A Simple Reform Of Adam Walsh Act -- Rebuttable Presumptions
There is a hearing this week before the United States House of Representatives Subcommittee on Crime, Terrorism and Homeland Security. On the agenda, reauthorization of the Adam Walsh Act. The witness list includes spokespersons from the Department of Justice, the United States Marshals, the National Center for Missing and Exploited Children, and a state representative from Kansas. Absent from the witness list is any voice representing those designated a sex offender under our law, and thereby consigned to an increasingly onerous, punitive and dangerous second-class citizenship. I would have expected, at the very least, to see a representative of Citizens for Change, America, or Reform Sex Offender Legislation on the official witness list.
Those affected by sex offender registration are excluded from the list of witnesses. Is it the case that the truth about how this country designates and treats sex offenders is too inconvenient to be told? Don’t lawmakers want the truth? Or is it safer, somehow, to huddle with bureaucrats, lawmen and interest groups whose funding depends on the creation of a new virtual plantation?
Activists on behalf of sex offender legislative reform will flood the conference room, or at least attempt to. I hope they will pass these thoughts along to the representatives convening to consider what the future holds:
It is easy, perhaps too easy, to sit in the calm and safety of these chambers and to pretend that we can make the world a safer place by mere means of legislative fiat. But please understand that the laws you pass here set the terms and condition of lives you never, ever, really see, or even comprehend. It is too easy, sitting here, with television cameras, reporters, and lobbyists reporting your every move and gesture, to genuflect in the direction of phantoms fueled and fed by hysteria. In few areas of our lives are these fears more easily fed than in the legislative consideration of sex offenders.
Say "sex offender" and what immediately springs to mind is crushing loss of innocence at the hands of a dangerous stranger. In the moment that fear takes root, a desire to make the world a safer place blossoms. Shaded by what grows of this desire, you pass laws that cast broader and broader shadows across the lives of ever more Americans. The vast majority of these Americans pose no threat to anyone. They are no more dangerous than your son, your nephew, your brother; even, I submit, than some of you.
Come, let us reason together about the shape of the world we know. Everything is sex, and sexual desire. We are a sexophrenic culture, at once reveling in desire as an advertising tool, and then savagely punishing anyone moves outside the libidinal lines you set here. There is a vacant seat in your chambers that was filled last week. Christopher Lee left these chambers in shame. He left because desire triumphed over his better judgment. But is he a criminal, or did he merely err? Had he sent that photograph of himself to a child would he now be considered a sex offender who must register, and would henceforth be permitted to live only a certain number of feet from any child?
Criminal defense lawyers learn hard and bitter truths. We sit alone with the accused, in the dark of night, and we sometimes hear about life-changing errors; sometimes it is our client who erred; far too often, however, it is the police who have erred. We see men and women not too different from you, and not too different from ourselves, who stand on the threshold of despair. We try to explain to them the law’s commitment to human dignity. We cherish the hope that no man will be reduced in the eyes of the law to the sum of his worst moment. We tell ourselves these comforting deceits, and then we read the laws you pass, and our hearts quake. Surely, this is not justice, we say. We argue with judges, and those judges shrug a shoulder and tell us to take it up with the lawmakers. But, friends, I have never seen you in a courtroom; you have never met the men and women I represent; you have never left the safety of these chambers to count the human costs of the rules you pass, and then congratulate yourselves for passing.
Today you consider reauthorization of the Adam Walsh Act. How ironic that this law is named in honor of a child long since horribly murdered. Must I repeat that there is no evidence his death was caused by a sex offender? His death gnaws at us, and has made a well-known martyr of his father. But tell me, ladies, gentlemen, what has the murder of a small boy to do with a 19-year-old who falls in love with his 15-year-old neighbor? What has it to do with a man who looks, to his everlasting shame, at lewd photographs of a child, or who chats online with a girl, or a person posing as a girl, too young to consent to intimacy? All of these offenders are required to register as sex offenders, and to be held to the scorn of their community. Each time a new and tragic case of child abuse finds its way onto the news, a new set of regulations of ever broader sweep summons more people to register as sex offenders, and imposes new conditions on them. We register them for life. We monitor their movements. We tell them where they can live. Men who have long ago served their time and paid the debt their errors required are now gathered up like so many lepers and compelled to live in virtual colonies of scorn. Just who are we kidding with this hunger to act every time some new and horrible harm befalls a child?
Law enforcement officers know the harm that requiring too many people to register creates. It is impossible to keep track of them all. When a dangerous predator is treated the same way as 20 hapless young men who made simple libidinal errors, odds are the predator will be free to strike again. Why not give to judges the power to decide who is and is not a risk?
It is too much to expect you to abandon the list. Entire industries and interest groups are now supported by it. But is it too much to ask that you let judges do the difficult job of determining who is, and who is not, the sort of risk that requires constant monitoring?
The current law makes mandatory the placement of offenders of all sort on sex offender registries. It denies to the very courts who are best placed to know the risk a young man poses the right and power to make a decision about whether precious and scarce resources need to be spent monitoring him for a lifetime. How many Romeos do we need on the register for the crime of untimely love? How many Jack the Rippers hide among the tens of thousands of otherwise harmless men and women now required to register? We will never know. We will always claim surprise when some new outrage occurs by a registrant. At such moments, the law responds inflexibly, requiring that more people register, that more restrictions be placed on broader and broader classes of people. We enshrine the impossible values of a preventive jurisprudence that acts on suspicion rather than evidence of guilt. Where will this madness end?
As lawmakers you know better than the rest of us can know that the passage of a law is always the work of estimation. You study a problem, consider its sources and how best to meet the needs of a society looking to you for safety and for justice. But you know, you must know, that yours is the hazardous work of approximation. There are exceptions to every rule, but to govern for a nation of millions, you must confine yourself to the general proposition, the rule broadly applied.
Is it too much to ask you to concede that these general rules are capable of misapplication, and that blind reliance on them can result in injustice and very real harm? Why not give to the judges of this nation the ability to decide, based on the facts and evidence before them, whether an offender belongs on the registry? Reform of the Adam Walsh Act and its growing list of requirements is simple, and can be accomplished with tools already at your proposal.
Please consider making the requirements of Act, of whatever kind, rebuttable presumptions rather than ironclad requirements. Give to judges the decision to determine when and whether an offender poses such a risk that valuable resources should be used to keep him chained to a virtual post. Give offenders the right to petition a court to show they are no risk at all. This is simple work, really. Amendments to the current act would simply replace mandates with presumptions. Your role in assuring the safety of us all would be accomplished. Judges would be empowered to do justice. Voices never heard in this chamber could be heard in a courtroom. Even public safety officers would thank you, as you would free them to do something other than chase the vapors of distant hysteria, and let them focus their efforts and energies on those most likely to be predators.
Will this change be a foolproof guarantee that no further harm will befall a child? Of course not. Errors will be made. But let’s replace utopian hopes with a gritty sense of the reality that our current law penalizes, humiliates, and destroys thousands of Americans who have done no more than what some members of this very chamber did as young men and women.