Abstract
The 2006 Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act, established federal standards related to the content and operation of sex offender registration and notification systems across the United States. As of early 2017, over a decade following passage, 18 of 50 states had been designated by the U.S. Department of Justice (DOJ) as having substantially implemented SORNA—figures that might be initially interpreted as indicators of a failed policy. Yet a closer analysis suggests that SORNA implementation is complex and multifaceted and that viewing the policy’s “success” through such a binary prism may be inherently limited. In this context, the current study offers a multidimensional analysis of state-level SORNA implementation based on data abstracted from DOJ records. Findings indicate that many aspects of SORNA have been universally or widely implemented, that most states have adopted policies that are consistent with a majority of SORNA standards, and that barriers to SORNA implementation are concentrated among a limited subset of issues, notably those related to retroactive application, registration of juveniles, and means of classifying registrants. Implications for state and federal policy governing sex offender registration are discussed.
Since the 1990s, sex offender registration and notification (SORN) systems have assumed an increasingly prominent place on both state and federal crime control agendas in the United States. Among the states, SORN has emerged as a centerpiece of contemporary sex offender management policy and practice, with all 50 states operating independent sex offender registries and public websites to make registry information available to the community. At the federal level, the U.S. Congress has passed a sequence of laws, beginning with the 1994 Jacob Wetterling Crimes Against Children Act, to improve the ability of law enforcement and the general public to monitor sex offenders in the community and to enhance the quality, accessibility, and cross-jurisdictional sharing of registry data. The Wetterling Act and its subsequent amendments, while setting forth general requirements for state-level SORN systems, nonetheless granted latitude to states in the design of these systems, producing a range of interstate disparities.
The 2006 passage of the federal Sex Offender Registration and Notification Act (SORNA), also known as Title I of the Adam Walsh Child Protection and Safety Act (AWA), opened a new chapter in the evolution of the nation’s SORN systems. SORNA emerged in part from the belief that variation in state registry systems created loopholes that could be exploited by registrants seeking to evade monitoring. As a result, among its many provisions designed to enhance intergovernmental and interjurisdictional coordination and sharing of sex offender information, SORNA expanded the scope of federal requirements related to the content and management of SORN systems managed by the states, territories, and for the first time, tribal jurisdictions across the United States. Along with these requirements, the AWA established an office within the U.S. Department of Justice (DOJ), the Office of Sex Offender Sentencing, Monitoring, Apprehension, Registration, and Tracking (SMART), and charged this office with promulgating SORNA guidelines and certifying state-level implementation of these guidelines. The law set an initial deadline of July 2009, with the possibility of two 1-year extensions, for states to either comply with SORNA guidelines or risk losing 10% of their federal law enforcement Byrne/Justice Assistance Grant (JAG) block grant funding.
In the years immediately following SORNA’s passage and the 2008 release of the initial SORNA guidelines (U.S. DOJ, 2008), state-level compliance with SORNA mandates appeared to be an elusive goal (Government Accountability Office [GAO], 2013). Despite a significant level of state legislative activity aimed at enhancing and reforming sex offender registries (National Conference of State Legislatures, 2009), states struggled to bring their systems in line with SORNA requirements, citing an array of operational, legal, and fiscal challenges (Harris & Lobanov-Rostovsky, 2010). By the initial SORNA compliance deadline in July 2009, only one state (Ohio) had been designated by the SMART Office to have met the requirements, and even those states that had passed SORNA-enabling legislation (e.g., Ohio and Nevada) found themselves fighting legal challenges related to the laws’ implementation (Harris, 2011).
Since 2011, however, the pace of progress toward SORNA implementation has seemingly accelerated, amid some shifts in federal policy. The first such shift involved revisions to the SORNA guidelines in 2011, which included clarification of certain SORNA requirements including those related to public websites, international travel, and registration of adjudicated juveniles (U.S. DOJ, 2011). SORNA’s juvenile registration requirements were further clarified in a subsequent series of revisions released in 2016 (U.S. DOJ, 2016).
Concurrent with the guidelines adjustments, the DOJ also introduced enhancements to its processes for working with states to facilitate implementation and adjusted its standards for evaluating adherence to SORNA criteria. Implicitly recognizing the unique aspects of each jurisdiction’s legal and operational landscape, the SMART Office shifted from a fairly literal standard (termed “substantial compliance”) to a more flexible standard (“substantial implementation”; U.S. DOJ SMART Office, 2016). Whereas the substantial compliance threshold required states to adhere to the letter of the law regarding SORNA guidelines, substantial implementation recognized that many states had adopted policies that did not substantially disserve the purpose of each SORNA’s 14 standard areas (as summarized in Table 1). 1 Utilizing this broader definition, 18 states had been determined by the DOJ to have met the threshold for substantial implementation of SORNA as of April 2017.
