Revisiting SORNA's Implementation Cost and Non Compliance 10% Penalty Arguments

This research for the most part dispels all arguments, known today, that claim, paying the 10% Bryne Grant penalty is cheaper than all the implementation costs that a state would incur to implement SORNA. It appears, all arguments known today, have not considered sections Congress wrote into SORNA as explained below.

UPDATE: Reader mentions the costs of litigation. Sorry, those are not implmentation costs, they would be ongoing costs (see paragraph near end of this post).

August 15, 2011 National:

In 2008 the Justice Policy Institute released their study on the costs to comply with SORNA; an excellent study. But, they only looked at the first year effect of non compliance by individual states.

There has been much written about the theory that, it is better for states to pay the 10% penalty rather than the costs of implementing SORNA. There are others who have followed that path as well with all sorts of justifications, but there is a problem with that argument.

It appears, although hard to believe, there are many who have not researched what SORNA says about recovery of implementation costs, and frequency and recovery of the 10% penalty. Yes, this is amazing so lets begin with exactly what SORNA says about the 10% penalty:

42 USC 16925: SEC. 125. FAILURE OF JURISDICTION TO COMPLY.
(a) IN GENERAL.—For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this title shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).

Note: "after the end of the period of implementation" is a key phrase because folks will remember that there have been two, one year extensions granted. So technically no state can be charged a penalty, at this point (August 2011)!

Frequency of Penalty:
In other words, every fiscal year following the implementation period, states that do not comply (I presume they mean by choice) lose 10% of that years Byrne grant money. Every year the figures for the Byrne grant change, maybe more or less than the prior year. This is a FOREVER LOSS for these states (42 USC 16925 (a)In General), unless they apply to recover the penalty (below)!

42 USC 16925: SEC. 125. FAILURE OF JURISDICTION TO COMPLY.

(c) REALLOCATION.—Amounts not allocated under a program referred to in this section to a jurisdiction for failure to substantially implement this title shall be reallocated under that program to jurisdictions that have not failed to substantially implement this
title or may be reallocated to a jurisdiction from which they were withheld to be used solely for the purpose of implementing this title (See this form).

Recovering the Penalty:
SORNA clearly states "may be reallocated to a jurisdiction from which they were withheld ...," a state may recover the penalty, if they use the money to implement SORNA. There is no other way for a state to recover a penalty once is has been deducted from their Byrne grant. (42 USC 16925 (c)Reallocation).

Note: Here it may look like, implementation costs are being offset by the penalty, this appearance only occurs after a state has been charged a penalty and then recovers it. This is an accounting anomaly, it does not occur if a state remains non compliant.

Penalties not Recovered:
Now, what happens to states who (again I presume by choice) remain non compliant? They pay the 10% penalty FOREVER? (Every year they are charged 10% of their Bryne Grant). Then that 10% is redistributed (proportionally) to states that did comply. This is a FOREVER WINDFALL for states that are in compliance. (42 USC 16925 (c)Reallocation).

Unfortunately once you take these facts into consideration, you realize the way it is constructed, by Congress, this is a double edged sword and State lawmakers that realize this are really irked. Hence, they opt to comply eventually, lest their constituents find out what they have done and vote them out of office. There is a very good chance that, ultimately, all states will come into compliance.

Note: Here is why I say this, states that do not come into compliance TODAY, may do so some number of years down the road when states elect new lawmakers (Lawmakers love to point out errors of former lawmakers, just to get elected). And remember, there is no time limit on the penalty, it is forever. And, there is nothing in the recovery portion to prevent a state from applying for recovery of penalties paid, if they change their mind down the road.

As much as this irks me to say this, the initial argument that, implementation costs far outweigh 10% reductions to Byrne grant money, as a long term way for states to remain non compliant, dies a quick death once you consider the FOREVER Penalty and Reallocation to compliant states (a windfall)! I am totally perplexed how the Justice Policy Institute apparently missed this, unless they thought the penalty was a ONE TIME penalty.

Recovering Implementation Costs: First what SORNA says:

42 USC 16926 SEC. 126. SEX OFFENDER MANAGEMENT ASSISTANCE (SOMA) PROGRAM.

(a) IN GENERAL.—The Attorney General shall establish and implement a Sex Offender Management Assistance program (in this title referred to as the ‘‘SOMA program’’), under which the Attorney General may award a grant to a jurisdiction to offset the costs of implementing this title.

(b) APPLICATION.—The chief executive of a jurisdiction desiring a grant under this section shall, on an annual basis, submit to the Attorney General an application in such form and containing such information as the Attorney General may require.

(d) AUTHORIZATION OF APPROPRIATIONS.—In addition to any amounts otherwise authorized to be appropriated, there are authorized to be appropriated such sums as may be necessary to the Attorney General, to be available only for the SOMA program, for fiscal years 2007 through 2009.

During the 111th Congress, two bills addressed subsection (d) to extend the years: "HR-1149 Child Protection Reauthorization Act of 2009" and "HR-1422 Adam Walsh Child Protection and Safety Reauthorization Act of 2009" neither was enacted.

Note: Since grants are subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law. It is unknown if these "Implementation Grants" had limitations within them which may cause a state to not be fully reimbursed, had they applied and received such grant.

Implementation grants, available from 2007 through 2009, are no longer available. States, who failed to file the "annual forms" under (b) are now out of luck, it is unknown if any state did timely file. The point being, federal money was available to offset implementation costs. Finally, it is possible that all states timely applied for grants even if they have not yet come into compliance.

UPDATE: The SMART Office has not published, to our knowledge, any list of -which states applied annually as required by SORNA- and whether they got the grant. In addition, there is no SMART Office list of -which states failed to apply annually as required by SORNA- or whether they can apply at a later date.

UPDATE: Because Congress -within AWA- did permit the USAG to grant two one year extensions -to come into compliance- to states that applied for extensions, that automatically these "Implementation Grants" as well. See HERE 2010 and HERE 2011

It is clear, to anyone who reads SORNA, that Congress pretty much closed the financial arguments in the way they constructed SORNA. Given the laws above there is no logical correlation between implementation costs and penalties, even if you factor in everything one can think of as a implementation cost because that could be factored in to a SOMA grant, resulting in no cost to the state.

The financial argument against SORNA needs to shift to ongoing costs to state criminal justice systems because of the overreach of AWA and SORNA. The financial costs of technical registration violations of SORNA are killing state coffers, not to mention destroying families who then may need state welfare systems.

Finally, I see one argument in the "Penalty Reallocation" that may very well be unconstitutional. i.e., a federal system of taking money from one state and giving it to another, that needs more research.

For now, have a great day and a better tomorrow.
eAdvocate

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