This report examines the Department of Justice’s (Department) implementation of Title I of the Adam Walsh Act, the Sex Offender Registration and Notification Act (SORNA), which sets forth specific responsibilities for the Department in identifying, arresting, and prosecuting sex offenders who have failed to register or update a registration.1 Sex offenders who do not register or update registrations are considered non-compliant and are subject to prosecution under SORNA when federal jurisdiction can be established. When a warrant is issued for a non-compliant sex offender, the subject is referred to as a fugitive sex offender. Records on convicted, non-compliant, and fugitive sex offenders are maintained within the national sex offender registration system.
The national sex offender registration system is composed of two registries operated by different Department components. One is the Federal Bureau of Investigation’s (FBI) National Sex Offender Registry (NSOR), which is part of the National Crime Information Center (NCIC). NCIC is an information system that provides law enforcement agencies with around-the-clock access to federal, state, and local crime data, including criminal record histories and wanted and missing person records. The other is the Office of Justice Programs’ (OJP) Dru Sjodin National Sex Offender Public Registry Website (NSOPR), which is an online portal linked to all states’ sex offender public registries. Using NSOPR, members of the public can access information on sex offenders in any of the states’ public registries. The information in both the FBI’s NSOR and OJP’s NSOPR portal is provided by the states, territories, federally recognized Indian tribes, and the District of Columbia (collectively referred to in this report as “jurisdictions”). The inclusion, accuracy, and integrity of the data are ultimately the responsibility of those jurisdictions.
At the state level, sex offender registration requirements and penalties for failing to register vary by jurisdiction, and the requirements for maintaining a registration are based on the nature of an offender’s crime and on state law. At the federal level, records of three categories of sex offenders are included in the FBI’s NSOR: individuals convicted of criminal offenses against minors, individuals convicted of sexually violent offenses, and individuals who are designated as sexually violent predators.
SORNA requires convicted state and federal sex offenders to register within 3 business days in the states in which they will live, work, and attend school after being released from incarceration or, in cases in which there is no term of incarceration, within 3 days of being sentenced. Once registered, convicted sex offenders are required to verify their registration information periodically with jurisdiction authorities. The jurisdiction registration authorities are also required to alert the FBI when they receive new or updated registration information. Absent an extension, state, territorial, and tribal jurisdictions must implement SORNA requirements by July 27, 2009 – 3 years after the date of SORNA’s enactment. The Department’s only mechanism for enforcing state and territorial compliance with SORNA requirements is to reduce the grant funding the Department provides by 10 percent. The sanction for a tribe is that the authority and responsibility for implementing SORNA are transferred from the tribe to the state in which the reservation is located.
At the federal level, the responsibility for implementing various elements of SORNA is assigned to several Department components. Two units within OJP, the Bureau of Justice Assistance (BJA) and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office), are responsible for implementing the required changes to the NSOPR portal and assisting jurisdictions with required enhancements to their registries. The FBI is responsible for maintaining the National Sex Offender Registry. The U.S. Marshals Service (USMS) has been designated by the Department as the lead federal agency for investigating non-compliant and fugitive sex offenders and for assisting states in enforcing their registration requirements. U.S. Attorneys’ Offices can pursue charges against sex offenders who are not in compliance with registration requirements resulting from prior federal convictions. They can also pursue charges against sex offenders who are not in compliance with registration requirements resulting from state convictions if those offenders travel in interstate or foreign commerce. The Department’s Criminal Division’s Child Exploitation and Obscenity Section assists federal attorneys with prosecutions of fugitive sex offenders.
The Office of the Inspector General (OIG) conducted this review to assess the Department’s efforts to implement SORNA requirements and to assess whether those efforts have increased the number of fugitive sex offenders investigated, arrested, and prosecuted by the Department. In this review, we analyzed law enforcement and sex offender registration data from January through March 2008. We also examined trends in fugitive sex offender investigations, arrests, and prosecutions during fiscal year (FY) 2004 through FY 2007, and conducted interviews at the Department components involved with implementation of SORNA.
RESULTS IN BRIEF
Our report examines three aspects of the Department’s implementation of SORNA. First, although the Department did not issue guidance to the components on implementing specific SORNA requirements, we found that the components have begun to address each of the requirements but have yet to fully implement all of them. For example, the Department is still working to track sex offenders entering and leaving the country and to enhance the Department’s Project Safe Childhood initiative to combat the proliferation of crimes against children, including Internet-based crimes. Based on the progress to date, we believe the Department components are on track to complete the specific tasks they are assigned under SORNA by July 2009. But despite the Department’s assistance to state, territorial, and tribal jurisdictions in implementing SORNA, we believe the jurisdictions will not fulfill their SORNA requirements by July 2009.
Second, we found that information in the national sex offender registries is incomplete and inaccurate and therefore the registries are not reliable tools for law enforcement and the public. For example, we found that registries were missing records, did not always identify known fugitives, and did not always contain sufficient information to enable law enforcement and the public to accurately identify sex offenders.
