RALEIGH, N.C.—North Carolina is not only among a majority of states that has yet to become compliant with provisions of the Adam Walsh Act of 2006 that pertain to sex offender registries, but it may never become compliant … on purpose
As an excellent article posted to StarNewsOnline.com today notes, the state has run the numbers and determined that the cost of becoming compliant with Adam Walsh will cost millions more than losing the 10 percent of Byrne JAG federal funding it receives annually for law enforcement and other purposes. That and the difficulty of making the federal requirements consistent with state law have officials seriously considering letting the July 2011 deadline for compliance come and go.
"The requirements of the federal government are so burdensome and so expensive we've decided it may not be worth the (grant) funding they're offering of us," said Sarah Stevens, a Republican state representative from Surry County.
As elaborated by Wikipedia, “the act enlarges the kidnapping statute, increases the number of federal capital offenses, enhances the mandatory minimum terms of imprisonment and other penalties that attend various federal sex offenses, establishes a civil commitment procedure for federal sex offenders, authorizes random searches as a condition for sex offender probation and supervised release, outlaws Internet date drug trafficking, permits the victims of state crimes to participate in related federal habeas corpus proceedings, and eliminates the statute of limitations for certain sex offenses and crimes committed against children.”
Essentially, all of those changes were drafted to make it harder for sex offenders to move from state to state in order to stay under the law enforcement radar. According to the National Center for Missing and Exploited Children (NCMEC), while there are upwards of 780,000 sex offenders in the country, about 100,000 of them are in violation of their registration requirements. That’s a large number except when taken as a percentage of the entire 300 million plus population of the nation.
Still, while a more coordinated national oversight effort with respect to violent sexual offenders is a good idea, critics of the law also point to the fact that the three-tiered system of identification is so broad in its sweep that people who should probably not be on the list in the first place are not only on it but, according to Walsh, are now subject to being kept on it for far longer terms that originally intended.
The definitions of the tiers, as taken from the language of the Act are, as follows:
(1) SEX OFFENDER.—The term “sex offender” means an individual who was convicted of a sex offense.
(2) TIER I SEX OFFENDER.—The term “tier I sex offender” means a sex offender other than a tier II or tier III sex offender.
(3) TIER II SEX OFFENDER.—The term “tier II sex offender” means a sex offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and—
(A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:
(i) sex trafficking (as described in section 1591 of title 18, United States Code);
(ii) coercion and enticement (as described in section 2422(b) of title 18, United States Code);
(iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a)) of title 18, United States Code;
(iv) abusive sexual contact (as described in section 2244 of title 18, United States Code);
(B) involves—
(i) use of a minor in a sexual performance;
(ii) solicitation of a minor to practice prostitution; or
(iii) production or distribution of child pornography; or
(C) occurs after the offender becomes a tier I sex offender.
(4) TIER III SEX OFFENDER.—The term “tier III sex offender” means a sex offender whose offense is punishable by imprisonment for more than 1 year and—
(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18, United States Code); or (ii) abusive sexual contact (as described in section 2244 of title 18, United States Code) against a minor who has not attained the age of 13 years;
H. R. 4472—6 (B) involves kidnapping of a minor (unless committed by a parent or guardian); or
(C) occurs after the offender becomes a tier II sex offender.
Tier III offenders must update their whereabouts every three months with lifetime registration requirements. Tier II offenders must update their whereabouts every six months with 25 years of registration, and Tier I offenders must update their whereabouts every year with 15 years of registration. Failure to register and update information is a felony.
“Currently in North Carolina,” the article reported, “most first-time offenders register for 30 years but can petition for removal after a decade, said New Hanover County Assistant District Attorney Connie Jordan, a prosecutor in charge of sex crimes. Those who commit the most heinous acts or are multiple offenders can face a lifetime of registration and satellite monitoring.
“North Carolina's reluctance to adopt the new requirements [reflects] cost concerns as well as the logistics of implementing such a complex set of new policies,” it continued. “The Justice Policy Institute, a nonprofit based in Washington, D.C., estimated in 2009 that North Carolina would incur $14.7 million in costs to comply with the Adam Walsh Act, much more than it stands to lose in grant funding.” By comparison, the state stands to lose hundreds of thousands of dollars in federal funding if it fails to comply.
North Carolina, of course, is not alone in its potential recalcitrance. Currently, only Michigan, Nevada, Ohio, Delaware, Florida, South Dakota and Wyoming are considered to be compliant, and lawsuits in Ohio and Nevada that went all the state Supreme Court succeeded in striking down provisions that gave the U.S. Attorney General the right to retroactively change the amount of time a person convicted under the previous sex offender law had to stay on the list.
One notoriously independent state, Texas, has actually already declared that it "is not going to be in compliance" come the July deadline. That does not mean it will not ever become compliant, but the groundswell of opposition by states and civil liberties groups to the apparent overreach of a bill whose underlying intent was laudable may mean that Congress will at some point have to address the complaints.
Indeed, not all state Supreme Courts are taking a more restrictive stance with respect to sex offender lists, as AVN has previously reported. In Wisconsin, the high court determined that it is permissible to add people to the state’s sex offender registry who have committed no sexual crime. If Wisconsin ever comes into compliance with Walsh, it will be interesting to see how that ruling jives with the federal law, which seems to require a sexual component to the proscribed activities.
What seems all but certain, however, is that the July deadline will not be met by a majority of states.
