Friday, January 27, 2012

The Cautionary Instruction: SCOTUS ruling signals more trouble for Adam Walsh Act?

The Pittsburgh Post-Gazette/Ipso Facto
January 27, 2012

In 2006, growing concern about unaccounted for sex offenders whose whereabouts were unknown to law enforcement and the community, caught the attention of Congress.

In response, Congress enacted the Adam Walsh Act (AWA). The AWA created a new federal offense for failing to register as a sex offender as required by the Sex Offender Registration and Notification Act. The AWA also established a baseline standard for states to comply with regarding sex offender registration.

The statute also included an incentive to comply. Failure to comply with the AWA would cause non-complying states to lose 10 percent of their annual federal crime fighting funds. The AWA has not been without controversy and a U.S. Supreme Court decision this week has added to the concern .

In 2001, Billy Joe Reynolds was convicted of a sex offense in Missouri. After he was released from prison, Reynolds registered as a sex offender in Missouri. However, in 2007 he moved to Pennsylvania and failed to register.

Reynolds was indicted and pled guilty to a registration violation pursuant to the AWA. He immediately appealed the conviction, challenging the constitutionality of the AWA, suggesting that the attorney general did not follow proper procedure when establishing an interim rule making the law retroactive.

The Third Circuit upheld the conviction. The court determined that Reynolds did not have standing to challenge the attorney general’s interim rule, finding the AWA itself required Reynolds to update his information, not the subsequent interim rule issued by the attorney general.

This week the U.S Supreme Court disagreed with the Third Circuit and sent Reynolds’ case back to the appeals court. Reynolds does indeed have standing and the appeals court has been ordered to get to the merits of his claim.

"The question before us is whether the act requires pre-act offenders to register before the attorney general validly specifies that the act's registration provisions apply to them," Justice Stephen Breyer wrote for the court. "We believe that it does not."

The high court’s decision did not get to the question of whether the AWA should be applied retroactively. However, it does require the Third Circuit to make that determination. Inevitably, Reynolds’ case will make its way back to the Supreme Court.

The consequences of the AWA not applying to offenders convicted prior to the law’s enactment are enormous. The purpose of the AWA was to provide uniformity to registration requirements that were, prior to the act, a patchwork of differing state statutes that were not compatible or consistent from state to state.

If the AWA does not apply to those offenders convicted prior to the law’s enactment, the primary purpose of the AWA will be thwarted. All sex offenders prior to 2006 will be, once again, governed, for purpose of registration and community notification, by an unwieldy mélange of state statutes.

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