Registering Harm: A briefing book on the Adam Walsh Act

Nov. 2008:

The Adam Walsh Act explained:
Enacted by Congress in 2006, the Adam Walsh Act (AWA) requires that states participate in a national sex offender registry and establishes comprehensive minimum standards for registration and community notification. The AWA explicitly requires lifetime registration of children for certain offenses. States that choose to comply with the requirements of the AWA risk losing a percentage of federal funding.

But states will have to pay far more to implement the Adam Walsh Act than they will receive in federal funds. Sex offender registries have existed for decades, but before the Adam Walsh Act, none placed such an enormous fiscal burden on state budgets or specifically targeted children for inclusion on a national, public registry. Among other measures, the Adam Walsh Act does the following:

• Requires the registration of children who are age 14 or older for certain offenses
• Increases the number of offenses for which an individual must register
• Requires people to provide more extensive registration information, including photos
• Expands the amount of information available to the public regarding people on the registry
• Makes the registry retroactive — under certain conditions, individuals convicted of sex offenses prior to the AWA’s passage will be required to register even though the Act was not in
  effect at the time of their conviction
• Requires states to criminalize a failure to register and provide a criminal penalty

The AWA also establishes the federal Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SM ART ) Office to set guidelines for registering people convicted of sex offenses, develop software for the registry, and assist state, local and tribal governments in implementing their registries.

The SMART Office also helps states enact registry provisions that are far more restrictive than those required by AWA.

A communication from SMART makes this clear: “jurisdictions should consider AWA minimum requirements as a floor, not a ceiling. Jurisdictions are free to implement regulations that are stricter than what AWA requires.”1

The Adam Walsh Act requires states to comply with these requirements by 2009. If state’s fail to do so they will lose 10 percent of their Byrne Grant funds.

The Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program (Byrne Formula Grant Program) is a federal program established by the Anti-Drug Abuse Act of 1988 that awards grants to state and local governments for “personnel, equipment, training, technical assistance, and information systems for more widespread apprehension, prosecution, adjudication, detention, and rehabilitation of offenders who violate such state and local laws.”2

In the past, Byrne grants have funded questionable crime fighting tactics like drug task forces and SWAT-style raids. ..Continued.. by The Justice Policy Institute

The Adam Walsh Act and Tribes: One Lawyer's Perspective

May 2011:

Abstract:
M. Brent Leonhard is the Deputy Attorney General for the Confederated Tribes of the Umatilla Indian Reservation, the first tribal jurisdiction (along with the State of Ohio) to be designated by the Department of Justice as having substantially implemented the Sex Offender Registration and Notification Act requirements. He is also a principle author of the Model Tribal Sex Offender Registration Code. In this brief article he expresses his personal opinions about the Adam Walsh Act and implementation issues tribes face, concluding that the Act needs to be amended. ..Source.. by Matthew Brent Leonhard

Putting the Brakes on the Preventive State: Challenging Residency Restrictions on Child Sex Offenders in Illinois under the Ex Post Facto Clause

2011 Illinois:

State laws restricting where convicted sex offenders can legally reside first came into common use in the mid-1990s.2 Since then, a number of states and municipalities, including Illinois, have implemented restrictions prohibiting sex offenders3 from living within certain distances from schools, parks, and other areas where children gather.4 These prohibited distances range from 500 to 2000 feet,5 and often encircle multiple entities within a community. As a result, sex offenders are often severely limited as to where they can legally reside. These laws have forced some offenders to remain in prison6 or live in makeshift tent cities because there is nowhere else for them to live.7 In Georgia, for example, state probation officials advised sex offenders to live in a muddy camp on the outskirts of the county until they could locate a legally permissible home.8 In Florida, some sex offenders were forced to live under a remote bridge because they could not find housing that complied with the county‘s residency law.9 In Illinois, 1000 sex offenders are currently eligible for parole but the state refuses to release them from prison because they cannot secure suitable housing.10 These are but some consequences of the increasingly strict regulatory scheme confronting sex offenders in the United States today.

