Sex Offender Registration
 

and Notification
 

in the United States: 

Current Case Law and Issues
 

August 2013
 
                     

                   

                               

                             

                             

                              

                   

                                

                             

                   

                               

                     

                                  

                                 

                               

                     

         

                         

                               

                               

                                

                         

                           

                         

                                   

                             

                             

                         

   

Sex Offender Registration and Notification in the United States (2013)

Highlights

The SMART Office is pleased to announce the release of the 2013 version of Sex Offender

Registration and Notification in the United States: Current Case Law and Issues. This edition

updates the 2012 version with new cases, issues raised, and corrections where prior case law

has been overturned or modified. There were a number of developments in case law, federal

legislation, and administrative policies regarding sex offender registration and notification

during the last year. Below are some highlights of those changes. Readers are encouraged to

review the entire report for details on these, and other, pertinent changes in the law.

Courts

Case Law: Retroactive Application of Registration Requirements: Following a number

of cases over the previous few years, two more State Supreme Courts held that the retroactive

application of sex offender registration and notification requirements violated their State

Constitution’s Ex Post Facto prohibition. Doe v. Dep’t of Pub. Safety & Corr. Servs., 40 A.3d 39

(Md. 2013); Starkey v. Okla. Dep’t of Corr., 2013 Okla. LEXIS 55 (2013). These decisions are

contrary to existing United States Supreme Court precedent on this issue in Smith v. Doe, 538

U.S. 1009 (2003) (holding that retroactive application of sex offender registration requirements

is permissible under the Federal Constitution).

U.S. v. Kebodeaux: In another of a series of cases interpreting prosecutions under 18

U.S.C. §2250, the United States Supreme Court in U.S. v. Kebodeaux, 186 L.Ed. 2d 540 (2013),

held that a person convicted of a UCMJ sex offense in 1993 was properly convicted under

§2250, as it was a proper exercise of Congress’ powers under the Necessary and Proper Clause.

The Court did not address any Ex Post Facto or other Constitutional issues.

Chaidez v. U.S.: Since the decision in Padilla v. Kentucky, 559 U.S. 356 (2010) (holding

that it was constitutionally deficient representation when counsel failed to inform their client

that a guilty plea to a criminal charge carried a risk of deportation), 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. In Chaidez v. U.S.,

133 S.Ct. 1103 (2013), the Supreme Court recently concluded that the holding in Padilla does

not apply retroactively.

Sex Offender Registration and Notification in the United States (2013): Highlights
                     

                       

                               

            

   

                       

                           

                       

                         

                       

           

           

                     

                 

           

             

             

                           

                             

                                  

                             

                                    

      

Legislation

Congress: The National Defense Authorization Act, Public L. 112‐239, §523, 126 Stat.

1723 (2013), prohibits the commissioning or enlistment of persons in the Armed Forces who have been

convicted of felony sex offenses.

Administrative Actions

United States Armed Forces: The Department of Defense issued an updated instruction

which governs which convictions under the Uniform Code of Military Justice require registration under

SORNA. Administration of Military Correctional Facilities and Clemency and Parole Authority,

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

Reports

GAO: The Government Accountability Office issued two reports this past year addressing the

implementation of certain parts of SORNA.

1.	 GAO‐13‐211, SEX OFFENDER REGISTRATION AND NOTIFICATION ACT: JURISDICTIONS FACE

CHALLENGES TO IMPLEMENTING THE ACT, AND STAKEHOLDERS REPORT POSITIVE AND NEGATIVE

EFFECTS (2013).

2.	 GAO‐13‐200, REGISTERED SEX OFFENDERS: SHARING MORE INFORMATION WILL ENABLE FEDERAL

AGENCIES TO IMPROVE NOTIFICATIONS OF SEX OFFENDERS’ INTERNATIONAL TRAVEL.

Research on Collateral Consequences: 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. Collateral consequences on the federal level and from 17 States are currently

included, and the project is slated for conclusion in 2014. Users may select “sex offenses” and view all

collateral consequences which may be imposed on persons convicted of a sex offense at the federal

level and across many states. The Project will continue to build out its database and bring more states

online this year.

