The Adam Walsh Act Study Guide
Derek “The Fallen One” Logue
January 28, 2008 (Last Update February 16, 2012)
INTRODUCTION
The Adam Walsh Act (AWA) is short for “The Adam Walsh Child Protection and Safety Act of 2006,” the
controversial federal sex offender law intended to standardize sex offender laws across the country. The AWA is
an attempt to pass minimum national standards and continuity in sex offender legislation. Every state must
substantially comply with the SORNA (public registry) provisions of the AWA by July 2009 or take a 10% cut in
Federal law enforcement grants. That deadline was extended twice, first to July 2010 then 2011. As of the July 27,
2011 deadline, 14 states, 9 Native American tribes, and 1 US Territory have become "substantially" compliant with
the AWA:
STATES COMPLIANT WITH AWA'S SORNA PROVISION (Compliance date list found at RSOL-VA):
- Ohio - 09/30/09
- Delaware -05/03/10
- Florida -05/18/10
- South Dakota - 10/15/10
- Michigan - 05/12/11
- Nevada - 05/12/11
- Wyoming - 05/12/11
- Louisiana - 07/07/11
- Alabama - 07/27/11
- Kansas - 07/27/11 (Possibly reconsidering)
- Maryland - 07/27/11
- Mississippi - 07/27/11
- Missouri - 07/27/11 (though they may renege on that compliance)
- South Carolina - 07/27/11
- Pennsylvania - 12/20/11 (SB 1183, Act 111), the 15th Compliant state
NATIVE AMERICAN TRIBES COMPLIANT WITH AWA'S SORNA PROVISION:
(Note: As of 2009, there are 564 recognized tribes as noted by the Bureau of Indian Affairs)
- Confederated Tribes of the Umatilla Indian Reservation
- Confederated Tribes and Bands of the Yakama Nation
- Grand Traverse Band of Ottawa and Chippewa Indians
- Iowa Tribe of Oklahoma
- Kootenai Tribe of Idaho
- Little Traverse Bay Bands of Odawa Indians
- Pueblo of Isleta
- Tohono O'odham Nation
- Upper Skagit Indian Tribe
US TERRITORIES COMPLIANT WITH AWA'S SORNA PROVISION:
As states debate whether or not to implement this act, the few states that have thus far have brought up a number
of challenges.
This fact guide is a summary of the Federal version of the AWA and potential challenges to the AWA should your
state consider implementing this law.
COMPREHENSIVE BREAKDOWN OF HR 4472, THE ADAM WALSH ACT
Title I: Sex Offender Registration and Notification Act
- Sec. 111: Establishes a three tiered classification system for sex offenders
- Tier I: A sex offender other than a Tier II or Tier III
- Tier II: A sex offender, not a Tier III, convicted of a felony charge or attempt to commit sex trafficking,
coercion and enticement, transportation with intent to engage in criminal sexual activity, or abusive
sexual contact; if it involves use of a minor in a sexual performance, solicitation of a minor to practice
prostitution, or, production or distribution of child porn; or any sex offense committed after a person is
labeled a Tier I offender.
- Tier III: A felony sex offender convicted of aggravated sexual abuse or sexual abuse, or abusive sexual
contact of a minor under age 13; non-custodial kidnapping; or any sex offense committed after the
person becomes a Tier II offender.
- Sec. 111-5-C: Consensual sexual conduct is not listed as a sex offense if the victim was at least 13 and the
offender is not more than 4 years older than the victim.
- Sec. 113-e: All states must make failure to register a felony offense
- Sec. 115: Establishes duration of Registration Requirement
- Tier I: 15 years, can appeal for removal after 10 years or reduction after 5 years
- Tier II: 25 years
- Tier III: Life, can appeal for removal or reduction after 25 years
- Sec. 120: Establishes a National Sex Offender Registry
- Sec. 125: If a state fails to comply, they lose 10% of their federal grant money for crime fighting
- Sec. 130-131: The NCMEC and law enforcement agencies are immune from liabilities when acting in “Good
Faith Conduct.”
