Children Sex Offenders: How The Adam Walsh Child Protection and Safety Act Hurts The Same Children It Is Trying To Protect

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Children Sex Offenders:

How the Adam Walsh Child Protection
and Safety Act Hurts the Same Children it
is Trying to Protect
I. INTRODUCTION
One afternoon, while I was clerking in a law office, a woman walked in
with her adorable four-year-old daughter. She sat behind the large
mahogany desk and began to tell her story like most clients did from 3:005:00 p.m. However, this woman was different. She was a mother scared for
her daughter and terrified for her thirteen-year-old son. She was stuck in
the middle of the love for her children and the realities of the judicial
system.
Several weeks prior, the womans daughter came to her laughing, while
telling her that her brother had her perform, what the mother later
determined to be, oral sex on him. Horrified, the mother talked to her son.
He explained that he found a picture on the Internet and was curious. One
day while she was gone for twenty minutes, the son and daughter
experimented. What this little boy did not know, nor could he understand,
was that this single act would change the rest of his life. The mother,
heartbroken, took her son to a psychiatrist for counseling. The counselor
then turned to the authorities. The desperate cry from the mother for help
ultimately caused her son to be taken out of the home and investigated for
felony charges.
Throughout the rest of this Note, keep this boy in mind because families
in similar situations are also being hurt when a juvenile is treated and
punished as an adult. If he is charged and found guilty, he will have to
register as a sex offender for fifteen years to life. 1 His school, any future
employers, and any organization in which he is involved will be notified. 2
What was once a normal boy who was just curious, will be forever seen in
societys eyes, and in his eyes, as a sex offender.
1
.
Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120
Stat. 587 115.
2
.
Id. 121, 120 Stat. at 597.
203
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In our society, children have been treated differently than adults in all
areas of life. Children are required to attend school, forbidden to work
without permission before age sixteen, unable to vote, and prohibited from
drinking alcohol.3 It is well accepted that children are different from adults
mentally, physically, and emotionally. 4 Accordingly, society and
lawmakers have created different guidelines and expectations for children.
The concept of treating children differently than adults is highly evidenced
by the juvenile justice system. The juvenile justice system was created to
give children different penaltiesthe focus being rehabilitation rather than
punishment.5 The enactment of the Adam Walsh Child Protection and
Safety Act (Adam Walsh Act) recently changed the long-held ideals of sex
offender laws in the juvenile justice system. 6 The Adam Walsh Act lowers
the age of juveniles who must register as sex offenders and requires public
notification.7 It also expands the definition of a sex offense and lengthens
the time for registration and notification for those who are deemed sex
offenders.8
While states are now required to implement new elements associated
with the Adam Walsh Act, states have the discretion to set an age limit
lower than fourteen for juvenile sex offenders. 9 States may also implement
stricter public notification policies and include more crimes that require
registration.10 The state cannot be under-inclusive, or else it is in violation
of the Act.11 States therefore should implement the guidelines to affect the
least amount of children and punish them in the least harmful way, while
still abiding by the guidelines of the Adam Walsh Act.
This Note argues that the threat of recidivism alone does not outweigh
the long-term mental health considerations and harm associated with the
inability to overcome a mistake made by a child due to the registration and
notification requirements imposed. The Note begins by discussing in Part II
the background of sex offender laws. Part III describes the Adam Walsh
Act, the latest sex offender law enacted in July 2006. Part IV discusses the
3
.
Larry Cunningham, A Question of Capacity: Towards a Comprehensive and
Consistent Vision of Children and Their Status under Law, 10 U.C. DAVIS J. JUV. L. &
POLY 275, 294-99 (2006).
4
.
Id. at 281-82.
5
.
David O. Brink, Immaturity, Normative Competence, and Juvenile Transfer: How
(Not) to Punish Minors for Major Crimes, 82 TEX. L. REV. 1555, 1559-61 (2004).
6
.
Stat. 587.
7
.
Id. 111(8), 113, 120 Stat. at 593.
8
.
Id. 111, 115, 121, 120 Stat. at 592, 595, 597.
9
.
Id. 111, 120 Stat. at 592.
10
.
Id. 111, 118, 120 Stat. at 592, 596.
11
.
See id. at 124, 120 Stat. at 598 (requiring jurisdictions to implement the Adam
Walsh Act by no later than three years after July 27, 2006).
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negative impact previous statutes imposed on children. Part V argues that
the Adam Walsh Act hurts children more than it benefits the public. Part VI
discusses why children should be tried in juvenile courts in accordance
with the Constitution. Finally, Part VII is the authors conclusion that the
Adam Walsh Act is a step in the wrong direction and hurts the same
children it sets out to protect.
II. SEX OFFENDER LAWS
A. The Evolution of Sex Offender Laws
Prior to 1994, few states required convicted sex offenders to inform
local law enforcement officials of their current living address. 12 In 1994,
Congress passed the Jacob Wetterling Crimes Against Children and
Sexually Violent Offender Act,13 requiring states to implement a sex
offender registry program or forfeit ten percent of federal funds for
state and local law enforcement. 14 This early Act did not require public
databases or public notification.15 The murder of seven-year-old Megan
Kanka by a released sex offender living on her street had a tremendous
impact on sex offender registry laws. 16 By 1996, every state had legislation
requiring certain sex offenders to register with law enforcement. 17 The
Federal Megans Law authorized states to release relevant information
that [was] necessary to protect the public concerning a specific person
required to register . . . . 18 The Pam Lynchner Sexual Offender Tracking
and Identification Act was also enacted in 1996, enabling a federal
12
.
NATL CTR. FOR MISSING AND EXPLOITED CHILDREN , SEX-OFFENDERS: HISTORY,
http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry
=en_US&PageId=3032 (last visited Feb. 6, 2008).
13
.
Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Program, Pub. L. No. 103-322, 108 Stat. 2038 (1994) (codified as amended at
42 U.S.C. 14071 (2006)).
14
.
NATL CTR. FOR MISSING AND EXPLOITED CHILDREN, supra note Error:
Reference source not found.
15
.
42 U.S.C. 14701(e)(2)
The state of any agency authorized by the state shall release relevant information
that is necessary to protect the public concerning a specific person required to
register. . . . The release of information under this paragraph shall include the
maintenance of an Internet site containing such information that is available to the
public.
Id.
16
.
NATL CTR. FOR MISSING AND EXPLOITED CHILDREN, supra note 12.
.
Elizabeth Garfinkle, Coming of Age in America: The Misapplication of SexOffender Registration and Community-Notification Laws to Juveniles, 91 CAL. L. REV. 163,
167 (2003).
18
.
Megans Law of 1996, Pub. L. No. 104-145, 110 Stat. 1345 (codified at 42 U.S.C.
17
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database to track sex offenders.19
With little guidance from the Federal Government, states have struggled
for the past ten years to create sex offender registry laws. This lack of
guidance has produced a wide discrepancy in both registration and
notification laws between states. 20 For example, some counties in
