Sex Offender Registration and Notification Act: Jurisdictions Face Challenges to Implementing the Act, and Stakeholders Report Positive and Negative Effects
Released: 2013-02-07T00:00:00

Letter

Background

Evolution of Sex Offender Registration and Notification Legislation

The practice of requiring criminal offenders to register certain identifying information with law enforcement agencies began in the 1930s in response to the increased mobility of criminals upon their release. At the time, offender registries were viewed primarily as tools for law enforcement personnel, who needed a way of keeping track of high-risk offenders. Registries were generally operated at the local level and primarily targeted gangsters. According to the Vera Institute of Justice, in 1937, Florida enacted the first statewide registration law for certain felons, and in 1947 California passed the first state registration law that focused specifically on sex offenders. By the end of the 1980s, a number of states had enacted sex offender registration laws. In response to a number of high-profile child abductions, sexual assaults, and murders, states have steadily expanded laws to create registration systems that focused specifically on sex offenders since the early 1990s.

In 1994, the federal government responded to the increase in state sex offense registries by enacting the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act). This act provided a national baseline for sex offender registration programs. This affected matters such as defining the offenses that require registration and the duration of registration periods, requiring periodic verification of the registered address, continued registration of sex offenders when they move from one state to another (if the new state had a registration requirement), and community notification. In the years subsequent to the enactment of the Wetterling Act, Congress passed a series of amendments to this federal legislation, which in part reflected and promoted trends and developments in individual states’ registration programs.public dissemination of information from states’ sex offender registries and in 2003 to require states to maintain websites containing registry information.

SORNA Requirements

Signed into law on July 27, 2006, on the 25th anniversary of the abduction and murder of a 6-year-old boy in Hollywood, Florida, the Adam Walsh Act is intended to protect children from sexual exploitation and violent crime. The act is also intended to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims. The purpose of Title I of the Adam Walsh Act, or SORNA, is to protect the public from sex offenders and those who offend against children by repealing the Wetterling Act standards and establishing in their place a comprehensive set of sex offender registration and notification standards. These standards are designed to address gaps in individual state registration programs resulting from variations across states’ laws, policies, and information- sharing and technology systems. These standards encompass the results of prior legislative developments but also extend and supplement them, with the main differences from the Wetterling Act and its subsequent amendments summarized in table 1.

Constitutional limits on the power of the federal government may prevent it from actually requiring states to implement specific registration and notification provisions. Instead, SORNA conditions receipt of federal Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) funds on implementation of its requirements. The act initially required that DOJ reduce Byrne JAG funds by 10 percent for those states that failed to substantially implement SORNA standards by July 27, 2009—3 years after the date of enactment of the Adam Walsh Act.that DOJ is to redistribute Byrne JAG funds from nonimplemented jurisdictions to jurisdictions that have substantially implemented the act. It also authorizes nonimplemented jurisdictions to avoid losing 10 percent of their Byrne JAG funds if the jurisdictions agree to reallocate those funds solely for the purpose of working to implement SORNA standards.

Federal Role in Sex Offender Registration and Notification

The SMART Office. In administering the standards set forth in SORNA, the SMART Office is responsible for making determinations on whether covered jurisdictions have substantially implemented the minimum requirements of the law. When making a substantial implementation determination, the office is required to follow the standards set forth (1) in the act; (2) in the SORNA National Guidelines for Sex Offender Registration and Notification (National Guidelines), which were issued in July 2008; and (3) in the Supplemental Guidelines for Sex Offender Registration and Notification (Supplemental Guidelines), which were issued in January 2011. These guidelines state that DOJ cannot approve jurisdictions’ programs if they substitute a different approach to sex offender registration and notification that does not incorporate SORNA’s baseline requirements. Likewise, the SMART Office cannot approve implementation programs if they dispense wholesale with categorical requirements set forth in the act. The substantial implementation standard does allow for some latitude to approve a jurisdiction’s implementation efforts. As such, the National Guidelines require the SMART Office to consider, on a case-by-case basis, whether jurisdictions’ rules or procedures implement SORNA. Accordingly, for each jurisdiction, the office must assess whether any deviations in a jurisdiction’s sex offender registration and notification program from a SORNA requirement will or will not substantially disserve the objectives of the requirement. As a result, according to the SMART Office, it must review each jurisdiction’s implementation program, sometimes iteratively.

Each jurisdiction is to submit a comprehensive set of materials (which we refer to as a complete implementation package in this report) so as to allow an assigned SMART Office policy adviser to conduct a substantial implementation review. These materials can include applicable state statutes, codes, administrative policy and procedures manuals, and documentation of database or data-sharing systems and the jurisdiction’s public sex offender website. To assist covered jurisdictions, the SMART Office developed the SORNA Substantial Implementation Checklist tool that jurisdictions can use in developing, organizing, and submitting these materials for review. While not intended to be a definitive guide to full implementation requirements, the checklist is organized into 14 sections covering the major requirements of the act, which are described in detail in appendix II.

After reviewing a jurisdiction’s substantial implementation package, the SMART Office makes a determination as to whether a jurisdiction has substantially implemented SORNA by taking all of the jurisdiction’s efforts into account. The result is a Substantial Implementation Review report, which, similar to the checklist tool, is organized into 14 sections.report delineates, by section, where a jurisdiction may meet, not meet, or deviate in some way from all of the SORNA requirements. Where the office finds that a jurisdiction has deviated in some way, the determination report states whether that deviation does or does not substantially disserve the purposes of the requirements of that section. For a jurisdiction to have substantially implemented SORNA, the SMART Office must determine that any and all deviations from the requirements in each section do not substantially disserve the purposes of the law, and that a jurisdiction has substantially implemented all 14 sections of requirements as outlined in the checklist tool.

