A Decade of Devastation: Ten Years of the Adam Walsh Act
Derek W. Logue of OnceFallen.com
27 July 2016; Last update 15 Oct. 2023

INTRODUCTION

Ten years after George Bush signed the so-called “Adam Walsh Child Protection and Safety Act” (Adam Walsh Act or AWA for short) into law, the AWA remains a controversial law. In fact, two-thirds of states have yet to come into “substantial compliance” with the AWA, and the states that have adopted AWA provisions have endured many hardships related to the Act. The Act continues to be a largely unfunded mandate, with the cost of implementation still far outweighing the loss of federal Byrne/ JAG funds for failing to comply. In addition, issues with state and tribal sovereignty, inclusion of juveniles on the registry, and retroactivity still plague this controversial piece of public policy. The AWA was promoted as a sort of universal minimum standard, but registration laws in AWA states still vary greatly and are possibly even more confusing. State like Ohio and Nevada continue to act as battlegrounds for the AWA. This article examines the decade-long history and the controversies surrounding the implementation and enforcement of the AWA.

EVOLUTION OF THE ADAM WALSH ACT

Origins of the AWA: 2005

The bill that became known as the “Adam Walsh Act” began life as a series of separate bills introduced in the Second Quarter of 2005.

On May 18, 2005, Rep. Mark Foley introduced HR 2423 [1], which was given the title, “`Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification Act,” and shortened even further to the “Sex Offender Registration and Notification Act.” The House bill would have required all on supervision to be subject to GPS (sec. 104), as well as a creation of a national database for both registered citizens and DNA. The senate Bill (sec. 110) would have required mandatory “sexual predator” hearings under a “board composed of experts in the behavior and treatment of sex offenders, victims’ rights advocates, and representatives of law enforcement agencies.”

On May 19, 2005, Senator Orrin Hatch introduced S. 1086 [2],  which was given the title “Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification Act,” and shortened even further to the “Sex Offender Registration and Notification Act.” Essentially, it was the same bill at HR 2423. As Hatch introduced the bill, he declared we were in “a battle to save our children, their families, and the victims, of repeat sex offenders… We need legislation that will close the gaps in many laws already on the books; integrate and revive the existing laws; and expand covered offenses against children.” Hatch declared his bill would “strengthen and unite cities, communities and states in the effort to stop the assault on American children. This bill has a companion bill in the House, sponsored by Congressman MARK FOLEY and Congressman BUD CRAMER. I invite you to join Senator Biden and me as we close the gaping holes that keep our children at risk. ” [3]

On May 25, 2005, Rep. Foley rose before the House to recognize  “Missing Children’s Day,” and promote HR 2423. He stated that, “Every day over 2,000 children go missing,” and, “There are over 500,000 registered sex offenders in this country, and 150,000 of them are missing. Now we hear that Medicare may be giving them Viagra. How disgusting. How sad. How sick. We have to stop playing Russian roulette with our children. Last week, the gentleman from Alabama (Mr. Cramer), my cochairman, and I, along with Senators Hatch and Biden, introduced the Sex Offender Registration Notification Act. I urge my colleagues in the House to work with the gentleman from Wisconsin (Mr. Sensenbrenner) in passing this important bill.” [4]

While HR 2423 progressed no further than the Subcommittee on Crime, Terrorism, and Homeland Security (the last noted action was on June 9, 2005), S.1086 would continue on to the Committee on the Judiciary but would not advance again until October.  

On June 30, 2005, Rep. Mark Foley introduced HR 3133, known as the  “Sex Offender Registration and Notification Act.” [5] This bill dealt simply with registration-related issues, including in-person registration (Sec. 106), but introduced many of the provisions later incorporated into the Adam Walsh Act, including the role of the US Marshals in investigating suspected “Failure To Register” (FTR) cases (Sec. 202), immunity for “good faith” for law enforcement (sec. 114) and the NCMEC (Sec. 122), and the introduction of a “Established a Sex Offender Management Assistance (SOMA)” (Sec. 119). It also added a sentence enhancement for “Use of any controlled substance to facilitate sex offense.” (Sec. 2249). The same day, Rep. James Sensenbrenner introduced HR 3132, also known as the “Children’s Safety Act of 2005.” It included many of the recommendations of HR 3133, but HR 3132 added increased penalties for a number of sex offenses (See Titles IV and V) and added provisions for civil commitment (Sec. 511).

While Foley’s HR 3133 never left committee, Sensenbrenner’s HR 3132 advanced to the Senate floor by September 2005. On September 13, 2005, Rep. Phil Gringley passed H.RES.436 [6] to advance HR 3132 to the Senate Floor. On September 14, 2005, a number of amendments were proposed, mostly mundane suggestions such as name changes, allocation of funds, and study proposals, but two amendments seeking to remove “mandatory minimums” for certain crimes—one by Rep. Bob Inglis  [7] and one by Rep. Bobby Scott. [8] Both amendments failed. Rep. John Coyers added an Amendment, which passed by the relatively narrow margin of 223-199, which “provides for inclusion of gender and crimes committed by and directed against juveniles for coverage under the Hate Crime Statistics Act.” [9] Ultimately, the bill passed the Senate 371-52. [10] It was read the next day but no further action occurred on this bill. [11]

A writer for DailyKos offers an explanation why the bill did not progress further: 

“H.R. 3132 died in the Senate when Senator Bill Frist (R-TN) removed its equivalent, sister bill S. 1086, from consideration due to attempt by Senator Ted Kennedy (D-MA) to add a hate crime amendment. (S. 1086 also proposed to improve the national program to register and monitor individuals who commit crimes against children or sex offenses).” [12] On December 8, 2005, Rep. Sensenbrenner introduced HR 4472, then called the “Children’s Safety and Violent Crime Reduction Act of 2005.” [13] This bill, as introduced, added the provisions of every previously mentioned bills, but also added provisions relating to killing peace officers, witness protection, street gangs, drug trafficking, “illegal aliens,” and child pornography. This bill would not see further action until March 8, 2006. As eAdvocate points out, a number of bills were introduced between the introduction of HR 4472 in December 2005 and the further action taken on March 8, 2006 and eventually “morphed” into the existing text of HR 4472. [14] These bills were:

• H.R.4732 (The “Sergeant Henry Prendes Memorial Act of 2006” [15], introduced Feb. 8, 2006), which provided Federal penalties for killing federally funded public safety officers;
• H.R.4815 (Safe NOW Act of 2006 [16], introduced Feb. 28, 2006), which would have established a National Sex Offender Risk Classification Task Force to create guidelines for the establishment of a risk-based sex offender classification system for use in sex offender registries. Interestingly, this bill would have studied the negative impact of Megan’s Law as well as promote risk assessments; but it would have created a 20 member task force that included a representative of the vigilante group “Parents For Megan’s Law;”
• H.R.4883 (Justice for Crime Victims’ Families Act [17], introduced March 7, 2006), which would have provided resources to improve DNA testing and crime scene investigations, particularly murder; and
• H.R.4905 (Sex Offender Registration and Notification Act [18], introduced March 8, 2006), a continuation of previous, similarly named bills with the same recommendations. (eAdvocate points out the language was harsher than in previous versions of the Foley bills.)

March 8, 2006: Suspension of the Rules to fast-track HR 4472

The eAdvocate blog points out a number of key points that is noteworthy to understand the events of March 8, 2006:

• Rep. Sensenbrenner was the Chairman of the House Judiciary Committee, which received HR 4472 for further consideration;
• “Specifically, HR 4815 (HR 271 in 2007) Paul Gillmor’s National RSO Classification System and HR 4905 Mark Foley’s National RSO Registration Requirements, directly pertain to RSOs nationally. HR 4905 was a complete harsher rewrite of his bill (HR 3133) that was originally within the failed HR 3132;”
• “Mark Foley’s HR 4905 was introduced by him, on 3-8-06, only minutes before it was morphed into HR 4472, and then walked into the full House for a floor vote on HR 4472. There is no way possible hundreds of House members had any opportunity to review that bill or what effects it may have on the laws of their respective states;” and
• Sensenbrenner moved to advance the bill under “suspension of the rules.” [19]

Most distressing is the concept of bypassing the normal course of creating legislation through “suspension of the rules. “The purpose of considering bills under suspension [of the rules] is to dispose of non-controversial measures expeditiously… A motion to suspend the rules requires a vote of two-thirds of the Members present and voting. No amendments are in order unless submitted with the bill by its manager as part of the motion to suspend the rules. Debate on a bill brought up under suspension of the rules is limited to forty minutes, twenty minutes controlled by a Member who supports the bill and twenty minutes controlled by a Member in opposition, a division that does not always follow party lines.” [20]

The following statements are from the “Suspension of the Rules” hearing on March 8, 2006. [21]

Rep. Conyers (who had pushed for a hate crimes bill in Sensenbrenner’s previous bill) raised concerns over the bill, stating, “I rise in strong opposition to this legislation and the manner by which it comes before us today. Introduced just over two months ago, this legislation, all 164 pages, has managed to completely circumvent the traditional legislative process. Without the benefit of a single hearing or committee markup, the legislation has somehow found its way here to the floor of the House of Representatives. To make matters worse, it’s being considered under suspension of the rules, leaving with reasonable concerns no opportunity to offer modest amendments… the measure under consideration today includes a complex system of categories whereby sex offenders are classified based upon the nature of their offense. They are also routinely forced to verify the accuracy of their registry information based upon this system. This new system of registration and registry verification has never been discussed by members of our committee. While some may certainly welcome such a system, others most likely will not. In either event, a change of this magnitude should not be undertaken without adequate thought, consideration and debate… Over 33 scientific researchers, treatment professionals and child advocates have written in to express their concerns regarding the bill’s overly harsh treatment of juveniles.”

Rep. Bobby Scott spoke out against this bill, stating, “Madam Speaker, this is a very difficult bill to try to debate because it includes a lot of different bills, everything except the hate crimes bill, which had broad support at least on this side. It includes a variety of slogans and sound bites, many of which have actually been shown to increase crime, disrupt orderly, proportionate, and fair sentencing, it wastes money and violates common sense.”

“Among these approaches are trying more juveniles as adults, the mandatory minimums, new death penalties, and habeas corpus restrictions, which is a process by which dozens of innocent people on death row have been able to show their innocence and escape the death penalty because they were innocent of the underlying charges. It also includes a national sex offender registry that includes misdemeanors and juveniles in the same kind of registration as the most serious predatory offenses.

If we are going to be serious about dealing with child sexual abuse, we ought to face the fact that virtually all of the abusers are either related to the child or at least known to the child’s family. No studies have shown that these things actually reduce child abuse; and, in fact, anecdotal evidence would suggest that we might be actually increasing crime. Because the people who are the subject of these are unable to get a job, unable to live in any kind of neighborhood, have nothing to lose, the restrictive covenants now restricting where they can live, and all of these things may in fact increase crime. But there are certainly no studies to show that they have reduced by any measurable amounts the amount of child sexual abuse.” [22]

Rep. Keller (FL) stated this was a “commonsense” bill that would protect children from “convicted pedophiles,” and used the murders of Jessica Lunsford and Sarah Lunde as his appeals to emotion in support of the bill.

Rep. Frank (MA) spoke out over concerns about the use of the “suspension of the rules” to promote this bill, which he contended contained controversial and hotly contested provisions in previous legislation. (In particular, the Conyers “hate crimes” Amendment passed by a narrow margin during the previous debate over HR 3132). Rep. Frank berated the House for using suspension of the rules, stating, “So today we have the antidote to democracy. We have a bill brought forward that repeats much of what was done before, which adds some other issues that ought to be debated, many of which I support, some of which I might like to see amended, and it prohibits amendments. It is a very important and somewhat controversial piece. And there can be controversy about better ways to do it or worse ways to do it, but it is brought up in an absolutely undemocratic fashion. So to those members of the Iraqi National Assembly who may happen to be observing this, I think there is a very important point we need to make: please don’t try this at home. We are trying to instill others in the world to be democratic.

The President’s inaugural address noted  that we are going to bring democracy. Is this what you mean by teaching people to follow democratic procedures, Madam Speaker? The other side brings up a controversial bill, and because it was amended once, make sure you can bring it back again in an unamendable form, put in other aspects, and leave virtually no time for debate. We will have debated this bill under the same rule that we debate naming of post offices…”

“This is a shameful example of the degradation of the democratic process that has befallen this House. What happens is what has happened in the past: things get put in here that cannot be individually examined, they cannot be debated. Members will feel pressured to vote for the overall package. Members, and this is the goal, put a lot of things in here that are very important and very good, many of which I have voted for in the past, many of which I want to vote for. But Members have put in a few other things that are very controversial and do not allow this House to approach looking at things individually and saying an amendment here, yes or no. And then if Members do not buy the whole package, then you go after them. The Republican majority has decided to legislate in the same manner in which you give a pill to a dog: you take something that the dog wants and you stick a couple of pills in it and you ram it down its throat. That is an inappropriate way for this democratic House to proceed.”

Rep. Sensenbrenner replied, “Madam Speaker, this is not giving a pill to a dog. What this legislation does is it combines three bills that the House already debated and passed but which got stalled in the other body. What it does is it takes away the poison pills that have caused the essential legislation to be stalled in the other body. And it makes some amendments, some of which have been requested by people on the other side of the aisle such as getting rid of a certain number of mandatory minimum penalties. The purpose of this exercise is to get legislation signed into law and it is important legislation on protecting children from pedophiles, protecting Americans from gangs, and protecting judges from kooks who want to try to do them and their families harm. That is why this procedure is being used today so that we can make a law.”

Rep. Harris (FL), like her fellow Floridian Congressman, relied on appeals to emotion while adding the myth of “100,000 to 150,000 missing” sex offenders to drive her point. Rep. Nadler (NY) opposed suspension of the rules because it failed to ban misdemeanor registrants with minor victims from owning firearms, presumable to “so they can use firearms against minors the next time.” Nadler was also upset with the removal of Conyer’s Hate Crimes amendment, stating, “It is wrong to prostitute the procedures of this House to undo the majority votes on the floor by behind-the-scenes manipulation and then say this is democratic procedure.”

Rep. Gillmor (OH) stated, “If a picture is worth a thousand words, than a comprehensive nationwide publicly accessible database is worth at least that many lives. I was pleased that Chairman SENSENBRENNER included provisions from my bill, H.R. 95, that would create a national, comprehensive, and publicly accessible sex offender database into this comprehensive piece of legislation. Additionally, I feel that it is important to have consistency not only with a national registry, but also in how offenders are classified. Currently each State classifies offenders differently according to the risk that they pose to the community. The result is inconsistent and unreliable classifications across state lines. I was pleased that the chairman saw the need to address this issue, and I appreciate him working with me to include a provision to study the merits of a national risk-based classification system that could be integrated into the national sex offender database.” Somewhat ironically, Rep. Gillmor’s home state of Ohio would be the first to experience the effects of Gillmor’s own suggestions.

Rep. Mark Foley responded with his infamous statement that “we protect library books better than we do our children.” Rep. Ginny Brown-Waite added, “That is what this bill is all about; it is going after those, as someone once described, pond-scum predators.” Rep. Sensenbrenner then added the elements of fear to the discussion, adding if they failed to pass the bill today, the 100,000 missing sex offenders would never be found, date-rape drugs will be sold on the internet, Federal judges and their families won’t be protected from murderers seeking revenge, and gang leaders will continue to roam the streets.

Supplemental letters added to the record for this meeting expressed concerns over the inclusion of juveniles on the registry, with some of the concerns coming from agencies working directly with children.  

Despite the amount of opposition, the bill advanced under suspension of the rules. The eAdvocate site points out that barely 20 members were present to vote on the bill on March 8, 2006. The eAdovcate site also states, “The Speaker was not made aware of the the Morphed Bills, which is required, and that the full House had never debated them, nor did they come out of the Judiciary Committee. Rep. Sensenbrenner infers, the Full House reviewed and voted on HR 3132 in September, but ignores that it was virtually rewritten and made harsher (Morphed bills printed is 38 pgs. HR-4472 printed is 77pgs. Means 49% of bill was new, minutes, before it went to the House floor for a vote under suspension of the rules.). Finally, a voice vote was taken, the bill passed, and there is no written record of that voice vote.” [23]

Senator Hatch’s S. 1086 advanced to the Senate and sent to the House on May 8, 2016, but was “held at the desk” once it reached the Senate.

The Daily Kos report suggests that John Walsh may have played a strong role in advancing HR 4472 through suspension of the rules, knowing the removal then-controversial hate crimes bill would cause problems. “Alarmingly, Foley’s comments seemingly indicate that John Walsh has influenced Frist to allow H.R. 4472 on the Senate floor, although S. 1086 lies in legislative limbo. This is where John Walsh begins lying about his true motives behind his support of The Children’s Safety Act. His agenda is all about getting the legislation pushed through, one way or another, regardless to constitutionality or collateral consequence to our society as a whole. Sensenbrenner, by hijacking every rule Sesame Street ever taught kids about ‘How a Bill is Made’, is attempting to circumvent the stalled S.1086, by repackaging H.R. 3132 as the new H.R. 4472, which includes other broad proposals, relating to gangs and the judges. Sensenbrenner unilaterally disallowed amendments to be added to H.R. 4472 by House Democrats, knowing an attempt to add a hate crime amendment would be made, which would stall The Children’s Safety Act in the Senate.” [24] Obviously, the suspension of the rules worked to successfully bypass attempts to advance legislation to prevent hate crimes.

