Under G.S. 14-208.12A, registered sex offenders who are not required to register for life can petition the superior court to terminate the registration requirement after 10 years. (The requirement to petition for deregistration came into being in 2006; before then, 10-year registrations terminated automatically after the requisite time had passed.) North Carolina’s sex offender registry has been around since 1996, so it’s not surprising-a little over a decade later-that these petitions are starting to come before the court more frequently. Unfortunately, the statute setting out the conditions under which the court may grant relief raises a number of difficult questions. One of the most difficult questions involves G.S. 14-208.12A(a1)(2), which prohibits a court from removing someone from the registry unless “[t]he requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State . . . .”
What does that mean?
For over a decade, our state law on sex offender registration has flowed from federal mandates-states must enact laws that meet federal standards or lose certain grant funds. The Jacob Wetterling Act (1994) was the initial federal legislation that established minimum standards for states to register sex offenders. It has since been amended by Megan’s Law (1996), the Pam Lychner Act (1996), the Jacob Wetterling Improvements Act (1997), and, most recently, by the Adam Walsh Act (2006). Title I of the Adam Walsh Act, called the Sex Offender Registration and Notification Act, or SORNA, enacted a new and more stringent set of standards for sex offender registration. The act requires states to substantially implement these new standards by July 27, 2009, with up to two one-year extensions, or lose 10% of Byrne Justice Assistance Grant funds.
So what is G.S. 14-208.12A(a1)(2) really saying? I read it to mean that a court cannot allow someone off the registry if doing so would be contrary to the federal standards set out in SORNA-regardless of whether the General Assembly adopts them or not. There is an argument that this sort of blanket adoption by a state statute of prospective federal legislation, or of federal administrative rules yet to be adopted, is an unconstitutional delegation of state legislative power. See, e.g., Hutchins v. Mayo, 197 So. 495 (Fla. 1940) (holding that a state statute providing that fruit should be graded according to standards “as now fixed by the [USDA], or as standards may hereinafter be modified or changed,” unlawfully delegated state legislative power to a federal agency). But assuming they apply now, how do these federal mandates affect petitions to terminate registration?
Among other requirements, SORNA establishes a three-tier schedule of offense classification, with new minimum registration periods for each tier. For tier 1 offenses, the required registration period is 15 years (reducible to 10 years in some cases, described below); for tier 2 offenses, the period is 25 years; and for tier 3 offenses, the period is life. Because North Carolina will eventually need to adopt these new minimum periods to continue to receive federal funds, a court arguably ought, under G.S. 14-208.12A(a1)(2), to refuse to terminate registration for offenders who have not been registered for the amount of time that would be required under a SORNA-compliant regime.
The registration period for tier I offenses can be reduced from 15 to 10 years if the offender has a “clean record” during his or her period of registration, as that term is defined in 42 U.S.C. 16915(b)(1) and U.S. Department of Justice regulations, available here. Under this interpretation of G.S. 14-208.12A(a1)(2), only tier I offenses committed by offenders who satisfy the clean record rules are eligible to petition after 10 years as envisioned by G.S. 14-208.12A.
Which offenses would be tier I offenses? I can’t say for sure, as there is not a perfect overlap between our laws and the language and definitions used in federal law. My best guess is as follows:
- Sexual Battery (14-27.5A)
- Subjecting a Person to Sexual Servitude (14-43.13)
- Incest between Near Relatives (14-178) (if the victim was not a minor)
- Felony Indecent Exposure (14-190.9(a1)
- Third Degree Sexual Exploitation of Minor (14-190.17A)
- Peeping offenses (14-202)
- Indecent Liberties with Children (14-202.1) (unless the crime involved “sexual contact,” defined as any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing)
A person registering based on any other crime has to register for at least 25 years before being eligible to petition for termination under this interpretation of G.S. 14-208.12A(a1)(2).
All of that being said, on April 10, 2009, North Carolina applied to the U.S. Department of Justice for a one-year extension to comply with SORNA, which DOJ granted. Arguably, then, SORNA requirements are not yet “required to be met as a condition for the receipt of federal funds,” meaning consideration of the second prong of the test can, perhaps, be deferred until 2010 (or maybe 2011 if we apply for and are granted another one-year extension). Legislation proposed this session (H 1317) would bring North Carolina closer to SORNA compliance, but not all the way-the bill does not address retroactivity or juveniles.
Questions? Thoughts? Is the 15-year floor already being applied in some places? As always, I’d love to hear from you.