Other federal agencies. The national sex offender registration system is composed of a national database and a national website that compiles information obtained under the registration programs of the states and other jurisdictions and make it readily available to law enforcement or the public on a nationwide basis. The national registry database is called the National Sex Offender Registry (NSOR), which is part of the National Crime Information Center (NCIC), and is operated by the Federal Bureau of Investigation (FBI). The database is accessible to law enforcement but The national website is the Office of Justice Programs’ not to the public. (OJP) Dru Sjodin National Sex Offender Public Website (NSOPW), which is an online portal linked to all states’ public sex offender registries. Using this website, members of the public can access information on sex offenders in any of the states’ individual public registries. State and local authorities that conduct and manage sex offender registration and notification activities are exclusively responsible for the inclusion, accuracy, and integrity of the information in the national registries.

NCIC is an information system that provides law enforcement agencies with around-the- clock access to federal, state, and local crime data, including criminal record histories and wanted and missing person records. territorial authorities in the location and apprehension of noncompliant sex offenders; to investigate violations of the criminal provisions of the act; and to identify and locate sex offenders displaced as a result of a major disaster. Under the criminal provisions of the act, USAOs can pursue charges against sex offenders who are not in compliance with registration requirements resulting from prior federal convictions, as well as the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States. In addition, USAOs can pursue federal charges against sex offenders who are not in compliance with registration requirements resulting from state convictions if those offenders travel in interstate or foreign commerce or enter, leave, or reside in Indian country.

DOJ Has Determined That 19 of 56 Jurisdictions Have Substantially Implemented SORNA; Other Jurisdictions Reported Political Will and Legal Barriers as Challenges

DOJ Has Determined That 19 Jurisdictions Have Substantially Implemented SORNA and Another 17 Have Implemented More than Half of the Act’s Requirements

As of November 2012, 37 of 56 jurisdictions had submitted complete implementation packages for review, and the SMART Office has determined that 19 of those jurisdictions (16 states and 3 territories) have substantially implemented SORNA and another 17 have not, as shown in figure 1.

According to the SMART Office, even though these jurisdictions have “substantially implemented” the act, not all of them have “fully implemented” the law given that most of these jurisdictions still deviate from certain requirements—that is, the jurisdiction does not exactly follow the act or the guidelines in all respects. Specifically, 18 of the 19 substantially implemented jurisdictions deviate in some way from SORNA’s requirements, including 4 jurisdictions that deviate in 7 or more of the 14 sections of requirements as outlined in the checklist tool. (See app. II for a description of the 14 sections.) According to the office, the substantial implementation standard allows it some latitude to approve a jurisdiction’s implementation efforts that deviate from SORNA as long as the deviation does not “substantially disserve,” or undermine, the intent of the act’s requirement. For example, while one of the substantially implemented jurisdictions does not include employer address, school address, or vehicle information of offenders on its public registry website, as SORNA requires, the jurisdiction does provide the public instructions on its website on how to access this information. The SMART Office determined that this deviation does not substantially disserve the purpose of this requirement of the act. Substantially implemented jurisdictions most frequently deviated from the following requirements: the information offenders must provide at registration, tiering of offenses, retroactive application of the requirements, and offenses that a jurisdiction must include in its sex offender registry. Officials from SMART explained that these requirements, in particular, contain many different components, and as a result, a jurisdiction is unlikely to fully implement all of them. For example, SORNA lists 22 categories of information sex offenders must provide at registration, and many of these categories have subcategories. (See app. III for more information on the deviations the SMART Office allowed for jurisdictions that have substantially implemented SORNA.)

Although the SMART Office determined that the remaining 17 states and territories that submitted complete implementation packages for review have not yet substantially implemented SORNA, the office concluded that 15 of these 17 jurisdictions have implemented at least half of the 14 sections of requirements outlined in the checklist tool. For example, all 17 of these jurisdictions met the sections of SORNA that require jurisdictions to prescribe where a sex offender is required to register (i.e., the jurisdictions in which the sex offender resides, works, and goes to school) and impose a criminal penalty for sex offenders who fail to comply with registration requirements. Conversely, these 17 jurisdictions least frequently met those requirements contained in the following categories related to maintaining a public website that provides certain information on sex offenders, such as an offender’s employer address or vehicle information (4 jurisdictions met); specifying the types of offenses and offenders that must be included in a jurisdiction’s sex offender registry, such as both adults and juveniles that have committed certain sex offenses (5 jurisdictions met); and specifying that sex offenders must register for certain periods of time and make a certain number of in-person appearances each year at a registering agency based on the tier of the offense for which the person was convicted (8 jurisdictions met).

Figure 2 provides an overview of the extent to which the 17 jurisdictions have implemented the 14 sections of SORNA requirements. (See app. IV for more information on which sections of SORNA requirements these 17 jurisdictions have substantially implemented.)

Officials from 11 of the remaining 19 jurisdictions that have not submitted a complete implementation package for SMART Office review responded to our survey that they are actively working to substantially implement the requirements of SORNA. Officials from 7 of the remaining 8 jurisdictions responded that they are not actively working to substantially implement the act’s requirements because of various challenges, which we discuss later in this report. Officials from 2 of the 19 jurisdictions reported that they plan to submit an implementation package to the SMART Office for review in calendar year 2013, and officials from 9 other jurisdictions responded that they did not know when an implementation package may be submitted.responded that a time frame has not been set for submitting an implementation package because the staff is engaged in ongoing upgrades to the registration program and has not yet accomplished required legislative changes.