HR 4472 becomes “The Adam Walsh Act”

On the July 18, 2006 episode of Nancy Grace, Sen. Orrin Hatch stated, “We want to get this bill through this week so that the president can sign it on the 27th of April (sic), which was — would be the 25th anniversary of Adam Walsh`s death. And it`s named the Adam Walsh Bill.” It is also worth noting that the myth of 150,000 missing registrants was used on the show to justify the bill. [25] (Also present on the show were Elizabeth and Ed Smart, who were among the victim industry representatives lobbying to push this bill.)

On July 20, 2006, HR 4472 (known up to this point as the “Children’s Safety and Violent Crime Reduction Act of 2006”) was laid before the Senate by “unanimous consent.” Sen. Orrin Hatch introduced HR 4472, and it was when he introduced it by its new name– the “Adam Walsh Child Protection and Safety Act of 2006.” (Technically, the officially renamed through S.AMDT.4687, sponsored by Sen. William Frist [TN], which was agreed upon by unanimous consent later at the end of the meeting. [26]) After thanking Rep. Mark Foley for “getting this ball rolling and for fighting like a champion on behalf of our children,” Sen. Hatch proclaimed the AWA “creates a National Sex Offender Registry with uniform standards for the registration of sex offenders, including a lifetime registration requirement for the most serious offenders. This is critical to sew together the patch-work quilt of 50 different State attempts to identity and keep track of sex offenders…”

“The bottom line here is that sex offenders have run rampant in this country and now Congress and the people are ready to respond with legislation that will curtail the ability of sex offenders to operate freely. It is our hope that programs like NBC Dateline’s “To Catch a Predator” series will no longer have enough material to fill an hour or even a minute. Now, it seems, they can go to any city in this country and catch dozens of predators willing to go on-line to hunt children.”

“Laws regarding registration for sex offenders have not been consistent from State to State now all States will lock arms and present a unified front in the battle to protect children. Web sites that have been weak in the past, due to weak laws and haphazard updating and based on inaccurate information, will now be accurate, updated and useful for finding sex offenders.”

“There are more than a half-million registered sex offenders in the United States. Those are the ones we know. Undoubtedly there are more. That number is going to go up. Over 100,000 of those sex offenders are registered but missing. That number is going to go down. We are going to get tough on these people. Some estimate it is as high as 150,000 sex offenders who are not complying. That is killing our children…”

“I want to thank John Walsh, host of “America’s Most Wanted,” and his wife, Reve–who have waited nearly 25 years for this day. Next Thursday, July 27, 2006, marks 25 years since the abduction and subsequent murder of their son Adam–for whom this bill is named. And on that 25th anniversary the President will sign into law legislation that will help law enforcement do what John has been doing all along–hunt down predators and criminals… And then I would like to pay respect to just some of the victims who really helped with this bill: Elizabeth and Ed and Lois Smart; Linda Walker, the mother of Dru Sjodin; Mark Lunsford; Erin Runnion; Marc Klass; Polly Franks, Patty Wetterling; and last but not least–really, really, we can never thank them enough, John and Reve Walsh.” [27]

Sen. Joe Biden added, “The two things of which I am most proud that I have done in 33 years are dealing with this issue in particular and culminating in this legislation, the Adam Walsh Child Protection Safety Act, and the Violence Against Women Act–which, I might add, one of only seven guys who jumped out front in 1994 to get that done was also Orrin Hatch… I might add one more thing. Joe Biden and Orrin Hatch come from different sides of the political spectrum on a lot of things. But I can assure you, not only is this tough, but the civil liberties of Americans are not in jeopardy with this. This is not–this is not–a case where in order to get bad guys we have had to in any way lessen the constitutional protections made available to good guys. So I think it is a proud piece of work.”

The rest of the minutes were discussions about the various people for which provisions of the Adam Walsh Act would be named for, like Alexandra Zapp (mentioned once), Jetseta Gage (mentioned 8 times), Dru Sjodin (mentioned 9 times), Molly Bish (mentioned 3 times), and “Masha” (a Russian girl who was still underage at the time and thus her last name withheld). Many of the bill’s cosponsors, and those who spoke that day, were influenced specifically by rare, tragic murders in their home states (Jetseta Gage was from Iowa, Sen. Grassley’s home state, for example). Also mentioned five times during the minutes was the myth of 100,000 missing registrants (four times, that number was increased to 150,000), which was used to justify the need for a “national registry” (21 mentions), John Walsh (21 mentions), Mark and Jessica Lunsford (9 mentions), “loopholes” (4 mentions), ‘To Catch a Predator” (2 mentions), “predators” (54 mentions), and “pedophiles” (3 mentions). Interestingly, neither Megan Kanka nor Megan’s Law was mentioned even once during the July 20 minutes.

By July 25, as HR 4472 appeared before the House one last time, all the provisions relating to non-sex crime legislation has disappeared from HR 4472—no mention of violent crimes, immigration) other than preventing registrants from obtaining visas for loved ones from other countries), gang prevention, or violent crime legislation remained. The intent, mentioned numerous times, was to push the legislation to be signed by the President 25 years to the day that Adam Walsh was murdered. Rep. Sensenbrenner again proposed a suspension of the rules.

Rep. Bobby Scott tried one last plea to table the measure for further consideration. He stated, “Mr. Speaker, the crimes committed against the children named in the bill, those not named, and the suffering of their families is a tragedy for all of us, yet this does not release us from the responsibility to legislate on a sound and reasoned basis. I believe the situation is serious and grave enough to warrant a bill that is based on approaches that have been proven to reduce this scourge in our society, not on sound bites that will merely pander to our emotions… Under the provisions of the bill, prom night in the Washington D.C., Virginia, and Maryland area could have nightmarish consequences. And to show how ridiculous it could be, if two teenagers, one 18 and one 17, engage in sexual activity without crossing a State line, you will have, if there is any prosecution at all, it will be a misdemeanor on the part of the 18-year-old. So we have the absurd anomaly of making what is now an infrequently prosecuted misdemeanor into a 10-year mandatory minimum sentence for teens who cross State lines to do it. Imposing a 10-year mandatory prison term on teenagers engaged in consensual sex is not responsible legislating.”

“Rather than taking such cases out of the bill, we are told that we should simply trust the prosecutor. Don’t trust the Sentencing Commission’s discretion to set guidelines designed to reflect what sentence should be based on the facts and circumstances of the case or the background and role of the offender, rather than simply the name of the case, the name of the provision. And don’t trust judges to look at the facts and circumstances of the case, the offender’s role and background and guidelines to arrive at an appropriate sentence after hearing all of the evidence at trial. Take the discretion away from these officials and trust prosecutors to decide when to ignore law requiring a 10-year mandatory minimum sentence. And trust there are no prosecutors who can be affected by issues such as local political influences…”

“The jury is out as to whether publicly accessible sex offender registers will have any beneficial effect on reducing sex crimes, but the studies that have been done indicate that the registries do not have any effect in reducing sex crimes. And I have seen no study that suggests that the policy of posting the name of juvenile delinquents, as this bill does, on the Internet, serves any constructive purpose. Of course, programs and grants to assist children and to provide the type of sex offender treatment that studies have been shown that can cut recidivism in half are not in this bill. And so, Mr. Speaker, unlike most of my colleagues we will hear from today, I believe that we can do better than this bill to effectively address the scourge of child sexual assault.”

Obviously, the plea fell on deaf ears, as the supporters of the bill once again relied on tragic stories and slogans to push the bill to the president’s desk. (Mark Foley’s slogan that they track library books better than sex offenders was repeated four times.) Dennis Hastert was thanked for “keeping his word” to get HR 4472 to the President’s desk by July 27. The rules were suspended [28] and HR 4472 was sent to the President’s desk to be signed as promised.

The influence of John Walsh in pushing this controversial legislation through Congress was made more evident (and disturbing) in a couple of articles released on July 26, when conducting an interview as part of a summer press tour for his trademark TV Show, “America’s Most Wanted.” Walsh made the following statements during the interview:

• “I said I was kidding when I was talking to the Senate and I said they were talking about electronic monitoring, which is big and unwieldy for the sex offenders, and that some of these guys, no matter what the law in their state was, would have to wear one for 20 years or whatever. I said implant it in their anus and if they go outside the radius, explode it and that would send a big message. It was a joke. Nobody thought it was funny.”
• “I’m all for criminals doing their time, all for rehabilitation, all for a second chance.” followed almost immediately by “I say put the pedophiles down in the yard. Put them in there. Let them do the time with the rest of the guys. Let them see what it’s like to be terrorized by a 250-pound guy.”
• Things got more heated, though, when a photographer under FOX’s employee elected to get into an extended and rather intense conversation with Walsh about marking sexual offenders. They were on so much on the same page that when Walsh mentioned bracelets for perpetrators, the photographer replied, “Not bracelets, not bracelets. The bracelets bulls***. The bracelets bulls***, John, you know that. It’s BS.” Walsh then suggested putting embedded GPS chips, to which the photographer said, “I’ll say bury it deep inside them, is what I say. I don’t care how big it is,” which earned Walsh’s scary reply, “I love your attitude.” The microphone was eventually removed from the photographer, a long-time freelancer for the network. He was later lectured by people both within the TCA and within the network and relieved of his duties. The Walsh session was, not surprisingly, cut short. [29]

The Washington Post added, “Continuing his riveting performance, he said his wife had suggested that when he went to Washington to stump for the Adam Walsh Child Protection and Safety Act, he ask all the congressmen who he thought were holding up the legislation named in honor of his son whether they were child molesters or if they had child porn on their computers. ‘I said, ‘Reve, I don’t really use that tack walking through the halls.’ But leave it to the mother of a murdered child to cut to the chase.’” [30]

At 1:19 pm on July 27, 2006, President George W. Bush signed HR 4472 into law (Public Law No: 109-248). Surrounding Bush as he signed the law were John and Reve Walsh, Rep. Sensenbrenner, and Rep. Mark Foley. [31]

The Adam Walsh Act included many elements of the earlier bills, but it was only in the final days of the advancement of HR 4472 that the many of the current provisions of the Act were added. Below is a brief summary of HR 4472 as signed by George W. Bush on July 27, 2006:

• 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 investigating sex cases (particularly failure to register).
• 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 laws.
• 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. [32]

The Adam Walsh Act passed on a handful of conjectures: The law was fueled by a series of rare, tragic murders used as anecdotal examples to suggest a widespread epidemic of sexual abuse across the US; the idea was promoted by the myth of 100,000 to 150,000 “missing sex offenders;” and the legislature was heavily influenced by TV, particularly “To Catch a Predator,” and by America’s Most Wanted host John Walsh. Along the same lines of the 100,000 missing registrant myth, the AWA was also promoted as a ‘consistent” or “uniform” standard of registration, “closing loopholes” that they believed allowed a registrant to flee to another state to avoid registration. This mix of myth and media formed the foundation upon which the Adam Walsh Act was built.

ISSUES AND CONTROVERSIES OF THE ADAM WALSH ACT

Despite languishing in limbo for roughly a year, the bill that eventually became the Adam Walsh Act is a confusing mess that has made implementation difficult. Despite the threat of losing 10% of their federal funding, only 17 states, 3 US Territories, and 100 (of 566 federally recognized) Native American Tribes have adopted the AWA. [33] Five states – Arizona, Arkansas, California, Texas and Nebraska – had neither complied with SORNA nor applied to use JAG funds to come into compliance, thereby electing to forfeit 10% of their JAG funding as of 2014. [34] There are numerous controversies with this bill, but most of the challenges to the AWA involve a handful of key issues—retroactivity, cost of implementation, state and tribal sovereignty, or placing juveniles on the public registry. The National Conference of State Legislatures’ official policy regarding the act condemns the law as “an unfunded mandate,” “inflexible” and, “in some cases, not able to be implemented.” [35] Also worthy of discussion is the fact that legislators had promoted it as a sort of universal standard to make the laws across all 50 states uniform, but in reality, the AWA has had the opposite effect. The AWA also affects registrants in many ways, including immigration and travel.

Retroactivity

“We decided we’re not going to go into full compliance. We’re going to look at it over the summer, because we’ve been told to expect some changes to Adam Walsh… If they’re off the registry, as far as we’re concerned, they’ve met their requirements. We’re not going to go back and punish them a second time.” — Utah Rep. Paul Ray [36]

The Adam Walsh Act itself did not address the retroactivity issue, nor was it decided by legislators; instead, retroactivity was a power HR 4472 granted to the US Attorney General [Sec. 113(b)].

Alberto Gonzales (the US Attorney General) used “Interim Rule” to apply the AWA retroactively. [37] Gonzales published the following in the Federal Register on May 30, 2007: “The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction’s implementation of a conforming registration program. Rather, SORNA’s requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act.” He justified the retroactive application on the 2003 SCOTUS decision of Smith v. Doe, which had ruled sex offender registration was not punishment but regulatory and constitutional safeguards thus do not apply. [38]

Gonzales’s use of Interim Rule (and the rule itself) was explained in the 9th Circuit Court as follows:

“In issuing the interim rule, the Attorney General declined to comply with the procedural requirements of the APA. 5 U.S.C. § 551 et seq. Under the APA (Administrative Procedure Act), rulemaking is generally required to comply with a three-step process: (1) notice of a proposed rule must be given by publication in the Federal Register, 5 U.S.C. § 553(b); (2) following publication of the proposed rule, 30 days must be provided for public comment; (3) notice of a final rule must be given by publication in the Federal Register, normally accompanied by a response to concerns raised in the public comments, “not less than 30 days before [the rule’s] effective date” 5 U.S.C. § 553(d)(3). The APA permits an Agency to promulgate valid regulations without complying with these procedures, however, if it ‘for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and comment procedure thereon are impracticable, unnecessary, or contrary to the public interest.’ 5 U.S.C. § 553(b)(B). The Attorney General relied upon the good cause exception in seeking to make the February 28, 2007 interim rule applying SORNA retroactively effective immediately and to render inapplicable the requirements for advance publication, public comment, and Agency response. 72 Fed.Reg. at 8895. In a statement accompanying the interim rule, the Attorney General did not state that notice and comment was ‘impracticable’ or ‘unnecessary,’ but solely that it was ‘contrary to the public interest.’” [39]

As the result of this Interim Rule, states like Nevada had reached as far back as 1956 to add individuals to the public sex offender registries, [40] ruining the lives of people who committed crimes decades ago but have lived offense free and had productive lives.

The validity was hotly contested. Six Circuits held that the Act’s registration requirements do not apply to pre-Act offenders unless and until the Attorney General so specifies. [41] Five Circuits held that they apply from the date of the Act’s enactment, and prior to any such specification, at least with respect to pre-Act offenders who had already registered under state law. [42]

Ultimately, the US Supreme Court decided the fate of the Interim Rule by Reynolds v. US, 565 US 432 (2012). Reynolds, a registrant accused of Failure To Register, moved to dismiss the indictment on the ground that the Act was not applicable to pre-Act offenders during that time of his arrest, arguing that the Attorney General’s February 2007 Interim Rule was invalid because it violated the Constitution’s “nondelegation” doctrine and the Administrative Procedure Act’s notice and comment requirements. In a 7-2 decision (Alito and Ginsburg dissenting), SCOTUS held that the Act does not require pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them. In other words, the High Court ruled that the Attorney General did not “validly” follow protocol when applying SORNA retroactively during Interim Rule.

SCOTUS remanded the case back to the 3rd Circuit; the 3rd Circuit ultimately ruled that the AG violated the Administrative Procedure Act. [43] In 2010, the Attorney General’s Office formally declared SORNA retroactive, effective January 28, 2011, along with a lengthy explanation attempting to justify the Gonzales’s Interim Rule. [44]

This does not mean the state courts necessarily agree with the law. The Ohio Supreme Court ruled in 2010 that the retroactive application of Ohio’s AWA statutes violate separation of powers by requiring the executive branch to reclassify sex offenders already classified by court order. [45] In a subsequent decision, the Ohio Supreme Court ruled that Ohio’s version of the AWA was punitive and thus could not be applied retroactively. [46]

The US Supreme Court also covered retroactivity, at least in one particular issue, in Carr v. US. [47] In a 6-3 decision, the Court ruled that the Sex Offender Registration and Notification Act of 2007 makes it a crime for convicted sex offenders to fail to register with local authorities when they move to a new state, but the Act does not apply to sex offenders moved before the Act went into effect.

Cost of Implementation

“We couldn’t afford the national program. The local law enforcement doesn’t have the money, and the state doesn’t have the money.” — Sen. John Whitmire, D-Houston, chair of the Texas Senate Criminal Justice Committee [48]

The Adam Walsh Act has proven very expensive to implement. Tina Walker, chief of media relations for California’s Emergency Management Agency, said compliance could exceed $30 million and would result in “a less than robust sex offender registration process for the state.” California would lose an estimated $3.2 million in JAG funding. [49] The 2010 Texas Senate Criminal Justice Committee Interim Report found that the cost of implementing the AWA provisions $38,771,924, while the penalty for losing 10% of JAG/ Byrne Grant funding for the same period is merely $1,404,571. (For those who don’t like doing the math, the cost to implement is 27 times the cost of the penalty.) Texas would save money by not implementing the AWA even if the federal government took away 100% of JAG/ Byrne funding.