Third, although implementation of SORNA is not yet complete, we found that the USMS has increased federal investigations and arrests of fugitive sex offenders and has increased assistance to state agencies with fugitive sex offender investigations and arrests.
The following sections of this Executive Digest describe our findings in the above three areas in more detail.
Status of SORNA Implementation
We found that although the Department’s Office of Legal Policy prepared a memorandum in 2006 on the implementation of SORNA, the Department issued that document to only one of the five components involved in SORNA’s implementation. Moreover, because the Department has no current plan or timeline to guide the components’ SORNA implementation process, the components have set their own pace and reallocated existing resources to the effort. Nonetheless, we found the components have made significant progress in implementing SORNA provisions. However, despite the Department’s assistance to state, territorial, and tribal jurisdictions in implementing SORNA, we believe the jurisdictions will not fulfill their SORNA requirements by July 2009. Below is a summary of what each component has done to date and what remains to be done to fully implement SORNA’s requirements:
- OJP has issued software to all jurisdictions to connect public sex offender registries to the NSOPR portal as required by SORNA, although not all jurisdictions have installed the software. The SMART Office, which OJP created in response to SORNA, is assisting jurisdictions in implementing enhancements to their registration systems. Although OJP took 2 years to issue SORNA implementation guidelines to the jurisdictions, on July 1, 2008, the SMART Office issued the guidelines as required by SORNA. It also issued a checklist to provide additional assistance to jurisdictions with SORNA compliance and to assist the SMART Office in determining whether jurisdictions are in compliance with individual provisions of SORNA. The checklist provides guidance on fulfilling SORNA requirements, such as the collection of additional registration information of all SORNA-qualifying convicted sex offenders and ensuring non-compliant and fugitive sex offender information is entered into the FBI’s NSOR.
- The United States Attorneys’ Offices and the Criminal Division are required under SORNA to assign at least eight Assistant United States Attorneys to support the Project Safe Childhood initiative. They have exceeded the requirement. The Department has assigned additional resources to this effort, including 43 new Assistant United States Attorneys, to prosecute federal fugitive sex offenders, child pornography, and child exploitation crimes. From the enactment of SORNA through FY 2007, federal attorneys prosecuted 162 fugitive sex offenders for registration violations.
- The USMS has met its SORNA requirements by significantly increasing the number of investigations it conducted into fugitive sex offenders (discussed below). Although not specifically required under SORNA, the USMS also has established a new investigative branch and re-assigned existing resources to increase federal investigations of fugitive sex offenders. In July 2008, the USMS received funding for a National Sex Offender Targeting Center that it plans to establish to supplement and coordinate state and local efforts to identify and arrest fugitive sex offenders.
- The FBI has met the SORNA requirement that it provide electronic updates to state sex offender registration authorities when records change in the National Sex Offender Registry it maintains as part of NCIC. The FBI has also issued guidance to allow access to national crime information databases for personnel at the National Center for Missing and Exploited Children (NCMEC) and social service agencies, as required by SORNA. While these SORNA requirements have been met, we found Deputy Marshals cannot use NCIC to analyze the information in NSOR or the NCIC Wanted Persons File in its entirety to identify all suspected fugitive sex offenders for investigation. This problem stems from the fact that NCIC is not an analytical database, but rather an investigative tool used to obtain criminal justice records on a case-by-case basis. To address the problem, FBI officials told us that they would provide the USMS with a complete download of data in NSOR and the NCIC Wanted Persons File for use in fugitive sex offender investigations if the USMS requested it.
Accuracy, Completeness, and Reliability of the National Sex Offender Registries
We found that the registries that make up the national sex offender registration system – the FBI’s National Sex Offender Registry (NSOR) and the state public sex offender registries accessed through OJP’s National Sex Offender Public Registry Website (NSOPR) – are inaccurate and incomplete. As a result, neither law enforcement officials nor the public can rely on the registries for identifying registered sex offenders, particularly those who are fugitives.
Specifically, we determined that the FBI’s NSOR is missing records on roughly one of every five registered sex offenders and does not identify sex offenders who have failed to maintain a current registration. We also found that states do not consistently enter information into NSOR such as social security numbers, driver’s license numbers, and vehicle identification numbers.
We found several causes for the missing and incomplete records. Prior to the Adam Walsh Act, states were not required to enter information on their registered sex offenders into NSOR. Further, some records that states attempted to enter were rejected because they lacked information required by NCIC. Also, some state registries are not fully compatible with NCIC, causing records to be lost when those states attempt to update NSOR records.
FBI audits of state registries found weaknesses similar to those we found in our analysis, and the NCIC Advisory Policy Board (which must authorize changes to NCIC) has approved changes to correct the weaknesses. The FBI has yet to implement the changes. However, the FBI has discontinued its audits of state registries pending state implementation of SORNA requirements and the Department’s issuance of its SORNA guidelines.