Jurisdictions Reported Several Challenges in Implementing SORNA

Officials from 29 of the 33 nonimplemented jurisdictions that responded to our survey questions on challenges to implementing SORNA reported that their jurisdictions faced challenges. Officials from all but 4 of the 29 jurisdictions stated that these challenges were keeping their jurisdictions from substantially implementing the law. Jurisdictions and DOJ have taken actions, and Congress has considered legislation, to address some or all of these challenges, but jurisdictions identified additional steps that DOJ or Congress could take to help address their challenges. Table 2 describes the challenges these jurisdictions most frequently reported, and appendix V provides additional information on all of the reported challenges.

In addition to the challenges they reported above, officials from 22 of the 33 nonimplemented jurisdictions responding to our survey reported that the criteria the SMART Office uses to determine substantial implementation are somewhat or not at all clear, although 6 had submitted packages.reasons why jurisdictions may have responded in this manner. First, jurisdictions may have taken all of the steps toward substantial implementation they can—except for implementing requirements that the jurisdiction fundamentally disagrees with, such as applying the requirements retroactively—and believe that these efforts should be sufficient for substantial implementation. Second, jurisdictions’ understanding of substantial implementation is dependent on the extent to which they interact with the SMART Office policy adviser assigned to their jurisdiction; and jurisdictions interact more frequently with the policy adviser once they have submitted a package. Furthermore, to increase jurisdictions’ understanding of the substantial implementation process, as of September 2012, the SMART Office posted copies of all the reports for those jurisdictions that substantially implemented SORNA on its website. Senior officials from the SMART Office said this should help other jurisdictions better understand what the office requires for substantial implementation and where it has allowed deviations from the requirements.

Officials from the SMART Office presented Officials who responded to our survey identified actions their jurisdictions were taking to address implementation challenges. The most frequent action officials noted (10) was meeting and collaborating with stakeholders. For example, 1 jurisdiction’s senate created a special legislative commission composed of state-level designees from various components of the jurisdiction’s criminal justice system to study and report on the legal, fiscal, and policy implications of implementing the SORNA requirements. In addition, officials from 4 nonimplemented jurisdictions reported that they have proposed necessary legislative or policy changes that they believe would enable the jurisdiction to substantially implement the act.

DOJ has also taken steps to address challenges jurisdictions faced in their efforts to substantially implement SORNA, primarily by providing guidance and funding. In particular, senior officials from the SMART Office reported that they communicated to all nonimplemented jurisdictions that they are available to explain the act’s requirements to policy stakeholders—and have done so, in person, in 11 jurisdictions—to aid jurisdictions’ efforts to reconcile SORNA and state laws.DOJ released National Guidelines in July 2008 and Supplemental Guidelines in January 2011, which were intended to help address challenges with applying the act’s requirements retroactively, implementing a conviction-based tiering structure, and implementing the juvenile requirements, among other things. See appendix VI for additional details regarding this guidance.

In addition, in fiscal year 2012, DOJ awarded 11 of the 37 nonimplemented jurisdictions a total of $3.1 million through the Adam Walsh Act Implementation Grant Program to assist jurisdictions with implementing SORNA’s requirements. nonimplemented jurisdictions most frequently planned to use this funding to acquire information technology, such as electronic sex offender registration software; purchase equipment, such as a system that captures fingerprints, palm prints, and photographs, which SORNA requires; and fund additional personnel. Moreover, the SMART Office received and approved requests from 34 of the 39 nonimplemented jurisdictions as of July 27, 2011, to reallocate the 10 percent of their Byrne JAG funding—funding that they would have otherwise lost—to implement SORNA requirements. For example, jurisdictions could have used this funding to meet costs associated with applying the requirements retroactively.

In fiscal year 2012, DOJ also awarded $3.4 million to 12 of the 19 substantially implemented jurisdictions through the Adam Walsh Act Implementation Grant Program. offered as many flexibilities to jurisdictions as they can think of within the framework that established SORNA and its guidelines, but they remain open to receiving submissions from jurisdictions proposing alternative methods for meeting the purpose of any particular SORNA requirement. These officials stated that, in their experience, funding the costs associated with retroactive application of SORNA is the true barrier to implementation for many jurisdictions that report challenges with this section of requirements. These officials added that, as new grant funding is made available and Byrne JAG funding is reallocated each year, these jurisdictions should have less of a challenge with applying the SORNA requirements retroactively. Officials stated that for other jurisdictions, however, the retroactive application of SORNA is more of a policy challenge in that some do not agree with that section of requirements and do not want to implement them.

Officials from the SMART Office stated that, despite their efforts, jurisdictions may continue to report the same implementation challenges for several reasons: 1. It may take jurisdictions several legislative sessions to make the many changes necessary to reconcile their laws and SORNA, and legislators may face difficulty keeping the act a priority over that period of time, especially if elected officials who were supportive of the act leave office. 2. Organizations that oppose SORNA have generated political resistance to making the statutory changes to implement the act. 3. The SMART Office is unable to fully meet the financial needs of jurisdictions through the Adam Walsh Act Implementation grant program. For example, of the 66 applications that met the basic minimum requirements for fiscal year 2012 funding under this grant program, the office was able to fund 56 applicants but was not able to fund the remaining 10.