“The major cost of the AWA is the result of modifying registration requirements. The most significant change to Texas would be the required registration of offenders with offenses that are not currently included in the list of offense requiring register. An example of this is kidnapping of a child. Currently an individual only has to register if there is an element of sexual intent or if an assessment is done that indicates the individual is a risk for sexual misconduct. AWA does not call for the utilization of risk assessments and relies solely on offense. This would cause the number of people on the registry to increase greatly. The AWA also increases the number of time an offender has to verify their information with law enforcement. The number of times is determined by the tier they are in. There are three tiers; three is the most severe. Another major change is that sex offenders not only have to submit fingerprints and information but also DNA to law enforcement. The length of required registration is also modified by AWA. Tier one people would have to register for fifteen year; tier two for twenty five years; tier three for life.” [50]

States were initially only given three years (until July 2009) to adopt the Adam Walsh Act or lose 10% of the Edward Byrne Memorial  Justice Assistance Grant (JAG), but the time was extended two years in a row, with a final deadline of July 27, 2011. For jurisdictions that failed to meet the deadline, according to the Bureau of Justice Statistics, the “SORNA penalty is calculated by subtracting 10% from the state government’s allocation (60% of the total award), after deducting the mandatory VPT that states are required to send to local governments.” (JAG awards to states are split 60/40, with 60% going to the state and 40% going to local governments, with a minimum award of $727,321 for FY 2014; JAG allocations are calculated half by a state’s share of its total violent crime, and half by its population. Thus, population alone is not a determining factor in JAG grants)

In FY 2014, a total of 36 states and U.S. territories were not compliant with SORNA’s requirements. As a result, these jurisdictions suffered a combined $6,474,445 reduction to their FY 2014 Byrne JAG award. These jurisdictions were allowed to apply to reallocate the 10% penalty to promote SORNA implementation. Seven states were SORNA noncompliant and did not apply to reallocate the penalty.” The total Byrne JAG awards for FY 2014 was $290,928,252. [51]

Ohio, the first state to adopt the Adam Walsh Act, received $8,920,866 for FY 2014. If Ohio had not implemented the AWA, in the five years since JAG funding was cut for the states, Ohio would have lost $4,460,433 going by the FY 2014 rates. (The BJA estimates Ohio will receive $5,740,424 for FY 2016, over $3 million less than 2014. [52] JAG funds vary greatly.) Ohio spent an estimated $10,000,000 just on defending itself against the numerous lawsuits against the AWA. [53] This does not include the other costs associated with the changing laws; one Ohio County reported just the postage alone for the increased community notification letters doubled from $250,000 to $500,000 a year. [54] In addition, the Ohio legislature’s fiscal notes on the cost of implementing the AWA found the costs outweighed the potential loss of JAG funds; Installing and implementing software alone would cost $475,000 in the first year, plus $85,000 annually thereafter for maintenance; Certification of treatment programs based on new standards and providing a description of a person on the registry to the state’s Bureau of Criminal Identification and Investigation would cost another $100,000 annually; Ohio acknowledged other factors that would increase the cost of implementing SORNA, including salaries and benefits for new personnel, new court and administration costs, and costs to counties and municipalities, which was unable to be quantified. [55] As the result of a FOIL request by a member of Ohio RSOL in 2012, it was discovered that the monthly cost of maintaining the registry (using Watch Systems, a private registry service) was actually $33,250, or $399,000 for the fiscal year, [56] far more than the Ohio legislature projected.

The Commonwealth of Virginia determined that the first year of compliance with  SORNA would cost more than $12 million. The first year of implementing SORNA would cost Virginia $12,497,000, plus an annual cost of $8,887,000. Adjusted with a 3.5 percent yearly inflation rate, Virginia would be paying more than $10 million by 2014. If Virginia chose to comply with SORNA, the state would spend $12,097,000 more than it would if it chose not to implement SORNA and forfeit 10 percent of its yearly Byrne grant, a loss totaling approximately $400,000. [57]

The ironically named SMART Office (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking) has reported that as of 2015, the following jurisdictions applied for reallocation of the funding penalty in 2015 to work solely towards furthering SORNA implementation activities and efforts:

Alaska, American Samoa, Arkansas, California, Connecticut, District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Puerto Rico, Rhode Island, Utah, Vermont, Virginia, Washington, and Wisconsin. [58] Jurisdictions must submit the following to continue to receive the full JAG funding:

1. Substantial Implementation Report from the SMART Office;
2. Plan to Utilize Reallocated Funds. The Substantial Implementation Report details where the jurisdiction deviates, or does not meet, SORNA’s requirements; and
3. If the jurisdiction has previously received reallocated funds for SORNA implementation purposes, briefly describe how those funds were used. Describe how the additional reallocation funds will be used to complement previously received reallocation funds. [59]

Prison Legal News reports, “Federal officials have countered that SORNA is less expensive to enforce than most states estimate. U.S. Department of Justice (DOJ) senior analyst Scott Matson noted that one estimate was $18 million for Ohio to implement the Adam Walsh Act, but the actual costs were around $400,000. Linda Baldwin, head of the DOJ office that helps states implement SORNA, said that although some states would have to track more sex offenders under the new standards, state officials often misunderstand the Act’s requirements and overstate its burdens.” [60] It is difficult not to suggest that an office whose sole existence is promoting the Adam Walsh Act is downplaying the actual cost of implementation of SORNA.

“An Unfunded Mandate”

“Particularly in this economy, no state can afford a significant new regulatory unfunded mandate that will change the public-safety approaches that states have already undertaken… it is troubling that states that don’t have the resources to accommodate what is a tremendously costly unfunded mandate will have to watch as the very services that our criminal justice systems rely upon are cut even further in a punitive measure for not having enough money to enact new policies. In some states, the money that they risk losing from the Byrne JAG penalty is actually used directly for victims of sexual and domestic violence. States do not want to penalize public safety and victim service dollars because of the complex and unfunded changes that SORNA contemplates.” – KS State Rep. Pat Collonton [61]

The National Council of State Legislatures stated, “The provisions of Title II of the Act, the Sex Offender Registry and Notification Act (SORNA) preempt many state laws and create an unfunded mandate for states because there are no appropriations in the Act or in any appropriations bill for implementation.” [62] A report from the Washburn Law Journal noted, “The AWA mandates that states completely revamp their law enforcement systems to comply with its requirements, but provides no money to the states to fulfill those requirements.  The states, therefore, bear full responsibility to pay for the implementation of the AWA.  Moreover, the states do not receive any additional federal funding even if they do comply with the AWA.” [63]

The Heritage Foundation made the bold claim the Adam Walsh Act was “sufficiently funded.” They based their conclusions on the fact that four states had succeeded in coming into substantial compliance. They also noted that “the DOJ’s SMART Office provided more than $16 million in assistance in 2007 and 2008 and gave $13.1 million in awards to jurisdictions in 2010. The SMART Office has offered grants of $400,000 to jurisdictions seeking to implement SORNA in 2011.” (Of course, the same organization denied that states would lose 10% of their Byrne/ JAG funds should they fail to implement SORNA). [64] The Heritage Foundation failed to consider the costs associated with implementing the AWA, and the numbers they quote would not even funded the cost of Texas to fully implement SORNA.

Perhaps it is more appropriate to refer to the Adam Walsh Act as “underfunded” rather than “unfunded.” There are some funds towards assisting jurisdictions with AWA compliance, and states penalized for failing to comply can get the 10% Byrne/JAG funds back if they use the funds towards implementing SORNA.

However, the funds are minimal and woefully insufficient to SORNA implementation. A NY Law School Law Review report stated,  “Additionally, the SORNA program itself is underfunded, and Congress has failed to allocate consistent funding to underwrite the significant compliance costs incurred by state and local governments, giving a mere $39 million to forty-three states in 2011. State leaders frequently refer to SORNA as an “unfunded mandate” and describe a “disturbing disconnect” in withholding funds that support services to help states meet the federal requirements.” [65]

The “Adam Walsh Reauthorization Act of 2016” (S. 2613) would authorize the appropriation of about $81 million annually over the 2017-2018 period for Department of Justice (DOJ) activities related to the registration of sex offenders. Assuming appropriation of the authorized amounts, CBO estimates thatimplementing S. 2613 would cost about $160 million over the 2017-2021 period. Of course, of the $81 million, only $20 million will go towards assisting state and local governments with registering and monitoring sex offenders, with the other $61 million to go to the US Marshals to fund their registrant compliance operations. [66] Thus, the AWA will remain woefully underfunded even if S.2613 passes.

Juveniles on the Registry

“It’s like using an Atom Bomb when a stick of dynamite would do the job… A 19-year-old and his 15-year-old girlfriend have consensual sex…He gets labeled as a sex offender for life. He should be punished for violating the law, but he’s not necessarily a predator.” — Cuyahoga County (OH) Common Pleas Judge Michael Donnelly [67]

It is estimated that one out of every four registered citizens were convicted for crimes committed as juveniles, fifteen states list juvenile registrants publicly, and thirteen states have utilized civil commitment for juvenile offenders. [68] However, most states keep juvenile offenders off the public registry lists, and the Adam Walsh Act’s demand for inclusion of juveniles as young as 14 on public registries has become one of the primary reasons for failing to adopt the AWA.

“Unlike the requirements of the Jacob Wetterling Act, SORNA does require that certain juveniles register as sex offenders. This requirement applies to juveniles convicted as adults and juveniles adjudicated delinquent in juvenile court, so long as the juvenile is 14 years of age or older and is convicted of an offense similar to or more serious than the federal aggravated sexual assault statute, 18 U.S.C. §2241. In addition to offenses such as forcible rape, this statute covers any offense involving a sex act with a victim under the age of 12. There are no provisions for a risk assessment in the case of juveniles adjudicated delinquent and subject to registration under SORNA. There are no exceptions for intrafamilial cases of sexual abuse. The only exception is the so-called ‘Romeo and Juliet’ clause, whereby the law makes clear that jurisdictions will not be required to register persons convicted of sex offenses involving ‘consensual’ sexual activity between a victim who is at least 13 years old and an offender not more than four years older than the victim.” [69]

Once again, the SMART Office downplayed the rigidness of the Adam Walsh Act (by ignorance or embarrassment) during an exchange between Linda Baldwin, SMART Office Director, and Virginia Representative Bobby Scott during the March 10, 2009 House Subcommittee on Crime, Terrorism, and Homeland Security on ‘‘Sex Offender Registration and Notification Act: Barriers to Timely Compliance by States.’’

“Mr. SCOTT. More than 4 years senior, consensual sex between a 19 1⁄2-year-old and just a 15-year-old would not require registration; is that what you are saying?
Ms. ROGERS. No.
Mr. SCOTT. No, that is not what you are saying, or, yes, that is what you are saying?
Ms. ROGERS. It would not require Tier III registration as a violent sex offender. It may require registration. It may not. If it is charged as a misdemeanor, it may not require registration.
Mr. SCOTT. Once you get on this list, I mean, you are on the list as a sexual offender. What we have heard is that that can be counterproductive because once you are on a publicly accessible registry, your life is pretty much shot.
Ms. ROGERS. But it also may be a charge that is not even included under SORNA and may not require registration. Not every sex offense is a registrable offense under SORNA.
Mr. SCOTT. Right. We said a 19 and1/2 and a 15-year-old, consensual sex. Does a 19-year-old have to register in a publicly accessible registry of sex offenders? Half the people in the audience are nodding their heads ‘‘yes.’’
Ms. ROGERS. There are a lot of issues that would have to be examined. It would depend on how it is charged in that particular jurisdiction, if it is covered under SORNA, how the case is resolved. What I am telling you is there is a discussion that it would be as a violent sexual offender, and I just need to clarify this.
Mr. SCOTT. However you have to register yourself, you are on a sexual offender register for an offense where there is a 19 1⁄2-yearold high school senior and a 15-year-old. Add up the months. It is more than 4 years. They get caught. Is that something where someone would have to be registered for at least a decade?
Ms. Devillier, do you want to respond?
Ms. DEVILLIER. I would love to, because Louisiana’s statute is just that—carnal knowledge. Some States refer to it as ‘‘statutory rape.’’ Ours is that we have been told by the SMART office, in our response for substantial compliance, that that carnal knowledge statute, which is exactly what you just described, requires Tier II— 25 years of registration without relief.
Mr. SCOTT. Well, I guess there are some of those issues we might have to deal with.” [70]

(This is the same hearing where celebrity victim advocate Mark Lunsford had testified before the Committee that he was okay with sending innocent prison to prison for the greater good. He stated, “Well, I think what is going to happen–alright. If we back up because it is too hard, the children will pay the price. If we move forward and continue to try to figure out how we fix this problem, you might have a few people on the registry that might not belong there. So weigh it out. Do we register a man that might not be as guilty as we think he is, or do we let a child die? I mean, I think we have to go with going to go with more reg–better registration and notification when we have to. The only person that is going to make a sacrifice is maybe somebody who doesn’t belong there. But if we don’t get tougher registration and better notification, another child will die.”)

Prison Legal News reported, “Nebraska – has stated a principled opposition to SORNA’s lifetime registry requirement for juveniles. State Senator Amanda McGill, a member of the Nebraska legislature’s Judiciary Committee, said that SORNA as currently written could force people onto the registry who don’t belong there. ‘We may be putting resources into people that don’t need it,’ she said, ‘and possibly ‘scarlet-lettering’ them.’” Nebraska attempted at one point to comply with SORNA by switching from risk-based system to an offense-based system, [71] but is still non-compliant as of 2016.

The California Attorney General’s Office cited “serious concerns” with implementing the Adam Walsh Act, including the inclusion of some juvenile offenders. [72] Despite allowing some juveniles to be forced to register, the AWA exceeded California’s rules, which kept juveniles off the registry and provided avenues for juveniles to be freed from registration requirements. [73]

States are concerned that placing teens on a public registry will stigmatize them and hamper their chances of moving beyond the offense. “Given juveniles’ positive response to treatment and room for cognitive development, the juvenile system has traditionally been regarded as rehabilitative, unlike the adult system, which counts punishment among its goals, [Brooke Burns with the Ohio Public Defender’s Office] said. ‘The court’s finding that registration is punishment opens the door for us to start advocating that juveniles cannot be given a punishment because they’re in juvenile court, which in itself is a rehabilitative system…The only penalty that sticks beyond the juvenile system in and of itself is registration,’ she said.” [74]

The National Council of Criminal Defense Lawyers argues the impact of the Adam Walsh Act on juveniles is worse than on adults:

“Requiring youth to register does not improve public safety and may make it worse. Placement on a registry can be detrimental to a young person’s development, making it difficult to progress through school and to participate in appropriate adolescent activities. The Annie E. Casey Foundation’s annual Kids Count Data Book keeps tally of ‘disconnected’ youth (youth who are not working or in school) as a factor in child wellbeing. In other words, the young people who are connected to school or work are generally expected to have better life outcomes. Youth who are labeled ‘sex offenders’ often experience rejection from peer groups and adults. They are therefore more likely to associate with delinquent or troubled peers and less likely to be attached to social institutions such as schools and churches. Youth who are detached from normative social institutions may be more likely to engage in illegal behavior.”

Youth sex offending is different from adult sex offending. Young people are still developing physically and emotionally and are thus highly amenable to change. Research by mental health professionals working with youth who commit sex offenses indicates that the nature and intention of youthful sexual experimentation is not considered predatory or aggressive.

According to the National Center on Sexual Behavior of Youth, the vast majority of youth sex offenses are manifestations of nonsexual feelings. Youth engage in fewer abusive behaviors over shorter periods of time and engage in less aggressive sexual behavior. Youth rarely eroticize aggression and are rarely aroused by child sex stimuli. Most youth behavior that is categorized as a sex offense is activity that mental health professionals do not label as predatory. Therefore, using an adult registration system for youth does not fit, likely has no public safety benefit, and therefore should not be applied to youth.” [75]

Wyoming, a state considered substantially compliant with the Adam Walsh Act, had struggled to follow the policy to register juveniles. The Casper Star-Tribune reported, “Some prosecutors are not charging children with sex crimes to protect them from being added to the registry, which they view as too harsh of a punishment for lesser offenses… As a result, children are being convicted instead of battery or assault, and entering treatment programs for sexual behavior in denial about their problems. ‘Right now, it’s one size fits all, no matter the crime – whether it’s a forcible rape or a touching crime,’ said Rep. Sam Krone, R-Cody, a deputy attorney in Park County and a member of the Joint Judiciary Committee.” Wyoming considered adjusting the juvenile offender law but expressed reluctance to make changes out of fear of falling out of compliance. [76]

State and Native American Tribal Sovereignty

“…[W]e feel like complying is not a good idea in some areas, as it actually makes Arizona law worse… For example, Level One sex offenders don’t have to register. A homeless person urinates in an alley. In Arizona, that’s a Level One sex offense, but that’s not a person who represents a threat to the community. By putting them on the registry, we make police officers focus more time on people who are not a threat and have less time to focus on people who are a threat.” – Arizona State Sen. Kyrsten Sinema [77]

The Prison Legal News reported that Arizona cited the state sovereignty issue as grounds to reject the Adam Walsh Act. [78] A state or US Territory failing to adopt AWA merely loses 10% of Byrne/JAG funding. However, Native American Indian Tribes aren’t given the freedom to choose to reject AWA guidelines.