Washington require public notification consisting of door-to-door fliers or
posting signs,21 while the state of Louisiana requires child sex offenders to
personally notify their neighbors of their sex offender status. 22 Megans
Law required a state to provide relevant information by a method of
notification that is necessary to protect the public. 23 Because the law did
not define exactly what constitutes relevant information, definitions vary
between the states.24
The widest discrepancies in state laws relate to juvenile sex offenders. In
some states, juveniles were incorporated into overbroad registry laws that
treated them as adults, while other states specifically wrote them out of sex
offense laws entirely. 25 Within the thirty-six states that include juveniles in
their registry laws, nineteen states have no minimum age requirement for
registration, and eight states set age requirements ranging from eleven to
fifteen-years-old.26 The Adam Walsh Act, enacted on July 27, 2006,
requires states to publicly register juvenile sex offenders as young as
fourteen by 2009.27 The goals of this Act are [t]o protect children from
14071(e)(2) (2000)).
19
.
Pam Lynchner Sexual Offender Tracking and Identification Act of 1996, Pub. L.
No. 104-236, 110 Stat. 3093 (codified at 42 U.S.C. 14072 (2000)).
20
.
See generally NATL CTR. FOR MISSING AND EXPLOITED CHILDREN , supra note
Error: Reference source not found.
21
.
Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws: The
Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter
Laws of the 1990s, 90 NW. U. L. REV. 788, 810 (1996) (explaining that these signs typically
have the offenders photograph, address, and explicit details of the offenders history).
22
.
LA. REV. STAT. ANN. 15:542 (2005 & Supp. 2008); NATL CTR. FOR MISSING
AND EXPLOITED CHILDREN, supra note Error: Reference source not found.
23
.
42 U.S.C. 14071(e) (2000).
24
.
Id.
25
.
See Linda A. Szymanski, Additional Points of Interest, 38 JUV. & FAM. L. DIG.
4253, 4275 (June 2006).
26
.
LINDA A. SZYMANSKI, NATL CTR. FOR JUVENILE JUSTICE, SNAPSHOT 11(8),
MEGANS LAW: JUVENILE SEX OFFENDER REGISTRATION LOWER AGE LIMITS (2006).
27
.
Stat. 587, 593 (incorporating the Jacob Wetterling, Megan Nicole Kanka and Pam Lychner
Sex Offender Registration and Notification Program in section 103) (to be codified at 42
U.S.C. 16901). This Sex Offender Registration and Notification Act explains that its
purpose is to protect the public from sex offenders and offenders against children, in
response to the vicious attacks by violent predators against . . . seventeen named victims.
Id. at 101-102, 120 Stat. at 590. None of the names of victims listed in this Act were
attacked by juveniles, yet this act widens its scope and includes younger juveniles than
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sexual exploitation and violent crime, to prevent child abuse and child
pornography, to promote Internet safety, and to honor the memory of Adam
Walsh and other child crime victims. 28 Since the Adam Walsh Act
incorporates juveniles into the definition of those who must register as sex
offenders, the Act essentially hurts the same children it aims to protect.
B. The Rhetoric Driving Sex Offender Laws
The language in the Adam Walsh Act emphasizes the protection of
children, however the Act also demands that children be punished and tried
as adults.29 Should a child who commits a single sexual act against another
child be treated the same as a forty-year-old man who sexually assaults a
child? This is the first question every legislator should ask before signing
legislation that affects juvenile sex offenders in the same manner as it
affects their adult counterparts. Sadly, the rhetoric driving the sex offender
registry laws is quite different.30 Neither rhetoric from legislators, nor the
title of the Act, focuses on juveniles. 31 These children are often swept up in
overly-broad laws.32 Before the Act was passed, states had the authority to
exclude juveniles from registry laws.33 However, with the Adam Walsh
Act, states are now required to adjust their sex offender laws to include
juveniles.34
There were multiple rhetorical devices used when implementing the
Adam Walsh Act. The Act is named after Adam Walsh, who was abducted
from a mall when he was six. 35 Adams parents, John and Rev Walsh,
dedicated themselves to protecting children from child predators,
previous sex offender acts. See generally id.
28
.
Id.
29
.
Pub. L. No. 109-248, 120 Stat. 587.
30
.
FRANKLIN E. ZIMRING, JOHN D. AND CATHERINE T. MACARTHER FOUND.,
RESEARCH NETWORK ON ADOLESCENT DEV. AND JUVENILE JUSTICE, AN AMERICAN
TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEXUAL OFFENDING, EXECUTIVE
SUMMARY 2, available at http://www.adjj.org/downloads/4424American%20Travesty.pdf
[hereinafter ZIMRING EXECUTIVE SUMMARY] (The NAPNs report draws a picture of the
adolescent sex offender that often seems similar to the image of the adult offender . . . :
deviant, recidivist, and a continuing danger to the community.).
31
.
See, e.g., Pub. L. No. 109-248, 120 Stat. 587, 2(a), 120 Stat. at 589 (explaining
that this act is named after Adam Walsh, who was abducted by an adult when he was six
years oldnot by someone aged fourteen to eighteen).
32
.
See ZIMRING EXECUTIVE SUMMARY, supra note Error: Reference source not
found, at 1-2.
33
.
See FRANKLIN E. ZIMRING, AN AMERICAN TRAVESTY: LEGAL RESPONSES TO
ADOLESCENT SEXUAL OFFENDING 147 (Univ. of Chicago Press 2004) [hereinafter ZIMRING]
(The federal laws that set standards for state registration and notification neither require not
prohibit the application of those statutes to juveniles.) (citation omitted).
34
.
Pub. L. No. 109-248, 120 Stat. 587.
35
.
Id.
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preventing attacks on our children, and bringing child predators to
justice.36 On its face, these are positive goals; however, a less appealing
aspect of the Act is that it seeks to punish predators to the fullest degree
regardless of whether the predator is an adult or a child. 37
Franklin Zimring explains in An American Travesty: Legal Responses to
Adolescent Sexual Offending, that known facts about adolescent behavior
contradicts the assumption that adolescent sexual conduct has the same
clinical and predictive significance as the same conduct committed by
adults.38 The public views sex offenders with great outrage and fear 39 and
they are often regarded as the worst criminals. They are often characterized
as having (1) pathological sexual orientation, (2) sexual specialization, (3)
fixed sexual proclivities, and (4) a high level of future sexual
dangerousness.40 These characteristics are now unfairly attributed to
juveniles41 and create the inaccurate and highly controversial imagery that
drives proposed legislation, such as the Adam Walsh Act, into law. 42 Over
the past twenty years, juvenile sex offense arrests have not increased;
however, sex offender treatment programs for juveniles have increased
from twenty to several hundred.43 There is more focus on juvenile sex
offenders even though the offender rate has actually decreased twenty-two
percent since 1980.44 Before the Adam Walsh Act can be analyzed, it is
important to understand the phrase juvenile sex offender. The National
Adolescent Perpetrator Network creates an image of the juvenile sex
offender that is quite similar to an adult offender: deviant, recidivist, and a
continuing danger to the community. 45 This image is inaccurate.
Adolescents are not younger versions of adults; rather [t]he failure to
address the developmental aspects of juvenile offending, or the relationship
or lack of relationship between sexual deviance and social offending in
youth, or the contrast or similarities between juvenile and adult sex
offending leave this . . . network . . . without a clear rationale. 46
Empirical evidence shows that types of juvenile sex offenders vary. 47 In
fact, there are three types of juvenile sex offenders: (1) status offenders; (2)
36
Id. 2(b), 120 Stat. at 589.

