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The case of six-year old Adam Walsh is perhaps one that will never leave the minds of anyone initially horrified by its details. In 1981 young Adam was kidnapped from a local mall and regardless of tireless efforts by his parents John and Reve Walsh, volunteers, and law enforcement; Adam fell victim to murder. Two weeks after the boy went missing, his decapitated head was located, but his body was never found. This prompted his father John Walsh to start a campaign and legislature policy submission toward more stringent accountability for child crime offenders.
“The murder transformed John Walsh’s life, turning him from a middle-class hotel marketing executive into one of country’s best known advocates for missing children” (Thomas, 2008). In this paper, the initial legislative policy signed into law by President George W. Bush and the current policy addition initiative sought by Mr. Walsh is examined. The Scope of the Initiative With the signing of the initial policy by President Bush in 2006, the Adam Walsh Child Protection and Safety Act became law.
Aforementioned, the policy directive was to enact tougher laws on child predators however; the policy contains two additional provisions that would violate states’ rights and state policy’s currently in place for adoptive, foster, and relative caregivers. The two provisions contained in the Adam Walsh law are to follow. 1. Modified existing requirements for conducting criminal background checks 2. Created a new requirement to conduct child abuse registry checks of prospective foster and adoptive parents. (Miller, 2007)
The policy provisions left the states the discretion of choosing placement however, if those in the household filing for adoption or fostering of the child did not pass the background checks, the federal funding would not be approved. Those in opposition of the provision above were such because the wording of the provision seemingly protected the federal government instead of the child. The popular point of the second provision remains unopposed. “In addition, they cannot draw down funds for a child placed in a foster or adoptive home where the child abuse and neglect registry check is not conducted within that State, or requested of another State as required under the new law” (Miller, 2007) One would think the second of the two provisions to the 2006 law would be automatically assumed however, this particular law would come to face even more provisional changes its future. Issues Presented for Provisionary Inclusion Sex Offender Registration Act (SORNA) The Adam Walsh act has several other provisions including Title I, the Sex Offender Registration and Notification Act or (“SORNA”).
Under this portion SORNA “established a new federal sex offender registration framework and SORNA made two major changes to federal sex offender registration policy” (Morse, 2009). This portion of the act is currently in question for the following reasons: 1. Subsection (1) provides registration requires persons convicted of a sex crime under either federal or state law to register. 2. Section 16913provides that a sex offender must register and keep the registration current in each jurisdiction where he or she resides, is an employee, or is a student. (Morse, 2009).
Two provisions of the act violate principles of federalism: 1. A provision providing for the civil commitment of sexually violent predators, and a provision creating a new federal “failure to register” crime for federal sex offenders. 2. Section 4248 authorizes the federal government to initiate civil commitment proceedings against three categories of individuals: (a) Persons in the custody of the Bureau of Prisons (“BOP”), the federal agency responsible for the custody and care of federal offenders (b) Persons committed to the custody of the United States Attorney General based on incompetence to stand trial
Persons against whom all criminal charges have been dismissed solely due to their mental condition (Morse, 2009). Thus, Morse cites the following as challenges to the Adam Walsh act and questions the validity of the act for these reasons: Both provisions target people based on their former federal convictions and impose additional restrictions on them despite the fact that they have completed their federal sentences. Neither provision contains a jurisdictional hook.
In sum, both the civil commitment provision and the failure to register provision implicate the question of whether legal federal custody over a person may, without more, serve as the basis of future federal jurisdiction over that person (Morse, 2009). Citing the implications above Congress is considering an impending change to the provisions in the Walsh act that would remove all question of misinterpretation of wording These impending changes would ensure that no violations of civil rights, state rights or federalism are contained therein.
Also, “One scholar has argued the wording of § 2250(a) (2) (B) is not sufficiently tailored to support SORNA’s constitutionality under the Commerce Clause” (Morse, 2009). According to the Legal Dictionary, the Commerce Clause is defined as “The provision of the U. S. Constitution that gives Congress exclusive power over trade activities among the states and with foreign countries and Indian tribe”. The aforementioned obviously pertains to the location of the registered offender, and that he or she must register regardless of where they are, if they are a student, on a tribal reservation, or in a foreign country.
This as mentioned in the cited Morse document, coincides with what Morse goes on to say in regard to the regulation of criminal activity. Morse states “Because the regulating criminal activity is primarily the responsibility of the states, many scholars perceive the rapid expansion of the federal criminal law as clashing with federalism values” (Morse, 2009). To date the original funding of all aspects of the Adam Walsh Act is still in place and is to be revisited and potentially revised in 2014. Those who declare portions of the act unconstitutional, such as in Morse’s report cited, now have the opportunity to voice concerns and suggestions.
Conclusion The Adam Walsh Act while regulatory and legislative, still requires changes before all parties affected stand united in approval. Whereas Congress could use its spending power to encourage state compliance, not all states would view this as constitutional. There is much to do concerning this act, but the outcome is unpredictable. Current filings to repeal or revise the entire Adam Walsh Act exist such as by Citizens for Change in America, represented by Michael R. Handler. The repeal document cites the AWA as being draconian and going against Due Process and the Bail Reform Act of 1984.
Only time will prove the Adam Walsh Act is successful as currently written, but undoubtedly there are changes to come with such opposition and reasoning. Works Cited Miller, J. L. (2007, April). Adam Walsh Child Protection and Safety Act of 2006: Issues for Child Welfare Agencies. ChildFocus. Morse, R. (2009, December 1). Federalism Challenges to the Adam Walsh Act. Boston University Law Review, Vol. 89, p. 1753. Thomas, P. (2008, December 17). No ‘Closure’ for Walshes in Son’s Murder Case. Retrieved from ABC Good Morning America: http://abcnews. go. com/GMA/story? id=6478540;page=1