Executive Order 13175 was written in part to “to reduce the imposition of unfunded mandates upon Indian tribes.” The Order “has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory.” Section 3 of the Order grants Indian tribal governments “the maximum administrative discretion possible,” to encourage tribes to adopt their own standards, and “ in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.” Section 5 of the Order states no government agency shall “promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute” without fully funding the mandate or consulting with tribal councils early in the process of developing the proposed regulation, as well as providing a tribal summary impact statement in the preamble of the regulation as to be featured in the Federal Register.” [79]

Native American tribes were never consulted at any point during the creation and passage of the Adam Walsh Act, a direct violation of Executive Order 13175. The National Congress of American Indians explains: “The federal government failed to consult with tribes prior to enactment of the Adam Walsh Child Protection and Safety Act of 2006 (AWA), and as a result, tribes continue to struggle with the implications of this law… Title I of this act, the Sex Offender Registration and Notification Act 42 U.S.C. 16901 et. seq (SORNA), permitted federally recognized Indian tribes to “opt in” and implement the minimum standards required by SORNA for sex offender registration and notification; however, it arbitrarily excluded from participation tribes that are subject to state jurisdiction under Public Law 83-280 (PL280). Pursuant to SORNA, if the U.S. Attorney General determines that a tribe has not substantially implemented the requirements of SORNA by the implementation deadline of July 27, 2011, and is not likely to become capable of doing so within a reasonable amount of time, the tribe’s SORNA responsibilities will be delegated to the state in which the tribe is located. Tribes have several concerns with the way in which the AWA is written and has been implemented, including its unprecedented threat of delegation of tribal regulatory authority to the state, its lack of funding, and its exclusion of tribes in mandatory PL280 states. For the time being, though, Congress seems uninterested in amending the tribal provisions of the AWA. As such, the 190 SORNA tribal jurisdictions have been left with no choice but to comply with the current law.” [80]

Once again, the SMART Office fails to accurately explain the law, downplaying the blatant violation of Executive Order 13175: “If the SMART Office determines that a tribe is unable or unwilling to implement SORNA within a reasonable amount of time, the tribe is at risk of having its registration and notification duties delegated to the state(s) in which the territory of the tribe is located. Based on three consultation sessions with tribal leaders and other interested parties, the SMART Office adopted the following delegation procedure, consistent with Executive Order 13175.”

“A tribe is subject to delegation in the following circumstances:

1. Tribe failed to either submit a SORNA substantial implementation package, request additional time to implement, or “opt out” of SORNA responsibilities by the July 27, 2011 statutory deadline for implementation,
2. Tribe requests and is granted additional time to implement but stops communicating with the SMART Office and/or fails to provide monthly update progress reports,
3. Tribe fails to submit a substantial implementation package or other required documentation by the extended deadline due date,
4. Tribe requests additional time to implement but the SMART Office determines that the tribe is not capable of substantial implementation within a reasonable amount of time,
5. After review of a tribe’s substantial implementation package, the SMART Office determines that the Tribe has failed to substantially implement the minimum standards of SORNA, and/or
6. Tribe fails to continue to operate a functioning sex offender registration and notification program.” [81]

In short, if recognized Native American tribal nations refuse to implement the AWA, they risk losing their sovereignty with enforcing their own laws and regulations for their own registered citizens; the state will take over responsibility for registration. Once again, Native Americans are forced into accepting another bad Federal Law in violation of treaties.

Of the 566 federally recognized tribes, only 212 were considered eligible to decide to adopt the Adam Walsh Act by the SMART Office on their own (i.e., tribes whose criminal justice agencies are not being delegated to the state per 18 USC 1162). Of the 212 tribes, 198 chose to retain registry functions, 5 chose to delegate registration power to the state, and 9 did not file a resolution. [82]

Immigration issues under the Adam Walsh Act

The Adam Walsh Act affects registered citizens in ways the average America could not imagine. One alarming but overlooked power contained within the Adam Walsh Act (Title IV) is the power to deport a nonresident because one of their spouses or parents was listed on the sex offender registry. “The Adam Walsh Act amended Section 204(a)(1)(i) of the Immigration and Nationality Act –  the statute governing the petitioning procedure for immediate relatives – to prohibit U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition on behalf of any beneficiary, unless the Secretary of Homeland Security (Secretary) determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.”

Conviction for any of nine crimes “that by its nature is a sex offense against a minor” (including non-custodian kidnapping, child porn, internet, and solicitation/prostitution offenses) will be a “disqualifying conviction to bar any U.S. citizen or permanent resident from filing a petition for his/her parent, spouse, children, stepchildren, and siblings. The bar also applies to petitions for a fiance/ee (K1) and derivative children (K2).   The petitioner has the burden to prove whether or not a prior conviction is a ‘specified offense against a minor.’”

If a person has a disqualifying charge, then he can apply for a “no risk” exception as described in the Aytes Memorandum of February 8, 2007 (Aytes Memo). “The Aytes Memo stresses that USCIS may not approve a family-based petition if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the safety or well-being of the beneficiary (and any derivative beneficiary)  for whom a petition was filed.”

“The Aytes Memo listed the following factors that should be considered in the “no risk” analysis: (1) The nature and severity of the petitioner’s specified offense(s) against a minor, including all facts and circumstances underlying the offense(s);  (2) The petitioner’s criminal history;  (3) The nature, severity, and mitigating circumstances of any arrest(s), conviction(s), or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary; (4) The relationship of the petitioner to the principal beneficiary and any derivative beneficiary;  (5) The age and, if relevant, the gender of the beneficiary;  (6) Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and (7) The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.”

“In cases where none of the intended beneficiaries are children, the Aytes Memo directs the close examination of the petitioner’s specified offense and other past criminal acts (ex: spousal abuse or domestic violence)  to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. However, USCIS uses the “beyond a reasonable doubt” standard in the “no risk’ analysis, and in a 2014 decision, the Board of Immigration Appeals ruled that it lacked the authority to review the propriety and USCIS’ use of that standard in adjudicating petitions under the Adam Walsh Act.” [83]

On May 20, 2014, the Dept. of Homeland Security “DHS got the Board of Immigration Appeals (BIA) to ratify the startling power that the DHS may deport a noncitizen for a crime committed by someone else.”

“On May 20, 2014, in the trilogy of decisions that are Matter of Aceijas-Quiroz, Matter of Introcaso, Matter of Jackson and Erandio, the Board answered some of these questions and refused to address others on jurisdictional grounds. Each decision represents a particular pronouncement of law regarding the AWA. As a single piece of work, the story is far more disturbing. In Aceijas-Quiroz the BIA held that it lacked the authority to review any challenges brought against the legal standard used by USCIS—“beyond a reasonable doubt”—when conducting a “no risk” analysis…In Introcaso, the BIA explained that a visa petitioner bore the burden of proving whether or not an offense was a “specified offense against a minor…In Jackson and Erandio the BIA held that the AWA applied to all convictions made by any United States citizen at any time – even those that occurred, as they did in Jackson and Erandio, twenty-five years before the AWA’s enactment…The impact of these three decisions will undeniably be devastating for those families caught up in the immigration related provisions of the AWA. It now becomes far more likely that their visa petitions will be denied, without any meaningful opportunity to obtain administrative review of such denials.” [84]

The Immigrant Legal Resource Center advises attorneys, “Where the victim is a minor, counsel should attempt to plead to an offense that does not appear in the above list. If that is not possible, counsel should keep the age of the victim out of the reviewable record. However, it is not clear that the inquiry will be limited to the reviewable record and the categorical approach.” [85]

So what are your chances of obtaining an exemption under the Aytes Memo? Not very high, according to the USCIS. An article posted at ACSOL on Nov. 13, 2016 noted the USCIS expects to reject over 4000 petitions by 2017. “For years after its enactment, the USCIS has either outright denied or intentionally stalled thousands of family petitions that it determined to fall within its own AWA policy. By 2011, after several years of long delays, the USCIS denied virtually all AWA applications held at the agency for review since 2008. The agency reports that it receives 400-600 AWA application per year and boosts that it has denied 99% of all AWA family petitions received.” [86]

(NOTE: More info specific to idssues regarding International Dating/Marriage can be found at https://fightawa.org/)

Travel issues under the Adam Walsh Act

While the Adam Walsh Act did not cover travel, the SMART Office in 2011 exercised ‘‘[t]he authority under 42 U.S.C. 16914(a)(7) to expand the range of required registration information * * * to provide that registrants must be required to inform their residence jurisdictions of intended travel outside of the United States at least 21 days in advance of such travel.’’ [87] This rule was adopted by failed versions of International Megan’s Law, a law passed in February 2016 and covers travel issues. The SMART Office downplayed the concerns of those whose travel rights  would be hindered, if not outright eradicated, by the travel requirements when it stated, “However, these  supplemental guidelines recognize that there may be circumstances in which requiring 21 days advance notice would be unnecessary or inappropriate, and expressly allow jurisdictions to adopt policies accommodating such situations subject to approval by the SMART Office.” [88] This statement, however, is very  vague and confusing – the SMART Office states on one hand that it recognizes the 21 day advance notice originally proposed by IML and adopted by the SMART Office isn’t always feasible; on the other hand, states that create rules regarding this unique circumstance must have those rules approved by the SMART Office. The SMART Office fails to offer a single example to assist states adopt such rules. [89]

The case of Carr v. US, 560 US 438 (2010), dealt with failing to register travel that took effect before the AWA’s effective date. In a 6-3 decision, Court reasoned that the plain language and legislative history of the statute suggest that it does not apply to conduct that predates its enactment. 

In Nichols v. US, 578 US _ (2016), in a rare 9-0 decision, held that SORNA requires that sexual offenders notify states to which they move or reside. The Court interpreted the present tense of “reside” in the statute to mean that an offender must currently be living in a U.S. jurisdiction for the requirement to take effect. Therefore, a registered sex offender does not violate SORNA by failing to update his registration when he moves from a U.S. jurisdiction to a non-U.S. jurisdiction. The High Court in the Nichols case noted, however, that “Our interpretation of the SORNA provisions at issue in this case in no way means that sex offenders will be able to escape punishment for leaving the United States without notifying the jurisdictions in which they lived while in this country. Congress has recently criminalized the ‘knowin[g] fail[ure] to provide information required by [SORNA] relating to intended travel in foreign commerce.’ International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. 114–119, §6(b)(2), 130 Stat. 23, to be codified at 18 U. S. C. §2250(b). Such information includes ‘anticipated dates and places of departure, arrival, or return[;] carrier and flight numbers for air travel [;] destination country and address or other contact information therein,’ et cetera.”

Thus, the current expectation of registrants leaving the US, whether for travel or for permanent relocation, is registering three weeks in advance before leaving the US. Both SCOTUS cases have no real effect on current travel or relocation plans.

Bail under the Adam Walsh Act

The Adam Walsh Act interferes with the right to pretrial bail, as noted in report published in the Northwestern University School of Law’s Law Journal: “Before the AWA Amendments were passed, a judicial officer exclusively decided, on a case-by-case basis, whether to release a defendant, whether to impose pretrial release conditions, and what pretrial release conditions to impose. The AWA Amendments, in contrast, impose mandatory pretrial release conditions, including electronic monitoring and curfew, on all defendants charged with certain enumerated sexual offenses against children.”

“Congress must repeal the AWA Amendments or, in the alternative, revise them so defendants can avoid the imposition of these now mandatory release conditions with rebuttal evidence that the conditions are not necessary to ensure the public’s safety. First, the AWA Amendments must be repealed or revised because they are unconstitutional on their face as a violation of the Excessive Bail and Due Process Clauses. Second, the Amendments’ imposition of mandatory pretrial release conditions is inconsistent with one of the core principles of federal pretrial release under the BRA—judicially determined individualized bail. Lastly, the Amendments do considerably more harm than good because costly pretrial release conditions are imposed automatically even when they are unnecessary to ensure the public’s safety.” [90]

As with other provisions of the AWA, the bail revisions were passed “without a stated purpose or any supporting congressional findings.” As of 2011, “To date, seventeen federal courts have addressed the constitutionality of the mandatory conditions imposed by the undesignated paragraph of the AWA Amendments. Seven have held that the AWA Amendments violate the Excessive Bail Clause of the Eighth Amendment, eleven have found Fifth Amendment due process violations, three have determined that the Amendments contravene the separation of powers doctrine, and only two of these decisions have been reversed.” [91]

Universal Standard is NOT Universal

One of the key selling points repeated by proponents of legislators was that the Adam Walsh Act would create a universal standard so registrants wouldn’t flee legislation. As noted earlier, Sen. Hatch proclaimed the AWA “creates a National Sex Offender Registry with uniform standards for the registration of sex offenders, including a lifetime registration requirement for the most serious offenders. This is critical to sew together the patch-work quilt of 50 different State attempts to identity and keep track of sex offenders…” [92]

The SMART Office boasts: “Since our inception, we’ve helped 17 states, 99 tribes, and three territories to substantially implement SORNA’s requirements. While not every jurisdiction is SORNA-compliant, many have aspects of the law in place and are on the path to achieving substantial implementation.” [93] However, even states considered “substantially compliant” with the Adam Walsh Act vary greatly in practice, since SORNA has been interpreted by the SMART Office as a “comprehensive set of minimum standards.” [94] The SMART Office also claims the only true barrier to state compliance with the AWA was states’ “opposition to SORNA requirements.” [95]

Of the 17 states that are considered “substantially compliant” with the Adam Walsh Act, Alabama, [96] Florida, [97] South Carolina, [98] Tennessee, [99] and Wyoming [100] demand lifetime reporting for all adult offenders. The other 12 states have adopted a three-tiered system. A 2013 GAO reports of 19 jurisdictions that had adopted the AWA by 2013, 18 of them had “allowable” deviations from SORNA (Only Kansas lacked any significant deviations). The 3 US Territories had only one deviation; AL, MD, MI, MO, MS, and SC had the least amount of deviations (3), with SD and TN having the most deviations (9).  The number of jurisdictions with allowable deviations also varied across the 14 sections of SORNA requirements, with the highest number of deviations being allowed in the information that is required at registration (14 of 19 jurisdictions), the classification or tiering of offenses (13), application of the requirements retroactively (11), and the offenses that must be included in a jurisdiction’s sex offender registry (10). [101]

Of course, these deviations tend to be above and beyond the SORNA compliance threshold (as evidenced by the SORNA-compliant states with minimum lifetime registration). Amy Borror of the Ohio Public Defenders Office explained, “The Guidelines offer that the ‘substantial’ compliance standard ‘contemplate[s] that there is some latitude to approve a jurisdiction’s implementation efforts, even if they do not exactly follow in all respects the specifications of SORNA or these Guidelines.’ However, the Guidelines also say that the Adam Walsh Act presents a set of ‘minimum national standards,’ and that the Guidelines ‘set a floor, not a ceiling,’ for states’ registration systems.”

These two statements, taken together, imply that a state’s implementation efforts do not have to ‘follow in all respects’ the Adam Walsh Act or the Guidelines, but only if the state chooses to exceed the requirements of the Act or the Guidelines. These two statements seem to define ‘substantial’ compliance as something at or above 100 percent compliance. That, of course, is an illogical and unfounded definition of ‘substantial,’ and clearly goes beyond what is required by the Adam Walsh Act. The Guidelines instruct that nothing less than strict compliance will be sufficient, while the Act requires only the substantial implementation of the federal law.”

Further, the characterization of the Guidelines as a “floor” is disingenuous. It is akin to Congress declaring that a speed limit of 95 miles per hour is now the floor for speed limits across the nation. States could feel free to exceed that requirement and set the speed limit within their jurisdiction at a higher rate, but 95 miles per hour would be the new national minimum. Ohio and other states, with speed limits ranging from 55 to 75 miles per hour, would be left staring upward at the 95-mile-per-hour floor, wondering how to achieve that level, whether doing so would be worth the effort and cost of implementation, and most importantly, what impact the implementation of this new federal requirement would have on public safety.” [102]

Obviously the Adam Walsh Act has failed to render the “patch-work quilt” of sex offender laws less confusing.

What exactly does it take to become “substantially compliant” with the Adam Walsh Act, according to the agency tasked with promoting the Adam Walsh Act, the SMART Office? There are 14 main points that determines the degree of compliance, according to the SMART Office’s “Substantial Compliance checklist. [103] (Amazingly, the SMART Office states on the form this checklist is not a “definitive guide to SORNA’s full implementation requirements. Also note that being “substantially compliant” with the AWA means compliance only with the SORNA rules.) Below is the full SORNA substantial Compliance List as of July 2016:

1. Immediate Transfer of Information: Jurisdictions must make registration info available on where a registrant resides, is an employee, or is a student and each jurisdiction from or to which a change of residence, employment, or student status occurs within 3 business days.
2. Offenses that must be included on the registry: Any sex crime as defined as a registerable offense by federal law or an equivalent state law committed by an adult, juveniles 14 and over tried as adults, or juveniles 14 and over adjudicated for aggravated sexual abuse or the equivalent state law. Below is the full range of registerable sex offenses under SORNA:

• SEXUAL ACTS AND SEXUAL CONTACT OFFENSES. These include criminal offenses that have an element involving a sexual act or sexual contact with another. The offenses covered include all sexual offenses whose elements involve: (i) any type or degree of genital, oral, or anal penetration, or (ii) any sexual touching of or contact with a person’s body, either directly or through the clothing.
• SPECIFIED OFFENSES AGAINST MINORS. A criminal offense against a minor that involves any of the following:

1. 1. Non-Parental Kidnapping
   2. Non-Parental false imprisonment
   3. Solicitation to engage in sexual conduct
   4. Use in a sexual performance
   5. Solicitation to practice prostitution
   6. Video voyeurism
   7. Possession, production, or distribution of child pornography
   8. Criminal sexual conduct involving a minor
   9. Use of the internet to facilitate criminal sexual conduct involving a minor
   10. Any conduct that by its nature is a sex offense against a minorSPECIFIED

• FEDERAL OFFENSES. These include the following specific offenses:

• 1. 18 U.S.C. §1591 (Sex Trafficking of Children)
  2. 18 U.S.C. §2241 (Aggravated Sexual Abuse)
  3. 18 U.S.C. §2242 (Sexual Abuse)
  4. 18 U.S.C. §2243 (Sexual Abuse of a Minor or Ward)
  5. 18 U.S.C. §2244 (Abusive Sexual Contact)
  6. 18 U.S.C. §2245 (Offenses Resulting in Death)
  7. 18 U.S.C. §2251 (Sexual Exploitation of Children)
  8. 18 U.S.C. §2251A (Selling or Buying of Children)
  9. 18 U.S.C. §2252 (Material Involving the Sexual Exploitation of Minors)
  10. 18 U.S.C. §2252A (Material Containing Child Pornography)
  11. 18 U.S.C. §2252B (Misleading Domain Names on the Internet)
  12. 18 U.S.C. §2252C (Misleading Words or Digital Images on the Internet)
  13. 18 U.S.C. §2260 (Production of Sexually Explicit Depictions of a Minor for Import in to the United States)
  14. 18 U.S.C. §2421 (Transportation of a Minor for Illegal Sexual Activity)
  15. 18 U.S.C. §2422 (Coercion and Enticement of a Minor for Illegal Sexual Activity
  16. 18 U.S.C. §2423 (Transportation of Minors for Illegal Sexual Activity, Travel With the Intent to Engage in Illicit Sexual Conduct with a Minor, Engaging in Illicit Sexual Conduct in Foreign Places))
  17. 18 U.S.C. §2424 (Failure to File Factual Statement about an Alien Individual)
  18. 18 U.S.C. §2425 (Transmitting Information about a Minor to further Criminal Sexual Conduct)
• SPECIFIED MILITARY OFFENSES. These include sex offenses under the Uniform Code of Military Justice, as specified by the Secretary of
  Defense. These offenses are primarily located at 28 C.F.R. §571.72(b).
• ATTEMPTS AND CONSPIRACIES. These include attempts and conspiracies to commit offenses that are otherwise covered by the definition of
  “sex offenses.”
• Tiering of Offenses: SORNA’s idea registration system classifies registered citizens into three tiers based on the official crime.

