Saturday, March 26, 2011

Brandishing the Mark of Cain: Defects in the Adam Walsh Act

Brandishing the Mark of Cain:
Defects in the Adam Walsh Act
Professor of Law,
Faulkner University
Federal Sentencing Reporter, Vol. 21, No. 2, pp. 107–110, ISSN 1053-9867 electronic ISSN
©2008 Vera Institute of Justice. All rights reserved. Please direct requests for permission to
photocopy or reproduce article content through the University of California Press’s Rights
and Permissions website, DOI: 10.1525/
Branding a person a sex offender is the most damning label available in modern society. No
other term evokes such universal disgust. The label sex offender carries a significant burden.
All states require those deemed sex offenders to register on a regular basis with local law
enforcement so that the community where they live and work can be notified of their presence.1
They may have to put signs in their yard announcing their new status as outcasts or even have
special license plates on their vehicles to further distinguish them from the rest of society.2
Failure to comply with any of these requirements is a crime, often a felony.3 On top of that,
nearly half of the states have some form of residence and/or employment restrictions that follow
those declared sex offenders for as long as they are required to register.4 So when the
government brands someone a sex offender, it is a serious action. Given the severe consequences
that flow from having this label, the process by which a person receives it should be scrutinized.
There actually ought to be a process, not just an automatic action. In the haste to mark those
convicted of sex-related crimes as deviant, the constitutional rights of those individuals
are often ignored. Regardless of how we may feel about a person’s actions, he or she is still
entitled to protections and processes guaranteed in the Constitution, in particular in the
Sixth and Fourteenth Amendments.
This Article will explore how and when the sex offender label is attached. It will consider some
alternative methods to accomplishing the governmental objective of providing notice to the
community while at the same time respecting individual rights. Because the social stigma is
so great, the brush used to mark sex offenders needs to be precise. Not every person
convicted of a sex crime should
be designated a sex offender. With the passage of the
2006 Adam Walsh Child Protection and Safety Act,5 the
federal government has forced states to broaden their
strokes against sex offenders without considering the need
for process and fairness. This significantly increases the
number of people who will be considered sex offenders
and increases the time they have to wear that brand.6
I. Sticks and Stones
What is the big deal with the term sex offender? Did the
offender not commit a sex-related crime? Is it not just an
exercise in the obvious to call someone a sex offender after
he or she is convicted of a sex crime? If the term were
merely name-calling, then it would not be as significant. A
sex offender by any other name would not be as frightening.
But other crimes do not become the identity of the
person like sex offenses do. You never see a headline in
the newspaper that describes a person as a drug offender
or bank robber or thief. But you do see headlines like SEX
the labels drug offender or even violent offender not mean
the same to us? Fear is the reason. Fear that those who
commit sex-related crimes can never purge their desire to
act out. Even if that were true, that fear alone would not
warrant special treatment of the sex offender. But the government
has gone too far in its use of this term. It is more
than an identification that requires remedial action.7 It
means more than what this person did. It now refers to
who they are and what they will do in the future. It is a
mark much like the mark placed on the forehead of Cain
by God after he was banished for killing his brother.8
Except that mark was to tell others to stay away from Cain
to protect Cain. The sex offender label is to mark those
that society should avoid to protect society. Because once
people are marked as sex offenders they are branded dangerous,
poisonous, and hopeless. And just like Cain, they
are destined to live life as fugitives and vagabonds.9
II. Who Gets the Label?
With congressional passage of the Adam Walsh Child Protection
Act, the federal government has strong-armed the
states into a tier system for classifying sex offenders.10
While many states already had a tiered system, the new
federal guidelines expand who gets the sex offender label
and for how long. To avoid the financial penalties of noncompliance,
states are scrambling to adopt the provisions
of the Act before the 2009 deadline. In their haste to get
the law on the books, procedural constitutional concerns
are swept under the rug, if not ignored completely.
As written, the Adam Walsh Act requires all individuals
convicted of sex-related crimes to be classified into one of
three sex offender tiers based on the seriousness of the
crime.11 It does not matter if it is your one and only sex
crime. One infraction is enough to become a sex offender.
Once is enough to earn the burden of being labeled a sex
offender and to carry that label for a minimum of fifteen
years (or ten years with good behavior). Any sex-related
crime, even those committed by children fourteen years old,
will beget the label. There is no pass given for first-time
offenders and no mechanism for negotiating away the label.
It even reaches back to cover those whose crimes were committed
before the Adam Walsh Act was adopted. Prior
offenders are subject to being reclassified not based on their
behavior after conviction but because of the crime committed.
The label is automatic. The only issue is what tier.