See generally Pub. L. No. 109-248, 120 Stat. 587.
38
ZIMRING, supra note Error: Reference source not found, at 14.
39
Id. at 26.
40
Id. at 27.
41
Id. at 64.
42
Id.
43
Id. at 73 (citation omitted).
44
HOWARD N. SNYDER, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY
PREVENTION, JUVENILE ARRESTS 2004, at 6 (2006), available at http://www.ncjrs.gov/
pdffiles1/ojjdp/214563.pdf.
45
.
ZIMRING, supra note 33, at 82-84.
46
.
Id. at 86.
47
.
Id. at 67.
37
.
.
.
.
.
.
.
.
.
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first time offenders involved in abusive conduct; and (3) repeat offenders. 48
Status offenders are those who have consensual sex with a partner that is
close to the same age as the offender, yet under the age of consent. 49
Although under the Act status offenders are not required to register, the Act
does allow for states to criminalize status offenders, which would then
require them to register.50 Millions of teenagers violate this law each year
and most of these violations go unreported except in institutional settings. 51
The second type of offender is a first-time offender who is also involved
in abusive conduct.52 These offenders are normally much older than their
victim and have used force. 53 The recidivism rate amongst these offenders
is quite low, yet admittedly unpredictable. 54 The third and final category is
repeat offenders.55 While only four to eight percent of juvenile sex
offenders fall into this category, it should be noted that even these repeat
offenders may outgrow this problem before adulthood. 56
The juveniles in these three categories are significantly different than
adult offenders. Unlike adult offenders, a prediction of dangerousness
among any group of juvenile sex offenders is problematic. 57 To
understand how the Adam Walsh Act treats adults and juveniles similarly,
and how it negatively affects juveniles, it is important to be acquainted with
the Acts guidelines.
III. THE FEDERAL ADAM WALSH CHILD PROTECTION AND SAFETY ACT
For a decade, legal professionals and juvenile advocates were concerned
that enacting laws aimed at adult sex offenders, like Megans Law, would
result in legislatures deliberately or thoughtlessly using language broad
enough to encompass juvenile sex offenders. 58 The debate is now over. The
Adam Walsh Act conclusively incorporates juveniles as young as fourteen
into sex offender laws for adults. Similar to the Jacob Wetterling Act, the
Adam Walsh Act requires each state to update their laws to fit within these
new provisions by 2009, or lose ten percent of the states share each year in
48
.
Id. at 67-68.
.
Id. at 67.
50
.
Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248,
111-113, 120 Stat. 587, 591-93.
51
.
ZIMRING EXECUTIVE SUMMARY, supra note 30, at 2. An institutional official, such
as the head of an orphanage, is more likely than a parent to call the police when a teen
commits sexual acts. Id.
52
.
ZIMRING, supra note 33, at 67.
53
.
Id.
54
.
Id.
55
.
Id.
56
.
Id.
57
.
Id. at 68.
58
.
ZIMRING EXECUTIVE SUMMARY, supra note 30, at 1.
49
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the funds provided by the Omnibus Crime Control and Safe Streets Act of
1968.59 In 2004, because of the Omnibus Act, $1.1 billion was allocated for
the crime control section of the Edward Byrne Memorial Justice Assistance
Grant Program.60 This makes noncompliance with the Adam Walsh Act an
unappealing option.61 The guidelines provided in the Adam Walsh Act are
the minimum requirements needed to receive the allotted ten percent grant
money. 62 States may set a lower age limit on juvenile sex offenders, may
implement stricter public notification policies, and may even include more
crimes that require registration, as long as the state is not under-inclusive
and not in violation of the Act. To understand the ramifications of the Act,
one must first consider the core components of the registry and notification
policies.
A. Sex Offender Registration and Notification
1. Definitions
Section 111 of the Adam Walsh Act specifically sets out expanded
definitions that include registration and notification. 63 In accordance with
this section, a sex offender is an individual who was convicted of a sex
offense.64 A sex offense is a criminal offense that has an element
involving a sexual act or sexual contact with another. 65 There are three
tiers of sex offenders.66 A tier three sex offender is punishable by more than
one year in prison.67 The individual must have attempted, conspired, or
59
.
125(a), 120 Stat. 587, 598; see Omnibus Crime Control and Safe Streets Act of 1968, 42
U.S.C. 3750-3766(b) (2000).
60
.
U.S. DEPT OF JUSTICE, TITLE II: IMPROVING THE DEPARTMENT OF JUSTICE
GRANT PROGRAM, sec. 508, http://www.ojp.usdoj.gov/BJA/pdf/jag.pdf.
The Edward Byrne Memorial State and Local Law Enforcement Assistance Grant
Program (Byrne Formula Grant Program) is a partnership among federal, state,
and local governments to create safer communities. Bureau of Justice Assistance
is authorized to award grants to states for use by states and units of local
government to improve the functioning of the criminal justice systemwith
emphasis on violent crime and serious offenders.
Bureau of Justice Assistance, Edward Byrne Memorial State and Local Law Enforcement
Assistance Grant Program, http://www.ojp.usdoj.gov/BJA/grant/byrne.html (last visited
Feb. 27, 2008).
61
.
See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248,
125, 120 Stat. 587, 598.
62
.
Id.
63
.
Id. 111, 120 Stat. at 591.
64
.
Id. 111(1)(5)(A)(i), 120 Stat. at 591-92.
65
.
Id. 111 (2)-(4), 120 Stat. at 591-92.
66
.
Id. 111(4), 120 Stat. at 591-92.
67
.
Id. 111(4)(A), 120 Stat. at 591.
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actually committed a sexual abuse or aggravated sexual abuse, an abusive
sexual contact against a minor who has not attained the age of thirteen
years, or a more severe offense. 68 A tier three offense may also be
committed if the offense involves kidnapping of a minor that is not ones
own child or if the offense occurs after the offender is a tier two sex
offender.69
Second tier sex offenders are those who do not fit into tier three, but may
still be punishable by more than one year in prison. 70 Tier two includes
offenses against a minor, or conspiracy to commit such offenses against a
minor, such as: (1) sex trafficking; (2) coercion and enticement; (3)
transportation with the intent to engage in criminal sexual activity; and (4)
abusive sexual conduct.71 A tier two offense may also involve: (1) use of a
minor in a sexual performance; (2) solicitation of a minor to practice
prostitution; or (3) production or distribution of child pornography. 72 An
offense can also qualify as a tier two if any of these offenses occur after the
offender is already a tier one offender. 73 The first tier includes any sex
offender who does not squarely fit into categories two or three. 74 Tier one
offenders are considered at low risk to reoffend and are not seen as
dangerous.75
The expansion of the sex offense definition includes any [1] criminal
offense that has an element involving a sexual act or sexual contact with
another; [and 2] a criminal offense that is a specified offense against a
minor . . . .76 An offense that is consensual is not a sex offense unless the
adult victim is under the custodial care of the offender, the victim is not an
adult and the offender is more than four years older than the victim, or the
victim is under the age of thirteen.77
A juvenile is considered to be convicted of a sex offense when the
juvenile is 14 years of age or older at the time of the offense and the
offense adjudicated was comparable to or more severe than aggravated
sexual abuse . . . or was an attempt or conspiracy to commit such an
offense.78
68
.
Id. 111 (4)(B)-(C), 120 Stat. at 591-92.
.
Id. 111(4), 120 Stat. at 591-92.
70
.
Id. 111(3)(A), 120 Stat. at 591.
71
.
Id. 111 (3)(B), 120 Stat. at 591.
72
.
Id.
73
.
Id. 111 (3)(A)-(C), 120 Stat. at 591.
74
.
Id. 111(2), 120 Stat. at 591.
75
.
Rebecca M. Young, Summary of Sex Offender Registration and Community
Notification in Massachusetts, Crim. Just. Poly Coalition, May 2007, http://www.cjpc.org/
May07 Newsletter. htm#article1.
76
.
111(5)(A), 120 Stat. at 592.
77
.
Id. 111(5)(C), 120 Stat. at 592.
78
.
Id. 111(8), 120 Stat. at 593.
69
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A convicted sex offender shall register before completing a prison