- Subtitle B, sec. 141-146: Federal involvement in sex crime cases; US Marshals given Jurisdiction; “Project
Safe Childhood” implementing or expanding tasks forces targeting sex crimes
- Subtitle C, Sec. 151-155: Mandatory background checks before allowing persons to adopt or work around
children, including DNA
Title II Sec. 201-216: Sex Crime Punishment/ Sentencing Enhancements
- Sec. 201: Adds prohibition on sale of date rape drugs
- Sec. 202-f: “Jetseta Gage assured punishment for violent crimes against children:” Murder- life or 30 years;
kidnapping, 25 years; use of weapon or bodily injury, 10 years
- Sec. 203: Coercion and enticement by sex offenders: 10 years
- Sec. 210: Sex Offender must submit to searches of persons or property at any time with or without a warrant
as a condition of supervised release
- Sec. 211; Removes statute of limitations of felony sex offenses
- Sec. 205, 205, 206, 207, 208, 209, 215: Other mandatory sentencing changes
- Sec. 214: Removes marital communications from secured privileges in child abuse cases
- Sec. 216: Amendments to Bail Reform Act to Address Sex Crimes and other Matters
Title III: “Jimmy Rice State Civil Commitment Programs for Sexually Dangerous Persons.”
- Sec. 302: Amends 18-313-5/6 US Code definition of “sexually dangerous person” meaning, (5) “a person who
has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually
dangerous to others, and (6) ‘sexually dangerous to others’ with respect to a person, means that the person
suffers from a serious mental illness, abnormality, or disorder as a result of which he could have serious
difficulty in refraining from sexually violent conduct or child molestation if released.”
Title IV: Immigration Law Reforms
- Sec. 401: sex offenses are deportable offenses
- Sec. 402: sex offenders cannot get family-based petitions approved
Title V: Child Pornography Prevention (Sec. 501-507)
- Sec. 504: Prevents prosecution from making copies of child porn evidence for discovery at trial, but must
make it “reasonably available” for the defense for trial
- Sec. 505: Allows civil and criminal asset forfeiture in child exploitation and obscenity cases
Title VI: Grants, Studies, and Programs for Children and Community Safety (Sec. 601-639)
- Includes grants for Big Brothers/ Big Sisters (Sec. 603), child fingerprinting programs (Sec. 627), money for
the NCMEC (Sec. 629), Fugitive Safe Surrender (Sec. 632), and a national registry for child abuse (Sec.
633), along with programs of sex crime prevention, registration compliance, and treatment for sex offenders,
and other sex crime punishment issues
Title VII: Internet Safety Act (Sec. 701-707)
- Sec. 701: “Child exploitation enterprise”- mandatory 20 years
- Sec. 702: Adds 10 mandatory years, served consecutively, to registered sex offenders who re-offend
- Sec. 703: “Deception by embedded words and images” added to list of crimes, meaning anyone who
deceives someone into viewing obscene material can be imprisoned up to 10 years, or 20 if a minor was
involved.
- Sec. 704-706: increasing staff at various law enforcement agencies to handle Internet crimes
- Sec. 707: “Masha’s Law:” Increases amount a victim of a sex crime can sue a sex offender increases from
$50,000 to $150,000. (From “Once Fallen” book)
BRIEF SUMMARY OF ADAM WALSH ACT PROVISIONS
- Title I: SORNA, national sex offender registry including both residence and employer/school, community
notification, three tiered classification system based on crime rather than risk, giving immunity to law
enforcement and NCMEC when acting in “good faith,” DNA database, US Marshals given jurisdiction in sex
cases
- Title II: Stiffens penalties for sex and related crimes (such as selling date rape drugs), and gives victims
greater leeway in criminal cases
- Title III: Civil commitment for “dangerous sex offenders”
- Title IV: Immigration laws making sex offenses deportable offenses, and bars offenders against minors from
obtaining a family-based visa.
- Title V: Stronger record keeping requirements for porn industry to ensure no minors are used in creation of
porn, civil forfeiture
- Title VI: Funding for numerous programs, including GPS pilot program, fingerprinting children, and a national
child abuse registry
- Title VII: Increasing penalties for Internet related crimes, funding for increased LE, and expand the civil
remedy available to sex crime victims (HR 4472- Adam Walsh Child Protection and Safety Act of 2006:
Legislative Notice.” July 20, 2006).
IS THE ADAM WALSH ACT RETROACTIVE?