Jurisdictions continue to oppose implementing certain requirements, such as applying the requirements retroactively and the juvenile requirements, because of policy preferences. For example, 15 of 31 nonimplementing jurisdictions that responded to our survey question about aspects of SORNA they would change suggested changing or eliminating specific requirements, such as the requirements to register juveniles as sex offenders (7 jurisdictions), apply the requirements retroactively (6 jurisdictions), and publicly post employer addresses (4 jurisdictions).

Officials from the SMART Office stated that they have addressed all the barriers to implementation that the office currently has the authority to address in the existing legislation and that further changes would take legislative action. These officials stated that they have discussed jurisdictions’ challenges and concerns regarding SORNA implementation with congressional staff, and Congress has taken some action. In July 2012, the House of Representatives passed the Adam Walsh Reauthorization Act, which, among other things, would have further reduced the registration period for certain juvenile sex offenders from lifetime to 15 years if a clean record is maintained and exempts jurisdictions from disclosing public information about juvenile sex offenders. After House passage, the bill was referred to the Senate Committee on the Judiciary; the 112th Congress took no further action on reauthorization of the act.

Stakeholders Reported Improvements in Jurisdictions’ Ability to Share Information and Monitor Offenders but Had Mixed Views on Effects on Resources and Sex Offenders

Few studies have been conducted on the effects of SORNA implementation on jurisdictions and registered sex offenders. However, criminal justice stakeholders from select jurisdictions we visited reported both positive and negative effects from implementing SORNA. In particular, stakeholders stated that since implementing SORNA, their efforts to track sex offenders have improved through increased information sharing, frequency of registration, and collaboration. On the other hand, stakeholders reported that SORNA’s requirement to tier offenders based on the crime for which they were convicted does not consider the offender’s risk of reoffending, and that implementation increased workload and caused difficulties in sex offenders’ ability to reintegrate into the community. SORNA requires DOJ’s National Institute of Justice (NIJ) to conduct a comprehensive study on SORNA’s effects, which could help address current research gaps.

Few Studies on the Effects of SORNA

SORNA’s purpose is to protect the public from sex offenders and those who offend against children by establishing a comprehensive, national system for the registration of those offenders. However, analysis of the act’s effect on public safety has been limited. We found seven studies that assessed aspects of SORNA requirements specifically; however, none of these studies evaluated the effects on public safety following implementation of the act in a jurisdiction. Four of the studies prospectively examined the predictive ability of SORNA classification (i.e., the tiering of offenses) to identify high-risk offenders and concluded that the SORNA tiering system was not a good predictor of sex offenders’ risk to reoffend. Another study provided a descriptive examination of how the SORNA classification system would affect the distribution of registered sex offenders and associated characteristics across the different tiers. In addition to the results of our search, survey responses also indicate that there are few studies on the effects that SORNA implementation has had on public safety. Specifically, 48 of the 50 officials who responded to the survey question on studies conducted on the effects of SORNA reported that they were not aware of any studies conducted in their jurisdiction.

Although research has not been done specifically on SORNA’s effectiveness, research has been done more generally on the effectiveness of sex offender registration and notification laws. Several academic studies have used changes in recidivism as an outcome measure—or metric to describe the intended result of a program or activity—to evaluate these laws. For instance, the findings of a meta-analysis—or statistical analysis of a collection of studies—which analyzed seven studies in selected states that examined the recidivism rates of registered sex offenders released from prison and a comparison group, found no clear effect on recidivism, for either sex offenses or other types of crime that sex offenders commit.available studies prevents definitive conclusions.

Stakeholders Reported Both Positive and Negative Effects as a Result of Implementing SORNA

Given the lack of studies and data on the impact of SORNA, as part of our review, we obtained perspectives from representatives of various criminal justice components in five jurisdictions that implemented the act about the outcomes, both positive and negative, that they have experienced as a result of implementation. We also obtained survey responses from state registry officials on the effects of implementing SORNA. The criminal justice components we spoke with included five state registry agencies, eight local law enforcement agencies, six local probation officers, five local prosecutors, and six local public defenders. Some stakeholders, including officials from law enforcement agencies, observed positive effects as a result of SORNA, such as the improved ability to track the whereabouts of sex offenders and to hold sex offenders accountable when they fail to comply with registration requirements. In contrast, some stakeholders, including officials from public defender offices, observed negative effects, such as using limited resources to track sex offenders that are not likely to reoffend and preventing sex offenders from reintegrating into their communities. See table 3 for a summary of stakeholder perspectives. Because of the limited number of jurisdictions we visited and types of agencies that we surveyed, these perspectives provide some insight into the potential positive and negative impacts of SORNA, but do not indicate the extent to which these perspectives are pervasive and warrant subsequent action.

Survey results and criminal justice stakeholder perspectives indicate that SORNA requirements have had some positive effects on law enforcement’s ability to track registered sex offenders. Officials from 4 of 12 implementing jurisdictions that responded to the question about positive effects of SORNA reported that a benefit of implementing the act was improved monitoring of registered sex offenders, and perspectives from officials representing state registries, law enforcement agencies, and probation offices also indicated that SORNA resulted in benefits In particular, stakeholders associated with tracking sex offenders.identified increased information sharing, as well as other aspects of SORNA, such as increased frequency of registration, and increased collaboration, as helping them to better track the whereabouts of sex offenders, as described below.