sentence, or within three days of being sentenced if no imprisonment is
required, in the jurisdiction in which he is convicted and shall keep the
registration current, in each jurisdiction where the offender resides, where
the offender is an employee, and where the offender is a student. 79 An
offender has three days to notify each jurisdiction if their name, residence,
employment, or student status changes. 80 Each jurisdiction must then
immediately notify all other jurisdictions in which the offender is
required to register changes. 81 If the offender fails to comply with these
guidelines, each jurisdiction is required under the Adam Walsh Act to have
a law that penalizes him with imprisonment of at least one year. 82 The Act
also imposes up to twenty years in prison for not registering in a timely
fashion.83
During registration, the sex offender is required to provide the following
information: (1) all aliases; (2) Social Security Number; (3) address of each
residence of the offender; (4) name and address of employer; (5) name and
address of any place the sex offender is a student or will be a student; and
(6) license plate number and description of the vehicle the sex offender
operates.84 The jurisdiction is then required to make this information
readily available to the public in an online sex offender registry. 85 This
registry must include: (1) a physical description of the sex offender; (2) the
criminal offense; (3) criminal history of the sex offender, including all
dates of arrest and convictions, and the status of parole, probation or
supervised release; (4) a current photograph of the sex offender; (5)
fingerprints and palm prints; (6) DNA sample; and (7) a copy of the
offenders drivers license.86
The Adam Walsh Act also extends the number of years a sex offender
must register.87 A tier one sex offender must keep registration current for
79
.
Id. 113(a)-(b), 120 Stat. at 593-94.
.
Id. 113(c), 120 Stat. at 594.
81
.
Id.
82
.
Id. 113(e), 120 Stat. at 594.
83
.
Stat. 597; Pamela A. Maclean, Lack of Guidance on U.S. Sex Offender Rules, NATL L.J.,
Sept. 25, 2006, at 4. The registration requirements by this Act could violate the Constitution,
as William H. Buckman said: Some states give offenders 10 days to register, rather than
five under new federal terms. The Supreme Court has ruled that the federal government
cannot trump state responsibility in some areas. This could very well be one such area. Id.
84
.
114(a), 120 Stat. at 594.
85
.
Id. 114(b), 120 Stat. at 595.
86
.
Id.
87
.
See id. 115, 120 Stat. at 595.
80
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fifteen years, while a tier two offender must register for twenty-five years. 88
The registration period for a tier three offender is the duration of his life. 89
The only opportunities a sex offender has to reduce the number of years of
registration is by: (1) not being convicted of any offense for which
imprisonment for more than one year may be imposed; (2) not being
convicted of a sex offense; (3) completing supervised release, parole or
probation; and (4) by completing the appropriate sex offender treatment
program required by the jurisdiction or the states Attorney General. 90 If a
tier one offender complies, his registration period can be reduced by five
years.91 A tier three offender can reduce a lifetime of registration to twentyfive years if the offender keeps a clean record for all twenty-five years. 92
Moreover, the Adam Walsh Act requires offenders to periodically
appear in person for updated photographs and verification of information. 93
The Act sets a minimum time period for which a jurisdiction must require
offenders to personally verify information. 94 For example, a tier one
offender is required to be registered not less frequently than . . . each
year,95 while tier two and tier three offenders are required to register at
least every six months and three months, respectively. 96 Before being
released, sex offenders must be notified of the requirement to register and
must subsequently sign a form saying that they understand that duty. 97
The information given by the sex offender must be placed on the
Internet by the jurisdiction in a manner that is readily accessible to all
jurisdictions and to the public . . . . 98 The site must function in such a way
that an individual can type in a zip code and receive information on all the
offenders within that area.99 However, there are mandatory and optional
information exemptions that cannot be placed on the Internet for public
view.100 The mandatory exemptions include: (1) the identity of the sex
offense victim; (2) the Social Security Number of the sex offender; (3) any
arrest of the sex offender that did not result in conviction; and (4) any other
information the Attorney General exempts. 101 The optional information that
88
89
90
91
92
93
94
95
96
97
98
99
100
101
.
.
.
.
.
.
.
.
.
.
.
.
.
.
Id. 115(a), 120 Stat. at 595.

Id.
Id. 115(b), 120 Stat. at 595.
Id.
Id. 115(b)(2), 120 Stat. at 595.
Id. 116, 120 Stat. at 595.
Id.
Id.
Id.
Id. 117, 120 Stat. at 595-96.
Id. 118(a), 120 Stat. at 596.
Id.
Id. 118(b) - (c), 120 Stat. at 596.
Id. 118(b), 120 Stat. at 596.
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a jurisdiction may decide to exempt from the registry includes: (1)
information about a tier one sex offender if the offense was not against a
minor; (2) the name of an employer of the sex offender; (3) the name of an
educational institution where the sex offender is a student; and (4) other
information the Attorney General sees fit to exempt. 102
3. Notification
The Adam Walsh Act incorporates the Megan Nicole Kanka and
Alexandra Nicole Zapp Community Notification Program. 103 This program
requires a jurisdiction to provide updated registry information to the
Attorney General, who updates the National Sex Offender Registry. 104
Registry information must be given to appropriate law enforcement, school,
and public housing agencies in areas where either the individual resides, is
an employee, or is a student. 105 Every jurisdiction must provide any agency
responsible for conducting employment-related background checks, along
with social service entities responsible for protecting minors in the child
welfare system, with current information on sex offenders. 106 Lastly,
information must be given to volunteer organizations in which contact with
minors or other vulnerable individuals might occur, and to any
organization, company or individual who requests such notification
pursuant to procedures established by the jurisdiction. 107 In accordance
with this section, organizations or individuals can request information
every five days.108
Due to the density of information, jurisdictions must continually update
their own databases in addition to notifying other jurisdictions, companies,
schools and organizations.109 The fact that an individual or organization can
request an update of information every five days creates a heavy and timeconsuming burden on the jurisdiction. 110 It is the responsibility of the
Attorney General to complete the first version of software to support online
registries that comply with the Adam Walsh Act. 111 The Attorney General
was given until 2008 to complete this software, and jurisdictions have one
year to implement online registries in their areas. 112
102
103
104
105
106
107
108
109
110
111
112
.
.
.
.
.
.
.
.
.
.
.
Id. 118(c), 120 Stat. at 596.

