Prosecutions Under the Adam Walsh Act: IsAmerica Keeping Its Promise?

1. IntroductionWhen Congress approved the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act),2 it unified the existing state-ran sex offender registration systems.3 The law is just one of many state and federal statutes targeting sex offenders who have already been convicted and punished of a crime.4 As brutal sex crimes against children have gained increasing national press during the last decade, the legislative response to sex offenders has increased markedly.5 For offenders, seemingly no redemption exists. For years after serving their sentences, some will be constantly tracked by the government, as well as the general public, and forbidden from living, working, or even standing in certain areas.6 The internet has made the effects of these regulations even more pronounced.7 As a result of this recent increase in legislation, some have begun to examine the constitutionality, ethics, and science of America's arguably emotional response to the threat sex offenders pose.8 This Note joins this critical examination by exploring the constitutionality of the federal prosecution of sex offenders who traveled in interstate commerce prior to the enactment of the Adam Walsh Act for failure to register as a sex offender pursuant to the Act. In the rash to protect children, has America forsaken its fundamental commitment to the maxim nullum crimen sine lege ("no crime without law")?9In October 2006, shortly after Congress enacted the Adam Walsh Act, the Department of Justice launched its largest effort to catch fugitive sex offenders - Operation Falcon III.10 Within six days, authorities arrested 1,659 fugitive sex offenders, including 971 wanted for failure to register as sex offenders. " U.S. Attorneys soon prosecuted for failure to register pursuant to the Adam Walsh Act many of these offenders who were convicted of their sex offenses and traveled in interstate commerce prior to the Act's enactment. These prosecutions raise serious constitutional issues.12 Defendants charged pursuant to the Act's registration provisions have alleged violations of the NonDelegation Doctrine, Ex Post Facto Clause, Substantive and Procedural Due Process guarantees of the Fifth Amendment, and Commerce Clause. This Note considers the prosecutions' ex post facto implications. To contextualize the enactment of the Adam Walsh Act, Part II briefly describes contemporary postincarceration restrictions imposed upon convicted sex offenders. Part III then explains the legislative history of the Adam Walsh Act. Part IV of this Note asserts the continuing importance of nullum crimen sine lege and the associated principle of legality and their embodiment in Ex Post Facto Clause jurisprudence. Ultimately, in Part V, this Note concludes that the federal prosecution of sex offenders, who were convicted and had traveled in interstate commerce prior to the enactment of the Adam Walsh Act and the Attorney General's interim rale, violates the Ex Post Facto Clause and, perhaps more importantly, its underlying maxim that remains fundamental to American liberty - nullum crimen sine lege.II. Overview of Post-Incarceration Restrictions of Sex OffendersSex crimes are considered among the most heinous crimes, especially when they involve children.13 In the United States, a majority of victims of sex crimes are under the age of eighteen.14 Besides the obvious physical trauma suffered by these young victims, they suffer long-term psychological injuries.15 In addition, the general public seems to believe that the recidivism rate for sex crimes is higher than other crimes.16 These realities and perceptions, combined with high-profile news coverage of child abductions and assault, have garnered substantial political attention and triggered a wave of legislation.17Sex-offender registries are the most common form of control exerted over sex offenders post-incarceration.18 Legislators first widely proposed the implementation of these registries in response to two high-profile cases of abduction, sexual assault, and murder. …