Winter/Spring 2011
Volume 19, Issue 1
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As the Law Come into Focus for States, Clear Advice for Practitioners Remains Elusive
*Marcus J. Berghahn
Introduction
Federal sex offender registration requirements apply to those convicted of sex offenses, regardless whether those convictions were entered by state or federal courts. Understanding the federal sex offender registration scheme is important because the failure to register will expose clients to federal criminal prosecution and significant prison sentences. And an obligation to register as a sex offender under federal law may exist even if the client is not required to similarly register under Wisconsin law.
For the most part, federal law, 42 U.S.C. § 16902 et seq., overlaps with Wisconsin law, WIS. STAT. § 301.45, but Wisconsin is not yet in “substantial compliance” with federal law.1 This article examines a few issues related to the implementation of the federal Sex Offender Registration and Notification Act (SORNA) that are practical in nature. First, how is Wisconsin coming along with its implementation of SORNA. Second, what changes to Wisconsin’s procedures might result? Third, what are the mechanics of registration under federal law. Fourth, how will those individuals who have previously completed their (now register-able) sentence comply with federal law? There are few definite answers. Supplemental guidelines published by the United States Department of Justice on May 14, 2010 and, again, more recently, on January 11, 2011 give an indication of Wisconsin (the Department of Corrections in particular) will need to react in order to come into “substantial compliance” with SORNA. These guidelines are intended to provide guidance to states—not our clients. As a result, a number of questions remain unanswered. Said another way, the federal government’s advice to states does not translate directly into concrete guidance that can be provided to our clients. As the changes made by states to comply with the law is an on-going process, this article tracks the Adam Walsh Act chronologically.
The Adam Walsh Act
In 2006, President Bush signed into law the Adam Walsh Act (AWA). The law was supposed to address the perceived shortcomings of previously enacted federal laws dealing with the supervision of sex offenders. By requiring states to comply with the federal law—federal moneys for justice programs would be withheld from those states not in substantial compliance with the law—a more uniform sex offender registration and notification system was to have been the result. If, as Congress intended, the Adam Walsh Act was to have been implemented by mid-2009, why then are there still so many questions about it? The answer rests, in part, with the difficulties inherent in implementing a law that mandates uniform application across all of the states (and territories and tribes).2 The task has proven difficult. To date, only five jurisdictions are in substantial compliance with the requirements of the AWA (237 jurisdictions, including 47 states, are not). As a result, for a second time, the implementation date has been extended—now to July 27, 2011.
The AWA established requirements for uniform minimum standards for a national sex offender registry and expanded the information that must be provided to the registry. The AWA accomplishes this goal through the Dru Sjodin National Sex Offender Registry and the Megan Nicole Kanka and Alexandra Nicole Zapp Community Notification Program—in the main, these two components comprise SORNA. The registry requires the Attorney General to maintain a website (www.nsopw.gov) which shall include relevant information for each sex offender and other person listed on a jurisdiction’s Internet site. The website is supposed to allow the public to obtain relevant information for each sex offender by a single query for any given zip code or geographical radius set by the user in a form and with such limitations as may be established by the Attorney General. The notification component requires states to notify the government immediately after a sex offender registers or updates a registration about that offender. The information is provided to National Sex Offender Registry, appropriate law enforcement agencies, schools and public housing in which the individual resides or is an employee, any agency responsible for conducting employment related background checks, social service agencies responsible for protecting minors in the child welfare system; volunteer organizations in which contact with minors or vulnerable individuals might occur and anyone who requests notification.
Substantial Compliance
States’ continued receipt of federal funding is contingent on adherence to SORNA. The failure to bring state law into “substantial compliance” with the requirements of AWA will result in a loss of federal funding. See 42 U.S.C. § 16925. For Wisconsin, that means nearly $300,000 is at risk.3 However, the cost of implementing SORNA in Wisconsin was estimated by the Justice Policy Institute to exceed $9 million in 2009.4
Wisconsin’s extant laws on sex offender registration are close to what AWA requires. Indeed, the Department of Corrections already has a website that provides the public with information about those individuals who have been placed on the state sex offender registry (http://offender.doc.state.wi.us/public) and that website links directly to its federal counterpart. But Wisconsin’s registry does not contain all of the information federal law requires. See SORNA § 114.