The three tiers set forth the period of time an offender
is required to register as a sex offender. Depending on
other sex-offender regulations in the state, a person who
must register as a sex offender may also be subject to residence
and employment restrictions that could severely
limit his or her freedom. Tier one, the lowest tier, requires
registration and notification for fifteen years. Tier two, the
middle tier, requires registration for twenty-five years. Tier
three requires lifetime registration. If a tier-one sex
offender has a clean record for ten years, then the final five
years of the registration may be eliminated. A tier-three
offender can, after twenty-five years of having a clean
record, reduce his or her labeling to twenty-five years.
Other than that, there is no provision for reduction or
waiver of the sex offender label. There is no provision for
tier-two offenders to reduce their twenty-five-year registration
If the classifications correlate to punishment, then this
would make sense, as more serious crimes are fairly punished
more severely than minor infractions. But the sex
offender classification is not intended for punishment; it
is for regulation. If it were presented as punishment, then
it would violate ex post facto laws. If it were punishment,
then it would far outpace any other sentence enhancement,
punishing misdemeanor crimes as if they were
serious felonies. If it were considered punishment, there
would be no hesitation to strike it down as cruel and
unusual. So it cannot be deemed punishment—not if it is
to be constitutional.
The declared purpose of the classification system is for
protection from future acts, not punishment for prior acts.
In such case, some process of determining the alleged
dangerousness of each sex offender should take place.
Somehow it has to be determined what risk an individual
poses to society. We have to treat consensual encounters
differently than nonconsensual ones. We should treat nonviolent
crimes differently than violent crimes. Yet
according to the Adam Walsh Act, all of the above will
spend a significant portion of their lives under the yoke of
the sex offender label. If we do not take the time to see
who really is a danger to society, we are treating all offenders
as having the exact same inability to repent. In fact, we
are treating those convicted of sex-related crimes as if they
will never repent. A one-size-fits-all approach means that
we are over-regulating the vast majority of those convicted
of sex offenses.
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III. How Do They Get the Label?
According to the Adam Walsh Act, the process by which a
person is deemed a sex offender is no process at all. He or
she is declared a sex offender upon conviction of a designated
offense that involves sex, a minor, or both. There is
no hearing. No witnesses are called, and no evidence is
presented. There is no evaluation. There is no analysis.
There is nothing that a defendant can do to avoid receiving
the label. It is automatic. There is no process. It is merely
a foregone conclusion that all people convicted of a sex
crime be labeled as sex offenders. The only question is
which tier. Skipping to that step with no process in
between puts too many people under the scrutiny of sex
offender registration. No one gets to discuss whether a
particular defendant should be there at all. The assumption
that all people convicted of a sex crime should be
branded a sex offender is defective. That defect reveals a
fundamental unfairness in the sex offender labeling
process of the Adam Walsh Act.
Automatic labeling was not the case in all states prior
to the Adam Walsh Act. In fact, there was a lot of variety in
determining who got the sex offender label. While most
states went with the automatic approach for low-level sex
offenders, some states gave the judge the discretion, others
the jury, and still others a commission that assessed
defendants to determine sex offender rankings. There may
have been an opportunity to call and cross-examine witnesses.
In most cases, a two- or three-tiered system existed
with the distinction typically between a sex offender and a
violent sex offender and/or sexual predator. The distinction
between being labeled a sexual offender and being
labeled a sexual predator and/or sexually violent predator
was not significant and related to the time period of registration.
12 In that sense it was similar to what is set forth in
the Adam Walsh Act. However, a few states considered
civil detention for those placed in the highest tier, such as
someone deemed a “sexually violent predator.”13 There is
process for civil commitment. Why not for all sex offender
The trend, as promoted by the Adam Walsh Act, is to
remove any individual assessment. The delineation of
tiers based solely on the particular offense of conviction
removes any discussion about the facts and circumstances
of a particular case. While states are not required to adopt
word-for-word the Adam Walsh Act, they are required to
substantially comply with it. There does not seem to be
any discretion for the states to add process if it opens the
possibility that all those convicted of sex crimes would not
get branded.
IV. A Better Approach
The sex offender brand is here to stay. It is far too political
an issue to just go away. But the way it is allocated should
change. It is possible that it could be used to serve a legitimate
governmental interest without unduly restricting
individual liberty. There is a constitutional need for
A better approach for sex offender identification would
be based on the premise that the sex offender label is a
punishment in and of itself. It carries a stigma, but more
important, it is the first step toward future crime not
related at all to sex.14 As punishment, courts would have to
treat it just like any other sentence enhancement. Courts
would be required to find facts that would indicate a need
for enhancement for each particular defendant. Following
the requirements of the Apprendi and Booker line of
cases,15 facts would have to be produced for a jury to find a
person a tier-two or tier-three sex offender—or better yet, a
sex offender at all. The goal of this new process would be
to make sure we only label the deviants that deserve the
sex offender label.
