SORNA, Part 1
It's sweeping nature triggers nearly all of the issues discussed thus far, and, while the exact numbers are a challenge to discern, SORNA impacts around 900,000 individuals in the U.S
Before we jump into this week’s content, I want to address some administrative matters, as my Civil Procedure professor would say.
First, for the month of July, I am going to start sending shorter newsletters, covering one topic over the course of a few editions. Given the density of the material (despite my efforts to summarize and distill), sending a few shorter newsletters on one topic might make for easier digestion. This newsletter is for you so I want to make it as informative, accessible, and enjoyable as possible. Please let me know what you think of the shorter format!
Second, I am excited to announce that in a few weeks I will be posting my first practitioner interview for paid subscribers. I will be interviewing an appellate federal defender about the way the Sex Offender Registration and Notification Act (SORNA) works in practice—its impact, its effects, and more. Stay tuned!
Lastly, I am seriously considering offering quarterly virtual documentary screenings starting in the fall. We would gather virtually to watch a documentary about criminal law and/or the criminal legal system and have a discussion following the screening. Please let me know in the comments if that is of interest to you and your networks.
Now, onto this week’s edition.
Why discuss SORNA?
To pull together the first few newsletters, I use the example of the SORNA, Title I of the Adam Walsh Act, passed and signed into law in 2006. I chose this particular piece of legislation because its sweeping nature triggers nearly all of the issues discussed in Is That Legal? thus far, and, while the exact numbers are a challenge to discern, SORNA impacts around 900,000 individuals in the U.S.1
The first editions focus largely on the higher-level issues, such as Congressional power, federalism, and nondelegation. Future editions, including the practitioner interview, grapple with the purpose, cause, impact, and effect of SORNA and related laws on the criminal legal system, our society, and our communities.
Before tackling SORNA as a criminal legal issue, I need to acknowledge the controversial, painful, personal, and emotional nature of sex offenses and the trauma they cause. Millions of people in the U.S. have experienced profound trauma from sexual abuse or violence, while millions more must continually change their lives to protect themselves from the very real threat of sexual violence. In no way do I seek to minimize or devalue the experiences of survivors and those living in fear. I recognize that there are many different perspectives and opinions about how we, as a society, should grapple with the very real, life-altering affects of sex offenses.
While holding these truths close, as an advocate, writer, and educator, I feel compelled to discuss the ways in which our federal and state legislatures often pass sweeping, invasive criminal laws and policies in the throes of our collective horror at the most heinous, yet rarest of crimes. Legislators and advocates use terrorizing, hyperbolic rhetoric to stoke the flames of fear that these singularly horrific events are happening with regularity in every community, ignoring or disregarding all of the evidence to the contrary. In the midst of the fear and fury, they then pass harsh, regressive, invasive laws that we, as a society, might not otherwise tolerate or allow.
Instead of using evidence and listening to survivors, experts, and others with lived experience, legislators often generate reactive laws that harm both survivors and those who perpetrate the acts, as well as our society as a whole. Draconian laws may make some of us feel better, but in actuality, they often ignore the actual problem, exacerbate the problem they allegedly address, and cause new, sometimes more serious problems.
This pattern is most apparent in the ways our legislatures react to sex crimes, particularly crimes against children. As Richard G. Wright wrote in Sex Offender Laws: Failed Policies and New Directions:
Policy makers are disproportionately influenced by isolated high-profile cases of sexual assault committed by strangers to the neglect of the everyday sexual violence committed by known and familiar family, friends, and acquaintances. This choice gives lawmkaers simple and clear political benefits but has overall made us less safe . . . As a result of this choice, a tremendously expensive criminal justice apparatus has been created, victims have been deprived of resources that could aid their recovery, and efforts at offender treatment and management have been undermined.2
Survivors, individuals who have committed sex offenses, researchers, and practitioners tell us that we are not effectively addressing these complicated issues. Once these laws are on the books, very few politicians or policymakers want to be the one to advocate for their reform or repeal. The media, political opponents, and vocal community members label them as “soft on crime,” or opposing “law and order,” the persistent, perpetual dog whistles for racist, oppressive fear mongering. The reaction to these often erroneous criticisms is to double down and expand these laws using false narratives and faulty statistics to undergird the creation of dragnets that trap ever more people.
