Adam Walsh Child Protection and Safety Act: A Legal Analysis
Released: 2007-04-06T00:00:00

Summary:
The Adam Walsh Child Protection and Safety Act, ( P.L. 109-248 , H.R. 4472 ), emerged from Congress following the passage of separate bills in the House and Senate ( H.R. 3132 and S. 1086 respectively). The act's provisions fall into four categories: a revised sex offender registration system, child and sex related amendments to federal criminal and procedure, child protective grant programs, and other initiatives designed to prevent and punish sex offenders and those who victimize children.
The sex offender registration provisions replace the Jacob Wetterling Act provisions with a statutory scheme under which states are required to modify their registration systems in accordance with federal requirements at the risk of losing 10% of their Byrne program law enforcement assistance funds. The act seeks to close gaps in the prior system, provide more information on a wider range of offenders, and make the information more readily available to the public and law enforcement officials.
In the area of federal criminal law and procedure, the act enlarges the kidnaping statute, increases the number of federal capital offenses, enhances the mandatory minimum terms of imprisonment and other penalties that attend various federal sex offenses, establishes a civil commitment procedure for federal sex offenders, authorizes random searches as a condition for sex offender probation and supervised release, outlaws Internet date drug trafficking, permits the victims of state crimes to participate in related federal habeas corpus proceedings, and eliminates the statute of limitations for certain sex offenses and crimes committed against children.
The act revives the authorization of appropriations under the Police Athletic Youth Enrichment Act among its other grant provisions and requires the establishment of a national child abuse registry among its other child safety initiatives.
This report is available in an abridged version, without footnotes and most citations to authority, as CRS Report RS22646, Adam Walsh Child Protection and Safety Act: A Sketch , by [author name scrubbed].

subsections: section_title: Introduction
paragraphs: The President signed the Adam Walsh Child Protection and Safety Act on July 27, 2006. The act serves four basic purposes. First, it reformulates the federal standards for sex offender registration in state, territorial and tribal sexual offender registries, and does so in a manner designed to make the system more uniform, more inclusive, more informative, and more readily available to the public online. Second, it introduces a fairly extensive and diverse set of amendments to federal criminal law and procedure, featuring, among other things, a federal procedure for the civil commitment of convicted sex offenders upon their release from prison, a random search authority over sex offenders on probation or supervised release, and a number of new mandatory minimum terms of imprisonment for various new and existing federal sex offenses. Third, it creates, amends, or revives several grant programs designed to reinforce private, state, local, tribal and territorial prevention; law enforcement; and treatment efforts in the case of crimes committed against children. Finally, it calls for a variety of administrative or regulatory initiatives in the interest of child safety, such as the creation of the National Child Abuse Registry.
The act arrived on the President's desk as H.R. 4472 having been approved by the House on March 8, 2006 and by the Senate on July 20, 2006. Each Chamber had previously passed many of the same provisions in separate bills of their own. In the case of the House, the predecessor was H.R. 3132 which the House endorsed on September 15, 2005; in the case of the Senate, it was S. 1086 , which the Senate approved on May 4, 2006.
section_title: Sex Offender Registration
paragraphs: One of the center pieces of the Adam Walsh Child Protection and Safety Act is the revision of the nation-wide sex offender registration system. The earlier statute, the Jacob Wetterling Act, encouraged states to establish and maintain a registration system. Each of them has done so. The state systems had many common features, but were hardly uniform. The Walsh Act preserves the basis structure of the earlier law, expands upon it, and makes more specific matters that were previously left to individual state choice. It contemplates a publicly available, contemporaneously accurate, online system. Conscious of the legal and technical adjustments required, the Walsh Act anticipates that states and other jurisdictions may require three years or more to fully implement its modifications. As a consequence, for purposes of compliance by the states and other jurisdictions, the prior law remains in effect until the later of three years after enactment or one year after the necessary software for the new uniform, online system has become available. For registrants, however, the new requirements became effective upon enactment.
subsections: section_title: Constitutional Considerations
paragraphs: Two state sex offender statutes have survived constitutional scrutiny before the Supreme Court, Connecticut Department of Public Safety v. Doe and Smith v. Doe . In Smith , the Court rejected an ex post facto challenge because the statute was intended to create a regulatory scheme that was civil and nonpunitive and because it was not "so punitive either in purpose or effect as to negate the state's intention to deem it civil." In Connecticut Department of Public Safety , it rejected the argument that due process required a pre-registration hearing as to the current dangerousness of the offender because the statute predicated registration upon prior conviction, not upon current dangerousness.
Other courts have rejected similar and other constitutional challenges, although individual aspects of a particular statute or its implementation have been found constitutionally defective on occasion.
section_title: Who Must Register
paragraphs: The class of offenders required to register has been expanded under the act. The group includes anyone found in the United States and previously convicted of a federal, state, local, tribal, military, or foreign qualifying offense, although strictly speaking violations of the laws of the District of Columbia or U.S. territories are not specifically mentioned as qualifying offenses. Offenders must register in each state or territory in which they live, work, or attend school.
There are five classes of qualifying offenses: crimes identified as one of the "specific offenses against a minor;" crimes in which some sexual act or sexual conduct is an element; designated federal sex offenses; specified military offenses; and attempts or conspiracy to commit any offense in the other four classes of qualifying offenses.
subsections: section_title: Specified offenses against a minor
paragraphs: This class consists of essentially the same members as made up the class of qualifying offenses under the Jacob Wetterling Act when these offenses are or were committed in violation of state, local, tribal, foreign, or military law, or presumably in violation of D.C. or territorial law:
kidnaping of a minor, except by a parent or guardian; false imprisonment of a minor, except by a parent or guardian; solicitation of a minor to engage in sexual conduct; use of a minor in a sexual performance; solicitation to practice prostitution; video voyeurism (as described in 18 U.S.C. 1801); possession, production, or distribution of child pornography; criminal sexual conduct toward a minor, or the use of the Internet to facilitate or attempt such conduct; any conduct that by its nature is a sexual offense against a minor. 42 U.S.C. 16911 (5)(ii), (7), (6).
Virtually all the states require registration for convictions of the state's criminal law version of these generic crimes. Their treatment of federal, foreign, military and out of state convictions has been a bit more individualistic.
section_title: Sex element crimes
paragraphs: The act simply states that the class of qualify offenses also includes any "criminal offense that has an element involving a sexual act or sexual contact with another." It does not define either the term "sexual act" or "sexual contact." Elsewhere in the United States Code they are consistently defined as follows.
