Att. Eric Tennen, CJPC Chair 7/10/09
Congress passed the Adam Walsh Act (“Act”) in 2006 in an attempt to bring sweeping changes to how the federal government and the states dealt with sex offenders. The Act included provisions altering federal practice and financial incentives for states to follow suit. The two main areas of reform were registration and civil commitment. Three years later, much of what the Act set out to accomplish has not come to fruition. Instead, legal challenges, impossible standards, and slow responses have resulted in very little practical change. (For a full description of the Act and its predecessor, see Federal Law Regarding Sex Offenders - Major Provisions of the Adam Walsh Act of 2006. As well, in April, 2009, the National Consortium for Justice Information and Statistics surveyed all states regarding compliance with the Walsh Act. The results for the 47 responding states are posted here
The Act attempted to establish a federal sex offender registry, to criminalize failure to register after moving across state lines, and mandated that states change their registries (or create one if they did not already have a registry) to conform with the federal registry. As of today, there still is no national registry. Persons on probation for federal sex offenses are required to “register” with their probation officer, but their names are not placed in any registry. Additionally, the government has yet to coordinate the state registries with the non-existent national registry.
The ultimate goal of the national registry was to have one-stop shopping. Anyone in the country would be able to look up any sex offender anywhere else through an online database. That database would be composed of the 50 state registries and federal registry. In most states, the Act broadened the number of persons required to register. Moreover, it took away any discretion in classifying offenders by level of danger. Instead of states having the discretion of who to classify, and whether to make their information public, the Act mandated everyone convicted of a sex offense according to the laws in effect in each state be put on-line. Before, some states, like Massachusetts, retained the discretion of whether to include certain people on the registry, such as juveniles or those who posed no risk to the public. The Act eliminated that by making the fact of a conviction the sole requirement for registration. The only state-to-state difference would be the amount of time someone would remain on the registry.
No state has yet been able to comply with the strict requirements the Act set up. One issue is money; California, Florida, Nevada, Maine, Vermont, West Virginia and Oregon cannot afford to do what the government requires. The penalty for not complying is the loss of 10% of certain federal grants. The cost of compliance, however, is often much more--a large state like California would need to create an infrastructure to deal with the requirements by hiring many more personnel, would need to create and maintain the technology to support the database, and would likely experience increased prosecutions. For some states, especially in these economic times, compliance is not likely in their future.
Other states have repeatedly tried to comply. Some states like Louisiana and Oklahoma, believed they were compliant, and sought certification. Yet, as of today, not one state has yet been certified by the U.S. Attorney General as compliant with the registration requirements of the Act. Additionally, all states were given the option to opt out of the registration requirements if their state constitutions prohibited them from complying with the federal regulations. Massachusetts is one state that will likely seek to opt out for constitutional reasons. The MA Supreme Judicial Court has held (Doe v. Attorney General, 426 Mass 136; 1997) that the MA Constitution prohibits internet dissemination of information about persons who do not present a high risk to reoffend. The Constitution also requires individualized hearings before someone’s information can be published to the public. These two rights alone would be enough to assure Massachusetts would never be able to comply with the Act. Certainly, Massachusetts is not alone; Pennsylvania is one of several states which don’t allow juvenile registration.
Accordingly, there is no national registry today and no registry likely to come any time soon. Moreover, even if some states manage to comply with the strict requirements, there are still states that would not, either for financial or legal reasons. If that happens, then there would never truly be a national registry and the underlying purpose of the Act would be frustrated. Congress has held some follow up hearings (see Implementing the Adam Walsh Act: Request for a Delay since the passage of the Act in order to determine whether to relax requirements or scrap the idea altogether. As of now, nothing has emerged. However, if it becomes apparent that a national registry is simply impractical, Congress may reconsider the entire federal registry.
