[Federal Register Volume 61, Number 66 (Thursday, April 4, 1996)]
[Notices]
[Pages 15110-15117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8186]



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DEPARTMENT OF JUSTICE
Office of the Attorney General
[AG Order No. 2014-96]
RIN 1105-AA36


Final Guidelines for the Jacob Wetterling Crimes Against Children 
and Sexually Violent Offender Registration Act

agency: Department of Justice.

action: Final guidelines.

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summary: The United States Department of Justice (DOJ) is publishing 
Final Guidelines to implement the Jacob Wetterling Crimes Against 
Children and Sexually Violent Offender Registration Act.

effective date: April 4, 1996.

for further information contact: Bonnie J. Campbell, Director, Violence 
Against Women Office, U.S. Department of Justice, Tenth and 
Pennsylvania Avenue, NW, Washington, DC 20530, 202-616-8894.

supplementary information: Section 170101 of the Violent Crime Control 
and Law Enforcement Act of 1994, Public Law 103-322, 108 Stat. 1796, 
2038 (codified at 42 U.S.C. 14071), contains the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender Registration Act 
(hereafter referred to as the ``Jacob Wetterling Act'' or ``the Act''). 
The Act provides a financial incentive for states to establish 10-year 
registration requirements for persons convicted of certain crimes 
against minors and sexually violent offenses, and to establish a more 
stringent set of registration requirements for a sub-class of highly 
dangerous sex offenders, characterized as ``sexually violent 
predators.'' States that fail to establish such systems within three 
years (subject to a possible two year extension) face a 10% reduction 
in their Byrne Formula Grant funding (under 42 U.S.C. 3756), and 
resulting surplus funds will be reallocated to states that are in 
compliance with the Act.

Summary of Comments on the Proposed Guidelines

    On April 12, 1995, the U.S. Department of Justice published 
Proposed Guidelines in the Federal Register (60 FR 18613) to implement 
the Jacob Wetterling Act. The original 90 day comment period expired on 
July 11, 1995. To ensure the public ample opportunity to review and 
comment on the Proposed Guidelines, on September 14, 1995, the 
Department published a notice in the Federal Register to reopen the 
comment period for an additional 45 days (60 FR 47760). In addition, 
the Department mailed copies of the Proposed Guidelines to state 
registration authorities and requested their comments. The extended 
comment period closed on October 30, 1995.
    Following the publication of the Proposed Guidelines, the 
Department of Justice received 19 letters, mostly from state officials. 
These letters contained numerous comments, questions, and 
recommendations, all of which were carefully considered in developing 
the Final Guidelines. A summary of the comments and responses to them 
are provided in the following paragraphs.

[[Page 15111]]


A. Coverage of the Jacob Wetterling Act

    One respondent expressed concern that the Act does not provide for 
sex offender registration and notification in relation to military 
offenders who are convicted in court martial proceedings, in 
prosecutions under the federal criminal code, or in prosecutions by 
foreign host nations. In order to extend registration as far as 
possible to categories of convicted sex offenders who may not be within 
the scope of the statute as presently formulated, the Guidelines have 
been revised to encourage states to consider including federal and 
military sex offenders within their registration programs.

B. ``Sexually Violent Predator'' Determinations

1. Necessity for Determination
    A number of respondents questioned the need for a two-tier 
registration system under which states must adopt means for determining 
whether an offender is a ``sexually violent predator'' and follow more 
stringent registration procedures for offenders so classified. The 
Department recognizes that this scheme may require states to make 
changes in their existing registration systems. The two-tier scheme was 
established by the Act, however, and cannot be modified by the 
Guidelines, absent legislative changes. As explained in the Final 
Guidelines, a two-tier approach can be dispensed with only if a state 
is willing to subject all persons convicted of a ``sexually violent 
offense'' to the more stringent registration requirements and standards 
provided by the Act for ``sexually violent predators.''
2. State Board of Experts
    A number of commenters posed questions about the composition and 
activities of the state boards of experts that will assist sentencing 
courts in determining whether an offender is a ``sexually violent 
predator''. In particular, respondents questioned the necessity for 
using such boards, inquired as to what qualification experts must 
possess to serve on the boards, and raised concerns about the timing of 
the ``sexually violent predator'' determination. One commenter also 
expressed concerns about the ability of small states to assemble panels 
of experts.
    States wishing to comply with the Act must utilize boards of 
experts to assist sentencing courts in making ``sexually violent 
predator'' determinations because the statue expressly requires this 
procedure. The Guidelines have been clarified to address commenters' 
other concerns, however. In particular, the Guidelines make clear that 
states are free to (1) determine who qualifies as an expert for 
purposes of board participation, (2) utilize out-of-state experts, and 
(3) decide at what point the ``sexually violent predator'' 
determination will be made.
3. Definition of ``Sexually Violent Predator''
    A number of commenters expressed concerns about the definition of 
``sexually violent predator'' and sought various clarifications in the 
definition. The Guidelines have not been changed to reflect these 
concerns. The Act itself contains definitions of ``sexually violent 
predator'' and the component term ``mental abnormality.'' The 
Guidelines cannot alter definitions appearing in the statute. Since the 
Act does not define the component term ``personality disorder,'' the 
Guidelines already provide that the definition of this term is a matter 
of state discretion.
4. Required Documentation
    One respondent expressed concern about the extent of documentation 
required by the Act concerning treatment received by a ``sexually 
violent predator'' for a mental abnormality or personality disorder. 
The Guidelines have been modified to reflect this concern. Under the 
Final Guidelines, states may comply with the requirement to document an 
offender's treatment history simply by noting that the offender 
received treatment.
    The respondent also proposed that the Guidelines clarify that 
documentation of treatment history is a one-time event. However, this 
change is unnecessary because nothing in the Act or Guidelines states 
or suggests that the treatment history of a ``sexually violent 
predator'' must be updated following the initial submission of 
information.
5. Interaction with Insanity Defense
    One respondent raised questions about the possible interaction 
between a determination that an offender is a ``sexually violent 
predator'' and the insanity defense. The commenter questioned whether a 
state may classify an offender as a ``sexually violent predator'' only 
when the offender successfully raised an insanity defense, and also 
questioned whether a determination that an offender is a ``sexually 
violent predator'' could bolster the offender's insanity claim.
    The Guidelines have not been revised to reflect these concerns 
because there is no relationship between the two legal categories. Of 
course, if an offender had successfully raised an insanity defense, he 
could not be convicted for the offense charged, and no registration 
requirement based on that offense would arise under the Jacob 
Wetterling Act. Further, because the elements in the statutory 
definition of ``sexually violent predator'' do not establish the 
necessary elements of an insanity defense under state laws, a state 
could conclude that an offender is a ``sexually violent predator,'' 
though the offender could not successfully raise an insanity defense. 
Finally, with regard to an offender who was classified as a ``sexually 
violent predator'' in connection with a previous prosecution and 
conviction, the Act does not contemplate any impact from that 
determination on the offender's ability to raise an insanity defense in 
a later prosecution.

