Adam Walsh Child Protection and Safety Act

Adam Walsh Child Protection and Safety Act

Full title	Adam Walsh Child Protection and Safety Act
Enacted by the	109th United States Congress
Citations
Public Law	Pub.L. 109-248
Codification
Title(s) amended	42
U.S.C. sections created	§ 16911 et seq.
Legislative history
Introduced in the House as H.R.4472 by Rep. Jim Sensenbrenner (R-WI) on December 8, 2005 Passed the House on March 8, 2006 (unanimous voice vote) Passed the Senate on July 20, 2006 (unanimous voice vote) Signed into law by President George W. Bush on July 27, 2006
Major amendments
Relevant Supreme Court cases
United States v. Comstock, 560 U.S. ___ (2010)

The Adam Walsh Child Protection and Safety Act^[1] is a federal statute that was signed into law by U.S. President George W. Bush on July 27, 2006. The Walsh Act 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 must update their whereabouts every year with 15 years of registration. Failure to register and update information is a felony under the law.

The Act 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.).^[2] The Act was named for Adam Walsh, an American boy who was abducted from a Florida shopping mall and later found murdered.

It also contains civil commitment provisions for sexually dangerous persons.^[3]

History

The Adam Walsh Act emerged from Congress following the passage of separate bills in the House and Senate (H.R. 3132 and S. 1086 respectively). The Act is also known as the Sex Offender Registration and Notification Act (SORNA), the majority of the provisions of which were enacted as 42 U.S.C. §16911 et seq. 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^{[clarification needed]} 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 kidnapping 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.

The Act also establishes a post-conviction civil commitment scheme.^[3] 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.^[3] 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.^[3] Prior to Supreme Court Review, the federal Circuit courts were split on the question of whether Congress had the authority to enact this provision.^[3] On May 17, 2010, the Supreme Court upheld the law, and ruled in United States v. Comstock that the Civil Commitment Provision was within Congress‘s authority.^[4]

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. The act allocated federal funding was to assist states in maintaining and improving these programs so a comprehensive system for tracking sex offenders and alerting communities would be developed.^[5]

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.^[5] 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.

Compliance

As of July, 2011, the jurisdictions deemed in substantial compliance with the Act are:

Ohio

Confederated Tribes of the Umatilla Indian Reservation

Confederated Tribes and Bands of the Yakama Nation

Delaware

Florida

South Dakota

Michigan

Nevada

Wyoming

Compliance is monitored by the SMART office of the United States Department of Justice.

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.^[5]
• 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.^[6]
• 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.

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.

Juveniles 14 years of age or older at the time of offense are required to register only if they fit into the third (most serious) tier and were tried as adults. Such juveniles will be subject to all the same registration requirements as other Tier 3 offenders.

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.^[7] 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.

Criticism

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.^[8] The law has also been criticized for having unintended consequences.^[9]

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 applying only 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.

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.^[10]

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.^[11] 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.^[12]

See also

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

References

1. ^ Pub.L. 109-248
2. ^ "President Signs H.R. 4472, the Adam Walsh Child Protection and Safety Act of 2006". White House. 2006. http://georgewbush-whitehouse.archives.gov/news/releases/2006/07/20060727-6.html. Retrieved 2007-07-10. "Fourth, the bill I sign today will help prevent child abuse by creating a National Child Abuse Registry, and requiring investigators to do background checks on adoptive and foster parents before they approve to take custody of a child. By giving child protective service professionals in all 50 states access to this critical information, we will improve their ability to investigate child abuse cases and help ensure that the vulnerable children are not put into situations of abuse or neglect." 
3. ^ ^{a b c d e} Barker, The Adam Walsh Act: Un-civil Commitment, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1496934#
4. ^ United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), cert. granted, 129 S.Ct. 2828 (U.S. June 22, 2009/Decided May 17, 2010) (No. 08-1224).
5. ^ ^{a b c} Davidson, Lee (2006). "Bush signs, Hatch praises new Child Protection Act". Deseret Morning News. http://deseretnews.com/dn/view/0,1249,640198190,00.html. Retrieved 2007-07-10. 
6. ^ "H.R. 4472 — Adam Walsh Child Protection and Safety Act of 2006" (pdf). Legislative Notice. U.S. Senate Republican Policy Committee. 2006. Archived from the original on 2007-07-03. http://web.archive.org/web/20070703072051/http://rpc.senate.gov/_files/L49HR4427ChldprotBB072006.pdf#search='H.R.%204472'. Retrieved 2007-07-10. 
7. ^ Dewan, Shaila (2007-08-03). "Homelessness Could Mean Life in Prison for Offender". The New York Times. http://www.nytimes.com/2007/08/03/us/03homeless.html?ex=1343793600&en=c284b3791a25a5ae&ei=5088&partner=rssnyt&emc=rss. 
8. ^ Andriette, Bill (2006). "Vicious Sex-Crazed Attack". The Guide. http://www.guidemag.com/content/index.cfm?ID=292. Retrieved 2007-10-01. 
9. ^ Brittany Enniss, "Quickly Assuaging Public Fear: How the Well-Intended Adam Walsh Act Led to Unintended Consequences," 2008 Utah L. Rev. 697, 717 (2008)
10. ^ "I-130, Petition for Alien Relative" (pdf). Department of Homeland Security U.S. Citizenship and Immigration Services. http://www.uscis.gov/files/form/i-130.pdf. Retrieved 2007-07-10. 
11. ^ "Consular Offices Abroad Resume Accepting I-130 Immigrant Visa Petitions". U.S. Department of State. Archived from the original on 2007-06-16. http://web.archive.org/web/20070616043314/http://www.state.gov/r/pa/prs/ps/2007/mar/82030.htm. Retrieved 2007-07-10. 
12. ^ "Free Speech Coalition v. Gonzales (2005)". Free Speech Coalition. Archived from the original on 2007-06-30. http://web.archive.org/web/20070630053751/http://www.freespeechcoalition.com/FSCView.asp?action=preview&coid=137. Retrieved 2007-07-10. 

Further reading

• Lara Geer Farley, The Adam Walsh Act: The Scarlet Letter of the Twenty-First Century, Washburn Law Journal, vol. 47, pp. 471-503

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