In some other important regards, Wisconsin’s sex offender registration law differs from its federal counterpart. Wisconsin law, for example, does not mandate sex offender registration for an adjudication of fourth degree sexual assault; the offense is not one of the specifically enumerated offenses that comprise a “sex offense” under WIS. STAT. § 301.45(1d)(b), although the offense is defined by sexual contact. But see WIS. STAT. § 973.048(1m)(a conviction for an offense under CH. 940 may require the person to comply with reporting requirements under § 301.45 if the conduct was sexually motivated and it would be in the public’s interest to have the individual register as a sex offender). So too, Wisconsin law affords judges discretion on whether to require registration for certain sex offenses, the “Romeo and Juliet” case being the most common. WIS. STAT. § 301.45(1m)(exception to SOR requirement). Wisconsin law also permits registration on offenses that have no federal counterpart like WIS. STAT. § 942.08 (invasion of privacy). See WIS. STAT. §
973.048(1m)(court may require sex offender registration for violation of § 942.08).
Under Wisconsin law, sex offender registration is based on convictions or adjudications entered on or after December 25, 1993. WIS. STAT. § 301.45(1g)(a).5 Federal law, by contrast, is retroactive; convictions entered before the enactment date qualify without limitation. Wisconsin law allows judges to stay sex offender registration for juveniles who have been adjudicated delinquent of sex offenses that otherwise require registration under federal law. WIS. STAT. § 938.34(15m)(bm); In the Interest of Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1 (staying the sex offender registration requirement allows the court to “utilize the most effective dispositional plan” in order to “respond to a juvenile offender’s need for care and treatment, consistent with the prevention of delinquency, each juvenile’s best interest and the protection of the public”).6
These differences may explain why the federal government has not yet determined Wisconsin to be in substantial compliance with SORNA.7 It is no surprise then that it took Ohio—the first state to have “substantially implemented” SORNA—more than 14 months from its initial submission to final approval to substantially implement the law. All the same, SORNA does not require complete adherence to the federal model. Rather, substantial compliance is what federal law requires. Whether the differences noted between Wisconsin law and federal law will require modification of Wisconsin law is still to be seen. Based on the most recent supplemental guidelines (see infra), there may not be much need to modify Wisconsin’s substantive law in order for the federal government to find Wisconsin in “substantial compliance.”
Recapture
Federal law requires sex offender registration for those who have been convicted of a qualifying offense as of on or before the date of AWA’s enactment (July 27, 2006). Thus, AWA requires anyone who has ever been convicted of a predicate offense to register regardless of whether they were required to register as a sex offender at the time of their adjudication. Some, perhaps many, of those who have been convicted of such offenses under state law may have completed their sentence already. Nevertheless, AWA requires those individuals to register under federal law. The failure to register is a federal criminal offense. 18 U.S.C. § 2250. See United States v. Carr, 130 S. Ct. 2229 (2010) (§ 2250 does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date of July 26, 2006). And it matters little that those who have been convicted of a sex offense do not know about their obligation to register as a sex offender. SORNA does not require states to give notice to those who may be subject to the AWA’s requirements. Those subject to SORNA and who travel interstate do so at their peril. See United States v. Brown, 586 F.3d 1342 (11th Cir. 2009)(no due process violation when defendant convicted under SORNA even though government did not inform him of duty to register and the state to which he moved had not yet implemented SORNA).