C. State Law Enforcement Agency

1. Designation of Agency
    One commenter posed questions concerning how, when, and by whom the 
state law enforcement agency responsible for registration matters is to 
be designated, and another expressed concerns about the types of 
entities that may be selected. The Guidelines have been revised to 
clarify that states have discretion with regard to the means by which 
an agency is designated as the state law enforcement agency, the timing 
of such a designation, and the agencies that may be designated.
2. Necessity for using a State Agency
    A number of respondents questioned the necessity for using a state 
agency to receive registration information and conduct address 
verification. These commenters noted that in several states, 
registration and verification is conducted at the county or local 
level, rather than at the state level.
    The Guidelines have not been revised to reflect these concerns. 
Although the Act provides that registration information is to be shared 
with local law enforcement agencies, it requires that this information 
be submitted to a state law enforcement agency and that the state 
agency also conduct address verification. These procedures, which are 
set forth clearly in the Act, cannot be modified by the Guidelines, 
absent statutory changes.

D. Public Access to Registration Information

    One commenter expressed concern about the effect of the Act on a 
state's ability to disseminate registration information to the public. 
The Guidelines have not been modified to reflect this concern because 
they already

[[Page 15112]]
afford states the maximum discretion in this area that is consistent 
with the terms of the Act. The Guidelines make it clear that any 
restrictions placed by the Act on the disclosure of information do not 
constrain the release of information that a state would have 
independently of the operation of the registration system. Further, the 
Guidelines note and elaborate on the Act's provisions that registration 
information may be disclosed for certain law enforcement and background 
check purposes, and as necessary for public safety. The Guidelines also 
provide that states have discretion concerning the nature and extent of 
disclosure (including community notification and access to information 
on request by members of the public) that is necessary for public 
safety.

E. Compliance Review

    One commenter suggested that the Department provide states with 
written feedback concerning their compliance with the Act no later than 
the date on which a state receives its Byrne Formula Grant Funding. 
This recommendation has not been adopted in the Guidelines because the 
Department is still in the process of developing compliance review 
procedures. States will be notified about these procedures as they are 
developed.