1. 1. Tier I Offenses — Convictions that have an element involving a sexual act or sexual contact with another, that are not included in either Tier II or Tier III, including: False Imprisonment of a Minor; Video Voyeurism of a Minor; Possession or Receipt of Child Pornography; The following Federal Offenses: Video Voyeurism of a Minor, 18 U.S.C. Receipt or Possession of Child Pornography, Receipt or Possession of Child Pornography, Misleading Domain Name, Misleading Words or Digital Images, Coercion to Engage in Prostitution, Travel with the Intent to Engage in Illicit Conduct Engaging in Illicit Conduct in Foreign Places; Arranging, inducing, procuring, or facilitating the travel in interstate commerce of an adult for the purpose of engaging in illicit conduct for financial gain); Filing Factual Statement about Alien Individual, Transmitting Information about a Minor to further Criminal Sexual Conduct; Any comparable military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. §951 note)
   2. Tier II Offenses —Convictions that involve: A person previously convicted of a tier I offense whose current sex offense conviction is punishable by more than one year imprisonment: The use of minors in prostitution (to include solicitations); Enticing a minor to engage in criminal sexual activity; A non-forcible Sexual Act with a minor 16 or 17 years old; Sexual contact with a minor 13 or older; The use of a minor in a sexual performance; The production or distribution of child pornography; The following Federal Offenses: Sex Trafficking by Force, Fraud, or Coercion; arranging, inducing, procuring, or facilitating the travel in interstate commerce of an adult for the purpose of engaging in illicit conduct for financial gain; Abusive Sexual Contact, Victim 13 or Older; Sexual Exploitation of Children; Selling or Buying of Children; Sale or Distribution of Child Pornography; Sale or Distribution of Child Pornography; Producing Child Pornography for Import; Transportation for Prostitution; Coercing a Minor to Engage in Prostitution, Transporting a Minor to Engage in Illicit Conduct; Any comparable military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. §951 note)
   3. Tier III Offenses — Convictions that involve: A person previously convicted of a tier II offense whose current sex offense conviction is punishable by more than one year imprisonment; Non-parental kidnapping of a minor; Sexual contact with a minor under 13; The following Federal Offenses: Aggravated Sexual Abuse; Sexual Abuse; Sexual Abuse of a Minor or Ward; Abusive Sexual Contact, victim under 13; Any comparable military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. §951 note)

• Required Registration Information: All records are in a digital format.

1. 1. Criminal History information, including: Date of all arrests; Date of all convictions; Status of parole, probation, or supervised release; Registration status; Outstanding arrest warrants.
   2. Date of Birth, including: Actual date of birth or Purported date of birth.
   3. DNA, including: A DNA sample must be taken, or must have been taken, from the sex offender for purposes of analysis and entry of the resulting DNA profile into the Combined DNA Index System (CODIS); Samples are analyzed and submitted for entry to CODIS.
   4. Driver’s License or ID Card: A photocopy of a valid driver’s license or identification card (to include a tribal identification card) issued to the sex offender by a jurisdiction.
   5. Employment Information, including: Employer Name (Business Name); Employer Address; Transient/day labor employment information.
   6. Fingerprints: taken and submitted to IAFIS.
   7. Internet Identifiers, including: Email addresses; Instant Message addresses/identifiers; any other designations or monikers used for self-identification in Internet communications or postings; all designations used by sex offenders for purposes of routing or self- identification in Internet communications or postings.
   8. Name, including: Primary, given name; Nicknames, aliases, pseudonyms generally, regardless of context in which it is used; Ethnic or Tribal names by which they are commonly known.
   9. Palm Prints: taken and submitted to the FBI Central Database (Next Generation Identification Program).
   10. Passports and Immigration Documents, including: Digitized copies of passports; digitized copies of immigration documents.
   11. Phone Numbers, including: Telephone numbers and any other designations used by sex offenders for purposes of routing or self-identification in telephonic communications; Land line telephone numbers; Cell phone telephone numbers.
   12. Photograph collected unless appearance has not changed significantly, on the following schedule: Tier I Offender, Once every Year; Tier II Offender, Once every 6 Months; Tier III Offender, Once every 90 Days.
   13. Physical Description, including: Physical description of the sex offender; General description of physical appearance or characteristics; Any identifying marks, such as scars or tattoos, etc.
   14. Professional Licensing Information: Concerning all licensing of the registrant that authorizes the registrant to engage in an occupation or carry out a trade or business
   15. Resident Address, including: Address of each residence at which the sex offender resides or will reside; if no permanent residence, location or description that identifies where the sex offender “habitually lives.”
   16. School Name and Address.
   17. Social Security Number: Valid social security number; Purported social security number(s).
   18. Temporary lodging information, including: Identifying information (location) of temporary location(s), Dates of travel.
   19. Text of Registration Offense:  The text of the provision of law defining the offense for which the sex offender is registered
   20. Vehicle Information of all vehicles owned or operated by the offender, whether for work of personal use, including: License plate number, Registration number or identifier, Land Vehicles, Aircraft, Watercraft, Description of all vehicles identified above and Permanent or frequent location where all vehicles are kept.

• Where registration is required: Any registrant convicted within the jurisdiction, who complete their sentence of incarceration in the jurisdiction are required to initially register, who reside in the jurisdiction, who are employees in the jurisdiction (employee includes self-employed and labor, including volunteer work), or who are students in the jurisdiction are required to register.
• Initial Registration—Timing and Notice: Within 3 days of a registrant establishing residence, employment, or school attendance within the jurisdiction; if incarcerated in the jurisdiction, before the registrant is to be released; within three days of conviction. Duties of a Jurisdiction When an Offender Initially Registers: Inform the sex offender of his or her duties under SORNA, Explain the SORNA duties to registrants, require the sex offender to read and sign a form stating that the duty to register has been explained and that the registrant understands the registration requirement, and ensure that the registrant is registered.
• Initial Registration—Retroactive Classes of Offenders: Procedure in place to recapture three categories of sex offenders: Currently incarcerated or under supervision, either for the predicate sex offense or for some other crime; Already registered or subject to a pre-existing sex offender registration requirement under the jurisdiction’s law; Reenter the jurisdiction’s criminal justice system because of a conviction for some other felony crime (whether or not it is a sex offense). The initial registration of these recaptured offenders must take place within a certain amount of time (from date of implementation of SORNA in the jurisdiction), depending on the tier classification of the sex offender: Tier I Offenders, Within One Year; Tier II Offenders,  Within 6 Months, Tier III Offenders, Within 3 Months.
• Keeping Registration Current: Registrants are required to update any changes to the following:
• Residence Jurisdiction —
  
  1. Immediately appear in-person to update any of the following information: Name, Residence, Employment, School Attendance, Termination of residence
  2. Immediately update any changes to the following information (an in-person appearance is not required): Email addresses, Instant Message addresses, Any other designations used in internet communications, postings, or telephone communications, Vehicle Information, Temporary Lodging Information; Upon receipt of this information, the jurisdiction must immediately notify the jurisdiction in which the offender will be temporarily staying
  3. Duties of the Residence Jurisdiction When An Offender Intends to Relocate to Another Country: Immediately notify any other jurisdiction where the sex offender is either registered, or is required to register, of that updated information; Immediately notify the U.S. Marshals Service; Immediately update NCIC/NSOR Information
• Employer Jurisdiction — When an offender is employed in a jurisdiction, but neither resides nor attends school there, that offender must immediately appear in-person to update any of the following information: Employment-related information in that jurisdiction, and termination of employment in that jurisdiction.
• School Jurisdiction — When an offender attends school in a jurisdiction, but neither resides nor works there, that offender must Immediately appear in-person to update any of the following information: School-related information in that jurisdiction, and termination of school in that jurisdiction.
• International Travel: Duties of the Residence Jurisdiction When An Offender Intends to Travel to Another Country:

1. 1. Offender must report intent 21 days in advance of travel.
   2. Immediately notify any other jurisdiction where the sex offender is either registered, or is required to register, of that updated information
   3. Immediately notify the U.S. Marshals Service
   4. Immediately update NCIC/NSOR Information

• Verification/ Appearance Requirements:
  
  1. Tier I Offenders must register once a year for 15 years.
  2. Tier II Offenders must register every 6 months for 25 years.
  3. Tier III Offenders must register: Every 3 months for life.
  4. At the sex offender’s regularly-scheduled in-person appearance, the following must occur: A current photograph must be allowed to be taken, and the registrant must review the existing registration information for accuracy.

• Reduction of registration duties: There are only two classes of registrants that SORNA permits to have a reduced registration period, provided certain requirements are met.  The first is any Tier I offender, and the second is any Tier III offender who is required to register because of a juvenile adjudication.
  
  1. Tier I Offender — An offender’s registration and notification requirement may be terminated if the following conditions are met: The registrant has had ten years with a “clean record”; Not being convicted of any offense for which imprisonment for more than 1 year may be imposed; Not being convicted of any sex offense; Successful (without revocation) completion of any periods of supervised release, probation, and parole; Successful (without revocation) completion of any periods of supervised release, probation, and parole; Successful completion of an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General. (42 USC §16915(b)(1)).
  2. Tier III Offender — An offender’s registration and notification requirement may be terminated if the following conditions are met: The registrant is required to register based on a juvenile delinquency adjudication for an offense which required Tier III registration; The registrant has had twenty-five years with a “clean record”; Not being convicted of any offense for which imprisonment for more than 1 year may be imposed; Not being convicted of any sex offense; Successful (without revocation) completion of any of supervised release, probation, and parole; Successful completion of an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General. (42 USC §16915(b)(1)).

• Registry Website Requirements

1. 1. The jurisdiction must participate fully in the National Sex Offender Public Website, including taking the necessary steps to enable all field search capabilities required by NSOPW, including but not limited to: Name; County, City or Town; Zip Code; Geographic Radius;
   2. Links to sex offender safety and education resources;
   3. Instructions on how to seek correction of information that an individual contends is erroneous.
   4. 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…and that any such action could result in civil or criminal penalties.”
   5. Website Search-field capability: Name; County, City and/or Town; Zip Code; Geographic Radius.
   6. Items that must be displayed on public registry website: Absconder (when the offender is in violation or cannot be located, the website must note this fact); Criminal History (any other sex offense for which the sex offender has been convicted); Current Offense: the sex offense for which the offender is registered; Employer address; Name,  including all aliases; Photograph (current); Physical description; Resident Address, including any information about where the offender “habitually lives”; School address; Vehicle(s) information, including license plate number(s); and vehicle description(s).
   7. Information That Is NOT Permitted to be Displayed on Public Websites: Victim Identity, Criminal History (any arrests not resulting in conviction); Social Security Number; Travel and Immigration Document Numbers; Internet Identifiers.
   8. Witness Protection: Jurisdictions are permitted and encouraged to make provision in their laws and procedures to accommodate consideration of the security of such individuals and to honor requests from the United States Marshals Service and other agencies responsible for witness protection in order to ensure that their original identities are not compromised.

• Community Notification

1. 1. Law Enforcement Notification — Whenever a registrant initially registers in a jurisdiction, or updates their registration information in a jurisdiction, the jurisdiction must immediately notify the specific agencies and monitor the SORNA Exchange Portal for inter-jurisdictional changes; monitor or utilize the SORNA Exchange Portal for inter-jurisdictional change of residence, employment or student status; notify each jurisdiction where the sex offender resides, is an employee, or is a student, and each jurisdiction from or to which a change of residence, employment, or student status occurs; update NCIC/NSOR; notify Police Departments; notify Sheriffs’ Offices; notify Prosecutor’s Offices; notify Probation Agencies; notify any other agencies with criminal investigation, prosecution, or sex offender supervision functions; notify any agency responsible for conducting employment-related background checks under section 3 of the National Child Protection Act of 1993 (42 U.S.C. 5119a)
   2. General Community Notification — Whenever a registrant initially registers in a jurisdiction, or updates their registration information in a jurisdiction, and a jurisdiction follows the procedures General Community Notification — Whenever a sex offender  initially registers in a jurisdiction, or updates their registration information in a jurisdiction, and a jurisdiction follows the procedures outlined below, it will be sufficient to comply with the general community notification portion of SORNA: An automated notification system  is adopted by the jurisdiction that incorporates the following features; any initial registration, and any changes in a sex offender’s registration information, are posted to the jurisdiction’s public registry website within three business days; An email notification (including a sex offender’s identity) is made available to the general public whenever a sex offender commences: Residence, Employment, School attendance, Within a certain zip code or geographic radius.

• Failure To Register (FTR)

1. 1. Failure To Register—State Penalty: Unless the jurisdiction is a federally recognized Indian tribe, the minimum penalty must be 1 year in prison.
   2. When a Registrant Fails To Register: Jurisdictions must inform other jurisdictions of the Failure To Register
   3. When a Jurisdiction has information that a Registrant may have absconded: An effort must be made to determine whether the sex offender has actually absconded. If no determination can be made, then a law enforcement agency with jurisdiction to investigate the matter must be notified. If the information indicating the possible absconding came through notice from another jurisdiction or federal authorities, the authorities that provided the notification must be informed that the sex offender has failed to appear and register. If an absconded sex offender cannot be located, then the jurisdiction must take the following steps:

1. 1. 1. The information in the registry must be revised to reflect that the sex offender is an absconder or unlocatable;
      2. A warrant must be sought for the sex offender’s arrest, if the legal requirements for doing so are satisfied;
      3. The United States Marshals Service, which is the lead federal agency for investigating sex offender registration violations, must be notified;
      4. The jurisdiction must update NCIC/NSOR to reflect the sex offender’s status as an absconder or unlocatable;
      5. The jurisdiction must enter the sex offender into the National Crime Information Center Wanted Person File (assuming issuance of a warrant meeting the requirement for entry into that file)

This laundry list of changes has proven to be a monumental task to many states. In 2009, the National Consortium for Justice Information and Statistics conducted a survey of all 50 states on SORNA compliance. Of the 47 states that responded to the survey, two refused to answer the questions, and 42 of the remaining 45 stated they would need to pass legislation to become compliant with SORNA. Two states were unsure if legislation was needed. One state declared reluctance to pursue SORNA compliance after two previous attempts failed. None of the states that responded were considered compliant at the time of the survey. Juvenile registration (23 states), retroactivity (20 states), cost (7 states) and the structure of SORNA’s classification scheme (7 states) were considered the most common barriers to compliance. Other barriers cited included in-person verification, palm print collection, the need for additional staff, Background check logistics, no recourse for the offender to get off the registry, SORNA’s definition of “substantial compliance,” Conflicts with state constitutions or state laws, Updating offender information, transforming from a risk-based to a conviction-based assessment, increased verification requirements, and overly restrictive compliance standards. [104]

The 2013 GAO report found of 29 non-SORNA states, the greatest barriers to SORNA compliance was “reconciling compliance between state laws and SORNA (22 of 29 considered it a “major challenge), generating the political will to push for SORNA compliance (21), retroactivity (18), cost (16), juveniles on the registry (16) and applying SORNA’s tier structure (16). [105]

Of 17 states in the GAO report that submitted “complete implementation packages” for SMART Office review, most had implemented at least half the requirements. Of the 14 points of implementation, only Point V (Where registration is required) and Point XII (Failure To Register—State Penalty) were fully implemented by all the jurisdictions. Points II (Offenses that must be included on the registry) and X (Registry Website Requirements) were the least successfully adopted points of SORNA compliance among the implementation packages. [106]

The GAO report found that the only real benefit to SORNA compliance was increased data sharing between jurisdictions, but cites negative effects of tier system not considering re-offense risk; increased workloads, and impaired ability of registrants to reintegrate into community.  Larger effects on public safety are largely unstudied. [107]

Ultimately, this bill that had been heralded as a uniform standard is not really uniform, with degrees of deviations allowed by the SMART Office in an attempt to push the AWA for all 50 states. Interestingly, Ohio, the first state to adopt the AWA and congratulated by the SMART Office for “put forth exceptional work and effort in adopting SORNA and enhancing its sex offender registration and notification system,” Ohio still has a number of deviations from full SORNA compliance. [108]

Impact of the AWA on the welfare of registered citizens

There is little research that has studied the direct impact of the Adam Walsh Act itself on registered citizens; however, there have been studies on the impact on registered citizens and their families. The most notable impact was the 2009 Levenson and Tewksbury study found, “Employment problems experienced by the RSO, and subsequent financial hardships, emerged as the most pressing issue identified by family members. The likelihood of housing disruption was correlated with residential restriction laws; larger buffer distances led to increased frequencies of housing crisis. Family members living with an RSO were more likely to experience threats and harassment by neighbors. Children of RSOs reportedly experienced adverse consequences including stigmatization and differential treatment by teachers and classmates. More than half had experienced ridicule, teasing, depression, anxiety, fear, or anger. Unintended consequences can impact family members’ ability to support RSOs in their efforts to avoid recidivism and successfully reintegrate.” [109]

A 2016 Jobs and Welfare Survey of 307 registered citizens found registrants living in AWA-compliant states were MORE likely than those living in non-AWA states to report being currently homeless (4.05% AWA vs 2.6% non), being unemployed (47.97% AWA vs 36.36% non), being denied a job (61.86% AWA vs 54.61% non), being harassed at work (53.57% AWA vs 47.66% non), and being forced to rely on public assistance (57.43% AWA vs. 50% non). [110] This study strongly suggests the Adam Walsh Act exacerbates the negative consequences of the public registry. Further studies would be needed to understand the impact of the Adam Walsh Act on registered citizens as compared to existing laws.

