Early 1990 s states began authorizing creation of registration systems focusing on sex offenders

Early 1990 s states began authorizing creation of registration systems focusing on sex offenders 1994: Wetterling Act provided nat l baseline for state level SO registration Offenses for which registration is required Duration of registration periods Periodic verification of registration address Continued registration when moving from one state to another Community notification 3

1996 Megan s Law Amendment made community notification mandatory Pam Lyncher Act added lifetime registration requirement for perpetrators of aggravated offenses, recidivists. Congress authorized FBI operated NSOR collects info from state registries i & makes available to l.e. nationwide. id 2005 DOJ est. (NSOPR) provided public access to info. from state registries through single query searches. 4

SORNA established a new baseline sex offender registry standard for jurisdictions, but jurisdictions are free to enact more stringent standards. Failure to come into substantial compliance with SORNA s requirements in a timely manner will result in an annual 10% reduction in the funds received by the jurisdiction under the Byrne Grants. Provides for disclosure of registry info. to specified institutions, organizations, and individuals. Original compliance date: July 27, 09 delayed to July 2010. 5

Tier III lifetime registration w/ renewal every 3 months. T3 offenses punishable by more than 1 yr. incarceration. Sex acts w/ child under 12; Sexual acts w/ another by threats or force; Sex acts w/ one rendered unconscious / involuntarily drugged, or otherwise incapable of appraising nature of the conduct or declining to participate; and Non parental kidnapping of a minor. 6

Tier II offenses: generally the following felony crimes under a state s statutory scheme: Offenses involving use of minor in prostitution Offenses against minors involving sexual contact Offenses involving use of minor in a sexual performance; and Offenses involving production or distribution of CP. Tier I 15 yr. registration w/ annual renewal. Includes misdemeanor and felony offenses meeting definition of sex offense under 18 U.S.C. 16911(5). Crim. offense w/ element of sexual act or sexual contact with another; Specified crim. offenses against a minor;* Kidnapping (unless by parent or guardian) False imprisonment (unless by parent or guardian) Solicitation to engage in sexual conduct Use in a sexual performance Solicitation to practice prostitution Video voyeurism (18 USC 1801) Possession or receipt of CP Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct Any conduct that by its nature is a sex offense against a minor 7

118(a) () SORNA: Jurisdictions are to make available on the Internet, all information about each sex offender in the registry. This requirement is subject to certain mandatory and discretionary exemptions, found in subsections (b) and (c) of 118. After these exemptions are taken into account, the website posting requirements are limited to specific information concerning: Sex offenders names; Addresses or locations; Vehicle descriptions and license plate numbers; Physical descriptions; Sex offenses for which convicted, and Current photographs. 9

The Adam Walsh Act was motivated, in part, by the concern that the variations in state law that created a patchwork which enabled registrants to evade continued scrutiny, especially as a result of Interstate travel. Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 Ohio St. J. Crim L. 51, 84 (2008). The legislation targeted sex offenders who might register in one jurisdiction and then move to another and fail to register there. United States v. Dixon, 551 F.3d 578, 582 (7 th Cir. 2008) (citing H.R. Rep. No. 109 218, at 23 24,26 (2005)). The Seventh, Eighth, Tenth, and Eleventh Circuits have all upheld (a)(2)(b) against constitutional challenges, but there is no uniform rational in their decisions. United States v. Ambert, 561 F.3d 1202, 1210 (11 th Cir. 2009) United States v. Howell, 552 F.3d 709, 713 (8 th Cir. 2009) United States v. Dickson, 551 F.3d 578, 583 (7 th Cir. 2008) United States v. Lawrance, 548 F.3d 1329, 1337 (10 th Cir. 2008) 10

Period between 7/27/06 and 2/28/07 is known as the Gap Period, when it was ambiguous whether SORNA would be applied retroactively. The application of SORNA standards to sex offenders whose convictions predate SORNA creates no ex post facto problem because SORNA registration and notification requirements are intended to be non punitive regulatory measures adopted for public safety purposes, and may therefore be validly applied (and enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of these requirements. The National Guidelines for Sex Offender Registration and Notification, Final Guidelines, June 2008 (U.S. Department of Justice, Office of Attorney General) 11

