The Adam Walsh Act Study Guide
Derek “The Fallen One” Logue
January 28, 2008 (Last Update November 13, 2013)

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 November 13, 2013, 17 states, 57 Native American
tribes, and 3 US Territories
have become "substantially" compliant with the AWA:

STATES COMPLIANT WITH AWA'S SORNA PROVISION AS OF Sept. 27, 2012:

  1. Ohio - 09/30/2009
  2. Delaware -05/03/2010
  3. Florida -05/18/2010
  4. South Dakota - 10/15/2010
  5. Michigan - 05/12/2011
  6. Nevada - 05/12/2011
  7. Wyoming - 05/12/2011
  8. Louisiana - 07/07/2011
  9. Alabama - 07/27/2011
  10. Kansas - 07/27/2011 (Possibly reconsidering)
  11. Maryland - 07/27/2011
  12. Mississippi - 07/27/2011
  13. Missouri - 07/27/2011 (though they may renege on that compliance)
  14. South Carolina - 07/27/2011
  15. Tennessee - 09/29/2011
  16. Pennsylvania - 12/20/2011
  17. Colorado - 11/13/2013

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)

  1. Absentee-Shawnee Tribe of Oklahoma
  2. Bay Mills Indian Community
  3. Bois Forte Band of Chippewa
  4. Cherokee Nation
  5. Chickasaw Nation
  6. Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation
  7. Chitimacha Tribe of Louisiana
  8. Colorado River Indian Tribe
  9. Comanche Nation
  10. Confederated Tribes of the Umatilla Indian Reservation
  11. Confederated Tribes of Warm Springs
  12. Confederated Tribes and Bands of the Yakama Nation
  13. Fort McDowell Yavapai Tribal Council
  14. Gila River Indian Community
  15. Grand Traverse Band of Ottawa and Chippewa Indians
  16. Hannahville Indian Community
  17. Iowa Tribe of Kansas and Nebraska
  18. Iowa Tribe of Oklahoma
  19. Jicarilla Apache Nation
  20. Kalispel Tribe of Indians
  21. Kaw Nation
  22. Keweenaw Bay Indian Community
  23. Kickapoo Tribe of Oklahoma
  24. Kootenai Tribe of Idaho
  25. Little Traverse Bay Bands of Odawa Indians
  26. Lower Elwha Klallam Tribe
  27. Menominee Indian Tribe of Wisconsin
  28. Miami Tribe of Oklahoma
  29. Miccosukee Tribe of Indians of Florida
  30. Mississippi Band of Choctaw Indians
  31. Muscogee (Creek) Nation
  32. Nottawaseppi Huron Band of the Potawatomi
  33. Ohkay Owingeh
  34. Omaha Tribe of Nebraska
  35. Osage Nation
  36. Pascua Yaqui Tribe
  37. Poarch Band of Creek Indians
  38. Prairie Band Potawatomi Nation
  39. Pueblo of Acoma
  40. Pueblo of Isleta
  41. Pueblo of Santa Ana
  42. Quinault Indian Nation
  43. Sac & Fox of the Mississippi in Iowa (Meskwaki)
  44. Salt River Pima-Maricopa Indian Community
  45. Santee Sioux Nation
  46. Sault Ste. Marie Tribe of Chippewa Indians of Michigan
  47. Seminole Nation of Oklahoma
  48. Shoshone-Bannock Tribes
  49. Shoshone-Paiute Tribes of the Duck Valley Indian Reservation
  50. Skokomish Indian Tribe
  51. Southern Ute Indian Tribe
  52. Tohono O’odham Nation
  53. United Keetoowah Band of Cherokee Indians in Oklahoma
  54. Upper Skagit Indian Tribe
  55. Washoe Tribe of Nevada and California
  56. Winnebago Tribe of Nebraska
  57. Wyandotte Nation

US TERRITORIES COMPLIANT WITH AWA'S SORNA PROVISION:

  • Guam
  • US Virgin Islands
  • Commonwealth of the Northern Mariana Islands

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.

  • Mandatory minimums:
  1. 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
  2. Equal Protection: Challenge on grounds of failing “rational basis test;” laws tend to be disproportionately
    used against minorities
  3. 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);
  4. 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?
  5. Argument is the mandatory nature
  • Statute of Limitations removed for felony sex cases
  1. 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])
  2. 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
  3. 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)
  1. 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]).
  2. 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
  1. “No discovery” provision is unconstitutional (Westerfield v. Superior Court, 121 Cal. Rptr. 2d 402, 404-05
    [Cal. App. Ct. 02]).
  2. 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]).).
  3. 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])
  4. 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]).
  5. 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]).
  6. 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).
  • Treatment and Management
  1. Management is NOT the same as treatment; management is merely supervision
  2. Treatment programs require participants to admit guilt (and other sexual misconduct) in order to start,
    which those in appeal cannot do
  • Civil Commitment
  1. 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
  2. 18 USC Sec. 4241 (a): AWA allows predator hearing anytime between sentencing and release
  • Victim Rights
  1. 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

  • Due Process
  1. 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
  2. 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
  1. 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)].
  2. 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.
  • Separation of Powers
  1. 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)].
  2. 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)].
  3. The Courts must construe the statute to avoid constitutional doubt [Clark v. Martinez, 543 US 371, 381-82
    (2005)].
  • Retroactivity
  1. Congress delegated the power to the US AG to make this law retroactive, violating Separation of Powers.
  2. 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.
  3. “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
  • Jurisdiction
  1. 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:
  1. 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)]
  2. 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)]
  3. 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

AWA Brochure available for download courtesy of Once Fallen and wwww.sosen.org!  CLICK HERE TO DOWLOAD A COPY!
(c) 2007-2012 Derek  W. Logue. No part of this website may be used in any way without expressed written consent of the site owner.