This Comment explores whether a viable challenge to residency restrictions on child sex offenders in Illinois exists under the ex post facto clauses of the federal and state constitutions. It also recounts the history of sex offender regulation in Illinois and explores the social and political environment that fostered the emergence of residency restrictions in the state. Part I provides a brief overview of the history and purpose of the ex post facto clause. It also highlights the recent resurgence of preventive lawmaking; that is, laws that work to prevent crime rather than detect and investigate it, and laws that impose direct restraints on the liberty of those considered particularly dangerous by the state. Part II briefly recounts the legislative history of sex offender regulation in Illinois, and provides an overview of the political and social realities that shaped the legislative debate. Part III uses recent state court decisions in Illinois, Indiana, and Kentucky to evaluate the constitutionality of residency restrictions on child sex offenders in Illinois, ultimately arguing that such restrictions violate the ex post facto clauses of the federal and state constitutions. Finally, this Comment concludes by considering the need for judicial intervention given the resurgence of the preventive state.

For the remainder of this paper: by Michelle Olson

Sex Offender Supervision and GPS Monitoring Task Force

October 2010:

Executive Summary:

Citizens across California have become increasingly concerned about sex offenders returning to their neighborhoods. They want greater assurances that these offenders will not place their children or themselves in jeopardy of victimization. As a result, laws have recently been passed that increase incarceration and community supervision periods, place restrictions on where sex offenders can reside, and prohibit them from being in specific locations.

In California, there are approximately 85,000 registered sex offenders in our communities, more than any other state in the nation. Even with increased sentences, nearly all convicted sex offenders sentenced to state prison will eventually be released back to their respective communities. They will be placed on supervised parole for a period of time to monitor their reintegration and help protect the public. Currently, fewer than 10% (approximately 6,600) of all California sex offenders are on supervised parole in the community and being monitored by GPS technology. Additionally, there are approximately 2,900 sex offender parolees that are on parole, who are either in custody pending revocation, committed to a State Mental Hospital or have absconded supervision.

Over the past year, two horrific crimes have focused the concerns of citizens. Phillip Garrido and John Gardner, both registered sex offenders, committed unthinkable acts that forever changed the lives of the victim’s families and communities. The Governor requested a review of the John Gardner case be completed by the California Sex Offender Management Board (CASOMB) to offer recommendations for improving sex offender management. Meanwhile, the Office of the Inspector General (OIG) initiated an independent investigation of these cases and also offered recommendations on how to improve sex offender supervision.

Acting on the content of the reports, CDCR reviewed relevant policies and practices and made substantive changes to both sex offender parole supervision policies and GPS tracking policies. Further, at the direction of Secretary Matthew Cate, the Division of Adult Parole Operations (DAPO) convened a task force of CDCR staff, outside public safety representatives, and victim advocates to review the OIG and CASOMB recommendations, as well as relevant sex offender supervision policies and practices. The objective of the task force is to make further recommendations to improve public safety as it relates to parolee sex offender supervision.

The Sex Offender Supervision and GPS Monitoring Task Force met weekly between July and September 2010. Participants included statewide representatives from CDCR, Board of Parole Hearings, local law enforcement, probation, district attorneys, Office of the Inspector General, National Institute of Justice, treatment providers, and victim advocates.

Following presentations from subject matter experts and comprehensive discussions, the task force decided upon the following recommendations. It is the intent of the Task Force that these recommendations not be viewed individually as they are interrelated and are most effective when implemented together. For the remainder of this report: by California Department of Corrections and Rehabilitation

Within the report is their recommendation for "Tiered Supervision" which clearly explains why the Adam Walsh Act's Classification System is absolutely useless for Public Safety. Consider these highlights of what they said:

Recommendation: Implement tiered parole supervision, according to the offenders risk to re-offend and danger to the community.

Tiered supervision allows Parole Agents to devote the most time to those sex offenders that present the greatest danger to the community. There are several tools that can be used to help distinguish which sex offenders pose the greatest risk. Risk assessment instruments such as the Static-99, which is currently being used by CDCR, is one such tool. Other risk assessment instruments, as discussed elsewhere in this report, measure risk of sexual and non-sexual violence.