According to the Federal Attorney General's office, the Adam Walsh Act was intended to be applied retroactively
(Thanks to disgraced US AG Gonzales’s “Interim Rule”—meaning he placed the rule in effect before public
comment, bypassing APA procedure due to “pressing emergency”). The argument used is here is the same
argument typically used by the government circumvent the US Constitution—that these laws are “intended to be
non-punitive, regulatory measures adopted for public safety purposes, and hence may validly be applied (and
enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of
these requirements” (US Attorney General Alberto Gonzales, Memo to the US Dept. of Justice, 72 FR 30210-01,
2007 WL 1540140 [F.R.]. May 30, 2007). However, the Ohio Supreme Court has made a ruling stating the law could
not be applied retroactively. See also the court victories against the AWA below.
ISSUES AND POTENTIAL CHALLENGES TO THE ADAM WALSH ACT
Aside from the retroactivity issue, there remain a number of immediate concerns to sex offenders, most notably the
classification system, the national registry, mandatory minimums, and civil commitment. An interesting note is how
the AWA was passed in the first place. In May 2007, the US Attorney General established an “Interim Rule,”
meaning he deemed the situation a “pressing emergency” and thus bypassed ordinary procedure. Thus he deemed
SORNA retroactive to all sex offenders, but declines to provide any procedures for notice and registration of sex
offenders (Amy Baron-Evans, “Supplement to Adam Walsh Act- Part II,” Office of Defender Services, May 2007).
Below is a summary of various arguments found around regarding the mountain of problems associated with the
AWA. Since the arguments against these laws are so massive, I have attempted to summarize the wealth of
information obtained mainly from the Office of Defender Services.
Summary of Amy Baron-Evans & Sara Noonan, “Adam Walsh Act- Part I,” Office of Defender Services, October
2006.
- 8th Amendment: Harshness of penalty is grossly disproportionate to the gravity of the offense [Ewing v.
California, 538 US 11, 20 (2003)], though laws have not been struck down yet; but see State v. Davis,
79 P. 3d 64 (Ariz. 2003), cert. denied, Arizona v. Davis, 541 US 1037 (2004), circumstances determine
argument
- Equal Protection: Challenge on grounds of failing “rational basis test;” laws tend to be
disproportionately used against minorities
- Due Process Right to Individualized Sentencing: Death Penalty prohibited as mandatory punishment
(Woodson v. NC, 428 US 280 (1976), must consider mitigating circumstances (Lockett v. Ohio, 438 US
586, 602-4 (1978);
- Separation of Powers: Mandatory minimums unite the power to prosecute and the power to sentence
within the Executive branch rather than judicial (see Mistretta v US, 488 US 361, 382, 391 n. 17
[1989]). In enticement and certain child porn cases, government creates the offense; how many real
minor cases actually happen?
- Argument is the mandatory nature
- Statute of Limitations removed for felony sex cases
- Violates ex post facto in any case where the statute of limitations ran out before the law is enacted
(Stogner v. California, 539 US 607, 611, 617-18 [2003])
- Equal protection: “Statute of limitations were made to safeguard against charges where facts are
“obscured by the passage of time” (Toussie v. US, 397 US 112, 114-5 [1970]). 18 USC Sec. 3282- 5
year statute of limitations
- Can use due process argument on the grounds defense can prove prejudice and the reason for delay
is not “sufficiently justifiable (US v. Lovasco, 431 US 783, 789-90 [1979]).
- Bail (conditions of bail)
- Requiring accused to wear electronic monitoring without a finding of necessity as a condition of bail
may violate Due Process (US v. Salerno, 481 US 739, 749 [1987]).
- Warrantless searches cannot be a condition of pretrial release (US v. Scott, 450 F. 3d 863 [9th Cir.
2006]).
- Discovery of evidence in porn cases
- “No discovery” provision is unconstitutional (Westerfield v. Superior Court, 121 Cal. Rptr. 2d 402, 404-
05 [Cal. App. Ct. 02]).
- Defense gets “fair opportunity” to defend self, including use of expert testimony (Ake v. Oklahoma, 470
US 68, 74-76 [1985], Smith v. McCormick, 914 F. 2d 1153 [9th Cir. 1990]).).