Sex Offender Registration and Notification in the United States (2013): Highlights
 

 

Sex Offender Registration and Notification in the United States (2013) 

I. Overview of US Sex Offender Registration1 

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 again start this 

summary with an outline of those systems. 

A. Registration is a Local Activity 

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

federal government does not have a system for registering sex offenders. Generally 

speaking, sex offenders in the United States2 are required to register with law 

enforcement of any state, locality, territory, or tribe within which they reside, work, and 

attend school. 

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

District of Columbia and the five principal U.S. territories each have their own systems, 

as well, and an increasing number of federally-recognized Indian Tribes also have their 

own sex offender registration and notification systems.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 not directly administered by the federal 

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

notification in a number of meaningful ways. 

B. 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. 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.4 Two years later, in 1996, “Megan’s Law” was passed as a set of 

minimum standards for community notification.5

 The most recent set of standards can be 

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

passed in 2006.6

 SORNA currently governs the federal minimum standards for sex 

offender registration and notification systems. 

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.7 To date, 16 States, 3 Territories, and 52 

federally-recognized Indian Tribes have substantially implemented SORNA.8

 It is 

important to note that there are still variations in the registration and notification laws 

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Sex Offender Registration and Notification in the United States (2013) 

among jurisdictions that have substantially implemented SORNA. Practitioners are 

advised to become familiar with the specific registration and notification systems in any 

and all jurisdictions within which they will be working. 

C. 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).9 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.10 

The National Sex Offender Public Website 

www.nsopw.gov 

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Sex Offender Registration and Notification in the United States (2013) 

D. Federal Law Enforcement Databases 

Federal law enforcement 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:11 

1.	 National Sex Offender Registry: 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 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 law 

enforcement access to that data nationwide.12 

2.	 IAFIS: The Integrated Automated Fingerprint Identification 

System (IAFIS) is a national fingerprint database housed with the FBI. 

IAFIS records are linked to the offender’s corresponding NSOR record 

at CJIS; approximately 95% of the records in NSOR have a 

corresponding fingerprint in IAFIS.13 

3.	 NPPS: The National Palm Print System (NPPS) is a 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 to ensure that offenders’ fingerprints have been 

submitted to IAFIS, palm prints to NPPS, and DNA to CODIS.14 

E. 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. 18 U.S.C. §4042(c) requires that the 

Federal Bureau of Prisons (BOP) or 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.15 BOP does not register sex offenders prior to their release from incarceration, 

as registration is primarily a state function. 

The Bureau of Indian Affairs (BIA) operates a number of Detention Centers.16 

However, there are no statutory or administrative requirements for these centers to 

provide notice to local law enforcement when a sex offender is released from custody. In 

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Sex Offender Registration and Notification in the United States (2013) 

practice, offenders in BIA facilities generally are not registered prior to their release from 

incarceration. 

F. 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 has established the National Sex Offender Targeting Center 

(NSOTC).17 

G. Military Registration 

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 

2013.18 Congress also recently 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.19 A state-level requirement to register based on a conviction of a sex offense in 

‘federal court’ has been held to include a military court.20 

As previously mentioned, the federal government does not register sex offenders. 

However, certain components of the Department of Defense have started to adopt 

policies and procedures to register 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.21 These polices do not yet connect any 

military registration system to the greater network of databases and websites described 

above. 

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 and housing that 

base, a state might have no jurisdiction at all over matters occurring on the military base. 

In other words, the base may be a “federal enclave” where only federal law applies.22 

However, 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.23 

H. Summary 

This hybrid framework of state, territorial, tribal, local, 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 a 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 handbook. 

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Sex Offender Registration and Notification in the United States (2013) 

II. Who is Required to Register? 

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

for a criminal offense.24 Most jurisdictions limit their registration and notification 

systems to persons convicted of sex offenses and non-parental kidnapping of a minor. 