[T]he term "sexual act" meansâ
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
[T]he term "sexual contact" means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
The class appears to have been intended as a residual group of sexual offenses that fall outside the coverage of the other classes of qualifying offenses. It applies to violations of state, local, tribal, foreign, military, and presumably D.C. and territorial law.
section_title: Federal qualifying offenses
paragraphs: The class of federal offenses that trigger registration requirements includes violations of:
18 U.S.C. 1591 (sex trafficking of children or by force or fraud) 18 U.S.C. 2241 (aggravated sexual abuse) 18 U.S.C. 2242 (sexual abuse) 18 U.S.C. 2243 (sexual abuse of ward or child) 18 U.S.C. 2244 (abusive sexual contact) 18 U.S.C. 2245 (sexual abuse resulting in death) 18 U.S.C. 2251 (sexual exploitation of children) 18 U.S.C. 2251A (selling or buying children) 18 U.S.C. 2252 (transporting, distributing or selling child sexually exploitive material) 18 U.S.C. 2252A (transporting or distributing child pornography) 18 U.S.C. 2252B (misleading Internet domain names) 18 U.S.C. 2252C (misleading Internet website source codes) 18 U.S.C. 2260 (making child sexually exploitative material overseas for export to the U.S.) 18 U.S.C. 2421 (transportation of illicit sexual purposes) 18 U.S.C. 2422 (coercing or enticing travel for illicit sexual purposes) 18 U.S.C. 2423 (travel involving illicit sexual activity with a child) 18 U.S.C. 2424 (filing false statement concerning an alien for illicit sexual purposes) 18 U.S.C. 2425 (interstate transmission of information about a child relating to illicit sexual activity), 42 U.S.C. 16911(5)(A)(iii).
section_title: Military offenses
paragraphs: Qualifying military offenses are those designed by the Secretary of Defense pursuant to P.L. 105-119 , Â§115(a)(8)(C)(i), 111 Stat. 2466 (1998). Department of Defense Instruction 1325.7, Enclosure 27 lists following as qualifying offenses:
UCMJ art. 120 (rape and carnal knowledge) UCMJ art. 125 (forcible sodomy and sodomy of a minor) UCMJ art. 133 (conduct unbecoming an officer involving any sexually violent offense or a criminal offense of a sexual nature against a minor or kidnaping a minor or prostitution involving a minor) UCMJ art. 134 (indecent assault, assault with intent to commit rape or sodomy, indecent act with a minor, indecent language to a minor, kidnaping a minor other than by a parent, pornography involving a minor, conduct prejudicial to good order and discipline (involving any sexually violent offense or a criminal offense of a sexual nature against a minor or kidnaping of a minor) or assimilated crime conviction (of a sexually violent offense or a criminal offense of a sexual nature against a minor or kidnaping of a minor) UCMJ art. 80 (attempt to commit any of the foregoing) UCMJ art. 81 (conspiracy to commit any of the foregoing) UCMJ art. 82 (solicitation to commit any of the foregoing).
section_title: Attempt or conspiracy
paragraphs: The final class of qualifying offenses consists of the attempts or conspiracies to commit some offense described in one of the other classes. The class is limited to instances where the offender is convicted of attempt or conspiracy. The distinction is important since attempt or conspiracy to commit one of the other qualifying offenses may not always be a separate crime. For example, it is a federal qualifying offense to sell a child with the intent to promote child pornography, but it is not a federal crime to attempt to do so.
section_title: Exceptions
paragraphs: The inventory of qualifying offenses is subject to exception. Conviction for an otherwise qualifying foreign offense does not necessitate registration if it was not secured in a manner which satisfies minimal due process requirements under guidelines or regulations promulgated by the Attorney General. Nor does conviction of a consensual sex offense require registration if the victim is an adult not in the custody of the offender, or if the victim is 13 years of age or older and the offender no more than four years older. Finally, juvenile delinquency adjudications do not constitute qualifying convictions unless the offender is 14 years of age or older at the time of the misconduct and the misconduct adjudicated is comparable to, or more severe than, aggravated sexual assault or attempt or conspiracy to commit such an offense.
There are no specific limitations on registration based on convictions that have been overturned, sealed or expunged under state or foreign law or on convictions for which the offender has been pardoned. There are no specific limitations on requirements that flow from past convictions regardless for their vintage. Instead, the Attorney General is authorized to promulgate rules of applicability.
section_title: Registration Requirements
paragraphs: Those required to register must provide their name, social security number, the name and address of their employers, the name and address of places where they attend school, and the license plate numbers and descriptions of vehicles they own or operate. The jurisdiction of registration must also include a physical description and current photograph of the registrant and a copy of his driver's license or government issued identification card; a set of fingerprints, palm prints, and a DNA sample; the text of the law under which he was convicted; a criminal record that includes the dates of any arrests and convictions, any outstanding warrants, as well as parole, probation, supervisory release, and registration status; and any other information required by the Attorney General.
section_title: When and For How Long
paragraphs: Those required to register must do so before they are released from incarceration; those whose sentences do not include a term of imprisonment must register within three days of sentencing. Those required to register who were released or sentenced without a term imprisonment before the effective date of the act are subject to the registration requirements announced by the Attorney General. Those required to register when entering the United States are funneled into the system through a regime established and operated by the Secretaries of State and Homeland Security. Custodians must notify those in their care of the obligation to register; notification of offenders who are not incarcerated is to be accomplished pursuant to instructions from the Attorney General. Registrants have three days to notify at least one jurisdiction in which they are registered whenever they change their names, addresses, or places of employment or study.
The regularity with which registrants must appear for new photographs and to verify their registration information depends upon their status. It is at least every three months for Tier III offenders, that is, those convicted of a felony constituting or at least comparable in severity to kidnaping (other than by a parent or guardian); or to the felonious commission of, or attempt or conspiracy to commit, abusive sexual contact against a child under 13 years of age, or sexual abuse or aggravated sexual abuse; or those who have previously qualified as Tier II offenders at the time of conviction.
Tier II offenders must reappear no less frequently than every six months. Tier II offenders are those with a felony conviction for violation of either: one of several designated federal sex offenses (or at least its equivalent in severity), or one of three generically described sex offenses. The federal offenses are violations of 18 U.S.C. 1591 (sex trafficking), 2422(b) (use of a facility in interstate or foreign commerce to coerce or entice a child to engage in illicit sexual activity), 2423(a) (interstate transportation of a child for illicit sexual purposes), 2244 (abusive sexual contact). The generic offenses are use of a child in a sexual performance, solicitation of a child to practice prostitution, and production or distribution of child pornography. An offender is also a Tier II offender who prior to the conviction triggering the registration requirement was already been classified as a Tier I offender.
Tier I offenders are those required to register who are neither Tier II nor Tier III offenders, and must reappear for new photographs and verification at least once a year.
Tier I offenders must maintain their registration for 15 years, which can be reduced to 10 years if during that time they avoid felony and sex offense convictions, complete a sex offender treatment program, and satisfy any supervised release, parole, and probation demands. Tier II offenders must maintain their registration for 25 years. Tier III offenders must maintain their registration for life, which can be reduced to 25 years if during that time they satisfy the same conditions that would meet Tier I reduction requirements.
section_title: Registration Information Online
paragraphs: The act insists that each jurisdiction make registration information publicly available on the Internet, accessible according to zip code and geographical radius. The site may not include the identity of the registrant's victim, mention arrests that have not resulted in conviction, list the registrant's social security number, or contain any other information banned by the Attorney General. Individual jurisdictions may elect not to include information relating to a Tier I offender other than one convicted of a "specific offense against a minor," the name of the registrant's employer, the name of the school where the registrant is a student, or any other information identified by the Attorney General.
The act directs the Attorney General to maintain a National Sex Offender Registry and to make sure that the evolving flow of registration information is contemporaneously forwarded electronically to the appropriate jurisdictions. He has also been instructed to maintain the publicly available Dru Sjodin National Sex Offender Public Website, which now provides an online, public entryway to the Internet sex offender registries of the 50 states, the District of Columbia, Puerto Rico and Guam.
Finally, jurisdictions must participate in the Megan Nicole Kanka and Alexandra Nicole Zapp Communication Notification Program under which they are obligated to provide updated registration information within five days to the Attorney General; to law enforcement, school and public housing officials in the area where the registrant lives, works, or studies; to other jurisdictions where the registrant lives, works, or studies or recently did so; to National Child Protection Act background check agencies; to child welfare agencies; to certain volunteer organizations; and to individuals and entities that request notification under a jurisdiction's law.
During the two years following enactment, the Attorney General is to see to the development and support the software necessary to implement uniform registries within the jurisdictions. In addition, he is to establish a sex offender management assistance (SOMA) grant program to assist states to implement the act. Moreover, he is to assist jurisdictions to identify and locate registrants after the scattering associated a hurricane or other national disaster.
