We, the comrades of
Unit 1012: The VFFDP, endorses this Child Safety Law in memory of Adam Walsh
who went missing on July 27, 1981.
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Photo of Adam John
Walsh, late son of America's Most Wanted host John Walsh.
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The Adam Walsh Child Protection and
Safety Act is a federal statute that was signed into law by U.S.
President George W. Bush on July 27, 2006. The Walsh Act
organizes sex offenders into three tiers according to the crime
committed, and mandates that Tier 3 offenders (the most serious tier) update
their whereabouts every three months with lifetime registration requirements.
Tier 2 offenders must update their whereabouts every six months with 25 years
of registration, and Tier 1 offenders must update their whereabouts every year
with 15 years of registration. Failure to register and update information is a felony under the
law. States are required to publicly disclose information of Tier 2 and Tier 3
offenders, at minimum. It also contains civil
commitment provisions for sexually dangerous people.
The Act also creates a national sex offender registry and
instructs each state and territory to apply identical criteria for posting
offender data on the internet (i.e., offender's name, address, date of birth,
place of employment, photograph, etc.). The Act was named after Adam Walsh, an American boy who was abducted
from a Florida shopping mall and later found murdered.
As of April 2014, the Justice
Department reports that 17 states, three territories and 63 tribes had
substantially implemented requirements of the Adam Walsh Act.
History
The Adam Walsh Act emerged from
Congress following the passage of separate bills in the House and Senate (H.R.
3132 and S. 1086 respectively). The Act is also known as the Sex Offender
Registration and Notification Act (SORNA), the majority of the provisions of
which were enacted as 42 U.S.C. §16911 et seq. The act’s provisions fall into
four categories: a revised sex offender registration system, child and sex
related amendments to federal criminal and procedure, child protective grant
programs, and other initiatives designed to prevent and punish sex offenders
and those who victimize children.
The sex offender registration
provisions replace the Jacob Wetterling Act provisions with a statutory scheme
under which states are required to modify their registration systems in
accordance with federal requirements at the risk of losing 10% of their Byrne
program law enforcement assistance funds. The act seeks to close gaps in the
prior system, provide more information on a wider range of offenders, and make
the information more readily available to the public and law enforcement
officials.
In the area of federal criminal law
and procedure, the act enlarges the kidnapping statute, increases the number of
federal capital offenses, enhances the mandatory minimum terms of imprisonment
and other penalties that attend various federal sex offenses, establishes a
civil commitment procedure for federal sex offenders, authorizes random
searches as a condition for sex offender probation and supervised release,
outlaws internet date drug trafficking, permits the victims of state crimes to
participate in related federal habeas corpus proceedings, and eliminates the
statute of limitations for certain sex offenses and crimes committed against
children.
The act revives the authorization of
appropriations under the Police Athletic Youth Enrichment Act among its other
grant provisions and requires the establishment of a national child abuse
registry among its other child safety initiatives.
The Act also establishes a
post-conviction civil commitment scheme. Section 4248 of the Act contains the
Commitment Provision, which authorizes the federal government to initiate
commitment proceedings with respect to any federal prisoner in the custody of
the Bureau of Prisons. Under this provision, even prisoners who have never been
previously charged with or convicted of a sex crime may be civilly committed
after completing their entire prison sentence. Prior to Supreme Court Review,
the federal Circuit courts were split on the question of whether Congress had
the authority to enact this provision. On May 17, 2010, the Supreme Court
upheld the law, and ruled in United States v. Comstock that the
Civil Commitment Provision was within Congress‘s authority.
At the time of passage, at least
100,000 of more than a half million sex offenders in the United States and the District of Columbia were 'missing' and
unregistered as required by law. The act allocated federal funding was to
assist states in maintaining and improving these programs so a comprehensive
system for tracking sex offenders and alerting communities would be developed.
The Adam Walsh Child Protection and
Safety Act was signed on the 25th anniversary of the abduction of Adam Walsh from a shopping mall
in Florida.
Adam Walsh was found murdered 16 days after his abduction in 1981, and the
perpetrator was not named until December 16, 2008, when the Hollywood, Florida
police department announced that they had evidence that Ottis
Toole was the killer. Adam Walsh's father is John Walsh, host of the television
series America's Most Wanted. John Walsh, also
founder of the National Center for
Missing and Exploited Children (NCMEC), was joined by other children's
advocates to mount an aggressive campaign to get the bill passed into law. As
part of the campaign, Walsh was joined by Congressman Sensenbrenner,
representatives from the NCMEC, and other victims' advocates and parents. These
included Patty Wetterling, children's advocate from Minnesota
and mother of missing child Jacob
Wetterling, abducted in October 1989; Mark Lunsford, whose daughter Jessica
was killed in Florida in 2005; Linda Walker, the mother of North Dakota college
student Dru Sjodin who was kidnapped and murdered by a released Minnesota sex
offender in November 2003; and Erin Runnion, whose five-year-old daughter Samantha Runnion was raped and killed in
California in 2002.
