for unlawful restraint registerable as kidnapping in South Carolina); In 

re Shaquille O’Neal B., 684 S.E.2d 549 (S.C. 2009) (North Carolina juvenile adjudication for ‘indecent 

liberties between children’ registerable in South Carolina); State v. Harbin, 2014 Tenn. Crim. App. LEXIS 

959 (Oct. 15, 2014) (Michigan conviction for criminal sexual conduct registerable in Tennessee); Scott v. 

State, 2014 Tex. App. LEXIS 11410 (Oct. 16, 2014) (Illinois conviction for criminal sexual assault 

registerable in Texas). But see People v. Brooks, 296 P.3d 216 (Co. 2012) (Texas conviction not registerable 

in Colorado); Sharma v. State, 670 S.E.2d 494 (Ga. Ct. App. 2008) (Texas conviction not registerable in 

Georgia); State v. Frederick, 251 P.3d 48 (Kan. 2011) (Minnesota adjudication for criminal sexual conduct 

not registerable in Kansas because it is not a ‘conviction’ under Kansas law); Doe v. Sex Offender Registry 

Board, 11 N.E.3d 153 (Mass. App. Ct. 2014) (federal conviction for Kidnapping of a minor not registerable 

in Massachusetts), State v. Orr, 304 P.3d 449 (N.M. Ct. App. 2013) (conviction for ‘taking indecent liberties 

with children’ in North Carolina not registerable in New Mexico); State v. Hall, 294 P.3d 1235 (N.M. 2013) 

(California conviction for ‘annoying or molesting children’ not registerable in New Mexico without evidence 

of actual conduct comparable to New Mexico offense, regardless of the elements of the offense); Dep’t Pub. 

Safety v. Anonymous, 382 S.W.3d 531 (Tex. App. 2012) (Massachusetts conviction for indecent assault and 

battery not registerable in Texas); Ex parte Harbin, 297 S.W.3d 283 (Tex. Crim. App. 2009) (California 

conviction for ‘annoying or molesting a child’ not registerable in Texas); State v. Howe, 212 P.3d 565 (Wash. 

2009) (California conviction for ‘lewd acts upon a child’ not registerable in Washington); State v. Werneth, 

197 P.3d 1195 (Wash. Ct. App. 2008) (Georgia conviction for child molestation not registerable in 

Washington State).

50 See Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95 (3d Cir. 2008) (Pennsylvania’s disparate treatment 

of in-state and out-of-state offenders violated the Equal Protection Clause of the 14th Amendment).

51 Tenn. Att’y Gen. Op. 09-01, 2009 Tenn. AG LEXIS 1 (Jan 8, 2009).
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52 See United States v. Schofield, 802 F.3d 722 (5th Cir. 2015) (18 USC § 1470 registerable under 

SORNA, even though it is not listed); United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (same); United 

States v. Hahn, 551 F. 3d 977 (10th Cir. 2008) (probation conditions properly required registration in a fraud 

case when there was a prior state conviction for a sex offense); United States v. Byun, 539 F.3d 982 (9th Cir. 

2008) (conviction for alien smuggling which had underlying facts of sex trafficking properly triggered 

registration); United States v. Jensen, 278 Fed. Appx. 548 (6th Cir. 2008) (Conspiracy to Commit Sexual 

Abuse is a registerable offense). But see United States v. Jimenez, 275 Fed. Appx. 433 (5th Cir. 2008) (where 

only evidence of sexual misconduct was three unsubstantiated police reports, registration requirement was 

inappropriate); State v. Coman, 273 P.3d 701 (Kan. 2012) (bestiality is not a registerable offense); State v. 

Haynes, 760 N.W.2d 283 (Mich. App. 2008) (bestiality not registerable). 

53 See, e.g., Commonwealth v. Sampolski, 89 A.3d 1287 (Pa. Super. Ct. 2014) (looking to the elements 

of the offense), Doe v. Sex Offender Registry Bd., 925 N.E.2d 533 (Mass. 2010) (may not consider facts 

underlying the conviction).

54 See, e.g., State v. Duran, 967 A.2d 184 (Md. 2009) (determining that Indecent Exposure was not 

registerable because the lewdness element of the crime incorporated conduct that was not sexual in addition 

to that which could be sexual). 

55 Ward v. State, 288 P.3d 94 (Alaska 2012). SORNA’s provisions for enhanced tiering of recidivists 

are found in 42 U.S.C. § 16911(3)(C) & § 16911(4)(C).

56 SORNA’s minimum standards require that jurisdictions register juveniles who were at least 14 years 

old at the time of the offense and who have been adjudicated delinquent for committing (or attempting or 

conspiring to commit) a sexual act with another by force, by the threat of serious violence, or by rendering 

unconscious or drugging the victim. “Sexual Act” is defined in 18 U.S.C. § 2246. 

57 The Supplemental Guidelines (2011) give jurisdictions full discretion over whether they will post 

information about juveniles adjudicated delinquent of sex offenses on their public registry website. 

Supplemental Guidelines, supra note 8 at 1636-37.

58 Juvenile Supplemental Guidelines, supra n. 8, available at https://www.gpo.gov/fdsys/pkg/FR2016-08-01/pdf/2016-18106.pdf.

59 SMARTWATCH DISPATCH, Juvenile Registration and SORNA (Sept. 2016), 

http://www.smart.gov/pdfs/juvenile-dispatch-final-2016.pdf.

60 A survey of the varying juvenile registration responsibilities imposed by each state can be found in 

A Snapshot of Juvenile Registration and Notification Laws: A Survey of the United States (2011), 

http://www.njjn.org/uploads/digital-library/SNAPSHOT_web10-28.pdf. 

61 See, e.g., Clark v. State, 957 A.2d 1 (Del. 2008) (lifetime registration requirement for juvenile was 

not contravened by requirement to consider the ‘best interests of the child’ in fashioning a disposition). Some 

states go beyond SORNA’s requirements. See, e.g., State v. I.C.S., 145 So.3d 350 (La. 2014) (defendants 

who committed sex offenses prior to age 14, were not transferrable to adult court at that age, and whose 

offenses did not require registration upon a juvenile adjudication of delinquency, were prosecuted in adult 

court in their twenties for those offenses and required to register); In re J.L., 800 N.W.2d 720 (S.D. 2011) 

(14 year-old boy adjudicated delinquent for consensual sex with his 12 year-old girlfriend was ordered to 

register for life).