Sex Offender Sentencing, Monitoring, Apprehension, Registration, and Tracking Office Substantial Implementation Standards and Descriptions.
Note. SORNA = Sex Offender Registration and Notification Act; NCIC/NSOR = National Crime Information Center/National Sex Offender Registries.
Beyond adjustments to its guidelines and evaluation criteria, the SMART Office also took steps to more effectively systematize the process of moving states toward implementation, developing a range of tools to assist states in their planning efforts and establishing more collaborative working relationships with state SORNA contacts. The DOJ also established an annual competitive SORNA implementation grant program, and permitted states that had made progress toward substantial implementation to retain their 10% Byrne/JAG grant funding penalty for nonsubstantial implementation, provided that the funds were invested in registration system improvements and processes linked to SORNA.
Research on SORNA Implementation
To date, at least three studies have analyzed state-level implementation of SORNA standards and requirements—two surveys conducted in the year following the 2008 release of the initial SORNA guidelines (Harris & Lobanov-Rostovsky, 2010; National Consortium for Justice Information and Statistics [SEARCH], 2009), and one conducted in 2013 after 19 jurisdictions (16 states and 3 territories) had been granted substantial implementation status from the DOJ (GAO, 2013).
In the sole peer-reviewed study, Harris and Lobanov-Rostovsky (2011) conducted a survey of state registry officials during the latter part of 2008 in the months following the DOJ release of the SORNA guidelines. The survey presented respondents with eight key SORNA provisions and asked them to rate the level of consistency between the provision’s requirements and existing state policy and practice. For provisions involving some measure of indicated inconsistency, follow-up items assessed the barriers to implementing that SORNA provision across four domains—legal (e.g., potential conflicts with state constitutions), financial (e.g., adequacy of resources), operational (e.g., agency roles and adequacy of information technology capacity), and practical (e.g., ancillary impacts related to public safety).
Results from the Harris and Lobanov-Rostovsky (2011) study identified SORNA’s retroactivity requirements as the area with the most significant deviation from state policy, with approximately 74% of states reporting that their existing policies were either highly or somewhat inconsistent with this SORNA mandate. This was followed by SORNA requirements related to inclusion of juveniles on the registry (66% highly or somewhat inconsistent) 2 and consistency with SORNA’s offense-based classification system (57% highly or somewhat inconsistent). Of note, relatively few states indicated that their policies were fully consistent with SORNA’s retroactivity and juvenile provisions (17% and 11% of states, respectively), whereas approximately one third (34%) reported having systems that complied with SORNA’s offense-based tiering requirements. Interpreting these findings, the study’s authors suggested that the retroactivity and juvenile registration provisions be viewed as broad-based systemic challenges for SORNA implementation, and SORNA’s offense-based tiering provisions be seen as less universally challenging and confined to a particular subset of states.
Evaluating the specific barriers to implementing SORNA requirements, the Harris and Lobanov-Rostovsky (2011) study identified four domains of concern—legal, operational, fiscal, and practical. Legal challenges were prominent in areas that involved the potential for requiring registration of previously unregistered groups and/or expanding registration requirements, specifically those involving retroactivity, the expansion of covered offenses, juvenile registration, and offense-based tiering. On the operational front, many states cited their lack of information system capacity to adapt to SORNA’s retroactivity provisions, particularly those requiring the identification of individuals who enter the criminal justice system on a nonsexual offense, but who had previous sexual offense convictions or adjudications. Both operational and fiscal concerns were expressed surrounding the demands associated with transitioning from risk-based to offense-based systems, information technology enhancements, and the adaptation of registration update systems and personnel to respond to increased workloads.
Finally, respondents to the Harris and Lobanov-Rostovsky (2011) survey cited practical concerns over potential adverse public safety impacts related to both the inclusion of adjudicated juveniles and the requirements for offense-based classification. Regarding the former, states expressed concern the juvenile registration might compromise the potential for these youth to effectively and safely integrate into society, thereby increasing rather than mitigating risk. As for the latter, states utilizing standardized and empirically validated risk assessment instruments expressed concern that differentiating offenders based solely on the crime of conviction might compromise the ability to focus law enforcement resources on the most dangerous offenders.