Final Guidelines

    These guidelines carry out a statutory directive to the Attorney 
General, in section 170101)a)(1), to establish guidelines for 
registration systems under the Act. Before turning to the specific 
provisions of the Act, four general points should be noted concerning 
its interpretation and application.
    First, states that wish to achieve compliance with the Jacob 
Wetterling Act should understand that its requirements constitute a 
floor for state registration systems, not a ceiling, and that they do 
not risk the loss of part of their Byrne Formula Grant funding by going 
beyond its standards. For example, a state may have a registration 
system that covers a broader class of sex offenders than those 
identified in the Jacob Wetterling Act, or requires address 
verification for such offenders at more frequent intervals than the Act 
prescribes, or requires offenders to register for a longer period of 
time than the period specified in the Act.
    Exercising these options creates no problem of compliance, since 
the provisions in the Jacob Wetterling Act concerning duration of 
registration, covered offenders, and other matters, do not preclude 
states from imposing additional or more stringent requirements than 
encompass the Act's baseline requirements. The general objective of the 
Act is to protect people from child molesters and violent sex offenders 
through registration requirements. It is not intended, and does not 
have the effect, of making states less free than they were under prior 
law to impose registration requirements for this purpose.
    Second, states that wish to achieve compliance with the Jacob 
Wetterling Act also should understand that they may, within certain 
constraints, use their own criminal law definitions in defining 
registration requirements, and will not necessarily have to revise 
their registration systems to use technical definitions of covered sex 
offenses based on federal law. This point will be explained more fully 
below.
    Third, the Jacob Wetterling Act contemplates the establishment of 
programs that will impose registration requirements on offenders who 
are subsequently convicted of offenses in the pertinent categories. The 
Act does not require states to attempt to identify and impose 
registration requirements on offenders who were convicted of offenses 
in these categories prior to the establishment of a conforming 
registration system. Nevertheless, the Act does not preclude states 
from imposing any new registration requirements on offenders convicted 
prior to the establishment of the registration system.
    Fourth, the Act gives states wide latitude in designing 
registration programs that best meet their public safety needs. For 
instance, the Act allows states to release relevant information 
necessary to protect the public, including information released through 
community notification programs. Some state registration and 
notification systems have been challenged on constitutional grounds. A 
few courts have struck down registration requirements in certain cases. 
See Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994) (on motion for 
preliminary relief); State v. Babin, 637 So.2d 814 (La. App. 1994), 
writ denied, 644 So.2d 649 (La. 1994); State v. Payne, 633 So.2d 701 
(La. App. 1993), writ denied, 637 So.2d 497 (La. 1994); In re Reed, 663 
P.2d 216 (Cal. 1983) (en banc). However, a majority of courts that have 
dealt with the issue have held that registration systems like those 
contemplated by the Jacob Wetterling Act do not violate released 
offenders' constitutional rights.
    Some recent decisions have held that aspects of New Jersey's 
community notification program violate due process guarantees, or 
violate ex post facto guarantees as applied to persons who committed 
the covered offense prior to enactment of the notification statute. See 
Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D.N.J. 
1995) (appeal pending); W.P. v. Poritz, No. 96-97 (JWB) (D.N.J. Mar. 
15, 1996); Diaz v. Whitman, No. 94-6376 (JWB) (D.N.J. Jan. 6, 1995). 
However, the Department of Justice believes that the New Jersey 
community notification statute at issue in those cases does not violate 
the Ex Post Facto Clause and that the Fourteenth Amendment's Due 
Process Clause of its own force does not require recognition of such a 
liberty interest on the part of offenders affected by that statute, and 
has filed ``friend of the court'' briefs in cases challenging the New 
Jersey law. Moreover, the New Jersey Supreme Court, in John Doe v. 
Deborah Poritz, 662 A.2d 367 (N.J. 1995), upheld the New Jersey 
statute, although it imposed certain procedural protections under 
federal and state law.
    There has been ongoing litigation over the validity of notification 
systems in other states as well. see, e.g., Doe v. Pataki, No. 96 Civ. 
1657 (DC) (S.D.N.Y.); Nitz v. Otte, No. A95-486CI (JWS) (D. Alaska Jan. 
25, 1996) (appeal pending).
    The remainder of these guidelines address the provisions of the 
Jacob Wetterling Act in the order in which they appear in Section 
170101 of the Violent Crime Control and Law Enforcement Act of 1994.

General Provisions--Subsection (a)(1)-(2)

    Paragraph (1) of subsection (a) of Sec. 170101 directs the Attorney 
General to establish guidelines for state programs that require:

    (A) Current address registration for persons convicted of ``a 
criminal offense against a victim who is a minor'' or ``a sexually 
violent offense,'' and
    (B) Current address registration under a different set of 
requirements for persons who are determined to be ``sexually violent 
predators.''

    For purposes of the Act, ``state'' should be understood to 
encompass the political units identified in the provision defining 
``state'' for purposes of eligibility for Byrne Formula Grant funding 
(42 U.S.C. 3791(a)(2)) in light of the tie-in between compliance with 
the Act and the allocation of Byrne Formula Grant funding. Hence, the 
``states'' that must comply with the Act to maintain full eligibility 
for such funding are the fifty states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, 
and the Northern Mariana Islands.

[[Page 15113]]

    Paragraph (2) of subsection (a) states that the determination 
whether a person is a ``sexually violent predator'' (which brings the 
more stringent registration standards into play), and the determination 
that a person is no longer a ``sexually violent predator'' (which 
terminates the registration requirement under those standards), shall 
be made by the sentencing court after receiving a report by a state 
board composed of experts in the field of the behavior and treatment of 
sexual offenders.
    ``State board'' in paragraph (2) should be understood to mean a 
body or group containing two or more experts that is authorized by 
state law or designated under the authority of state law. Beyond the 
requirement that a board must be composed of experts in the field of 
the behavior and treatment of sexual offenders, the Act affords states 
discretion concerning the selection and composition of such boards. For 
example, a state could establish a single permanent board for this 
purpose, could establish a system of state-designated boards, or could 
authorize the designation of different boards for different courts, 
time periods, geographic areas or cases. In addition, the Act permits 
states to set their own standards concerning who qualifies as an expert 
in the field of the behavior and treatment of sexual offenders for 
purposes of board participation, and to utilize qualifying experts from 
outside the state to serve on the boards.
    As noted above, subsection (a)(1) requires states to register 
persons convicted of certain crimes against minors and sexually violent 
offenses, but states are free to go beyond the Act's minimum standards 
and include other classes of offenders within their sex offender 
registration programs. For example, states are encouraged to require 
sex offenders convicted in federal or military courts who reside in 
their jurisdictions to register. Although the Act does not require 
states to register such offenders, the presence of any convicted sex 
offender in the state--whether the offender was prosecuted in a state, 
federal, or military court--raises similar public safety concerns. Some 
states, including Washington and California, already require sex 
offenders convicted in federal or military courts to register.

