Understanding the Adam Walsh Act Titles: Facts, Myths, Misconceptions and Misconstructions

3-24-2010 National:

UPDATES: As changes are made, they will be followed by ADDED: MM-DD

A little background on the Adam Walsh Act (AWA) may help those who are making claims about it, many of which are simply incorrect. Far to many folks -including professionals and lawyers- have not taken the time to study the act and that has resulted in many misunderstandings and misconstructions of the act.

The following review of AWA is based on the verbatim wording of AWA (As passed by Congress in 2006: HR-4472), and not on how any state may have enacted it, later in time states could be reviewed, but states are constantly changing laws, so any effort would be a fruitless effort, so for today:

The Act (AWA) is made up of 7 titles:

TITLE I--SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

TITLE II--FEDERAL CRIMINAL LAW ENHANCEMENTS NEEDED TO PROTECT CHILDREN FROM SEXUAL ATTACKS AND OTHER VIOLENT CRIMES

TITLE III--CIVIL COMMITMENT OF DANGEROUS SEX OFFENDERS

TITLE IV--IMMIGRATION LAW REFORMS TO PREVENT SEX OFFENDERS FROM ABUSING CHILDREN

TITLE V--CHILD PORNOGRAPHY PREVENTION

TITLE VI--GRANTS, STUDIES, AND PROGRAMS FOR CHILDREN AND COMMUNITY SAFETY

TITLE VII--INTERNET SAFETY ACT

Each title addresses different topics.

Title I: Better known by its acronym SORNA. This subtitle sets forth parameters for state legislatures which they are to use to conform state laws to the will of Congress. The intent of Congress is that all states should have the same sex offender registration laws, or as close as possible without violating a state's constitution or other state laws.

Title II: The enhanced punishment section, and makes changes to existing FEDERAL laws. Many federal punishment laws are lengthened and mandatory minimums established. This section also establishes the death penalty for murdering a victim.

Title III: Tries to establish a FEDERAL civil commitment center similar to what 20 states currently have. This also makes grants available for states to do the same, establish civil commitment centers.

Title IV: Handles FEDERAL immigration laws and issues related to sex offenders and sex offenses.

Title V: Establishes new FEDERAL laws prohibiting child pornography and provides penalties for child pornography.

Title VI: Establishes grants to support studies and various parts of the Adam Walsh Act (AWA).

Title VII A separate title addressing sex offenders and sex offenses related to the Internet. And, specific idiosyncrasies of the Internet which may mislead minors. Also established FEDERAL punishments, and enhanced existing FEDERAL punishments, for Internet violations. This title also provides for additional FEDERAL personnel to monitor and prosecute Internet offenses.

Facts, Myths, Misconceptions and Misconstructions about the Adam Walsh Act:

-- Some folks claim: That AWA is a Ex Post Facto law, or, that AWA is a retroactive law. This generally stems from a misunderstanding of the Titles of AWA and failing to distinguish between AWA and SORNA.

-- AWA is not SORNA, SORNA is one title within AWA. Further, the United States Attorney General (USAG) did make a rule to apply SORNA retroactively to all former sex offenders, but the rule did not extend to other titles within AWA.

-- A law (referencing SORNA here) applied retroactively is not necessarily an ex post facto law, it could be to some, and not to others. One must review the facts of each case individually to determine if ex post facto issues are present.

-- Some Internet folks claim AWA is an ex post facto law, that is an erroneous belief, because AWA (the full law, all 7 titles) was not made retroactive, only one title within it (SORNA) was made retroactive.

-- Many folks believe SORNA is a FEDERAL law that DIRECTLY controls ALL sex offenders (i.e., law they must follow). Such is incorrect, SORNA is a set of parameters for state legislatures to use to conform their laws to, not a law which state registrants must follow. However, with that said, once state legislatures conform their state laws to SORNA parameters, it is those state laws which operates DIRECTLY on sex offenders and mandates their compliance. (Note: My construction here will appear to conflict with current court constructions, but soon, in another commentary, my belief will be explained in detail with proof found directly in SORNA)

Most egregious findings within AWA and SORNA:

-- TERM of REGISTRATION (TOR): For a minute ignore that the term is being set and adjusted by the built in classification system. First, earlier state sex offender laws established the TOR. SORNA comes along and changes the TOR -and- there is no built in assurance that, in the future, the TOR will not be changed again by some future law. Second, given that SORNA has been made retroactive, many folks have already gone past the TOR set for them by SORNA. Problem, SORNA starts the TOR all over ignoring past time spent on a state registry. For most TOR will be for a lifetime because of the failure to cap TOR in some way. ADDED: 3-27.

