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The Champion

November 2006 , Page 59 

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The Scarlet Letter of the Law: The Adam Walsh Child Protection and Safety Act of 2006

By Kyle O'Dowd

Read more Legislation columns.

Did you see his name in the local paper?
Stole a tin of beans,
From a cut-priced grocery store.
The judge said he must pay,
So he put him on probation,
And the paper gave his name.

The Kinks, Did You See His Name?
Written by Ray Davies
From the album The Kink Kronikles
(Reprise 1972)

The protagonist in Ray Davies’ cautionary tale goes on to lose his job and take his life, illustrating the intractable conflict between punitive publicity and offender reintegration. From pillory to police blotter, methods for subjecting offenders to public humiliation tend to keep pace with evolving modes of public dissemination. It is not surprising, then, that authorities have harnessed the power of the Internet to disseminate information about lawbreakers. And given public attitudes toward sexual offenders, these individuals were destined to be the primary targets. Still, some states have been more judicious than others in their use of this mechanism, utilizing risk-assessment procedures that provide some modicum of due process and take into account individualized assessment by treatment professionals.

As frequently occurs in the criminal context, federal mandates may now effectively preempt such state diversity and innovation. On July 27, 2006, the 25th anniversary of Adam Walsh’s disappearance, the President signed the Adam Walsh Child Protection and Safety Act. The core provisions of the bill establish minimum requirements for statewide sex offender registration and notification. The law specifies the scope and duration of registration requirements, the information that must be collected and included in the states’ registries, the scope of community notification (including Internet notification), and the procedures for updating and sharing offender information. Leaving very little to the states’ discretion, the law further requires that the states provide a criminal penalty with a maximum sentence greater than one year for failure to comply with the demanding registration requirements.

Inclusion and Classification of Sex Offenders

Much of the legislative debate focused on how wide to cast the net — that is, which “sex offenses” would trigger the law’s registration and notification requirements. The term sex offense has been used to describe a broad range of conduct: consensual and nonconsensual, nonviolent and violent, petty and serious. A related and uniquely troubling debate focused on whether the law’s requirements would apply to juvenile adjudications.

The negotiators settled on a general definition (subject to two exceptions) that covers criminal offenses with an element involving sexual acts or contact. This is supplemented by a list of specified offenses against minors and specified federal offenses. Two types of consensual offenses are excluded: (1) consensual sexual conduct with an adult and (2) consensual conduct with someone at least 13 years old if the offender is not more than four years older.

NACDL, juvenile justice advocates and treatment professionals vigorously opposed measures — such as those approved by the House in an earlier version — to include juvenile adjudications in the registries. Many states exclude juvenile adjudications from their registries, a policy choice that is consistent with youth sex offenders’ responsiveness to treatment and concomitant low recidivism rates (3 to 8 percent). Advocates on the other side used well-publicized assaults to obscure these important distinctions between adult and juvenile sexual abusers. The final compromise requires registration if the youth was at least 14 years old and the offense was comparable to, or more severe than, aggravated sexual abuses (e.g., forcible rape).

While incompatible with the individualized risk assessment employed by some states, the final bill does not adopt a completely one-size-fits-all approach. Registration and notification burdens are determined based solely on the offense, but the array of covered sex offenses is divided into thee tiers based on seriousness: (1) Tier III is the most serious classification and includes felony sex offenses comparable to, or more severe than, aggravated sexual abuse, abusive sexual contact with a minor under age 13, non-parental kidnapping of a minor, and certain second offenses; (2) Tier II includes felony sex offenses against minors that are comparable to, or more severe than, inter alia, sex trafficking, solicitation of child prostitution, production or distribution of child pornography, and certain second offenses; (3) Tier I is the least serious classification and includes all other sex offenses minus the excluded consensual conduct described earlier.

State Registry and Web Site Requirements

Sex offenders must register, and keep their registration current, in their states of residence, school and work; initially, they must also register in their states of conviction. Initial registration is required before completing the prison sentence or, if not imprisoned, within three business days of being sentenced. Before release or after sentencing, states must explain the registration duties, obtain a signed statement of understanding, and ensure that the offender is registered. Herein lies the rub: there is no accommodation for mentally retarded or ill offenders who are incapable of comprehending any such “statement of understanding” or, for that matter, complying with the registration requirements.

The law sets forth a detailed list of offender and offense-related information that the states must collect and include in the registry. States must also make this information available on the Internet, except for victim identity, offender Social Security number, and arrests without convictions. Also established are a national sex offender registry and Web site, to be maintained by the Attorney General, which will include each person in the state sex offender registries.

Three critical variables — the duration of registration, the frequency of verification, and Web site eligibility — depend on the offender’s tier level (as determined by the offense). Tier I offenders must verify their registration in person every year for 15 years (reduced to 10 years for a clean record); Tier II offenders must appear every six months for 25 years without exception; Tier III offenders must appear every three months for life (reduced to 25 years for a juvenile adjudication and a clean record). Covered individuals must appear in at least one jurisdiction to update their registration within three business days of a change in name, residence, employment, or student status. State Web sites may exclude certain Tier I offenders (if the offense was not a specified one against a minor) as well as employer and school names.

Community Notification Program

In addition to this so-called passive notification, the states must implement active community notification programs. Immediately after an individual registers or updates his/her registration, the state must provide the information to various individuals and entities, including: (1) the Attorney General; (2) law enforcement agencies, schools and public housing authorities in each area where the individual resides, works, or attends school, (3) volunteer organizations having contact with minors; and (4) any organization or individual requesting notification.

Effective Date and Retroactivity

You may be wondering when these requirements will impact former and current clients. There is no exact deadline or cutoff. Participating states have until at least July 2009 to substantially implement the law’s requirements, but the ultimate deadline will depend on a number of factors.

First, the Attorney General has two years to develop and make available software that will enable the states to establish and operate the required registries, Web sites, and community notification programs. States must implement the law’s requirements within one year of that software’s availability or within three years of the law’s enactment, whichever is later.

Second, the law prescribes certain funding reductions and establishes grant programs to induce the states to comply, but some states may determine that the costs of compliance outweigh the benefits. In that case, the state’s existing sex offender laws will continue to govern.

Finally, the Attorney General must determine the extent to which the law will apply retroactively to individuals convicted before the law’s enactment or implementation. See Smith v. Doe, 538 U.S. 84 (2002) (holding that retroactive application of the Alaska Sex Offender Registration Act did not violate the ex post facto clause).

The lengthy enactment is replete with other significant provisions, some of which might merit discrete Champion articles (calling volunteer authors). The law establishes several new and enhanced sentences, including mandatory minimums, for various registration-related and sex offenses. It modifies the Federal Rules of Evidence so as to require that child pornography remain in the custody of the government or court and prohibits reproduction by defense counsel as long as reasonable access is provided. It also creates new procedures regarding federal civil commitment of sexually dangerous persons, and establishes a grant program to encourage state civil commitment laws that meet certain federal requirements.

NACDL mobilized a diversity of groups to fight these bills, and we succeeded in ameliorating some of the worst proposals. We were also successful in opposing efforts to attach unrelated crime measures to the final bill. Of course, this is no consolation to the individuals (and their innocent relatives) caught in the ever-tightening grip of sex offender regulations, or the victims of future assaults that might have been avoided if resources had been allocated more wisely. To vindicate these interests, NACDL and its members must continue to be the voices of reason and champions of one of the most unpopular causes of our time. 

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