Definition of ``Criminal Offense Against a Victim Who is a Minor''--
Subsection (a)(3)(A)

    The Act prescribes a 10-year registration requirement for persons 
convicted of a ``criminal offense against a victim who is a minor.'' 
Subparagraph (A) of paragraph (3) of subsection (a) defines the term 
``criminal offense against a victim who is a minor.'' ``Minor'' should 
be understood to mean a person below the age of 18, consistent with the 
normal understanding.
    The specific clauses in the definition of ``criminal offense 
against a victim who is a minor'' are as follows:
    (1) Clauses (i) and (ii) cover kidnapping of a minor (except by a 
parent) and false imprisonment of a minor (except by a parent). All 
states have statutes that define offenses--going by such names as 
``kidnapping,'' ``criminal restraint,'' or ``false imprisonment''--
whose gravamen is abduction or unlawful restraint of a person. States 
can comply with these clauses by requiring registration for persons 
convicted of these statutory offenses whose victims were below the age 
of 18. The Act does not require inclusion of these offenses in the 
registration requirement when the offender is a parent, but states may 
choose to require registration for parents who commit these offenses.
    (2) Clause (iii) covers offenses consisting of ``criminal sexual 
conduct toward a minor.'' Such offenses include convictions under 
general provisions defining sexually assaultive crimes--such as 
provisions defining crimes of ``rape,'' ``sexual assault,'' or ``sexual 
abuse''--in cases where the victim is in fact a minor. Coverage is not 
limited to cases where the victim's age is an element of the offense 
(such as prosecutions for specially defined child molestation 
offenses).
    States can comply with clause (iii) by requiring registration for 
persons convicted of all statutory sex offenses under state law whose 
elements involve physical contact with a victim, where the victim was 
below the age of 18 at the time of the offense. Offenses that do not 
involve physical contact, such as exhibitionism, are not subject to the 
Act's mandatory registration requirements pursuant to clause (iii), but 
states are free to require registration for persons convicted of such 
offenses as well if they so choose.
    (3) Clause (iv) covers offenses consisting of solicitation of a 
minor to engage in sexual conduct. This covers any conviction for an 
offense involving the solicitation of conduct that would be covered by 
clause (iii) if carried out.
    (4) Clause (v) covers offenses consisting of using a minor in a 
sexual performance. This includes both live performances and using 
minors in the production of pornography.
    (5) Clause (vi) covers offenses consisting of solicitation of a 
minor to practice prostitution.
    (6) Clause (vii) covers offenses consisting of any conduct that by 
its nature is a sexual offense against a minor. This clause is intended 
to insure uniform coverage of convictions under statutes defining sex 
offenses in which the status of the victim as a minor is an element of 
an offense, such as specially defined child molestation offenses, and 
other offenses prohibiting sexual activity with underage persons. 
States can comply with this clause by including convictions under these 
statutes uniformly in the registration requirement.
    (7) Considered in isolation, clause (viii) gives states discretion 
whether to require registration for attempts to commit offenses 
described in clauses (i) through (vii). However, any verbal command or 
attempted persuasion of the victim to engage in sexual conduct would 
bring the offense within the scope of the solicitation clause (clause 
(iv)), and make it subject to the Act's mandatory registration 
requirements. Moreover, this provision must be considered in 
conjunction with the Act's requirement of registration for persons 
convicted of a ``sexually violent offense,'' which does not allow the 
exclusion of attempts if they are otherwise encompassed within the 
definition of a ``sexually violent offense.''
    Hence, state discretion to exclude attempted sexual offenses 
against minors from registration requirements pursuant to clause (viii) 
is limited by other provisions of the Act. The simplest approach for 
states would be to include attempted sexual assaults on minors (as well 
as completed offenses) uniformly as predicates for the registration 
requirement.
    At the conclusion of the definition of ``criminal offense against a 
victim who is a minor,'' the Act states that (for purposes of the 
definition) conduct which is criminal only because of the age of the 
victim shall not be considered a criminal offense if the perpetrator is 
18 years of age or younger. For example, suppose that state law 
prohibits sexual relations with a person below the age of 16, where the 
defendant is more than 4 years older than the victim. Suppose further 
that an 18-year-old is convicted of violating this prohibition by 
engaging in consensual sexual relations with a 13-year-old, where the 
conduct would not violate state law but for the victim's age. Under the 
provision, if a state did not require such an offender to register, the 
state would still be in compliance with the Act. However, here again, 
states are free to go beyond the Act's baseline requirements. The 
exemption of certain offenders based on age from