The SMART Office

The ironically-named “SMART Office” (Sex-offender Monitoring, Apprehending, Registration, and Tracking) is also worthy of mention as it was a bureaucracy created by the Adam Walsh Act (Sec. 146) for the sole purpose of promoting and enforcing the AWA. “In December 2006, the SMART Office officially opened for business when President Bush appointed Laura L. Rogers, a career prosecutor, as the Director…The SMART Mission Statement: To assure that convicted sex offenders are prohibited from preying on citizens through a system of appropriate restrictions, regulations and internment.” [111] “Internment” conjures up images of the Japanese Internment camps of World War II, Gitmo/ Guantanamo Bay, Abu Ghraib, or even the Halliburton FEMA camps, but in the US, we already have an existing form of internment, known as “civil commitment,” [112] which is promoted in the AWA as the “Jimmy Ryce Civil Commitment Act.

Laura Rogers was the figurehead for the SMART Office for a number of years and testified before Congress numerous times, downplaying the difficulties by states to adopt the AWA, claiming states were rebelling against AWA implementation, and feigning ignorance of the tier system placement of juveniles on the public registry under SORNA. Laura worked for a decade as a prosecutor in San Diego, CA, where she boasted she “tried over 120 jury trials as a prosecutor, and have a 92% success rate.” [113] However, Rogers is most notable for fumbling her words when questioned about the placement of juveniles on the registry during the March 10, 2009 subcommittee hearing on the Reauthorization of the Adam Walsh Act.

Laura Rogers was eventually replaced by Linda Baldwin. Baldwin’s SMART Office Bio states Linda’s previous career was “a city planner for the City of New York’s Department of Housing Preservation and Development and Department of City Planning,” receiving a master’s degree in urban planning before going for a law degree. “Prior to joining the New York State Unified Court System, Ms. Baldwin spent eight years in private practice, concentrating in commercial litigation, real estate and zoning law.” “As part of her work on the New York State Sex Offense Court Initiative, Ms. Baldwin organized training programs designed to teach and promote best practices for managing the high risk population of sex offenders. Ms. Baldwin led an effort to create the Initiative’s Mission Statement and Key Principles, which were designed to guide and promote uniformity among these courts.” [114] Based on this bio, it seems Linda Baldwin had little, if any, actual experience in the criminal justice field before taking over duties at the SMART Office. (Interestingly enough, New York opted out of Adam Walsh Act compliance in 2011. [115])

One interesting aspect of the NY Sex Offender Courts is the “Sex Offense Courts depend on successful interaction with stakeholders. Judicial monitoring and community supervision are more effective when the court, probation department, district attorney, defense attorneys and victim service agencies understand each other’s role. Accordingly, Sex Offense Courts should become familiar with the whole range of available services in their county, hold regular stakeholder meetings both during the planning process and post-implementation, and, where feasible, collaborate with stakeholders on training programs and other projects.” [116] The use of the term “stakeholders,” a term associated with business or gambling (or both) is unsettling. The SMART Office obviously has no vested interest in facts, as facts in favor of rejecting adopted of SORNA have been downplayed as mere rebellion against the laws, and the reports and testimony from the SMART Office sound petty and devoid of fact-finding.

BATTLEGROUND: OHIO

“It’s a mess created by politicians, and it’s going to be a mess for the courts to sort out.” – Franklin County Common Pleas Court Judge David E. Cain [117]

Ohio was the first state considered “substantially compliant” with the Adam Walsh Act. Ohio’s version of the AWA (known in Ohio as SB 10) was introduced on February 20, 2007, and passed both the House and Senate an “emergency” measure, effective as of June 30, 2007. [118] There were few dissenting votes against SB 10 (passed 32-1 in the Senate and 94-4 in the House). [119]

At least part of the motivation for passing the Adam Walsh Act was financial. As previously discussed, states failing to adopt SORNA would lose 10% of their Byrne/ JAG law enforcement funds. But Section 126 (c) of the AWA offered states a 10% bonus if they adopted SORNA within a year of the passage of the Federal AWA (which was on July 27, 2006) and a 5% bonus if the implementation was within two years. Ohio’s version took effect within the one-year time period. Ohio’s Fiscal Notes reported that the US Attorney General announced it would make $25 million available to assist with SORNA implementation, though also noting, “The actual monetary amounts available from any given grant program will depend upon the annual enactment of appropriations. Thus, as of this writing, until these authorized moneys have actually been appropriated, and the application period ensues, it is rather problematic to predict the grants, and related annual monetary amounts, that the state of Ohio and its political subdivisions could be awarded.” [120]

The Cleveland Free Times reported, “But the Ohio legislature rushed for nothing. Congress hasn’t acted to fund the bonuses in the first place, according to Amy Borror, spokeswoman for the Office of the Ohio Public Defender. ‘Congress hasn’t actually appropriated any money for that so, as of right now, it’s 10 percent of zero,’ she explains. ‘Even if there were money, even if it were $1 million or $2 million, that pales in comparison to the cost of implementing this.’” [121] There is no evidence that Ohio ever received a bonus for prompt implementation of SORNA, and it was not until September 30, 2009 that Ohio was formally recognized as substantially compliant with the AWA.

As stated earlier, Ohio had estimated the cost of implementing SORNA online registry requirements at $475,000 in one-time expenses and $85,000 in maintenance fees, though in 2012, they were paying $399,000 in registry website fees. It was not until the law began implementation that the true administrative costs of SB 10 would be realized.

Hamilton County, Ohio (Cincinnati Metro area) provides valuable insight into the cost of the Adam Walsh Act at the local level.  “At the local level, the Hamilton County’s Sheriff’s Department finds this re-classification has increased the sexual predator group (the new Tier III) from 400 in late 2007 to about 1,100 predators with the enactment of Senate Bill 10 on January 1, 2008. Costs for postage for required mailed notifications are expected to rise from $250,000 in 2007 to $500,000 in 2008 if everyone within 1,000 feet of a predator is notified every 90 days. This projected cost does not include increased expenses of printing and staff for increased community notification. Currently the Sheriff’s Office has four employees who dedicate much of their time to sex offender registration and notification.” [122]

Local 12 Cincinnati reported an increase of labor for the local registry office. “It means more paperwork, more computer work. ‘It’s tripled. The workload for us has tripled.’ And because of all that… Deputy Adam Breeze, Hamilton County Sheriff’s Office: ‘No free time to do anything else. If we need to look at some files, or write a warrant, or investigate some offenders, it really cracks down on our time, in that aspect, with the tripling of our registration with offenders…’ In Hamilton County alone, 600 low level offenders are now high level offenders… same people, no new crime, just a new label.” [123] The Buckeye State Sheriffs’ Association estimated that the new law had increased sheriffs’ workloads by 60 percent. [124]

Statewide, Ohio’s registry flipped after implementing SB 10. Under Ohio’s old registration scheme, 77% of Ohio registrants were classified as “sexually oriented offenders” (i.e., Tier I), 4% were labeled “habitual sexual offenders” (Tier II), and 18% were labeled “sexual predators” (Tier III). Under SB 10, only 13% of offenders were reclassified into Tier I, 33% were in Tier II, and 54% were in Tier III. [125]

Under the old Ohio registration law, the lowest tier registered for 10 years and the second tier registered for 20 years; under SB 10, registration requirements increased to 15 years for the lowest tier and 25 years for the middle tier. Individuals who were set to get off the registry on July 1, 2007 had their registration periods immediately extended. [126] Registrants received letters from the Ohio Attorney stating their registration duties would continue, even if they were slated to be removed from the registry and despite the fact SB 10 would not be effective until January 1, 2008. [127] Thus, even those not reclassified under SB 10 added to the burden caused by the new law.

Among those who were reclassified under SB 10 was a woman who had a sexual relationship with a prison inmate while working as an Ohio prison guard. The woman pleaded guilty to two counts of “sexual battery” (as inmates cannot legally consent to sex) and, after a psychosexual evaluation that determined she was a low risk to society, was considered a Tier I under the old law. Under SB 10, she was reclassified as a Tier III. [128] Amy Borror testified, “Under Ohio’s old law, a person convicted of rape for consensual sex with a person four years and one day his junior might have been classified a sexually oriented offender, if that person had not been found likely to commit another sex crime. Also under Ohio’s old law, a person convicted of sexual imposition, a misdemeanor, might have been classified a sexual predator, if a judge found him likely to reoffend. Now, however, Ohio courts are mandated to classify the person convicted of rape as a Tier III offender and the person convicted of sexual imposition as a Tier I offender.”

Registered citizens wasted little time in voicing their disapproval of SB 10. The first recognized public demonstration of anti-registry activists was held at the Columbus Statehouse on December 2, 2007. [129]  Soon after SB 10 formally took effect a month later, lawsuits began flooding the courts. [130] Amy Borror testified, “In the 15 months since those reclassification letters were mailed, at least 6,352 petitions challenging the new law’s retroactive application have been filed in 78 of Ohio’s 88 counties. Ohio courts of appeals have issued decisions in at least 59 cases.” [131]

In 2009, the Ohio State Supreme Court accepted the case of State v. Bodyke, [132] and in 2010 the Court ruled that SB 10 violated the “Separation of Powers” doctrine and the act of reclassification by the Attorney General was unconstitutional. What the decision meant was simply that the state legislature violated the Constitution by granting the power to reclassify registered citizens (a judiciary power, specifically appellate courts) to the Attorney General (part of the executive branch). After the Bodyke decision, the lengthy process of reclassifying registered citizens began. Ted Hart, a spokesman for the Attorney General’s office, said staff was manually going through all records to determine which defendants had classification hearings under the old law. [133]

Legislators understood this was not a complete condemnation of the retroactive reclassification of registered citizens, so in February 2011, the Ohio House of Representatives introduced HB 77, [134] written to “clarify that SORN Law definitions of sexually oriented offenses, child-victim oriented offenses, tier classifications, public registry-qualified juvenile offender registrants, and related terms include the specified offenses regardless of when they were committed and to provide for court reclassification of offenders and delinquent children who committed their sexually oriented offense or child-victim oriented offense prior to January 1, 2008, and had SORN Law duties based on that offense into one of the tier classifications of the current SORN Law.” In other words, the bill would reinstate the SB 10 reclassifications that were stricken under the Bodyke decision.

However, there was no further action on HB 77, possibly due to a pending Ohio Supreme Court case that was submitted on March 1, 2011, known as State v. Williams. [135] This Ohio Supreme Court reinforced their view that SB 10 should not be applied retroactively. The state was leaning primarily on court decisions that ruled previous incarnations of the public registry were remedial, but the Ohio Supreme Court disagreed and ruled that SB 10 was punitive and thus could not be applied retroactively. [136]

The Williams decision is worthy of more in-depth review than the Bodyke decision, specifically because the state’s High Court ruled the Adam Walsh Act was punitive, something many other courts have been reluctant to admit. The Court noted the State’s heavily reliance on the 1998 State v. Cook decision (which ruled the registry was remedial in purpose), but noted that the law had changed twice since the Cook decision, once in 2005 under SB 5, and the second time under SB in 2008. The Court noted that even the changes made under SB 5, which the Courts upheld in State v. Ferguson, [137] contained some punitive elements, with that decision concluding, “Some factors pertaining to the statutory scheme governing sex offenders, however, suggested that the statutory scheme was punitive. First, the procedures for registration and classification of sex offenders were placed within Ohio’s criminal code, R.C. Title 29. Second, failure to comply with certain registration requirements subjected a sex offender to criminal prosecution. R.C. 2950.99.”

The Court in Williams stated, “Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive. The statutory scheme has changed dramatically since this court described the registration process imposed on sex offenders as an inconvenience ‘comparable to renewing a driver’s license.’ And it has changed markedly since this court concluded in Ferguson that R.C. Chapter 2950 was remedial.”

The Court noted the changes of SB 10, as applied to Williams, were as follows:

1. Under the old law, Williams was entitled to a hearing to determine his risk level; under SB 10, he was assigned a Tier II classification without a hearing.
2. Under the old law, courts ruled twice Williams’s crime did not require registration.
3. Under the old law, Williams’s crime would, at most, have required 10 years registration.
4. Williams was no longer granted an opportunity to challenge his classifications as it was automatic; judicial discretion was abolished; registration periods were extended and registration took place in multiple places.

The court could not state any one regulation that forced SB 10 across the line from regulatory rather than punitive. “Based on these significant changes to the statutory scheme governing sex offenders, we are no longer convinced that R.C. Chapter 2950 is remedial, even though some elements of it remain remedial…No one change compels our conclusion that S.B. 10 is punitive… It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional. When we consider all the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive.”

As of July 2016, Ohio registrants convicted before January 1, 2008 are subject to Ohio’s older, risk based classification scheme. Those convicted on January 1, 2008 or after are subject to registration under SB 10. In 2015, the Ohio Supreme Court ruled in a 5-2 decision that in-person registration for 25 years was not cruel and unusual punishment, citing, “such sanctions now are the norm…They cannot be said to be shocking to the sense of justice of the community.” [138]

BATTLEGROUND: NEVADA

“We had a really good sex offender law before the Adam Walsh Act… Sometimes you just need to say, ‘I’m sorry.’ A bad law is a bad law.” – Nevada State Senator Richard S. “Tick” Segerblom [139]

As of May 12, 2011, Nevada has been considered “substantially compliant” with the Adam Walsh Act. The GAO reported in 2013 that Nevada, like Ohio, had six deviations from full compliance with the AWA. [140] Like Ohio, Nevada pushed legislation through with no dissenters of note [141] to beat the deadline (possibly motivated by the aforementioned bonus contained within AWA Sec. 126 (c). “In an attempt to comply with SORNA, the Nevada legislature unanimously passed Assembly Bill (A.B.) 579, which Governor Jim Gibbons signed into law in June 2007. The statute was scheduled to go into effect on July 1, 2008, well before SORNA’s three-year deadline of July 27, 2009.” [142] Unlike Ohio, however, the fight against implementing the AWA is still ongoing.

The ACLU of Nevada won the initial victory against AB 579 in the US District Court of Nevada. [143] This court found, “The application of these laws retroactively is the equivalent a new punishment tacked on to the original sentence—sometimes years after the fact—in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions. Moreover, because they do not provide any procedural protections from their retroactive application, A.B. 579 and S.B. 471 violate the Due Process Clause of the U.S. Constitution.”