The above-referenced findings are consistent with results from analyses conducted by the SEARCH (2009) and the U.S. GAO (2013). In the SEARCH study, when asked about the most significant impediments to SORNA implementation, the most commonly mentioned items were juvenile registration (23 of 45 responding states), retroactivity (20 states), and offense-based tiering (7 states). Related to the nature of implementation barriers, respondents cited a range of factors including staffing resource needs, potential constitutional challenges, operational concerns related to changes in tiering systems, and the need for statutory reform (42 states indicated that legislation would be required to bring the state into compliance with SORNA).
In 2013, the U.S. GAO conducted an analysis examining state-level SORNA implementation and its related challenges. Based on a review of DOJ records, the first part of the analysis examined adherence to SORNA’s implementation standards across 33 states and three U.S. territories that had submitted substantial implementation packages to the SMART Office, including 16 states and 3 territories that had been granted substantial implementation status by DOJ and 17 states that had not yet received this designation. 3
Among the 16 substantially implemented (SI) states analyzed by the GAO, most were found to have deviated in some ways from the letter of law regarding SORNA guidelines, with all but 1 (Kansas) deviating from at least 3 of the 14 standards, half of the states deviating from 5 or more standards, and 2 states (Tennessee and South Dakota) deviating from 9 standards. Looking across the various standards, the most common points of deviation for these states related to the information required at registration, classification or tiering of offenses, SORNA’s retroactivity provisions, and the range of covered offenses requiring registration. In its review of the 17 states that had not substantially implemented (NSI states) SORNA, the GAO analysis determined that 15 of these states met criteria for implementing at least half of the 14 standards and the 11 of these states met criteria for at least 10 of the standards. Within these states, the most significant impediments to implementation related to public registry website requirements, the range of covered offenses, and frequency and/or duration of verification and appearance. 4
Beyond examining levels of adherence to SORNA standards, the GAO analysis also included a survey of state-level officials in nonimplemented jurisdictions evaluating the impediments to SORNA implementation. The results from this survey were generally consistent with the two prior studies (Harris & Lobanov-Rostovsky, 2010; SEARCH, 2009)—of the six highest ranked implementation challenges, three of these (reconciling conflicts between state laws and SORNA, generating political will to implement necessary changes, and covering the costs of SORNA implementation) corresponded to the general obstacles identified by Harris and Lobanov-Rostovsky and the remaining three corresponded with the specific SORNA “problem areas” flagged by both earlier surveys (i.e., retroactivity, offense-based tiering, and juvenile registration).
Toward a Broader View of SORNA Implementation
As noted earlier, 18 states had received SORNA substantial implementation designations from the DOJ as of April 2017 and 32 had not been so designated. Given that over a decade has passed since the law’s passage, these figures might be interpreted, on the surface, as indicators that perhaps SORNA is a failed policy requiring significant legislative reform given that only 36% of states have SI SORNA.
Yet the aforementioned studies suggest that SORNA implementation is complex and multifaceted and that viewing the policy’s “success” through such a binary prism (e.g., substantial implementation vs. nonsubstantial implementation) may be inherently limited. Not only does such a perspective obscure potentially significant variation among those states that have received substantial implementation status, but it also fails to account for the fact that many NSI states may be in compliance with most standards, despite falling short of the substantial implementation threshold.
In this general context, the current study aims to present the status of state-level implementation of SORNA in a multidimensional manner. Drawing from SMART Office documentation based on materials submitted by the states, the analysis offers perspective on state-level compliance with each of the SORNA standards. The analysis is guided by the following questions: What is the overall extent to which both “SI” and “NSI” have met the thresholds of SORNA standards? What are the key areas of deviation from SORNA standards, and what is the nature and extent of this deviation? Based on the above, what conclusions might be drawn about the adequacy and direction of both state and federal policy governing SORN?
Method
Data Source
Data for this analysis were abstracted from a series of detailed “compliance letters” issued by the SMART Office to state officials, pursuant to SMART review of each state’s laws and policies as identified in information provided by state officials. Each letter included an assessment of the consistency between the state’s laws and policies, and each of the 14 SORNA standards (previously summarized in Table 1), and indications of an SMART Office determination as to whether, and to what extent, each standard had been met.
In cases in which a state did not meet a given SORNA standard or was determined to have adopted provisions that did not substantially disserve the intent of the standard, the SMART Office provided clarifying information in the letter narrative. In limited instances, the SMART Office indicated that there was insufficient information available for it to make a determination about the state’s implementation of that standard.