[[Page 15114]]
the Act's mandatory registration requirements does not bar states from 
including such offenders in their registration systems if they wish. 
Moreover, the scope of subsection (a)(3)(A)'s exemption is also limited 
by other provisions of the Act that require registration of persons 
convicted of ``sexually violent offenses'' (as defined in (a)(3)(B)), 
with no provision excluding younger offenders where the criminality of 
the conduct depends on the victim's age.
    Since the Act's registration requirements depend in all 
circumstances on conviction of certain types of offenses, states are 
not required to mandate registration for juveniles who are adjudicated 
delinquent--as opposed to adults convicted of crimes and juveniles 
convicted as adults--even if the conduct on which the juvenile 
delinquency adjudication is based would constitute an offense giving 
rise to a registration requirement if engaged in by an adult. However, 
states remain free to require registration for juvenile delinquents, 
and the conviction of a juvenile who is prosecuted as an adult does 
count as a conviction for purposes of the Act's registration 
requirements.

Definition of ``Sexually Violent Offense''--Subsection (a)(3)(B)

    The Act prescribes a ten-year registration requirement for 
offenders convicted of a ``sexually violent offense,'' as well a for 
those convicted of a ``criminal offense against a victim who is a 
minor.''
    Subparagraph (B) of paragraph (3) defines the term ``sexually 
violent offense'' to mean any criminal offense that consists of 
aggravated sexual abuse or sexual abuse (as described in sections 2241 
and 2242 of title 18, United States Code, or as described in the State 
criminal code), or an offense that has as its elements engaging in 
physical contact with another person with intent to commit such an 
offense. In light of this definition, there are two ways in which a 
state could satisfy the requirement of registration for persons 
convicted of ``sexually violent offenses'':
    First, suppose that a state has offenses in its criminal code that 
are designated ``aggravated sexual abuse'' and ``sexual abuse,'' or has 
a definitional provision that characterizes certain offenses in its 
criminal code (however denominated) as constituting ``aggravated sexual 
abuse'' and ``sexual abuse'' for registration purposes or other 
purposes. Such a state could comply simply by requiring registration 
for all offenders who are convicted of these state offenses, and all 
offenders convicted of any state crime that has as its elements 
engaging in physical contact with another person with intent to commit 
such an offense.
    Second, a state could comply by requiring registration for 
offenders convicted for criminal conduct that would violate 18 U.S.C. 
2241 or section 2242--the federal ``aggravated sexual abuse'' and 
``sexual abuse'' offenses--if subject to federal prosecution. (The 
second part of the definition in subparagraph (B) of paragraph (3), 
relating to physical contact with intent to commit aggravated sexual 
abuse or sexual abuse, does not enlarge the class of covered offenses 
under the federal law definitions, since sections 2241 and 2242 
explicitly encompass attempts as well as completed offenses.)
    Specifically, 18 U.S.C. Secs. 2241-42 generally proscribe non-
consensual ``sexual acts'' with anyone, ``sexual acts'' with persons 
below the age of 12, and attempts to engage in such conduct. ``Sexual 
act'' is generally defined (in 18 U.S.C. 2246(2)) to mean an act 
involving any degree of genital or anal penetration, oral-genital or 
oral-anal contact, or direct genital touching of a victim below the age 
of 16 in certain circumstances even without penetration.
    States that elect this second option--requiring registration for 
offenses that consist of aggravated sexual abuse or sexual abuse as 
defined in federal law provisions (18 U.S.C. 2241-42)--do not 
necessarily have to refer to these federal statutes in their 
registration provisions, but could alternatively achieve compliance by 
requiring registration for the state law offenses that encompass types 
of conduct proscribed by 18 U.S.C. 2241-42. Moreover, a state does not 
have to have sex offenses whose scope is congruent with 18 U.S.C. 2241-
42 to take the latter approach. If state law does not criminalize some 
types of conduct that are covered by 18 U.S.C. 2241-42, then a person 
who engages in the conduct will not be subject to prosecution and 
conviction under state law, and there will be no basis for a 
registration requirement. On the other hand, if state sex offenses are 
defined more broadly than 18 U.S.C. 2241-42, then states are free to 
require registration for all offenders convicted under these state 
provisions (notwithstanding their greater breadth), and this would be 
sufficient to ensure coverage of convictions for criminal conduct that 
would violate 18 U.S.C. Secs. 2241-42 if subject to federal 
prosecution.

