Monday, January 11, 2010

Old Helium.com article on why AWA is onconstitutional

I can't believe a two year old article i wrote is still up, and it is worth sharing. It was written way back in the beginning of 2008.

http://www.helium.com/items/837058-is-the-adam-walsh-act-about-sex-offender-notification-unconstitutional

Why the Adam Walsh Act is Unconstitutional

Congress knew the Adam Walsh Act was unconstitutional from the very beginning. The AWA began as the Child Protection and Safety Act of 2005, but stalled out in both the House and the Senate. Then John Walsh began his crusade to resurrect this stymied bill. During the lobbying campaign for the AWA, John Walsh had told critics that he suggested electronic implants in the anuses of sex offenders and "if they go outside the radius, explode it, and that would send a big message." His wife, Reve, suggested asking those stymieing the AWA if they molested kids or had child porn on their computers. (Lisa de Morales, "Summer Press Tour, Day 16: An Explosive Interview," Washington Post, Wed., July 26, 2006, C7). He gained the backing of disgraced Florida Congressman Mark Foley to help push this bill through a "special" legislative session. These special sessions are reserved for "emergency" provisions such as disaster relief, or any legislation expected to have no opposition. Thus, there was no hearing and no opportunity for opponents to challenge this law. Even Senator Kennedy was pressured to drop hate crime legislation he attached to the bill (ibid.). After the bill was passed, Attorney General was given the power of "interim rule" by Congress (violating Separation of Powers); interim rule allowed Gonzalez to bypass proper procedure. One of the provisions he passed was the retroactive application of the law (violating ex post facto).

The AWA, like all other sex offender legislation, has been argued the same way by those passing these laws, namely, that these laws are meant to be "regulatory/ civil" rather than "punitive/ criminal." This argument effectively bypasses all constitutional safeguards! However, when it has been successfully argued such laws are indeed punitive, there have been victories against sex offender legislation.

Ohio is one of the first states to pass the AWA. Much like their US counterparts, the state legislators held a closed-door "special" session. Under the new law "SB 10," many offenders would be reclassified, many raised to a Tier III. Also, those who were no longer required to register would have to continue registering for at least five more years. In Hamilton County alone, an extra 800 people would join the 350 already on Tier III (Sharon Coolidge, "Sex Offenders face tough rules" Cincinnati Enquirer, Dec. 29, 2007). As of this writing, over a thousand RSOs have filed litigation against the AWA. The Ohio Public Defenders' Office is handling many of these cases, as it is now considered a criminal matter. Among the arguments used in the possible class-action lawsuit is ex post facto, separation of powers, and double jeopardy.

To make it worse, the AWA attaches a penalty to states refusing to implement the AWA; a 10% cut in the Byrne grant (though Bush and Congress has just cut the grant significantly and is being debated). But many states such as Arizona have found the cost of implementing the law exceeds the amount that would be lost if they DON'T Implement the AWA (Sarah Tofte, "Protect children from sexual violence" Pasadena Star-News, Jan. 21, 2008). If the law was not controversial, then why must the federal government force the states to adopt it under penalty? Something is fishy here.

In short, the origins of the AWA are shady. The effect of the law is onerous and obnoxious to our constitution. Nothing seems or feels right about the provisions of this act. In the next few days, I will have a breakdown of the AWA at my website, www.oncefallen.com, for anyone interested in further research into the practical effects of the AWA.

2 comments:

  1. Why is it that no one points out that Adam Walsh, a 6 YEAR OLD CHILD, was left unattended in a mall while his mother continued her shopping. 6 YEARS OLD!!! Of course the bastard who kidnapped and murdered Adam should be dealt with severely, and was. But what about his parents. In Georgia recently, a family left their child in a shopping cart, both thought the other was watching it, their purchases were in the cart, and they were arrested for CHILD NEGLECT.

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  2. I admit I'm a big critic of Walsh. HOWEVER, you have to understand the culture of the time. Back then, we didn't have helicopter parents, predator panic, and the like. John Walsh started the Predator panic and helicopter parenting. Anyways, back then it was NOT UNCOMMON for people to allow their kids to out to places alone. When I was a child I went out alone to the store, to walk down the street to a friend's house, or play in the woods. So what the Walsh family did was NOT that uncommon for the time. As much as I dislike Walsh, I can't use that for attacking him. Besides, he has given us plenty of ammunition, such as his sex addiction, his exploding anus chips diatribe, and his exhortation to never hire a male babysitter.

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