The Nevada Law Review reports, “In response to the district court’s entry of a permanent injunction, the Nevada legislature passed A.B. 85, which temporarily repealed A.B. 579 and S.B. 417. The legislature formed an advisory committee charged with studying the sex offender registration laws and proposing a solution to the contested legislation.” [144]

In 2012, the 9th Circuit Court reversed the District Court decision, holding the retroactive application is “constitutionally sound.” [145] The 9th Circuit relied heavily on Smith v. Doe decision as the justification for overturning the US District Court case. The Nevada Supreme Court had delayed proceedings on a juvenile SORNA case pending the 9th Circuit decision. Sadly, the state’s High Court in State v. Eighth Judicial Dist. Court (Logan D.) upheld the registration of juvenile offenders. The state’s High Court ruled, “[T]he legislature could have determined that juveniles adjudicated for the enumerated offenses, which represent the most serious of sexual offenses, are at a higher risk to reoffend—and thus pose a greater danger to the public—than juveniles adjudicated for other, less serious offenses. And consistent with the Legislature’s presumption since 1911 that children aged 14 and older know the wrongfulness of their actions, it could have also concluded that once a child reaches the age of 14, he or she commits a sex offense with knowledge that it is wrong and therefore poses a greater risk to the public than a younger child who commits the same offense.” [146]

The state was slated to enforce SORNA on February 1, 2014, but the Nevada Supreme Court placed a temporary stop on enforcement pending another challenge to the law, citing “issues of arguable merit” were raised by the latest lawsuit, including the overriding of the risk assessment system and retroactively registering individuals for convictions dating as far back as 1956. [147]

While AB 579 was being reviewed for the second time by the courts, the Nevada legislature proposed a handful of bills that would tweak the existing law, and one draft bill proposed tossing out AB 579 altogether. Nevada legislators also stated the federal law changed in regard to juvenile registration, allowing states to exercise discretion in the public disclosure of juveniles on the registry, and the legislature planned on changing the laws for juveniles during the next session. [148]

On January 30, 2015, the Nevada legislature introduced SB 99, [149] which would have abolished the changes made by AB 579 and returned Nevada to their prior system of registration. Among the primary concerns of AB 579, as reported in the media, was cost (no one could say if Nevada ever received any funds for adopting the AWA), juveniles on the registry, and the rigid offense-based classification system. [150] It passed unanimously by both the Senate and Assembly, but was vetoed by Governor “because it also eliminated a requirement that certain sex offenders stay at least 500 feet away from schools, parks and other places frequented by children.” [151]

On January 22, 2016, the Nevada Supreme Court denied a petition to enforcement of AB 579 while the case is continuing in the courts, putting 4,600 registrants not listed publicly in danger of being publicly disclosed. [152] On June 1, 2016, registrants received notices AB 579 would be enforced beginning July 1. [153]

On June 21, 2016, a last-ditch  effort to stop the July 1 enforcement of the law, arguing AB 579 is vague and overbroad in its application, and that the state is applying the law unequally and has no procedures for people to challenge their inclusion on the registry. “One plaintiff, identified as Doe 3, pleaded guilty in 1961 when he was 19 years old in California to a misdemeanor counts of indecent exposure and annoying a minor. He was not required to register as an offender. Now 74 and the father of four adult children, he will be required to register as a Tier 1 offender and be subject to community notification.” [154] On June 30, the Nevada Supreme Court rejected an emergency motion to postpone the enforcement of AB 579, allowing the information of nearly all of the state’s registrants to be listed publicly. AB 579 raised the number of Tier 3 registrants from 239 people to 3,014; 1,790 people would be added to the list as a Tier 2; names of another 426 of the state’s 1,646 lower-level Tier 1 offenders are also due to be published. The category includes people whose crimes involved children, but who were assessed as posing a low risk of re-offending. Their names weren’t made public in the past. About 1,300 of the 6,512 names in the sex offender registry aren’t due to be published. [155]

On July 1, 2016, the names of thousands of registered citizens went online for 4am until about 8:40am, after a State Supreme Court order stayed the execution of AB 579 James Wright of the Nevada Department of Public Safety stated in the media the agency was implementing the law and he hoped no harm was done during the brief, early morning hours when names were available. A legislative committee had just approved $545,000 for the Criminal History Repository to hire more staff to implement the law and meet the demand of running fingerprints and palm prints every three months for Tier 3 offenders. As of July 2016, implementation is once again placed on hold pending further judicial review, with no one sure of the length of this reprieve. [156]

SUMMARY

If the road to hell is paved with good intentions, then Congress provided the asphalt when it steamrolled the Adam Walsh Act through Congress. The bill was first introduced by Congressman Mark Foley in May 2005 and evolved many times over the coming months as numerous proposals were made, added to the bill, and taken out. Congressman James Sensenbrenner staged a coup of sorts by sponsoring his own version of the AWA, fast-tracking the bill through a subcommittee chaired by himself, and utilizing the controversial practice of “suspension of the rules” to weed out hotly contested hate-crime legislation without further legislative input. In July 2006, all proposals not directly related to registered sex offenders or sex crimes were weeded out of the bill, given the formal name of the Adam Walsh Child Protection and Safety Act of 2006, and quickly passed under a second suspension of the rules so it could be on the President’s desk in time for July 27, 2006, the 25 year anniversary of Adam Walsh’ death.

The bill was passed utilizing a combination of myths about sex crimes and a series of high profile cases occurring in recent years. Specifically, the myth of 100,000 missing sex offenders (sometimes arbitrarily reported as 150,000 by legislators) was used in conjunction with anecdotal examples of registrants who failed to register who committed subsequent crimes to justify the passage of the Adam Walsh Act. The AWA was also sold under the notion that this law would create a “universal” or ‘uniform” standard of registration so registrants would not flee across state lines to avoid registration. Television shows like NBC’s ‘To Catch a Predator” also played a key role in influencing the legislature. A number of high-profile victim advocates also advocated for the AWA, but TV host and advocate John Walsh (references of exploding rectum chips aside) was likely the greatest influence in inspiring legislators to fast-track this bill and name it in honor of Walsh’s murdered son.

Ten years later, only 17 states, 3 US Territories, and 100 federally recognized Native American Tribes have adopted the Adam Walsh Act.  Five states – Arizona, Arkansas, California, Texas and Nebraska – have elected not to pursue AWA and accept a 10% cut to federal law enforcement funding. Many states have found, however, the cost of implementing and maintaining the type of registry proposed by the AWA far exceeds the 10% loss of Byrne/ JAG funds. Ohio, the first state to adopt the AWA, found the cost of implementation and maintenance of the registry ran beyond the legislative estimates, including almost half a million dollars in annual registry maintenance costs and untold costs on local governments for increased registration and community notification. Ohio also spent over $10 million in court costs defending the law against thousands of lawsuits. Even in 2016, the AWA remains a largely unfunded mandate, with state absorbing practically the entire cost of implementing the law.

Other issues plaguing implementation of the Adam Walsh Act concerns the retroactive application of the law (which had been interpreted to drudge up convictions as far back as 1956) and placing juveniles as young as 14 on the public registry. The rigid, offense-based Tier system is inferior to the risk assessment system utilized in many states, and the AWA scheme lands more registrants on the higher tier levels, increasing overall registry costs. The bill was also condemned for inflexibility, and in many cases, “could not be implemented.” The AWA also affects registered citizens in both travel plans and immigration of immediate family members. The issue of state and Native American tribal sovereignty has also complicated implementation of the AWA. The AWA was also sold under the notion of creating a uniform standard (implying the law would be equal across the nation), but AWA states vary greatly in practice.

While there aren’t many studies showing the direct impact of the Adam Walsh Act on registered citizens, studies on the impact of the registry itself shows a number of negative and debilitating consequences on registered citizens and their families. Furthermore, a 2016 study found registrants in AWA-compliant states were more likely to report adverse effects of the registry compared to non-AWA states. The ironically-named SMART Office, created to promote the AWA, has downplayed the effects on registered citizens as well as the negative impact of the registry on the states, claiming resistance to the law is simply an act of rebellion. The SMART Office has proven incapable of the task of being a factual organization, as its sole reason to exist is to promote adoption of the AWA. This bureaucracy should be closed for business.

Ohio and Nevada have been two key battleground states for the practical application of the Adam Walsh Act. In Ohio, the AWA changed their classification scheme of their risk-based three-level system to offense-based, tripling the number of registrants placed in the highest tier level, increasing the caseloads of local- level law enforcement by an estimated 60%, and increasing costs for local-level law enforcement for community notification and address verification. Registrants remaining on the lower tiers saw an increase in the amount of time they would have to spend on the registry. This led to over 6,000 lawsuits, and in two separate court rulings, the Ohio Supreme Court struck down the retroactive application of the registry as unconstitutional. Ohio spent over $10 million defending the AWA against these lawsuits. Currently, Ohio maintains two sets of laws, the old risk-based scheme for those convicted before 2008, and the AWA scheme for those convicted after January 1, 2008.

Nevada has been a different kind of battleground. Nevada also pushed a law through legislature within a year, much like Ohio, and may also have been influenced by the 10% bonus promised states adopting the Adam Walsh Act guidelines within a year. Unlike Ohio, Nevada has yet to formally enforce the AWA due to a series of lawsuits taking years to decide. For 4 ½ hours on July 1, 2016, the names of registrants previously kept private under Nevada’s law were posted online, but a new lawsuit removed the names pending further judicial review. To this date, there is no evidence either state received the 10% bonus promised by the AWA.

Ten years after the Adam Walsh Act passed into law, the AWA has proven to be a costly failure. The fact the law does not actually create a uniform standard alone should be sufficient to prove the ineptitude of this law. The law was hastily passed, with many changes coming just before the bill was implemented. Even states that have tried to adopt AWA have run into problems, since the law is rigid and leaves little room for compromise. In reality, it would take far more money to implement the AWA than the federal government is willing to invest: in 2016, the legislature prosed $20 million in funding for the AWA, but $61 million to the US Marshals for registry compliance checks.

The only viable solution to correcting the problems created by the Adam Walsh Act would be to fully repeal the bill. In this political climate, that seems an unlikely proposal.