- Expert must examine hard drive in computer case to see if images were purposely downloaded or were
put there by someone else (US v. Fabrizio, 341 F. Supp. 2d 47 [D. Mass. 2004])
- Counsel has right to conduct reasonable investigation- inhibiting such violates 5th Amend. Due
Process and 6th Amend. Right to effective assistance of counsel (Strickland v. Washington, 466 US
668, 690-91 [1984]).
- Forcing defense experts to conduct work on government computers would unfairly constrain them in
terms of time and equipment, and also take away the privacy of defense to elaborate a proper defense
(Hickman v. Taylor, 329 US 495, 510-11 [1947], Williams v. State, 958 SW 2d 186, 193-96 [Tex. Crim.
App. 1997]).
- No discovery violates presumption of innocence by assuming that what the government alleges to be
child porn IS child porn (see US v. Turner, 367 F. Supp. 2d 319, 325-26 [ED NY 2005], calling alleged
victims “crime victims” during trial).
- Management is NOT the same as treatment; management is merely supervision
- Treatment programs require participants to admit guilt (and other sexual misconduct) in order to start,
which those in appeal cannot do
- 18 USC Sec. 4247 (a) (5)-(6): Defines “sexually dangerous” as anyone committing sexually violent
conduct or child molestation and “suffers from serious mental illness, abnormality or disorder resulting
in serious difficulty refraining from sexually violent conduct or child molestation if released- a vague
definition of mental illness
- 18 USC Sec. 4241 (a): AWA allows predator hearing anytime between sentencing and release
- Victims are allowed to be in habeas corpus hearings under AWA; if allowed to speak, argue on
grounds of relevance (US v. Marcello, 370 F. Supp. 2d 745 [ND Ill. 2005]).
Summary of Amy Baron-Evans & Sara Noonan, “Adam Walsh Act- Part II,” Office of Defender Services, May 2007.
Regards SORNA- Registry and Classification
- AWA assigns tier level based on mere fact of conviction/ enumerated offense; provides no relief to
petition for relief for any reason for any reason other than a “clean record” for 10 or 25 years in a
narrow set of cases; in certain cases, this violates Due Process and state constitutional or statutory law
- Circumstances include overturned/ expunged/ pardoned cases, clerical/ administrative errors, or
regulations not on the books [Branch v. Collier, 2004 WL 942194 (ND Tex. Apr. 30, 2004); Coleman v.
Dretke 409 F. 3d 665 (5th Cir. 2005); People v. Bell, 3 Misc. 3d 773, 778 NYS 2d 837 (2003); Doe v.
State, 92 P. 3d 398, 404-12 (Alaska 2004)].
- Conflict with State Constitutions and Statutes
- SORNA automatic registration and no relief provisions conflicts with many states’ statutes and
constitutional law [In re. JG, 169 NJ 304 (2001); Doe v. Poritz, 142 NJ 1 (1995); Doe v. Attorney
General, 426 Mass. 136, 686 NE 2d (1997); State v. Bani, 36 P. 2d 1255, 1268 (Hawaii 2001);
Brummer v. Iowa Dept. of Corr., 661 NW 2d 167 (Iowa 2003); State v. Guidry, 96 P. 3d 242 (Hawaii
2004)].
- The AWA compels states to conform to its standards or lose 10% of Edward Byrne Memorial Criminal
Justice Assistance Grants funds [42 USC Sec. 16925 a-b]. Offenders may seek declaratory judgment
under state constitution from the state’s highest court.
- When offender is placed under SORNA based on Attorney General (AG) but not listed by Congress, it
should be challenged in a declaratory judgment action; file a motion to dismiss based on invalid
regulation. Congress gives AG limited powers which it is exceeding in this instance, making it invalid
[Gonzales v. Oregon, 126 S. Ct. 904, 916-22 (2006)].
- If AG is given power to designate sex offenses, it unconstitutional delegation of lawmaking to the
Executive in violation of Separation of Powers [Panama Refining Co. v. Ryan, 293 US 388, 421 (1935);
Schechter Poultry Corp. v. US, 295 US 495 (1935); Fahey v. Mallonee, 332 US 245, 249 (1947)].
- The Courts must construe the statute to avoid constitutional doubt [Clark v. Martinez, 543 US 371, 381-
82 (2005)].
- Congress delegated the power to the US AG to make this law retroactive, violating Separation of
Powers.
