In December of 2021, the United States Attorney General promulgated amended SORNA regulations. This followed months of public comment and consideration. These regulations are to provide direction as to the federal view of the implementation of the Sex Offender Registration and Notification Act. The regulations are set out at 28 CFR Part 72.
- 72.3 Applicability
Pursuant to this regulation, SORNA applies to all sex offenders, even if their offense occurred prior to the enactment of SORNA. Those federal statutes and regulations apply to sex offenders in states that have not substantially implemented SORNA or have not implemented a particular requirement of SORNA.
For point of reference, Georgia is among the States which have not substantially implemented SORNA.
This potentially sets up a difficult situation for sex offenders in States like Georgia, because some of the regulatory requirements do not intersect with requirements under Georgia statutes. I will attempt to note these as the article progresses.
- 72.4 Where Sex Offenders Must Register
Sex offenders must register, and keep the registration current, in each jurisdiction in which the offender resides, is an employee, or is a student. The offender must also register in the jurisdiction in which convicted if that is different from the offender's jurisdiction of residence.
Jurisdiction in the regulation refers to the states and territories of the United States. It does not refer to the constituent local jurisdictions of that state or territory, such as cities or counties.
Georgia requires the sex offender to register through the Sheriff of the person's county of residence. Part of the required registration information is the employer and employer address and school enrollement and location. Changes in employment or enrollment status are required to be reported within 72 hours. There is no direct requirement of the sex offender to register with the Sheriff of the county in which he or she is employed or attends school, if different from residence county. OCGA § 42-1-12(j)(1) makes the Sheriff of the county of residence the primary law enforcement officer changed with communicating the offender's whereabouts to the Sheriffs of those other counties.
- 72.5 How Long Sex Offenders Must Register
The regulation spells out the federal registration time periods, and the federal opportunities for early termination of the requirements.
This is one of the most direct conflicts between SORNA, the federal regulations and Georgia's sex offender registration system.
The federal system is a charge based system. A state implementing the federal system would determine how its qualifying offenses match up with the federal government's three tier system. The tier your charge is classified as determines the length of your obligation to register. Tier I (the lowest tier) has a 15 year registration requirement, but it can be reduced to 10 years if the registrant maintains a clean record for that period.
Georgia has implemented a risk based approach. In my opinion, it is a superior approach. All Georgia registrants start out with a lifetime registration obligation. Fully disabled registrants may petition for removal in a number of circumstances. Aside from that, low risk (level I) registrants may petition for removal after completing their sentences, provided they meet certain screening factors. Moderate risk registrants may petition for removal beginning ten years after sentence completion, again subject to some screening factors. Unclassified registrations may petition for removal if they meet the screening criteria and obtain classification as a part of the court process.
Because the person is complying with Georgia's registration scheme, it is difficult for me to see how the person would be in violation of SORNA even if the removal occurs prior to the date that the person might have been eligible for removal under the federal statutes.
If a person was removed from the Georgia registry and was considering a move to another state or territory, it would be necessary and advisable to investigate whether the federal system or the registration system of the state or territory being moved to might re-activate a requirement to register.
- 72.6 Information Sex Offenders Must Provide
This section spells out information required to be provided. OCGA § 42-1-12(a)(16) sets out the required information for Georgia registrants. Much of the information requirements overlap. I do have a few notes about differences.
The federal regulation directs registrants to provide “all designations the sex offender uses for purposes routing or self-identification in internet or telephonic communications or postings, including email addresses and telephone numbers.
Georgia requires registrants to provide their landline and mobile telephone numbers. Georgia does not require any internet designations. Notwithstanding its reference to email addresses, the regulation is incredibly broad on the required internet information. The definition would encompass user id's, Twitter handles, nicknames, etc. Read at its most expansive, it would require disclosure of individual character names for online games.
Georgia does not collect the internet information from registrants.
The federal regulation requires registrants to notify their registering authority of any places and dates they will be staying when away from their residence for seven or more days.
Georgia does not have a statutory requirement for Sheriffs to receive this information. I am told that some Georgia Sheriffs do notify registrants that they are to be provided this information. Registrants should reveal closely the information requirements expected by their particular county sheriff's office.
The federal regulation requires information related to any intended travel outside the United States, including all itinerary information. This information is to be provided at least 21 days in advance. There is no corresponding Georgia statutory requirement.
Passport and Immigration Documents
The federal regulation requires the registrant to provide information about each passport that the registrant has and any documents establishing immigration status, if applicable. There is no corresponding Georgia statutory requirement.
The federal regulation requires the registrant to provide all information regarding licensing that authorizes a registrant to engage in an occupation or carry out a trade or business. Except to the extent that such information is encompassed by the person's employer's name and address, Georgia has no corresponding requirement.
- 72.7 How Sex Offenders Must Register and Keep the Registration Current
It generally appears that Georgia's requirements match or may be more stringent than the federal regulation with regard to initial registration requirements and requirements to update the jurisdiction as to changes in required registration information.
The exception to that, in the absence of changes in information, Georgia only requires annual in person registration. The federal system requires in person registration every six months for tier II registrants and every three months for tier III registrants.
The federal regulation imposes an updating requirement for the information described in the previous section that includes information not set out in Georgia's statutory scheme.
- 72.8 Liability for Violations
A person who is required to register by SORNA may be subject to federal criminal liability if they travel in interstate or foreign commerce or enter or leave or reside in Indian country without complying with registration requirements.
A person who is required to register by SORNA may be subject to federal criminal liability if they engage in or attempt to engage in travel in foreign commerce without complying with the information requirements spelled out in the regulations.
The regulation does spell out that there will not be such liability if uncontrollable circumstances prevent compliance.
One example is a situation where the registrant reports timely to the registration authority but is told that the registration authority cannot receive their information at that time and that they are to return at a certain date and time and the registrant does so.
Another example is where the registrant reports for initial registration and is told that registration authority will not receive their information because the offense requiring registration under SORNA does not require registration under that state's laws.
The third example is with regard to international travel with less than 21 days notice if the failure to meet the 21 day requirement is caused by a work or family emergency.