62 See, e.g., N.V. v. State, 2008 Ark. App. LEXIS 207 (March 5, 2008) (due process hearing required 

prior to juvenile being required to register); N.L. v. State, 989 N.E.2d 773 (Ind. 2013) (adjudicated juvenile 

may only be required to register after an evidentiary hearing, using the ‘clear and convincing’ standard). For 

a complete summary of the juvenile registration schemes across the United States, see SMART SUMMARY:

PROSECUTION, TRANSFER, AND REGISTRATION OF SERIOUS JUVENILE SEX OFFENDERS (2015),

http://www.smart.gov/pdfs/SMARTSummary.pdf. 

63 State v. I.C.S., supra n. 61.

64 United States v. Shannon, 511 Fed. Appx. 487 (6th Cir. 2013) (Ohio adjudication for Gross Sexual 

Imposition triggered registration condition in subsequent sentencing for possession of a firearm by a felon).

65 See, e.g., In re Crockett, 159 Cal. App. 4th 751 (Cal. Ct. App. 2008) (juvenile adjudicated delinquent 

of sex offense in Texas was not required to register when he moved to California); Murphy v. 

Commonwealth, 2015 Ky. App. Unpub. LEXIS 275 (Apr. 24, 2015) (juvenile adjudicated delinquent in 

Michigan required to register in Kentucky, even though Kentucky-adjudicated juveniles are not required to 

register); Smith v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 728 (Sept. 12, 2014) (Illinois-adjudicated 

offender required to register in Kentucky because he was required to register in Illinois). Nebraska also only 

requires registration for a juvenile adjudication of delinquency for a sex offense when the offender is 
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convicted outside of Nebraska and has a registration requirement imposed by another state. See Nebraska 

Sex Offender Registry: FAQ’s, https://sor.nebraska.gov/FAQ (last visited September 14, 2016). But see A.W. 

v. Peterson, 2016 U.S. Dist. LEXIS 36077 (D. Neb. March 21, 2016) (interpreting Nebraska’s statutes and 

regulations governing sex offender registration to not require registration for a juvenile residing in Nebraska 

who was adjudicated delinquent of a sex offense which required them to register in Minnesota). 

66 See In re Z.B., 757 N.W.2d 595 (S.D. 2008) (treating juvenile sex offenders convicted of the same 

crimes as adult sex offenders differently and more harshly than the adult sex offenders served no rational 

purpose and violated the Equal Protection Clause of the 14th Amendment); cf. In re C.P.T., 2008 Minn. App. 

Unpub. LEXIS 929 (Aug. 5, 2008) (lifetime registration requirement for juveniles does not violate due 

process). 

67 In re C.P., 967 N.E.2d 729 (Ohio 2012) (due process and the prohibition against cruel and unusual 

punishment); In re J.B., 107 A.3d 1 (Pa. 2014) (procedural due process). Other courts have held that

registration requirements as applied to juveniles adjudicated delinquent of a sex offense does not violate the 

8

th Amendment. United States v. Under Seal, 709 F.3d 257 (4th Cir. 2013) (military conviction); People v. 

J.O., 2015 Colo. App. LEXIS 1319 (Aug. 27, 2015); see also In re Justin B., 747 S.E.2d 774 (S.C. 2013) 

(lifetime GPS monitoring of a juvenile adjudicated delinquent of a sex offense does not violate the 8th

Amendment).

68 Illinois ex. rel. Birkett v. Konetski, 909 N.E.2d 783 (Ill. 2009).

69 In 2010 the U.S. Supreme Court granted certiorari in a case where the Ninth Circuit had held that 

the juvenile registration provisions of SORNA were unconstitutional when applied retroactively. United 

States v. Juvenile Male, 581 F.3d 977 (2009), vacated and remanded, 131 S. Ct. 2860 (2011), appeal 

dismissed as moot, 653 F.3d 1081 (9th Cir. 2011). In its decision, however, the Supreme Court did not in 

any way address the question of the constitutionality of the retroactive application of SORNA’s requirement 

that certain adjudicated juveniles register as sex offenders.

70 United States v. Under Seal, 709 F.3d 257 (4th Cir. 2013) (military conviction); United States v. 

Juvenile Male, 670 F.3d 999 (9th Cir. 2012). The Federal Juvenile Delinquency Act is found at 18 U.S.C. §

5031, et seq.

71 SORNA requires that jurisdictions register offenders whose “predicate convictions predate the 

enactment of SORNA or the implementation of SORNA in the jurisdiction” when an offender is: 

(1) incarcerated or under supervision, either for the predicate sex offense or for some other crime;

(2) already registered or subject to a pre-existing sex offender registration requirement under the 

jurisdiction’s law; or

(3) reenter the jurisdiction’s justice system because of a subsequent felony conviction.

Final Guidelines, supra n. 8, at 38046; Supplemental Guidelines, supra n. 8, at 1639.

72 Smith v. Doe, 538 U.S. 1009 (2003). 

73 Id.

74 See, e.g., Jensen v. State, 905 N.E.2d 384 (Ind. 2009) (person convicted after the initial passage of 

the law could be required to comply with amended requirements).

75 Doe v. Snyder, 834 F.3d 696 (6th Cir. 2016), reh’g denied, 2016 U.S. App. LEXIS 17571 (Sept. 15, 

2016).

76 See United States v. Kebodeaux, 133 S.Ct. 2496 (2013) (assuming without deciding that Congress 

did not violate the Ex Post Facto clause in enacting SORNA’s registration requirements); United States v. 

Juvenile Male, 131 S.Ct. 2860 (2011) (declining to address whether SORNA’s requirements violated the Ex 

Post Facto clause on grounds of mootness); Carr v. United States, 560 U.S. 438 (2010) (declining to address 

the issue of whether SORNA violates the Ex Post Facto clause).

