The Adam Walsh Act: The Scarlet Letter of the Twenty-First Century
Lara Geer Farley, Washburn Law Journal
Reforming sex offender laws will not be easy. At a time when national polls indicate that Americans fear sex offenders more than terrorists, legislators will have to show they have the intelligence and courage to create a society that is safe yet still protects the human rights of everyone.
In recent years, the words “sex offender” have transformed into a loosely and frequently used term. Congress and state legislatures have enacted sex offender laws because of highly publicized, horrific crimes, particularly those committed against children. As federal and state governments introduce stricter punishments, requirements, and prohibitions for sex offenders, the offenders become branded by the negative stigma associated with their status. While many sex offenders commit heinous crimes, experts and officials question whether the strict laws imposed against all sex offenders, including non-violent offenders like Evan B., actually increase the safety of those the laws seek to protect.
This Note will argue that the most recent development in this area of law, the Adam Walsh Child Protection and Safety Act of 2006 (AWA), contains over-inclusive sex offender registration requirements and punishments. Implementation of the AWA will undoubtedly cause problems for state governments, law enforcement, non-violent sex offenders, and citizens, both as taxpayers and intended beneficiaries of the AWA. Specifically, the AWA is an unfunded mandate that places severe and unfair registration requirements and punishments on sex offenders, and requires offenders to register without distinguishing between violent and non-violent offenders or evaluating the likelihood of recidivism.
Part II of this Note examines the development of sex offender registration requirements in the federal and state governments. It addresses the transformation from the initial freedom left with the states to determine their own standards to the recent, more expansive, and mandatory federal requirements under the AWA. Part III of this Note discusses the purpose of the sex offender requirements under the AWA and reasons why the AWA’s over-inclusiveness hinders achievement of that purpose. Part IV concludes with a call for reform of the AWA, in order to better achieve the AWA’s purpose.
Over the past two decades, federal and state governments have introduced stricter punishments, requirements, and prohibitions for sex offenders. The most recent development in this area of law, the Adam Walsh Child Protection and Safety Act of 2006, contains over-inclusive sex offender registration requirements and punishments. Implementation of the AWA will undoubtedly cause problems for state governments, law enforcement, non-violent sex offenders, and citizens, both as taxpayers and intended beneficiaries of the AWA. If the AWA is not reformed, its requirements will drain public resources, unnecessarily deprive sex offenders of their liberty, and produce few public safety gains. The AWA’s requirements are over-inclusive. The AWA does not differentiate between violent and non-violent offenders. The AWA also does not individually evaluate the likelihood of offender recidivism. Therefore, the AWA does not allow law enforcement officials to focus on the small number of sex offenders who actually need monitoring— offenders who committed severe offenses and are likely to recidivate. Rather, under the AWA, law enforcement officials must attempt to supervise all sex offenders, a daunting task that police have neither the funds nor officers to adequately achieve. As a result, unsupervised sex offenders—both violent and non-violent—slip through the system and the dangerous offenders continue to threaten public safety. A reformed AWA could prevent tragedies like Evan B.’s from occurring. There was no need to require Evan B., a non-violent offender with little risk for recidivism, to register as a sex offender. Evan B. was a high school boy who made an innocent mistake. Unfortunately, over-inclusive sex offender registration requirements did not allow Evan B. to serve his sentence and resume his life. Rather, Evan. B.’s life headed in an ominous downward spiral—his community shunned him; he dropped out of school; he could not find employment; he moved away from his friends and family; he became depressed; and he killed himself. Lawmakers should reform the AWA to require only violent offenders who are likely to recidivate to register. Therefore, non-violent offenders unlikely to recidivate will not be branded as sex offenders—a scarlet letter that may stigmatize them for life. Furthermore, law enforcement officials will be able to focus on only dangerous offenders necessitating supervision and registration. Law enforcement officials will notify community members about violent and dangerous sex offenders that live nearby and will educate them about how to keep their children safe. If reformed, the AWA will successfully serve its purpose as a method of public safety.