Four years ago, Ohio became the first state to comply with the Adam Walsh Child Protection and Safety Act of 2006 (AWA) which mandated a more comprehensive, nationwide system to track sex offenders. The intent of the AWA was to standardize sex offender laws across the country. The AWA established minimum national standards and provided some consistency with regard to sex offender legislation.
The AWA gave states five years to bring their laws into conformity with the new federal guidelines. The federal government had some leverage when it came to convincing state legislatures to comply. Every state was mandated to comply with the public registry provisions of the AWA or lose 10 percent of their allotted Byrne Justice Assistance law enforcement grants.
The deadline was extended twice, first to July 2010 then to July 27, 2011. Have state lawmakers crumbled in the face of federal cuts, not exactly. Only Ohio and 13 other states met the deadline.
10 percent penalty
According to the Harrisburg Patriot News, New York and Texas have informed the Department of Justice that their respective states will not comply with the AWA and will voluntarily submit to the10 percent penalty.
Texas called the AWA “one-size-fits-all” legislation that would cost 30 times the amount of federal funds that will be withheld if the state does not comply. Texas has estimated the federal funding penalty at $1.4 million, compared to an implementation cost of $38.7 million.
In California, the state’s sex-offender management board recommended that the legislature reject the AWA. “California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act.”
A National Conference of State Legislatures’ database revealed that 48 states have enacted nearly 350 laws related to residency restrictions, sentencing and monitoring sex offenders since 2008.
The AWA mandate seeks to undo most of the independent sex offender legislation. The AWA will expand the categories of crimes eligible for registration and increase the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states, reported CNN.
This summer an Ohio Supreme Court decision exposed the vulnerability of the more onerous requirement of the AWA. For the second time the Court found a portion of the AWA mandated legislation unconstitutional.
In State v. Williams, the Ohio Supreme Court held, “All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment.” Justice Paul E. Pfeiffer went on to write, “These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.”
Justice Pfeiffer continued, “The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders. It may not, however, consistent with the Ohio Constitution, ‘impose new or additional burdens, duties, obligations, or liabilities ...’ We conclude ... S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.”
As the first state to comply with the AWA, Ohio’s problems with constitutionality are an ominous sign for other states. Amy Borror, spokeswoman for the Ohio Public Defenders Office, told the Pittsburgh Tribune-Review that complying with the AWA spawned more than 7,000 lawsuits and increased the workload on sheriff’s offices by about 60 percent. Her office estimates that Ohio has spent at least $10 million just on legal costs defending the AWA.
If Ohio had chosen not to comply with AWA, the state would have lost about $935,000 in federal grant money.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ipso Facto. You can contact him at www.mattmangino.com).