The final guidelines to AWA, released on February 28, 2007 (see 28 C.F.R. § 72.3), address retroactive application of SORNA’s requirements. The guidelines note that the law applies to those whose convictions predate the enactment or implementation of SORNA and requires states to “recapture” offenders in order to have “substantially implemented” SORNA. This means that states must register offenders incarcerated or under supervision for the registration offense or for some other crime, offenders who are already subject to a pre-existing sex offender registration requirement and offenders who reenter the “jurisdiction’s justice system because of a conviction for some other crime.” Registration is to occur from the date of the jurisdiction’s implementation of SORNA: Tier I offenders within one year; Tier II offenders within six months; Tier III offenders within three months. According to the director of the SMART office, “Sex offenders convicted of an AWA registration offense, who have completed their registration requirements, must register if they come back into the judicial system by receiving a conviction for another crime, regardless of whether the offense is a sex offense.” SORNA Guidelines IX at 46-47.
The guidelines give the following scenario as guidance:
A sex offender convicted in 1980 for an offense subject to lifetime registration under SORNA is released from imprisonment in 1990. He was not required to register in 1980 because the jurisdiction had not yet established a sex offender registration program. Following the jurisdiction’s implementation of SORNA, the offender reenters the system because of conviction for a robbery.
The guidelines direct the jurisdiction to register the offender as a sex offender based on his 1980 conviction for a sex offense when he is released from imprisonment for the robbery offense. But it is not possible to carry out the initial registration procedure for the sex offender prior to his release from imprisonment for the registration offense—i.e., the sex offense for which he was convicted in 1980—because that time is past. In cases in which a sex offender re-enters the system based on conviction of some other offense and is sentenced or released from imprisonment following the jurisdiction’s implementation of SORNA, the regular SORNA initial registration procedures and timing requirements will apply, but with the new offense substituting for the predicate registration offense as the basis for the time frame. In other words, for Wisconsin to be in “substantial compliance” with AWA, such a sex offender must be initially registered in the manner specified in SORNA § 117(a) prior to release from imprisonment for the new offense that brought him back into the system, or within three business days of sentencing for the new offense in case of a non-incarcerative sentence. This raises, however, the practical question of whether the offender was in violation of the federal law requiring him to register under SORNA. The answer appears to be that the offender remains under a legal obligation to register, notwithstanding Wisconsin’s lack of effort at registering him.
With this example the administrative burden imposed by SORNA on Wisconsin’s Department of Corrections comes into stark relief: DOC must review and assess whether offenders committed sex offenses requiring registration even if those individuals were not mandated under state law to register as sex offenders previously.
Recapture’s Corollary
While SORNA does not relieve an individual who has been convicted of a sex offense and who has long ago completed his sentence from his obligations under AWA, the final guidelines suggest an excuse for DOC.
The required retroactive application of the SORNA requirements will also be limited in some cases by the limits on the required duration of registration. . . . SORNA requires minimum registration periods of varying length for sex offenders in different categories, defined by criteria relating to the nature of their sex offenses and their history of recidivism. This means that a sex offender with a pre-SORNA conviction may have been in the community for a greater amount of time than the registration period required by SORNA. For example, SORNA § 115 requires registration for 25 years for a sex offender whose offense satisfies the “tier II” criteria of section 111(3). A sex offender who was released from imprisonment for such an offense in 1980 is already more than 25 years out from the time of release. In such cases, a jurisdiction may credit the sex offender with the time elapsed from his or her release (or the time elapsed from sentencing, in case of a non-incarcerative sentence), and does not have to require the sex offender to register on the basis of the conviction ...
THE NATIONAL GUIDELINES FOR SEX OFFENDER REGISTRATION AND NOTIFICATION,
Final Guidelines (June 2008) at 8.8
Thus, if the individual would have been required to register as sex offender, but with credit for time elapsed since the conviction was adjudicated, the individual would have been released from his obligations (whether after 15 or 25 years), then the registration requirement can be overlooked. This is not a legal absolution for the individual, but rather frames the issue in terms of “substantial compliance” with SORNA for the states. All the same, the statement suggests that such old convictions may have little prosecutive merit (for failing to register under the AWA) absent aggravating facts.
