The Pennsylvania Law Weekly
November 8, 2011
Pennsylvania missed a federal deadline to amend its sex offender registration laws in order to comply with a five-year-old federal act. The deadline passed on July 27, 2011, 30 years after the disappearance of the law's namesake. The Adam Walsh Child Protection and Safety Act of 2006 (AWA) mandated a more comprehensive, nationwide system to track sex offenders. It gave states five years to bring their laws into conformity with the new guidelines. Fourteen states complied with the July deadline.
The AWA was named for a six-year-old Florida boy, Adam Walsh, who was abducted from a department store in 1981 and later found murdered. The boy's death garnered national attention. His story was made into a television movie and his father, John Walsh, became an internationally known advocate for victims of violent crime and the host of a television show, "America's Most Wanted."
The AWA is more stringent than Pennsylvania's current sex offender registry, Megan's Law. The AWA requires sex offenders to regularly register, in person, and provide updated photographs so police can better monitor the offender's living arrangements and whereabouts.
The intent of the AWA is to standardize sex offender laws across the country. The AWA established minimum national standards and provided some consistency with regard to sex offender legislation. Every state was originally mandated to comply with the public registry provisions of the AWA or lose 10 percent of the state's allotted Byrne Justice Assistance crimefighting federal law enforcement grants. That deadline was extended twice, first to July 2010 and then to July 27, 2011.
On Sept. 30, 2009, Ohio became the first state to comply with the AWA. This summer, the Ohio Supreme Court ruled that retroactive application of the AWA is unconstitutional. As of the 2011 deadline, Delaware, Florida, South Dakota, Michigan, Nevada, Wyoming, Louisiana, Alabama, Kansas, Maryland, Mississippi, Missouri and South Carolina have complied with the law.
When Gov. Tom Corbett took office he directed his staff to bring state law in compliance with the AWA. The Pittsburgh Tribune-Review reported that, although the state missed the July 27 deadline, the Corbett administration expects that the Legislature will pass the necessary changes before the end of the year. Meanwhile, the state is asking the U.S. Department of Justice to waive the penalty for failing to comply. A 10-percent reduction in Pennsylvania's grant allotment would cost the state at least $1.15 million.
According to The Harrisburg Patriot-News , New York and Texas have informed the Department of Justice that their respective states will not comply with the AWA and will voluntarily submit to the 10-percent penalty.
Texas called the AWA "one-size-fits-all" legislation that would cost 30 times the amount of federal funds that will be withheld if the state does not comply.
In California, the state's sex-offender management board wrote a letter recommending that the legislature reject the AWA, according to the Patriot-News . "California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the act," the letter said. The board further recommended, according to the Patriot-News , "There is no evidence, to date, that the inclusion of juvenile offenders into public registries increases public safety or promotes effective juvenile offender re-entry."
Texas also cited the AWA registration requirement for juvenile sex offenders as a reason for refusing to comply with the federal mandates.
There is also concern among some state legislators that the AWA would require teens, 14 and older, found delinquent of the violent sex offenses — forcible rape, sexual assault and involuntary deviate sexual intercourse — to register for 25 years. More importantly, an Ohio Supreme Court decision 14 days before the AWA compliance deadline has exposed the vulnerability of the more onerous requirement of AWA.
In State v. Williams , the Ohio Supreme Court held, "All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment.
Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender's actions."
The Williams court went on to hold, "The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders. It may not, however, consistent with the Ohio Constitution, 'impose new or additional burdens, duties, obligations or liabilities ...' We conclude ... S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws."
The concern over the AWA has created strange jurisprudential bedfellows. The Cleveland Rape Crisis Center and the Texas Association Against Sexual Assault filed an amicus curiae brief, on behalf of the offender suggesting "any argument that Ohio's AWA is simply a remedial law designed to protect children and the public from sexual abuse and sex crimes is seriously flawed.
"Ohio's AWA is not based on empirical evidence or proven research, but on fear and misinformation," the brief said.
As the first state to comply with the AWA, Ohio's problem with constitutionality is an ominous sign for other states. Amy Borror, spokeswoman for the Ohio Public Defenders Office, testified at a 2009 congressional hearing that complying with the law spawned more than 6,000 lawsuits and increased the workload on sheriff's offices by about 60 percent, according to a report from the Tribune-Review .
She later told the Tribune-Review that the number of lawsuits had increased to more than 7,000, and her office estimates that Ohio has spent at least $10 million on legal costs. If Ohio chose not to comply with AWA they would have lost $935,000 in federal grant money.
Pennsylvania needs to proceed with caution as the legislature considers a fair, equitable and efficient way to comply with the AWA.