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Adam Walsh Act (SORNA)

Background

In July, 1981, Adam Walsh and his mother went to a department store in Hollywood, Florida. Adam saw a small group of other children playing a video game in the store. His mother left him with the other children and shopped in another part of the store, approximately 75 feet away. When she returned, Adam was gone. A security guard said there had been a small skirmish, and the children were told to leave. It was speculated Adam was taken by Ottis Toole, a serial killer, who confessed, but was never convicted (CNN, 2008; Pennsylvania State Police, n.d.). Toole was associated with another serial killer, Henry Lee Lucas.

Adam Walsh's father, John Walsh, became an advocate for abducted children. He later became the star of the television show "America's Most Wanted." This show highlighted heinous crimes and asked the public to contact police with any information that could lead to capture of the offenders. The show last aired in 2011 and claimed responsibility for the arrest of over 1,000 offenders.

Enactment

The Adam Walsh Act, also known as the Sex Offender Registration and Notification Act (SORNA), became law on July 27, 2006. It replaced the requirements of the Wetterling Act and its amendments. In addition to creating a new federal felony offense for failing to register as a sex offender, it established minimum guidelines for sex-offender registration.

It is noteworthy that once these minimum guidelines are established, state legislatures and local governments can go further and enact stricter guidelines. For example, if SORNA requires a minimum of ten years of registration for a particular offense, a state can require more than that, such as 15 years or even lifetime registration (McPherson, 2007).

SORNA establishes three tiers of sex offenders, and each tier has specific registration guidelines. Tier III includes the most serious offenders, based on the offense committed. These offenders are required to register for life. They are required to renew their registration every three months. Additionally, any person who was a Tier II sex offender, a less serious tier, and commits a subsequent felony sex offense will become a Tier III sex offender, regardless of the tier level of the subsequent felony sex offense. The sex offenses that qualify a person as Tier III are punishable by at least one year of incarceration. They include:

  • • Sex acts with another by force or threat.
  • • A sex act with another who has been rendered unconscious or involuntarily drugged, or who is otherwise incapable of appraising the nature of the conduct or declining to participate.
  • • Sex acts with a child under age 12.
  • • Non-parental kidnapping of a minor (McPherson, 2007, p. 2).

Next, Tier II offenses are less serious than Tier III offenses, yet are considered more serious than Tier I offenses. Tier II offenders are required to register for 25 years. Again, anyone who was a Tier I offender and commits a subsequent felony sex offense will become a Tier II sex offender, regardless of the tier level of the subsequent felony sex offense. Tier II sex offenses include:

  • • Offenses involving the use of minors in prostitution.
  • • Offenses against minors involving sexual contact.
  • • Offenses involving the use of a minor in a sexual performance.
  • • Offenses involving the production or distribution of child pornography (McPherson, 2007).

Next, Tier I sex offenders are considered the least serious. They are required to register for 15 years. They renew their registration once a year. This tier of sex offender is a "catch-all" tier for sex offenders who are not Tier II or Tier III. It includes people who have committed misdemeanor and felony sex offenses that meet the criteria of a sex offense as defined in federal law (see: § 18 U.S.C. 16911 (5)) (McPherson, 2007).

In addition to establishing a tier system, seven key requirements/policies were established for all tier levels: (1) the information required, (2) location of registration, (3) forensic information kept on file, (4) public notification requirements, (5) guidelines for removal from the sex-offender registry, (6) application of retroactivity, and (7) application to juveniles.

With regard to the information required, all registered sex offenders are required to submit, at least, the following information to law enforcement officials:

  • • Name (including nicknames, pseudonyms).
  • • Social security number (actual and purported).
  • • Home, work, and school address.
  • • License plate number.
  • • Description of any vehicle he/she owns or drives.
  • • Date of birth (actual and purported).
  • • Email addresses.
  • • Pseudonyms used for instant messaging programs.
  • • Passport numbers.
  • • Phone numbers (cell phones and land lines) (McPherson, 2007).

