suggestions for comments on the SORNA rule changes

Go here to comment on the changes to the SORNA rules proposed by Attorney General Barr. Comments can be submitted until midnight ET, October 13, 2020. See my earlier analysis of the changes here.

When composing your comments, address the proposed changes specifically. Consider the suggestions below.

1. States vs. Federal Government
The changes will be used to push states into full compliance with SORNA. In our comments, we can respond to the suggestion to bypass state legislatures in the push to increase federal involvement in registry violations. Federal bureaucrats, accountable to no one, should not be able to foist changes on state laws, especially when the new regulations create new ways to deprive people of their liberty.

2. Public Safety
Because the proposal pretends to be concerned about public safety, respond to that. What do these changes have to do with public safety? If the Attorney General used evidence-based studies about the behavior of registrants when writing the new rules, the studies are not mentioned in 93-page document. 

3. Additional Reporting Requirements
The changes would add to the list of items SORNA requires to be reported within three days (remote communication identifiers, temporary lodging--being away from your registered home address for more than seven days, vehicle sale/purchase), so we can respond to that. Remember that for many, if not most, registrants, traveling to the registry office requires taking time off work. If current reporting requirements cause problems for registrants, additional requirements will not help. If current reporting requirements have no effect on public safety and no effect on the incidence of sex crimes, additional requirements will not help.

72.7(e) Reporting of changes in information relating to remote communication identifiers, temporary lodging, and vehicles. A sex offender must report within three business days to his residence jurisdiction (by whatever means the jurisdiction allows) any change in remote communication identifier information, as described in § 72.6(b), temporary lodging information, as described in § 72.6(c)(2), and any change in vehicle information, as described in § 72.6(f).

Reporting those additional items--in any time frame--have nothing to do with public safety and everything to do with controlling a group of people who lead law-abiding lives. 

4. Reasons behind Changing the Rules
Target the reasons for the changes. The reasons come down to because sex offenders might do something (use telephones to lure victims, for example), not because they have evidence that this is something that happens with any frequency. 

The rule governing International Megan's Law uses despicable reasoning like this to justify the DOJ reporting a person's international travel plans to INTERPOL and to other foreign law enforcement agencies: 

... for a sex offender disposed to reoffend, it may be attractive to travel to foreign countries where law enforcement is weaker (or perceived to be weaker), where sexually trafficked children or other vulnerable victims may be more readily available

It is unacceptable for the US government to put US citizens in danger by identifying them as suspect individuals to foreign governments when wild imagination is the only reason to suspect an intended crime. Comment on the awfulness of IML if you'd like but a more effective comment will focus on the specious reasoning throughout the proposed rules change document.

Imagining that people on the registry are plotting to commit more sex crimes does not make it true.

The document is weighted down with paragraph after paragraph explaining why the AG has the authority to impose these rules. Those explanations can be summed up as "we are doing this because we can." Because this court decision said it isn't punishment, the government can do what it wants. Because another court decision said it isn't bad to require email addresses, the government can do what it wants. There is nothing in the proposed rule document that refers to research on the effectiveness of registration. No research was used in building that document other than finding court cases that say the government can do this. 

Watching this process underlines how easily the government can devise new ways to put our liberty at risk. Remember that the next time you think we should put the government in charge of something.

More analysis of the proposed changes:

• Alliance for Constitutional Sex Offense Laws
• Florida Action Committee
• Pennsylvania Association for Rational Sexual Offense Laws

changes proposed for SORNA rules

On Twitter, @CrimeADay estimates that it will take hundreds of years to tweet one federal crime each day. That estimate does not include any additional crimes that are being added and will continue to be added to the federal code.

Today, @CrimeADay has tweeted one federal crime every day for five years. In 1790, it would have taken under a month to count them all at that rate. It's going to take just a little bit longer today, but I'm getting there: pic.twitter.com/rc9i4hxxYH

— A Crime a Day (@CrimeADay) July 18, 2019

Federal government bureaucracies are the powerful but quiet engine behind federal laws. Those bureaucracies can--and do--create laws without going through the arduous legislative process in which our elected Senators and Congressmen serve as our voice. We have no voice in the bureaucratic process except for an opportunity to comment on proposed changes.

You can comment on the proposed SORNA rules changes until midnight ET October 13, 2020. Instructions on that webpage (starting here) provide information about the comment process. It is important to read those instructions before leaving a comment. 

At the time this blogpost was written, only 370 comments had been submitted. Given the nearly million people on sex offense registries across the country and the serious effect these federal rules may have on their states, more comments are necessary. To see the proposed rules as well as current laws, rules and guidelines, the links to resources at the bottom of this post may be helpful.

Registry laws vary from state to state and none of the state laws match SORNA exactly. Some of the registry laws in your state may be better or worse than what SORNA laid out for us but your state laws are still the laws that you need to follow. 

The proposed changes raise questions about why the Attorney General thought it necessary to expand federal rules expressed in 400 words to a much more detailed 3000 words, especially since those federal rules don't apply in the states. 

What problem is the AG trying to solve? Have registrants across the country been committing the lion's share of sex offenses? No. The vast majority of sex offenses are still, as always, committed by people not on the registry. The Attorney General and the Department of Justice know this fact as well as we do, even if they prefer to ignore it and drum up fear of registrants.

To drum up unreasoning fear, proposed changes include crazy talk based on the idea that registrants are some kind of otherworldly monsters:

...because sex offenders may, for example, provide false date of birth information in seeking employment that would provide access to children or other potential victims. (link)

...because sex offenders may, for example, attempt to use false Social Security numbers in seeking employment that would provide access to children or other potential victims. (link)

...addressing the potential use of telephonic communication by sex offenders in efforts to contact or lure potential victims (link)

...because sex offenders may reoffend at locations away from the places in which they have a permanent or long-term presence... (link)

The phrase "public safety" appears 13 times in the 93-page proposal document. If that sounds like the AG is focusing on public safety, consider that the word "authority" appears 77 times.

The phrase "Attorney General" appears 134 times. 

This makes it clear that public safety is but an afterthought. That has always been the case with registry laws. The data show that registration has no effect on public safety, no effect on reducing the incidence of sex crimes, and yet here we are with an AG trying to make registration requirements even more onerous for people who are unlikely to commit another sex offense.

Is the AG trying to encourage states to come into full compliance with SORNA? From the proposed rule changes:

For example, SORNA requires registration based on conviction for child pornography possession offenses, see 34 U.S.C. 20911(7)(G), but some states that have not fully implemented SORNA's requirements in their registration programs may be unwilling to register a sex offender on the basis of such an offense. Section 2250(c)'s excuse of the failure to register terminates if the state subsequently becomes willing to register the sex offender, because the circumstance preventing compliance with SORNA no longer exists. 

In this passage, notice the sly suggestion that a state can become willing to register someone for a SORNA requirement even if the state doesn't have the same requirement. If that sounds underhanded to you, that's because it is. Providing a 'roundabout way to lay failure-to-register traps for registrants who are unaware of federal requirements is not a plan that comes from concern for public safety. Failure to register laws have nothing to do with public safety.

Is the AG trying to lay out a plan for larger federal involvement in failure-to-register cases? From the proposed rule changes:

The rule will facilitate enforcement of SORNA's registration requirements through prosecution of non-compliant sex offenders under 18 U.S.C. 2250.

See the list of qualifying convictions according to the 2017 Legal Analysis of 18 U.S.C. §2250 (Failure to Register as a Sex Offender) provided by the Congressional Research Service.

Is the AG outlining a defense against future legal challenges to registry law? The proposed rules are veritably stuffed with explanations about how the AG has the authority to make and change the rules.

What kind of comment will be useful? Comments that demand the registry be shut down (a sensible demand for another day) will be ignored because the proposed rule changes do not control the existence of the registry. Comments that include specifics about a person's case and complaints of unfairness will be ignored because they are not requesting information about case details.

Starting on page 62 of the current SORNA Guidelines, you can read a summary of comments that were submitted in 2008 before those Guidelines were published. As you read that summary, you will start to see how comments are understood and why some are ignored and some result in change. To give you an idea of what will be needed for them to understand reasonable objections to the proposed changes, read the beginning of the summary:

Approximately 275 comments were received on the proposed guidelines. The Department of Justice appreciates the interest and insight reflected in the many submissions and communications, and has considered them carefully. In general, the comments did not show a need to change the overall character of the guidelines, but in some areas the commenters provided persuasive reasons to change the proposed guidelines’ treatment of significant issues, or pointed to a need to provide further clarification about them. 

The initial portion of this summary reviews the most significant and most common issues raised in the comments, and identifies changes made in the final guidelines relating to these issues. The remainder of the summary thereafter runs through the provisions of the guidelines in the order in which they appear, and discusses in greater detail the comments on each topical area in the guidelines and changes made (or not made) on the basis of public comments

They will pay attention to persuasive reasons related to the changes the Attorney General wants to make. We need to show a need. 

The rules open the door to new reporting requirements for people who consistently demonstrate they are unlikely to commit a new sex offense. Why the Attorney General wants to flex his muscles to make life more difficult for law-abiding people is a mystery.

Eternal vigilance is the price of liberty is a quote often (wrongly?) attributed to Thomas Jefferson.

When it comes to life on the registry, eternal vigilance is exactly what is necessary, especially when Congress routinely turns regulatory authority over to bureaucrats who answer to no one. Bureaucrats thrive on power.

Your comment on the proposed rule changes is vital. 

Resources to help you sort out what the changes will do:

• Proposed changes to the rules  
• The federal Sex Offender Registration and Notification Act (SORNA) 
• The current SORNA rules, published by the DOJ. 
• SORNA Guidelines from the SMART office
• This document shows how the proposed rules will change existing rules.  

Also see my additional suggestions for comments for the SORNA rule changes.