Increased information sharing. Survey respondents and representatives from various criminal justice components said that SORNA has enhanced information sharing on registered sex offenders between criminal justice components, in part through the use of certain databases to exchange information. For example, DOJ developed the SORNA Exchange Portal—which is designed, in part, to allow jurisdictions to electronically exchange information about registered sex offenders. Almost all respondents to our survey question on use of the portal (44 of 50) said that their jurisdiction uses the database. Of these respondents, 34 of 44 found the system to be at least moderately useful. One of the portal’s tools is the Offender Relocation Task, which allows jurisdictions to send notifications about registered sex offenders who are relocating from one jurisdiction to another. From January 2011 through September 2012, 32 states and territories used the portal to create 5,422 Offender Relocation Tasks.

Officials from local law enforcement, probation, or the state registry agency in 2 of the 5 jurisdictions we visited also indicated that a public safety benefit of SORNA was that the public has increased access to information on registered sex offenders. For example, one official from a local law enforcement agency said that SORNA has made the public more aware of sex offenders living in the community and has opened up lines of communication between the police and the public on issues related to sex offenses.

While information sharing has improved, local law enforcement, state registry, or probation officials in 4 of the 5 jurisdictions we visited identified additional challenges. For example, officials from two local law enforcement agencies stated that it is still difficult to obtain information from some states on registered sex offenders, such as difficulties in obtaining court documents from other jurisdictions. One of these officials noted that information sharing may be further improved as more states implement SORNA and enforce compliance more consistently.

Additionally, officials from two local law enforcement agencies stated that sharing could improve if states applied SORNA requirements in a more consistent or standardized way.

Increased frequency of registration. In all 5 jurisdictions that we visited, some sex offenders have to register more frequently as a result of SORNA. For example, in Florida, sexual predators now have to register four times per year instead of two. According to an official from Maryland’s state registry agency, approximately 8 percent more sex offenders in the state have lifetime registration requirements and also have to register four times per year instead of two. One official from a sheriff’s office stated that the increased frequency of registration gave law enforcement officials a better sense of where sex offenders were supposed to be to help ensure these offenders remain in compliance.

Increased collaboration. Stakeholder perspectives indicate that increased collaboration between criminal justice components, specifically the expanded role of the U.S. Marshals Service, has assisted jurisdictions with enforcing SORNA requirements and holding registered sex offenders accountable for failing to meet requirements. The act contains provisions that expand the role of federal law enforcement, and U.S. Marshals Service officials in all five of the federal districts we visited stated that they have assisted law enforcement agencies with verifying addresses and tracking noncompliant registered sex offenders. From 2006 through 2012, U.S. Marshals Service officials conducted 598 sex offender-specific compliance or enforcement operations nationwide. Three law enforcement officials said that as a result of address verifications and other operations, sex offenders are more aware that local law enforcement is tracking them, which could deter a registered sex offender from reoffending.

In four of five federal districts we visited, the U.S. Marshals Service works with other criminal justice agencies through a regional task force to enforce registration requirements. For example, in one federal district, U.S. Marshals Service officials formed a task force, which is composed of members from the state registry agency, probation officers, and local law enforcement from four localities in the state. The task force’s functions include locating offenders who have warrants for their arrest for failure-to- register violations. U.S. Marshals Service’s investigations of such violations have increased every year from 340 in 2007 to 3,061 in 2011. (See app. VII for additional details on U.S. Marshals Service’s failure-to- register investigations and subsequent prosecutions).

Stakeholders we interviewed, including officials from public defender, probation, law enforcement, and prosecutors’ offices, as well as survey respondents, identified the following negative or unintended consequences of implementing SORNA in the jurisdiction.

Lack of consideration of risk of reoffending. Representatives from four of six local probation offices argued that SORNA’s classification system inappropriately implies that a sex offender poses more or less of a risk to public safety simply based on the offense for which the sex offender was convicted and does not account for the facts of each individual case when determining registration requirements. For example, a defendant may have committed a sex offense such as rape but pled to a lesser sex offense charge that could result in the defendant being assigned to a tier with less stringent registration requirements than the tier corresponding to the crime the person actually committed. In this instance, the tier is not tied to the actual behavior of the offender, and therefore, is not a reliable indicator of the risk the offender poses to public safety.

Three of six local public defenders stated that since SORNA requirements are not based on a risk assessment, law enforcement resources are not focused on sex offenders who are most likely to reoffend. For example, one public defender said that a client had been convicted of a Tier I offense, but exhibited behavior patterns associated with increased risk of reoffending. However, because judges under SORNA no longer have discretion regarding the tier level of convicted offenders or the frequency or duration of registration, the sex offender remained in Tier I and does not face as stringent registration requirements as those in higher tiers, even though the person may be likely to reoffend.

Increased workload. Some stakeholders reported that their workload has increased since the implementation of SORNA, in part because of responsibilities associated with the tiering of registered sex offenders and increased frequency of registration. Officials from two state registry agencies we spoke with identified the tiering or retiering of registered sex offenders as a reason for a workload increase. For example, one state registry had four out of five staff members in the registry unit devote most of their time to tiering offenders moving to the jurisdiction from another state. Such work includes receiving court documents from the original conviction and comparing the elements of the sex offense with the state’s statutes so that the agency could determine the appropriate tier for the registered sex offender. For one police department, the increase in the number of times the department had to register or update a registration for a sex offender was greater than the increase in the actual number of sex offenders. This is because the act increased the frequency of registration for many sex offenders from once per year to either two or four times per year, depending on the registered sex offender’s tier. Specifically, in 2008, this police department had a total of 4,785 registrations for 2,020 registered sex offenders in the county. In comparison, for the first half of 2012 (as of June), the same police department had 5,694 registrations for 2,079 registered sex offenders. The number of sex offenders increased by about 3 percent, while the number of registrations increased by about 19 percent for this time period.