Coding and Analysis Process
Compliance letters were analyzed and coded for all states with the exception of Texas, the sole state that had not submitted an SORNA implementation packet, was not issued an SMART Office letter, and has therefore not been designated as having SI SORNA. The data set therefore included SORNA implementation data from 18 SI states and 31 NSI states. Each letter was assigned to two trained research assistants, who independently coded the state’s level of overall compliance with each of the 14 SORNA standards, based on the information contained within the letter.
In the final data set, 47 states were coded for all 14 SORNA standards. One additional state (North Dakota) was coded for only seven standards due to missing information in that state’s SORNA implementation materials and the associated lack of sufficient information for the SMART Office to make a determination regarding the implementation of those standards. Finally, Massachusetts was coded for only 13 standards, due to an exemption on Standard 3 (tiering of offenses) granted by the SMART Office pursuant to a ruling by the state’s highest court that precluded implementation of that standard in a manner consistent with SORNA.
Consistent with the SMART Office categorization schema, states were assigned one of the following three designations for each standard: Meets SORNA requirements. Denotes that the state has adopted laws, policies, and practices that are fully consistent with the SORNA legislation and federal guidelines. Does not substantially disserve (DNSD) SORNA requirements. Denotes that the state has adopted laws, policies, and practices that deviate in some manner from SORNA legislation and federal guidelines (and may require further development) but that meet the general spirit of the Act. This designation is deemed by the SMART Office to be sufficient for that state to have fulfilled the requirements of that standard for purposes of a substantial implementation designation. Does not meet (DND) SORNA requirements. Denotes that the state’s laws, policies, and practices have been determined to be substantively inconsistent with the SORNA legislation and federal guidelines and that they do not meet the general spirit of the Act. Any state with a “DND” designation for one or more of the standards is ineligible to receive a substantial implementation designation.
To offer a deeper perspective, supplemental coding was conducted for a limited group of standards that contained multiple codable subelements. For instance, the standard involving required registry website information (Standard 10) sets forth 10 specific data elements that must be included in a state’s public website—in this situation, separate codes were assigned to indicate the presence or absence of each of these registry elements for a given state.
Following independent coding of each compliance letter, the coding team compared their initial ratings. There was a high level of interrater agreement between coders (>95%), and the limited number of cases involving discrepancies were resolved through a consensus discussion among the research team.
Results
Consistent with the stated research questions, we present the study results based on two levels of analysis. First, we present data across the 14 SORNA standards, with the goal of identifying which standards have produced relatively high levels of adherence among states, and conversely, which represent the most significant “stumbling blocks” to SORNA implementation. Second, we present our data at the state level, with the goal of establishing the relative extent and nature of SORNA implementation among individual states.
Standard-Level Analysis
Table 2 offers a high-level perspective on SORNA implementation, depicting the overall percentage of states falling into each of the three implementation categories (meets, DNSD, DND) for each of 14 standards. Data are presented reflecting the full sample of 49 states and for the SI and NSI subsamples. Readers are referred to Table 1, presented earlier in this article, for a summary of the scope of each standard.
State-Level Sex Offender Registration and Notification Act Implementation by Section and Implementation Status.
Note. Bolded cells represent the modal category. Percentages may not add to 100 due to rounding. DNSD = does not substantially disserve; DNM = does not meet.
aOnly 48 states were assessed on this section.
The 14 SORNA standard areas were found to vary considerably in levels of direct state adherence to established guidelines, even among the states that were designated as SI. Standards with comparatively high rates of direct adherence, as defined by fully meeting the standard, to SORNA requirements include Section 13, related to interjurisdictional communication when a sex offender fails to appear (88% of all states, 100% of SI states, and 80% of NSI states fully meeting this standard); Section 5, related to required registration in the jurisdiction of conviction as well as where the sex offender resides, works, and goes to school (82% of all states, 94% of SI states, and 74% of NSI states); Section 12, related to state penalties for failure to register (76% of all states, 94% of SI states, and 65% of NSI states); and Section 1, related to time frames for the transfer of information (61% of all states, 89% of SI states, and 45% of NSI states).