REFERENCES

1. Text and history of HR 2423 at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HR02423:
2. Text and history of S. 1086 at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.01086:
3. “STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS — (Senate – May 19, 2005).” Library of Congress/ Thomas. Web. < http://thomas.loc.gov/cgi-bin/query/F?r109:1:./temp/~r109onol6r:e63014:>
4. “NATIONAL MISSING KIDS DAY — (House of Representatives – May 25, 2005).” Library of Congress/ Thomas. Web. <http://thomas.loc.gov/cgi-
   bin/query/D?r109:2:./temp/~r109U71nKB::>
5. Text and history of HR 3133 at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HR03133:
6. Text and History of H. Res. 436 at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:H.RES.436:
7. See H.AMDT.527 (A008) at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HZ00527:
8. See H.AMDT.531 (A012) at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HZ00531:
9. See H.AMDT.544 (A025) at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HZ00544:
10. See http://clerk.house.gov/evs/2005/roll470.xml
11. See http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HR03132:@@@S
12. “What John Walsh WON’T tell you about The Children’s Safety Act (H.R. 4472).” Daily Kos. Kos Media LLC. 16 Jun 2006. Web. <http://www.dailykos.com/story/2006/6/16/219432/->
13. Text and history of HR 4472 at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.04472:
14. eAdvocate. “The Morphism of the Adam Walsh Child Protection and Safety Act of 2006.” Sex Offender Reports, Charts & Archive. eAdvocate. April 2006. Web. <http://sexoffender-reports.blogspot.com/2009/06/morphism-of-adam-walsh-child-protection.html>
15. Text and history of HR 4732 at http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.4732:
16. Text and history of HR 4815 at http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.4815:
17. Text and history of HR 4883 at http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.4883:
18. Text and history of HR 4905 at http://thomas.loc.gov/cgi-bin/bdquery/z?d109:HR04905:
19. Supra., eAdvocate, “Morphism.”
20. “112th Congress House Floor Procedures Manual, VIII. SUSPENSION OF THE RULES.” The Congressional Institute, Inc. Web. < http://conginst.org/112th-congress-house-floor-procedures-manual/viii-suspension-of-the-rules/>
21. Ibid.
22. See http://thomas.loc.gov/cgi-bin/query/C?r109:./temp/~r109NtntU1
23. Supra., eAdvocate. “Morphism”
24. Supra., “What John Walsh WON’T tell…” Daily Kos
25. “NANCY GRACE: Interview With Elizabeth Smart.” CNN. Time Warner. TV. 18 July 2006. Transcript found online < http://transcripts.cnn.com/TRANSCRIPTS/0607/18/ng.01.html>*
26. See http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP04687:
27. See 7/20/06 minutes at http://thomas.loc.gov/cgi-bin/query/C?r109:./temp/~r109vHzDJH
28. See the minutes for 7/25/06 at http://thomas.loc.gov/cgi-bin/query/C?r109:./temp/~r109kIN952
29. Rick Porter, Daniel Feinberg and Brill Bundy, “Notes and News from Summer Press Tour.” Palm Beach Sun Sentinel, 25 July 2006. <http://www.sun-sentinel.com/zap-presstournotes,0,5214135.story>
30. de Moraes, Lisa. “Summer Press Tour, Day 16: An Explosive Interview.” The Washington Post. 26 July 2006. Web. < http://www.washingtonpost.com/wp-dyn/content/article/2006/07/25/AR2006072501590_pf.html>
31. “President Signs H.R. 4472, the Adam Walsh Child Protection and Safety Act of 2006.” The White House. 27 July 2006. Press Release. < https://georgewbush-whitehouse.archives.gov/news/releases/2006/07/20060727-6.html>
32. A longer summary of the bill is found at https://oncefallen.com/adam-walsh-act-study-guide/
33. Complete list of SORNA-compliant jurisdictions can be found at http://ojp.gov/smart/sorna.htm. As of this writing, the 17 states adopting the AWA are: AL, CO, DE, FL, KS, LA, MD, MI, MS, MO, NV, OH, PA, SC, SD, TN, WY
34. “Some States Refuse to Implement SORNA, Lose Federal Grants.” Prison Legal News. 19 Sep. 2014. Web. <https://www.prisonlegalnews.org/news/2014/sep/19/some-states-refuse-implement-sorna-lose-federal-grants/>
35. Fruhwirth, Jesse. “Utah steps up sex-offender law, still short of federal compliance.” Daily Herald. Herald Communications. 27 Jan 2008. Web. <http://www.heraldextra.com/news/local/article_eb3322ea-35ef-543c-8df6-485161f16206.html>
36. Ibid.
37. Hull, Tim. “Sex Offender Registration Act Not Fully Retroactive.” Courthouse News Service. 28 Dec. 2010. Web. <http://www.courthousenews.com/2010/12/28/32933.htm>
38. Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices. Page 30212 <https://www.justice.gov/sites/default/wp-content/uploads/2021/04/olp/docs/oag_sorna_05302007.pdf>
39. United States v. Valverde, 628 F. 3d 1159 (CA9 2010);
40. Juhl, Wesley. “Bill would repeal Adam Walsh sex-offender act in Nevada.” Las Vegas Review-Journal. 28 Feb. 2015. Web. <http://www.reviewjournal.com/news/nevada-legislature/bill-would-repeal-adam-walsh-sex-offender-act-nevada>
41. United States v. Johnson, 632 F. 3d 912, 922–927 (CA5 2011); United States v. Valverde, 628 F. 3d 1159, 1162–1164 (CA9 2010); United States v. Cain, 583 F. 3d 408, 414–419 (CA6 2009); United States v. Hatcher, 560 F.3d 222, 226–229 (CA4 2009); United States v. Dixon, 551F. 3d 578, 585 (CA7 2008); United States v. Madera, 528 F. 3d 852, 856–859 (CA11 2008) (per curiam).
42. United States v. Fuller, 627 F. 3d 499, 506 (CA2 2010); United States v. DiTomasso, 621 F. 3d 17, 24 (CA1 2010); United States v. Shenandoah, 595 F. 3d 151, 163 (CA3 2010); United States v. Hinckley, 550 F. 3d 926, 932 (CA10 2008); United States v. May, 535 F. 3d 912, 918–919 (CA8 2008).
43. US v. Reynolds, No. 08-4747 (3rd Cir. 2013)
44. “Office of the Attorney General; Applicability of the Sex Offender Registration and Notification Act.” Federal Register. 29 Dec. 2012. Web. <https://www.federalregister.gov/articles/2010/12/29/2010-32719/office-of-the-attorney-general-applicability-of-the-sex-offender-registration-and-notification-act>
45. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424.
46. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374
47. Carr v. United States, 130 S. Ct. 2229, 2232-33 (2010)
48. Renée C. Lee, “Texas won’t participate in national sex offender registry.” Houston Chronicle, 5 Oct 2012. Web <http://www.chron.com/news/houston-texas/article/Texas-won-t-participate-in-national-sex-offender-3923910.php>
49. Supra., “Some States Refuse…” Prison Legal News
50. Texas Senate Committee on Criminal Justice Interim Report. 15 Dec. 2010. Web.<http://www.senate.state.tx.us/75r/senate/commit/c590/c590.InterimReport81.pdf>
51. Cooper, Alexia D., Ph.D., and Martin, Kimberly, Ph.D. “Justice Assistance Grant (JAG) Program, 2014.” US Dept. of Justice, Bureau of Justice Statistics. Aug. 2014. Web. <http://www.bjs.gov/content/pub/pdf/jagp14.pdf>
52. “Fiscal Year (FY) 2016 State Edward Byrne Memorial Justice Assistance Grant (JAG) Allocations.” Office of Justice Programs, Bureau of Justice Assistance. Web. <https://www.bja.gov/Funding/16JAGStateAllocations.pdf>
53. “Complying with Walsh Act costs Ohio $10 million.” The Vindicator. Vindy.com. 13 Nov. 2011. Web. <http://www.vindy.com/news/2011/nov/13/complying-with-walsh-act-costs-ohio–mil/?print>
54. “Sex Offenders and Communities.” Hamilton County Ohio Regional Planning Commission, April 2008. Web. <http://www.hamiltoncountyohio.gov/hcrpc/pdf/SexOffendersInCommunitiesSpecialReport.pdf>
55. “What will it cost states What will it cost states to comply with the Sex to comply with the Sex Offender Registration and Notification Act?” Justice Policy Institute. Aug 2008. Web. <http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf>
56. See https://oncefallen.com/wp-content/uploads/2021/04/2011_-_12_contractOhioRegistry.pdf
57. Supra., “What will it cost…” Justice Policy Institute.
58. “Newsroom.” Office of Justice Programs/ SMART Office. July 2006. Web. <http://ojp.gov/smart/newsroom.htm>
59. “Request for Reallocation of Byrne/JAG Grant Funds.” Office of Justice Programs? SMART. Web.<http://ojp.gov/smart/pdfs/reallocationform2014.pdf>
60. “Some States Resist Implementing Adam Walsh Act Requirements.” Prison Legal News. 15 Feb. 2012. Web. <https://www.prisonlegalnews. org/news/2012/feb/15/some-states-resist-implementing-adam-walsh-act-requirements/>
61. Statement of Pat Collonton on the “The Reauthorization of the Adam Walsh Act,” 15 Feb 2011. Web. <https://judiciary.house.gov/_wp-content/uploads/2021/04/hearings/pdf/Colloton021520011.pdf>
62. National Conference of State Legislatures (NCSL) statement on the AWA. Web. <http://www.ncsl.org/documents/standcomm/sclaw/AdamWalsh.pdf>
63. Farley, Lara Geer. “The Adam Walsh Act: The Scarlet Letter of the Twenty-First Century.” Washburn Law Journal. 17 Apr. 2008
64. Stimson, Charles “Cully” and Noronha, Maya. “Get SMART: Complying with Federal Sex Offender Registration Standards.” The Heritage Foundation. 12 July 2011. Web. <http://www.heritage.org/research/reports/2011/07/get-smart-complying-with-federal-sex-offender-registration-standards>
65. Wang, Jennifer. “Paying the Piper: The Cost of Compliance with the Federal Sex Offender Registration and Notification Act.” New York Law School Law Review. Vol. 59, 2014/15. Web. <http://www.nylslawreview.com/wp-content/uploads/sites/16/2015/06/Volume-59-4.Wang_.pdf>
66. “Adam Walsh Reauthorization Act of 2016 Cost Estimate.” Congressional Budget Office. 19 May 2016. Web. <https://www.cbo.gov/sites/default/wp-content/uploads/2021/04/114th-congress-2015-2016/costestimate/s2613.pdf>
67. Editorial Board. “Sex-offender registry requires reboot in Ohio and the nation: editorial.” Cleveland.com. Northeast Ohio Media Group LLC. 19 Nov 2015.Web. <http://www.cleveland.com/opinion/index.ssf/2015/11/sex-offender_registry_requires_reboot_in_ohio_and_the_nation_editorial.html>]
68. Levine, Judith and Meiners, Erica. “Don’t Just Get Kids Off the Sex Offender Registry. Abolish It.” CounterPunch. 8 Apr 2016. Web. <http://www.counterpunch.org/2016/04/08/dont-just-get-kids-off-the-sex-offender-registry-abolish-it/>
69.  Mcpherson, Lori. “Practitioner’s Guide to the Adam Walsh Act.” NATIONAL CENTER FOR PROSECUTION OF CHILD ABUSE UPDATE,  VOL 20, NOS 9 & 10, 2007
70. ‘‘Sex Offender Registration and Notification Act: Barriers to Timely Compliance by States.’’ House Subcommittee on Crime, Terrorism, and Homeland Security. 10 March 2009. Web. <https://judiciary.house.gov/_wp-content/uploads/2021/04/hearings/printers/111th/111-21_47923.PDF> . A video clip of this exchange can be found at “Adam Walsh Act, SORNA Unconstitutional.” Citizens For Change, America. Youtube. 15 Oct 2009. Video. < https://www.youtube.com/watch?v=pteugppl-Ko>
71. Supra., “Some States Refuse…” Prison Legal News, 2014
72. Campoy, Ana. “States Resist Federal Sex-Offender Registry.” Wall Street Journal. Sow Jones & Co. 9 Apr 2011. Web. <http://www.wsj.com/articles/SB10001424052748704587004576245451255268570>
73. “Adam Walsh Act: Statement of Position.” CA Sex Offender Management Board. Web <http://www.casomb.org/docs/Adam%20Walsh%20Position%20Paper.pdf>
74. Grinberg, Emanuella. “5 years later, states struggle to comply with federal sex offender law.” CNN. Turner Broadcasting System, Inc. 28 July 2011. Web. <http://www.cnn.com/2011/CRIME/07/28/sex.offender.adam.walsh.act/>
75. Statement from the National Association of Criminal Defense Lawyers (NACDL). 5 Feb 2011. Web. <http://www.ncjfcj.org/sites/default/wp-content/uploads/2021/04/nacdl.mag_._0.pdf>
76. Hancock, Laura. “Wyoming lawmakers discuss changes to youth sex offender registry.” Casper Star-Tribune. 15 Apr. 2015. Web. <http://trib.com/news/local/crime-and-courts/wyoming-lawmakers-discuss-changes-to-youth-sex-offender-registry/article_e4070540-77fd-52b4-9e6f-ee3e047888c6.html>
77. Liu, Cara. “Legislator: AZ Won’t Comply With Federal Sex Offender Database Law.” CBS 5 (KPHO Broadcasting Corporation), Phoenix, AZ and Frankly Media. 9 Mar 2011. Web. <http://www.cbs5az.com/story/14817625/legislator-az-wont-comply-with-federal-sex-offender-database-law-3-09-2011>
78. Supra., “Some States Refuse…” Prison Legal News. 2014
79. “Executive Order 13175 – Consultation and Coordination With Indian Tribal Governments” Federal Register: Vol 65, No 218. 9 Nov 2000. Web. <http://www.state.gov/documents/organization/136740.pdf>
80. “Adam Walsh Act.” National Congress of American Indians (NCAI). 2016. Web. < http://www.ncai.org/policy-issues/tribal-governance/adam-walsh-act>
81. “Procedure for Delegation of Tribal Sex Offender Registration and Notification Responsibilities.” SMART Office. US Dept. of Justice. Web. <http://ojp.gov/smart/pdfs/delegation_procedure.pdf>
82. “Tribal Resolutions Pursuant to the Adam Walsh Child Protection and Safety Act of 2006.” SMART Office. Web. <http://ojp.gov/smart/pdfs/tribal_govt_elections.pdf>
83. Vega-Buzon, Aurora. “The Adam Walsh act: Bar to a US citizen or permanent resident to petition family members.” 25 Nov 2015. Web. <http://asianjournal.com/immigration/the-adam-walsh-act-bar-to-a-us-citizen-or-permanent-resident-to-petition-family-members/>
84. Kowalski, Daniel. “The BIA’s Adam Walsh Act Trilogy: Because We Can.” LexisNexis Legal Newsroom. 29 May 2014. Web. <https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/05/29/the-bia-39-s-adam-walsh-act-trilogy-because-we-can.aspx>
85. “§ N.13 U.S. Citizens and Permanent Residents Cannot Petition for a Relative If Convicted of Certain Offenses Against Minors – The Adam Walsh Act.” Immigrant Legal Resource Center. Jan 2013. Web. <http://www.ilrc.org/wp-content/uploads/2021/04/documents/n.13-adam_walsh_act.pdf>
86. “US DEPARTMENT OF HOMELAND SECURITY’S MALICIOUS IMMIGRATION POLICY HAS DESTROYED AT LEAST 4000 FAMILIES SINCE
    2011.” Alliance for Constitutional Sex Offense Laws. 13 Nov 2016. Web. <http://all4consolaws.org/2016/11/us-department-of-homeland-securitys-malicious-immigration-policy-has-destroyed-at-least-4000-families-since-2011/>
87. See Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Notices, pages 1633-1634. Web. <http://ojp.gov/smart/pdfs/SORNAFinalSuppGuidelines01_11_11.pdf>
88. Ibid.
89. Logue, Derek. “International Megan’s Law: The Epitome of American Arrogance.” Once Fallen. 31 Jan 2016. Web. <http://www.oncefallen.com/internationalmeganslaw.html>
90. Handler, Michael. “A LAW OF PASSION, NOT OF PRINCIPLE, NOR EVEN PURPOSE: A CALL TO REPEAL OR REVISE THE ADAM WALSH ACT
    AMENDMENTS TO THE BAIL REFORM ACT OF 1984.” Journal of Criminal Law and Criminology. Volume 101, Issue 1. 2011. Web. <http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7390&context=jclc>
91. Dearinger, Bryan. “THE MANDATORY PRETRIAL RELEASE PROVISION OF THE ADAM WALSH ACT AMENDMENTS: HOW “MANDATORY” IS
    IT, AND IS IT CONSTITUTIONAL?” St. John’s Law Review. Vol. 85:1343.  2011.  [See p.1365 with footnotes]
92. Supra., Orrin Hatch’s testimony for Suspension of the Rules, July 20,2007.
93. deBaca, Luis C. “Recognizing a Decade of Progress at SMART.” SMART Office. 23 March 2016. Web. <http://ojp.gov/ojpblog/recognizing-smart.htm>
94. “SORNA.” SMART Office. Web. < http://ojp.gov/smart/sorna.htm>
95. Frederick, Susan Parnas. ‘Clash on Capitol Hill, too.” State Legislatures. National Conference of State Legislatures. June 2011. Magazine.  p. 27 <http://www.ncsl.org/Portals/1/Documents/magazine/articles/2011/SL_0611-SexOffender.pdf>
96. AL Code § 15-20A-10 (c) (2) (f) (2013); note that juveniles in Alabama are subject to a Tier system; all adults are registered for life in Alabama.
97. F.S. 943.0435(11); 775.21(6)(l)
98. SC Code of Laws, Sec. 23-3-460
99. Tenn. Code 40-39-207
100. WY Stat § 7-19-304 (2014)
101. SEX OFFENDER REGISTRATION AND NOTIFICATION ACT: Jurisdictions Face Challenges to Implementing the Act, and Stakeholders Report Positive and Negative Effects.” Gov’t Accountability Office. Feb. 2013. Web. <http://www.gao.gov/assets/660/652032.pdf> Appendix III.
102. Amy Borror Written Testimony. HEARING ON THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA). U.S. HOUSE OF
     REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY. 9 March 2009. Web. <https://judiciary.house.gov/_wp-content/uploads/2021/04/hearings/pdf/Borror090310.pdf>
103. “SEX OFFENDER REGISTRATION AND NOTIFICATION ACT: SUBSTANTIAL IMPLEMENTATION CHECKLIST.” SMART Office. Word Document. Can be downloaded at http://ojp.gov/smart/sorna_tools.htm#checklist
104. “SEARCH Survey on State Compliance with the Sex Offender Registration and Notification Act (SORNA).” National Consortium for Justice Information and Statistics. Apr 2009. Web. < http://www.search.org/files/pdf/SORNA-StateComplianceSurvey2009.pdf>
105. Supra., GAO “SORNA” 2013: Appendix V
106. Ibid., Appendix IV
107. Ibid., “What GAO Found”
108. “SORNA Implementation Review: State of Ohio” SMART Office. Sept 2009. Web. <http://www.smart.gov/pdfs/sorna/Ohio.pdf>
109. Levenson, Jill, & Tewksbury, Richard. “Collateral damage: Family members of registered sex offenders.” American Journal of Criminal Justice. 2009.
110. Logue, Derek. “The 2016 Once Fallen Job & Welfare Survey.” Once Fallen. March 2016. Web. <http://www.oncefallen.com/wp-content/uploads/2021/04/Once_Fallen_Job_and_Welfare_Survey_Results.pdf>
111. Rogers, Laura. “The SMART Office: Open for Business.” SMART Office. Web. <http://ojp.gov/smart/pdfs/register.pdf>
112. Logue, Derek. “Civil Commitment: A very uncivil proposal.” Once Fallen. 17 May 2009. Web. <http://www.https://oncefallen.com/civilcommitment.html>
113. “Statement of Laura L. Rogers.” Subcommittee on Crime, Terrorism, and Homeland Security. 10 Mar 2009. Web. <https://judiciary.house.gov/_wp-content/uploads/2021/04/hearings/pdf/Rogers090310.pdf>
114. “Linda M. Baldwin, Director.” SMART Office. Web. <http://ojp.gov/smart/bio_baldwin.htm>
115. Letter to Linda Baldwin from Risa Sugarman, 23 Aug 2011. Web. <http://nylawyer.nylj.com/adgifs/decisions/100711baldwinnotification.pdf>
116. “Sex Offense Courts.” NYCourts.gov. Web. <http://www.nycourts.gov/courts/problem_solving/so/mission_goals.shtml>
117. Supra., Amy Borror Testimony Congressional hearing 2009
118. “Am. Sub. S.B. 10.” Ohio Legislative Service Commission. 2007. Web. <http://www.lsc.ohio.gov/analyses127/07-sb10-127.pdf>
119. “Unofficial Votes for Senate Bill 10.” Ohio General Assembly Archives 1997-2014. Legislative Information Systems.
120. Sub. SB 10 Fiscal Note & Local Impact Statement. 127 th General Assembly of Ohio. Web. <http://www.lsc.ohio.gov/fiscal/fiscalnotes/127ga/sb0010hr.htm>
121. Pierce, Margo. “Sex In The Time Of Hysteria.” Cleveland Free Times. 21 Nov 2007. Web <http://web.archive.org/web/20071203201655/http://www.freetimes.com/stories/15/29/sex-in-the-time-of-hysteria>
122. “Sex Offenders and Communities, Special Report No. 3-10.” Hamilton County Regional Planning Commission. Feb. 2008. Web. <https://ccoso.org/sites/default/wp-content/uploads/2021/04/import/SexOffendersInCommunitiesSpecialReport.pdf>
123. Hirsh, Jeff. “High Cost of New Sex Offender Law. Local 12. 12 Feb 2008. Web.
124. “Ohio’s tougher sex offender law being met with lawsuits, confusion.” Cleveland Plain Dealer. 21 Jan 2008. Newspaper.
125. Supra., Amy Borror Testimony, 2009. p. 2
126. Harris, Millie and Pettway, Coretta. “Best Practices Tool-Kit: Sex Offender Registration and Notification.” Ohio Department of Rehabilitation and Correction, Ohio Institute on Correctional Best Practices. Oct 2007. Web. <http://www.drc.ohio.gov/web/iej_wp-content/uploads/2021/04/SO_RegistrationNotification.pdf>
127. Memo from Ohio Attorney General, June 29, 2007.
128. Supra., “Hysteria,” Cleveland Free Times 2007.
129. Zachariah, Holly. “Sex offenders rally against laws.” Columbus Dispatch. GateHouse Media.
130. “Sex-offender law could trigger flood of petition filings.” The Athens News. 7 Jan 2008. Web. <http://www.athensnews.com/news/local/sex-offender-law-could-trigger-flood-of-petition-filings/article_a9d77ad9-f798-5831-b5ae-5163b1ce567c.html>
131. Supra., Amy Borror Testimony 2009. p. 1
132. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424
133. Grieco, Lou. “Sex offender reclassifications will take months.” Dayton Daily News. Cox Media Group. 20 July 2010.  Web. <http://www.daytondailynews.com/news/news/crime-law/sex-offender-reclassifications-will-take-months/nNFbB/>
134. See http://archives.legislature.state.oh.us/BillText129/129_HB_77_I_Y.html
135. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374
136. See State v. Cook (1998), 83 Ohio St.3d 404, 418, 700 N.E.2d 570.
137. See State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110
138. State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624
139. Juhl, Wesley. “Bill would repeal Adam Walsh sex-offender act in Nevada.” Las Vegas Review-Journal. 28 Feb 2015. Web. <http://www.reviewjournal.com/news/nevada-legislature/bill-would-repeal-adam-walsh-sex-offender-act-nevada>
140. Supra. GAO, “SORNA” 2013, Appendix III
141. https://www.leg.state.nv.us/74th/Reports/history.cfm?ID=1169
142. Buntin, Stephanie. “THE HIGH PRICE OF MISGUIDED LEGISLATION: NEVADA’S NEED FOR PRACTICAL SEX OFFENDER LAWS.” Nevada Law
     Journal. Vol. 11:770, Summer 2011. Web. <http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1177&context=nlj>
143. ACLU of Nev. v. Cortez Masto, 719 F. Supp. 2d 1258, 1259 (D. Nev. 2008)
144. Supra., Buntin, NV Law Journal 2011
145. American Civil Liberties Union of Nevada v. Masto, 670 F. 3d 1046 (9th Cir 2012)
146. State v. Eighth Judicial Dist. Court (Logan D.), 129 Nev. ___, 306 P.3d 369 (2013)
147. Chereb, Sandra. “Nevada Supreme Court halts sex offender law.” Elko Daily Free Press. 4 Feb 2014. Web. <http://elkodaily.com/news/nevada-supreme-court-halts-sex-offender-law/article_00fd8dc6-8e21-11e3-9823-0019bb2963f4.html>
148. Amaro, Yesenia. “Lawmakers consider amending sex offender law.” Las Vegas Review-Journal. 24 July 2014. Web. <http://www.reviewjournal.com/news/nevada/lawmakers-consider-amending-sex-offender-law>
149. See https://www.leg.state.nv.us/Session/78th2015/Reports/history.cfm?ID=214
150. Supra., Juhl, “Repeal,” Las Vegas Review Journal 2015
151. Whaley, Sean. “Lawyer for 24 sex offenders says Nevada registration law is unconstitutional.” Las Vegas Review-Journal. 5 Oct. 2015. Web. <http://www.reviewjournal.com/news/las-vegas/lawyer-24-sex-offenders-says-nevada-registration-law-unconstitutional>
152. Chereb, Sandra. “Ruling approves stricter sex offender registration.” Las Vegas Review-Journal. 23 Jan 2016. Web. <http://www.reviewjournal.com/news/nevada/ruling-approves-stricter-sex-offender-registration>
153. Ritter, Ken. “Names of 5,200 Nevada sex offenders to be posted Friday.” Elko Daily Street Press. 30 June 2016. Web. <http://elkodaily.com/news/state-and-regional/names-of-nevada-sex-offenders-to-be-posted-friday/article_3be92c8b-9ef4-5b13-b154-7f6bb1e9562f.html>
154. Chereb, Sandra. “Amended lawsuit challenges Nevada law governing registration of sex offenders.” Las Vegas Review-Journal. 22 June 2016. Web. <http://www.reviewjournal.com/crime/sex-crimes/amended-lawsuit-challenges-nevada-law-governing-registration-sex-offenders>
155. Supra., Ritter, “Names of 5200,” Elko Daily Street Press
156. Chereb, Sandra. “Nevada Supreme Court stops sex offender law from being implemented.” Las Vegas Review-Journal. 1 July 2016. Web. <http://www.reviewjournal.com/news/nevada/nevada-supreme-court-stops-sex-offender-law-being-implemented>