To help address resource burdens, the SMART Office has offered grant programs and the U.S. Marshals Service has offered personnel, equipment, and funding support. In fiscal year 2012, agencies in 12 of the 19 jurisdictions that have implemented SORNA received Adam Walsh Act Implementation Grant Funds. In most cases, the grantee was the state registry agency. One jurisdiction plans to use the grant funds to hire an additional staff person and fund overtime for officers to maintain all of the required information for the sex offender registry. Another jurisdiction plans to use some of the grant funds for overtime to work with the U.S. Marshals Service to pursue sex offenders who have failed to register. The U.S. Marshals Service helps to address workload and resource needs for local law enforcement by providing manpower, needed equipment, and funds for overtime hours in support of enforcement activities such as address verification operations. For example, from fiscal years 2009 to 2012, the U.S. Marshals Service expended over $6.4 million to help state and local law enforcement agencies conduct 949 sex offender enforcement operations, including over 150,000 completed address verifications, which involved the participation of more than 6,300 U.S. Marshals Service personnel.

Four of five district or state attorneys’ offices and five of six local public defenders offices we spoke with indicated that workload had increased as a result of the implementation of SORNA, in part because the concern about registration requirements has made it more difficult to reach plea agreements in sex offense cases. For example, one senior prosecutor stated that sex offense cases are going to trial more often because people being prosecuted for a sex offense want to avoid registration requirements.

Effect on registered sex offenders. Officials from public defender and probation offices stated that SORNA implementation has made it more difficult for registered sex offenders to obtain housing and employment, which can negatively affect their ability to reintegrate into their communities. While sex offenders were subject to public registration requirements prior to the enactment of SORNA, the act expanded the information required on the registry in some jurisdictions. For example, SORNA requires that sex offenders register their address of residence, employment, and school, and some jurisdictions that implemented the law did not previously collect all of this information. One public defender said that some landlords do not want to rent housing to registered sex offenders because the address of the property would be on the registry. In one state, the agency in charge of the juvenile justice system reported concerns that juvenile registered sex offenders may have difficulties in finding a foster home because of the requirement to register the address of residence.defender’s office observed that since SORNA was implemented in the jurisdiction, the requirement to publish the employer’s address resulted in several instances of registered sex offenders losing their jobs.

In addition, a senior official from one state’s public Public defenders also observed that the complexity of registration requirements results in situations where registered sex offenders are prone to technical violations, and, therefore, subject to failure-to-register penalties. For example, a public defender in one jurisdiction stated that registered sex offenders are required to appear in person to verify their registration “on or before” a certain date; however, sex offenders must also update their registration anytime there is a change in their information. Therefore, if a registered sex offender had to update that person’s registration in between normally required verification times because of a change, such as a new address, that person may not realize that an in-person appearance is still required on the designated verification date. This could result in a failure-to-register violation, which in this particular jurisdiction now has a higher mandatory minimum sentence since the implementation of SORNA. One CURE member who is required to register as a sex offender in a state that has implemented SORNA noted that it is difficult to keep track of all of the registration requirements because they often change, but the people required to register are not always informed of these changes.

A Comprehensive Study by NIJ on SORNA’s Effects Should Help Address Research Gaps on the Law’s Impact

The Adam Walsh Act requires NIJ, the research and evaluation agency of DOJ, to conduct a comprehensive examination of sex offender issues, including SORNA’s effectiveness in increasing compliance with sex offender registration and notification requirements and the effect of sex offender registration and notification requirements on increasing public safety. NIJ was to report its results by July 2011. However, as of November 2012, NIJ had not conducted a study in support of this requirement. NIJ officials stated that the money authorized in support of this study has not been appropriated. The Deputy Director of NIJ stated that NIJ does not proactively request funding that Congress has authorized for specific studies, but typically waits for Congress to decide when to appropriate the funding. If NIJ determines that it does not have the resources to conduct a study on its own, which is the case for the SORNA study, NIJ will competitively award funding to another entity to conduct the study. NIJ officials added that they do not prepare a solicitation for a congressionally mandated study until they receive funding for the study. However, NIJ may conduct some preliminary work in the area that is the subject of the study to help ensure that the solicitation has enough information so that the applicants understand what is being asked of them. For example, regarding the SORNA study, NIJ and SMART Office officials stated that they have discussed the status of SORNA implementation and potential associated costs.

NIJ officials acknowledged that given the variability in how jurisdictions have implemented SORNA, researchers may face challenges associated with identifying outcome measures for SORNA; determining how best to measure SORNA’s impact on public safety, such as whether recidivism is appropriately measured; and ensuring that consistent data are available to measure these outcomes. NIJ expects that the entity that will ultimately be awarded funding to conduct the study would address these challenges when planning and designing the evaluation. A carefully planned, comprehensive study on the effects of SORNA implementation on public safety will help determine whether the requirements of the legislation are achieving their intended effects, or need any revisions, and address research gaps in this area.