- Law must be punitive to violate ex post facto. Smith v. Doe, 538 US 84 (2003) was deeply divided on
the issue, but in light of new evidence laws cause harm, such as homelessness, public ostracism, and
vigilantism, it would be harder for government to claim AWA is not punitive, notification without any risk
assessment threatens public safety, and decision was based on high recidivism myth.
- “When a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims,
there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future
ones.” Smith v. Doe at 109
- To compel the states to pass AWA or lose 10% of the Byrne Funds is coercion and violates the 10th
Amendment [New York v. US, 505 US 144 (1992); Printz v. US, 521 US 898 (1997)]. The 10th
Amendment also prohibits the federal government from enlisting state officials in enforcing federal law
From Amy Baron-Evans & Sara Noonan, “Supplement to Adam Walsh Act- Part I,” Office of Defender Services,
October 2006.
- Federalism: “Police power” is a function of the states, who control their own internal affairs [In re Rahrer, 140
US 545(1891); Kansas v. Mugler, 123 US 623 (1897); State Board of Insurance et al. v. Todd Shipyards
Corp., 370 US 451, 455-58 (1962); see also Executive Order 13132]
Summary of Amy Baron-Evans & Sara Noonan, “Adam Walsh Act- Part III,” Office of Defender Services, October
2006.
- Civil Commitment hearings:
- 5th Amendment privileges suspect no to answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might incriminate him in future proceedings
[Lefkowitz v. Turley, 414 US 70, 77 (1973)]
- a person on supervised release cannot be forced to detail sexual history in treatment without being
given immunity against future prosecution; cannot be forced to submit to a polygraph [US v. Antelope,
395 F. 3d 1128 (9th Cir. 2005)]
- 5th Amendment rights continue through sentencing; silence cannot be used to draw adverse inference,
cannot be compelled to admit facts beyond evidence [Mitchell v. US, 526 US 314 (1999)]
COURT VICTORIES AGAINST THE ADAM WALSH ACT
- US v. Bobby Smith, 481 F. Supp. 2d 846, 2007 (ED Mich., Mar. 8, 2007); US v. Jackson, 480 F. 3d 1014 (9th
Cir. 2007): Ex post facto argument against AG regulation if defendant traveled before July 27, 2006;
provision used word “travels” (future) not “traveled” (past tense)
- US v. Kapp & Duncan, 487 F. Supp. 2d 536 (MD Pa. May 16, 2007); US v. Marvin L. Smith, 2007 WL
1725329 (SD W. Va. June 13, 2007): Offenders could not be tried for violating AWA because Interim rule had
not applied at the time.
- Note: Above cases may be result of “Falcon III” round-up which occurred in 2006, before AWA was
implemented and AG applied interim rule (Jim Kouri, “Marshals, Cops Conduct Largest Fugitive Round
Up in US History.” American Chronicle, Nov. 6, 2006)
- State v. Boyd, 160 Wash. 2d 424, 158 P 3d 54, 59 n. 4 (2007); State ex rel. Tuller v. Crawford, 211 SW 3d
676, 679 (Mo. Ct. App. 2007): Defense access to computer data in child porn cases cannot be restricted
- US v. Comstock et al., Case 5:06-hc-02195-BR [US Dist. Ct. ED N. Car. Sept. 9, 2007)]: Held civil commitment
standards must be “beyond a reasonable doubt” rather than by “clear and convincing evidence.”
- (Evans v. Ohio, CV-08-646797 [Cuyahoga Co. OH, May 9, 2008]) -- Ohio court rules AWA violates ex post
facto, and cannot be applied retroactively
- ACLU v. Masto et. al, Case # 2:08-0822 [So. Dist. NV Sept. 2008] -- In Sept. 2008, a Federal Judge ruled
AWA CANNOT be applied retroactively in Nevada! Kudos the ACLU of Nevada for this permanent injunction!
