Adam Walsh Child Protection and Safety Act

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The Adam Walsh Child Protection and Safety Act (Pub.L. 109-248) was signed into law by U.S. President George W. Bush on July 27, 2006. The legislation organizes sex offenders into three tiers and mandates that Tier 3 offenders (the most serious tier) update their whereabouts every three months with lifetime registration requirements. Tier 2 offenders must update their whereabouts every six months with 25 years of registration, and Tier 1 offenders (which includes minors as young as 14 years of age) must update their whereabouts every year with 15 years of registration. Failure to register and update information is a felony under the law. It also creates a national sex offender registry and instructs each state and territory to apply identical criteria for posting offender data on the Internet (i.e., offender's name, address, date of birth, place of employment, photograph, etc.)^[1]

The sex-offender registry portion of this act has been ruled constitutional by the 11th circuit court of appeals, March 26, 2009^[2]. The court concluded the law 18 USC 2250 falls under the commerce clause. The court reversed and remanded a previous ruling unconstitutional by Federal judge Gregory Presnell in Orlando, FL on April 18, 2008. Judge Presnell handed down United States v. Powers. The court held that there was no rational relationship between the regulation of interstate commerce under the Commerce Clause powers of Congress and the ostensible federal interest in registering offenders convicted of state sex crimes.^[3]

U.S. District Judge James Mahan blocked Nevada’s new sex offender law from going into effect until constitutional challenges are resolved. Mahan said he was concerned that if the law went into effect July 1 as planned, low-level sex offenders would be publicly identified on the state’s sex offender Web sites. They would then be unable to regain their anonymity if the law is later found unconstitutional, “It’s a matter of due process,” he said. Mahan later declared unconstitutional Nevada’s Adam Walsh Act. The Federal District Judge found this law violated due process and the ex post facto restrictions in the constitution.

The new Nevada sex offender law is being challenged by the American Civil Liberties Union of Nevada. They argue that the change in law is cruel and unusual punishment by punishing sex offenders again for crimes they have already paid for.

The Act also establishes a post-conviction civil commitment scheme.^[4] Section 4248 of the Act contains the Commitment Provision, which authorizes the federal government to initiate commitment proceedings with respect to any federal prisoner in the custody of the Bureau of Prisons.^[5] Under this provision, even prisoners who have never been previously charged with or convicted of a sex crime may be civilly committed after completing their entire prison sentence.^[6] Currently, the federal Circuit courts are split on the question of whether Congress had the authority to enact this provision,^[7] and recently the Supreme Court granted review the question of whether or not enactment of the Commitment Provision was within Congress‘s authority.^[8]

Contents 1 History 2 Legal applications 3 Registration requirements 4 Effects 5 Arguments in Support of the Act 6 Arguments Against the Adam Walsh Act 7 Influence on visa process 8 References 9 See also 10 External links

[edit] History

The bill was sponsored by Congressman James Sensenbrenner (R-WI) in the US House of Representatives and moved to final passage over a two-year period. It had been sent to the Senate in 2005 as H.R. 3132 and had 88 co-sponsors, including Mark Foley (R-FL), who had originally introduced the House bill (and later resigned over a sex scandal involving teenagers), and co-sponsor Rep. Bud Cramer (D-AL). The Senate bill passed on July 20, 2006 with an amendment and amendment to the title. Senate co-sponsors John Kerry (D-MA) and Johnny Isakson (R-GA) dubbed the bill Masha's Law. This came from a child of that name adopted from Russia by a man who had specifically requested a four- or five-year-old and proceeded to molest her for five years before she was removed from his home.^[9]

At the time of passage, at least 100,000 of more than a half million sex offenders in the United States and the District of Columbia were 'missing' and unregistered as required by law. Law enforcement did not know where they were and could not warn communities about them. This situation posed an enormous challenge for law enforcement and caused fear among the people .^{[citation needed]} More federal funding was wanted to assist states in maintaining and improving these programs so a comprehensive system for tracking sex offenders and alerting communities would be developed.^[10]

The Adam Walsh Child Protection and Safety Act was signed on the 25th anniversary of the abduction of Adam Walsh from a shopping mall in Florida. Adam Walsh was found murdered 16 days after his abduction in 1981, and the perpetrator was not named until December 16, 2008, when the Hollywood, Florida police department announced that they had evidence that Ottis Toole was the killer. Adam Walsh's father is John Walsh, host of the television series America's Most Wanted.^[10] John Walsh, also founder of the National Center for Missing and Exploited Children (NCMEC), was joined by other children's advocates to mount an aggressive campaign to get the bill passed into law. As part of the campaign, Walsh was joined by Congressman Sensenbrenner, representatives from the NCMEC, and other victims' advocates and parents. These included Patty Wetterling, children's advocate from Minnesota and mother of missing child Jacob Wetterling, abducted in October 1989; Mark Lunsford, whose daughter Jessica was killed in Florida in 2005; Linda Walker, the mother of North Dakota college student Dru Sjodin who was kidnapped and murdered by a released Minnesota sex offender in November 2003; and Erin Runnion, whose five-year-old daughter Samantha Runnion was raped and killed in California in 2002.

The law has been criticized for its over-breadth, for being applied retroactively, and for demonizing people who had been convicted of what are in many cases non-violent offenses or have served their sentences or probation and committed no new offences. ^[11]

The first two jurisdictions to fully implement the Act were the Confederated Tribes of the Umatilla Indian Reservation and the state of Ohio.