I posit that the majority of us would be deeply uncomfortable with just how broad and deep the dragnet really is if we understood just how intrusive and ineffective these laws are. “Unlike our current approach, these laws must balance grief with evidence, pain with fairness, anger with reason, and the desire for vengeance with a plan for prevention.”3
On a personal note, I have borne witness to family, friends, and clients healing from the pain, violation and betrayal that follows sexual violence, as well as from the internal reckoning and healing that follows the perpetration of a sex offense. Indeed, I have listened to people who are both survivor and perpetrator grappling with harming others as they themselves were harmed. The devastation and consequences are deep and lasting, often spanning across generations.
For these many reasons, I seek to shed light on and engage in discussion about laws like SORNA—sweeping, overly simplistic, (arguably) ineffective, and profoundly harmful—that often impede our collective ability to have a nuanced discussion about a complex, pervasive issue like sexual assault and violence. I invite you to join me.
What is SORNA?
As noted above, SORNA stands for Sex Offender Registration and Notification (Title I of the Adam Walsh Act) and was enacted by Congress in 2006. The Adam Walsh Act significantly expands upon the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act (JWA), enacted in 1994 as part of the now infamous Violent Crime Control and Law Enforcement Act of 1994 (also called “the crime bill) co-drafted by then-Senator Biden and signed into law by President Clinton. For more on the 1994 Crime Bill, check out the resources in this footnote.4
The JWA was the first attempt to federalize a registration and notification system for people accused and/or convicted of sexual offenses. According to the Counsel of State Governments, under the JWA, “[s]tates had a great deal of discretion to decide which offenders should be required to register and what information should be posted about them online,”5 leading to differences and discrepancies across and between the states. To address these alleged loopholes, Congress passed a number of laws between 1995 and 2005, each bearing the name of a child or young person who was murdered. Finally, in 2006, Congress enacted the Adam Walsh Act, which included SORNA. (Here is a timeline of federal registration and notification laws).
What is registration and notification?
Human Rights Watch provides a good explanation:
Registration laws: [People ordered by the court or with prior convictions] must “register” with local law enforcement authorities, which involves disclosing detailed personal information, generally including a current photograph, current address, school attendance, place of employment, and other biographical details. Registrants must periodically update or “register” that information so that it remains current in each jurisdiction in which they reside, work, or attend school. Failure to register is a felony in many states and can carry lengthy prison sentences.
Community notification laws: Law enforcement authorities in turn make information provided by registrants accessible to the public or portions of the public, often on searchable websites but in some jurisdictions via public meetings, fliers, newspaper announcements, highway billboards, postcards, or lawn signs.6
How is the term “sex offender” defined?
As with so much in the law, defining a legal term usually involves references to a multitude of statutes and related resources, and it changes often. Case in point is in Justice Kagan’s opinion, Gundy v. U.S.: “A ‘sex offender’ is defined as ‘an individual who was convicted of’ specified criminal offenses: all offenses ‘involving a sexual act or sexual contact’ and additional offenses ‘against a minor.’”7 This quote was followed by references to a couple of statutes, and those statutes likely referenced other statutes.
The Vera Institute of Justice puts it this way:
The definition of a sex offender is broad and encompasses different types of offenses. A sex offender is a person who has been convicted of a crime that requires registration at the federal or state level. Under federal guidelines, people convicted of sexual abuse, aggravated sexual abuse, and a number of crimes involving a minor, such as kidnapping, must register with authorities. Some states have extended the list of crimes to include offenses such as voyeurism, public exposure, and adultery. Because the definition has expanded to include so many different kinds of crimes, it is difficult to create a coherent policy for this population.8
Part of what makes this definition challenging is that SORNA, as a federal statute, addresses both federal and state criminal law. In other words, SORNA requires registration by people who have been convicted of certain federal sex offenses, as well as state sex offenses.