The inclusion of kidnapping offenses is a legacy of the federal standards discussed above; 

they have remained required included offenses 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.25 Some 

states also include other violent or dangerous offenders in their registration and 

notification system.26 

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 

offender engaged in sexual contact in order to qualify under its catch-all registration 

provision,27 while another held that such proof must meet the ‘beyond a reasonable 

doubt’ standard.28 

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 a jurisdiction’s registerable 

offenses.29 However, when a state’s registration system treats persons convicted of instate offenses differently from those convicted out-of-state, equal protection problems 

may arise.30 

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.31 Some jurisdictions look 

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

underlying the conviction.32 Often, courts take an expansive view of which offenses will 

trigger registration requirements; though sometimes, the approach can be quite narrow.33 

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

convicted of a state or federal offense. 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.34 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.35 

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”.36 SORNA’s 

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

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Sex Offender Registration and Notification in the United States (2013) 

territory, military, federal, or state sex offense.37 In addition, certain foreign sex offense 

convictions will also trigger a registration requirement under SORNA.38 Generally 

speaking, however, a jurisdiction will not register an offender unless that jurisdiction’s 

laws require that the offender be registered.39 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.40 

In many states, 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 the 

increased requirements.41 

III. Registration of Juvenile Offenders 

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

offender registration in different ways. For example, in the years prior to SORNA, many 

jurisdictions chose to require certain juveniles adjudicated delinquent of sex offenses to 

register as sex offenders, while others did not. SORNA’s minimum standards, however, 

do require registration for certain juvenile offenders adjudicated delinquent of serious sex 

offenses.42 One 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.43 

As with all sex offender registration requirements, despite SORNA’s requirement that 

juveniles adjudicated delinquent of certain offenses register as a sex offender, the 

implementation of this provision varies across jurisdictions.44 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.45 Some jurisdictions have 

mandatory registration provisions for certain juveniles, some are discretionary, and some 

have a hybrid approach.46 

As with adult registration requirements, registration requirements for juveniles are 

generally triggered by the equivalent of a conviction of 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. 

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.47 Many of those issues mimic the issues discussed above 

regarding adult offenders. 

Nevertheless, there are some issues unique to juvenile court cases. When a 

jurisdiction requires that juveniles be subject to registration requirements more onerous 

than those imposed on adults convicted of the same offense, equal protection issues 

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Sex Offender Registration and Notification in the United States (2013) 

exist.48 In one state, the automatic lifetime registration requirement as applied to 

adjudicated juveniles was held to violate due process and the prohibition against cruel 

and unusual punishment.49 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.50 

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.51 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.52 

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.53 

Numerous challenges to the retroactive application of registration laws were heard 

throughout the 1990s and 2000s. 

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.54 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.55 

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

increased stringency of sex offender registration and notification requirements in some 

jurisdictions since the Doe decision.56 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 10 years.57 

There had been four 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.58 This year, two additional State Supreme Courts had the 

same holding regarding the retroactive application of registration requirements.59 On the 

other hand, many state courts continue to stand by the reasoning of the Doe case in 

continuing to affirm the retroactive application of their own registration laws.60 

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

court enjoined the enactment of a state’s SORNA-implementing legislation based on ex 

post facto concerns brought forward by the ACLU,61 although that injunction has since 

been lifted, and the law is now being implemented.62 In other cases, some offenders have 

been able to be removed from the registry when the statute is changed in a way which 

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Sex Offender Registration and Notification in the United States (2013) 

inures to their benefit,63 and another has held that increasing the penalties for a failure to 

register does not violate the ex post facto clause.64 In addition, one state requires a due 

process hearing before any offender is ordered to comply with its full registration 

requirements, including those convicted prior to the registration statute’s effective date.65 

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. 