Legal applications
- Gives the U.S. Attorney General the authority to apply the law retroactively
- Gives a federal Judge the ability to civilly commit individuals who are in the custody of the federal prison system if it is proven that the individual (1) has engaged or attempted to engage in sexually violent conduct or child molestation; (2) suffers from a serious mental illness, abnormality, or disorder; and, (3) as a result, would have serious difficulty refraining from sexually violent conduct or child molestation if released. A hearing is available to the involuntarily committed individual every six months to reconsider their commitment status if requested by counsel or the person in the federal treatment program.
- Establishes a national database which will incorporate the use of DNA evidence collection and DNA registry and tracking of convicted sex offenders with Global Positioning System technology.
- The law defines and requires a three-tier classification system for sex offenders, based on offense committed, replacing the older system based on risk of re-offence.
- Tier 1 sex offenders are required to register for 10–15 years; tier 2 for 25 years and tier 3 offenders must register for 25 years to life.
- Increases the mandatory minimum incarceration period of 25 years for kidnapping or maiming a child and 30 years for sex with a child younger than 12 or for sexually assaulting a child between 13 and 17 years old.
- Allows courts to expand definition of sex crimes requiring registration through broad residual clause.
- Increases the penalties for sex trafficking of children and child prostitution.
- Widens federal funding to assist local law enforcement in tracking sexual exploitation of minors on the internet.
- Creates a national child abuse/neglect registry to protect children from being placed into the care of or adopted by people convicted of child abuse or child neglect.
- Limits the defense access to examine child exploitation material which is the subject of a charge, such that examination may only be conducted in a government building.
Registration requirements
Registration requirements are defined
by the type of offense the person was convicted. Convictions are classified
into three tiers. Tier 3 offenders register for life. Tier 2 offenders register
for at least 25 years after conviction. Tier 1 offenders register for ten to
fifteen years after release. Tier I registrants may be excluded from internet
database, with exemption of those convicted of "specified offense against
a minor."
Sex offenders that are 14 years of age
or older at the time of the crime are required to register if they fit into the
most serious tier (Tier 3), or were tried as adults.
Effects
In some states the Adam Walsh Act
(AWA) effectively expanded the registries as much as 500%. Since its enactment,
critics have expressed concerns about the act's scope and breadth. Several sex
offenders were prosecuted under its regulations before any state adopted AWA.
This has resulted in one life sentence for failure to register, due to the
offender being homeless and not being able to maintain a physical
address. The Adam Walsh Act requires anyone convicted of a sex crime to
register as a sex offender where it will be posted on the internet for all to
see.
A study conducted in Ohio found that retroactive
AWA re-classification increased the number of offenders and altered their
placement in management categories. Prior to implementation of AWA in Ohio 76%
of adult and 88% of juvenile offenders were designated on the least restrictive
category or did not have to register at all, while only 20% of adults and 5% of
juveniles were classified as "sexual
predators", the most restrictive category. Following re-classification
this basic pattern was reversed, with 13% of adults and 22% of juveniles placed
in Tier 1, 31% of adults and 32% of juveniles placed in Tier 2, and 55% of
adults and 46% of juveniles placed in the highest and most restrictive Tier 3.
41% of adults and 43% of juveniles previously in lowest category and 59% of
adults and 45% of juveniles who were not previously registered at all were
assigned to Tier 3.
Influence on visa process
A collateral effect of the new
legislation was its implications on the United States Permanent Resident
Card process. Until January 2007, U.S. nationals living abroad who married
a local and intended to obtain green cards for their spouse and any immediate
family members were able to initiate and complete the majority of the
application process at the local U.S. Embassy/Consulate. However, because of
the newly enhanced background check and criminal history data trail
requirements, the new law had initially been interpreted by the Bureau of Consular Affairs and USCIS as leaving
Consular officers ill-equipped to fully handle the I-130 adjucation process.
Thus, as of January 2007, I-130 petitions, supporting documentation, or fee
payments could no longer be completed in the country of the foreign national.
However, the government made a quick
about-face two months later. Due to a significant number of complaints from
applicants about the resultant processing delays and from immigration officials
about the deluge of paperwork that came with the centralization of the process,
the visa petitioning process for immediate relatives of US citizens was resumed
at U.S. embassies on March 21, 2007.
However, all embassies were required to add a 6-month residency requirement for
the US Citizen to file an application directly.
The Act also for the first time limits
the rights of citizens or permanent residents to petition to immigrate their
spouse or other relatives to the U.S. if the petitioner has a listed child sex
abuse conviction. If that is the case, then the petition cannot be approved
unless the Department of Homeland Security determines in its unreviewable
discretion that there is no risk of harm to the beneficiary or derivative
beneficiary.
The Federal Record Keeping and
Labeling Requirements Laws have been attached to this bill (18 USC
2257). This will require secondary producers to be responsible for the
record keeping procedures primary producers gather when they produce pornography.
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