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.