Adam Walsh Child Protection and Safety Act

The Adam Walsh Child Protection and Safety Act (Pub. L.Tooltip Public Law (United States) 109–248 (text) (PDF)) was signed into law by U.S. President George W. Bush on July 27, 2006. The legislation organizes sex offenders into three tiers, and mandates that Tier 3 offenders (the most serious tier) update their whereabouts every three months. Failure to register and update information is made a felony under the law. It also creates a national sex offender registry and instructs each state and territory to apply identical criteria for posting offender data on the Internet (i.e., offender's name, address, date of birth, place of employment, photograph, etc.).

The sex-offender registry portion of this act has been ruled unconstitutional by Federal judge Gregory Presnell in Orlando, FL on April 18th 2008. Judge Presnell handed down United States v. Powers, The court held that there was no rational relationship between the regulation of interstate commerece under the Commerce Clause powers of Congress and the ostensible federal interest in registering offenders convicted of state sex crimes. opinion

History

The bill was sponsored by Congressman James Sensenbrenner (R-WI) in the US House of Representatives and moved to final passage over a two-year period. It had been sent to the Senate in 2005 as H.R. 3132 and had 88 co-sponsors, including Mark Foley (R-FL), who had originally introduced the House bill, and co-sponsor Rep. Bud Cramer (D-AL). The Senate bill passed on July 20, 2006 with an amendment and amendment to the title. Senate co-sponsors John Kerry (D-MA) and Johnny Isakson (R-GA) dubbed the bill Masha's Law. This came from a child of that name adopted from Russia by a man who had specifically requested a four- or five-year-old and proceeded to molest her for five years before she was removed from his home.

At the time of passage, at least 100,000 of more than a half million sex offenders in the United States and the District of Columbia were 'missing' and unregistered as required by law. Law enforcement did not know where they were and could not warn communities about them. This situation posed an enormous challenge for law enforcement and caused fear among the people . More federal funding was wanted to assist states in maintaining and improving these programs so a comprehensive system for tracking sex offenders and alerting communities would be developed.

The Adam Walsh Child Protection and Safety Act was signed on the 25th anniversary of the abduction of Adam Walsh from a shopping mall in Florida. Adam Walsh was found murdered 16 days after his abduction, and the perpetrator of the crime has yet to be found. Adam Walsh's father is John Walsh, host of the television series America's Most Wanted. John Walsh, also founder of the National Center for Missing and Exploited Children (NCMEC), was joined by other children's advocates to mount an aggressive campaign to get the bill passed into law. As part of the campaign, Walsh was joined by Congressman Sensenbrenner, representatives from the NCMEC, and other victims' advocates and parents. These included Patty Wetterling, children's advocate from Minnesota and mother of missing child Jacob Wetterling, abducted in October 1989; Mark Lunsford, whose daughter Jessica was killed in Florida in 2005; Linda Walker, the mother of North Dakota college student Dru Sjodin who was kidnapped and murdered by a released Minnesota sex offender in November 2003; and Erin Runnion, whose five-year-old daughter Samantha Runnion was raped and killed in California in 2002.

Some criticized the law for over-breadth, for applying retroactively, and for demonizing people who had been convicted of what are in many cases non-violent offenses.

Legal applications

• Gives the U.S. Attorney General the authority to apply the law retroactively (cf. ex post facto law).
• Establishes a national database which will incorporate the use of DNA evidence collection and DNA registry and tracking of convicted sex offenders with Global Positioning System technology.
• The law defines and requires a three-tier classification system for sex offenders, based on offense committed, replacing the older system based on risk of re-offence.
• Tier 1 sex offenders are required to register for 15 years; tier 2 for 25 years and tier 3 offenders must register for life.
• Increases the mandatory minimum incarceration period of 25 years for kidnapping or maiming a child and 30 years for sex with a child younger than 12 or for sexually assaulting a child between 13 and 17 years old.
• Increases the penalties for sex trafficking of children and child prostitution.
• Widens federal funding to assist local law enforcement in tracking sexual exploitation of minors on the Internet.
• Creates a National Child Abuse Registry to protect children from being adopted by convicted child abusers.

Arguments against

As stated by New York Law School Professor Arthur S. Leonard "In this case, Congress has seized upon the national hysteria surrounding sex offenders who serve their time and then are released back into the community, where some commit new sex offenses, and so came upon the idea of authorizing federal authorities to initiate steps to keep sex offenders in custody after their prison terms are up, on the grounds that they present a danger to society if released. This subverts the idea of determinate sentencing, of course, and seems to say that if a hearing officer is persuaded that somebody presents a danger of sexually offending in the future, they can be locked up and the key thrown away, regardless whether any past offense would have justified a life sentence." Generally, we prohibit depriving somebody of their liberty unless there is proof beyond reasonable doubt that they have committed a (new) crime, but this statute allows us to deprive them of their liberty even though we don't have proof beyond reasonable doubt of anything.

Effects

Since its enactment, the Adam Walsh Act (AWA) has come under intense grassroots scrutiny for its far-reaching scope and breadth. Even before any state adopted AWA, several sex offenders were prosecuted under its regulations. This has resulted in one life sentence for failure to register, due to the offender being homeless and not being able to maintain a physical address.[1]

Influence on visa process

A collateral effect of the new legislation was its implications on the United States Permanent Resident Card process. Until January 2007, U.S. nationals living abroad who married a local and intended to obtain green cards for their spouse and any immediate family members were able to initiate and complete the majority of the application process at the local U.S. Embassy/Consulate. However, because of the newly enhanced background check and criminal history data trail requirements, the new law had initially been interpreted by the Bureau of Consular Affairs and USCIS as leaving Consular officers ill-equipped to fully handle the I-130 adjucation process. Thus, as of January 2007 I-130 petitions, supporting documentation, or fee payments could no longer be completed in the country of the foreign national.

However, the government made a quick about-face two months later. Due to a significant number of complaints from applicants about the resultant processing delays and from immigration officials about the deluge of paperwork that came with the centralization of the process, the visa petitioning process for immediate relatives of US citizens was resumed at U.S. embassies on March 21, 2007. However, all embassies were required to add a 6 month residency requirement for the US Citizen to file an application directly.

The Act also for the first time limits the rights of citizens or permanent residents to petition to immigrate their spouse or other relatives to the U.S. if the petitioner has a listed child sex abuse conviction. If that is the case, then the petition cannot be approved unless the Department of Homeland Security determines in its unreviewable discretion that there is no risk of harm to the beneficiary or derivative beneficiary.

The Federal Record Keeping and Labeling Requirements Laws have been attached to this bill (18 USC 2257). This will require secondary producers to be responsible for the record keeping procedures primary producers gather when they produce pornography.

See also

• National Center for Missing and Exploited Children
• Senate Caucus on Missing, Exploited and Runaway Children
• House Caucus on Missing and Exploited Children