The act establishes the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Training (SMART Office) within the Justice Department's Office of Justice Programs. The Office is charged with the responsibility of administering the sex offender registration and notification standards and the associated grant program.
section_title: Failure to Comply
paragraphs: Jurisdictions that fail to comply after the act becomes fully effective run the risk of having their Byrne program funds reduced by 10%. When considering whether to penalize a noncomplying jurisdiction, the Attorney General may consider the fact that the jurisdiction's highest court has held that full compliance would place the jurisdiction in violation of its constitution.
Other than tribal jurisdictions, each jurisdiction is obligated to criminalize an offender's failure to satisfy registration requirements with a maximum term of imprisonment greater than one year. The comparable provision in prior law made no mention of how severely the offense was to be punished. Furthermore, the act makes failure to register a federal crime for offenders convicted of a federal qualifying offense, or who travel in interstate commerce, or who travel in Indian country, or who live in Indian country. Violations are punishable by imprisonment for not more than 10 years and by an addition penalty to be served consecutively of not less than five nor more than 30 years if the offender commits a crime of violence. Moreover, violation exposes an offender to a term of supervised release for any term of years not less than five years or for life. If the offender is a foreign national ("an alien") he becomes deportable upon conviction.
When an individual who is required to register (regardless of whether he has done so) commits one of the felonies outlawed in 18 U.S.C. 1201 (kidnaping), 1591 (sex trafficking), ch. 109A (sexual abuse), ch. 110 (sexual exploitation of children) or ch. 117 (travel for illicit sexual purposes), his term of supervised release is to be revoked and he is to be sentenced to a term of imprisonment of not less than five years.
Additional appropriations have been authorized to permit the Attorney General to use the Marshals Service and other resources at his disposal to locate and apprehend those who have failed to register.
section_title: Studies and Reports
paragraphs: The Attorney General must provide Congress with an annual report relating to sex offender registration covering prosecution for failure to register, the use of the Marshals Service to track down those who fail to register, and a description of compliance with registration system requirements by each jurisdiction and of the Justice Department's efforts to ensure compliance.
Section 637 calls for the Attorney General to assemble a task force comprised of federal, state and local representatives to study and report on various risk-based classification of sex offenders. Section 638 asks that he examine and report on the effectiveness of various means to reducing recidivism among sex offenders. And Section 63 â without any explicit reference to sex offenders or children â commands him to study the means of improving the effectiveness of federal, state and local homicide investigations.
The National Institute of Justice has been given five years to study and make recommendations to Congress for the reduction of the number of sex offenses committed against children and for improved effectiveness of the sex offender registration system.
Section 636 instructs the Government Accountability Office (GAO) to study the feasibility of a nationwide requirement comparable to that established in Chapter 507 of the Nevada Session Laws, under which sex offender registration information is shared with motor vehicle authorities to ensure that those required to register as sex offenders have done so before a driver's license is issued.
section_title: Adjustments in Federal Criminal Law
paragraphs: The Adam Walsh Child Protection and Safety Act is focused, as its name implies, upon child protection and safety. Its efforts involve the creation of new federal crimes, the enhancement of the penalties for preexisting federal crimes, and the amendment of federal criminal procedure. Many of these efforts are child-specific; some are more general. The new federal crimes include the following.
murder in the course of a wider range of federal sex offenses, 18 U.S.C. 2245 Internet date rape drug trafficking, 21 U.S.C. 841(b)(7) kidnaping that involves the use of interstate facilities, 18 U.S.C. 1201 child abuse in Indian country, 18 U.S.C. 1153 production of obscene material, 18 U.S.C. 1465, 1466 obscenity or pornography in Internet source codes, 18 U.S.C. 2252C child exploitation enterprises, 18 U.S.C. 2252A(g).
The list of penalty increases is comparable, if somewhat more extensive.
serious violent crimes against children, 18 U.S.C. 3559(f) coercion or enticement of a child for illicit sexual purposes, 18 U.S.C. 2422 interstate transportation of a child for illicit sexual purposes, 18 U.S.C. 2423 sexual abuse in a federal prison or enclave, 18 U.S.C. 2242 aggravated sexual abuse of a child, 18 U.S.C. 2241 abusive sexual contact with a child, 18 U.S.C. 2244 sexual exploitation of a child, 18 U.S.C. 2251 traffic in child exploitive material, 18 U.S.C. 2252 traffic in child pornography, 18 U.S.C. 2252A use of a misleading Internet domain name to induce a child, 18 U.S.C. 2252B overseas production of child exploitive or pornographic material, 18 U.S.C. 2260 sex trafficking, 18 U.S.C. 1591 failure to report child abuse, 18 U.S.C. 2258 false statements relating child or sexual offenses, 18 U.S.C. 1001.
The amendments to federal criminal procedure are a bit less numerous and somewhat more likely to implicate crimes in addition to those committed against children. Among their number are:
random searches of sex offender registrants as a condition of probation or supervised release, 18 U.S.C. 3563, 3583 expanded DNA collection from those facing federal charges or convicted of any federal offense, 42 U.S.C. 14135a(a)(1)(A) elimination of the statute of limitations for various sexual crimes or crimes committed against a child, 18 U.S.C. 3299 participation of state crime victims in federal habeas proceedings, 18 U.S.C. 3771(b)(2)(B) study of the elimination of marital privileges in abuse cases preventive detention in cases involving a minor victim or a firearm, 18 U.S.C. 3142(g)(1) compensation for guardians ad litem, 18 U.S.C. 3509(h) government control of evidence in pornography cases, 18 U.S.C. 3509(m) forfeiture procedures in obscenity, exploitation and pornography cases, 18 U.S.C. 1467, 2253, 2254 murder during course of various sex offenses as a felony murder predicate, 18 U.S.C. 3592(c)(1) civil commitment procedure for federal sex offenders, 18 U.S.C. 4248.
subsections: section_title: New Procedures
subsections: section_title: Warrantless searches
paragraphs: Section 210 amends federal law to expose sex offender registrants to warrantless, suspicionless (random) searches as a condition of their supervised release or probation. As a general rule, random searches raise Fourth Amendment questions.
The Fourth Amendment states that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Amendment's facially absolute terms are subject to qualification. For example, the Supreme Court recently upheld the random search of the person of a parolee in Sampson v. California .
As the Court explained in that context, the hallmark of Fourth Amendment compliance is reasonableness, and the courts will "examine the totality of the circumstances to determine whether a search is reasonable." More precisely, "Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interest."
The Court had previously upheld the suspicion-based, but warrantless, search of a probationer's apartment in United States v. Knights . There the Court had observed that in balancing an individual's privacy interest against the interests of the government the weight afforded the individual's interest varies according to the individual's justifiable expectation of privacy under the circumstances, and those subject to punishment by the government â like prisoners, parolees and probationers â may claim only a reduced expectation of privacy. Among them, however, there is a range of expectations corresponding to the continuum of punishments that accompanies their status. "On this continuum, parolees have fewer expectations of privacy than probationers" and those on federal supervised release. Moreover, a parolee's acceptance of suspicionless searches as a condition of parole significantly diminishes the individual's expectation of privacy. Under these circumstances, the Sampson Court concluded Sampson had no legitimate expectation of privacy.
On the other hand, the Court considered the government's interest substantial, "a State's interest in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment."
In the absence of such an expectation, the Court found it unnecessary to consider the question of whether the search might be justified under the Fourth Amendment's special needs doctrine or under the Amendment's consent exception. Some may believe that Section 210 makes such an examination necessary, since it involves probationers and those on supervised released, individuals said to have a higher expectation of privacy than the parolee in Sampson .