- Spangler v. State, 2009-Ohio-3178 [11th App. Ct. Ohio, 2009]) -- Ohio's 11th Circuit Court of Appeals rules
Ohio SB 10/ AWA violates the "separation of powers" clause! (I.e., federals laws cannot force the states to
apply certain laws)
- State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424 (June 2010): R.C. 2950.031 and 2950.032 violate
separation of powers by requiring executive branch to reclassify sex offenders already classified by court
order — Only appellate courts are constitutionally permitted to review or modify court judgments — Executive
branch may not reopen final judgments
- State v. Williams, Slip Opinion No. 2011-Ohio-3374 (July 2011): Ruled SORNA cannot be applied
retroactively (i.e., registrants convicted before Jan. 1, 2008)
Timeline of AWA
- July 27, 2006: Signed into law
- February 28, 2007: AG “Interim Rule” deems SORNA retroactive
- May 30, 2007: “SMART” guidelines published for comment
- August 1, 2007: Comment for SMART closed
- July 27, 2008: AG must provide software in all jurisdictions
- July 27, 2009: Deadline for states to implement AWA (Summary of Amy Baron-Evans & Sara Noonan,
“Supplement 2 to Adam Walsh Act- Part II,” Office of Defender Services, October 2006.)
- July 2009: After every state has failed to comply with AWA, the deadline was extended one year
- July 2010: Deadline was extended yet again after very few states were considered compliant
- July 27, 2011: Final deadline for SORNA implementation, further extensions would not be granted. 14 states,
nine tribes and one territory were considered substantially compliant with SORNA's requirements.
CASE STUDY: OHIO
Ohio was the first state to pass the AWA (known as SB 10) during a “special” session due to an “emergency,”
meaning it was a “non-controversial” law which would have “no” resistance. That is not true; like the original AWA,
Ohio SB 10 bypassed normal procedure because they knew the law was unconstitutional, riddled with problems and
facing a number of challenges. The legislature even lied to its constituents by not informing the public of the date
the bill would come up for hearing.
On January 1, 2008, SB 10 took effect. In Hamilton County alone (with an estimated 1950 RSOs), an estimated 800
SOs was added to the 350 SOs registering at the highest level, Tier III. Even the ones who remained a Tier I would
have to register an extra 5 years on top of the 10 they were required to register before SB 10 passed (Sharon
Coolidge, “Sex Offenders face tough rules” Cincinnati Enquirer, Dec. 29, 2007). Many of those offenders who had
reached the date they would no longer have to register received a letter from the Attorney General stating their
duties to register would extend (Memo from Ohio Attorney General, June 29, 2007); the notices were sent out the
day before the Ohio governor signed the bill into law.
Offenders were given 60 days from the time the letter was received to file litigation (though a later federal mandate
allowed an indefinite extension of the deadline, see Doe v. Dann, Case # 1:8-CV-00220-PAG [ND Ohio (Feb. 6,
2008)]). Hundreds of sex offenders across Ohio, most of whom were offenders that reached the end of their
registration periods after the law took effect, filed motions to stop the reclassification under SB 10. As these
hundreds (at last count, over a thousand statewide) of lawsuits reach local courts, these cases were consolidated
into a class action lawsuit. In the 2011 SORNA reauthorization hearing, Amy Borror of the Ohio Public Defender's
Office testified at least 6,300 lawsuits against SB 10 were filed in the months after implementation as the number of
Tier III offenders jumped from about 4,000 to 12,000. The same office reported that Ohio has spent at least $10
million on lawsuits as a result of SB 10. The state, as of February 2012, spends roughly $40,000 per month just to
maintain the online registry.
Ohio's Adam Walsh Act implementation has experienced setbacks in the courts. The June 2010 State v. Bodyke
Ohio Supreme Court decision ruled the AWA violated Separation of Powers. As a result, thousands of individuals
who were reclassified under SB 10 returned to their previous classification, a process taking many months and
court petitions. According to one watchdog site, the Ohio Public Defender's Office reported about 2,300 individuals
were slated to be removed from the registry. In the 2011 legislative session, HB 77 was introduced calling for
"clarification" of the classification systems, but critics view the new bill as a way to circumvent the Bodyke case. The
bill has sat stagnant since introduction. Perhaps they were waiting for the outcome of another pending decision.
The July 2011 decision of State v. Williams struck another blow to SB 10, ruling it violates the retroactivity clause.
COST OF THE ADAM WALSH ACT
Sadly, the best argument to be made against the AWA regards the cost of the bill rather than constitutional
challenges. The AWA could not have come at a worse time for legislators seeking to trim government expenses in
the wake of a recession. The AWA is a costly proposal, and at a time when every dollar counts, it may be wise to
argue the fact that the AWA will cost more to implement than states stand to lose via the 10% cut in the Byrne/ JAG
grant for not implementing AWA.
