The National Pulse
Crime Registries Under Fire
Adam Walsh Act mandates sex offender lists, but some say it’s unconstitutional
Posted Sep 1, 2008 7:00 AM CST
By David L. Hudson Jr.
Their names are sadly familiar: Jacob Wetterling, Megan Kanka, Jessica Lunsford, Adam Walsh.
They were children who fell victim to predators, and over the years their names have been given to a succession of statutes requiring convicted sex offenders to register in their home states.
The laws incrementally strengthened those requirements, beginning in 1994 when Congress passed the Jacob Wetterling Act, which promoted the adoption of state registration. In 1996, Megan’s Law conditioned federal funding for state law enforcement on the creation of such programs.
Two years ago, Congress passed the Adam Walsh Child Protection and Safety Act, named for the son of John Walsh, whose advocacy for victims’ rights and crime prevention helped lead to the formation of the National Center for Missing and Exploited Children. In July 1981, 6-year-old Adam was abducted from a Hollywood, Fla., mall. Two weeks later his remains were discovered in a canal more than 100 miles from his home. No one was ever tried for the crime.
Included in the Walsh Act is the Sex Offender Registration and Notification Act, which establishes a national sex offender registry and creates three classifications of sex offenders. The most serious group is required to register within three days after moving to a new state or face up to 10 years’ imprisonment. The law also makes it mandatory for states to maintain an online registry accessible to the public.
1990s CASES LOOM LARGE
Most federal courts—spurning critics who contend that Congress exceeded its authority by encroaching on state and local control—have upheld SORNA.
But at least two courts this year have sided with the critics and invalidated some or all of the registry law. In both rulings, the courts referred back to a line of U.S. Supreme Court cases from the 1990s that limited the federal government’s reach into state law.
Meanwhile, a third federal court temporarily halted the new law until it had a chance to hear arguments on the issue.
More is at stake than just the sex offender registries, observers say. Americans have become accustomed to national crime registries, and courts could throw them into doubt.
“Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.
Also up for grabs is the future of the U.S. Supreme Court’s line of federalism cases, a darling of the court under former Chief Justice William H. Rehnquist. The court trimmed back its press for state rights toward the end of Rehnquist’s tenure—he died in 2005. However, under his successor, John G. Roberts Jr., the court could get its chance to renew those federalism issues, this time with high-profile sex offender registration and notification laws.
“The issue will go to the U.S. Supreme Court, particularly with the composition of the court changing in recent years,” with the addition of Roberts and Justice Samuel A. Alito Jr., says John L. Badalamenti, appellate attorney for the federal public defender’s office in Tampa, Fla.
Both the decided cases hinge on federalism. In United States v. Powers, issued in April, U.S. District Judge Gregory Presnell in Tampa acknowledged that Congress passed the law to further a “commendable goal—to protect the public from sex offenders.” However, he said, “a worthy cause is not enough to transform a state concern (sex offender registration) into a federal crime.” The government has appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals.
The case involves Robert Powers, who has an IQ of 68 and a second-grade reading ability, according to the opinion. In 1995, he was convicted in South Carolina of sex crimes, and was required to register there as a sex offender. He moved to Florida in 2007 and was arrested after he failed to register in that state.
In the second decided case, United States v. Waybright, issued in June, a federal court in Montana invalidated only part of the law requiring all sex offenders to register, even if they don’t travel to another state. Bernard Waybright was convicted of misdemeanor sexual abuse in West Virginia and was later indicted for failing to register in that state. Both sides have appealed to the San Francisco-based 9th U.S. Circuit Court of Appeals.
Both cases recalled two of the Supreme Court’s major federalism cases that struck down federal criminal laws: a 1995 case, United States v. Lopez, which invalidated the 1990 Gun-Free Schools Zone Act; and United States v. Morrison, a 2000 ruling that struck down a provision in the 1994 Violence Against Women Act. In both, the court ruled that there must be a substantial connection to interstate commerce for the law to be constitutional, and that Congress lacked the authority under the commerce clause to regulate issues of state or local control.
“The mere fact that the individual has, at some point, traveled in interstate commerce does not establish that ... subsequent failure to register substantially affects interstate commerce,” Presnell wrote in Powers.
“The biggest problem with the Adam Walsh Act is there seems to be a tiny nexus to interstate commerce in that it merely requires that the person who had been previously convicted of a sex offense just travel to another state,” says Badalamenti.
“If that person travels to another state and fails to register within three days, he or she is facing up to 10 years in federal prison,” Badalamenti adds. “I think the nexus to interstate commerce is so minimal that you wonder how it is going to pass constitutional muster.”
Meanwhile, in July a federal court in Nevada barred that state’s version of SORNA from going into effect until constitutional challenges there are resolved. According to the Las Vegas Review-Journal, arguments were scheduled for the end of August.
Backers of the law stress the inconsistency among state laws in the post-release follow-up of convicted sex offenders, says Ernie Allen, president of the National Center for Missing and Exploited Children. “The act recognizes that many convicted sex offenders engage in interstate travel and present a high degree of risk and danger to children.”
Allen calls Powers “an outlier and an aberration” and says he hopes it will be reversed by the 11th Circuit. “There have been at least five federal district court decisions in which the courts have held the Adam Walsh Act constitutional,” he says.
Indeed, other opinions this year turned away commerce clause challenges to the Walsh Act and SORNA. A federal district court in Indiana ruled in United States v. Akers that “SORNA focuses on sex offenders who travel between states and does not purport to reach offenders who remain within a single state, thus providing the jurisdictional basis and interstate nexus essential to bring SORNA within congressional authority. ... SORNA relates to the travel of sex offenders across state lines and so is a proper exercise of congressional authority under the commerce clause.”
REGISTRATION CHALLENGES GROWING
In May, a federal district court in Rhode Island came to a similar conclusion in United States v. Ditomasso, writing that SORNA “prevents sex offenders from being lost in the cracks between state regulations, a matter which is beyond the power of any one state to comprehensively address.”
Says Florida State’s Logan, “From the 1930s until the mid-1990s, we saw few constitutional challenges to registration laws. Starting in the 1990s, however, as registration laws grew in number and were augmented for the first time by community notification, the challenges deluged courts.”
But the Walsh Act is the most far-reaching and may present the perfect opportunity for the Supreme Court to sink its teeth into such laws, Logan says.
The act “represents a zenith in federal demands on states with respect to registration and community notification,” he says. “Among other things, the law significantly expands the scope of registration eligibility and requires, for the first time, use of in-person verification and a conviction-based registration classification scheme. The states are expected to make major changes to their regimes, at significant trouble and cost.”
Badalamenti says, “I do not understand Congress’ intent on regulating a purely state issue. When Mr. Powers came into Florida, he, at most, committed a Florida crime in failing to register, and the decision to prosecute him should rest entirely with the Florida state government. But it shouldn’t be a federal crime.”
And when it to gets the Supreme Court, as Badalamenti predicts, “I really do see the court revisiting the federalism issue as it did in Lopez and Morrison.”