Id. 121, 120 Stat. at 597.
Id. 121(b), 120 Stat. at 597.
Id.
Id.
Id.
Id. 121(c), 120 Stat. at 597.
Id. 121, 120 Stat. at 597.
See id.
Id. 123, 120 Stat. at 598.
Id. 123-24, 120 Stat. at 598.
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IV. WHAT THE PUBLIC DOES NOT HEAR: THE NEGATIVE IMPACT OF
PREVIOUS STATUTES ON CHILDREN CONVICTED OF SEX OFFENSES
The Adam Walsh Act specifically includes children fourteen and older
in sex offender laws.113 To understand how detrimental this Act will be on
children, it is helpful to see how previous, less inclusive laws have harmed
children already.
A. Current State Laws
When Megans Law was enacted in the mid-1990s, many states went
above and beyond the basic requirements defined in the Act. 114 The Act
was ambiguous as to whether juveniles were included under the provisions,
and states varied in their inclusion in state-specific statutes. 115 New Jersey
was one of many states that not only included children fourteen and above,
but also included all persons convicted of sex offenses in juvenile
court
. . . ; 116 a standard far more inclusive than that which is required
under the Adam Walsh Act.117 New Jersey further provided that juvenile
conduct should be classified by the same criteria and scores as adult
conduct.118 This means that even if these children are tried in juvenile
court, they will be judged as adults.
The New Jersey law affected a twelve-year-old boy, J.G., who was ten
when he allegedly committed two counts of first-degree sexual assault. 119
The charges were then amended, as the prosecution explained, to allege
conduct that, if committed by an adult, would constitute second-degree
sexual assault . . . . 120 J.G. pled guilty to second-degree sexual assault,
defined as an act of sexual penetration with another person . . . [where]
[t]he actor uses physical force or coercion, but the victim does not sustain
severe personal injury.121 He was released on probation and was required
to go through a program known as Family Growth. 122 It was reported to
the court that J.G. was doing very well. 123 However, after sixteen months
on probation, he was served with a notice that, pursuant to Megans Law,
he had been classified in tier two as a moderate risk offender. 124 This
113
.
Id. 111, 120 Stat. at 591.
.
See generally ZIMRING, supra note Error: Reference source not found, at 5-6.
115
.
See generally Megans Law, 42 U.S.C. 13701 (1996).
116
.
117
.
See generally Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, 120 Stat. 587.
118
.
119
.
In re Registrant J.G., 777 A.2d 891, 894 (N.J. 2001).
120
.
Id.
121
.
Id.
122
.
Id.
123
.
Id. at 896.
124
.
Id.
114
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classification was based on his guilty plea of penetration. 125 It was likely
that J.G. did not fully comprehend what penetration meant because his
primary language was Spanish and he was only eleven at the time. 126 J.G.s
counselor stated:
In conclusion, J.G. is an adolescent who pled guilty to a sexual assault
approximately four years ago when he was eleven years of age. At that
time, he clearly did not have an understanding of what a sexual assault
constituted, what was involved in a sexual act, the impact that this type
of behavior could have on children, nor was he able to relate, in words,
what had occurred between he and his victims. It has also been
determined, with a recognized degree of certainty within my field of
counseling, that he did not commit an act of penetration as he admitted
to in court and to which he was subsequently adjudicated.127
Under Megans Law, the District Attorney in this case sought to notify
all public schools and day care centers about the potential danger of J.G. 128
The defense counsel objected by explaining that although J.G. had pled
guilty, he never penetrated his cousin. 129 Judge Stein recognized that the
legislature did not clearly define how Megans Law applied to juveniles
and posited that the responsibility belonged to the court in the interim:
[T]o reconcile the expansive provisions of Megans Law, enacted in
1994, to protect the public from sex offenders who present a significant
risk of reoffending, with the provisions of the Juvenile Code, enacted by
the Legislature in 1982, that encompass numerous protections for
juveniles, especially those under age fourteen, designed to protect their
confidentiality, secure their rehabilitation, and insulate them from the
criminal justice system.130
The purpose of creating the juvenile justice system was to recognize that
children are still growing and their tendencies and personalities are still
changing.131 Megans Law, and other like statutes, assume that an
adolescents sexual conduct is fixed and is an indication of similar future
acts.132 However, this is not always the case. Judge Stein explained in the
J.G case:
Were [the court] writing on a clean slate, our inclination would be to
exclude juveniles under age fourteen from the sweeping provisions of
Megans Law. In many instances, sexually improper behavior by such
125
126
127
128
129
130
131
132
.
.
.
.
.
.
.
.
See id. at 896-97.

See id. at 898.
Id. at 897.
Id. at 896.
See id.
Id. at 913.
Id.
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young children is more a reflection of inadequate adult supervision,