77 Doe v. State, 189 P.3d 999 (Alaska 2008); Wallace v. State, 905 N.E.2d 371 (Ind. 2009); Maine v. 

Letalien, 985 A.2d 4 (Me. 2009); Doe v. Dep’t of Pub. Safety & Corr. Servs., 40 A.3d 39 (Md. 2013); State 

v. Williams, 952 N.E.2d 1108 (Ohio 2011); Starkey v. Okla. Dep’t of Corr., 305 P.3d 1004 (Okla. 2013) 

(detailing all case law from state courts regarding retroactive application of sex offender registration and 

notification statutes). One additional case along these lines, Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006), 

has subsequently been rendered moot, Doe v. Keathley, 2009 Mo. App. LEXIS 4 (Jan. 6, 2009). 

78 The New Hampshire Supreme Court held that requiring lifetime registration without the opportunity 

for review violates the Ex Post Facto provisions of the state’s constitution. Doe v. State, 111 A.3d 1077 (N.H. 

2015) (registration requirements can only be applied to the petitioner if he is “promptly given an opportunity 
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for either a court hearing, or an administrative hearing subject to judicial review, at which he is permitted to 

demonstrate that he no longer poses a risk sufficient to justify continued registration....[and] must be afforded 

periodic opportunities for further hearings, at reasonable intervals, to revisit whether registration continues 

to be necessary to protect the public”). In Pennsylvania, the retroactive application of a requirement to appear 

in-person to update any changes to an offender’s registration information was held to violate the Ex Post 

Facto clause. Cappolino v. Commisioner, 102 A.3d 1254 (Pa. Commw. Ct. 2014). But see Commonwealth 

v. Perez, 97 A.3d 747 (Pa. Super. Ct. 2014) (retroactive application of new registration scheme did not violate 

the Ex Post Facto clause).

79 Doe v. Thompson, 373 P.3d 750 (Kan. 2016) (registration system is punitive); State v. Buser, 371 

P.3d 886 (Kan. 2016) (same); State v. Redmond, 371 P.3d 900 (Kan. 2016) (same). But see State v. PetersenBeard, 304 Kan. 192 (2016) (registration system does not violate the Ex Post Facto clause).

80 See, e.g., Shaw v. United States, 2016 U.S. App. LEXIS 9047 (10th Cir., May 18, 2016); State v. 

Henry, 228 P.3d 900 (Ariz. Ct. App. 2010); Buffington v. State, 2008 Ark. LEXIS 71 (Jan. 31, 2008); 

Finnicum v. State, 673 S.E.2d 604 (Ga. 2009); State v. Yeoman, 236 P.3d 1265 (Idaho 2010); Illinois ex. rel.

Birkett v. Konetski, 909 N.E.2d 783 (Ill. 2009); In re Nick. H., 123 A.3d 229 (Md. 2015); State v. Tucker, 

879 N.W.2d 906 (Mich. Ct. App. 2015); State v. Hunt, 2014 N.J. Super. Unpub. LEXIS 1424 (June 17, 2014);

Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013); Kammerer v. State, 322 P.3d 827 (Wyo. 2014). In 

addition, one federal circuit concluded that retroactive application of New York’s registration amendments 

to an offender did not violate the Ex Post Facto clause. Doe v. Cuomo, 755 F.3d 105 (2d Cir. 2014). 

81 State v. Zerbe, 50 N.E.3d 368 (Ind. 2016).

82 Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. 2014) (defendant entitled to specific performance 

of his plea agreement, a component of whose negotiation was that he would not be required to register as a 

sex offender). But see Commonwealth v. Giannatonio, 114 A.3d 429 (Pa. Super. Ct. 2015) (extension of state 

duration of registration period did not violate Ex Post Facto when conviction secured pursuant to federal plea 

agreement).

83 Doe v. Harris, 302 P.3d 598 (Cal. 2013).

84 ACLU v. Masto, 2:08-cv-00822-JCM-PAL (D. Nev., Oct. 7, 2008). 

85 ACLU v. Masto, 670 F.3d 1046 (9th Cir. 2012). The Nevada Supreme Court also held that 

retroactive application of registration and notification requirements to juveniles adjudicated delinquent does 

not violate Due Process or the Ex Post Facto clause. State v. Eighth Jud. Dist. Ct., 306 P.3d 369 (Nev. 2013); 

injunction dissolved, S.M. v. State, 2015 Nev. Unpub. LEXIS 131 (Feb. 6, 2015). 

86 Sandra Chereb, Nevada Supreme Court Stops Sex Offender Law from Being Implemented, LAS 

VEGAS REVIEW JOURNAL (July 1, 2016), http://www.reviewjournal.com/news/nevada/nevada-supremecourt-stops-sex-offender-law-being-implemented; Sandra Chereb, Nevada to Add Hundreds to Sex Offender 

Registry, LAS VEGAS REVIEW JOURNAL (June 3, 2016), http://www.reviewjournal.com/crime/nevada-addhundreds-sex-offender-registry. 

87 McCraw v. Gomez, 2014 Tex. App. LEXIS 13911 (1st Dist., Dec. 30, 2014).

88 State v. Jedlicka, 747 N.W.2d 580 (Minn. App. 2008); see also Flanders v. State, 955 N.E.2d 732 

(Ind. App. 2011).

89 Buck v. Commonwealth, 308 S.W.3d 661 (Ky. 2010).

90

 See the procedure followed in Massachusetts, where the Sex Offender Registry Board must find that 

the offender poses a danger to the community before requiring registration: 803 CMR 106(B), available at

http://www.mass.gov/eopss/docs/sorb/sor-regulations.pdf. In Doe v. Sex Offender Registry Board, 41 

N.E.3d 1058 (Mass. 2015), the court held that the burden of proof for classification was no longer by a 

‘preponderance of the evidence’ but was constitutionally required to be by the higher standard of ‘clear and

convincing evidence’. 