Definition of ``Sexually Violent Predator''--Subsection (a)(3)(C)-(E)

    Offenders who meet the definition of ``sexually violent predator'' 
are subject to more stringent registration requirements than other sex 
offenders.
    (1) Subparagraph (C) defines ``sexually violent predator'' to mean 
a person who has been convicted of a sexually violent offense and who 
suffers from a mental abnormality or personality disorder that makes 
the person likely to engage in predatory sexually violent offenses.
    (2) Subparagraph (D) essentially defines ``mental abnormality'' to 
mean a condition involving a disposition to commit criminal sexual acts 
of such a degree that it makes the person a menace to others. There is 
no definition of ``personality disorder'' in the Act; hence, the 
definition of this term is a matter of state discretion. For example, a 
state may choose to utilize the definition of ``personality disorder'' 
that appears in the Diagnostic and Statistical Manual of Mental 
Disorders: DSM-IV. American Psychiatric Association, Diagnostic and 
Statistical Manual of Mental Disorders (4th ed. 1994).
    (3) Subparagraph (E) defines ``predatory'' to mean an act directed 
at a stranger or at a person with whom a relationship has been 
established or promoted for the primary purpose of victimization.
    As noted earlier, the Act provides that the determination whether 
an offender is a ``sexually violent predator'' is to be made by the 
sentencing court with the assistance of a board of experts. The Act 
does not require, or preclude, that all persons convicted of a sexually 
violent offense undergo a determination as to whether they satisfy the 
definition of ``sexually violent predator.'' It also does not specify 
under what conditions such an inquiry must be undertaken. A state that 
wishes to comply with the Act must adopt some approach to this issue, 
but the specifics are a matter of state discretion. For example, a 
state might provide that the decision whether to seek classification of 
an offender as a ``sexually violent predator'' is a matter of judgment 
for prosecutors, or might provide that a determination of this question 
should be undertaken routinely when a person is convicted of a sexually 
violent offense and has a prior history of committing such crimes.
    Similarly, the Act affords states discretion with regard to the 
timing of the determination whether an offender is a ``sexually violent 
predator.'' A sate may, but need not, provide that a determination on 
this issue be made at the time of sentencing or as a part of the

[[Page 15115]]
original sentence. It could, for example, be made instead by the 
sentencing court when the offender has served a term of imprisonment 
and is about to be released from custody. In addition, a determination 
whether an offender is a ``sexually violent predator'' need not be made 
by the judge who imposed the original sentence, so long as the 
determination is made in the same court that imposed the sentence.
    As with other features of the Jacob Wetterling Act, the sexually 
violent predator provisions only define baseline requirements for 
states that wish to maintain eligibility for full Byrne Formula Grant 
funding. States are free to impose these more stringent registration 
requirements on a broader class of offenders, and may use state law 
categories or definitions for that purpose, without contravening the 
Jacob Wetterling Act.
    If a state chooses to subject all persons convicted of a ``sexually 
violent offense'' to the more stringent registration requirements and 
standards provided by the Act for ``sexually violent predators,'' then 
a particularized determination that an offender is a ``sexually violent 
predator'' would have no practical effect and would be superfluous. 
Hence, if a state elected this approach, it would not be necessary for 
the state to have ``sexually violent predator'' determinations made by 
the sentencing court, or to constitute boards of experts to advise the 
courts concerning such determinations, prior to the commencement of 
registration. In a state that eschewed particularized ``front end'' 
determinations of ``sexually violent predator'' status in this manner, 
however, it would still be necessary to condition termination of the 
registration requirement on a determination by sentencing court 
(assisted by a board of experts) pursuant to section 170101(b)(6)(B) of 
the Act that the person does not suffer from a mental abnormality or 
personality disorder that would make the person likely to engage in a 
predatory sexually violent offense.

Specifications concerning State Registration Systems under the Act--
Subsection (b)