immaturity, inappropriate media exposure, or a prior history of
emotional abuse than it is of irremediable sexually predatory
inclinations. Repeat offenders would present more serious concerns, but
the provisions of the Juvenile Code authorizing notification to the
county prosecutor, local police, and school officials are designed for
young children who may pose a risk to others.133
The following question remains: how can the system determine who
may or may not pose a risk to others?
Most statutes are based on the assumption that sex offenders are at a
high risk of reoffending.134 In 1998, Idaho passed the Sexual Offender
Registration, Notification, and Community Right-to-Know Act which
focused on adult sex offenders. 135 Zimring argues that this Act was
premised on the assumption that adult sexual offenders were likely to reoffend and that providing information to parents would allow them to
protect their children.136 Along with this statute, Idaho passed an equivalent
statute for juveniles.137 At the beginning of both the adult Act and the
juvenile Act, the legislation explained in the findings sections why the
legislators enacted these Acts.138 The findings sections explain that sex
offenders have a high risk of re-offending and that the Acts allows law
enforcement to apprehend offenders quickly and allows the public to
protect themselves through access to information on the offenders. 139 The
adult and juvenile sex offender acts are identical, with the exception of only
seven words. In the juvenile act, the word juvenile appears four times in
front of the term sex-offender.140 The other three words form the phrase
or adjudicated delinquent and are placed in front of the word
convicted.141 These statutes demonstrate the tendency to treat adult and
juvenile sex offenders equally without considering whether age,
experience, or biology of children and adolescents makes their sexual
behavior significantly different from that of adults. 142 The reality is that
research shows juveniles are very different from adults when it comes to
133
.
In re Registrant J.G., 777 A.2d at 913-14.
.
ZIMRING, supra note 33, at 11 (stressing the word assumption instead of fact
because the research does not prove this to be true).
135
.
IDAHO CODE ANN. 18-8302 (2007).
136
.
137
.
See Juvenile Sex Offender Registration, Notification, and Community Right-toKnow Act, IDAHO CODE ANN. 18-8402 (2007).
138
.
Id. 18-8402.
139
.
Id. 18-8302, 18-8402.
140
.
ZIMRING, supra note 33, at 11 (comparing the findings sections of Idaho Code
18-8302 and 18-8402).
141
.
Id.
142
.
Id.
134
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motive, danger and recidivism rates.143
The problems with the Idaho statute continue beyond the findings
sections. Both the adult and juvenile statutes list the exact same offenses
that require registration.144 An act that can be considered a crime when
perpetrated by an adult should not always be considered a crime when
committed by a juvenile. The problem with punishing juveniles and adults
for the same acts is the inherent unfairness to juveniles. For example, the
Idaho Code punishes both adults and children for Lewd Conduct with a
Minor Child under Sixteen.145 This section states that any personadult
or minorwho commits any lewd or lascivious 146 acts on or with a
minor under the age of sixteen with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of such person . . . should
be found guilty of a felony and imprisoned.147
This crime, even in the juvenile statute, does not define any limitations.
For example, under this law, two fourteen-year-olds who consensually
engage in a relationship, whether sexual or just heavy petting, are both
guilty under Idaho law of a felony, may face imprisonment, and are
required to register as sex offenders until at least age twenty-one. 148 This
statute could also be interpreted to mean that any person under the age of
sixteen who masturbates is committing illegal or lewd acts upon a
minor.149 There is no provision that states the victim and the offender must
be two different people.150
Statutes, as demonstrated by the Idaho law, are sometimes overly broad
and carry negative implications for children. This raises questions as to
whether statutes that are overly broad are nonetheless beneficial to the
public. Hypothetically, if every state passed a statute such as this one, and
the state criminally charged all teenagers, who before the age of sixteen
touched another individual with the intent of arousing . . . such person, 151
the registry system would be flooded with people who were not dangerous
to society. Maintaining a registry system that fails to differentiate between
143
.
Id.
.
Id.
145
.
IDAHO CODE ANN. 18-1508 (2007).
146
.
Id. Lewd and lascivious acts as defined by this Code include but are not limited
to genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact,
manual-anal contact, or manual-genital contact, whether between persons of the same or
opposite sex . . . . Id.
147
.
Id. (stating that the term of imprisonment shall not be for more than life).
148
.
149
.
Id.
150
.
Id. There is no express requirement in 18-1508 that victim and offender must
be different persons, although I would hope an activist judge might impose an interpersonal
requirement on the broad language of the statute. Id.; see IDAHO CODE ANN. 18-1508
(2007).
151
.
IDAHO CODE ANN. 18-1508 (2007).
144
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an innocent person and one who is actually dangerous directly contradicts
the underlying purpose of the public notification and registry system.
Nonetheless, Idaho law is seen as having a better approach to juvenile
sexual conduct than other states because the law permits most juvenile
offenders to remove their names from the registry system by age twentyone.152 However, Idaho may no longer be able to remove juveniles from the
registry system by age twenty-one since the guidelines in the Adam Walsh
Act require that all sex offenders above the age of fourteen stay on the
registry for a minimum of ten years. 153
B. Changes in Law
Many states in the past year have introduced new legislation changing
their juvenile sex offender laws.154 In February 2006, New York introduced
an assembly bill that would make juvenile sex offenders who are age
thirteen or older subject to the state sex offender registry. 155 Mississippi
introduced a bill in the Senate, which would require first-time juvenile sex
offenders to register with the Department of Public Safety Sex Offender
Register.156 The bill would make the records of any juvenile convicted for a
first-time sex offense public. 157 Previously in Mississippi, registration and
public records only applied to repeat juvenile offenders. 158 Similarly, a
house bill introduced in Iowa would require juvenile records to be made
public when the juvenile registers as a sex offender. 159 Additionally, in
2005, Virginia approved a bill that would allow the court, in its discretion
and upon the motion of the prosecutor, to require a juvenile over the age of
thirteen to register.160
The real question here is whether all of the old laws prevented
recidivism in such a way that suggests to the legislatures that new stricter
laws dealing with sex offenders, the sex offender registry, and sex offender
notification, would be beneficial.
V. DETERMINING WHICH JUVENILES RE-OFFEND
The period between the enactment of Megans Law and the enactment of
the Adam Walsh Act was an ideal time for the legislators to take note of
152
.
.
115(b)(2), 120 Stat. at 595.
154
.
See generally Linda A. Szymanski, Additional Points of Interest, 38 JUV. & FAM.
L. DIG. 6 (June 2006).
155
.
Id. (citing N.Y. Assem. B. 9952, 228th Leg. (introduced N.Y. 2005)).
156
.
Id. (citing Miss. S.B. 2373, 2006 Leg. (Miss. 2006)).
157
.
158
.
159
.
Id. (citing Iowa H. File No. 2114, 81st Gen. Assem., 1st Sess. (Iowa 2005)).
160
.
Id. (citing Va. H.B. 2318, 2006 Leg. (Va. 2005)).
153
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whether these laws actually made a difference on recidivism rates. During
this time, age requirements for sex offender registration and notification
varied among the states.161 Studies could, and should, have been conducted
examining whether the states with stricter laws had a lower number of sex
offenders and a lower percentage of recidivism. 162 No such studies were
conducted.163 Psychiatrists, legislators, and the public still do not know the
characteristics of offenders or offenses that are associated with those who
re-offend.164 The effect of treatment programs on recidivism rates is also
unknown.165 A progressive breakthrough in understanding juvenile sex
offenders would be to collect data documenting re-arrest and reconviction
rates.166 It is quite shocking that a system, which over the past twenty years
has continually toughened the juvenile sex offender system, has never
taken the time or the money to do simple research to determine if juvenile
sex offenders are dangerous.167 Instead, legislators have relied on adult
models and probabilities, and like Idaho, have transferred ideas and laws to
juveniles.168 Half of adult sex offenders report that their criminal sexual
behavior started in adolescence; however, this is not proof that adult
offenders who were classified as sex offenders in juvenile courts would reoffend.169
One of the reasons there is a profound difference between adult and
juvenile sex offenders is their opportunity to sexually express
themselves.170 As Zimring explains:
When fifteen-year-olds impose themselves
children, they usually are not reflecting a
strongly prefers prepubescent targets, so a
opportunities as the adolescent matures will
express sexual needs on forbidden targets
prohibited by the criminal law.171
sexually on younger
sexual orientation that
broader set of sexual
reduce the pressure to
or in ways otherwise
When a person is fifteen it is likely his sexual acts will be condemned.