91 Moe v. Sex Offender Registry Board, 6 N.E.3d 530 (Mass. 2014).

92 Doe v. Anderson, 108 A.3d 378 (Me. 2015) (holding, in part, that a guilty plea is not a ‘criminal 

trial’). But see Bell v. Pennsylvania Board of Probation & Parole, 2014 Pa. Commw. Unpub. LEXIS 460 

(July 24, 2014).

93 Doe v. Prosecutor, Marion County, 705 F.3d 694 (7th Cir. 2013) (statute prohibiting sex offenders 

from using social networking websites, instant messaging services, and chat programs violated the First 

Amendment); Doe v. State, 898 F.Supp.2d 1086 (D. Ne. 2012) (requirement to provide internet identifiers 

found unconstitutional on First Amendment and other grounds); Doe v. Shurtleff, 2008 U.S. Dist. LEXIS 

73787 (D. Utah Sept. 25, 2008), vacated after legislative changes, 2009 U.S. Dist. LEXIS 73955 (D. Utah 

Aug. 20, 2009); Harris v. State, 985 N.E.2d 767 (Ind. Ct. App. 2013) (statute prohibiting use of a social 
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networking site by a registered sex offender violated the First Amendment). Contra State v. Packingham, 

777 S.E.2d 738 (N.C. 2015), pet’n for cert. granted, 2016 U.S. LEXIS 6404 (Oct. 28, 2016) (prosecution 

for having a Facebook page when it is banned by state law is permissible).

94 Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011).

95 State v. Briggs, 199 P.3d 935 (Utah 2008) (‘target’ information could include, among other things, 

a description of the offender’s preferred victim demographics).

96 Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011).

97 Doe v. Jindal, 851 F. Supp.2d 995 (E.D. La. 2012).

98 Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008).

99 Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008).

100 State v. Dipiazza, 778 N.W.2d 264 (Mich. Ct. App. 2009).

101 Doe v. Keathley, 2009 Mo. App. LEXIS 4 (Jan. 6, 2009). But see State v. Hough, 978 N.E.2d 505 

(Ind. Ct. App. 2012); Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012) (stating without deciding that 

the federal duty to register could apply if the offender engaged in interstate travel).

102 In re McClain, 741 S.E.2d 893 (N.C. 2013) (North Carolina’s registration law directly incorporates 

the clean record provisions of SORNA); see In re Hall, 768 S.E.2d 39 (N.C. Ct. App. 2014) (using SORNA’s 

tiering structure).

103 State v. Nieman, 84 A.3d 603 (Pa. 2013).

104 530 U.S. 466 (2000). 

105 See People v. Mosley, 344 P.3d 788 (Cal. 2015) (residency restrictions are not ‘punishment’ for the 

purposes of Sixth Amendment analysis); Colorado v. Rowland, 207 P.3d 890 (Colo. Ct. App. 2009); State v. 

Meredith, 2008 Minn. App. Unpub. LEXIS 324 (April 8, 2008).

106 The American Bar Association’s Collateral Consequences Project, 

http://www.abacollateralconsequences.org, has produced a standing resource which lists all collateral 

consequences which flow at the federal and state level for convictions of certain crimes. Users may select 

‘sex offenses’ as a search term and view all of the collateral consequences which may be imposed on persons 

so convicted.

107 See United States v. Cottle, 355 Fed. Appx. 18 (6th Cir. 2009); Mireles v. Bell, 2008 U.S. Dist. 

LEXIS 2451 (D. Mich. Jan. 11, 2008); State v. Flowers, 249 P.3d 367 (Idaho 2011); Magyar v. State, 18 

So.3d 807 (Miss. 2009) (citing thorough collection of controlling case law across the country); People v. 

Gravino, 928 N.E.2d 1048 (N.Y. 2010) (guilty plea); State v. Nash, 48 A.D.3d 837 (N.Y. App. Div. 3d Dep’t 

2008); see also United States v. Molina, 68 M.J. 532 (U.S.C.G. CCA 2009) (mutual misunderstanding of 

registration requirement was grounds for withdrawing a guilty plea entered pursuant to a plea agreement); 

State v. Bowles, 89 A.D.3d 171 (N.Y. App. Div. 2011) (offender has the right to the effective assistance of 

counsel in a risk level assessment (SORA) hearing).

108 United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (substantial basis to question the providence of 

guilty plea when the judge failed to ensure that the defendant understood the registration requirements 

associated with a plea of guilty). The Riley decision was clarified in United States v. Talkington, 73 M.J. 212 

(2014) as applying only to considerations raised by the Padilla case and its progeny regarding the 

voluntariness of guilty pleas, and is further clarified in Washington v. United States, 74 M.J. 560 (A.C.C.A. 

2014), as not applying retroactively.

109 United States v. Rose, 2010 CCA LEXIS 251 (A.F. Ct. Crim. App. June 11, 2010). Contra Edmonds 

v. Pruett, 2014 U.S. Dist. LEXIS 116736 (E.D. Va. Aug. 20, 2014).

110 People v. Fonville, 804 N.W.2d 878 (Mich. Ct. App. 2011).

111 People v. Armstrong, 50 N.E.3d 745 (App. Ct. Ill. 2016).

112 559 U.S. 356 (2010).

113 Id.

114 Rodriguez-Moreno v. Oregon, 2011 U.S. Dist. LEXIS 151123 (D. Or. Nov. 15, 2011) (failure to 

advise of registration requirements is not ineffective assistance of counsel); Embry v. Commonwealth, 476 

S.W.3d 264 (Ky. 2015); People v. Cowart, 28 N.E.3d 862 (Ill. App. 2015) (trial court failure to admonish 

regarding registration requirements is not constitutionally deficient). Contra Taylor v. State, 698 S.E.2d 384 

(Ga. Ct. App. 2010); People v. Dodds, 7 N.E.3d 83 (Ill. Ct. App. 2014); People v. Fonville, 804 N.W.2d 878 

(Mich. Ct. App. 2011); State v. Trotter, 330 P.3d 1267 (Utah 2014).

115 Chaidez v. United States, 133 S.Ct. 1103 (2013).

116 132 S.Ct. 2566 (2012).

