Introduction

This report examines the Department of Justice’s (Department) implementation of particular provisions in the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act).³ Specifically, we reviewed the Department’s enforcement of requirements that sex offenders establish and maintain registrations. Title I of the Adam Walsh Act, the Sex Offender Registration and Notification Act (SORNA), sets forth specific roles in implementing the Act for the Department and its components – the Office of Justice Programs (OJP), the United States Marshals Service (USMS), the Federal Bureau of Investigation (FBI), the United States Attorneys’ Offices (USAO), and the Criminal Division. These roles include identifying, arresting, and prosecuting sex offenders who have failed to register or update a registration. Sex offenders who fail to register or update a registration are referred to as non-compliant. If a warrant has been issued for their arrest, they are referred to as fugitive sex offenders.

SORNA also places sex offender registration requirements on state, territorial, and tribal jurisdictions – discussed later in this report – that must be implemented within 3 years of SORNA’s enactment (by July 27, 2009). Other than setting two reporting deadlines, SORNA specifies no implementation dates for the requirements it places on the Department and its components. However, SORNA requires the Department to assist the jurisdictions with implementation of their SORNA obligations

The Office of the Inspector General (OIG) conducted this review to determine what efforts the Department has made to implement the SORNA requirements imposed on the Department and whether those efforts have increased the number of fugitive sex offenders investigated, arrested, and prosecuted by the Department. While the jurisdictions’ efforts to implement SORNA were beyond the scope of our review, we examined the efforts of Department components to assist the jurisdictions with meeting their SORNA requirements.

This background section describes the history of federal sex offender legislation, the roles played by various organizations in implementing SORNA, the federal registry system, the registration and notification process, registration requirements, and registration enforcement measures.

Federal Sex Offender Registration Legislation

In 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act) required states to establish registries that included information about offenders convicted of a “criminal offense against a victim who is a minor” or a “sexually violent offense.”⁴ “Sexually violent offenses” include rape, non-consensual sexual assault, aggravated sexual abuse, or similar acts that involve engaging in physical contact with another person with the intent to commit sexual abuse. The Wetterling Act also made it a federal misdemeanor offense for sex offenders to not maintain their registrations when they move from one state to another.

In May 1996, a federal law known as Megan’s Law amended the Wetterling Act to increase the public’s access to information about registered sex offenders.⁵ The law gave states broad discretion in establishing criteria for disclosing information on registered sex offenders. The law also allowed states to determine who should be notified about sex offenders, under what circumstances, and about which offenders. It required states to establish a community notification system to assist law enforcement in investigations and to enable citizens to receive information about registered sex offenders.⁶

In October 1996, the Pam Lychner Sexual Offender Tracking and Identification Act (Lychner Act) required the federal government to establish a national sex offender registry.⁷ In response, the FBI created the National Sex Offender Registry (NSOR) to assist in the state-to-state tracking and management of sex offenders. NSOR, which contains sex offender registration data from each state and territory, is described in more detail later in this section

The Lychner Act further allowed the FBI to conduct sex offender registration and community notifications in states that did not have systems in place for such purposes. The Lychner Act required sex offenders moving to a new state or establishing residence upon being released from a prison or being placed on parole, supervised release, or probation to notify the FBI or state authorities within 10 days of the move

In July 2006, the Adam Walsh Act established minimum standards for sex offender registration and notifications in the United States and its territories. The minimum standards include registry requirements for jurisdictions and sex offenders, information required to be included in the registration, duration of registration requirements, periodic in-person verifications, and the duty to notify sex offenders of registration requirements. The SORNA portion of the Adam Walsh Act also established requirements to ensure that convicted sex offenders are notified of their registration obligations. SORNA also reaffirmed the Lychner Act requirement that the FBI create and maintain NSOR and made violation of sex offender registration requirements a federal felony.⁸

Organizations Involved in Implementing SORNA

Within the Department, five main components – OJP, the USMS, the FBI, the USAOs, and the Criminal Division – have been involved in implementing SORNA. In addition, the National Center for Missing and Exploited Children (NCMEC), a private, non-profit organization that receives most of its funding from federal sources, assists the Department with investigating fugitive sex offenders. The following sections describe the missions of these organizations and their roles in locating, arresting, or prosecuting fugitive sex offenders.

Office of Justice Programs

OJP’s mission is to provide state and local agencies with funds and technical assistance to help develop the nation’s capacity to prevent and control crime, improve the criminal and juvenile justice systems, increase knowledge about crime and related issues, and assist crime victims. Two OJP units are involved in implementing SORNA: the Bureau of Justice Assistance (BJA) and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office).

The BJA’s mission includes providing criminal justice policy, training, and technical assistance and acting as the Department’s liaison to national organizations on these issues. The BJA also coordinates and administers all state and local grant programs, including those related to sex offender programs. In 2005, before SORNA was passed, the BJA created the National Sex Offender Public Registry (NSOPR). The NSOPR is not a database, but rather a “portal” website through which the public can access and search individual jurisdictions’ public sex offender registries

In response to Section 145 of SORNA, the Department also designated BJA to coordinate the design and implementation of two new information-sharing systems: the Internet Crimes Against Children Virtual Headquarters and the Cyber Safe Deconfliction systems. According to a memorandum issued by the Department’s Associate Attorney General, the Crimes Against Children Virtual Headquarters system will give federal, state, and local law enforcement a secure online environment in which to collaborate on investigations, including communication tools and online training resources. The memorandum states that the Cyber Safe Deconfliction system is designed to provide more effective coordination for overlapping investigations, enhance sharing of tactical and strategic intelligence, and provide an opportunity for enhanced collaboration between Internet Crimes Against Children task forces and other computer crime investigators.

The SMART Office – established under Section 146 of SORNA –provides guidance and technical assistance to states, territories, Indian tribes, local governments, and public and private organizations. Since mid-2008, the SMART Office has maintained the NSOPR portal (which the BJA originally created). The SMART Office also tracks important legislative and legal developments related to sex offenders and administers grant programs related to the registration, notification, tracking, and monitoring of sex offenders. The Director of the SMART Office was appointed in December 2006 and, since January 2008, supervises a six-member staff. In response to SORNA, on July 1, 2008, the SMART Office issued national guidelines to assist the state, territorial, and tribal jurisdictions in becoming compliant with SORNA provisions by July 27, 2009.⁹

United States Marshals Service

The USMS’s mission includes arresting violent fugitives; providing federal courthouse security; protecting judges, witnesses, jurors, and members of the public; and transporting and detaining federal prisoners. The Department has designated the USMS as the lead federal agency in investigating federal registration violations by sex offenders and in assisting states in enforcing their registration requirements. Pursuant to SORNA, the USMS: (1) assists state, local, tribal, and territorial authorities in locating and arresting fugitive sex offenders; (2) investigates violations of 18 U.S.C. § 2250 (federal registration violations) and related offenses; and (3) assists in identifying and locating sex offenders who have relocated as the result of a major disaster.

To manage investigations conducted by its district offices and task forces, in 2006 the USMS established at its headquarters a Sex Offender Investigations Branch. The USMS also arrests fugitive sex offenders through its Operation FALCON (Federal and Local Cops Organized Nationally). FALCON, created in 2005, is a week-long operation typically conducted once a year that combines the resources of federal, state, county, and city law enforcement agencies to locate and arrest fugitives wanted for all types of violent crimes. The USMS emphasized arresting sex offenders that had outstanding warrants as well as other violent fugitives. FALCON 2006 was the first FALCON operation to enforce failure to register or update a registration as a federal felony under 18 U.S.C. § 2250. From 2006 through 2008, FALCON has resulted in 1,654 arrests for federal, state, and local sex offender registration violations. The USMS has also conducted several operations at the district level specifically designed to apprehend fugitive sex offenders and has encouraged its districts to coordinate these operations with local law enforcement agencies.

Federal Bureau of Investigation

Under SORNA, the FBI is responsible for maintaining the National Sex Offender Registry Unlike OJP’s NSOPR portal, the FBI’s NSOR is a database that contains information on sex offenders from federal investigations as well as information that is submitted by the states. NSOR is a part of the FBI’s National Crime Information Center (NCIC) and is accessible only to authorized users (mostly law enforcement agencies). In maintaining NSOR, the FBI’s Criminal Justice Information Services Division provides support to the states to address weaknesses in their transfer of information to NSOR. We discuss NSOR later in this section.

In addition, the FBI’s Crimes Against Children unit investigates and arrests fugitive sex offenders as part of its mission to decrease the vulnerability of children to sexual exploitation; develop a nationwide capacity to provide a rapid, effective, and measured investigative response to crimes against children; and enhance the capabilities of state and local law enforcement investigators through programs, investigative assistance, and task force operations. Because the Department designated the USMS as the lead agency for investigating fugitive sex offenders, on November 17, 2006, the FBI issued guidance that instructed its Special Agents to initiate fugitive sex offender investigations only when doing so would support an investigation of another crime.

United States Attorneys’ Offices

U.S. Attorneys are the chief federal law enforcement officers within the 94 districts they serve. The federal prosecutors they direct can pursue charges under 18 U.S.C. § 2250 against sex offenders who fail to register. They can also prosecute sex offenders for other crimes, such as child pornography or child exploitation, as part of the Department’s Project Safe Childhood initiative. The Department created Project Safe Childhood in February 2006 as a nationwide initiative to protect children from online sexual exploitation and abuse. Project Safe Childhood attorneys coordinate with federal, state, and local law enforcement to locate, arrest, and prosecute individuals who exploit children through the Internet. The fiscal year (FY) 2008 Department budget request included $9.5 million and 93 positions (73 attorneys) to support Project Safe Childhood. On May 7, 2008, the Department announced it had received $5 million in new funds, which it would use to create 43 Assistant U.S. Attorney positions to support Project Safe Childhood, which prosecutes federal fugitive sex offenders.

Criminal Division

The Child Exploitation and Obscenity Section of the Department’s Criminal Division is responsible for enforcing federal criminal statutes relating to the exploitation of children and obscenity. The section, which helped draft the SORNA legislation, assists federal attorneys with prosecutions of fugitive sex offenders for 18 U.S.C. § 2250 violations. The FY 2008 budget requested $685,000 for the Criminal Division to prosecute sex offenders.

National Center for Missing and Exploited Children

The National Center for Missing and Exploited Children’s (NCMEC) mission is to work with federal, state, and local law enforcement agencies to help prevent child abduction and sexual exploitation; find missing children; and assist victims, their families, and social service agencies. Pursuant to 42 U.S.C. § 5771 et seq.; 42 U.S.C. § 11606; and 22 C.F.R. § 94.6, OJP established NCMEC in 1984 as a private, nonprofit 501(c)(3) organization with a mandate to perform certain functions to assist law enforcement, such as serving as a clearinghouse for information on missing or exploited children. While NCMEC is a private organization, it receives 71 percent (about $40 million) of its funding from the federal government.¹⁰

Although not required as a part of SORNA, NCMEC has established a Sex Offender Tracking Team. The Sex Offender Tracking Team’s main objective is to respond to law enforcement requests for assistance in locating fugitive sex offenders and to conduct searches for possible connections between fugitive sex offenders and NCMEC cases on child abduction, attempted abduction, and online exploitation. The Sex Offender Tracking Team provides law enforcement agencies with publicly available information and analysis about the possible whereabouts of fugitive sex offenders. The team also acts as a liaison between the USMS and state and local agencies regarding the arrest of fugitive sex offenders. NCMEC has not received any federal funding specifically for the Sex Offender Tracking Team or for its assistance to local, state, and federal law enforcement in identifying and locating fugitive sex offenders.

NCMEC shares the information it generates on the identification and location of fugitive sex offenders with state and local law enforcement, as well as with the USMS. In addition, NCMEC provides training to federal, state, and local law enforcement officers on investigative techniques for locating fugitive sex offenders, sex offender classification and behavior characteristics, the legal process, and the Adam Walsh Act

NCMEC analysts survey 56 state and territory sex offender registry authorities 4 times a year to estimate the total number of registered sex offenders in the country. Using its survey results, NCMEC produces a map of the United States showing the estimated number of registered sex offenders in each jurisdiction. (See Appendix III.) In July 2008, NCMEC analysts estimated that there are approximately 644,865 sex offenders in the United States. Of these, NCMEC estimated that there are about 100,000 fugitive sex offenders who have not registered or updated their registrations.

Federal Sex Offender Registry System

The national sex offender registration system is composed of two registries: the FBI’s National Sex Offender Registry and the OJP SMART Office’s Dru Sjodin National Sex Offender Public Registry Website. Each is described below.

The National Sex Offender Registry

The FBI established NSOR as a file within its National Crime Information Center (NCIC). NCIC is a database of 18 files of criminal justice information entered by federal, state, and local law enforcement agencies that includes criminal record history information, records on wanted and missing persons, and information on identifiable stolen property such as automobiles and firearms. NCIC is available to federal, state, and local law enforcement and other criminal justice agencies 24 hours a day, 365 days a year.

States can upload information on sex offenders convicted in state and federal courts to NCIC and transfer information on sex offenders required to register by state law to NCIC’s NSOR file. The NSOR records of convicted sex offenders or violent sexual predators include the offenders’ current registered addresses and their dates of conviction and registration. The NCIC 2000 Operating Manual for the Convicted Sexual Offender Registry File (NSOR operating manual) states that information indicating that offenders have failed to register or are non-compliant with registration requirements should be listed in the NSOR miscellaneous field. Those offenders who have had active warrants issued for registration violations are listed in the NCIC Wanted Persons File, which is a separate file within NCIC that contains active warrants for all types of offenses

Under the Wetterling Act, NSOR must include records on three categories of sex offenders:

• Individuals convicted of a criminal offense against a minor – “Criminal offenses against a minor” are specified by state law and vary from state to state. To be included in NSOR, according to the NSOR operating manual, the offense must be as serious or more serious than any of the following eight offenses: (1) kidnapping of a minor (except by a parent), (2) false imprisonment of a minor (except by a parent), (3) criminal sexual conduct toward a minor, (4) solicitation of a minor to engage in sexual conduct, (5) use of a minor in a sexual performance, (6) solicitation of a minor to practice prostitution, (7) any conduct that by its nature is a sexual offense against a minor, or (8) any attempt to commit one of the offenses listed above if the state makes such an attempt a criminal offense.
  
  
• Individuals convicted of a sexually violent offense – A “sexually violent offense” is defined as any offense specified by state law that meets the elements of aggravated sexual abuse or sexual abuse, or an offense that has as part of its elements engaging in physical contact with another person with intent to commit aggravated sexual abuse or sexual abuse.
  
  
• Individuals who are sexually violent predators – A “sexually violent predator” is defined as a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. Under Megan’s Law, to designate a person as a sexually violent predator a board composed of experts in the behavior and treatment of sex offenders, victims’ rights advocates, and representatives of law enforcement agencies presents its recommendation to a court, which makes the final determination.¹¹

The Dru Sjodin National Sex Offender Public Registry Website

SORNA requires the Department to maintain a national public registry website that the public can use to access information on registered sex offenders from all of the sex offender public registries. NSOPR, which is an online portal to public sex offender registries, was created by OJP’s Bureau of Justice Assistance on July 20, 2005, prior to the enactment of SORNA, and was called the National Sex Offender Public Registry. SORNA changed the portal’s name to the “Dru Sjodin National Sex Offender Public Registry,” and the portal is now maintained by the SMART Office.¹² To expand access to public registries through the NSOPR portal, SORNA made the Department responsible for developing and supporting software to enable jurisdictions to establish and operate sex offender public registry websites, provide immediate information sharing among jurisdictions, and provide the public with Internet access to all jurisdiction registries. In response, the BJA worked with OJP’s SMART Office to establish access to the public registries of all 50 states, as well as Guam, Puerto Rico, and the District of Columbia, through the NSOPR portal. On July 1, 2006, the Attorney General announced that all 50 states were participating in the NSOPR portal

Using the NSOPR portal, members of the public can access and search public registries to identify the location in their communities of offenders who, in most cases, have been convicted of sexually violent offenses against adults and children, certain types of sexual contact, and other crimes against victims who are minors.¹³

Sex Offender Registration and Notification Process, Requirements, and Enforcement Measures

SORNA requires convicted sex offenders to register in the jurisdictions in which they will live, work, and attend school, and to periodically verify their information with jurisdiction registration authorities. Jurisdiction registration authorities are required to alert the FBI when they receive new or updated registration information. Sex offender registration requirements vary by jurisdiction, and the duration for maintaining the registration is based on the nature of the offender’s crime and on jurisdiction law. Both federal and state law enforcement agencies have jurisdiction in enforcing sex offender requirements.

Registration and Notification Process

Under SORNA, all sex offenders convicted of crimes that require registration must register with the jurisdictions in which they live, work, and attend school within 3 business days after being released from incarceration or within 3 business days of being sentenced in cases in which there is no term of incarceration. Offenders convicted of an offense that requires registration are notified by court officials of their registration obligations. There is no separate federal registry for sex offenders released from federal or military custody. Rather, such offenders are required to register in the appropriate state, territorial, or tribal registries

Once sex offenders are entered in a jurisdiction registry, SORNA requires them to report changes in address and to report periodically in person to jurisdiction registration authorities to verify their information. The interval between in-person appearances depends on the severity of the offenses for which they were convicted. Most jurisdictions also require that law enforcement agencies periodically verify registrants’ information

When a sex offender registers or updates a registration in a jurisdiction registry, SORNA requires the jurisdiction to provide the new information to the FBI’s NSOR

Registration Requirements

Sex offender registration requirements vary by jurisdiction. However, SORNA requires all jurisdictions to adopt registration requirements that are at least as strict as those established by SORNA

Section 115 of SORNA defines three tiers of sex offenders based on the seriousness of the crimes for which they were convicted. The tiers determine how long an offender must maintain registration after release or after conviction if no prison sentence was imposed. The three tiers, in order of most serious to least serious, are as follows:¹⁴

• Tier III – Sex offenders whose offenses are punishable by imprisonment for more than 1 year and are comparable to or more severe than aggravated sexual abuse, sexual abuse, abusive sexual contact against a minor who has not attained the age of 13 years, or kidnapping a minor (unless committed by a parent or guardian). Tier III sex offenders must maintain their registrations for their lifetime.
  
  
• Tier II – Sex offenders other than Tier III sex offenders whose offenses are punishable by imprisonment for more than 1 year and are comparable to or more severe than the following offenses when committed against a minor: sex trafficking, coercion and enticement, transportation with intent to engage in criminal sexual activity, abusive sexual contact, use of a minor in a sexual performance, solicitation of a minor to practice prostitution, or production or distribution of child pornography. Tier II sex offenders must maintain their registrations for 25 years.
  
  
• Tier I – Sex offenders other than Tier II or Tier III sex offenders. Tier I sex offenders must maintain their registrations for 15 years.

SORNA provides specific sanctions for sex offenders who knowingly fail to register or update a registration. Failure to register or update a registration by itself is a federal felony punishable by up to 10 years in prison. Sex offenders who commit federal crimes of violence while non-compliant with registration requirements are subject to a mandatory 5-year enhancement to any prison sentence imposed for the violent crime.¹⁵

Enforcement Measures

The enforcement of SORNA’s sex offender registration requirements involves both federal and state law enforcement agencies. The primary responsibility for identifying and arresting fugitive sex offenders rests with state and local law enforcement. However, Section 142 of SORNA authorized the Attorney General to use federal law enforcement resources, specifically the USMS, to assist state and local law enforcement in locating and arresting sex offenders who fail to maintain their registrations.¹⁶

Federal involvement in fugitive sex offender investigations can begin when a federal law enforcement agency identifies a sex offender who is not in compliance with SORNA requirements or when a state law enforcement agency requests federal assistance from the USMS. If the USMS accepts the request, it investigates based on the information the requesting state agency provides and may assist in the arrest of the fugitive sex offender based on the state charges. The USMS can also “adopt” the case and seek a federal warrant based on the federal SORNA violation. In determining whether to adopt a case, the USMS coordinates with Assistant U.S. Attorneys and state prosecutors to determine whether state or federal charges are appropriate based on such considerations as other charges that may be pending against the fugitive sex offender and whether the evidence collected in the course of the investigation supports a federal charge. If the USMS does not adopt the case, it can continue to assist with the investigation and arrest of the fugitive sex offender but the state will carry out the prosecution. If the USAO seeks a federal warrant, the USMS adopts the state investigation as a federal case and the offender is then a federal fugitive who can be prosecuted in federal court if arrested

Organization of the Report

The remainder of this report presents the findings of our review in three sections. The first section details our findings regarding the status of actions taken by the Department and its components to comply with and implement SORNA requirements and to improve the registry systems for providing law enforcement and the public with access to information on registered sex offenders. The second section describes our analysis of the accuracy and completeness of data that is being provided to law enforcement and the public through the FBI’s NSOR and OJP’s NSOPR portal. The third section presents the data we collected on the progress of the Department in arresting and prosecuting sex offenders who are not compliant with SORNA registration requirements.