As noted earlier, however, direct adherence to the letter of SORNA’s standards is not considered a requirement for a state to achieve substantial implementation designation from the DOJ. To this point, certain standards with comparatively low levels of direct adherence were found to produce a substantial number of states that had provisions that were deemed to “not substantially disserve” the purposes of SORNA. Notably, this represented the modal category among SI states for 5 of the 14 standard areas. These included retroactive application of registry requirements (Section 7), with 79% of all states and 67% of SI states placed in this category; scope of required registry information (Section 4), with 63% of all states and 72% of SI states placed in this category; and tiering of offenses (Section 3), with 52% of all states and 72% of SI states placed in this category.
Examining these data in the context of the broader thresholds utilized by DOJ to determine substantial implementation (i.e., the proportion of states that either meet or do not substantially disserve each standard), 13 of the 14 standards were found to have at least half of all states meeting this threshold with the exception of the verification and appearance requirements (Section 9), and 9 of the standards had at least 75% of the states meeting this threshold.
Viewing SORNA implementation in this broader context, results indicate that a significant portion of the substantive deviations from SORNA standards may be attributed to a limited group of five standards: registry verification and appearance requirements (Section 9), with 84% of NSI states and 53% of all states failing to meet the standard; public registry website requirements (Section 10), with 74% of NSI states and 47% of all states failing to meet the standard; the scope of offenses that must be included on the registry (Section 2), with 70% of NSI states and 44% of all states failing to meet the standard; provisions related to keeping registration information current (Section 8), with 60% of NSI states and 38% of all states failing to meet the standard; and provisions related to the tiering and classification of offenses (Section 3), with 50% of NSI states and 31% of all states failing to meet the standard.
As conveyed in Table 3, these five areas account for nearly two thirds (65%) of the 159 instances in which states did not meet SORNA standards. These areas are briefly discussed below in turn—for details related to the specifics of each standard area, readers should refer to Table 1. It should be noted that, overall, 76.5% (n = 519) of the standards were met or did not substantially disserve.
Standards Not Met—Rank Ordered.
Section 9: Verification and appearance requirements
Twenty-six states were deemed to have not met SORNA standards related to verification and appearance requirements. Twenty-four of these states (92%) failed to meet the standard’s requirements related to the frequency of mandated in-person appearances, with Iowa and North Dakota the sole exceptions. This failure was most typically attributed to underclassification of certain offenses for purposes of establishing mandatory reporting frequency and, in a limited number of cases, the reliance on mail-in verification rather than in-person verification. Eleven of the 26 states (42%) failed to meet the standard’s requirements related to the duration of required registration, due in large part to underclassification of particular offenses and/or minimum registration periods lower than permitted by SORNA. Closely related to the duration requirement, 13 states (50%) were deemed as failing to meet this standard due to provisions that allow certain classes of registrants to petition for relief from registration prior to the minimum amount of time required by SORNA.
Section 10: Registry website requirements
Twenty-three states were deemed to have not met the SORNA standards related to public registry website requirements. Table 4 presents a summary of the various data elements required by SORNA under this standard, rank ordered by levels of nonadherence (i.e., the most significant “problem areas” listed first for states that did not meet this requirement). As noted, the majority of states that fell short on this standard failed to meet SORNA requirements related to employer address information (87% of the 23 states), school addresses (79%), and vehicle information (79%). Additionally, nearly half of the states (43%) found to not meet this standard were so designated in part due to failure to include requisite criminal history information. Notably, many of the Section 10 informational requirements including those related to basic identifying information (e.g., name, address, physical descriptions, and photos) were met by all or most states. Beyond the informational elements provided in Table 4, a small number of states were noted as failing to include SORNA-required search field capability (17%), educational/safety links (13%), or directions on correcting erroneous information (9%).
Registry Website Requirements.
Note. SD = standard deviation.
Section 2: Offenses that must be included in the registry
Twenty-one states were deemed to have not met the SORNA standards related to offenses requiring inclusion on the registry. Of note, this section contained two subsections: (1) adult sex offense conviction and (2) juvenile sex offense conviction and/or adjudication. Twenty of the 21 states (all but New Jersey) were deemed to have not met SORNA’s requirements related to registration of adjudicated juveniles. 5 Of these, 10 states (50%) categorically exclude adjudicated juveniles from registration, although 2 (Kentucky and Nebraska) of these states do conditionally allow for registration of certain juveniles who moved from a jurisdiction where they were required to register. The remaining states, while allowing for juvenile registration under certain conditions (e.g., based on judicial discretion or adult court criminal convictions), were nonetheless determined to have fallen short of SORNA requirements related to youth who are adjudicated delinquent for SORNA-qualifying offenses. Only three states failed to meet the adult subsection for varying reasons: New Jersey due to a number of offenses that are not captured, Rhode Island that does not register offenders for conspiracy or attempted offenses, and Massachusetts due to the state’s limitations on registration of those moving in from out of state.