117 133 S.Ct. 1863 (2013).
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118 See United States v. White, 782 F.3d 1118 (10th Cir. 2015) (unsuccessful argument under Sebelius);

United States v. Anderson, 771 F.3d 1064 (8th Cir. 2014) (same); United States v. Rivers, 588 F. App’x 905 

(11th Cir. 2014) (same); United States v. Robbins, 729 F.3d 131 (2d Cir. 2013) (same); United States v. 

Cabrera-Gutierrez, 756 F.3d 1125 (2013) (same); Chevron was discussed in United States v. Piper, 2013 U.S. 

Dist. LEXIS 113059 (D. Vt. Aug. 12, 2013) (successful argument under Chevron that the SORNA Final 

Guidelines must be followed in determining whether someone is required to register under SORNA).

119 Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013).

120 State v. Larson, 2008 Minn. App. Unpub. LEXIS 1525 (Dec. 30, 2008); State v. Sparks, 657 S.E. 

2d 655 (N.C. 2008); State v. Green, 230 P.3d 654 (Wash. App. 2010).

121 Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010) (defendant had a liberty interest in being free from 

registration requirements where he had not been convicted of a sex offense); State v. Arthur H., 953 A.2d 

630 (Conn. 2008) (no due process hearing required); Doe v. Dep’t of Public Safety, 971 A.2d 975 (Md. App. 

2009) (presumption of dangerousness flowing from a rape conviction was permissible); Smith v. 

Commonwealth, 743 S.E.2d 146 (Va. 2013).

122 Litmon v. Harris, 768 F.3d 1237 (9th Cir2014) (requiring sexually violent predators to check in every 

90 days did not violate substantive due process); Woe v. Spitzer, 571 F.Supp.2d 382 (E.D. N.Y. 2008) (when 

amended statute extended the registration period by ten years three days before petitioner’s registration 

requirement expired, there was no protected liberty interest).

123

 Doe v. Jindal, 2011 U.S. Dist. LEXIS 100408 (E.D. La., Sept. 7, 2011); State v. Dickerson, 97 A.3d 

15 (Conn. App. 2014). California has a long line of cases litigating equal protection issues in sex offender 

registration cases, based on People v. Hofsheier, 129 P.3d 29 (Cal. 2006), which was recently overruled in 

Johnson v. Cal. Dep’t of Justice, 341 P.3d 1075 (Cal. 2015). 

124 See Thomas v. United States, 942 A.2d 1180 (D.C. 2008) (underlying misdemeanor charges which 

required registration upon conviction were “petty” for purposes of the Sixth Amendment, and a jury trial was 

not required); In re Richard A., 946 A.2d 204 (R.I. 2008). But see Fushek v. State, 183 P.3d 536 (Ariz. 2008) 

(because of the seriousness of the consequences of being designated a sex offender, jury trial must be afforded 

when there is a special allegation of sexual motivation in a misdemeanor case).

125 Doe v. Jindal, 2015 U.S. Dist. LEXIS 155908 (E.D. La. Nov. 18, 2015); Washington v. Smith, 344 

P.3d 1244 (Wash. App. 2015).

126 People v. Nichols, 176 Cal. App. 4th 428 (3d Dist. 2009) (28 years to life sentence for failure to 

register under California’s three-strikes law did not violate the 8th Amendment); People v. T.D., 823 N.W.2d 

101 (Mich. 2011) (requiring a juvenile to register was not cruel and unusual punishment), dismissed as moot, 

821 N.W.2d 569 (Mich. 2012); State v. Blankenship, 48 N.E.3d 516 (Ohio 2015) (Tier II registration 

requirements for an offense committed when the offender was 21 and the victim was 15 is not cruel and 

unusual punishment). 

127 Rosin v. Monken, 599 F.3d 574 (7th Cir. 2010) (an offender convicted in New York was promised 

in his plea agreement that he would never have to register as a sex offender, but when he moved to Illinois 

and was required to register under its laws, it was not a violation of the Full Faith and Credit Clause); see 

Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App. 2012) (State unsuccessfully argued that the Full Faith and 

Credit clause should apply).

128 United States v. King, 431 Fed. Appx. 630 (10th Cir. 2011).

129 State v. Caton, 260 P.3d 946 (Wash. Ct. App. 2011), rev’d on other grounds, 273 P.3d 980 (Wash. 

2012).

130 Proponents of the sovereign citizen movement “believe they are not subject to federal or state 

statutes or proceedings, reject most forms of taxation as illegitimate, and place special significance on 

commercial law.” United States v. Harding, 2013 U.S. Dist. LEXIS 62471 (W.D. Va., May 1, 2013) (18 

U.S.C. § 2250 prosecution), quoting United States v. Brown, 669 F.3d 10 (1st Cir. 2012). In Harding the 

defendant argued that the federal court did not have jurisdiction over him, citing the Organic Act of 1871, 

the fact that his name was listed in all caps on the indictment, that there was no corpus delicti for the offense, 

and that the federal court was an ‘Admiralty Court’ because the flag in the courtroom had fringe on it. Id. at 

*3-*15.

131 131 S.Ct. 2355 (2011), on remand at 681 F.3d 149 (3d Cir. 2012), cert. granted on other grounds, 

133 S.Ct. 978 (2013). Thus far, Tenth Amendment challenges raised under Bond have been unsuccessful. 

See United States v. Kidd, 2013 U.S. App. LEXIS 5032 (6th Cir., Mar. 11, 2013); United States v. Smith, 504 

Fed. Appx. 519 (8th Cir. 2012).

132 See United States v. Reynolds, 132 S.Ct. 975 (2012).
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133 Doe v. Washington State Patrol, 374 P.3d 63 (Wash. 2016) (records requested via Washington’s 

Public Records Act).

134 See United States v. Ogburn, 590 Fed. Appx. 683 (9th Cir. 2015); State v. Cook, 187 P.3d 1283 

(Kan. 2008); Longoria v. State, 749 N.W.2d 104 (Minn. App. 2008). 

135 In re C.P.W., 213 P.3d 413 (Kan. 2009); People v. Haddock, 852 N.Y.S.2d 441 (N.Y. App. Div. 

2008); State v. Vick, 2010 Wash. App. LEXIS 2462 (Nov. 2, 2010).