Application of the Court's special needs and consent jurisprudence, however, presents its own challenges. The special needs doctrine emerged from the Court's school and drug testing cases. Beginning there, the Court has identified circumstances under which the government's particularly weighty special interests, balanced against the nature of the intrusion upon an individual's privacy interests, justify a search without the usual protection of either probable cause or a warrant. Even here, however, the Court has been "particularly reluctant to recognize exceptions to the general rule of individualized suspicion where the government authorities primarily pursue their general crime control ends." Yet there are circumstances under which the Court has been able to overcome its reluctance.
As for consent, an individual could be said to have consented to a condition for parole and perhaps even probation where the alternative is incarceration, but supervised release is imposed in addition to, rather than in lieu of, imprisonment. Unlike parole or probation, it is imposed rather than accepted. Imposition of the condition, however, is discretionary, and a court might impose alternative, less desirable conditions to be applied should the individual fail to consent to random searches. Whether this would be considered sufficient to constitute a voluntary waiver of an individual's Fourth Amendment rights is unclear at best. Yet the question is unlikely to arise, since the case law in the lower federal courts on a comparable matter suggests that the changes worked by Section 210 would pass constitutional muster.
Federal law requires consent to DNA sample collection as a mandatory condition of federal probation and of federal supervised release. Fourth Amendment challenges to the collection of DNA samples from prisoners, from those on probation and from those on supervised release have generally been unsuccessful in the lower federal courts, although the courts sometimes reach the same result from the different approaches â some favor a special needs analysis and others a Knight reasonable analysis.
Section 210 amends the provisions governing probation and supervised release to permit the court to impose as an explicit condition of probation or supervised release that an individual required to register as a sex offender remain subject to warrantless searches, without the need of suspicion if conducted by a probation officer as part of his supervisory duties, or upon reasonable suspicion that the individual has violated a condition of his probation or supervised release if conducted by other law enforcement officers.
The distinction between probation officers and other law enforcement officers in Section 210 reflects the two modes of analysis under which random searches may be permissible. In Knights , the Court approved the warrantless search of a probationer by law enforcement officers with reasonable suspicion. In the school and drug cases, the Court approved random searches in the interests of special administrative needs, interests arguably comparable to the government's interest in the administration of the federal system probation and supervised release.
section_title: Expanded DNA collection
paragraphs: Prior to the 109 th Congress, the DNA Analysis Backlog Elimination Act authorized the collection of DNA samples from individuals convicted of a federal qualifying offense, and from individuals on probation, parole or supervised release relating to such an offense. Qualifying offenses included any felony, any violation of Chapter 109A of Title 18 of the United State Code relating to sexual abuse, any crime of violence, or any attempt or conspiracy to commit any such offenses. The statute directed and continues to direct that the samples be provided to the Federal Bureau of Investigation for analysis and inclusion in the Combined DNA Index System (CODIS). The record is to be expunged from the Index upon notification that the individual's conviction for the qualifying offense has been overturned.
As noted previously, the lower federal courts have generally rejected constitutional challenges to these and similar state DNA sample collection statutes involving inmates, probationers, parolees and those on supervised release.
The Violence Against Women and Department of Justice Reauthorization Act of 2005, P.L. 109-162 , 119 Stat. 2960, 3085 (2006), amended the DNA Act to authorize the collection of samples from individuals arrested under the laws of the United States (or from non-United States persons detained under the laws of the United States), without regard to whether a qualifying offense supplies the basis for the arrest or detention.
Section 155 further expands the Attorney General's authority to permit collection of samples from those (1) "facing charges"for a federal offense or (2) convicted of any federal offense rather than just those convicted of qualifying offenses. The act does not define the term "facing charges" nor is it defined in any other section of the Code. Without more it might be thought to refer to those under indictment, but use of the term later in same subparagraph suggests it was intended to refer to those released on bail but under pre-trial supervision.
The amendments in the 109 th Congress may anticipate certain technical adjustments. For example, they do not amend the expungement provision that applies only to qualifying offenses; so that the records of individuals with overturned convictions for the more serious qualifying offenses continue to be subject to expungement, but those with overturned convictions for the less serious nonqualifying offenses are not.
The Violence Against Women and the Walsh amendments of the 109 th Congress appear to have been too recently enacted to have been the subject of decided case law as yet. Academicians differ as to the constitutional prospects of arrestee DNA sampling practices. And as noted earlier, the lower courts have generally rejected constitutional challenges to DNA collection statutes, particularly following conviction. Yet, in a Fourth Amendment context, defendants whose convictions have been overturned and arrestees, particularly those never prosecuted, do not fit as readily into a special needs category as inmates, parolees and those on supervised released. Moreover, on the continuum of punishment mentioned in Knight and Sampson , they presumably have a greater expectation of privacy than inmates, parolees and those on supervised release, all of whom have been convicted. Whether a court would consider the difference sufficient to tip the balance remains to be seen.
section_title: Statute of limitations
paragraphs: The statute of limitations for most federal crimes is five years. There is no statute of limitations for federal capital offenses or for any of federal crimes of terrorism involving a risk of serious injury. Moreover, the statute of limitations for a federal crime involving kidnaping a child or sexual or physical abuse of child is the longer of 10 years or the life of the child.
Section 211 eliminates the statute of limitations for the federal crimes of kidnaping of a child (18 U.S.C. 1201), sexual abuse (18 U.S.C. ch. 109A), sexual exploitation of a child (18 U.S.C. ch. 110), travel for illicit sexual purposes (18 U.S.C. ch. 117), or sex trafficking of a child or of an adult by force or fraud (18 U.S.C. 1591).
There is no indication whether Section 211 was intended to apply only prospectively to crimes committed after its enactment or also retroactively to crimes committed before its enactment. In any event, the elimination cannot be applied to cases in which the earlier applicable statute of limitations had run by the time Section 211 was enacted. And in rare cases, due process and the passage of time may preclude prosecution notwithstanding the absence of a statute of limitations bar.
section_title: State crime victims in federal habeas proceedings
paragraphs: The victims of federal crimes enjoy limited statutory rights to notice, attendance and participation in related federal judicial proceedings, 18 U.S.C. 3771. The victims of state crimes generally enjoy comparable rights in state judicial proceedings as a matter of state law.
Section 212 affords the victims of state crimes certain attendance and participation rights in federal habeas corpus proceedings involving the state crime of which they were the victim. It grants them the right not to be excluded from the habeas proceedings, the right to be reasonably heard there, the right to proceedings free from unreasonable delay, and the right to be treated fairly and with respect for their dignity and privacy. The rights are available to all victims, not merely those who were children at the time of the offense or those who were the victims of a sexual offense. The federal courts are obliged to honor these and the other rights vested in Section 3771, which are enforceable through writs of mandamus. The rights conveyed to the victims of state crimes in federal habeas proceedings, however, impose no obligations upon federal executive branch officials.
All of which gives Section 212 a number of interesting features. First, the section does not include a right to notification of the time or place of the habeas proceedings to which the other rights attach, although some state statutory or constitutional provisions may require notice by state officials. Second, it seems to call for the right of victims to brief and argue the points of law raised in the habeas proceedings (the right to be reasonably heard), since the usual form of a victim's being heard, the victim impact statement, has no real place in a habeas proceeding. Third, it seems to promise no right of attendance or participation for the families or representatives of those victims who are children unless the child is dead or incapacitated.
