Six years ago, Congress passed what is known as the Adam Walsh Act , aimed at protecting children from predators by collecting sex offender data in a national public registry and requiring those people listed in it to report their movements to law enforcement.
Adam's law required states to place convicted sex offenders in one of three tiers, based on the severity of their crimes. The act, named for a 6-year-old boy who was kidnapped and murdered in Florida in 1981, gave the states five years to comply.
The vast majority of states did not comply on time. As the five-year deadline of July 2011 was approaching, only four had met the terms of the law. The Obama administration issued new guidelines earlier in 2011 that gave states more discretion in implementing the act and clarified how to share information, and in the past year, 12 more states have become compliant. But most still are not, even though they will lose 10 percent of their justice assistance grants from the federal government in fiscal year 2012 as a penalty for inaction.
It's not that states are uninformed about the law; it's that they have substantial objections to it. Many see it as an unfunded mandate requiring them to spend millions of dollars collecting information and placing it in the national registry. They are reluctant to bear the cost of updating their own technology to register digital fingerprints, palm prints and DNA, and of paying for the additional time that law enforcement officers would spend processing sex offenders who appear before them in person.
Advocates for juveniles also complain about what would be a lifetime listing for some juvenile sex offenders, which they say goes against any commitment to rehabilitate juveniles, rather than punishing them for long periods of time.
Last month, Pennsylvania enacted changes in their sex offender laws to become compliant with the Adam Walsh Act by adding juveniles to its registry and requiring out-of-state and homeless people convicted of sexual offenses to register with law enforcement. "We can hope that by making our laws tougher," Governor Tom Corbett said in signing the bill, "we can spare others the pain and grief that has visited too many families." Pennsylvania had about 11,000 registered sex offenders as of June 2011.
But many other states are continuing to voice their objections to what the federal law expects of them. Susan Frederick, senior federal affairs counsel at the National Conference of State Legislatures, expects states to continue to press Congress for more discretion about which offenders to place on the three-tiered national registry, and for how long. Currently the law requires that convicted sex offenders, including juvenile offenders, remain in the registry for anywhere from 15 years to life, depending on the severity of their crime.
To ask for modifications in Adam's law to render it less strict is a politically difficult request. Even in the face of compelling evidence that the federal law needs to be amended if all states are to comply, Congress may be reluctant to make changes. "It's a political argument, and nobody wants to be seen as soft on sex offenders," says Frederick. "The parents of these children come to committee hearings and share their stories, and it's very difficult to look those parents in the eye and say we need to have flexibility for registering offenders."
Costs and benefits
In the absence of changes to Adam's law, however, some states will argue that complying with it is simply not worth the costs. Even though they lose 10 percent of their justice assistance money, that is usually less than they would end up paying for compliance. Ohio, which was the first state to become compliant in 2007, had within two years spent about $10 million just defending itself against lawsuits from offenders sentenced to the registry, according to the Pittsburgh Tribune-Review . In contrast, Ohio would have lost only about $2 million for non-compliance during the same period.
These calculations may be the main reason why other large and budget-challenged states such as Texas and California, have not taken steps to comply. A Texas Senate study conducted in 2010 found that implementing the act in that state would cost about $39 million, in comparison to a loss in federal grants of $1.4 million per year. Texas legislators have also argued that the state's current sex offender system, which was handling 66,587 registered sex offenders as of June 2011, is already backed up and that imposing another layer of requirements would only add to the strain of struggling law enforcement agencies.
"The money that states will lose will be far less than they'll have to pay for coming into compliance," says Amanda Peterutti, associate director of the Justice Policy Institute, "and states are looking at those costs and saying 'no way.' "
Nebraska, which changed their laws to to attempt compliance with the Adam Walsh Act in 2009, is now having second thoughts. Before compliance, Nebraska already maintained a three-tiered classification system for its more than 3,000 sex offenders, based on psychological evaluations and projected risks of re-offending. The names of those in the lowest tier of offenders were kept on an internal list, the second tier list was distributed to schools and other children's centers, and the third, the list of most dangerous offenders, was made public. But when the state complied with the Adam Walsh Act, the previous tier system was abolished and all sex offenders were placed on a public list, no matter the severity of their crime or their risk of re-offending.
"In retrospect, we question whether we are really protecting people with the high number of people out there who aren't truly a risk," Nebraska state Senator Amanda McGill said at an October hearing. Nebraska's legislature will likely consider a bill in the 2012 session to authorize a study of the effects of the law in the state.
Editors note: This version of the story has been updated to reflect that Pennsylvania and Nebraska's changes to their sex offender laws have not officially been ruled in compliance with the Adam Walsh Act by the Department of Justice. New York, which was mentioned in a previous version of the story, did not meet the July 2011 deadline for complinace but has applied to the Department of Justice to use their 10% cut for compliance activities, a process known as "reallocation."