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September 23, 2008

Extended ABAJ article about sex offender registries

The September issue of the ABA Journal includes this interesting article, headlined "Crime Registries Under Fire: Adam Walsh Act mandates sex offender lists, but some say it's unconstitutional."  Here are excerpts from the start of the piece:

Their names are sadly familiar: Jacob Wetterling, Megan Kanka, Jessica Lunsford, Adam Walsh. They were children who fell victim to pred­­ators, and over the years their names have been given to a succession of statutes requiring convicted sex offenders to register in their home states.

The laws incrementally strengthened those requirements, beginning in 1994 when Congress passed the Jacob Wetterling Act, which promoted the adoption of state registration. In 1996, Megan’s Law conditioned federal funding for state law enforcement on the creation of such programs.  Two years ago, Congress passed the Adam Walsh Child Protection and Safety Act, named for the son of John Walsh, whose advocacy for victims’ rights and crime prevention helped lead to the formation of the National Center for Missing and Exploited Children....

Included in the Walsh Act is the Sex Offender Registration and Notification Act, which establishes a national sex offender registry and creates three clas­sifications of sex offenders. The most serious group is required to register within three days after moving to a new state or face up to 10 years’ imprisonment. The law also makes it mandatory for states to maintain an online registry accessible to the public....

Most federal courts — spurning critics who contend that Congress exceeded its authority by encroaching on state and local control — have upheld SORNA.  But at least two courts this year have sided with the critics and invalidated some or all of the registry law.  In both rulings, the courts referred back to a line of U.S. Supreme Court cases from the 1990s that limited the federal government’s reach into state law. Meanwhile, a third federal court temporarily halted the new law until it had a chance to hear arguments on the issue.

More is at stake than just the sex offender registries, observers say. Americans have become accustomed to national crime registries, and courts could throw them into doubt. “Not surprisingly, given our increasing sense of informational entitlement and disdain for criminal offenders, we are seeing registration and notification laws spread to other subgroups, such as domestic abusers,” says Florida State University law professor Wayne A. Logan, author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

Also up for grabs is the future of the U.S. Supreme Court’s line of federalism cases, a darling of the court under former Chief Justice William H. Rehnquist.  The court trimmed back its press for state rights toward the end of Rehnquist’s tenure — he died in 2005. However, under his successor, John G. Roberts Jr., the court could get its chance to renew those federalism issues, this time with high-profile sex offender registration and notification laws.

September 23, 2008 at 04:16 PM | Permalink


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Does anyone else find it manipulative and untoward to name bills after dead children? Especially for controversial stuff like the sex offender registries.

Texas' sex offender registry was created in the mid-'90s in the name of Ashley Estell, with politicians dubbing the resulting bill "Ashley's Law." The man convicted of her rape and murder had prior sex offenses so the thinking was if her parents had known about him they could have better protected their daughter.

Cut to 2008 when DNA exonerated the man convicted of raping and killing young Ashley, earning his release from death row.

It's clear that assumptions of guilt by police based on Blair's past conviction for sex crimes helped generate tunnel vision in the case that caused them to overlook the real killer. Sex offender registries institutionalize those very same assumptions, making it more likely in such cases the wrong person gets convicted and the guilty man goes free, which is what happened in the case of Ashley Estell.

Posted by: Gritsforbreakfast | Sep 23, 2008 5:22:53 PM

"Does anyone else find it manipulative and untoward to name bills after dead children?"

Of course, it's done precisely to be manipulative. You are not going to get any political credit for passing the "Granite and Limestone Offender Act". Frankly, I think they should stop naming public building after living people too. That's unseemly to me as well.

Posted by: Daniel | Sep 23, 2008 8:44:22 PM

The cases of two of the named children are, to this day, unsolved. Would that adequate resources be granted to the clearing of cases, thereby catching those predators who do not appear on any registry. Alas, clearance rates have been falling over the past decade, indicating what government considers a priority (fully correct databases of offenders' addresses) and what it considers less important (funding investigations of open sexual assault and kidnapping cases in order to catch offenders currently committing crimes).

Posted by: Arika | Sep 24, 2008 11:20:53 AM


Truer words never spoken. Our current system of sex offender laws is not designed to protect children. It's design to create a big smokescreen so that politicians can get credit for protecting children. One of the biggest proponents of this approach is Oprah, the talk show host. She is pushing that damn Senate bill that is nothing more than a 360 million dollar publicity stunt. It's sad.

Posted by: Daniel | Sep 24, 2008 2:08:35 PM

Does anyone know of a petition to start to amend the residency restrictions.

Also, our state has sex offender RED stamps on driver's licenses and is considering sex offender car plates?

Is it constitutional to be punished, sentenced and serve your punishment, only to find more punishment can be added as new laws are created? How can one's punishment keep getting worse?

Posted by: DK | Sep 28, 2008 11:45:52 PM

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