Even after those initial protections, however, offenders often raise constitutional 

concerns 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,66 double jeopardy,67 procedural 

due process,68 substantive due process,69 equal protection,70 the right to a trial by jury,71 

cruel and unusual punishment,72 full faith & credit,73 the supremacy clause,74 and 

separation of powers.75 Another set of constitutional arguments are those advanced by 

the ‘sovereign citizen movement’ which, though creative, have proven unsuccessful.76 

Recently, however, in Bond v. U.S.,77 the Supreme Court granted standing to sex 

offenders to challenge SORNA on 10th Amendment grounds, where previously they had 

no standing to do so.78 

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. Nearly all of 

these cases have focused on sex offender registration as a “collateral consequence” of 

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

intelligent have also discussed the issue.79 Recently, though, at least one court has 

concluded that the heightened registration and notification requirements imposed on sex 

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

a ‘collateral consequence’ of conviction.80 

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. Examples include opinions issued by state or 

federal courts which have held that: SORNA preempts state law to the extent that any 

state constitutional concerns are not implicated;81 the collection of internet identifiers 

violates the First Amendment;82 being ordered to register as a sex offender triggers the 

protections of procedural due process;83 publishing information about an offender’s 

“primary and secondary targets” violates due process;84 being ordered to register as a 

parole condition violates due process when the underlying convictions are not sexual in 

nature;85 requiring registration for a conviction for solicitation, and not prostitution, when 

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Sex Offender Registration and Notification in the United States (2013) 

each offense had the same elements, violates due process;86 an affirmative 

misrepresentation that an offender would not have to register as a sex offender is 

ineffective assistance of counsel; 87 incorrect advice to an offender regarding whether he 

would be required to register as a sex offender is ineffective assistance of counsel;88 a 

“three-strikes” sentence based on a failure to register offense is cruel and unusual 

punishment;89 mandatory life imprisonment for a second conviction of failure to register 

is cruel and unusual punishment;90 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.91 

There are a number of cases recently decided by the U.S. Supreme Court which will 

have a bearing on future litigation in the field of sex offender registration and 

notification. 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.92 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.93 

Another Supreme Court case which will impact sex offender registration litigation is 

Padilla v. Kentucky, 

94 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.95 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.96 The Supreme Court recently concluded that the holding in Padilla 

does not apply retroactively.97 

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 this 

community notification was originally 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. South Korea, the Province 

of Western Australia, and two Canadian provinces also make some information publicly 

available via websites,98 while other countries have different community notification 

procedures.99 

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. 

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Sex Offender Registration and Notification in the United States (2013) 

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.100 Many jurisdictions require a mens rea of some sort to be 

proven prior to permitting a person to be convicted of failure to register,101 while others 

hold that it is a strict liability offense.102 

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

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

can be “imperfect” and still be sufficient.103 In other cases, the notice can be 

constructive, and still valid.104 However, there are situations where notice will be found 

insufficient.105 

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, 

tribal court convictions for a sex offense can form the basis of a federal failure to register 

conviction.106 However, one state has held that there is no need to prove where an 

offender was during the time that he failed to register.107 The federal failure to register 

statute, 18 U.S.C. §2250, can also be utilized in cases where there has been interstate 

travel. 

Most jurisdictions also 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.108 In another, however, a change 

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

registry.109 

VIII. Residency Restrictions 

One of the most debated collateral consequences of a conviction for a sex offense 

occurs when a jurisdiction chooses to impose residency restrictions on registered sex 

offenders, that is, restrictions that prohibit 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.110 SORNA’s minimum standards do not address or require residency 

restrictions in any way. 

In some cases, municipal residency restrictions have been invalidated because they 

were deemed to have been preempted by state law.111 In another case, the residency 

restriction was deemed to be punitive and therefore not retroactively applicable.112 More 

frequently, however, these provisions have been upheld.113 

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Sex Offender Registration and Notification in the United States (2013) 

IX. Miscellaneous 

One collateral consequence of a 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.”114 However, once a person has been admitted to a program such as 

Section 8,115 they cannot be thereafter terminated because of a new, or newly-discovered, 

lifetime sex offender registration requirement.116 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.117 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.118 

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.119 In most cases, an 

offender’s homelessness has not prevented a successful prosecution for failure to register, 

although sometimes statutory or evidentiary problems have prevented successful 

prosecution.120 In one case, the 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.121 

Convictions for a failure to register have spawned deportation proceedings in some 

cases. However, one court has found that a conviction for a state failure to register 

offense is not a crime involving “moral turpitude” under the immigration code and, 

therefore, a person is not removable because of that conviction.122 

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.123 

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.124 The retroactive 

application of these provisions does not violate the ex post facto clause.125 

X. Conclusion 

The statutes, regulations and laws addressing sex offender registration and 

notification in the United States are varied and complex. While this handbook 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. 