A tiered supervision model is based on continual assessment of variables including criminal history, life circumstances, length of time in the community and overall adjustment and stability. Presently, CDCR has a two-tiered system: High Risk Sex Offenders and all other sex offenders. An increased ability to determine risk permits CDCR to employ a three or four-tiered system of supervision. This allows CDCR to move sex offender parolees through a dynamic continuum of supervision.

CDCR data concludes sex offenders pose the greatest risk of re-offense during their first year of parole supervision. For that reason, during this initial period, all sex offenders should be supervised at the most intensive level.

Knowing that the Adam Walsh Act is an "offense based" system, not based on any assessment of individual offenders, and not a "continual assessment of variables (equate parole officers to local law enforcement) including criminal history, life circumstances, length of time in the community and overall adjustment and stability.," clearly says AWA is wrong for the community and will not enhance public safety! Effectively the Adam Walsh Act would override their recommendations.

Implementing the Adam Walsh Act’s Sex Offender Registration and Notification Provisions: A Survey of the States

June 2010:

Abstract:
With the 2006 passage of the Adam Walsh Child Protection and Safety Act (AWA), the United States Congress established a range of requirements for sex offender registration and notification (R&N) systems operated by states, tribal jurisdictions, and U.S. territories. In the years since the law’s passage, these congressional mandates have generated concern within some covered jurisdictions and among national organizations over matters such as the perceived undermining of jurisdictional autonomy, the variance between the law and emerging "best practices," and perceived threats to the viability of state-based sex offender management efforts. To examine these concerns, a national survey was conducted in the fall of 2008 to evaluate the consistency between AWA requirements and existing state policies and practices, and to assess state-based barriers to AWA implementation.

The survey results identified several areas of inconsistency between AWA mandates and state practices, particularly those relating to inclusion of juveniles, classification methods, and retroactive application of R&N requirements.

The study revealed the barriers to AWA implementation within many states to be multifaceted and complex, suggesting the potential need for a recalibration of federal policy governing registration and notification.

Implications for the respective roles of federal and state governments in the shaping of sex offender policy are discussed.

For the remainder of this paper: by Andrew J. Harris, University of Massachusetts-Lowell -AND- Christopher Lobanov-Rostovsky, Colorado Division of Criminal Justice

Interim Report to the Congress on the Feasibility of a National Child Abuse Registry

April 2010:

Abstract:
About 45 states maintain child abuse registries, which are databases that allow child protective services investigators routine access to child abuse history information to inform better current investigations. Most states also use their registries to conduct pre-employment background checks on persons who work with children, such as day care providers. The Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248) requires that HHS conduct a study to assess the feasibility of establishing a national child abuse and neglect registry and present the results in a Report to Congress. This interim report describes key issues regarding the feasibility of establishing a national child abuse registry and concludes that implementation is not feasible under the statutory limitations of the authorizing legislation. Further feasibility study activities are underway and will be described in a final report when results are available.

For the remiander of this report: by Laura Radel

Widening the Net :The Effects of Transitioning to the Adam Walsh Act’s Federally Mandated Sex Offender Classification System

2010:

Abstract:
With the 2006 passage of the Adam Walsh Child Protection and Safety Act (AWA), the U.S. Congress set forth a range of minimum standards governing the operation of sex offender registration and notification (SORN) systems throughout the nation. Many of these standards are based on the AWA’s uniform system of registrant classification, which distinguishes registrants solely based on offense history and the nature of the conviction offense, without regard for additional risk factors.

The current study evaluates the impact of the federal registration classification system on the distribution of individuals within state sex offender registries, specifically drawing on the experiences of Ohio and Oklahoma, two of the first states to undertake a reclassification of their registrant populations under the new federal guidelines.

The findings indicate that the federal reclassification process produces a redistribution of registrants from lower SORN levels to higher ones and reveals statistically significant differences between newly reclassified "high-risk" individuals and those designated as high risk under prior registration classification systems.