Since each state has different populations and standards, there is no single formula to determine exactly how much
it would actually cost to implement the AWA. Some factors include how much manpower was put into verifying
residences under the old law, whether or not changes must be made in certain established practices like registries
or community notification laws, or whether or not the AWA would force the state to run programs it has not
implemented on its own, such as civil commitment.
The easy part is showing how much states would lose in Byrne/JAG funding if it refuses to comply with AWA. In
2007, JAG paid out just over $300 million to 50 states, DC, and five US territories. Obviously larger states like Ohio
collected a larger portion of JAG funding. Ohio collected $9.4 million in JAG Funding (www.ojp.usdoj.gov/BJA/grant.
jag.html). However, Congress slashed JAG funding by 70% for 2008. Thus, Ohio should only expect $3 million in
JAG funding in 2008. Thus, by not implementing AWA in 2008, Ohio only stood to lose $300,000 in JAG cuts.
Compare the potential $300,000 in losses to the projected cost of implementing Ohio SB 10 (www.lbo.state.oh.
us/fiscal/fiscalnotes/127ga/SB0010SP.htm). Among the findings of the fiscal report:
- Registry changes: 22,000 sex offenders would be reclassified; one-time cost for altered registry and notifying
offenders of changes and right to appeal, $475,000; recurring online service fee $85,000.
- Incarceration expenses: Expected to cost significantly more due to minimum sentencing, sending more to
prison and keeping them in prison longer; no numerical estimation, but costs were considered “significant”
- Treatment certifications and offender release information: Changes considered of “minimal cost,” which was
defined as “an estimated expenditure increase of less than 100,000 per year for the state.”
- Court cost revenues: Increased number of crimes now felonies, meaning minimal increased revenue for the
Victims of Crime/ Reparation Fund (Fund 402). Gains are minimal, but they make note of the fact collecting
court costs and fines are problematic, because most offenders are unwilling or unable to pay.
- Of added interest was the note the federal government had only $25 million available to assist the 56 total
states and territories in implementing AWA, otherwise the bill was currently unfunded.
There are other costs to consider as well. In Ohio, only Tier III offenders are subject to community notification and
physical verification of addresses by police. In the above report from the Cincinnati Enquirer (Coolidge 2007), 800
more offenders were given higher classification levels, adding administrative costs, manpower, vehicle wear-and-
tear, gas, and officer safety issues. In smaller counties where manpower is at a minimum, resources would be
stretched even further.
Ohio is implementing civil commitment legislation and GPS tracking in a separate bill, which will likely be passed to
comply with AWA title III. Civil commitment legislation was already implemented in 20 states, with reported annual
costs per offender ranging from $41,845 to $166,000 (NY Times, “A Profile of Civil Commitment Across the Country
[chart],” Mar. 3, 2007). As for GPS, AWA merely calls for “pilot programs” rather than implementation. Regardless,
many states are considering GPS, and a few have even passed GPS laws, with the stipulation that offenders must
pay a fee to be on GPS. The counterargument is the same as the repayment of fines, namely, the amount of
offenders unable to pay (mainly due to lack of employment). Another point to consider is the number of false alarms
GPS devices give off due to technological limitations such as satellite position, landmark barriers like tall buildings,
and weather extremes (www.unc.edu/~cahoon/problems.html).
One major issue legislators failed to take into account is the amount of litigation which will stem from passing AWA.
In Ohio, over a thousand offenders have already filed litigation against the state regarding the AWA. Since
reclassification under AWA is a criminal proceeding, the Ohio Office of the Public Defender was allowed to take
indigent cases. Many offenders are increasingly disenfranchised by the increasingly restrictive barrage of laws, and
are more willing to file litigation than in the past. Since many are unemployed, most offenders are going to qualify
for indigent status.
In short, the AWA will cost more to implement than to accept a 10% cut in the JAG. “Implementing the changes
required by the act will cost states a lot of money. At a legislative hearing in Arizona, witnesses testified that the
state would lose between $700,000 and $800,000 in federal law enforcement grants if it didn’t comply with the law –
but that it would cost millions of dollars to expand the state’s sex offender laws to comply with the Adam Walsh Act”
(Sarah Tofte, “Protecting Children from Sexual Violence: Don’t Adopt the Adam Walsh Act.” Sacramento Bee, Jan.