Agency Comments

We provided a draft of this report to DOJ and the Administrative Office of the United States Courts (AOUSC) for review and comment. Neither DOJ nor AOUSC provided written comments on the draft report, but both provided technical comments, which we incorporated throughout the report as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Attorney General, the Director of the Administrative Office of the United States Courts, and other interested parties. This report is also available at no charge on GAO’s website at http://www.gao.gov.

If you or your staff have any questions, please contact me at (202) 512- 8777 or larencee@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Staff acknowledgments are provided in appendix VIII.

Appendix I: Objectives, Scope, and Methodology

Our objectives for this report were to address the following questions:

To what extent has the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) determined that jurisdictions have met the requirements for substantial implementation of the Sex Offender Registration and Notification Act (SORNA), and what challenges, if any, have jurisdictions faced in implementing the act?

For jurisdictions that have substantially implemented SORNA, what are the reported effects that the act has had on public safety, criminal justice stakeholders, and registered sex offenders?

For this report, we assessed SORNA implementation efforts for the 50 states, the 5 principal U.S. territories (American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands), and the District of Columbia. We did not include federally recognized Indian tribes eligible under the act’s provisions as part of this review because of the unique challenges tribes face in implementing SORNA compared with the states, territories, and the District of Columbia. For example, most tribes did not have a sex offender registry in place prior to SORNA. We plan to analyze implementation efforts for eligible tribal jurisdictions in a separate review and issue the results no later than early 2014.

To address the first objective, we analyzed reports that the SMART Office prepared from September 2009 through September 2012 for jurisdictions that submitted packages on their implementation efforts to the office for review. For those jurisdictions that the office subsequently determined to have substantially implemented SORNA, we identified areas where the office has allowed for flexibility in meeting the act’s requirements. For the remaining jurisdictions that the office determined had not substantially implemented SORNA, we identified which requirements the office determined these jurisdictions had met and which they had not met. We then analyzed this information to identify any patterns across these requirements.

To identify the types and prevalence of any challenges jurisdictions have faced in implementing SORNA, we surveyed jurisdiction officials the SMART Office identified as being responsible for implementing the act in the 50 states, 5 U.S. territories, and the District of Columbia. These officials included representatives of state police departments or attorney general offices. For jurisdictions that have not substantially implemented SORNA, we used the survey to determine to what extent jurisdiction officials are actively working to do so and to identify what actions, if any, they are taking or that the federal government could take to address implementation challenges. Additionally, we used the survey to obtain jurisdiction officials’ perspectives on the SMART Office’s guidance and the criteria it used to determine whether or not a jurisdiction has substantially implemented SORNA. To develop this survey, we designed draft questionnaires in close collaboration with a GAO social science survey specialist and conducted pretests with 4 jurisdictions to help further refine our questions, develop new questions, clarify any ambiguous portions of the survey, and identify any potentially biased questions. We launched our web-based survey on July 16, 2012, and received all responses by October 22, 2012. Login information for the web-based survey was e-mailed to all participants, and we sent two follow-up e-mail messages to all nonrespondents and contacted the remaining nonrespondents by telephone. We received responses from 93 percent (52 of 56) of all jurisdictions surveyed, including 100 percent (19 of 19) of jurisdictions that have been determined by the SMART Office to have substantially implemented SORNA and 89 percent (33 of 37) of jurisdictions that have not substantially implemented SORNA. Not all survey respondents provided answers to all survey questions.

Because the survey was conducted with all jurisdictions, there are no sampling errors. However, the practical difficulties of conducting any survey may introduce nonsampling errors. For example, differences in how a particular question is interpreted, the sources of information available to respondents, or the types of people who do not respond can introduce unwanted variability into the survey results. We included steps in both the data collection and data analysis stages to minimize such nonsampling errors. We also made multiple contact attempts with nonrespondents during the survey by e-mail and telephone. Since this was a web-based survey, respondents entered their answers directly into the electronic questionnaire, eliminating the need to key data into a database, minimizing error. We examined the survey results and performed computer analyses to identify inconsistencies and other indications of error. A second independent analyst checked the accuracy of all computer analyses.

We also analyzed Department of Justice (DOJ) reports to Congress on the status of SORNA implementation nationwide and related guidance documents and implementation tools the SMART Office prepared in support of jurisdictions’ efforts. These included the National Guidelines and Supplemental Guidelines for Sex Offender Registration and Notification. Furthermore, we interviewed officials from the office to identify and describe the types of assistance provided to jurisdictions in support of implementation and to solicit their perspectives on the issues and challenges jurisdictions in our survey identified.

To address the second objective, we conducted site visits or interviewed officials from a nonprobability sample of 5 jurisdictions that the SMART Office determined to have substantially implemented SORNA—the Commonwealth of the Northern Mariana Islands, Florida, Louisiana, Maryland, and Ohio. We selected these jurisdictions to represent a range in the number of registered sex offenders per 100,000 residents and the year that the jurisdiction substantially implemented the act. In each jurisdiction, we interviewed officials representing components of the criminal justice system who are involved in implementing or enforcing SORNA requirements. Specifically, at the federal level, we interviewed officials from Federal Probation and Pretrial Services, Federal Public Defenders Offices, U.S. Attorneys’ Offices (USAO), and the U.S. Marshals Service. At the state and local levels, we interviewed officials responsible for implementing the act, which included five state registry agencies, eight local law enforcement agencies, six local adult and juvenile probation and parole officers, five local prosecutors, and six local public defenders. While these officials’ perspectives on the effects of SORNA cannot be generalized to all substantially implemented jurisdictions, they provided insights into the effects of the act’s implementation.

