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The Adam Walsh Act - the final straw?

Last year, in Hyle v. Porter, the Ohio Supreme Court held that the residency restrictions for sex offenders adopted by the legislature in 2003 couldn't be applied retroactively to those who'd committed crimes prior to the effective date of the statute.  The court skirted the obvious constitutional questions and instead based its decision solely on statutory construction rules, holding that the legislature hadn't expressly stated that the legislation was to be applied retroactively.  I commented at the time that "this leaves open the possibility that the legislature will remedy the problem by repassing the law, this time with an express statement that it’s intended to be retroactive."

Turns out the legislature went me one better.

Instead of doing that, the proposed bill (H.B. 11, currently in the House Criminal Justice Committee) simply applies the restriction to anyone who is under a current duty to register as a sex offender.  To be sure, there's some ex post facto implications there:  the duty to register can hinge on a sex offense conviction which occurred years before the registration requirements were enacted.  In fact, while it used to be that offenders were hauled back into court for classification hearings, that's not even necessary any longer; since the adoption of the Adam Walsh Act by Ohio in 2007, registration is automatic, based solely on the offense for which an offender was committed.  The constitutionality of the Act, not only regarding retroactivity but also in terms of separation of powers, is before the Supreme Court now, but every appellate district to have considered the issue has upheld the Act.  What's more, arguments about retroactivity of the Act's predecessors have been routinely shot down, on the fiction that the requirements are not punitive, but "remedial." 

The bill might have some other constitutional problems, though.  While the law considered in Hyle simply prohibited offenders from living within 1,000 feet of a school, preschool, or child day-care center, the new proposal substantially expands that to any "recreation center, playground, or other place where it is reasonable to expect children to frequent or linger."  What does that mean?  A bus stop?  A shopping mall?  How many places can you think of where it's not reasonable to expect children to frequent?

If there was evidence of the efficacy of all this, it might be a different story, but there's not; as this article shows, a study by New Jersey of its "Megan's Law" found that it "has failed to deter sex crimes or reduce the number of victims since its passage 15 years ago."  The problem with the laws is that they're based on the "stranger abduction" fiction:  that children are routinely picked up off the street by pedophiles, and that if parents are given information about where those pedophiles are, and if the pedophiles are kept away from areas where children might congregate, those crimes would stop.  In fact, upwards of 85% of child sex offenses are committed by friends or other household members.

In fact, there's growing evidence that sex offender registration and residency laws not only don't do what they're supposed to -- prevent sex crimes -- but may actually be counterproductive.   This stems not only from the fact that in many cases the effect of the law is to drive offenders underground and make them harder to track, but from the expenditure of resources necessary to effectuate them.  That Adam Walsh Act isn't just an Ohio law; it's actually a Federal law passed back in 2006.  One of the purposes was to establish a uniform method of tracking sex offenders from state to state.  To get the states to adopt the law, the Feds used the normal carrot-and-stick approach:  states that didn't comply would suffer a 10% cut in the Justice Assistance Grant program. 

While a number of states, like Ohio, jumped on the bandwagon almost as soon as the ink on the bill was dry, others held off.  The latter approach has turned out to be the wiser move.  As this article shows, the complexity of the law's requirements has made complying with its mandates nearly impossible -- no state is yet in compliance with the law -- and many states have concluded that the law's requirements sometimes don't make sense, and often make it necessary for them to change what has been working for them for years.   In fact, the California Sex Offender Management Board has recommended that the state should not even bother trying into compliance:  the cost of doing so, coupled with the minimal benefits, would outweigh any Federal money the state would receive.

There's certainly a purpose to giving parents sufficient information to protect their children.  Sex offender laws have long gone beyond what is needed to do that.  H.B. 11 does more to add to that problem than to resolve it.


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