    Paragraph (1) of subsection (b) sets out duties for prison 
officials and courts in relation to offenders required to register who 
are released from prison, or who are placed on any form of post-
conviction supervised release ``parole, supervised release, or 
probation'').
    The duties, set out in subparagraph (A) of paragraph (1), include: 
(i) informing the person of the duty to register and obtaining the 
information required for registration (i.e., address information), (ii) 
informing the person that he must give written notice of a new address 
within 10 days to a designated state law enforcement agency if he 
changes residence, (iii) informing the person that, if he changes 
residence to another state, he must inform the registration agency in 
the state he is leaving, and must also register the new address with a 
designated state law enforcement agency in the new state within 10 days 
(if the new state has a registration requirement), (iv) obtaining 
fingerprints and a photograph if they have not already been obtained, 
and (v) requiring the person to read and sign a form stating that these 
requirements have been explained.
    Beyond these basic requirements, which apply to all registrants, 
subparagraph (B) of paragraph (1) of subsection (b) requires that 
additional information be obtained in relation to a person who is 
required to register as a ``sexually violent predator.'' The 
information that is specifically required under subparagraph (B) is the 
name of the person, identifying factors, anticipated future residence, 
offense history, and documentation of any treatment received for the 
mental abnormality or personality disorder of the person. The Act does 
not require that prison officials or courts conduct an investigation to 
determine the offender's treatment history. For purposes of documenting 
the treatment received, prison officials and courts may rely on 
information that is readily available to them, either from existing 
records or the offender. In addition, prison officials and courts may 
comply with the requirement to document an offender's treatment history 
simply by noting that the offender received treatment for a mental 
abnormality or personality disorder. If states want to require the 
inclusion of more detailed information about the offender's treatment 
history, however, they are free to do so.
    States that wish to comply with the Act will need to adopt statutes 
or administrative provisions to establish the duties specified in 
subsection (b)(1) and ensure that they are carried out. These 
informational requirements, like other requirements in the Act, only 
define minimum standards, and states may require more extensive 
information from offenders. For example, the Act does not require that 
information be obtained relating to registering offenders' employment, 
but states may legitimately wish to know if a convicted child molester 
is seeking or has obtained employment that involves responsibility for 
the care for children.
    As a second example, although it is not required under the Act, 
states are strongly encouraged to collect DNA samples from registering 
offenders to be typed and stored in state DNA databases. States also 
are urged to participate in the FBI's Combined DNA Index System 
(CODIS). CODIS is the FBI's program of technical assistance to state 
and local crime laboratories that allows them to store and match DNA 
records from convicted offenders and crime scene evidence. The FBI 
provides CODIS software, in addition to user support and training, free 
of charge, to state and local crime laboratories for performing 
forensic DNA analysis. CODIS permits DNA examiners in crime 
laboratories to exchange forensic DNA data on an intrastate level, and 
will enable states to exchange DNA records among themselves through the 
national CODIS system. Thus, collection of DNA samples and 
participation in CODIS greatly enhances a state's capacity to 
investigate and solve crimes involving biological evidence, especially 
serial and stranger rapes.
    Paragraph (2) of subsection (b) states that the responsible officer 
or court shall forward the registration information to a designated 
state law enforcement agency within three days after receipt of the 
information. The Act leaves states discretion in designating an agency 
as the responsible ``state law enforcement agency,'' including the 
means by which such a designation is made, the timing of such a 
designation, and the agencies that may be designated. States are not 
required to select the state police as the designated agency, and may 
choose any agency with functions relating to the enforcement of law or 
protection of public safety. For example, states may designate as the 
pertinent ``State law enforcement agency'' a correctional agency, a 
crime statistics bureau or criminal records agency, or a department of 
public safety. States also are permitted to employ a private contractor 
to carry out the functions of the designated state law enforcement 
agency.
    After receiving the registration information from the responsible 
officer or court, the designated state law enforcement agency must 
immediately enter the information into the appropriate state law 
enforcement record system and notify a law enforcement agency having 
jurisdiction where the person expects to reside. The Act leaves states 
discretion in determining which state record system is appropriate for 
storing registration information. States that wish to achieve 
compliance with the Act, however, may need to modify state record 
systems if

[[Page 15116]]
they are not currently set up to receive all the types of information 
that the Act requires from registrants.
    The state law enforcement agency is also required to transmit 
immediately the conviction data and fingerprints to the Federal Bureau 
of Investigation. No changes will be required in the national records 
system because the Act only requires transmission of conviction data 
and fingerprints, which the FBI already receives. The Act should not be 
understood as requiring duplicative transmission of conviction data and 
fingerprints to the FBI at the time of initial registration if the 
state already has sent this information to the FBI (e.g., at the time 
of conviction).
    Paragraph (3) of subsection (b) relates to verification of the 
offender's address. In essence, annual verification of address with the 
designated state law enforcement agency is required for offenders 
generally, through the return within ten days of an address 
verification form sent by the agency to the registrant. However, the 
verification intervals are 90 days (rather than a year) for ``sexually 
violent predators.'' As noted earlier, these are baseline requirements 
which do not bar states from requiring verification of address at 
shorter intervals than those specified in the Act.
    Paragraph (4) requires the designated state law enforcement agency 
to notify other interested law enforcement agencies of a change of 
address by the registrant. Specifically, when a registrant changes 
residence to a new address, the designated law enforcement agency must 
(i) notify a law enforcement agency having jurisdiction where the 
registrant will reside, and (ii) if the registrant moves to a new 
state, notify the law enforcement agency with which the offender must 
register in the new state (if the new state has a registration 
requirement).
    Paragragph (5) further requires an offender who moves out of state 
to register within ten days with a designated state law enforcement 
agency in his new state of residence (if the new state has a 
registration requirement). This partially reiterates the requirements 
concerning notice of changes of address by the offender that were 
described above.
    Subparagraph (A) of paragraph (6) states that the registration 
requirement remains in effect for ten years. As noted earlier, states 
may choose to establish longer registration periods.
    Subparagraph (B) of paragraph (6) states that the registration 
requirement for ``sexually violent predators'' under the Act terminates 
upon a determination that the offender no longer suffers from a mental 
abnormality or personality disorder that would make him likely to 
engage in a predatory sexually violent offense. This provision does not 
require review of the offender's status at any particular interval. For 
example, a state could set a minimum period of 10 years before 
entertaining a request to review the status of a ``sexually violent 
predator,'' the same period as the general minimum registration period 
for sex offenders under the Act.
    Moreover, this termination provision only affects the requirement 
that a person register as a ``sexually violent predator'' under 
subparagraph (B) of subsection (a)(1) of the Jacob Wetterling Act. It 
does not limit states in imposing more extensive registration 
requirements under their own laws, and does not limit any registration 
requirement that arises independently under other provisions of the 
Jacob Wetterling Act from the person's conviction of a ``criminal 
offense against a victim who is a minor'' or a ``sexually violent 
offense.''

