The Adam Walsh Act: The Scarlet Letter of the Twenty-First Century

2008

Reforming sex offender laws will not be easy. At a time when national polls indicate that Americans fear sex offenders more than terrorists, legislators will have to show they have the intelligence and courage to create a society that is safe yet still protects the human rights of everyone.1

I. INTRODUCTION
Police arrested Evan B.,2 a high school student in Salina, Oklahoma, for exposing himself to several female students on his way to the restroom.3 Although Evan’s mother told the local media her son’s behavior was just a “high school thing,” a court charged Evan with indecent exposure, and Evan served four months in prison before receiving a five-year suspended sentence and community service.4 Additionally, his “high school thing” required him to register as a sex offender in Oklahoma.5

Unfortunately, the stigma of being a registered sex offender propelled Evan’s life into a downward spiral, driving him out of his community and away from his family.6 After dropping out of school and moving to Tulsa, Evan struggled to find and maintain employment.7 Less than a year later, Evan committed suicide.8 He shot himself only one month shy of his twentieth birthday.9

According to his mother, it seemed like Evan stopped caring about school and his future after the incident and his sentencing.10 To her, Evan was a normal kid, but registering as a sex offender turned his life upside down.11 She believed that “some considerations should be given to sex offender registration requirements when the charge stems from a nonviolent act.”12

In recent years, the words “sex offender” have transformed into a loosely and frequently used term.13 Congress and state legislatures have enacted sex offender laws because of highly publicized, horrific crimes, particularly those committed against children.14 As federal and state governments introduce stricter punishments, requirements, and prohibitions for sex offenders, the offenders become branded by the negative stigma associated with their status.15 While many sex offenders commit heinous crimes, experts and officials question whether the strict laws imposed against all sex offenders, including non-violent offenders like Evan B., actually increase the safety of those the laws seek to protect.16

This Note will argue that the most recent development in this area of law, the Adam Walsh Child Protection and Safety Act of 2006 (AWA), contains over-inclusive sex offender registration requirements and punishments. Implementation of the AWA will undoubtedly cause problems for state governments, law enforcement, non-violent sex offenders, and citizens, both as taxpayers and intended beneficiaries of the AWA. Specifically, the AWA is an unfunded mandate that places severe and unfair registration requirements and punishments on sex offenders, and requires offenders to register without distinguishing between violent and non-violent offenders or evaluating the likelihood of recidivism.

Part II of this Note examines the development of sex offender registration requirements in the federal and state governments. It addresses the transformation from the initial freedom left with the states to determine their own standards to the recent, more expansive, and mandatory federal requirements under the AWA. Part III of this Note discusses the purpose of the sex offender requirements under the AWA and reasons why the AWA’s over-inclusiveness hinders achievement of that purpose. Part IV concludes with a call for reform of the AWA, in order to better achieve the AWA’s purpose.

..The rest of the paper.. by Lara Geer Farley, B.A. 2005, Wichita State University; J.D. Candidate 2008, Washburn University School of Law. I thank Professor and Capital Appellate Defender Rebecca Woodman for her vast knowledge and insightful advice regarding the direction and information of this note. I thank the Washburn Law Journal Editorial Board, especially Brooke Hesler, Laurel Klein Searles, and Tim Hurley, for their endless patience, efforts, and assistance throughout the entire writing process. I thank my family for the opportunities and experiences they have given me, and I am especially grateful to my grandparents for their love and guidance throughout my life.