But do not mistake the advice the guidelines provide the states in terms of modifying their obligation to “recapture” previously adjudicated sex offenders as translating into advice for our clients. The guidelines tell the states what they must do to be in “substantial compliance.” The guidelines do not inform or modify our clients of their obligations. Said another way, while the state, for purposes of “substantial compliance,” may overlook a 20 year old qualifying conviction, the client may still be prosecuted in federal court for the criminal failure to register as a sex offender.
In Wisconsin, federal prosecutions under § 2250—because such cases have been rare—give little guidance on the issue of how to deal with convictions that occurred years ago. What little guidance federal cases provide it is this: an individual who was convicted in one state but did not have to (or who failed to) register as a sex offender who then travels to another state (i.e., interstate) with a sex offender registration requirement will be prosecuted where the adjudication occurred not more than 15 years prior. Wisconsin law, too, provides for criminal penalties for those who fail to register as sex offenders. WIS. STAT. § 301.45(6)(a). Data compiled by COURTTRACKER™ from CCAP show that there have been 1,473 charges filed in Wisconsin courts as of January 2011.
The notion of “recapture” raises the issue of how a former client goes about registering under federal law when he has never been required to register under state law and his sentence has been completed. There is no practical answer.
Supplemental Guidelines for SORNA
Following the final guidelines issued in 2007, on May 14, 2010, the U.S. Department of Justice published proposed guidelines that suggest answers to some of the questions raised here (found at 75 C.F.R. § 27362 (May 14, 2010)) These supplemental guidelines were, following a public comment period, modified and then codified in 2011 (more on that below). The supplemental guidelines “augment or modify certain features of the SORNA Guidelines ... to address other issues arising in jurisdictions’ implementation of the SORNA requirements.” Id. The supplemental guidelines touch on eight areas. Id. at 27363. Four are relevant to defense lawyers.
- The guidelines will “allow jurisdictions, in their discretion, to exempt information concerning sex offenders required to register on the basis of juvenile delinquency adjudications from public website posting.” Id. This will be accomplished through the discretion afforded the Attorney General by 42 U.S.C. § 16918(c)(4). The change would not preclude jurisdictions from including juveniles on SORNA compliant web sites. Importantly, however, “The change regarding public Web site disclosure does not authorize treating sex offenders required to register on the basis of juvenile delinquency adjudications differently from sex offenders with adult convictions in other respects.” Id. But this does not answer how Wisconsin should deal with those juveniles where sex offender registration was stayed pursuant to the circuit court’s authority.
- The guidelines will require written acknowledgment by the registering sex offender that he was advised of his registration obligations. Id. Because knowledge of the registration requirement is an element of the criminal offense of failing to register, the guidelines propose that each registrant acknowledge, in writing, that they have been informed of the need to register. This modification is intended to streamline later criminal prosecutions under 18 U.S.C. § 2250.
- The guidelines will “provide for additional information concerning the review process for determining that jurisdictions have substantially implemented SORNA requirement and continue to comply with these requirements.” Id. Thus once a state has “substantially implemented” SORNA, its on-going application of the law will be reviewed. “The SMART Office will not be limited to facial examination of registration laws and policies, but rather will undertake such inquiry as is needed to ensure that jurisdictions are substantially implementing SORNA’s requirements in practice.” Id. at 27365. However, if substantial compliance is not immediately achieved and federal funding lost, the guidelines inform that the funding may be regained: “If a jurisdiction’s Byrne Justice Assistance Grant funding is reduced because of non-implementation of SORNA, it may regain eligibility for full funding in later program years by substantially implementing SORNA in such later years.” Id. at 27366.
- Finally, the guidelines will “afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction.” Id. at 27363.
These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants. It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense. As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.
Id. at 27366. As noted before, the guidelines address whether states will suffer the loss of federal funding, but not whether the individual subject to registration is absolved of his requirement to register.