To understand some of the crimes that require registry in the states, Human Rights Watch conducted a study and found that:
At least five states require registration for adult prostitution-related offenses;
At least 13 states require registration for public urination; of those, two limit registration to those who committed the act in view of a minor;
At least 29 states require registration for consensual sex between teenagers; and
At least 32 states require registration for exposing genitals in public; of those, seven states require the victim to be a minor.9
Because of these issues, however the government defines “sex offender,” it must be broad enough to incorporate the various definitions across federal law, the laws of the 50 states and five occupied territories. As is likely apparent by now, the definition of “sex offender” is varied, broad, and arguably over-inclusive.
What does SORNA do?
SORNA has many provisions, but here are some of its key functions:
Expanded the definition of “sexual offender.”
Children over the age of 14 are required to register if they fall into the below categories. This means that some children may be forced to register for the rest of their lives.
“Require[d] that youth register, if prosecuted and convicted as adult OR
(a) if offender is 14 or older at time of offense AND (b) adjudicated delinquent for offense comparable or more serious than “aggravated sexual abuse” OR
adjudicated delinquent for a sex act with any victim under the age of 12.” 10
Made changes to how long people must register following their conviction and established a Tier system based only on offense, not an individual determination of “dangerousness” or likelihood of recidivism (more on this important issue in upcoming editions):
Tier 1: Includes people convicted of whatever offenses do not support a higher classification, such as misdemeanor registration offenses and child pornography possession. People on Tier 1 must register for a minimum of 15 years and must update the registry annually.11
Tier 2: Includes people convicted of most felonious sexual abuse or sexual exploitation offenses involving victims who are minors. People on Tier 2 must register for a minimum of 25 years and must update the registry every 6 months.12
Tier 3: Generally encompasses people convicted of sexual assaults involving sexual acts regardless of victim age, sexual contact offenses against children below the age of 13, nonparental kidnapping of minors, and attempts or conspiracies to commit such offenses. People on Tier 3 must register for life and must update the registry every 3 months.13
For an example of how this works at the state level, check out Professor Markham’s SORNA Tier Chart for North Carolina here. If it looks completely intimidating, it should! This stuff is incredibly complicated, even for experienced lawyers defending their clients and judges making determinations about how a state law fits into a federal tier system.
Required sex offenders to register and maintain current data in each jurisdiction where they attend school, work, and reside.
Authorized the U.S. Attorney General (AG) to extend reporting requirements to those people who were convicted before enactment of SORNA.16 In other words, Congress delegated to the AG the ability to decide if people with convictions prior to 2006 (when SORNA was passed) would need to register and if so, what those registration requirements are.
Made failure to register a felony at both the state and the federal level:
May be subject to preventive detention or to a series of pre-trial release conditions.
If convicted in federal court, they face imprisonment for not more than 10 years and/or a fine of not more than $250,000 as well as the prospect of a post-imprisonment term of supervised release of not less than 5 years.17
Extended the standard registration and notification requirements to tribal jurisdictions18
Established that the United States Marshals Service is the primary federal agency responsible for investigating sex offender registration violations19
Created penalty for jurisdictions that fail to comply with its requirements to risk having their annual Justice Assistance Grant (JAG) funds reduced by 10%.20
For a complete outline, see the “SORNA Substantial Implementation Checklist Tool” in Appendix II in the Government Accountability Office’s SORNA Report to the Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, House of Representatives. This is a good indicator of just how sweeping and invasive SORNA is.
Not all states have opted to implement SORNA; the reasons vary. Some states are opposed to requiring children to register, while others think it is more expensive to comply than to face the penalty for noncompliance. If you are curious about what’s happening in your state, check out this National Conference of State Legislatures database.
The constitutionality of SORNA’s many facets is still being heavily litigated fifteen years later. So far, SORNA has withstood nearly every challenge, but there are still many defenders making creative arguments that could change the status quo. In that vein, the next newsletter covers the way in which the federal government uses the Commerce Clause as the jurisdictional hook or element (the connection to an enumerated constitutional power) for criminal laws, using SORNA as the exemplar.