136 Christie v. State, 2008 Ark. App. LEXIS 10 (Jan. 9, 2008); State v. T.R.D., 942 A.2d 1000 (Conn. 

2008).

137 Petway v. State, 661 S.E.2d 667 (Ga. App. 2008) (pre-release notice of registration requirements is 

not a prerequisite to the obligation to register); Barrientos v. State, 2013 Tex. App. LEXIS 7712 (June 24, 

2013) (primarily Spanish-speaking defendant properly convicted even when all notices were in English and 

he claimed he did not understand his responsibilities).

138 See United States v. Leach, 2009 U.S. Dist. LEXIS 104703 (D. Ind. Nov. 6, 2009); United States v. 

Benevento, 633 F. Supp. 2d 1170 (D. Nev. 2009); State v. Bryant, 614 S.E.2d 479, 488 (N.C. 2005) (“the 

pervasiveness of sex offender registration programs [combined with additional factors in this case] certainly 

constitute circumstances which would lead the reasonable individual to inquire of a duty to register in any

state upon relocation”). North Carolina subsequently reinserted a mens rea requirement into its failure to 

register statute. 2006 N.C. Session Laws, ch. 247, codified at N.C. GEN. STAT. § 14-208.11.

139 State v. Binnarr, 733 S.E.2d 890 (S.C. 2012) (notice of changed registration responsibilities sought 

to be proven by way of an unreturned letter, without more, does not prove actual notice sufficient to prosecute 

for failure to register).

140 State v. White, 58 A.3d 643 (N.H. 2012) (defendant failed to report the creation of a MySpace 

account).

141 State v. Lee, 286 P.3d 537 (Idaho 2012).

142 State v. Peterson, 186 P.3d 1179 (Wash. App. 2008).

143 See, e.g., Cal. Penal Code § 3003.5 (2012); Idaho Code § 18-8329 (2012); 57 Okla. Stat. § 590 

(2012).

144 Doe v. Cooper, 2016 U.S. App. LEXIS 21412 (4th Cir. Nov. 30, 2016) (prohibition on being present 

at “any place where minors gather for regularly scheduled educational, recreational, or social programs” is 

impermissibly vague).

145 In re William Taylor, 343 P.3d 867 (Cal. 2015).

146 Doe v. City of Lynn, 36 N.E.3d 18 (Mass. 2015); G.H. v. Twp. of Galloway, 951 A.2d 221 (N.J. 

2008) (New Jersey law preempted municipal residency restrictions); People v. Diack, 26 N.E.3d 1151 (N.Y. 

2015) (New York law preempts local residency restriction provisions); People v. Oberlander, 880 N.Y.S.2d 

875 (N.Y. Sup. Ct. 2009) (Rockland County residency restriction preempted by New York state law); People 

v. Blair, 873 N.Y.S.2d 890 (Albany City Ct. 2009) (Albany County residency restriction preempted by New 

York state law). Contra United States v. King, 431 Fed. Appx. 630 (10th Cir. 2011) (Oklahoma’s residency 

restrictions did not present an obstacle to complying with federal sex offender registration requirements).

147 See Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009) (Kentucky’s residency restrictions 

exceeded the nonpunitive purpose of public safety and thus violated the Ex Post Facto clause); see also

Duarte v. City of Lewisville, 759 F.3d 514 (5th Cir. 2014) (standing granted in challenge to residence 

restrictions suit), all claims dismissed on remand, 136 F.Supp. 3d 752 (E.D. Tex. 2015). But see McAteer v. 

Riley, 2008 U.S. Dist. LEXIS 26209 (M.D. Ala. March 31, 2008) (“The court expresses no opinion today on 

whether McAteer could present evidence and arguments to establish by the clearest proof that the residency 

and employment restrictions violate the Ex Post Facto clause and leaves that question for another day”).

148 Doe v. Miami-Dade County, 838 F.3d 1050 (11th Cir. 2016).

149 State v. Stark, 802 N.W.2d 165 (S.D. 2011) (discussing state-level loitering and safety zone 

provisions).

150 Ryals v. City of Englewood, 2016 Colo. LEXIS 74 (Jan. 25, 2016).

151 http://www.smart.gov/pdfs/MTSOR_Code.pdf. 

152 For example, the Confederated Tribes of the Umatilla Indian Reservation (CTUIR) was one of the 

first tribes to implement SORNA, and met all of SORNA’s requirements in doing so, see the SMART 

Office’s Substantial Implementation Report at http://www.smart.gov/pdfs/sorna/ConfTribesUmatillaIndianReservation.pdf. CTUIR is located entirely within the State of Oregon, which falls short of 

many of SORNA’s provisions. Maxine Bernstein, Sex Offenders in Oregon: State Fails to Track Hundreds, 
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THE OREGONIAN (Oct. 2, 2013), available at http://www.oregonlive.com/sexoffenders/special-presentation/

(Oregon only posts 2.5% of its registered sex offenders on its public sex offender registry website).

153 See United States v. Nichols, 2014 U.S. Dist. LEXIS 118129 (D. S.D., Aug. 20, 2014) (tribes have 

the inherent power to exclude outsiders from their territory).

154 United States v. Bryant, 84 U.S.L.W. 4400 (2016). For previous cases holding that tribal court 

convictions could be used in subsequent federal prosecutions, see Kirkaldie v. United States, 21 F.Supp. 3d 

1100 (D. Mont. 2014) (domestic violence prosecution); United States v. First, 731 F.3d 998 (9th Cir. 2013) 

(admissible so long as the uncounseled conviction would not violate the U.S. Constitution) (possession of a 

firearm prosecution); United States v. Shavanaux, 647 F.3d 993 (11th Cir. 2011) (tribal court convictions 

that meet the due process requirements of the Indian Civil Rights Act (ICRA) may be admitted in subsequent 

federal prosecutions) (domestic violence prosecution); United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 

2011) (domestic violence prosecution). There are also cases that have interpreted the above decisions, see, 

e.g., United States v. Bundy, 966 F.Supp. 2d 1175 (D. N.M. 2013) (tribal conviction did not meet the 

Shavanaux test) (DUI prosecution).