A victim's right to habeas proceedings unmarred by unreasonable delays can be traced to hearing testimony and to an earlier short-lived section of the bill, which would have imposed time limits in federal habeas cases when they involved challenges to state convictions for the murder of a child. A provision affording victims the right to fair and dignified treatment needs little explanation. The rationale for the section's other features is somewhat more difficult to ascertain.
section_title: Marital privileges
paragraphs: Evidentiary questions in federal criminal cases are governed in large measure by the Federal Rules of Evidence, which are generally formulated and amended by committees within the Judicial Conference working under the auspices of the Supreme Court and with at least tacit Congressional approval. The general rule on federal privileges states that they "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." Under this rubric the federal courts have recognized two marital privileges. One protects confidential communications between spouses and the other permits one spouse to refuse to testify against the other. The federal courts have recognized an exception to the communications privilege in cases involving crimes committed by one spouse against the other or against children in the home, but at least one court has refused to recognize a corresponding exception to the privilege against compelled spousal testimony.
Section 214 directs the Committee on Rules, Practice, Procedure and Evidence of the Judicial Conference to study the necessity and desirability of establishing an exception to both privileges in cases involve a crime committed by one spouse against a child or minor ward of either. The results will presumably be presented to Congress in the form a report transmitted through Conference and the Supreme Court, since by statute only Congress can create, abolish, or modify a federal rule of evidentiary privilege.
section_title: Civil Commitment
paragraphs: A little over a third of the states have enacted statutes that permit involuntary civil commitment of previously convicted sex offenders based on the prospect of their future commission of sexual offenses. In other states, involuntary civil commitment is available when the individual is found to be a danger to himself or others, a procedure that under some circumstances may be used to commit sex offenders.
The Supreme Court has addressed concerns that the sex offender civil commitment procedures could be used in lieu of a criminal trial to circumvent the constitutional protections afforded the criminally accused. Faced with the argument that the statutes might be used to punish an individual simply because he was thought to pose a risk of committing some undefined crime in the future, the Court upheld a narrowly crafted Kansas statute in Kansas v. Hendricks :
The challenged Act unambiguously requires as finding of dangerousness either to one's self or to others as a prerequisite to involuntary confinement. Commitment proceedings can be initiated only when a person has been convicted of a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence. The statute thus requires proof of more than mere predisposition to violence; rather, it requires evidence of past sexual violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated. ... . A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a mental illness or mental abnormality. These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond they control. The Kansas Act is plainly of a kind with these other civil commitment statutes: it requires a finding of future dangerousness, and then links that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible for the person to control his dangerous behavior. The precommitment requirement of a mental abnormality or personality disorder is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.
Soon thereafter the Court seemed to withdraw somewhat from its pronouncements in Hendricks . The Kansas Supreme Court read Hendricks to mean that civil commitment of sex offenders under the statute required proof that they could not control their criminal urges; not so, said the United States Supreme Court in Kansas v. Crane .
It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment form the dangerous but typical recidivist convicted in an ordinary criminal case.
The later courts have been of two minds when it comes to dealing with what standard of control will satisfy due process demands for sexual predator civil commitment statutes in light of Hendricks and Crane . Some assert that the government must show that the individual has "serious difficulty controlling his potentially dangerous behavior." Others conclude that it is sufficient to establish that by virtue of some mental disorder the individual is more likely than not to engage in sexual violence in the future, because such proof "implicitly includes proof that such persons's mental disorder involves serious difficulty in controlling his or her sexually dangerous behavior."
Section 302 establishes a federal civil commitment procedure for sexual offenders in which it takes the more cautious approach. It permits commitment where the court finds by clear and convincing evidence that the individual is "a sexually dangerous person." A sexually dangerous person is one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." A person is sexually dangerous to others who "suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."
Section 301 creates a grant program to assist states in establishing, enhancing or operating effective civil commitment programs for "sexually dangerous persons," whom it defines in explicit "control" terms.
section_title: Bail
paragraphs: As a general rule, individuals arrested for the commission of federal offenses are entitled to be released under their own recognizance or under the least restrictive conditions necessary to ensure their appearance at later judicial proceedings and to ensure community safety. The bail statute cites a number of permissible conditions, such as continued employment, travel restrictions, and the like. In the case of individuals charged with any of the specifically designated offenses involving children, the law sets a rebuttable presumption that no set of conditions will ensure public safety or the individual's later appearance. The list includes failing to register as a sex offender or violations of the following involving a child:
18 U.S.C. 1201 (kidnaping)
18 U.S.C. 1591 (sex trafficking of children or by force or fraud)
18 U.S.C. 2241 (aggravated sexual abuse)
18 U.S.C. 2242 (sexual abuse)
18 U.S.C. 2244 (a)(1)(abusive sexual contact that if abuse would have been aggravated sexual abuse)
18 U.S.C. 2245 (sexual abuse resulting in death)
18 U.S.C. 2251 (sexual exploitation of children)
18 U.S.C. 2251A (selling or buying children)
18 U.S.C. 2252 (transporting, distributing or selling child sexually exploitive material)
18 U.S.C. 2252A (transporting or distributing child pornography)
18 U.S.C. 2260 (making child sexually exploitative material overseas for export to the U.S.)
18 U.S.C. 2421 (transportation of illicit sexual purposes)
18 U.S.C. 2422 (coercing or enticing travel for illicit sexual purposes)
18 U.S.C. 2423 (travel involving illicit sexual activity with a child)
18 U.S.C. 2425 (interstate transmission of information about a child relating to illicit sexual activity), 18 U.S.C. 2245.
Section 216(1) provides that an individual, charged with an offense that would trigger such a presumption who is nevertheless released prior to trial, must be subject to (1) electronic monitoring; (2) restrictions on his personal associations, place of residence, and travel; (3) instructions to avoid contact with past and potential victims; (4) a requirement to report regularly to supervisory authorities; (5) a curfew; and (6) a prohibition on possession of a firearm, explosive or similar dangerous instrumentalities.
Federal law permits the court to order preventive detention upon the motion of the prosecution when an individual is charged with a crime of violence or other designated serious federal offense. Section 216(2) adds to the list, nonviolent crimes if they involve a child victim; or the failure to register as a sex offender; or the possession of a firearm, destructive device, or other dangerous weapon. In doing so, the section overturns the effect of the majority of circuit court decisions that had held that simple unlawful possession of a firearm is not a crime of violence for preventive detention purposes.
When considering whether to order preventive detention, the court was once instructed to consider, among other things, "The nature and circumstances of the offense charged, including whether the offense is a crime of violence, or an offense listed in Section 2332b(g)(5)(B)[(federal crime of terrorism)] for which a maximum term of imprisonment of 10 years or more is prescribed or involves a narcotic drug."
Section 216(3) rewrites the provision so that it reads, "The nature and circumstances of the offense charged, including whether the offense is a crime of violence, a federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device ." Several changes are obvious. Special consideration must now be given to any federal crime of terrorism not merely federal crimes of terrorism carrying a 10 year sentence. The offenses that carry less than a 10 year maximum penalty range from destruction of federal property valued at less than $1000 to threats and involuntary manslaughter committed under a variety of jurisdictional circumstances. The same preventive detention consideration now attends any federal crime committed against a child, including acts of fraud and other federal crimes which neither invoke nor risk physical injury of the child.
section_title: Guardian ad litem
paragraphs: Federal law allows the court to appoint guardians ad litem to protect the interests of children who witness or are the victims of a crime. Section 507 amends the law to explicitly authorize federal courts to provide for such guardians' compensation and expenses.
section_title: Prosecution pre-trial control of pornography
paragraphs: Rule 16 of the Federal Rules of Criminal Procedure states that the prosecution must permit the defendant to inspect and copy any papers, documents, data or tangible items in the government's possession (1) that were obtained from the defendant, or (2) that the government intends to use at trial, or (3) that are material to the preparation of a defense. In view of these provisions, at least some district courts had instructed prosecutors to give defense counsel and defense experts copies of materials seized in child pornography prosecution when otherwise the defense would be under considerable burden and when there was no indication that either defense counsel or its experts were likely to disregard the court's protective order and abuse their access to the material.