Criminal Penalties for Registration Violations--Subsection (c)

    The Act provides that a person required to register under a state 
program established pursuant to the Act who knowingly fails to register 
and keep such registration current shall be subject to criminal 
penalties. Accordingly, states that wish to comply with the Act will 
need to enact criminal provisions covering this situation as part of, 
or in conjunction with, the legislation defining their registration 
systems, if they have not already done so. If the violation by a 
registrant consists of failing to return an address verification form 
within 10 days of receipt, the state may allow a defense if the 
registrant can prove that he did not in fact change his residence 
address, as provided in subsection (b)(3)(A)(iv).

Release of Registration Information--Subsection (d)

    Subsection (d) governs the disclosure of ``information collected 
under a State registration program.'' Restrictions on the release of 
information under this subsection do not constrain the release of 
information that a state would have independently of the operation of 
the registration system. For example, a state will normally have 
criminal history information about an offender, and will often have 
current address information as part of general probation or parole 
supervision requirements, independently of any special requirements 
imposed as part of the sex offender registration system. The Act does 
not limit the release of such information.
    Subsection (d) states specifically that the information collected 
under a state registration program shall be treated as private data, 
except under specified conditions.
    The first condition under which disclosure is authorized--paragraph 
(1)--is that ``such information may be disclosed to law enforcement 
agencies for law enforcement purposes.'' This exemption permits use of 
the information for all law enforcement purposes, including all police, 
prosecutorial, release supervision, correctional, and judicial uses.
    Paragragph (2) in subsection (d) says that registration information 
may be disclosed to government agencies conducting confidential 
background checks. ``Confidential'' should be understood to mean a 
background check where information is disclosed to an interested party 
or parties--such as a background check conducted by a government agency 
that provides information concerning prospective employees to public or 
private employers--as opposed to release of the information to the 
general public. Release to the public, and other non-law enforcement, 
non-background check uses, are governed by paragraph (3).
    Paragragph (3) in subsection (d) says that the designated state law 
enforcement agency, and any local law enforcement agency authorized by 
the state agency, may release relevant information that is necessary to 
protect the public concerning a specific person required to register 
under this section. The Act does not impose any limitations on the 
standards and procedures that states may adopt for determining when 
public safety necessitates community notification. For example, states 
could implement this authority by engaging in particularized 
determinations that individual offenders are sufficiently dangerous to 
require community notification concerning the offender's presence. 
Alternatively, states could make categorical judgments that protection 
of the public necessitates community notification with respect to all 
offenders with certain characteristics or in certain offense 
categories.
    Releases of information for public-protection purposes short of 
general community notification--such as giving notice about an 
offender's location to the victims of his offenses, or to agencies or 
organizations in specified categories--are also permitted under 
paragraph (3).
    The language in paragraph (3), like that in paragraphs (1) and (2), 
is permissive, and does not require states

[[Page 15117]]
to release information. Paragraph (3) also does not deprive states of 
the authority to exercise centralized control over the release of 
information, or if the state prefers, to generally authorize local 
agencies to release information as necessary. In addition to permitting 
proactive community notification and other notification, as discussed 
above, paragraph (3) and other provisions of the Act do not bar states 
from making registration information available upon request, if it is 
determined that such access is necessary for the protection of the 
public concerning who are required to register.
    A proviso at the end of paragraph (3) in subsection (d) states that 
the identity of the victim of an offense that requires registration 
under the Act shall not be released. The purpose of this proviso is to 
protect the privacy of victims, and its restrictions may accordingly be 
waived at the victim's option. The proviso only applies to paragraph 
(3), and does not limit the disclosure of victim identity pursuant to 
paragraphs (1) and (2), relating to law enforcement uses and 
confidential background checks.

Immunity for Good Faith Conduct--Subsection (e)

    Subsection (e) states that law enforcement agencies, employees of 
law enforcement agencies, and state officials shall be immune from 
liability for good faith conduct under the Act.

Compliance--Subsection (f)

    States have three years from the date of enactment (i.e., September 
13, 1994) to come into compliance with the Act unless the Attorney 
General grants an additional two years where a state is making good 
faith efforts at implementation. States that fail to come into 
compliance within the specified time period will be subject to a 
mandatory 10% reduction of Byrne Formula Grant funding, and any funds 
that are not allocated to noncomplying states will be reallocated to 
states that are in compliance. The reallocated funds will be 
distributed among complying states in proportion to their populations.
    States are encouraged to submit descriptions of their existing or 
proposed registration systems for sex offenders to the Department of 
Justice as promptly as possible. States may find it convenient, for 
example, to submit such descriptions in conjunction with their 
applications for Byrne Formula Grant funding. These submissions will 
enable the Department of Justice to review the status of state 
compliance with the Act, and to suggest any necessary changes to 
achieve compliance before the funding reduction goes into effect.
    To maintain eligibility for full Byrne Formula Grant funding 
following the end of the three-year implementation period provided by 
the Act, states will be required to submit information that shows 
compliance with the Act in at least one program year, or an explanation 
of why compliance cannot be achieved within that period and a 
description of good faith efforts that justify an extension of time 
(but not more than two years) for achieving compliance. States will 
also be required to submit information in subsequent program years 
concerning any changes in sex offender registration systems that may 
affect compliance with the Act.

    Dated: March 27, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-8186 Filed 4-3-96; 8:45 am]
BILLING CODE 4410-01-M