155 State v. Atcitty, 215 P.3d 90 (N.M. 2009).

156 United States v. Begay, 622 F.3d 1187 (9th Cir. 2010), abrogated on other grounds, United States 

v. DeJarnette, 741 F.3d 971 (9th Cir. 2013).

157 State v. John, 308 P.3d 1208 (Ariz. Ct. App. 2013).

158 Supplemental Guidelines, supra note 8 at 1637-38.

159 United States v. Nichols, 775 F.3d 1225 (10th Cir. 2013) (holding that an offender could be 

prosecuted for relocating to the Philippines without notifying domestic registration officials), overruled, 

Nichols v. United States, 136 S.Ct. 1113 (2016). Contra United States v. Lunsford, 725 F.3d 859 (8th Cir. 

2013) (holding that an offender could not be prosecuted for relocating to the Philippines without notifying 

domestic registration officials).

160 Nichols v. United States, 136 S.Ct. 1113 (2016). 

161 International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through 

Advanced Notification of Traveling Sex Offenders, Pub. L. No. 114-119 (Feb. 8, 2016), available at 

https://www.congress.gov/114/bills/hr515/BILLS-114hr515enr.pdf. The passport marking provision has 

been unsuccessfully challenged in federal court. Doe v. Kerry, 2016 U.S. Dist. LEXIS 49912 (E.D. Cal., 

Apr. 13, 2016), motion to dismiss granted, 2016 U.S. Dist. LEXIS 130788 (Sept. 23, 2016). The State 

Department has enacted a rule to effect the passport marking provision, 81 Fed. Reg. 60,608 (Sept. 2, 2016), 

as corrected 81 Fed. Reg. 66,184 (Sept. 27, 2016). 

162 For more information about IML, see SMARTWatch Dispatch, International Megan’s Law (Feb. 

2016), http://www.smart.gov/pdfs/IML-Dispatch-2016.pdf. 

163 The Canadian Province of Alberta maintains a website listing high-risk sex offenders: 

www.solgps.alberta.ca/SAFE_COMMUNITIES/COMMUNITY_AWARENESS/SERIOUS_VIOLENT_O

FFENDERS/Pages/default.aspx, and Saskatchewan maintains a listing of certain high-risk offenders which 

includes information about certain sex offenders: https://www.saskatchewan.ca/residents/justice-crime-andthe-law/public-notification-of-high-risk-individuals. South Korea, http://www.sexoffender.go.kr, and the 

Province of Western Australia,

https://www.communityprotection.wa.gov.au, also have public websites where information about sex 

offenders is posted.

164 There is a disclosure scheme in place in the United Kingdom authorizing law enforcement to provide 

details of certain sex offenders, http://www.homeoffice.gov.uk/crime/child-sex-offender-disclosure.

165 Available at http://www.smart.gov/pdfs/global-survey-2016-final.pdf. In 2013, GAO did a full 

review of the Registered Sex Offender International Tracking System which was developed by a working 

group spearheaded by the SMART Office. GAO-13-200, REGISTERED SEX OFFENDERS: SHARING MORE 

INFORMATION WILL ENABLE FEDERAL AGENCIES TO IMPROVE NOTIFICATIONS OF SEX OFFENDERS’

INTERNATIONAL TRAVEL (2013), available at http://www.gao.gov/assets/660/652194.pdf.

166 The fact that a person has been convicted of a sex offense involving children can result in the 

revocation of a person’s Certified Shorthand Reporter’s License, Sonntag v. Stewart, 2015 Ill. App. LEXIS, 

919 (Dec. 11, 2015), or their Ham radio license, FCC Reverses ALJ’s Decision, Revokes Convicted Sex 

Offender’s Ham License, ARRL.ORG, http://www.arrl.org/news/fcc-reverses-alj-s-decision-revokesconvicted-sex-offender-s-amateur-radio-license (Nov. 13, 2014). In at least one state, there is a statutory

presumption against any registered sex offender being granted unsupervised visitation, custody, or residential 

placement of a child. 13 DEL. CODE ANN. § 724A.
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167 See BLACK’S LAW DICTIONARY (Abr. 6th ed., 1991) at p. 288.

168 Balentine v. Tremblay, 554 Fed. Appx. 58 (2d Cir. 2014).

169 Meyer v. Nat’l Tenant Network, Inc., 10 F.Supp. 3d 1096 (N.D. Cal. 2014).

170 Santos v. State, 668 S.E.2d 676 (Ga. 2008) (registration requirements unconstitutionally vague); 

Rodriguez v. Maryland, 108 A.3d 438 (Md. Ct. App. 2015) (weekly registration requirement for homeless 

offenders not unconstitutional); State v. Crofton, 2008 Wash. App. LEXIS 1283 (June 2, 2008) (weekly 

registration requirement for homeless offenders permissible).

171 See Beley v. City of Chicago, 2015 U.S. Dist. LEXIS 163919 (N.D. Ill., Dec. 27, 2015); Saiger v. 

City of Chicago, 2014 U.S. Dist. LEXIS 83206 (N.D. Ill., June 19, 2014) (permitting plaintiff’s Due Process 

claim to proceed); Derfus v. City of Chicago, 42 F.Supp. 3d 888 (N.D. Ill. 2014), mot’n for summary judg’t 

granted, 2015 U.S. Dist. LEXIS 44529 (N.D. Ill. April 6, 2015); People v. Wlecke, 6 N.E.3d 745 (Ill. Ct. 

App. 2014) (offender who lacked identification and was turned away from registering could not be convicted 

for failure to register).

172 See People v. Deluca, 176 Cal. Rptr. 3d 419 (Cal. App. 2d Dist. 2014) (even though shelter had 

limited hours, it counted as a ‘residence’ for the purposes of registration); State v. Allman, 321 P.3d 557 (Co. 