Section 504 states that material constituting child pornography must remain in the care, custody, and control of the prosecution or the court. Rule 16 notwithstanding, defense requests for copies must be denied as long as the prosecution makes the material reasonably available, i.e., with ample opportunity to inspect and examine the material at a government facility.
The few lower court cases to face the question to date have found no constitutional infirmity. One court, however, has ordered that copies be provided to defense counsel because the increased cost and technical difficulties associated with examination and analysis by the defense at the government facility failed to provide an "ample opportunity" for examination and analysis by the defense.
section_title: Forfeiture
paragraphs: Property associated with obscenity or the sexual exploitation of children is subject to confiscation by the United States. As a general rule, confiscation can be accomplished either as part of the criminal prosecution of the property owner (criminal forfeiture) and in civil proceedings in which the "offending" property is often treated as the defendant (civil forfeiture). Civil forfeiture requires neither the conviction nor even the complicity of the property owner; it is enough that the property satisfies the statutory nexus between the crime and the property. Civil forfeitures are often governed by the provisions of Chapter 46 of Title 18 of the United States Code; criminal forfeiture by the provisions governing criminal forfeiture in controlled substance cases. Law enforcement agencies that investigate and prosecute the crimes that result in confiscation usually share in the proceeds of the forfeiture.
Preexisting federal law authorized the criminal forfeiture of obscene material, property constituting or traceable to obscenity violations, and property used to facilitate commission of such violations. The obscenity statute spelled out the procedures to be used rather than relying on those that applied in controlled substance cases, and made no provision for civil forfeiture.
Section 505(a) repeals the individual criminal forfeiture provisions in the obscenity statute, adopts the controlled substance procedures by cross reference, and establishes a civil forfeiture provision adopting the procedures of Chapter 46.
Section 505(b) works much the same change in the forfeiture provisions that apply to the crimes of sexual exploitation of children. It replaces individual criminal and civil forfeiture procedures with adoption of the generic procedures of Chapter 46 and the controlled substance statute, id. It eliminates from the coverage of the exploitation-related forfeiture sections Mann Act violations, probably because the Mann Act has its own compatible criminal and civil forfeiture provisions. The section also authorizes for the first time criminal and civil forfeiture of property generated by or used to facilitate violations of Chapter 109A (sexual abuse).
section_title: Capital punishment
paragraphs: Imposition of the death penalty for murder under federal law is confined to murders committed under one or more of a series of aggravating offenses. One such aggravating circumstance is the fact that the murder was committed during the course of another specifically designated federal crime,. The list of aggravating federal felonies includes crimes like treason, kidnaping, and aircraft sabotage. Section 206(a)(4) adds 18 U.S.C. 2245 (murder committed during the course of various sexual offenses) to the list.
section_title: New Crimes
subsections: section_title: Murder in course of a federal sex offense
paragraphs: Section 2245, noted above, makes it a capital offense to murder an individual during the course of any of the crimes proscribed in the Chapter 109A of Title 18 of the United States Code relating to sexual abuse. Section 206(a)(3) amends the provision so that it is also a capital offense to commit a murder during the course of several other federal crimes, i.e.:
18 U.S.C. 1591 (sex trafficking of children or by force or fraud)
18 U.S.C. 2251 (sexual exploitation of children)
18 U.S.C. 2251A (selling or buying children)
18 U.S.C. 2260 (making child sexually exploitative material overseas for export to the U.S.)
18 U.S.C. 2421 (transportation for illicit sexual purposes)
18 U.S.C. 2422 (coercing or enticing travel for illicit sexual purposes)
18 U.S.C. 2423 (travel involving illicit sexual activity with a child)
18 U.S.C. 2425 (interstate transmission of information about a child relating to illicit sexual activity), 18 U.S.C. 2245.
section_title: Internet date rape drug trafficking
paragraphs: Drugs and other controlled substances are assigned to various schedules, are regulated, and penalties for their abuse are calibrated, according to the type and amount of the drug or substance and its capacity for abuse and legitimate use. Unlawful distribution of various "date rape drugs" is punishable as follows:
In addition, surreptitiously administering any controlled substance with the intent to commit a crime of violence (including rape) is punishable by imprisonment for not more than 20 years.
Section 201 makes use of the Internet to unlawfully distribute GHB, ketamine, flunitrazepam, or any substance designated by the Attorney General as similarly susceptible to abuse as a date rape drug, punishable by imprisonment for not more than 20 years.
section_title: Kidnaping
paragraphs: Section 213 expands federal kidnaping jurisdiction by amending 18 U.S.C. 1201 as follows:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, whenâ
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense ... 18 U.S.C. 1201 (emphasis added to reflect amendment).
In addition to interstate transportation of the victim, Section 1201 prior to amendment and now includes kidnaping within U.S. special aircraft or special maritime and territorial jurisdiction or when the victim is a federal officer or employee or foreign dignitary. Some may find the conversion of a local kidnaping into a federal offense if "the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense," a substantial expansion in federal jurisdiction.
section_title: Indian country
paragraphs: Under federal law, "any Indian who commits against the person or property of another Indian or other person" any of several specifically designated crimes within Indian country is subject to the exclusive criminal jurisdiction of the United States. Prior to enactment of the Adam Walsh Child Protection and Safety Act, the section covered a felony violation of federal sexual abuse law (18 U.S.C. ch.109A), incest, assault resulting in serious injury, and assault upon a child. These crimes are defined by the law of the surrounding state when otherwise undefined by federal law. Section 215 supplements the list of Section 1153 offenses by adding any "felony child abuse or neglect." The change makes state child abuse and neglect felonies federal crimes subject to prosecution in federal court.
section_title: Production of obscene material
paragraphs: It has long been a federal crime to transport obscene material in interstate or foreign commerce, and more recently to be engaged in the business of selling obscene material that has been so transported. Section 506 makes it a federal crime to produce obscene material for such purposes. The new crime carries the same penalty as its predecessors, imprisonment for not more than five years.
section_title: Obscenity and pornography in Internet source codes
paragraphs: Preexisting federal law prohibits the use of misleading Internet domain names to deceptively induce children to view pornography. Section 703 makes it a federal crime to include words or digital images in Internet website source codes with the intent to deceptively induce a child to view pornography (punishable by imprisonment for not more than 20 years) or to deceptively induce an individual of any age to view obscene material (punishable by imprisonment for not more than 10 years).
section_title: Child exploitation enterprises
paragraphs: Section 701 outlaws child exploitation enterprises. The new offense involves three or more persons who on three or more occasions commit one or more of a series federal felonies (generally sexual offenses) involving more than one child. Offenders face imprisonment for any term of years not less than 20 years or for life. The section makes no mention of whether the mandatory minimums are to be served consecutive to those of the predicate offenses, some of which carry more severe minimums than the enterprise offense. The class of predicate offenses when they involve a child consists of the following.