In April 2009, The National Consortium for Justice Information and Statistics conducted the Survey of State Compliance with the Sex Offender Registration Act (Sorna). Of the 45 states that responded: 42 reported that legislation would be needed to bring the states into SORNA compliance. The most commonly cited barrier to compliance was SORNA s juvenile registration and reporting requirements, cited by 23 states. SORNA s retroactive registration requirement was cited by 20 states as a barrier. (SORNA requires registration of sex offenders who remain in the system as prisoners, supervisees or registrants, along with those who re enter the system through a subsequent criminal conviction, even if the conviction is not for a sexual offense.) Eight states cited concerns regarding cost of implementation or restrictions by their state budget. (California, Florida, Iowa, Maine, Nevada, Oregon, Vermont, and West Virginia.) Seven states cited as a barrier SORNA s requirement that convicted sex offenders be assigned to tiers based on their crimes of conviction. Four states cited SORNA s in person reporting requirement as a barrier to compliance. Three states cited SORNA s palm print requirement as a barrier. 12

Nondelegation doctrine: Violation: United States v. Aldrich, 2008 WL 427483 (D. Neb. 2008). No violation: (Vast majority) United States v. David, 2008 WL 2045827 (W.D. N.C. 2008) United States v. Mantia, 2007 WL 4730120 (W.D. La. 2007) United States v. Samuels, 543 F. Supp. 2d 669 (E.D. Ky. 2008) Ex Post Facto clause: Violation when indictment relied on allegations of conduct during Gap Period : United States v. Davis, 2008 WL 510599 (W.D. La. 2008) United States v. Patterson, 2007 WL 3376732 (D. Neb. 2007) United States v. Terwilliger, 2008 WL 50075 (S.D. Cal. 2008) Violation when indictment relied on allegations of conduct before SORNA enacted: United States v. Gillette, 553 F. Supp 2d 524 (D. V.I. 2008) United States v. Smith, 481 F. Supp. 2d 846 (E.D. Mich. 2007) No Violation when indictment relied on allegations of conduct during Gap Period : United States v, Cardenas, 2008 WL 896206 (S.D. Fla. 2008) United States v. Beasley, 2007 WL 3489999 (N.D. Ga. 2007) No Violation when indictment relied on allegations of conduct before SORNA enacted: United States v. Pitts, 2008 WL 474244 (M.D. La. 2008) 15

National Conference of State Legislatures referred to the new guidelines as a burdensome, preemptive, unfunded dmandate for the states, requiring ii every legislature to undertake an extensive review of its laws as compared to the Act and necessitating changes to state policy traditionally within the purview of the states. Comments accompanying Vermont s act relating to the expansion of their state s sex offender registry note that while the Adam Walsh Act is well intended, it contains a broad span of provisions that would significantly change state practice related to the registration and management of sex offenders in Vermont in a manner that is inconsistent with widelyaccepted evidence based best practices at a substantial cost to the state. Specifically noted are the following factors: The AWA is being challenged in federal and state courts at a significant cost to many states; AWA s registry requirements and consequences for failure to comply have expanded significantly and may now violate constitutional ban on retroactive punishment; AWA mandates that risk determination be based on an offender s crime of conviction, instead of the practice employed in Vermont, which assigns offender risk levels through the use of actuarial assessment instruments. AWA s retroactive application would apply to juveniles adjudicated delinquent for certain sexual offenses, even though not required to be registered under Vermont law. 16

Conditions imposed need not relate to all sentencing factors as long as sufficiently related to others. The sentencing factors a district court must consider under 18 U.S.C. 3553(a) are: (1) the nature and the circumstances of the offense and the history and characteristics of the defendant; (2) The need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational and vocational training, medical care, or other correctional treatment in the most effective manner. 18

Other Methods (in use and proposed): Employment restrictions Civil commitment Treatment programs Branding Banishment Chemical castration Restitution for estimated future medical expenses for lifetime psychological counseling Death penalty 19

United States v. Paul, 274 F.3d 155, 168 69 (5 th Cir. 2001). Paul argued that a complete ban on his computer use and Internet access could not be upheld merely because he pled guilty to an Internet related crime, arguing that the restriction would prohibit him from using computers and the Internet for legitimate reasons, such as word processing and research. Paul, 274 F.3d at 168. The Fifth Circuit upheld the complete ban on computer use and Internet access finding it was reasonable related to Paul s offense and the need to prevent recidivism and protect the public. Paul, 274 F.3d at 169. In addition to the significant amount of child pornography on his computer, the prosecution provided proof that Paul communicated with others about sexually explicit content via the Internet, and that he emailed others providing instructions on targeting single, dysfunctional parents in order to gain access to their children. Paul, 274 F.3d at 168. 24