Being a sex offender should be a crime all its own. A
separate charge should have to be made for being a sex
offender, much like being a prior or persistent felony
offender. That way, the sex offender status could be a tool
for prosecutors to use at their discretion. They could use it
to label only those who truly deserve the label. It could be
negotiated away or not even considered at all in most circumstances.
If an accused were found guilty of being a sex
offender, then that conviction would serve as a sentence
enhancement much like being a persistent felony
offender. Being a sex offender would increase punishment
by forcing the accused to follow all of the restrictions currently
forced on sex offenders. There would be a jury trial
for the proof as required by Apprendi and Booker, and the
jury would need to find not only that the accused committed
a sex crime, but also that he or she is likely to offend
again. While not ideal, this approach at least gives a defendant
a chance to fight being branded a sex offender.
Also, there should be a notice requirement, in the
spirit of Boykin v. Alabama,16 for those pleading guilty to a
sex offense. Courts should be required to put on the
record that the defendant will be labeled a sex offender, or
subject to being given this label. Courts should be
required to detail the ramifications of such labeling,
including the length of the branding and the residence
and employment restrictions that accompany the label.
Such notice should be given so that before a plea is
entered, it is clear that the offender is freely and voluntarily
accepting this burden. The notice needs to include the
fact that the crime they plead guilty to may subject them to
the sex offender label in the future, especially if they move
to a different state.
V. Obstacles to Change
There are two primary obstacles that hinder change in this
area. The first is a refusal at this point to acknowledge that
post-conviction, post-probation, post-release restrictions of
liberty, like the registration requirements and the residence
and employment restrictions that flow from
mandatory registration, are punitive and not merely regulatory.
Until the post-release restrictions are treated as
actual punishments, there will be no judicial relief. So
long as the sex offender labeling process is considered reg-
ulatory and not punishment, it will remain civil in nature
and subject to lower scrutiny. However, courts are beginning
to scrutinize the Adam Walsh Act. As more courts
look at the issue objectively, they will find problems that
should be corrected no matter how politically unpopular it
may be to do so.17
The second obstacle is the belief that these scarlet letter
laws actually make us safer. There is no better example of
the politics of fear than the Adam Walsh Act. Listed at the
beginning of the act are the names, ages, home states, and
years of disappearance of seventeen children who were
abducted and killed or are still missing. The fear that sex
offenders are prowling after our children motivates this
kind of drastic legislation. After all, what politician does not
want to protect children? The issue is not whether sex
offenders should be punished. But there is no evidence to
support the view that these measures actually make us
safer. These laws are too broad, too far-reaching, and too
expensive for states to adequately follow. What the evidence
does show is that these laws have a devastating effect on
offenders, making recovery more difficult. If sex offenders
cannot assimilate back into society, then we have created a
class of outcast outlaws. What else can they do then but
reoffend? The politics of fear will push this issue into the
courts, where hopefully common sense will prevail.
1 Some sex offenders may be required to verify their information
as often as every ninety days.
2 See Ben Jones, States May Require Sex Offenders to Use Special
License Plates, USA TODAY, May 2, 2007, available at
tags_N.htm (reporting on proposals in Alabama,
Ohio, and Wisconsin that would require special license plates
for sex offenders); Cuero City Council Approves Sex Offender
Yard Signs, available at
forums/101/17977/174223.html (reporting that, in March
2006, Cuero, Texas, passed a city ordinance requiring “highrisk”
sex offenders to place two-by-two signs in their yards
announcing they are sex offenders ).
3 In Alabama, for instance, the failure to register is punishable
by up to ten years and up to a $250,000 fine. ALA. CODE § 15-
20-26(h) (2008).
4 See, e.g., GA. CODE ANN. § 42-1-15(a) (2006).
5 Pub. L. No. 109-248, 120 Stat. 587 (2006).
6 See, e.g., Peter Hirschfeld, Issues of Cost, Content Arise over
State’s Sex Offender Registry, BARRE MONTPELIER TIMES ARGUS,
Oct. 21, 2008, available at
1002/NEWS01. The lower threshold of the Adam Walsh Act
will require all 2,400 of the Vermont’s sex offenders to register,
whereas previously only 400 were required to do so. Id.
7 See, e.g., In re Gant, No. 1-08-11, 2008 WL 4455589, at *6
(Ohio Ct. App. Oct. 6, 2008) (holding that registration and
verification provisions are remedial in nature and do not violate
the ban on retroactive laws).