States differ in their consensual sex laws, with some treating this behavior
161
.
See generally Szymanski, supra note Error: Reference source not found.
.
163
.
Id.
164
.
Id.
165
.
Id.
166
.
Id.
167
.
Id. at 119 (explaining that is commonly known that most juvenile sex offenders
neither re-offend sexually while in the juvenile system nor become chronic sex offenders as
adults).
168
.
Id.
169
.
Id. at 121.
170
.
Id. at 120.
171
.
Id.
162
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as criminal and others as morally wrong. 172
The purpose of the Adam Walsh Act is to protect children by informing
their parents of a sexual threat. 173 This concept seems heroic, especially
when discussed in the context of adult offenders who have a high
recidivism rate.174 However, if the purpose of the Act is to protect children,
but convicted juvenile sex offenders are not prone to re-offend, is there a
reason to warn the public?175
The entire notion behind the Adam Walsh Act, like Megans Law, is that
it is possible for potential victims, their families, and community
institutions to protect themselves against known sexual threats by being
informed through public notification and online registry systems. 176 This is
because previous[ly] convicted sex offenders are by no means the largest
threat to potential victims of forcible rape, child molestation, and forcible
fondling.177 Notably, a great number of sex offenses involve social
acquaintances and family members. 178 Those who register, or will register
under the Adam Walsh Act, are only a very small portion of the sexoffender population.179 Therefore, the registry system is really just a false
security that harms juvenile offenders more than it helps the public. 180
VI. WHY JUVENILES SHOULD REMAIN IN JUVENILE COURTS
A. The Reason for Juvenile Courts
In the nineteenth century, children under the ages of five or six were
treated as property, while those older than six were treated as little
adults.181 The development of industry and urbanization, along with the
172
173
174
175
.
.
.
.
See id.
Id. at 145.
ZIMRING EXECUTIVE SUMMARY, supra note 30, at 1.
Zimring points out that:
[I]f there is no strong tendency of offenders to repeat the same patterns of sex
crime, and if other members of the community might be tempted to commit the
sexual behavior that is the core of the current offense, then the list of prior sex
offenders will prove less efficient in solving new offenses.
176
.
Id.
177
.
Id. at 146.
178
.
Id.
179
.
Id.
180
.
See HUMAN RIGHTS WATCH, NO EASY ANSWERS, SEX OFFENDER LAWS IN THE
US 45 (2007), available at http://www.hrw.org/reports/2007/us0907/us0907webwcover.pdf
(A 1999 study about Massachusetts sex offender registry showed that of the 136 new sex
crimes in a particular jurisdiction, only six were committed by individuals listed on a police
registry.) (citation omitted).
181
.
Brink, supra note Error: Reference source not found, at 1558-59.
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ideas of education and socialization of children, led to reformatories that
dealt with disciplining children.182 In the late nineteenth century, several
jurisdictions in different states implemented separate procedures for
criminal trials of juveniles. 183 The first juvenile court was established in
1899, and by the early twentieth century, nearly every state had established
a separate juvenile justice system. 184
Based on the notion that children were not as mature as adults, the
juvenile courts developed a paternalistic approach toward juvenile
offenders, thereby establishing the concept of separate correctional
facilities that focused on educational and vocational training. 185 Criminal
records were not made public in order to prevent stigmatization that might
interfere with successful rehabilitation. 186 Until the 1960s, juvenile courts
did not afford offenders the same procedural safeguards as adults during
trial.187
Modern jurisprudence distinguishes juveniles from adults and recognizes
their separate offenses.188 For instance, the Model Penal Code defines
juveniles as those under the age of eighteen, and provides for a case-bycase judicial waiver for children aged sixteen to eighteen that allows
transfers to adult criminal court.189 There is a current trend to try juveniles
as adults because of the perception that there is an increasing number of
violent and serious crimes being committed by juveniles. 190 The reality is
that the number of crimes among juveniles, especially violent crimes, has
decreased or stayed the same over the past twenty-five years. 191 Despite
this fact, states are beginning to take a punitive approach with regard to
juvenile crime.192
There are two types of punishment: corrective and consequential. 193
Historically, juveniles have been punished to rehabilitate and correct their
182
.
Id. at 1559.
.
Id. (Cook County, Illinois established the first juvenile court).
184
.
Id.
185
.
Id.
186
.
Id.
187
.
Id. at 1559. See generally In re Winship, 397 U.S. 358 (1970); In re Gault, 387
U.S. 1 (1967).
188
.
Brink, supra note Error: Reference source not found, at 1560.
189
.
Id.; MODEL PENAL CODE 4.10 cmts. 1 & 3.
190
.
Brink, supra note 5, at 1560.
191
.
Id. at 1561 (The juvenile portion of all arrests for serious violent crime in 1998
was about average for the proceeding twenty-five years, while the percentage of property
crime arrests involving juveniles has actually declined throughout most of this period.
(quoting Patricia Allard & Malcolm Young, Prosecuting Juveniles in Adult Criminal Court
Perspectives for Policymakers & Practitioners, THE SENTENCING PROJECT (2002),
http://www.sentencingproject.org/pdfs/2079.pdf)).
192
.
Id. at 1561.
193
.
Id. at 1565.
183
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behavior, enabling them to re-enter the community to live a normal life. 194
Adults have been punished consequentially, such that they are punished in
order to deter future crime. 195 Trying juveniles as adults results in sentences
based on punitive punishment rather than rehabilitation. Brink explains that
the trend to try . . . younger juveniles as adults based solely on the gravity
of their crimes is mistaken and unjust.196
Scientific research shows that, the period between twelve and eighteen
years of age is a time of very significant physical, cognitive, and emotional
development.197 Brains mature slowly over time and are not fully
developed until late adolescence.198 Some suggest that the late stages of
development run through fifteen years of age, while others believe that
cognitive development occurs gradually. 199 Nonetheless, even if
adolescents can engage in adult-like processes of decision-making, they
[still] may not reach the right results.200 It is important to remember that
minors have peer influences and a different perception of risk than their
adult counterparts due to their younger age and a lack of experience. 201
The law views children differently in certain circumstances. 202 For
example, there is the age of majorityeighteen, 203 and the age someone
can purchase and consume alcoholtwenty-one. 204 Do these arbitrary
distinctions really mean a person is more responsible when consuming
alcohol at age twenty-one? Historically, these are the ages society has
determined that individuals are capable of handling these
responsibilities.205 Likewise, the reason juveniles are tried in juvenile
courts, under juvenile laws, and punished differently than adults, is their
capacity to understand and handle certain situations. 206
The difference between the ages of minority and majority still exist
without a gray area in one aspect of the lawvoting. 207 When the Twentysixth Amendment was proposed, there was a major controversy between
those aged eighteen to twenty-one who could not vote but could be tried in
194
.
Id. at 1559.
.
Id. at 1566.
196
.
Id. at 1557.
197
.
Cunningham, supra note Error: Reference source not found, at 281 (quoting
Brink, supra note 5, at 1571).
198
.
Id.
199
.
Id. at 283.
200
.
Id. at 284.
201
.
Id.
202
.
Id. at 285.
203
.
Id. at 286.
204
.
Id.
205
.
Id. at 285-86.
206
.
Id. at 286.
207
.
Id. at 295.
195
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adult court.208 The Senate Judiciary Committee stated, our 18-year-old
citizens have earned the right to vote because they bear all or most of an
adult citizens responsibilities.209 Currently, minors as young as fourteen
are being tried as adults and carrying the same responsibilities of adults.
These children do not have the capability to fight the political battle, nor an
opportunity to vote; yet they are punished far beyond their capacity of
understanding.
B. Mental Health Considerations
According to the Research Network on Adolescent Development and
Juvenile Justice (Research Network), a large proportion of children ages
fifteen and younger charged with a crime are not competent to stand trial. 210