18 U.S.C. 1201 (kidnaping)
18 U.S.C. 1591 (sex trafficking of children or by force or fraud)
18 U.S.C. 2241 (aggravated sexual abuse)
18 U.S.C. 2242 (sexual abuse)
18 U.S.C. 2243 (sexual abuse of ward or child)
18 U.S.C. 2244 (abusive sexual contact)
18 U.S.C. 2245 (sexual abuse resulting in death)
18 U.S.C. 2251 (sexual exploitation of children)
18 U.S.C. 2251A (selling or buying children)
18 U.S.C. 2252 (transporting, distributing or selling child sexually exploitive material)
18 U.S.C. 2252A (transporting or distributing child pornography)
18 U.S.C. 2252B (misleading Internet domain names)
18 U.S.C. 2252C (misleading Internet website source codes)
18 U.S.C. 2260 (making child sexually exploitative material overseas for export to the U.S.)
18 U.S.C. 2421 (transportation for illicit sexual purposes)
18 U.S.C. 2422 (coercing or enticing travel for illicit sexual purposes)
18 U.S.C. 2423 (travel involving illicit sexual activity with a child)
18 U.S.C. 2424 (filing false statement concerning an alien for illicit sexual purposes)
18 U.S.C. 2425 (interstate transmission of information about a child relating to illicit sexual activity), 18 U.S.C. 2252A(g).
section_title: New Penalties
subsections: section_title: Crimes against children
paragraphs: Although some federal crimes of violence subject offenders to a specific mandatory minimum term of imprisonment or to more severe penalties if the victim is a child, most do not. Section 202 establishes new sentencing ranges for the federal crimes of murder, kidnaping, maiming, or aggravated assault (a crime of violence involving the use of a dangerous weapon or resulting in serious injury) when the victim is under 18 years of age. In the case of murder, the penalty is imprisonment for any term of years not less than 30 years, imprisonment for life, or death; in the case of kidnaping or maiming, imprisonment for life or any term of years not less than 25 years; and in the case of aggravated assault, imprisonment for life or any term of years not less than 10 years. The new minimum terms of imprisonment must yield to any otherwise applicable higher mandatory minimum, but the new maximum penalties trump any otherwise applicable maximum.
The new provision has the effect of making capital offenses out of several federal murder statutes that heretofore were punishable only by a term of imprisonment. A handful of earlier federal laws included a penalty escalator (but not capital punishment) when the offense they proscribe resulted in a death. The new provision only converts these to capital offenses when the victim is a child and when the misconduct involves the intentional killing of the victim or a reckless, fatal act of violence. Among the statutes implicated are:
18 U.S.C. 38 (murder resulting from fraud involving aircraft and spacecraft parts) 18 U.S.C. 43 (murder in the course of an animal terrorism offense) 18 U.S.C. 175c (murder resulting from the use or possession of variola virus) 18 U.S.C. 248 (murder in the course of restricting access to abortion clinics) 18 U.S.C. 831 (murder resulting from the use or possession of nuclear materials) 18 U.S.C. 1347 (murder resulting from health care fraud) 18 U.S.C. 1365 (murder resulting from consumer product tampering) 18 U.S.C. 1652 (murder by an American pirate) 18 U.S.C. 1952 (murder in violation of the Travel Act) 18 U.S.C. 2118 (murder in the course of a drug store robbery or burglary) 18 U.S.C. 2155 (murder in the course destroying national defense material or utilities) 18 U.S.C. 2261-2262 (murder in the course of a federal crime of stalking).
Penalty increases attributable to the new statute may appear less dramatic in the case of kidnaping and maiming, because there are fewer federal statutes proscribing those crimes and because they were already fairly severely punished. Apart from the operation of the new Section 3559(f), kidnaping is punishable under federal law by imprisonment for any term of years or for life. And maiming when a federal crime and except when subject to the new penalty structure is punishable by imprisonment for not more than 20 years. On the other hand, neither carries a mandatory minimum sentence, and the mandatory minimum under Section 3559(f) for maiming (25 years) is greater than the sentence otherwise authorized for the crime (20 years).
The impact of Section 3559(f) on federal assault law may be difficult to assess. There are scores of federal assault statutes. Many prohibit assaults directed at federal officials and consequently are not likely to involve children as victims in most instances. Of the others, some impose more severe penalties when an assault involves a dangerous weapon or bodily injury, but many simply condemn assault. Few impose a sanction as severe as the life sentence or the 10 year mandatory minimum called for in Section 3559(f). Moreover, though the section defines fairly narrowly the injuries that trigger its application, it leaves undefined and open to liberal description the range of dangerous weapons whose use may result in the accelerated sanctions of Section 3559(f). In other federal criminal statutes, the term dangerous weapon has been understood to include shoes, belts, rings, chairs, desks, teeth, and a host of other ordinarily innocent objects that can be misused to inflict serious injury.
A sampling of the federal assault statutes whose sanctions Section 3559(f) replaces (when a child is victimized) with imprisonment for any term of years not less than 10 years or for life, along with the authorized penalties for their violation in the absence of child victim, appears in the margin.
In addition to the enhancements accomplished through Section 3559(f), the act increases penalties for several other child offenses, including the following.
section_title: Crimes by Sex Offenders
paragraphs: Section 702 provides a flat additional 10 year term of imprisonment to be imposed upon any individual, required to register as a sex offender under either state or federal law, who commits a subsequent felony violation of any of several federal offenses, if the crime involves a child. The 10 year term and the sentence for the predicate offense are to be served consecutively. The predicate offense list consists of felony violations of:
18 U.S.C. 1201 (kidnaping)
18 U.S.C. 1466A (obscene visual representation of sexual child abuse)
18 U.S.C. 1470 (transfer of obscene material to children)
18 U.S.C. 1591 (sex trafficking of children or by force or fraud)
18 U.S.C. 2241 (aggravated sexual abuse)
18 U.S.C. 2242 (sexual abuse)
18 U.S.C. 2243 (sexual abuse of a ward or child)
18 U.S.C. 2244 (abusive sexual contact)
18 U.S.C. 2245 (sexual abuse resulting in death)
18 U.S.C. 2251 (sexual exploitation of children)
18 U.S.C. 2251A (selling or buying children)
18 U.S.C. 2260 (making child sexually exploitative material overseas for export to the U.S.)
18 U.S.C. 2421 (transportation for illicit sexual purposes)
18 U.S.C. 2422 (coercing or enticing travel for illicit sexual purposes)
18 U.S.C. 2423 (travel involving illicit sexual activity with a child)
18 U.S.C. 2425 (interstate transmission of information about a child relating to illicit sexual activity).
section_title: Grant Programs
paragraphs: The act establishes, reinforces, and revives several grant programs devoted to child and community safety.
Section 603 authorizes mentoring grants for the Big Brothers Big Sisters of America. Section 604 requires the organization to provide the Administrator of the Office of Juvenile Justice and Delinquency Prevent with progress reports twice a year. Section 605 authorizes appropriations for these purposes of $9 million (for FY2007), $10 million (for FY2008)), $11.5 million (for FY2009), $13 million (for FY2010), and $15 million (for FY2011).
The National Police Athletic League Youth Enrichment Act established a grant program for the Police Athletic League, with an authorization of appropriations in the amount of $16 million a year through FY2005. Subtitle VI-B, Â§Â§611-617 , reauthorizes appropriations at the same levels for fiscal years 2006 through 2010 and revises the factual information found in the organic legislation relating to the League.
Section 621 empowers the Attorney General to make grants to state, local and tribal governments in order to outfit sex offenders with electronic monitoring devices. It authorizes appropriations of $5 million for each of fiscal years 2007, 2008 and 2009 and thereafter requests the Attorney General to report on the effectiveness of the program.
Section 623 creates a grant program available to both public and private entities that assist in treatment of juvenile sex offenders or that assist the states in their enforcement of sex offender registration requirements. Appropriations are authorized for FY2007 through FY2009 in such amounts as are necessary in the case of the enforcement grants and in the amount $10 million per year in the case of the juvenile sex offender grants.