Argued that computer/internet restriction was overbroad and would prevent him from earning a living at any occupation where he might have to have access to a computer, including a job as a cashier. United States v. Granger, 117 F. App x 247, 248 49 (4 th Cir. 2004). The Fourth Circuit rejected Granger s argument by noting: The restrictions should not affect Granger s ability to find employment, since much of his prior employment involved manual labor and did not require computer use or Internet access. there would be no doubt as to whether any potential employment opportunities would violate conditions of his supervised release since it was required that Granger s probation officer pre approvedany any job that Granger wished to take. If computer technology had advanced to such a degree in fifteen years (during which Granger was serving his sentence) that it would severely limit a worker with his skills and training, he could seek a modification of this special condition after his release. Granger, 117 F. App x at 249. 25

United States v. Rearden, 349 F.3d 608, 620 21 (9 th Cir. 2003) Special condition of supervised release limited defendant s Internet access to that approved by the Probation office. United States v. Ristine, 335 F.3d 692, 695 96 (8 th Cir. 2003) Condition permitted defendant to use computer with permission of his probation officer but prohibited him from Internet access. United States v. Zinn, 321 F.3d 1084, 1093 (11 th Cir. 2003) Condition limited defendant s Internet use to purposes deemed acceptable by his probation officer. 26

United States v. Sofsky, 287 D.3d 122, 124 (2d Cir. 2002). Sofsky pled guilty to receiving child pornography and received prison sentence and a period of supervised release. One of the conditions of his supervised release prohibited him from accessing a computer or the Internet without his probation officer s approval. While finding that the condition was reasonably related to the purposes of his sentencing, in light of the nature of his offense, it inflicted a greater deprivation of his liberty than was reasonable necessary. Such a ban would prevent the use of email and other common computer uses. Sofsky, 287 D.3d at 126 27. United States v. Carlson, 47 F. App x 598, 599 (2d Cir. 2002) (vacating condition that defendant not possess, purchase, or use a computer (including any Internet service) or computer equipment and that prohibited him from using any commercial computer systems/service.) United States v. Peterson, 248 F.3d 79, 81 (2d Cir. 2001). Court considered restrictions on Internet access stemming from prior incest conviction, probation officer s finding that defendant posed a great risk to the community, and defendant s continued viewing of adult pornography, and found them to be overly extensive. Such restrictions would prevent defendant from possessing or using a computer that includes either a modem, an Internet account, a mass storage device, or a re writeable CD Rom. Peterson, 248 F.3d at 82 83 27

United States v. Freeman,, 316 F.3d 386, 387 88 (3 rd Cir. 2003) Third Circuit found that there was no need to cut off Freeman s access to email or benign internet usage when a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of material stored on Freeman s hard drive or removable disks. Freeman, 316 F.3d at 392. The Court distinguished Freeman from United States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999) in which it upheld a restriction banning all Internet access by noting that the defendant in Crandon used the Internet to contact young children and solicit inappropriate sexual contact with them, whereas Freeman did not. The Court also opined that it was more difficult to trace Internet activity of the type Crandon engaged in than in monitoring sites viewed. United States v. Thielemann, No. 08 2335 (3d Cir. Aug. 3, 2009). Defendant pleaded guilty to one count of receiving child pornography and received 240 months imprisonment, plus 10 years supervised release with restrictions. Third Circuit upheld conditions restricting computer use and his viewing of sexually explicit material. 28

United States v. Holm,, 326 F.3d 872, 877 78 (7 th Cir. 2003). Court found that conditions requiring random searches of defendant s computer and residence, as well as filtering software, would more appropriately balance the need to protect the public with Holm s need for computers and the Internet. United States v. White, 244 F.3d 1199, 1205 06 (10 th Cir. 2001). A condition allowing Internet access with approval from probation officer better responds to the rehabilitative goal of sentencing while balancing the need to restrict Internet access with the need to protect the public. 29

Internet restrictions for those on supervised release or probation: FLA. STAT. ANN. 948.30(1)(h) (West 2006). Nev. Rev. Stat. Ann. 176A.410 (1)(q) (2006). N.J. STAT. ANN. 2C:7 2, 2C:43 6.6 (2008). Illinois (Jan. 1, 2010) felony for registered SOs to use social networking sites. Defined as an Internet website that contains profile web pages of the members of the website that includes the names or nicknames of such members, or photos or any other personal information. Web sites meeting this criteria include: Google.com Yahoo.com Amazon.com Digg.com Hulu.com TV.com Netflix.com Pandora.com CNET.com 30