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 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 us at 

asksmart@usdoj.gov or visit our website at www.smart.gov. 

1 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.

2 Except for military offenders, addressed in section I(G). 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 

Public L. No. 83-280, c. 505, 67 Stat. 588 (1953), codified at 18 U.S.C. §1162 (2006). 4 The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 

Public 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. 15110 (April 4, 1996).

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

accompanying note 4), so were the provisions of Megan’s Law. 6 42 U.S.C. §16901 (2006), et. seq. All United States Code references are current as of July 2013. 

Two 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. 38030 (July 2, 2008) [hereinafter 

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

1630 (Jan. 11, 2011) [hereinafter Supplemental Guidelines]. Guidelines provisions, standing alone, do not 

create an additional basis for criminal liability under 18 U.S.C. §2250. U.S. 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). 7 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 

federally-recognized Indian Tribes that the Attorney General determines have “not substantially 

implemented the requirements of this subtitle and is not likely to become capable of doing so within a 

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

. . . 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]. 

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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. 8 Current as of August 20, 2013. 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). 9 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 the Website. Press Release, Dep’t of Justice, Office of Justice Programs, All 50 States 

Linked to Department of Justice National Sex Offender Public Registry Web Site (July 3, 2006), available 

at http://www.justice.gov/opa/pr/2006/July/06_ag_414.html. 10 The SMART Office does administer TTSORS (the Tribe and Territory Sex Offender Registry 

System), 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. The SMART Office, through its 

contractor, administers the network capacity and connectivity of TTSORS to NSOPW. 11 For example, a local police department might submit an offender’s fingerprints to the FBI at the 

time of arrest. 

12 See The Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Public L. No. 

104-236, 110 Stat. 3093. 

13 Conversation with Kimberly Lough, FBI CJIS Division, NCIC Operations and Policy Unit, 2010. 14 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 6, at 

38057. 

15 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. 16 BIA is part of the Department of the Interior, in the Executive Branch. See generally Bureau of 

Indian Affairs’ Detention Facilities, Office of the Inspector General Report # WR-EV-BIA-0005-2010 

(“BIA reported that as of September 2009, the detention program consisted of 94 detention facilities: 23 

bureau-operated facilities, 52 tribally-operated facilities under Public Law (P.L.) 93-638 contracts, and 19 

tribally-operated facilities under self-governance compact agreements”). 17 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 May 29, 2013, there were 

751,538 registered sex offenders in the United States. 18 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 technically a part of the Department 

of Homeland Security, this Instruction also governs proceedings for the United States Coast Guard. See 

U.S. v. Kebodeaux, 133 S.Ct. 2496 (2013).

19 The National Defense Authorization Act for Fiscal Year 2013, Public L. 112-239, §523, 126 Stat. 

1723. 

20 Billingsley v. Alabama, 2012 Ala. Crim. App. LEXIS 112 (Ala. Ct. Crim. App. 2012). 21 See Army Regulation 190-45, §2-7 (2007). 

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22 “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...] To 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.” 

23 U.S. v. Kebodeaux, 133 S.Ct. 2496 (2013). 24 Withheld adjudications have been held to require registration under SORNA. See U.S. v. Bridges, 

901 F. Supp. 2d 677 (W.D.Va. 2012) (withheld adjudication in Florida registerable 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. Ct. App. 2008) (civil 

commitment triggered requirement to register); Price v. State, 43 So.3d 854 (Fla. Dist. Ct. App. 5th Dist. 

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. 

2011) (defendant found incompetent to stand trial was required to register); In re Kasckarow, 936 N.Y.S.2d 

498 (Sup. Ct. N.Y. 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. 2013) (‘Prayer for Judgment Continued’ on a 

charge of sexual battery is a final conviction triggering requirement to register), temporary stay ordered, 

739 S.E.2d 838 (N.C. 2013); but see United States v. Moore, 449 Fed. Appx. 667 (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), citing S.C. Code § 23-3-430(F), 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). 25 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).

