Penalty for Failure to Implement and Reallocation of the Penalty in the Byrne JAG Funding

The AWA established a penalty for jurisdictions that failed to substantially implement the SORNA by July 27, 2011, and for any year thereafter. Thirty-nine state and territorial jurisdictions did not meet the deadline. The AWA further provided that the funding penalty amounts shall be reallocated 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 SORNA.

The following jurisdictions have been approved for reallocation of the funding penalty to work solely towards furthering SORNA implementation activities and efforts: Alaska, American Samoa, Colorado, Connecticut, District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, US Virgin Islands, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

NCJA participated in discussions with the SMART Office and the Bureau of Justice Assistance (BJA) as they made determinations on the calculation of the SORNA penalty to be taken from the Byrne Justice Assistance (JAG) funds. For those jurisdictions that did not substantially implement SORNA by July 27, 2011, BJA calculated the SORNA penalty by subtracting 10 percent from the state’s allocation (60 percent of the total award), minus the “mandatory variable pass-through” that states are required to send to local governments. The penalty does apply to the portion of JAG funding that is awarded to the state to be shared with local governments that were not eligible for a direct JAG award (“less than $10,000 jurisdictions”).

The penalty is not assessed against the mandatory pass-through, which is the portion of JAG funds awarded directly to local law enforcement, as the state cannot retain any portion of that award. Penalizing local agencies would also seriously undermine the purpose of the statute, since doing so would be detrimental to local law enforcement efforts.

When the solicitation is published State Administrative Agencies (SAAs) will be required to fund the agency and program that has been previously approved by the SMART office for use of the penalty funds in furtherance of SORNA in the state or territory. The SORNA Contact Agency has already gone through an application and approval process through the SMART office and the Assistant Attorney General for OJP.  The Byrne JAG penalty funds will be administered and managed by the SAA. NCJA supported the penalty calculation made after the mandatory variable pass-through rate is computed.