8 Genesis 4:15 (New King James) (“And the Lord set a mark on
Cain, lest anyone finding him should kill him.”).
9 Genesis 4:12 (New King James).
10 42 U.S.C. § 16901 (2006).
11 42 U.S.C. § 16911 (2)-(4) (2006).
12 A sex offender typically will be subject to registration requirements,
as well as employment and residence restrictions, for
at least ten to fifteen years, while a second- or third-tier designation
increases the registration period to twenty-five years
or life.
13 See, e.g., IOWA CODE §§ 229A.1-229A.16 (2008).
14 Failing to report or otherwise violating reporting requirements,
residence restrictions or employment restrictions are
strict liability crimes that apply only to sex offenders.
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15 Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v.
Booker, 543 U.S. 220 (2005).
16 395 U.S. 238 (1969).
17 See, e.g., Abigail Goldman, New Sex Offender Laws Could Rise Out
of Limbo, LAS VEGAS SUN, Oct. 8, 2008 (reporting that three
courts in Nevada have acted to halt proceedings under the Adam
Walsh Act as they consider the constitutionality of the law).
The following paper may give you some statistics, from California, to put to good use!
U.S. News: Sex-Registry Flaws Stand Out
Ryan Knutson, Justin Scheck. Wall Street Journal. (Eastern edition). New York, N.Y.: Sep 3,
2009. pg. A.5
Abstract (Summary)
There are now so many people on the registry it's difficult for law enforcement to effectively
track them all, and "it's more helpful for law enforcement to know . . . who the highest-risk
offenders are," said Janet Neeley, a deputy California attorney general and member of the state's
sex offender board.
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The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years
despite monthly law-enforcement visits, is forcing California officials to acknowledge a
fundamental problem with the state's sex-offender registry: The list keeps expanding, while the
number of officials who monitor sex offenders has grown at a much slower rate.
There are now so many people on the registry it's difficult for law enforcement to effectively
track them all, and "it's more helpful for law enforcement to know . . . who the highest-risk
offenders are," said Janet Neeley, a deputy California attorney general and member of the state's
sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found
9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk,
said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent
monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
California's sex-offender registry has ballooned to more than 90,000 people now from about
45,000 in 1994, according to the California attorney general's office. Not only has the number of
law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local
agencies to cut officers assigned to sex offenders, according to the California Commission on
Peace Officer Standards and Training.
The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field
only five officers dedicated to tracking sex offenders in the county, down from eight officers five
years ago.
Last year, California's Sex Offender Management Board criticized the system as it stands
in a 225-page assessment, highlighting failures in the collection and analysis of data on sex
offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the
report said.
Mr. Garrido, who allegedly kidnapped the 11-year-old girl in 1991, was considered high-risk
because of a 1977 conviction for rape and kidnapping. But he received about the same number
of visits from officers at his Antioch, Calif., home as the 200 or so other sex offenders in
Antioch and adjacent Pittsburg, said the Contra Costa County Sheriff, even though many weren't
convicted of violent offenses. During dozens of visits to Mr. Garrido's home, authorities never
found the tents and shacks hidden behind a backyard fence.
The growing sex-offender list can dilute the amount of attention on the most dangerous
offenders, said Nora Demleitner, the dean of Hofstra University Law School who studies
sentencing. Some sex offenders "tend to be not dangerous at all," she said. "You have them
register as sex offenders, so when you're law enforcement, all these people look the same. If you
had much more focused sex-offender laws, maybe they would have been bothered to go into the
shack" in Mr. Garrido's back yard.
California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer
conflicting rules for monitoring sex offenders, Ms. Neeley said.
Under its law, California has chosen to use a program called Static 99, which categorizes sex
offenders based on their likelihood to reoffend. To predict risk, it looks at things like the nature
of the crime, the offender's relationship with the victim and whether the offender has been able
to form long-term intimate relationships. But the system hasn't been introduced by most local
jurisdictions for those convicted before 2007.
Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so
that it's based solely on an offender's type of conviction, not on a complex assessment of risk.
That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who
studies sex-offender registries, since it "overestimates risk for most people, and underestimates
risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.
Now, the state Sex Offender Management Board is recommending that California forgo some
federal funds and not adopt the law, which would add to the number of crimes requiring
"There is no available evidence to indicate that expanding California's list of registerable
crimes would promote public safety," the board wrote in a recommendation, noting the
federal law would create at least $32 million in costs to the attorney general's office and
law-enforcement agencies without improving the system.
Credit: By Ryan Knutson and Justin Scheck

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