Section 8: Keeping the registration current
Eighteen states were deemed to have not met the SORNA standards related to updating and keeping current registry information. Duties for each jurisdiction vary depending on whether they are the residence, employment, or school jurisdiction. The most commonly cited issue, affecting 16 of the 18 states, related to lack of provision for requiring offenders to notify authorities 21 days in advance for international travel and, for a subset of 14 states, not providing this information to required government agencies such as the U.S. Marshals Service. Additionally, several states did not require updates to be made in person (n = 8, 44%), did not require all of the necessary information to be updated (n = 7, 39%), did not require offenders to update their information within 3 business days (n = 6, 33%), or did not capture temporary lodging information (n = 4, 22%). Of the 11 states that failed to meet both the employment and school jurisdiction requirements, more than half did not require in-person changes (n = 7, 58%) and/or did not require offenders to update all of their information (n = 4, 33%).
Section 3: Tiering of offenses
Fifteen states were deemed to have not met the SORNA standards related to the establishment of classification tiers for purposes of establishing SORNA requirements. It should be noted that failure to adhere to this standard (or lack thereof) was closely associated with failure to meet other standards that stem in part from offense classification, particularly the verification and appearance requirements set forth in Section 9. Of the 15 states, 13 (87%) failed to meet this standard because a substantial number of offenses were not correctly classified, resulting in a shorter registration duration and fewer verifications than what SORNA requires. For example, North Carolina’s lower tier requires offenders to register for 30 years with biannual verification, yet some offenses included in this tier should be classified as Tier III in SORNA, which requires lifetime registration with quarterly verification. In addition, some states, such as North Dakota and New York, were deemed to have failed to meet SORNA requirements in this area due to systems that utilize risk assessment rather than the offense of conviction as the primary means of establishing registration requirements.
State-Level Analysis
Table 5 and Figure 1 summarize the study’s data on a state-level basis. Table 5 summarizes the number and proportion of standards that each state meets, does not disserve, or DND based on the SMART Office review. Figure 1 offers a “heat map” that presents each state’s level of implementation across the 14 standards.
State-by-State Implementation Summary and Report Date.
Note. Values may not add to 100 due to rounding.
State-level implementation by standard section.
Beyond reflecting the five main “issue areas” as identified above, these data highlight at least two key points related to state-level implementation. First, they indicate that full implementation of SORNA standards is the exception rather than the rule. With the sole exception of Kansas, all states (whether SI or not) deviate from SORNA standards in some manner, albeit in ways that were found to not substantially disserve (DNSD) the law’s purpose. Among the SI states, half (9 of 18) had five or more SORNA standards in which they received DNSD designations.
Second, among the NSI states, most have generally met thresholds for implementation for a majority of standards. All but four states (Kentucky, New York, Rhode Island, and West Virginia) have been deemed to either meet or not disserve at least half of the standard areas, and slightly less than half (48%, or 15 of 31 states) have been deemed deficient on four or fewer standards. In fact, three of these states (Iowa, Nebraska, and Virginia) were deemed as failing to meet only one standard.
Discussion
Based on a systematic analysis of data extracted from DOJ reviews of state sex offender registry policies, this study examined the extent and nature of state-level implementation of the standards set forth by the 2006 SORNA. Our findings underscore the notion that SORNA implementation is more than a binary designation and indicate that SORNA standards may be implemented by states in varying ways and to varying degrees regardless of implementation status.
Before considering the key challenges associated with SORNA implementation, it is worth noting that most states—including those that have not achieved substantial implementation status (NSI states)—have nonetheless managed to comply with a majority of SORNA standards. Conversely, virtually all of the states—including those that have been designated as SI (SI states)—deviate from SORNA standards in some way. These general findings suggest that, despite SORNA’s goal of promoting greater consistency across the nation’s registration and notification systems, SORNA has not in practice amounted to a “one-size-fits-all” uniform approach. As the law has been applied by the DOJ, SORNA is perhaps best thought of as a mechanism to promote basic standards of practice in the design and implementation of SORN systems rather than a rigid prescription.