(The U.S. Department of Justice website currently has a “National Sex Offender Public Website”, an ad- hoc amalgam of the currently existing state websites. It thereby has no consistent qualifications for listing- some states place all sex offenders on their individual sites, while other states only place level 3 offenders. As well, each state has its own criteria for classifying sex offenders within the levels. And of course, what is an offense in one state may well not be an offense in another, as, for example, concerning the age of consent, which varies among the states from 14 to 18.)
The Act also created a federal civil commitment scheme and added incentives for states to do the same. Civil commitment of “sexually dangerous persons” became widely used in the 1990’s, as states sought a solution to the perceived problem of sexual offenders recidivating. Such civil commitment, pursuant to a judicial hearing, commenced after the completion of the sentence for the sex crime; theoretically the commitment would be to an institution other than a prison. Many states, including Massachusetts, now have the power to civilly commit someone for one day to life if they are found to be sexually dangerous--that is, they are highly likely to reoffend if released. The person can only be released if they are no longer dangerous, presumably after undertaking an extensive treatment regimen or if some other life altering event changes their risk.
The Act gave the federal government the power to civilly commit persons who were in federal custody. The Act was not limited to persons in custody for sex offenses, but also included persons who simply had a history of sex offenses (federal or state). Like the registration requirements, this component of the Act has been largely unsuccessful. As of today, there is only one person who has been civilly committed (U.S. v Shields, 07-cv-12056; J. Saris). Courts have either found this part of the Act unconstitutional or found the government’s petition lacked merit.
A federal facility in Butner, North Carolina is the prison with the most sex offenders in Federal custody. The facility is the home of the federal sex offender treatment program.. After the Act was passed, that facility became the primary institution for housing persons being considered for civil commitment. It is also intended to house anyone actually committed. However, .the district court in Butner ruled that the federal civil commitment statute is unconstitutional--it went beyond the enumerated powers of the federal government. The government appealed and the 4th Circuit Court agreed with the district court, also ruling that the Act was unconstitutional. The Supreme Court has agreed to hear the case and will ultimately decide the fate of federal civil commitment. If the Court upholds the lower courts’ decisions, federal civil commitment will have been a failed experiment. If they reverse, then the government can finally begin the long process of holding these hearings.
In the time it has taken to mount these legal challenges, almost 70 persons have been transferred to Butner for evaluation and commitment. However, because the Act’s future is uncertain, these men are essentially being held after the conclusion of their sentence in violation of their civil liberties. Some are transferred before their sentence expires, but because of the backlog of cases, those men remain imprisoned after completion of their sentences, waiting to see if the government can legally commit them. If the Supreme Court upholds the Act’s constitutionality, then each of these 70 men will have to line up for their day in court to determine if the government may civilly commit him, given the particulars of each person’s case. It could be years before the courts catch up with this backlog.
Meanwhile, there have been several scattered rulings from other jurisdictions concerning this portion of the Act. Before the government decided to funnel all commitment hearings through Butner, several district United States Attorneys’ offices had petitioned for civil commitment in specific cases. Massachusetts had the most petitions, about 10. There were also petitions in Oklahoma, Minnesota, and Hawaii. The several district courts split on the constitutionality of the Act. In Massachusetts alone, two judges held it was unconstitutional while two upheld the Act; the act was upheld in Hawaii and Oklahoma but invalidated in Minnesota. None of this matters now since the Supreme Court has agreed to decide whether the act is actually constitutional.
In the meantime, for the courts that upheld the act, many have now heard cases on the merits. Yet, only one person, in Massachusetts (see above), has been found “dangerous” after a hearing. Every other case on the merits has resulted in a ruling in favor of the defendant. Thus, three years after the Act’s passage, it has resulted in the civil commitment of just one person nationally.
Unlike the national registry, the fate of the federal civil commitment is not based on financial considerations. Either this part of the Act is or is not constitutional. If it is not, then there can be no Federal civil commitment. If it is, the government will begin to hold hearings in Butner to try and commit the persons it believes are dangerous. What is certain, however, is that the process will be long as the backlog of persons potentially subject to civil commitment continues to grow.
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