Following a 60 day comment period, on January 11, 2011, the Department of Justice published supplemental guidelines for SORNA. 76 C.F.R. § 1630. The supplemental regulations begin by noting the obvious. “[I]ssues have arisen in SORNA implementation that require some of the aspects of the guidelines be augmented or modified.” Id. at 1631. While the latest supplemental guidelines address eight issues, two are of particular note for purposes of this article: how to handle public notification of juveniles adjudicated delinquent for serious sex crimes; and affording jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system and who later re-enter the justice system for a new (non-sex-offense)—states need only recapture such an individual if the new offense is a felony.
- As to juvenile adjudications, the guidelines provide that “given this change, the effect of the remaining registration requirements under SORNA for certain juvenile delinquent sex offenders is, in essence, to enable registration authorities to track such offenders following their release and to make information about them available to law enforcement agencies. . . . There is no remaining requirement under SORNA that jurisdictions engage in any form of public disclosure or notification regarding juvenile delinquent sex offenders. Jurisdictions are free to do so, but need not do so to any greater extent then they may wish.” Said more clearly, the guidelines go on to provide that “if a jurisdiction decides not to include information on a juvenile delinquent sex offender on its public website, as is allowed by these supplemental guidelines, information on the sex offender does not have to be disclosed to [the AWA websites].” Id. at 1637. Thus, it appears that a juvenile adjudicated delinquent for a qualifying sex offense, but who is not required to register under state law, need not be included in the data the state provides to the federal databases. The supplemental guidelines, however, do not address the juvenile’s obligation under AWA; the guidelines address only whether the state will be in “substantial compliance” with AWA by not sharing data about certain offenders. The guidelines make no requirement that jurisdictions register juveniles adjudicated delinquent for lesser sexual assaults or for non-violent sexual conduct whose criminality depends on the age of the victim. Nor do the guidelines except from federal registration certain juvenile offenders.
- The supplemental guidelines make clear that “jurisdictions are not required to register sex offenders in their retroactive classes whose SORNA registration periods have already run and jurisdictions may credit such sex offenders with the time that had elapsed from their release (or from sentencing in a case of a non-incarcerative sentence) in determining what, if any, registration time is required, even if they have never actually been registered.” Id. at 1636. This clarifies a point made by the last set of guidelines. But the new guidelines provide that “substantial compliance” requires only that the offender is subject to recapture under AWA if the new criminal offense is a felony. A state need not—though it can—require AWA registration for new non-sex-offense related charges that are misdemeanors. Id. at 1639. A subsequent conviction for a sex offense, even if it is a misdemeanor, will likely cause the individual to be subject to SORNA all the same. Id.
Notifying Former Clients of SORNA Obligations
Perhaps the most difficult issue for defense lawyers is the question of whether to counsel former clients whose sentence was served to completion years ago. Should defense lawyers review all prior cases where clients were adjudicated of an offense that requires registration and notify their prior clients of their obligations under SORNA? Should defense lawyers only notify those clients who the state will seek to register (i.e., those whose date of conviction falls within the 15/25 year window)? Many practical issues are raised here too. On the one hand, as long as the former client does not travel in interstate commerce, he will not likely violate 18 U.S.C. § 2250. One might also suggest that, as long as the former client has no further law enforcement contacts (and criminal adjudications in particular), then he may rest assured; and for the reason explained by SMART, Wisconsin will not likely be pressed to recapture that individual for purposes of sex offender registration. However, the lack of pressure on Wisconsin to recapture offenders is not a legal defense to violations of 18 U.S.C. § 2250 or WIS. STAT. § 301.45. So these views are hardly realistic or assuring advice for clients.
It is questionable whether it is a best practice for lawyers to contact former clients and to notify them of the client’s obligation to register under SORNA. Such an approach—branding an individual as a sex offender years after they have been rehabilitated—can hardly help the client’s lot in life. The only clarity on this point is WIS. SCR § 20:1.9 (duties to former clients), which relates to maintaining the confidences of former clients after the close of the representation and, similarly, avoiding conflicts with former clients. The rule does not require a defense lawyer to notify clients of a significant change in the law.