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

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

offense”).

27 State v. Norman, 2013 824 N.W.2d 739 (Neb. 2013). 28 In re: K.B., 285 P.3d 389 (Ct. App. Kan. 2012). 

29 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); but see People v. Brooks, 296 P.3d 216 (2012) 

(Texas conviction not registerable in Colorado); Sharma v. State, 670 S.E.2d 494 (Ga. 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); 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); State v. Orr, 2013 N.M. App. LEXIS 42 (N.M. Ct. App. 

2013) (conviction for “taking indecent liberties with children” in North Carolina not registerable in New 

Mexico); Dep’t Pub. Safety v. Anonymous, 382 S.W.3d 531 (Tex. Ct. 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 

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Sex Offender Registration and Notification in the United States (2013) 

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. App. 2008) (Georgia conviction for 

Child Molestation not registerable in Washington State). 

30 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). 

31 See United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (18 USC §1470 registerable under 

SORNA, even though it is not listed); 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. 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. 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 301 

(Kan. 2012) (bestiality is not a registerable offense); State v. Haynes, 760 N.W.2d 283 (Mich. App. 2008) 

(bestiality not registerable). 

32 See, e.g., Doe v. Sex Offender Registry Bd., 925 N.E.2d 533 (Mass. 2010) (may not consider facts 

underlying the conviction).

33 See, e.g., State v. Duran, 967 A.2d 184 (Md. 2009) (highlighting the narrow approach, the Court 

determined 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). 

34 State v. Atcitty, 215 P.3d 90 (N.M. 2009). 35 United States v. Begay, 622 F.3d 1187 (9th Cir. 2010). 36 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). 

37 “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 Department of Defense Instruction 1325.07, supra n. 17. 38 42 U.S.C. §16911(5)(B). 

39 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. 40 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. Consquently, 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].”), accord Doe v. Toelke, 389 S.W.3d 165 

(Mo. 2012) (offender convicted in 1983 required to register, even though Missouri law only requires 

registration of persons convicted on or after January 1, 1995). 

41 Ward v. State, 288 P.3d 94 (Alaska 2012). 42 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. The 

Supplemental Guidelines 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 6 at 1636-37. 43 U.S. v. Shannon, 2013 U.S. App. LEXIS 929 (6th Cir. 2013) (Ohio adjudication for Gross Sexual 

Imposition triggered registration condition in subsequent sentencing for possession of a firearm by a felon).

44 A thorough 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://pajuvdefenders.org/file/snapshot.pdf. 45 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., 110 So.3d 1208 (La. Ct. App. 

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2013) (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).

46 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).

47 See, e.g., In re Crockett, 159 Cal. App. 4th 751 (Cal. App. 1st Dist. 2008) (juvenile adjudicated 

delinquent of sex offense in Texas was not required to register when he moved to California).

48 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). 

49 In re C.P., 967 N.E.2d 729 (Ohio 2012). Other courts have held that registration requirements as 

applied to juveniles adjudicated delinquent of a sex offense does not violate the 8th Amendment. U.S. v. 

Under Seal, 709 F.3d 257 (4th Cir. 2013) (military conviction). 50 Illinois ex. rel. Birkett v. Konetski, 909 N.E.2d 783 (Ill. 2009). 51 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. U.S. 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. 

52 U.S. 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.

53 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 at 38046; Supplemental Guidelines at 1639.

54 Smith v. Doe, 538 U.S. 1009 (2003). 55 Id. 56 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).

57 See U.S. 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); U.S. 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. U.S., 560 U.S. 438 (2010) (declining to address the issue of 

whether SORNA violates the Ex Post Facto clause). 58 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); State v. Williams, 952 N.E.2d 1108 (Ohio 2011). One additional case, 

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). Indiana has had a number of cases addressing various issues associated 

with the holding in Wallace. See Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013) (ten year registration 

period could not be increased to lifetime without violating the ex post facto clause); Burton v. State, 977 

N.E.2d 1004 (Ind. Ct. App. 2012); Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012) (declining to 

apply the holding in U.S. v. Leach, 639 F.3d 769 (7th Cir. 2011), to the present Indiana case); State v. 

Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012) (out-of-state conviction still entitled to ex post facto 

protections). 

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59 Doe v. Dep’t of Pub. Safety & Corr. Servs., 40 A.3d 39 (Md. 2013); Starkey v. Okla. Dep’t of
 

Corr., 2013 Okla. LEXIS 55 (Okla. 2013) (detailing all case law from state courts regarding retroactive 

application of sex offender registration and notification statutes).

60 See, e.g., Doe v. Snyder, 2013 U.S. Dist. LEXIS 36699 (E.D. Mich. 2013) (addressing Michigan’s
 

2011 amendments which substantially implemented SORNA); 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); Reynolds v. State, 385 S.W.3d 93 (Tx. Ct. App. 2012), rev’w pet’n granted, 2013Tx. Crim.
 

App. LEXIS 99 (Tx. Crim. App., Jan. 16, 2013); Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013).

61 ACLU v. Masto, 2:08-cv-00822-JCM-PAL (D. Nev., Oct. 7, 2008). 62 ACLU v. Masto, 670 F.3d 1046 (9th Cir. 2012). 63 State v. Jedlicka, 747 N.W.2d 580 (Minn. App. 2008); see also Flanders v. State, 955 N.E.2d 732 

(Ind. App. 2011).

64 Buck v. Commonwealth, 308 S.W.3d 661 (Ky. 2010). 65 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. 66 Smith v. Commonwealth, 743 S.E.2d 146 (Va. 2013).
 67 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). 68 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).

69 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). 

70 Doe v. Jindal, 2011 U.S. Dist. LEXIS 100408 (E.D. La., Sept. 7, 2011). 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). 

71 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). 72 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). 73 Rosin v. Monken, 599 F.3d 574 (7th Cir. 2010) (when 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. Indiana, 977 N.E.2d 1004 (Ind. Ct. App. 2012) (State unsuccessfully argued that the
 

Full Faith and Credit Clause should apply). 

74 United States v. King, 431 Fed. Appx. 630 (10th Cir. 2011). 75 State v. Caton, 260 P.3d 946 (Wash. Ct. App. 2011), rev’d on other grounds, 273 P.3d 980 (Wash.
 

2012). 

76 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.” U.S. v. Harding, 2013 U.S. Dist. LEXIS 62471 (W.D. Va. 2013) (18 U.S.C. §2250 

prosecution), quoting U.S. 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. 

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77 131 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 U.S. v. Kidd, 2013 Fed. App. 0249N (6th Cir. 2013); U.S. v. Smith, 504 Fed. Appx. 519 (8th Cir. 2012). 78 See United States v. Reynolds, 132 S.Ct. 975 (2012).
 79 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). 80 U.S. 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). 

81 Doe v. Keathley, 2009 Mo. App. LEXIS 4 (Jan. 6, 2009); but see Andrews v. State, 978 N.E.2d 

494 (Ind. Ct. App. 2012) (states without deciding that the federal duty to register could apply if the offender 

engaged in interstate travel); State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012).

82 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); Harris v. State, 985 N.E.2d 767 (Ind. Ct. 

App. 2013) (statute prohibiting use of a social networking site by a registered sex offender violated the 

First Amendment); 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). 83 Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011). 84 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).

85 Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011) 86 Doe v. Jindal, 851 F. Supp.2d 995 (E.D. La. 2012). 87 United States v. Rose, 2010 CCA LEXIS 251 (A.F. Ct. Crim. App. June 11, 2010) 88 People v. Fonville, 804 N.W.2d 878 (Mich. Ct. App. 2011) 

89 Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008).
 90 Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008). 

91 State v. Dipiazza, 778 N.W.2d 264 (Mich. Ct. App. 2009).
 92 530 U.S. 466 (2000). 

93 See Colorado v. Rowland, 207 P.3d 890 (Colo. Ct. App. 2009); State v. Meredith, 2008 Minn.
 

App. Unpub. LEXIS 324 (April 8, 2008).