21, 2008). I assume they were using the 2007 JAG allocation; taking the proposed Bush cuts into account, Arizona
only stands to lose a third of their projected losses ($233-$266 thousand).
In September 2008, the Justice Policy Institute released a study which shows the annual cost of implementing
SORNA (the national registry) far exceeds the amount that would be lost in Byrne Grant funding:
"In the last two years, some states have extensively analyzed the financial costs of complying with SORNA. These
states have found that implementing SORNA in their state is far more costly than the penalties for not being in
compliance. JPI’s analysis finds that in all 50 states, the first-year costs of implementing SORNA outweigh the cost
of losing 10 percent of the state’s Byrne Grant. Most of the resources available to states would be devoted to the
administrative maintenance of the registry and notification, rather than targeting known serious offenders.
Registries and notification have not been proven to protect communities from sexual offenses, and may even
distract from more effective approaches.
Given the enormous fiscal costs of implementing SORNA, coupled with the lack of evidence that registries and
notification make communities safer, states should think carefully before committing to comply with SORNA."
Keep in mind this STILL does not include the costs incurred by mandatory minimums, civil commitment, GPS, the
child abuse registry, FALCON operations, and other oppressive provisions of the AWA.
HOW LONG WOULD IT TAKE FOR A STATE TO STAY NON-COMPLIANT IN ORDER TO LOSE THE SAME
AMOUNT OF MONEY IT WOULD TAKE TO IMPLEMENT SORNA?
In July 2009 www.cfcoklahoma.org posed the above question using a simple formula- take the states' proposed cost
of implementing SORNA. Taking into account ex-President Bush's 2/3 JAG cut and using 2006 figures, he
concluded it would take New York roughly 80 years to recover SORNA costs. The formula is below:
[Cost to Implement SORNA] DIVIDED BY [2006 funding divided by 2/3 Bush Cut divided by 10] = Years
There's only one thing -- Obama's "Recovery Act" pumped money into JAG this year, countering Bush's proposed
2/3 cut in JAG. The state of New York got $26.9 million total JAG allocation this year. See below link for each state's
2009 allocations:
www.ojp.usdoj.gov/BJA/grant/09jagallocations.html
So the 10% cut would have been about $2.7 Million. Dividing the $31 million price tag by the $2.7 million is 11.6
years. Still, that's a long time. For Oklahoma, using the same formula, they got $6.4 million for 2009, divide 10% to
get $640,000, divide that into the $5.8 million cost of implementing SORNA, and you get 9 years.
Now, if you could make an estimate how much yearly upkeep would be, you could subtract the number from the
10% JAG figure to get a more accurate depiction of how long it'd take for them to recover. For example, if upkeep of
SORNA was $250k per year for Okie, then $5.8 million divided by ($640k-$250k)= 14.8 years. I'm sure upkeep is
more expensive than that but I'm trying to be conservative.
SO IS THE ADAM WALSH ACT FUNDED?
Technically, the Adam Walsh Act is a "funded" mandate but is so sporadic and woefully underfunded it may as well
be unfunded. In December 2009, eAdvocate reported Obama allocated $353 million for AWA and $519 million in
Byrne Grants, in addition for over $1.1 TRILLION in government spending. Still, not one penny for rehabilitation/
reintegration programs was allocated. While $353 million sounds like a lot of money, keep in mind this money must
be divided between 50 states, 6 territories, 564 recognized Native American Tribes, the US Marshals, the NCMEC,
and the so-called "SMART Office." That is a total of 623 individual entities.
OTHER STATE VIEWS OF THE ADAM WALSH ACT
CONCLUSION
I call the AWA the “unholy grail of sex offender laws” in my book for a reason; the AWA is the most oppressive law
against sex offenders to date. There are numerous problems and potential legal challenges which should lead to
repeal of the AWA. Only 14 states have implemented the law, with a few notable states choosing to reject the law.
The main issues of concern include cost, juvenile registration, the offense-based classification system, and
constitutional issues. A number of court cases have ruled certain provisions of the Adam Walsh Act unconstitutional.
Special thanks to the Office of Defender Services for granting me special permission to summarize the info on their
website. All information from that site is their intellectual property, not mine.
Important Links
|