Conclusion
Until Wisconsin substantially implements SORNA uncertainty will remain. The most recent supplemental guidelines give some hope that juveniles adjudicated delinquent of a qualifying sex offense under AWA will not have their identities disclosed even if they were required to register. But the case of the adjudicated delinquent whose registration requirement under Wisconsin law was stayed remains in flux. Perhaps by the time Wisconsin is in “substantial compliance” with AWA, these questions will have been answered.
*Marcus J. Berghahn practices criminal defense in Madison. He is a shareholder at Hurley, Burish & Stanton, S.C. He typically prefers to give more concrete advice.
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1 This article supplements a presentation the author made to the Wisconsin Association of Criminal Defense Lawyers in December 2009. The materials from that presentation (“THE NUTS & BOLTS OF THE ADAM WALSH ACT: WHAT SORNA REALLY MEANS”) provide necessary background on the Act, possible legal challenges and identifies those offenses subject to federal registration requirements.The materials from this presentation are available at www.hbslawfirm.com/articles_display.php?id=60. The Office of [Federal] Defender Services Training Branch has an informative website with many resources relating to the numerous parts of the Adam Walsh Act (http://www.fd.org/odstb_adamwalsh.htm). Background on SORNA is available in Craig Albee, SORNA: What Every Wisconsin Criminal Defense Lawyer Should Know, WISCONSIN DEFENDER (Summer/Fall 2008).
2 For a summary of all 50 states’ sex offender registry laws see Brenda Smith, Fifty State Survey of Adult Sex Offender Registration Requirements (August 1, 2009), NIC/WCL Project on Addressing Prison Rape (available at http://ssrn.com/abstract=1517369)(last accessed on February 15, 2011). At least 33 states (including Wisconsin) presently provide for sex offender registration for juveniles. Of those, only 17 have notification requirements for juveniles some of which differ from the requirements for adult offenders.
3 Wisconsin, in 2006, received $2,982,833 in federal Byrne justice assistance grants. See www.justicepolicy.org/images/upload/08_08_FAC_SORNAcosts_jj.pdf (last accessed on April 29, 2010).
4 Id. Speaking of costs, WIS. ADMIN. CODE DOC § 332.19 permits the Wisconsin Department of Corrections to charge an annual fee to partially offset the cost of monitoring registrants. The cost is $100 per year. DOC § 332.19(3). Willful failure to pay the fee may result in revocation, review of supervision or custody level or a wage assignment. DOC § 332.19(6).
5 WIS. STAT. ' 301.45(1g)(g) also excludes from Wisconsin's sex offender registration requirements those individuals who were convicted in another state on or after December 1, 2000, if that individual presently resides in Wisconsin and more than 10 years have passed since the person was released from prison or placed on some type of supervision.
6 A juvenile under the age of 14 years who has been adjudicated delinquent of a sex offense may be required to register under Wisconsin law, but not SORNA. Strange but true.
7 The determination of whether a state’s laws are in substantial compliance is made by SMART, which stands for (Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking). This office is within the United States Department of Justice, Office of Justice Programs. Updated information is available at http://www.ojp.usdoj.gov/smart. “Substantially implemented” is a term of art that the United States Department of Justice has not clearly defined. See, e.g., http://www.ojp.usdoj.gov/smart/smartwatch/10_winter/guidance.html#c)(last accessed on February 15,
2011).
8 “It may not always be possible to obtain information about earlier convictions of sex offenders ... particularly when they occurred many years or decades ago, and available criminal history information may be uninformative as to factors such as victim age that can affect the nature and extent of registration requirements under SORNA. Jurisdictions may rely on the methods and standards they normally use in searching criminal records and on the information appearing in the records so obtained in carrying out the requirements described above to register sex offenders with pre-SORNA (or pre-SORNA implementation) sex offense convictions.” THE NATIONAL GUIDELINES FOR SEX OFFENDER REGISTRATION AND NOTIFICATION, Final Guidelines (June 2008) at 47.