Findings also suggest that juveniles and those potentially subject to AWA’s retroactivity provisions may be disproportionately placed into the highest SORN tiers. Implications of these findings for practice and public policy are discussed.

For the remainder of this paper: by Andrew J. Harris, University of Massachusetts Lowell, Andrew_Harris@uml.edu -AND- Christopher Lobanov-Rostovsky, Colorado Sex Offender Management Board, Colorado Division of Criminal Justice -AND- Jill S. Levenson, Lynn University

eAdvocate Note: This study proves that the truth does not matter, the government wants sex offenders to be found DANGEROUS as a class, regardless of the truth.

FEDERALISM CHALLENGES TO THE ADAM WALSH ACT

2009:

INTRODUCTION

One of the fundamental features of our government’s structure is that the states have a general police power, while the federal government is limited by its enumerated powers.1 Over the past fifty years, Congress has vastly expanded the federal criminal law via the Commerce Clause.2 Because regulating criminal activity is primarily the responsibility of the states,3 many scholars perceive the rapid expansion of the federal criminal law as clashing with federalism values.4 The Adam Walsh Child Protection and Safety Act of 20065 ("the Adam Walsh Act"), once described as "the most comprehensive child crimes and protection bill in our nation’s history,"6 is an example of this conflict.


This Note addresses two provisions of the Adam Walsh Act that scholars have challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal "failure to register" crime for federal sex offenders. Part I provides background information on the Adam Walsh Act and these two provisions. Part II examines the Commerce Clause and the Necessary and Proper Clause as the possible sources of constitutional authority for these provisions. Part II also explains that these two clauses provide the basis for most of federal criminal law, and describes how they might be and have been invoked to justify the Adam Walsh Act provisions at issue. Part III argues that neither provision is justified independently by the Commerce Clause.

For the remainder of this paper: by Robin Morse*

The Adam Walsh Act: A False Sense of Security or an Effective Public Policy Initiative?

June 2009:

Abstract:
With the enactment of the Adam Walsh Child Protection and Safety Act (AWA), states are required to standardize their registration and community notification practices by categorizing sex offenders into three-tier levels in the interest of increasing public safety. No empirical research, however, has investigated whether implementation of the AWA is likely to increase public safety. Using a sample of registered sex offenders in New York State, the current study examined the effectiveness of the Adam Walsh-tier system to classify offenders by likelihood of recidivism. Results indicated that the AWA falls short of increasing public safety. In fact, registered sex offenders classified by AWA as Tier 1 (lowest risk) were rearrested for both nonsexual and sexual offenses more than sex offenders in Tier 2 (moderate risk) or Tier 3 (highest risk). ..Source.. by Naomi J. Freeman, New York State Office of Mental Health, Albany -and- Jeffrey C. Sandler, University at Albany, New York

Worth noting from the Conclusion: The idea behind the enactment of the AWA, to standardize registration and notification procedures nationwide, appeared to address limitations of the current system. In reality, however, the three-tiered system, as outlined in SORNA, fails to increase the effectiveness of current registration and community notification practices. In fact, as indicated by the results of the current study, the system proposed in SORNA actually decreases the ability of states to predict which sex offenders will sexually reoffend and which ones will not.

More specifically, the use of almost any empirically based risk factor would yield more accurate predictions than the SORNA tier level, which is based solely on crime of conviction. Although no risk prediction system can accurately predict sexual recidivism 100% of the time, the results of the current study indicate that SORNA is almost completely ineffective at categorizing sex offenders based on risk of sexual recidivism. As such, it appears enactment of the AWA (and, therefore, SORNA) would not only cost states more money than they would lose if they were not to enact it, but also that such enactment would unlikely increase public safety.

Federalism Challenges to the Adam Walsh Act

August 2009:

Abstract:
This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders.

Part I provides background information on the Adam Walsh Act and these two provisions.

Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause. This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue.

Part III argues that neither provision is justified independently by the Commerce Clause. Finally,

Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws. This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision.

Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes. This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses.

Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster. ..Source.. by Robin Morse, Boston University Law Review, Forthcoming

The Adam Walsh Act and Wisconsin: One-Size-Fits-All Registration Does Not Fit Everyone

Summer 2009:

Title 1 of the Sex Offender Registration and Notification Act (SORNA), known as the Adam Walsh Act, requires States to place juveniles as young as 14 on publicly accessible registries and subject them to broader notification protocol. Research has shown that registration and notification do not significantly reduce incidence of sexual crimes and may negatively impact public safety (Edwards and Hensley, 2001). Wisconsin should continue to allow only confidential registration of juvenile sex offenders, and only in those instances where a judge determines it necessary to protect the public. Because the likelihood of re offending sexually is low, juvenile sex offenders should be exempted from the Adam Walsh Act’s registration and notification provisions. Taking an approach that emphasizes individualized assessments followed by carefully crafted supervision and treatment plans is more likely to provide meaningful public safety than blanket registration.

Like many criminal justice statutes, SORNA bases sex offender registration on the crime committed, not the characteristics of the offender or the likelihood of re-offending. Similar to mandatory minimums, there is a grid of offenses requiring different levels of registration. Juveniles who are required to register under SORNA are considered “tier III” offenders, detailed below, does not support categorical classification of these youth as the most dangerous sex offenders. The research indicates that juvenile sex offenders are more responsive to treatment than adults, and are less likely to commit another sex offense.

All 50 states currently have sex offender registries for adults; no state is in compliance with SORNA. Thirty-three states are already registering juveniles, but only 17 have notification requirements for juveniles, which are often different from those than adults (Petteruti and Walsh, 2008). States must come into compliance with SORNA by July 2010 or risk losing a small amount of federal funding.

For the remainder of this paper: by Wisconsin Council on Children and Families

Adam Walsh Child Protection and Safety Act: A Legal Analysis

April 2007:

Summary:
The Adam Walsh Child Protection and Safety Act, (P.L. 109-248, H.R. 4472), emerged from Congress following the passage of separate bills in the House and Senate (H.R. 3132 and S. 1086 respectively). The act’s provisions fall into four categories: a revised sex offender registration system, child and sex related amendments to federal criminal and procedure, child protective grant programs, and other initiatives designed to prevent and punish sex offenders and those who victimize children.

The sex offender registration provisions replace the Jacob Wetterling Act provisions with a statutory scheme under which states are required to modify their registration systems in accordance with federal requirements at the risk of losing 10% of their Byrne program law enforcement assistance funds. The act seeks to close gaps in the prior system, provide more information on a wider range of offenders, and make the information more readily available to the public and law enforcement officials.

In the area of federal criminal law and procedure, the act enlarges the kidnaping statute, increases the number of federal capital offenses, enhances the mandatory minimum terms of imprisonment and other penalties that attend various federal sex offenses, establishes a civil commitment procedure for federal sex offenders, authorizes random searches as a condition for sex offender probation and supervised release, outlaws Internet date drug trafficking, permits the victims of state crimes to participate in related federal habeas corpus proceedings, and eliminates the statute of limitations for certain sex offenses and crimes committed against children.

The act revives the authorization of appropriations under the Police Athletic Youth Enrichment Act among its other grant provisions and requires the establishment of a national child abuse registry among its other child safety initiatives. ..Source.. by Charles Doyle, American Law Division

Position Statement - California Sex Offender Management Board - Adam Walsh Act

2-16-2009 California:

The California Sex Offender Management Board recommends the following related to Adam Walsh Act implementation.

The California State Legislature, Governor and citizens should elect not to come into compliance with the Adam Walsh Act. Current effective California state law and practice related to offender risk assessment, juvenile registration and sex offender monitoring is more consistent with evidence-based practice that can demonstrate real public safety outcomes.

Instead of incurring the substantial - and un-reimbursed - costs associated with the Adam Walsh Act, California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act.

Any funding cuts to the JAG / Byrne grants to local law enforcement should be offset with other funds to ensure that the vital public safety work of those programs is continued. ..Source.. by The California Sex Offender Management Board