To supplement information obtained during the site visits, we included questions in our nationwide survey of jurisdiction officials about the types and prevalence of effects observed or expected from implementing SORNA and whether they were positive or negative. We also interviewed or contacted representatives of relevant national associations and organizations—selected based on factors such as whether they testified before Congress on the effects of SORNA—to obtain their perspectives on the effects of SORNA implementation in various areas. Specifically, we interviewed or contacted the American Civil Liberties Union, Association for the Treatment of Sexual Abusers, Citizens United for Rehabilitation of Errants, National Center for Missing and Exploited Children, National Crime Victims Law Institute, National Criminal Justice Association, and the National Sheriffs’ Association.

We also sought to identify studies on the effect of SORNA requirements in jurisdictions that have implemented the law. Specifically, we conducted searches of various databases, such as CQ Alert, Nexis News Alert, Proquest, PolicyFile, Academic OneFile, FirstSearch Databases, and reviewed related GAO reports. We also corresponded with recognized experts on sex offender registration and notification policies to identify relevant research. From these sources, we identified five studies that assessed certain aspects of SORNA requirements. We also identified an analysis that evaluated the results of seven studies in selected states on the effect of sex offender registration and notification, in general, on recidivism among sex offenders. We initially reviewed the findings of these studies, and a GAO social scientist reviewed the evaluation methodology against generally accepted social science standards and confirmed that the studies’ methods were reasonable for our purposes and our reported summary analyses of the research findings were accurate.

We also analyzed documents, such as a U.S. Marshals Service training manual, and data related to federal enforcement of the SORNA requirements. Specifically, we analyzed trends in federal investigations and prosecutions of failure-to-register violations from fiscal years 2007 to 2011. We assessed the reliability of these data by interviewing staff responsible for the data and reviewing relevant documentation. We determined that these data were sufficiently reliable for the purposes of this report. To the extent relevant data were available from the locations where we conducted our site visits, such as the number of failure-to- register violations or information contained in individual jurisdictions’ sex offender registries, we used these data in this report primarily for contextual purposes and not as an indicator of public safety outcomes.

We conducted this performance audit from January 2012 through February 2013 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: SORNA Substantial Implementation Checklist Tool

The SMART Office has developed the SORNA Substantial Implementation Checklist tool to be used by jurisdictions in developing, organizing, and submitting a substantial implementation package for review. While not intended to be a definitive guide to SORNA’s full implementation requirements, the SORNA Checklist is organized into 14 sections covering the major requirements of the law, as shown in table 4.

Appendix III: Deviations Allowed by the SMART Office in Jurisdictions That Have Substantially Implemented SORNA

Nearly all (18 of 19, or 95 percent) of the substantially implemented jurisdictions deviate in some way from the 14 sections of SORNA requirements outlined in the SORNA Implementation Checklist tool, as shown in figure 3.

The number of jurisdictions with allowable deviations also varied across the 14 sections of SORNA requirements, with the highest number of deviations being allowed in the information that is required at registration (14 of 19 jurisdictions), the classification or tiering of offenses (13), application of the requirements retroactively (11), and the offenses that must be included in a jurisdiction’s sex offender registry (10), as shown in figure 4.

Appendix IV: SORNA Requirements Met by Nonimplemented Jurisdictions That Submitted Complete Implementation Packages for SMART Office Review

The SMART Office determined that, for the 17 states and territories that submitted complete implementation packages for review and were determined to have not yet substantially implemented SORNA, 15 of these jurisdictions have implemented at least half of the 14 sections of requirements outlined in the SORNA Implementation Checklist tool, as shown in figure 5.

Appendix V: Challenges to Implementing SORNA Reported by Survey Respondents from Nonimplemented Jurisdictions

Officials from 29 of the 33 nonimplemented jurisdictions that responded to our survey questions on challenges to implementing SORNA reported that their jurisdictions faced challenges. Officials from each of the 29 jurisdictions reported 3 to 13 challenges to their jurisdiction’s efforts to substantially implement SORNA. Figure 6 displays the challenges these jurisdictions reported.

Appendix VI: Department of Justice Written Guidance Addressing Challenges with Substantially Implementing SORNA

DOJ has taken steps to address challenges jurisdictions faced in their efforts to substantially implement SORNA, including providing written guidance. Specifically, DOJ released National Guidelines in July 2008 and Supplemental Guidelines in January 2011, which were intended to help address challenges with applying the act’s requirements retroactively, implementing a conviction-based tiering structure, and implementing the juvenile requirements, among other things. Table 5 discusses these efforts.

Appendix VII: U. S. Marshals Service Investigations and U.S. Attorneys’ Offices Prosecutions of SORNA Violations

As shown in figure 7, data obtained from the U.S. Marshals Service indicate that the number of SORNA-related investigations increased every year from fiscal year 2007 through fiscal year 2011.

As shown in figure 8, the number of people federally prosecuted in closed failure-to-register cases by USAOs in all federal districts increased every year from fiscal year 2007 through fiscal year 2011.defendants were referred by the U.S. Marshals Service to the USAOs for prosecution.

Appendix VIII: GAO Contact and Staff Acknowledgments

GAO Contact

Acknowledgments

In addition to the contact named above, Kristy Brown, Assistant Director, and Hugh Paquette, Analyst-in-Charge, managed this engagement. Alicia Loucks and Amrita Sen made significant contributions to the report. Susan Baker, Frances Cook, Michele Fejfar, Eric Hauswirth, and Lara Miklozek also provided valuable assistance.