The legal system holds that mentally ill defendants must be able to
understand charges against them, participate in their defense, and make
basic decisions at trial.211 In the past, almost all defendants found unable to
stand trial were adults with some type of mental illness. 212 With more
juveniles being tried as adults, the question is raised as to whether juveniles
have the mental capacity to effectively participate in their trial. 213 Unlike
adults, a juveniles lack of capacity is not due to mental illness, but by the
sheer nature of being a juvenile. 214 Juveniles are not intellectually and
emotionally mature enough to comprehend the nature and consequences of
their actions.215 Around 200,000 juveniles are criminally charged as adults
every year.216 Accordingly, tens of thousands of adolescents younger than
sixteen are charged with adult crimes, even though a significant portion
cannot fully comprehend the crime with which they are charged. 217
The Research Network found that one-third of children ages eleven
through thirteen and one-fifth of children ages fourteen to fifteen had a
legal comprehension level comparable to mentally ill adults who were
208
.
Id.
.
Id. at 296 (quoting S. COMM. ON THE JUDICIARY, LOWERING THE VOTING AGE TO
18, S. REP. NO. 92-26 (1971)).
210
.
MACARTHUR FOUND. RESEARCH NETWORK ON ADOLESCENT DEV. AND
JUVENILE JUSTICE, MACARTHUR JUVENILE ADJUDICATIVE COMPETENCE STUDY SUMMARY
2 (2003), http://www.adjj.org/downloads/58competence_study_summary.pdf [hereinafter
SUMMARY].
211
.
JUVENILE JUSTICE, MACARTHUR JUVENILE COMPETENCE STUDY (2003), http://www.macadoldev-juvjustice.org/page23.html (last visited Mar. 12, 2008).
212
.
SUMMARY, supra note 210, at 1.
213
.
Id.
214
.
Id. at 2.
215
.
Id.
216
.
Adam Liptak, Researchers Find Many Younger Juveniles Lack Competence to
Stand Trial as Adults, N.Y. TIMES, March 3, 2003, at A18.
217
.
Id.
209
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found unable to stand trial. 218 Laurence Steinberg, a professor and Studies
Director at Temple University, explained that court systems should not
transfer children from juvenile court to criminal court at 12 or 13, as many
states do, because [they] will be jeopardizing children. 219 The results of
the study suggest that children should be kept in juvenile courts, which is in
direct conflict with the Adam Walsh Act, which holds that states must
punish young juveniles as they punish adults.220
There is a significant difference in competency levels between adults
and children who can stand trial. In Roper v. Simmons, Justice OConnor
stated in her dissent, juveniles lack maturity and responsibility and are
more reckless than adults . . . juveniles are more vulnerable to outside
influences because they have less control over their surroundings . . . [and]
a juveniles character is not as fully formed as that of an adult. 221 For these
reasons, society and the courts in America have historically treated
juveniles differently than adults. 222 Under the Constitution, juveniles have
not been afforded the same protections as adults. 223 Cunningham explains,
[c]ontemporary, juvenile justice distinguishes juveniles from adults and
recognizes distinct forms of juvenile offense[s]. 224 The dividing line
between adults and children is the mental capacity in making decisions. 225
The Supreme Court in Roper held that it was unconstitutional to execute
a defendant who committed first-degree murder before the age of
eighteen.226 Why is it unconstitutional to execute a seventeen-year old for
murder, while it is fair to require a fourteen-year-old to register and notify
their community that they committed some type of sex offense? In reaching
its decision, the Court focused on the fact that juveniles are unstable and
emotionally unbalanced.227 It went on to state that from one generation to
the next, the Constitution has come to earn the high respect. . . . The
document sets forth . . . innovative principles original to the American
218
.
JUVENILE JUSTICE, MACARTHUR JUVENILE COMPETENCE STUDY RESULTS,
http://www.adjj.org/content/ related_resources.php?cat_id=2&page_id=2 (last visited Mar.
12, 2008).
219
.
Liptak, supra note 216.
220
.
See generally Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, 120 Stat. 587.
221
.
Roper v. Simmons, 543 U.S. 551, 598 (2005) (OConnor, J., dissenting).
222
.
Richard O. Brooks, The Refurbishing: Reflections Upon Law and Justice
Among the Stages of Life, 54 BUFF. L. REV. 619, 620 (2006) (The designation of
diminished responsibility for juveniles is an example of our legal systems provision of legal
duties and immunities based upon states of life.).
223
.
Brink, supra note Error: Reference source not found, at 1559.
224
.
Id. at 1560.
225
.
Cunningham, supra note Error: Reference source not found, at 323-24.
226
.
Roper, 543 U.S. at 578.
227
.
Id.
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[Vol. 34:459
experience . . . ; specific guarantees for the accused in criminal cases; and
broad provisions to secure individual freedom and preserve human
dignity.228 The decision also explained that the Court must use an
evolving standard of decency to mark progress of maturing society when
determining which punishments are so disproportionate as to be cruel and
unusual, within the meaning of the Eighth Amendment prohibition. 229
Just as the death penalty to a seventeen-year-old is cruel and unusual
punishment, so too is online registration and public notification to those
age fourteen to seventeen.
VII. CONCLUSION
Facially, the Adam Walsh Act appears fair and beneficial for adults and
children. As it states in the name, it was enacted to keep children safe from
adult predators.230 However, hidden within the Act are guidelines that
incorporate and punish the same children that the Act intended to help. The
Act requires children to publicly register and notify their communities of
their sex offender status, opening their once closed records to the public. If
requiring children to register actually prevented recidivism, this Note
would defend the Adam Walsh Act; however, juvenile sex offenders are
not prime candidates for recidivism. 231 The law that attempts to protect the
public and warn of future sex offenders is hurting the futures of children
who committed a crime with which they most likely did not have the
capacity to comprehend.
Irrefutably, the protections given to minors historically have come from
society and the systems it has put into place to protect them. However, the
Adam Walsh Act removes these protections. This Act should be written to
reflect the historical views of protecting and rehabilitating minors instead
of punishing them as adults for sexual crimes, especially when their crimes
are not as threatening as those committed by adults and juveniles are not as
likely to recidivate. The entire purpose of the Adam Walsh Act is to protect
the public, but there are few public safety reasons for imposing registration
and notification requirements on those who pose a minimal risk to the
community. Instead of rehabilitating a juvenile who is unlikely to
recidivate, this Act calls for states to punish them through registry
requirements for at least fifteen years. This hinders the juveniles ability to
move on with his life and become an active, contributing member of
society. The registry system gives a false sense of security as they are not
adequate depictions of the imminent danger communities face when most
sex offenders are unregistered, acquaintances, or family members of the
228
.
Id. (citation omitted).
.
Id. at 551 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)).
230
.
The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248,
120 Stat. 587.
231
.
ZIMRING, supra note 33, at 39-49.
229
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victim. Therefore including children in registry lists hurts these children
more than it protects the public.
Caitlin Young232
232
Many thanks to those individuals who assisted in the editing of this article. Also, a
special thanks to Buta Biberaj for her contagious excitement about the law and to James C.
MacRae, Jr. for the inspiration that made this article possible. Lastly, I would like to thank
my family for their support throughout law school.

Children Sex Offenders: How The Adam Walsh Child Protection and Safety Act Hurts The Same Children It Is Trying To Protect

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YOUNG MACRO

Children Sex Offenders:

Id. 2(b), 120 Stat. at 589.

CRIMINAL AND CIVIL CONFINEMENT

A convicted sex offender shall register before completing a prison

Id. 115(a), 120 Stat. at 595.

Id. 118(c), 120 Stat. at 596.

See id. at 896-97.

CHILDREN SEX OFFENDERS

young children is more a reflection of inadequate adult supervision,

When a person is fifteen it is likely his sexual acts will be condemned.

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