Ct. App. 2012) (offender used his car as a residence when working away from ‘home’ during the week, was 

a ‘residence’ for purposes of the statute); Branch v. State, 917 N.E.2d 1283 (Ind. Ct. App. 2009) (homeless 

defendant was successfully prosecuted for failure to register when he failed to inform authorities that he had 

left a shelter); Milliner v. State, 890 N.E.2d 789 (Ind. Ct. App. 2008) (offender kicked out of house by wife 

and staying with friends had to update his registration every time he moved); Tobar v. State, 284 S.W.3d 133 

(Ky. 2009) (when offender did not notify authorities of leaving homeless shelter, conviction for failure to 

register was proper); State v. Samples, 198 P.3d 803 (Mont. 2008) (when offender failed to notify authorities 

of leaving shelter, conviction was proper); Commonwealth v. Wilgus, 40 A.3d 1201 (Pa. Super. 2009) (where 

defendant was unable to rent a room at his intended residence he had a duty to inform registry officials of a 

change of address); Breeden v. State, 2008 Tex. App. LEXIS 2150 (March 26, 2008) (offender who moved 

out of hotel into car in parking lot of hotel properly convicted and sentenced to 55 years). But see

Commonwealth v. Bolling, 893 N.E.2d 371 (Mass. App. 2008) (offender did not need to update his address 

when he found a friend willing to take him in for a few days); State v. Dinkins, 810 N.W.2d 787 (Wis. 2012) 

(offender was charged with failure to register, prior to release from incarceration, for failure to provide a 

residence address, and this was not permissible).

173 Lamberty v. Delaware, 108 A.3d 1225 (Del. 2015).

174 United States v. Pendleton, 2009 U.S. Dist. LEXIS 85347 (D. Del. Sept. 18, 2009).

175 State v. Edwards, 87 A.3d 1144 (Conn. Ct. App. 2014).

176 Nikolaev v. State, 474 S.W.3d 711 (Tex. Ct. App. 2014).

177 42 U.S.C. § 13663; see also Denial of Admission and Termination of Assistance for Criminals and 

Alcohol Abusers, 24 C.F.R. § 982.553(a)(2) (2015); When Must I Prohibit Admission of Sex Offenders?, 24 

C.F.R. § 5.856 (2001); To What Criminal Records and Searches Does this Subpart Apply?, 24 C.F.R. § 5.901 

(2001); What Special Authority is there to Obtain Access to Sex Offender Registration Information?, 24 

C.F.R. § 5.905 (2001); Denial of Admission for Criminal Activity or Drug Abuse by Household Members 

(2001) 24 C.F.R. § 960.204(a)(4). HUD issued guidance in 2012 describing the duties of owners, agents, 

and public housing authorities with regards to admitting registered sex offenders. State Registered Lifetime 

Sex Offenders in Federally Assisted Housing, http://portal.hud.gov/hudportal/documents/huddoc?id=12-

28pihn12-11hsgn.pdf. This guidance was drafted in part as a response to an Inspector General’s report which 

had been issued in 2009. HUD SUBSIDIZED AN ESTIMATED 2,094 TO 3,046 HOUSEHOLDS THAT INCLUDED 

LIFETIME REGISTERED SEX OFFENDERS, AUDIT REP’T NO. 2009-KC-0001 (Aug. 14, 2009), 

https://www.hudoig.gov/sites/default/files/pdf/Internal/2009/ig0970001.pdf. 

178 ‘Section 8’ is the common shorthand reference to the housing assistance provisions contained in the 

United States Housing Act of 1937, ch. 896, Title I, § 8 (Sept. 1, 1937), as amended.

179 Miller v. McCormick, 605 F.Supp.2d 296 (D. Me. 2009). But see State Registered Lifetime 

Offenders in Federally Assisted Housing, UNITED STATES DEP’T OF HOUSING AND URBAN DEVELOPMENT, 

Notice PIH 2012-28/H 2012-11 (June 11, 2012), http://portal.hud.gov/hudportal/documents/huddoc?id=12-

28pihn12-11hsgn.pdf (persons that are a sex offender subject to a lifetime registration requirement who are 

wrongfully admitted to Section 8 housing are subject to termination procedures).

180 Johnson v. California, 2011 U.S. Dist. LEXIS 101623 (C.D. Cal. July 25, 2011).

181 Henley v. Housing Auth. of New Orleans, 2013 U.S. Dist. LEXIS 62255 (E.D. La. May 1, 2013).
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182 Struniak v. Lynch, 2016 U.S. Dist. LEXIS 11081 (E.D. Va. Jan. 29, 2016). For the full text of the 

requirement, see 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Interoffice Memorandum from Michael Aytes, Assoc. 

Dir. Of Domestic Operations, U.S. Citizenship & Immigration Servs. to Reg’l Dirs. et al. (July 28, 2006), 

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-

2008/2006/adamwalshact072806.pdf; see also Suhail v. United States Attorney General, 2015 U.S. Dist. 

LEXIS 152884 (E.D. Mich. Nov. 12, 2015); In re Aceijas-Quiroz, 26 I. & N. Dec. 294 (BIA 2014); In re

Introcaso, 2014 26 I. & N. 304 (BIA 2014).

183 Bushra v. Holder, 529 Fed. Appx. 659 (6th Cir. 2013) (conviction for failure to register is a crime 

involving moral turpitude). Contra Mohamed v. Holder, 769 F.3d 885 (4th Cir. 2014); Efange v. Holder, 642 

F.3d 918 (10th Cir. 2011); Plascencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008), overruled on other 

grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009).

184 Tristan v. State, 393 S.W. 3d 806 (Ct. App. Tex. 2012). Contra Dingman v. Cart Shield USA, LLC, 

2013 U.S. Dist. LEXIS 93551 (S.D. Fla., July 3, 2013) (failure to register not proven to involve a dishonest 

act or false statement).

185 Statute addressed in United States v. Walizer, 600 Fed. Appx. 546 (9th Cir. 2015). In Alleyne v. 

United States, 133 S.Ct. 2151 (2013), the Supreme Court concluded that “any fact that increases the 

mandatory minimum is an ‘element’ that must be submitted to the jury.” Id.

186 United States v. Hardeman, 704 F.3d 1266 (9th Cir. 2013).