-- Hidden within SORNA (subtitle-B [Sec. 141]) is, a FEDERAL law which prohibits sex offenders from crossing state lines without re-registering. What makes this so egregious, is that, NO registrant of any state registry is told about this HIDDEN FEDERAL law. This clearly affects registrants constitutional right to travel. Further, clearly entrapment of registrants was the reasoning behind hiding it and not NOTIFYING registrants of it!

-- The above hidden FEDERAL law is used as a -jurisdictional hook- to get offenders into FEDERAL courts for prosecution. Once in federal court, and if convicted, offenders will serve their time in the FEDERAL Bureau of Prisons. All sex offenders (and possibly other offenders) nearing the end of their FEDERAL sentence will be reviewed for a possible civil commitment hearing, and that could result in them being held indefinitely in a civil commitment center (a lifetime commitment for treatment which is a ruse to hold them forever).

-- That SORNA was made retroactive to the beginning of time. This includes SORNA (subtitle-A) and SORNA (subtitle-B re: crossing of state lines). Further, allowing the USAG (an administrative employee) to make the rule retroactive, effectively overturns U.S. Supreme court rulings on many issues, for instance:

CALDER v. BULL 8-1-1798 Question:
This is the source of all ex post facto cases: The court holding a law is a ex post facto violation if any of the following have occurred:

1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

-- The failure of SORNA to recognize state judicial decisions and state laws affecting registrants and their duty, to register or not register, -AND- SORNA only recognizing state supreme court decision on those issues. This clearly will raise new ex post facto claims, and so it should!

Some related court constructions:

-- Smith -v- Doe Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4—18. Hence, such laws are civil and regulatory.

SNIP FROM DECISION: "The Court of Appeals reasoned that the requirement of periodic updates imposed an affirmative disability. In reaching this conclusion, the Court of Appeals was under a misapprehension, albeit one created by the State itself during the argument below, that the offender had to update the registry in person. Id., at 984, n. 4. The State’s representation was erroneous. The Alaska statute, on its face, does not require these updates to be made in person. And, as respondents conceded at the oral argument before us, the record contains no indication that an in-person appearance requirement has been imposed on any sex offender subject to the Act. Tr. of Oral Arg. 26—28."

The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint imposed. 259 F.3d, at 987. This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally Johnson v. United States, 529 U.S. 694 (2000); Griffin v. Wisconsin, 483 U.S. 868 (1987). By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause.

-- Connecticut Dep't of Public Safety -v- Doe Held: Connecticut has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.

-- A review of the only two sex offender registration cases to reach the U.S. Supreme court in 2003 will show that, the laws then and the laws today are worlds apart, with today (AWA/SORNA) being far more insidious with unending collateral attachments, clearly making the laws further punishment. However, until a proper case can reach the court all registrants are being held captive by lawmakers and their political -sounds good- laws which erode the lives of registrants and their families.

-- As to court holding that registration laws are civil and regulatory, so far, only state registration laws have been so tested in courts. SORNA has not yet, been tested and declared civil and regulatory because only Ohio has PARTIALLY enacted SORNA. Remember, the SMART Office has only held that, Ohio is in substantial compliance. Substantial is not verbatim! Proof that Ohio has not enacted SORNA verbatim? Has anyone found the following in Ohio's enactment:

SORNA: SEC. 118. PUBLIC ACCESS TO SEX OFFENDER INFORMATION THROUGH THE INTERNET.
(a) In General- Except as provided in this section, each jurisdiction shall make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all information about each sex offender in the registry. .....

(e) Correction of Errors- The site shall include instructions on how to seek correction of information that an individual contends is erroneous.

(f) Warning- The site shall include a warning that information on the site should not be used to unlawfully injure, harass, or commit a crime against any individual named in the registry or residing or working at any reported address. The warning shall note that any such action could result in civil or criminal penalties.

Note: This will be updated as new things are reported, uncovered, or new constructions revealed. Further, nothing omitted here should be construed to mean either: A) I believe it is true, or; B) That I believe it is untrue, it should only be construed that, I have not mentioned it or it hasn't been reported or thought of yet.

Finally, nothing here should be considered to be legal advice, only a lawyer can provide that, so see a local lawyer with your thoughts. Then pass on anything helpful to other folks and we will post it. The intent here is that this is a thought provoking educational piece of observations of many folks.


See Related:

Is the Adam Walsh Act entrapping registrants of state registries?

Part-2: Did Congress Intend to Entrap Registrants?

Have a great day & a better tomorrow,
eAdvocate