Examining SORNA’s Implementation Challenges
Our data indicate that SORNA’s implementation challenges remain concentrated in a limited number of areas. Some of these areas correspond closely to the challenges identified through surveys conducted during the formative years of SORNA implementation (GAO, 2013; Harris & Lobanov-Rostovsky, 2010; SEARCH, 2009), while others reflect more nuanced operational dimensions of SORNA implementation that were not explicitly raised by these prior studies.
Retroactivity
Eighty-one percent of all states (including both SI and NSI states) were found to fall short of SORNA retroactivity requirements to some degree. The vast majority of states, however, were designated by the DOJ as having provisions that “do not substantially disserve” SORNA standards (DNSD). Survey data from the early years of SORNA suggest that state officials perceive the challenges to implementing SORNA’s retroactivity provisions to be multifaceted in nature, reflecting a range of fiscal, legal, and operational concerns (Harris & Lobanov-Rostovsky, 2010). While our results offer few new insights into the specific barriers to implementation, it certainly appears that earlier concerns surrounding legal obstacles have been borne out in recent years. Several state supreme court rulings have determined that implementing SORNA’s retroactivity provisions as written represents a violation of state constitutions (Doe v. Department of Public Safety & Correctional Services, 2013; Doe v. State, 2008; Maine v. Letalien, 2009; Starkey v. Oklahoma Department of Corrections, 2013; State v. Williams, 2011; Wallace v. State, 2009), and some states have been precluded by federal courts from implementing SORNA’s retroactivity provisions (Doe v. Snyder, 2016). Moreover, the U.S. Supreme Court ruling in United States v. Reynolds (2012) placed significant restrictions on the ability of federal authorities to prosecute on federal failure to register charges those whose offenses predated SORNA. Hence, although a majority of states have received DNSD designations, this may be largely a function of DOJ’s implicit recognition that SORNA’s retroactivity provisions may be legally untenable for many states and thus an intractable barrier to SORNA implementation.
Offense-based tiering
SORNA’s mandate for offense-based tiering remains a challenge for many states, with approximately half of NSI states failing to meet this area of SORNA standards. Of note, state issues with SORNA’s offense-based tiering (Standard 3) were closely correlated with failure to meet the standards related to required duration of registration and frequency of verification (Standard 9). These deviations were primarily—although not exclusively—linked to states that have adopted risk-based classification systems that examine factors other than offense of conviction as a means of setting forth registry requirements. These risk-based classification systems were allowable under the flexibility provided by the Wetterling Act, which was repealed with the passage of SORNA, and certain states appear to have confidence in these existing systems and are reluctant to change to the offense-based system prescribed by SORNA. In some instances, states have vigorously defended their risk-based systems, maintaining that such approaches are more effective and research-informed than SORNA-prescribed means of classification (e.g., State of New York Division of Criminal Justice Services, 2011). Hence, while SORNA has prompted some states to refine and adjust their tiering systems (Harris, Lobanov-Rostovsky, & Levenson, 2010), the means through which offenders are classified for purposes of registration remain a particularly intractable implementation barrier for a limited but significant subset of states.
Juvenile registration
SORNA requirements involving juvenile registration are most prominently reflected in Standard 2, which sets forth the range of covered offenses. Among the 21 states that were found to not meet the requirements of Standard 2, all but 1 (New Jersey) received this designation due in whole or in part to the state’s failure to adequately mandate registration for juveniles adjudicated for, or convicted of, specified offenses. Accordingly, the matter of juvenile registration emerges as the most widely shared impediment to substantial implementation of SORNA, affecting approximately two thirds of NSI states. As with the case of offender classification systems noted above, some states have expressed overt resistance to SORNA mandates in this area, expressing concerns that registration of adjudicated youth contravenes and undermines the core principles of juvenile justice (State of New York Division of Criminal Justice Services, 2011).
Viewed strictly through the prism of SORNA’s viability, this state of affairs undoubtedly supports the need to revisit federal statutory requirements related to the inclusion of juveniles on state sex offender registries. At the same time, however, it should be recognized that the current practice of registering juveniles in the United States has largely been driven by state policy rather than federal policy. Forty-one states have provisions to include some juveniles on their registry, and 30 of these make some of this information publicly available (Lobanov-Rostovsky, 2014). The majority of these state laws predated SORNA’s passage and are far more likely to exceed SORNA’s requirements pertaining to juvenile registration than they are to fall short of them. As noted earlier in the introduction, clarifications of the SORNA guidelines in 2011, 2016, and 2017 granted states significant flexibility surrounding the range of juveniles who must be included on the registry, allowed states to exempt youth from inclusion on public registry websites, and ultimately removed the juvenile registry requirement in any form other than a waiver to adult court requirement for certain serious juvenile offenders. Accordingly, efforts to reform laws governing juvenile registration should be looking beyond federal mandates and toward state laws that may go far beyond what SORNA requires.