[edit] Legal applications

• Gives the U.S. Attorney General the authority to apply the law retroactively (cf. ex post facto law).
• Gives a federal Judge the ability to civilly commit individuals who are in the custody of the federal prison system if it is proven that the individual (1) has engaged or attempted to engage in sexually violent conduct or child molestation; (2) suffers from a serious mental illness, abnormality, or disorder; and, (3) as a result, would have serious difficulty refraining from sexually violent conduct or child molestation if released. A hearing is available to the involuntarily committed individual every six months to reconsider their commitment status if requested by council or the person in the federal treatment program.
• Establishes a national database which will incorporate the use of DNA evidence collection and DNA registry and tracking of convicted sex offenders with Global Positioning System technology.
• The law defines and requires a three-tier classification system for sex offenders, based on offense committed, replacing the older system based on risk of re-offence.
• Tier 1 sex offenders are required to register for 15 years; tier 2 for 25 years and tier 3 offenders must register for life.
• Increases the mandatory minimum incarceration period of 25 years for kidnapping or maiming a child and 30 years for sex with a child younger than 12 or for sexually assaulting a child between 13 and 17 years old.
• Increases the penalties for sex trafficking of children and child prostitution.^[10]
• Widens federal funding to assist local law enforcement in tracking sexual exploitation of minors on the Internet.
• Creates a National Child Abuse Registry to protect children from being adopted by convicted child abusers.^[12]
• Limits the defense access to examine child exploitation material which is the subject of a charge, such that examination may only be conducted in a government building.

[edit] Registration requirements

The required retroactive application of requirements will be defined by criteria relating to the nature of their sex offenses, not by severity or risk of re-offense, nor will it differentiate between violent or nonviolent offenses. For example, a Tier 3 sex offender who was released from imprisonment for such an offense in 1930 will still have to register for the remainder of his or her life. A Tier 2 sex offender convicted in 1980 is already more than 25 years out from the time of release. A Tier 1 will have to register for 10-15 years. In such cases, a jurisdiction may credit the sex offender with the time elapsed from his or her release.

[edit] Effects

Since its enactment, the Adam Walsh Act (AWA) has come under intense grassroots scrutiny for its far-reaching scope and breadth. Even before any state adopted AWA, several sex offenders were prosecuted under its regulations. This has resulted in one life sentence for failure to register, due to the offender being homeless and not being able to maintain a physical address.[2]

The Adam Walsh Act requires anyone convicted of a sex crime to register as a sex offender where it will be posted on the internet for all to see. This includes anyone who is at least 14 years of age who engages in consensual teenage sex, urination in public, mooning, streaking and/or failure from preventing your children from having consensual sexual relationships.

[edit] Arguments in Support of the Act

The Adam Walsh Act is often supported as being a constitutional law by stating that its effects are not punitive in nature and are simply an administrative tool for parents to protect their children.

[edit] Arguments Against the Adam Walsh Act

Several civil rights groups including those who are advocates for child victims have argued that this law and those like it actually put children in harm's way. By placing everyone who has ever been convicted of a sex crime onto the internet registry, the Government is essentially making it impossible for parents to identify who is truly a threat and who is not. Currently, Texas places children as young as ten years old onto the internet sex offender registry. It has been argued that money spent monitoring these low-risk offenders is a waste of tax payer money and resources.

Others argue the act is an ex post facto law, a law applied retroactively, which is prohibited by the Constitution. Article I, Section 9 of the United States Constitution provides that, "No bill of attainder or ex post facto law shall be passed." This statement has been interpreted as only applying to further punishment but it has also been argued that since it clearly states that no law of its type shall be passed, that this includes all laws including those deemed as punishment or not punishment. This interpretation has allowed for offenders to be punished whenever a new law is passed that is retroactive, thus giving the Government the authority to re-punish an offender throughout their lives.

[edit] Influence on visa process

A collateral effect of the new legislation was its implications on the United States Permanent Resident Card process. Until January 2007, U.S. nationals living abroad who married a local and intended to obtain green cards for their spouse and any immediate family members were able to initiate and complete the majority of the application process at the local U.S. Embassy/Consulate. However, because of the newly enhanced background check and criminal history data trail requirements, the new law had initially been interpreted by the Bureau of Consular Affairs and USCIS as leaving Consular officers ill-equipped to fully handle the I-130 adjucation process. Thus, as of January 2007, I-130 petitions, supporting documentation, or fee payments could no longer be completed in the country of the foreign national.^[13]

However, the government made a quick about-face two months later. Due to a significant number of complaints from applicants about the resultant processing delays and from immigration officials about the deluge of paperwork that came with the centralization of the process, the visa petitioning process for immediate relatives of US citizens was resumed at U.S. embassies on March 21, 2007.^[14] However, all embassies were required to add a 6 month residency requirement for the US Citizen to file an application directly.

The Act also for the first time limits the rights of citizens or permanent residents to petition to immigrate their spouse or other relatives to the U.S. if the petitioner has a listed child sex abuse conviction. If that is the case, then the petition cannot be approved unless the Department of Homeland Security determines in its unreviewable discretion that there is no risk of harm to the beneficiary or derivative beneficiary.

The Federal Record Keeping and Labeling Requirements Laws have been attached to this bill (18 USC 2257). This will require secondary producers to be responsible for the record keeping procedures primary producers gather when they produce pornography.^[15]

[edit] References

[edit] See also

• National Center for Missing and Exploited Children
• Senate Caucus on Missing, Exploited and Runaway Children
• House Caucus on Missing and Exploited Children

[edit] External links

• Sex Crimes Blog: Adam Walsh Child Protection and Safety Act Resource Page
• The Scarlet Letter of the Law: The Adam Walsh Child Protection and Safety Act of 2006
• The Adam Walsh Act: Un-civil Commitment