Is the Adam Walsh Act about sex-offender notification unconstitutional?

Yes

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by Kelly Piercy

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The Adam Walsh Act (AWA) violates so many parts of the Constitution that those who support it must either have never read the Constitution or believe it should be vacated and their own version be substituted.

The AWA violates the Fourth Amendment, the Eighth Amendment, the Tenth Amendment, the Separation of Powers Clause, and the prohibition against Bills of Attainder and Ex Post Facto law to name the grossest violations.

Article I, Section 9 of the Constitution prohibits Congress from passing a Bill of Attainder or enacting an Ex Post Facto law. That is:
A bill of attainder is a legislative act declaring the guilt of an individual or a group of persons and punishing them. Only the courts may determine whether one has violated a criminal statute. An ex post facto law declares an act illegal after it has been committed, or increases the punishment for an offense already committed.

The AWA was declared a Regulatory act in an attempt to avoid this Constitutional conflict. This reasoning fails by the penalties imposed for violating the terms and conditions of the act.

Analogously, Congress attempts to mix apples and oranges. Traffic laws reach two levels. On one level, a traffic regulation may be punished by fine or loss of privilege, i.e. speeding is an infraction of a regulation. Exceeding the posted (or safe) speed results in the imposition of a fine. Such a violation of this regulation cannot result in a criminal penalty such as imprisonment or denial of a right. Driving while under the influence reaches the level of criminal behavior and can be punished by loss of privilege, fine, and imprisonment.

On the same order, to maintain that the AWA is constitutional requires that violation of its terms and conditions may only reach the level of infraction of a regulation and be punishable only by fine and or loss of privilege. The moment the result of violating the terms and conditions of the AWA reach loss of liberty or other criminal result, the AWA becomes void under Article I, Section 9 of the Constitution of the United States.

Amendment IIX of the Constitution prohibits cruel and unusual punishment. That is:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The AWA sets all sex offenders as a general class. On the surface, this seems to make sense. Only the barest superficial inspection will allow this sense'. Criminal behavior must be assessed by the order of harm done. (See the United States Sentencing Guidelines.) Given the harm done by the class of crimes labeled as sex offenses, it is useful to look at other classes of crimes that cause long-term harm to victims, families of victims, communities, and the nation as a whole. The only other class of crime that meets these criteria is the class of crimes labeled as drug offenses. This much more far-reaching and much more damaging class of crime does not subject an offender to registration or residency restriction. Yet, this class of crime has a recidivism rate of more than twelve times greater than the recidivism of sex offenses. Therefore, that drug offenders are not subject to conditions of registration and residency restriction makes imposition of these requirements on the class of sex offenders Cruel and Unusual Punishment.

Outside of the legal and Constitutional prohibitions against cruel and unusual punishment, the general attitude of supporters of the AWA strengthens the need for Constitutional prohibition. The general attitude of those supporting the AWA is that sex offenders deserve the ostracism and loss of rights imposed by registration and residency restrictions. This translates to punishment for the sake of punishment, punishment to appease the anger of the supporters of the AWA.

Punishment has a purpose. The purpose of punishment is to ensure the person who commits the crime is aware of the gravity of their crime and understands that actions have consequences. Punishment must be meted out in balance with the crime. In this country, we do not stone women to death for adultery. We abhor that system of justice. While America has the highest rate of incarceration per capita of any industrialized nation, America does attempt to moderate that incarceration with components of treatment and rehabilitation.

The AWA and its supporters violate the precepts of American Justice at its very core by insisting on punishment for the sake of punishment. Those supporters contend that the punishment is just. They ignore the fact that when punishment exceeds the crime, then those meeting out the punishment become the destroyers of American Society. The supporters of the AWA ignore the fact that when there is no end to punishment, punishment becomes meaningless. Meaningless punishment, in any condition, for any crime, is cruel and unusual punishment.

On a radio broadcast in a small local market in the Southwest the host raised the question of the rising claim of sexual abuse and child abuse in divorce cases. Citing a particular case, the host invited listeners to comment. A caller defended the claims made by the Petitioner in the case by constantly repeating, Where there's smoke there's fire.' Another caller came on the air and countered, Yes ma'am, where there is smoke there is fire. Don't you think someone should look to make sure it is not the Constitution that is burning?'

We The People have ordained a Constitution. A set of rules and a social contract by which we have agreed to live with each other and with a government. To abrogate the terms of the Constitution by whim makes the entire document meaningless. I strongly urge the supporters of the AWA to take a moment to read and understand the Constitution and to research and understand the facts about sex offenses and the broad range of this class of crime and the effects of blanket categorization on both this class of offenders and the greater effect of the AWA on the Constitution. Remember that if you do not guard the Constitution from the government and uninformed you can relegate it to interesting antique archives of something that might have been a great nation.

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