Thank you for reading. Please share your thoughts with me about the shorter format and the documentary nights. I would love to hear from you.
As always, please spread the word!
Steven Yoder, “Why Sex Offender Registries Keep Growing Even As Sexual Violence Rates Fall,” The Appeal, located at: https://theappeal.org/why-sex-offender-registries-keep-growing-even-as-sexual-violence-rates-fall/
Richard G. Wright, Sex Offender Laws: Failed Policies and New Directions, 2nd edition, edited by Richard G. Wright, Springer Publishing Company, LLC, 2015, p. 2-3.
The 1994 Crime Bill has frequently been in the news because it was 1) co-drafted by now-President Biden and 2) many credit it as being a major contributor, if not the primary cause, of mass incarceration. Here are some articles on the topic: Sheryl Gay Stolberg and Astead W. Herndon, “‘Lock the S.O.B.s Up’: Joe Biden and the Era of Mass Incarceration,” The New York Times, located at: https://www.nytimes.com/2019/06/25/us/joe-biden-crime-laws.html; Lori Robertson, “Biden on the 1994 Crime Bill,” FactCheck.org, located at: https://www.factcheck.org/2019/07/biden-on-the-1994-crime-bill/; Lauren-Brooke Eisen and Inimai M. Chettiar, “The Complex History of the Controversial 1994 Crime Bill,” The Brennan Center for Justice, located at: https://www.brennancenter.org/our-work/analysis-opinion/complex-history-controversial-1994-crime-bill; Jessica Lussenhop, “Clinton crime bill: Why is it so controversial?,” BBC News, located at: https://www.bbc.com/news/world-us-canada-36020717; Donna Murch, “The Clintons’ War on Drugs: When Black Lives Didn’t Matter,” The New Republic, located at: https://newrepublic.com/article/129433/clintons-war-drugs-black-lives-didnt-matter; and, Michelle Alexander, “Why Hillary Clinton Doesn’t Deserve the Black Vote,” The Nation, located at: https://www.thenation.com/article/archive/hillary-clinton-does-not-deserve-black-peoples-votes/
Jennifer Horne and Amy Vandervort-Clark, “SORNA and Sex Offender Policy in the States,” Counsel of State Governments, located at: https://knowledgecenter.csg.org/kc/content/sorna-and-sex-offender-policy-states
Q&A: Raised onthe Registry: The Irreparable Harm of Placing Chidlren on Sex Offender Registries in the U.S., Human Rights Watch, located at: https://www.hrw.org/news/2013/05/01/qa-raised-registry
Gundy v. U.S., 139 S. Ct. 2116 (2019), on p. 2 of this version, located at: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf
Tracy Velázquez and Reagan Daly, “The Pursuit of Safety: Responses to Sex Offenders in the U.S.,” The Vera Institute of Justice, located at: https://www.vera.org/downloads/Publications/the-pursuit-of-safety-sex-offender-policy-in-the-united-states/legacy_downloads/Sex_offender_reports_summary-1.pdf
“No Easy Answers: Sex Offender Laws in the U.S.” Human Rights Watch, located at: https://www.hrw.org/reports/2007/us0907/5.htm#_Toc176672572
“Registering Harm: How Sex Offense Registries Fail Youth and Communities,” Justice Policy Institute, located at: https://www.criminallegalnews.org/media/publications/jpi_how_sex_offense_registries_fail_youth_and_communities_adam_walsh_act_report.pdf
“Federal Involvement in Sex Offender Registration and Notification: Overview and Issues for Congress, In Brief,” located at: https://www.everycrsreport.com/reports/R43954.html
“SORNA: A Legal Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender), Congressional Research Service, located at: https://www.everycrsreport.com/reports/R42692.html
“Federal Involvement in Sex Offender Registration and Notification: Overview and Issues for Congress, In Brief,” Congressional Research Service, located at: https://www.everycrsreport.com/reports/R43954.html