New Federal Law

In late July, 2006, new federal legislation took effect, repealing the federal Wetterling Act.  The Wetterling Act governs the enactment of sex offender registration and notification laws by the states.  The new law is called the Walsh Act.  Sec. 129. <1>

BACKGROUND

1.         The new law is complicated.  It is currently referred to as “HR 4472 EAS” and can be found online at http://thomas.loc.gov.  My copy contains 94 pages.

2.         The purpose of the law is to “protect children” and the safety of “judges, prosecutors, law enforcement officers and their family members;” “to reduce and prevent gang violence;” and “for other [undesignated] purposes.” Preamble.

3.         Former sex offenders are divided into tiers I, II, and III, with tier I the least problematic category and tier III the most problematic.  Sec. 111.  No individual is offered an opportunity under this law to challenge the imposition of a tier designation.  Tier designations are determined on the basis of  conviction(s).

4.         Juveniles adjudicated delinquent by reason of sex offenses are included under the provisions of the Act, if the offense is committed when the juvenile is 14 years or older and the offense is comparable to or more severe than aggravated sexual abuse (as defined federally).  Sec. 111. 

REGISTRATION

6.         Former sex offenders must register where they reside, are employed, or where they are students (including secondary school students).  Sec. 113.  Registration is required before release from custody or within 3 days of receiving a non-custodial sentence.  Sec. 113.  Each state is required to impose a criminal penalty with a maximum term that is greater than one year for failing to comply with this requirement. Sec. 113. There is, however, no requirement that the maximum term be imposed.

7.         States are required to obtain DNA samples from each former sex offender.  Sec. 114.

8.         Length of time for which an offender must remain registered is 15 years for tier I former offenders; 25 years for tier II former offenders; and life for tier III former offenders.  Sec. 115.  Reductions are possible in certain narrowly-specified circumstances.  Sec. 115.

9.         Renewal of registration is required once per year for tier I offenders; once every six months for tier II offenders; and once every three months for tier III offenders. Sec. 116.

Internet  dissemination.

10.       Each state must make all registration information available for inclusion on a national Internet site.  All offenders, no matter the designated tier level, are included.  Exceptions are allowed only in certain narrowly-defined circumstances.  Sec. 118.  Any person with computer access can obtain this information through the nationally-maintained website.

11.       Website users are informed of criminal penalties for “unlawfully injur[ing], harass[ing], or commit[ing] a crime against any former offender.”  Sec. 118.

12.       The United States Attorney General is required to maintain a national database at the FBI, entitled National Sex Offender Registry, which includes all persons required to register under the Act in every jurisdiction.  Sec. 119.

Community dissemination

13.       Information must be disseminated to law enforcement agencies, social service agencies, volunteer agencies and other organizations in the community where the person lives, works and attends school.  Sec. 121.  This apparently includes tier I and II former offenders, as well as level III former offenders.

Development of software

14.       The U.S. Attorney General and the states must develop software to enable jurisdictions to create uniform registries and Internet websites.  Sec. 123.         

IMPLEMENTATION

15.       Each state is required to implement the Act within 3 years of its date of enactment or 1 year after creation of software.  The U. S. Attorney General may authorize two one-year extensions of these dates.  Sec. 124.

STATE FAILURE TO COMPLY

16.       State jurisdictions are punished for failure to comply with this law by stoppage of certain federal crime-fighting funds.  Sec. 125.  This is the requirement that has caused all fifty states to enact some form of sex offender registration and notification under the Wetterling law.

17.       In evaluating whether a state has failed to comply with the provisions of the Act, the United States Attorney General shall consider any opinion of the state’s highest court indicating that compliance would violate state constitutional requirements.  Consultation between the U.S. Attorney General and the state’s chief executive and chief legal officer are required.  Sec. 125.

18.       “Reasonable alternative procedures” consistent with the Act may be implemented.  Sec. 125.

This summarizes the first 30 or so pages of a 94 page document.  Remaining pages deal primarily with federal crimes, federal programs and federal funding. See inter alia Sec. 212 regarding habeas corpus proceedings; Sec. 301 regarding civil commitment of sexually dangerous persons; and Sec. 401 regarding “failure to register a deportable offense.”

In summary, the bad news is the content of the law, which reaches far more broadly that the previous Wetterling Act.

In summary, the good news is that the law will not take effect for a period of years.  The good news is also that when a state constitution is inconsistent with provisions of the act, the U.S. Attorney General (or his/her designee) is required to negotiate a settlement with the chief judicial and executive officers of the state.

The good news is that states need not comply with the law for three years and the U.S. Attorney General may authorize an additional two years for compliance.  Sec. 124.