94 559 U.S. 356 (2010). 

95 Id. 96 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); Taylor v. State, 698 S.E.2d 384 

(Ga. Ct. App. 2010) (counsel was deficient for not advising of sex offender registration requirements);
 

People v. Fonville, 804 N.W.2d 878 (Mich. Ct. App. 2011) (counsel was ineffective for not advising of sex
 

offender registration requirements).

97 Chaidez v. U.S., 133 S.Ct. 1103 (2013).
 98 The Canadian Province of Alberta maintains a website listing high-risk sex offenders:
 

http://www.solgps.alberta.ca/safe_communities/community_awareness/serious_violent_offenders/Pages/hi
 

gh_risk_offenders_listing.aspx, and Saskatchewan maintains a listing of certain high-risk offenders which 

includes information about certain sex offenders: http://www.justice.gov.sk.ca/PN-List. 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.
 

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Sex Offender Registration and Notification in the United States (2013) 

99 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-offenderdisclosure. 100 See State v. Cook, 187 P.3d 1283 (Kan. 2008); Longoria v. State, 749 N.W.2d 104 (Minn. App.
 

2008). 

101 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). 

102 Christie v. State, 2008 Ark. App. LEXIS 10 (Jan. 9, 2008); State v. T.R.D., 942 A.2d 1000 (Conn. 

2008). 

103 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); Commonwealth v. McBride, 281 S.W.3d 799 (Ky. 2009)
 

(lack of notice did not relieve offender of absolute duty to register).

104 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”). 105 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).

106 See United States v. Shavanaux, 647 F.3d 993 (11th Cir. 2011) (domestic violence prosecution).
 107 State v. Peterson, 186 P.3d 1179 (Wash. App. 2008).
 108 State v. White, 58 A.3d 643 (N.H. 2012) (defendant failed to report the creation of a MySpace 

account).

109 State v. Lee, 286 P.3d 537 (Idaho 2012). 110 See, e.g., Cal. Penal Code §3003.5 (2012); Idaho Code § 18-8329 (2012); 57 Okla. Stat. §590
 

(2012). 

111 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); G.H. v. Twp. of Galloway, 951 

A.2d 221 (N.J. 2008) (New Jersey law preempted municipal residency restrictions); contra United States v. 

King, 2009 U.S. Dist. LEXIS 94582 (W.D. Okla. Oct. 9, 2009) (Oklahoma’s residency restrictions did not 

present an obstacle to complying with federal sex offender registration requirements). 112 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); 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”); R.L. v. State Dep’t of Corr., 245 S.W.3d 236 (Mo. 2008) (by attaching new obligations to
 

past conduct, residency restrictions violate the bar on retrospective laws).

113 State v. Stark, 802 N.W.2d 165 (S.D. 2011) (discussing state-level loitering and safety zone
 

provisions). 

114 42 U.S.C. §13663. 115 ‘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.
 116 Miller v. McCormick, 605 F.Supp.2d 296 (D. Me. 2009). 117 Johnson v. California, 2011 U.S. Dist. LEXIS 101623 (C.D. Cal. July 25, 2011). 118 Henley v. Housing Auth. of New Orleans, 2013 U.S. Dist. LEXIS 62255 (E.D. La. 2013). 

119 Santos v. State, 668 S.E.2d 676 (Ga. 2008) (registration requirements unconstitutionally vague);
 

see also State v. Crofton, 2008 Wash. App. LEXIS 1283 (June 2, 2008) (weekly registration requirement
 

for homeless offenders permissible).

120 See State v. Allman, 2012 Colo. App. LEXIS 1999 (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 

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Sex Offender Registration and Notification in the United States (2013) 

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, 339 Wis.2d 78 (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). 

121 United States v. Pendleton, 2009 U.S. Dist. LEXIS 85347 (D. Del. Sept. 18, 2009). 122 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).
 123 Tristan v. State, 393 S.W. 3d 806 (Ct. App. Tex. 2012).
 124 In Alleyne v. U.S., 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.
 125 U.S. v. Hardeman, 704 F.3d 1266 (9th Cir. 2013). 

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