Operational challenges
Beyond the aforementioned barriers to SORNA implementation, the analysis shed light on some additional operational dimensions of sex offender registries that have presented challenges to many states. For instance, 23 states failed to meet SORNA requirements surrounding public registry website data elements, with the primary problems attributable to employer and school addresses, and vehicle information. There may be practical considerations at work here—not only may states be reticent about employers being potentially targeted for hiring those who sex offense histories, but there may also be a sense that employment and education serve as protective factors against re-offense, and that making such information public may impede registrants from effective prosocial reintegration. Additional operational barriers identified through our analysis involved those related to processes and systems for updating registry information including provisions related to international travel and notification of federal authorities for those leaving the state.
Study Limitations
Before presenting our summary and addressing policy implications, we should note that the results presented here should be evaluated in the context of certain study limitations. First, the data reflect a series of point-in-time snapshots based on when each state submitted its implementation packages and the DOJ SMART Office completed its most recent review. Accordingly, the analysis does not account for incremental changes to a given state’s laws and policies that occurred following this review. SORNA implementation is an ongoing process, and there may be modest and incremental changes that are not reflected in the data.
Second, as previously referenced, data from Texas were not available and were therefore not reflected in the analysis. While the omission of a single state has minimal impact on the overall picture presented here, it should be recognized that Texas operates one of the nation’s largest SORN systems, with an estimated 90,616 registered sex offenders as of May 2017 (National Center for Missing & Exploited Children, 2017).
Finally, it should be recognized that SORNA standards are just one series of operational metrics through which SORN systems may be evaluated. Accordingly, further research on SORN system implementation might consider evaluating other salient dimensions of registration and notification practices, including those that SORNA does not directly address, such as those related to registry compliance checks and enforcement.
Conclusions and Policy Implications
The 2006 SORNA represented a watershed moment in sex offender management policy in the United States. In setting forth new standards for the nation’s disparate SORN systems, SORNA heralded an expanded federal role in shaping the primary mechanisms for tracking and monitoring sex offenders in the community.
One key goal of SORNA was to establish greater consistency between state registry systems by creating standardized requirements and processes. While our findings indicate that some of these requirements have been challenging for many states, they also suggest that most of SORNA’s standards have been broadly implemented. Moreover, the SORNA guidelines have prompted many states to reevaluate and substantially modify their SORN systems. Over the past decade, the nation’s systems of SORN have continued to evolve both among states that have received SI designations and those that have not. In the years since SORNA’s passage, virtually all states have made some form of adjustments to their SORN statutes, policies, and operational practices, often with federal grant support that was enabled through the SORNA legislation. The DOJ has also evolved in its thinking regarding SORNA implementation from letter of the law substantial compliance to the more nuanced approach currently used.
For certain SORNA standards, prospects remain for continued incremental progress. Some of the identified points of divergence—such as those related to public website information and provisions for updating and maintaining registry information—seem to reflect operational or technical limitations rather than points of systemic policy resistance and thus might be addressed through ongoing technological enhancements and improvements to operational practices, particularly if federal support for such initiatives is sustained.
Conversely, it appears that certain SORNA standards may have reached an implementation saturation point in which further movement is likely to be marginal at best. SORNA’s retroactivity provisions seem to beckon for adjustments to federal law that would allow the DOJ latitude to bring this standard more in line with legal realities and relatively clear judicial guidance that have defined the contours of state policies in this area. For both SORNA’s offense-based tiering and juvenile registration provisions, it appears that many states have effectively established a “line in the sand” on one or both of these issues and appears unlikely to substantially modify their systems in a manner that will correspond to SORNA standards, even considering the 2017 revisions that have granted greater flexibility in the area of juvenile registration. Given this reality, federal lawmakers might be advised to take a fresh look at SORNA’s provisions surrounding retroactivity, juvenile registration, and registered sex offender classification and to carefully consider the rationale set forth by states that have declined to adopt SORNA-consistent policies in these areas.
Footnotes
Authors’ Note
The opinions, findings, and conclusions or recommendations expressed in this publication are those of the authors, and do not reflect those of the Colorado Department of Public Safety or the United States Department of Justice.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This project is supported by Award No. 2014-AW-BX-K003, awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice.