State Registry Rules Aren’t Federal SORNA Rules
A recent decision from the U.S. Court of Appeals for the Third Circuit is a good reminder that there are actually two different registration systems that people need to understand: state requirements and federal SORNA requirements. A state has it’s own set of laws (including duration and how often you have to report) and the feds have different rules.
Now before you ask how this matters in Florida, well, it really doesn’t. Florida is one of the few states that are “SORNA compliant” and, in fact, the requirements in Florida far exceed the requirements under SORNA in most respects. Duration of registration is perhaps the most relevant. Under SORNA, only “Tier III” offenders register for life. In Florida everyone on the registry has a lifetime requirement. But for people in other states or for people who travel often, which federal tier you fall under becomes much more relevant. For example, if you live in a State that has a 10 year registration duration and you think you are done after 10 years, then travel from one state to another without registering, you may still get prosecuted federally.
In Summers, the defendant committed an offense in New York and then moved to New Jersey and failed to register. He was prosecuted federally. As part of his prosecution, he challenged the District Court’s determination regarding his placement in SORNA Tier III. The government tried to argue that his challenge was moot because his prosecution was over and he was out of jail. The District Court disagreed in one respect, and the 3rd Circuit agreed with the District Court, “The District Court’s determination regarding SORNA Tier III has ongoing consequences despite the fact that Defendant is out of jail. Based on the District Court’s determination, SORNA requires him to register as a sex offender for the rest of his life and to appear in person to verify his registration every three months. See 34 U.S.C. §§ 20915(a)(3), 20918(3). A decision in Defendant’s favor could result in direct relief from some or all of those consequences.”
The 3rd Circuit, nevertheless, found that he was a Tier III, but the important takeaways are (1) court’s decision about his federal Tier III classification – finding that this determination is not moot once the prosecution ends, and (2) for registrants, it’s important to understand the distinction between state law and federal law. It is also important to become very familiar with the obligations under both (even if your underlying offense was not a federal offense) and become very familiar with the requirements of each state you travel to (for example, many of our members were removed from their state of conviction, then moved to Florida and found they had to register again).
SORNA establishes federal registration requirements and its own classification system. The federal tiers can determine how long registration lasts and how frequently a person must report in person. But states don’t all implement registration requirements in exactly the same way. A person may be subject to one set of requirements under the law of the state where they live and a different set of requirements under federal SORNA. A state’s determination that someone is not required to register under that state’s law does not necessarily mean the person is outside the reach of federal SORNA. And the reverse is important too: complying with a state’s registration requirements doesn’t necessarily mean every federal SORNA obligation has been satisfied. Since SORNA contains a federal criminal enforcement mechanism and a person who is required to register under SORNA and knowingly fails to register or update a registration as required can potentially face federal prosecution — even when the underlying registration requirements and procedures vary from state to state.
The Summers case is a good example of how complicated this can become and a reminder for anyone who was thinking of leaving Florida to move to Michigan (after their recent victory).
United States v. Summers – 3rd Cir
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I think there was a group in California that took this matter to federal court with a pretty similar issue. There, the issue was how to meet federal SORNA requirements when one is no longer required to register in the state. I might be wrong, but I think the 10th Circuit ruled that because the federal registry relies on the states for registration and cannot obligate the state to do so, one cannot be prosecuted for federal FTR if the no longer required to register in the state. I’m sure the details could still be found at ACSOL.
I haven’t read the 3rd Circuit opinion linked here – the summary gave me enough headache. But if it says only half of what I suspect, it would appear to be in conflict with what I recall from the 10th above. That would be a good circuit split to highlight in the certiorari application to the US Supreme Court, should FAC v. Glass make it that far. I really hope it does.
You may be thinking of the following (different issue and facts from the 3rd Circuit opinion, though):
https://floridaactioncommittee.org/win-in-ca-judges-ruling-protects-due-process-rights-of-californians-caught-in-federal-registration-trap/
For those interested, we recommend reading both opinions.
So confused… How do we know what Tier we are federally and what Tier we ‘would be’ if Florida used them? All I know is Florida calls me an ‘Offender’ and I have to re-register twice a year.
I was never released from custody or on probation so no one ever explained anything other than when to report and the confusing rules on the paper we have to sign every visit to the jail (that’s where our registration office is). My lawyer was a military officer and knew nothing about registration. They basically wash their hands of you once the trial is over.