The question: Some states have short registration terms for certain classes of sex offenders. Others have quite long ones. Congress recently passed the Adam Walsh Act, excerpted below, establishing registration terms. For those states that adopt the Act (it is not mandatory on the states, but states that don't adopt it may lose federal funding), but already have longer state law enacted terms of registration, must these states shorten the length of their registration term? In other words, does the Walsh Act establish the minimum and maximum term length, or only a minimum? See below for my opinion.
Assuming, for a moment, that the Act imposed a maximum term, and that states could not lengthen this term, who would have standing to challenge a state term that was too lengthy? An offender registered in the state? Keep in mind the strange nature of the relationhsip between Congress and the states here. Congress generally cannot regulate intra-state matters, instead having power over inter-state and international activity. Thus, Congress could not impose the Walsh Act on the states. Now, imagine Offender X lives in Kent State, where all registration terms are for life. Kent State decides to accept all of its federal funding, but doesn't comply with the term requirements specifically in that it maintains its lengthy registration periods. Can X sue the state for failure to comply with the terms of the Walsh Act? Or does the right of action lie with Congress, as they are the ones who are being "duped" by giving funding where the state is not compliant? If Congress decides it doesn't care, and gives the funding anyways, can X obtain any relief?
ADAM WALSH CHILD PROTECTION AND SAFETY ACT OF 2006
SEC. 115. DURATION OF REGISTRATION REQUIREMENT.
(a) FULL REGISTRATION PERIOD.—A sex offender shall keep
the registration current for the full registration period (excluding
any time the sex offender is in custody or civilly committed) unless
the offender is allowed a reduction under subsection (b). The full
registration period is—
(1) 15 years, if the offender is a tier I sex offender;
(2) 25 years, if the offender is a tier II sex offender; and
(3) the life of the offender, if the offender is a tier III
sex offender.
(b) REDUCED PERIOD FOR CLEAN RECORD.—
(1) CLEAN RECORD.—The full registration period shall be
reduced as described in paragraph (3) for a sex offender who
maintains a clean record for the period described in paragraph (2) by—
(A) not being convicted of any offense for which imprisonment
for more than 1 year may be imposed;
(B) not being convicted of any sex offense;
(C) successfully completing any periods of supervised
release, probation, and parole; and
(D) successfully completing of an appropriate sex
offender treatment program certified by a jurisdiction or
by the Attorney General.
(2) PERIOD.—In the case of—
(A) a tier I sex offender, the period during which the
clean record shall be maintained is 10 years; and
(B) a tier III sex offender adjudicated delinquent for
the offense which required registration in a sex registry
under this title, the period during which the clean record
shall be maintained is 25 years.
(3) REDUCTION.—In the case of—
(A) a tier I sex offender, the reduction is 5 years;
(B) a tier III sex offender adjudicated delinquent, the
reduction is from life to that period for which the clean
record under paragraph (2) is maintained.
The text of the Walsh Act here excerpted seems to lend some strength to the argument that states must comply with these term provisions. For instance, the phrase “full registration period” implies that this is the entire length of the registration period. If the legislature meant to provide simply minimum required terms, it could have said “for at least the full registration period” or “for at least the period described below.” Additional support for this construction can be found in the statute’s proscription of reduction in term for clean record. If a state could simply add to the term, and the Walsh Act only institutes a minimum term requirement on the states, what good would a reduction provision do? After all, a state could simply ignore it entirely, and say that a registrant had to register for life. It seems absurd to think that the legislature would write a provision in that states were free to ignore.
Some commentary on the ill-conceived residency restrictions for sex offenders. Prompted by reading this fair article: http://www.newsday.com/news/local/longisland/ny-lisex1203,0,363472.story?coll=ny-linews-utility. These residency restrictions have no good empirical support, at best have no effect, and, at worst (and I believe most likely) will increase sex offending. In a frenzy to act as though they were doing something productive, and being tough on crime (the easiest, most substance-less way to get votes besides for bashing gays), legislatures across the country are enacting statutes that prohibit sex offender, often regardless of the kind of offense they committed, from living within certain distances from churches, schools, parks, bus stops, and community centers. If the idea here is to protect communities, there are no studies demonstrating that these measures will have any effect. In face, by driving offenders from place to place, and often into homelessness, they add dangerous stress to the offender, make him more difficult to monitor, and make it impossible for the offender to maintain steady treatment and employment, two things heavily correlated to risk of recidivism. Think tanks, policy centers, police officers, and prosecutors have come out to state what should have been the obvious: residency restricting is one of the worst ways to deal with the problem. I urge constituents to tell their elected officials to overcome the political cowardice and actually legislate intelligently, using measures that have proven to be successful. I outline many such methods in my Article.