Additionally, when sex offenders travel for more than seven days, they are required to notify their local law enforcement officials for the purpose of notifying officials in the destined location (McPherson, 2007).

With regard to the location, registered sex offenders are required to register where they live, work, and attend school. For their initial registration, they are required to register where they were convicted prior to release from prison, if they served a prison sentence. Typically, sex offenders begin registering when they are released from prison or after they are sentenced to probation. They are required to register within three days when not serving a prison sentence. If they did serve a prison sentence, they are required to register upon release (McPherson, 2007).

Forensic information sex offenders are required to submit to law enforcement officials includes DNA, fingerprints, and palm prints. Additionally, officials will maintain a copy of the violated law that led to the registration, and the offender's criminal history (McPherson, 2007).

The information sex offenders are required to submit to law enforcement officials is released to the public—with a few exceptions. For example, the victim's identity, offender's social security number, passport/immigration documents, and arrests other than the one that led to the registration requirement are not released to the public. Law enforcement officials may also opt to exclude the offender's employer and/or school.

There is a process for a sex offender requesting to be exempt from the registration requirements. This request can be made, however, only after the sex offender has been registered for an extensive period of time. For example, Tier III offenders, which include the most serious sex offenders, must wait 25 years. Tier I offenders must wait 10 years (McPherson, 2007). Offenders can make the request that their registered time be reduced only after maintaining a clean record (U.S. Department of Justice, 2008).

SORNA specifically allows for retroactive application of the law for some sex offenders. For example, offenders who are in prison or criminal justice supervision (i.e., probation or parole) for the registerable offense or for another crime are required to register under SORNA. Also, those who were already subject to a former registration requirement (i.e., the Wetterling Act), and those who are re-arrested for another crime (any crime) are required to register. These offenders are required to register in accordance with SORNA within three months to one year, depending on their tier level (Tier III: three months; Tier II: six months; and Tier I: one year) (McPherson, 2007).

Juveniles are not exempt from SORNA's registration requirements. Juveniles adjudicated in juvenile court and who are at least 14 years old and commit an offense that is similar to, or more serious than, the federal aggravated sexual- assault statute are also required to register. This includes any type of forcible rape or any crime that involves sexual penetration of a victim who is younger than 12. A "Romeo and Juliet" clause also exists, which allows for exemption of registration for those who have engaged in consensual sex with a victim at least 13 years old and involves an offender who is no more than four years older than the victim (McPherson, 2007).

In 2000, the Campus Sex Crimes Prevention Act (CSPCA) supplemented the Wetterling Act's standards. This required that institutions of higher education maintain and disseminate information about known registered sex offenders (U.S. Department of Education, 2002). Most universities/colleges report known sex offenders who work at or attend their institutions on a website.

In summary, SORNA represents an attempt to "level the playing field" by establishing minimum guidelines that all states are required to enact. Although it was passed with overwhelming support, it is still considered controversial by some. For example, here are titles of a few publications written about SORNA:

  • • The Adam Walsh Act: The scarlet letter of the twenty-first century (Farley, 2008).
  • • Quickly assuaging public fear: How the well-intended Adam Walsh Act led to unintended consequences (Enniss, 2008).
  • • Adam Walsh Act and the failed promise of administrative federalism (Logan, 2009).
  • • Adam Walsh Child Protection and Safety Act of 2006: Is there a better way to tailor the sentences for juvenile offenders? (Bowater, 2007)
  • • Throwing away the key: Has the Adam Walsh Act lowered the threshold for sexually violent predator commitment too far? (Lave, 2011)
  • • Children sex offenders: How the Adam Walsh Child Protection and Safety Act hurts the same children it is trying to protect (Young, 2008).

Perhaps the most debated aspects of SORNA are its retroactive application of the law and inclusion of juveniles, who are often seen as more amenable to treatment and exempt from many of the punishments of the adult criminal court system.

 
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