Similarly, we found that the state sex offender records accessed through OJP’s NSOPR portal are inconsistent and incomplete, and they do not provide reliable information to identify non-compliant sex offenders. Because of these weaknesses, federal, state, and local law enforcement officers who use the NSOPR portal to query the public state registries during investigations may not obtain accurate information on a suspect’s registration or fugitive status. In addition, the public cannot use the state information available through the NSOPR portal as a reliable tool to identify all registered and non-compliant sex offenders in their communities.
When implemented, SORNA guidelines that OJP issued to the jurisdictions in July 2008 should improve the quality of data in the sex offender public registries, but the guidelines will not correct all of the problems we noted. As a result, members of the public will not have the information they need to assess the threat posed by sex offenders in their communities.
Trends in the Department’s Investigation, Arrest, and Prosecution of Fugitive Sex Offenders
We found that over the last 4 fiscal years, the Department has increased the number of federal investigations, arrests, and prosecutions of sex offenders for failure to register or update a registration, which under SORNA is a federal felony. The Department also increased its assistance to states for their fugitive sex offender investigations.
Overall, between FY 2004 and FY 2007, the USMS conducted 5,910 fugitive sex offender investigations, with an increasing number of investigations conducted each fiscal year, from 390 in FY 2004 to 2,962 in FY 2007 (Table 1). During this period, the USMS’s investigations based on federal warrants increased from 9 to 341, while its investigations based on state warrants increased from 381 to 2,621. Further, between FY 2004 and FY 2007, the USMS arrested 4,503 fugitive sex offenders, with an increasing number of arrests made each fiscal year, from 149 to 2,779. In those years, the USMS’s arrests based on federal warrants increased from 0 to 200, while its arrests based on state warrants increased from 149 to 2,579. Finally, since the enactment of SORNA in mid-2006 through March 2008, U.S. Attorneys’ Offices accepted 162 cases for prosecution under SORNA and declined 53 cases. Of the 53 declined cases, at least 15 were prosecuted at the state or local level.2
Table 1: Summary of Sex Offender Investigation and Arrest Data,
FY 2004 through FY 2007
|FY 2004||FY 2005||FY 2006||FY 2007||Total|
CONCLUSIONS AND RECOMMENDATIONS
In the 2 years since SORNA was enacted, the Department has made progress in implementing the law’s requirements, but has not completed implementation of all of the Act’s requirements. Although the Department prepared a memorandum in 2006 regarding implementation of SORNA requirements, we determined the memorandum reached only one of several relevant components, and some of the steps to implement SORNA have not been completed by Department components. Moreover, we found that the Department has no current plan to guide the components’ efforts to implement SORNA requirements.
At the component level, OJP has issued software to all jurisdictions to connect public sex offender registries to the NSOPR portal as required by SORNA, and OJP’s SMART Office has continued to help jurisdictions enhance their registry systems. However, the SMART Office took 2 years to issue implementation guidelines to the jurisdictions. The jurisdictions have until July 27, 2009, to implement SORNA. In our review, we found that information in the public registries accessed through the NSOPR portal is currently inconsistent and inaccurate. As of November 2008, all states had connected their public registries to the NSOPR portal, but three territories and all federally recognized Indian tribes had not made such connections.
We also found that other Department components have taken various steps to implement SORNA. The United States Attorneys’ Offices and Criminal Division have assigned new and existing resources to prosecute federal fugitive sex offenders who fail to register or update a registration. The USMS has established a new investigative branch and re-assigned existing resources to increase federal investigations. And the FBI has met SORNA requirements that it provide both electronic notification updates to the NSOR database used by law enforcement and wider access to national crime information databases.
However, we found that neither the FBI’s NSOR nor OJP’s NSOPR portal contain complete and accurate listings of all of the sex offenders in the United States who are required to register. We believe that the Department and its components should provide additional assistance to jurisdictions to ensure that information on registered, non-compliant, and fugitive sex offenders is included in the national registries. Specifically, we make the following recommendations to the Department’s components:
- The FBI should ensure NSOR has more complete and accurate information by designing and implementing a new audit of jurisdiction registries’ compliance with FBI NSOR procedures and with the SORNA guidelines.
- The FBI should implement the Advisory Policy Board-approved changes to NSOR that specifically provide information regarding fugitive status.
- The USMS should obtain NSOR and the NCIC Wanted Persons File data downloads from the FBI and use that information to manage and conduct fugitive sex offender investigations.
- The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), Pub. L. No. 109-248, 120 Stat. 587 (codified primarily in sections of 42 U.S.C. as well as 10 and 18 U.S.C.), was signed on July 27, 2006. SORNA is codified at 42 U.S.C. § 16901.
- Data on the ultimate disposition of the remaining 38 declined cases was not available.