Section 624 permits the Attorney General to award grants to facilitate the prosecution of cases cleared as a consequence of the DNA backlog elimination. It authorizes appropriations of such sums as are necessary for that purpose for FY2007 through FY2011.
Section 625 establishes a grant program for law enforcement agencies to combat sexual abuse of children with authorized appropriations of the necessary sums for FY2007 through FY2009.
Section 626 calls for grants to a national private, nonprofit organization for a program of crime prevention media campaign. For such purposes, it authorizes appropriations of $7 million (for FY2007), $8 million (for FY2008)), $9 million (for FY2009), and $10 million (for FY2010).
Section 627 permits the Attorney General to awards grants to state, local and tribal government programs for the voluntary fingerprinting of children. It authorizes the appropriations totaling $20 million for use through FY2011 for the task.
Section 628 authorizes grants to enable a private, nonprofit organization â the Rape, Abuse & Incest National Network (RAINN) â to operate a sexual assault hotline, conduct media campaigns, and provide technical assistance for law enforcement. It authorizes appropriations of $3 million per year for fiscal years 2007 through 2010.
Section 630 permits the Attorney General to establish an online child safety grant program for the benefit of state, territorial and nonprofit grantees, subject to the availability of appropriations.
Section 631 creates the Jessica Lunsford Address Verification Grant Program to enable state, local and tribal grantees to verify the addresses of registered sex offenders with authorization of the necessary appropriations for FY2007 through FY2009 and the requirement of an Attorney General's report on the effectiveness of the program.
section_title: Other Child Safety Initiatives
paragraphs: The act sets forth a wide assortment of other provisions designed to prevent, prosecute or punish the victimization of children. Among them are sections that broaden access to federal criminal records information systems, create a national child abuse registry, expand recordkeeping requirements for those in the business of producing sexually explicit material, immunize officials from civil liability for activities involving sexual offender registration, and authorize and direct the Department of Justice to establish and maintain a number of child protective activities.
subsections: section_title: National Child Abuse Registry
paragraphs: Section 633 directs the Secretary of Health and Human Services to establish a registry of substantiated instances of child abuse or neglect collected from state and tribal sources. The registry is only to be made available to federal, state, local and tribal entities obligated to protect children against abuse and neglect.
section_title: Background Checks
paragraphs: The Federal Bureau of Investigation (FBI) maintains a number of criminal information databases, consisting of information supplied by state and federal law enforcement officials, that can be used to determine the existence and extent if any of a particular individual's criminal record. The system is used primarily for law enforcement purposes, but is also available for such purposes as background checks of employees or prospective employees for certain occupations.
Section 151 directs the Attorney General to make the FBI's national criminal information databases available to governmental child protective service agencies and, when related to responsibilities under federal law, to the National Center for Missing and Exploited Children.
Section 152 expands the obligation of states, territories and tribes that receive payments under Title IV-E of the Social Security Act for foster care and adoption assistance to expand the background checks conducted on prospective foster and adoptive parents. Under prior law, unless a state had "opted out," it was required to conduct a criminal records check of prospective foster and adoptive parents of a child for whose benefit assistance payments were to be made and to withhold payments from those convicted of various child abuse or neglect offenses, crimes of violence, or sex offenses.
Section 152 makes the obligation more specific and expansive by insisting that the states do a fingerprint criminal record check using the FBI's national crime information databases of all prospective foster and adoptive parents regardless of the prospect of receiving assistance. They are obligated to check the child abuse and neglect registry in any state in which a prospective parent or an adult member of their household has lived in the previous five years as well. And they must honor reciprocal registry requests from other states and take steps to prevent unauthorized dissemination of the information. Moreover, Section 152(b) phases out (by October 1, 2008) the ability to opt out of the criminal records check responsibility for the states that had previously elected to do so.
Section 153 makes the FBI's national criminal information databases available for fingerprint-based background checks not only of prospective foster and adoptive parents, but also for employees or prospective employees of public and private schools or when sought in child abuse or child neglect investigation by state welfare officials.
Law enforcement agencies that report missing children to the FBI's national criminal information databases have long been precluded from imposing a waiting period before they would accept a missing person report. Section 154 precludes them from imposing a policy dictating removal from the system based solely on the age of the missing person.
section_title: Record Keeping by Porn Producers
paragraphs: The producers of sexually explicit material must maintain records designed to ensure that they are not using children as subjects. They must keep detailed records, available for inspection, on the name, age, and means of verification of those whose performances are depicted in their material. The Attorney General has authority to issue implementing regulations and has done so.
Enforcement of the regulations was preliminarily enjoined initially, however, on the grounds that while the statute covered only primary producers, the regulations purported to reach as well secondary producers who did not arrange for the appearance of the performers. Moreover, the prospects of enforcement were clouded by uncertainty over the implications of Ashcroft v. Free Speech Coalition , in which the Supreme Court held that inclusion of "virtual child pornography" within class of proscribed child pornography offended First Amendment principles.
Section 502 addresses those concerns by amending 18 U.S.C. 2257 to make it clear that it applies to secondary producers, and that it applies to the producers of digitally created or computer manipulated explicit sexual activities but only where those depicted are actually human beings. The definitions of pornography regularly refer to "actual or simulated sexual" activity. In order distance itself from the difficulties the Court found in "virtual" sexual activity, Section 2257 refers only to "actual" activity. In order to deal with simulated sexual activity by human beings, Section 503 creates a companion recording keeping mandate for the producers of "simulated sexually explicit conduct." The new section likewise applies only where there are human performers; and reaches the same kinds of producers that Section 2257 touches.
section_title: Civil Liability and Immunity
paragraphs: At one time, child victims injured as a result of various federal sexual offenses had a cause of action against the offender for attorneys fees and the greater of actual damages or $50,000. Section 707 increased the minimum to $150,000. The underlying sex offenses are violations of 18 U.S.C. 2241(c) (aggravated sexual abuse), 2242 (sexual abuse), 2243 (sexual abuse of a minor or ward), 2251 (sexual exploitation of a child), 2251A(selling or buying a child for sexual purposes), 2252 (transporting, distributing or selling child sexually exploitive material), 2252A (transporting or distributing child pornography), 2260 (overseas production of child pornography), 2421 (interstate travel of illicit sexual purposes), 2422 (coercion or enticement for illicit sexual purposes), and 2423 (transportation of a minor of illicit sexual purposes). Section 707 also amends Section 2255 to permit recovery even if the injury caused by the offense only occurs after the child is an adult.
subsections: section_title: Immunity
paragraphs: Federal law requires electronic service providers who discover evidence of child pornography to report the matter to law enforcement authorities by way of the Cyber Tip Line of the National Center for Missing and Exploited Children, a private nonprofit organization. The provision affords service providers immunity from civil liability for good faith compliance. With an exception of intentional, malicious, or reckless misconduct, Section 130 of the act affords the Center, its officers, employees and agents civil and criminal immunity for performance related to the provision. The new immunity is similar to that found in the PROTECT Act which, although it does not provide immunity from criminal liability, seems to grant more all encompassing civil immunity.
Civil immunity for government officers, employees and their agents for conduct involving the sexual offender registration system established in Title I of the act is found in Section 131 .
Whether the safe harbor shields the Center and those associated with it from both federal and state liability under either provision remains to be seen. The same question may be asked of the immunity bath afforded government officers, employees and agents.
section_title: Department of Justice
paragraphs: The act includes several sections in which the Department of Justice is authorized, directed or encouraged to take action in the greater interest of child protection and safety.
subsections: section_title: Project Safe Childhood
paragraphs: Section 142 provides the legal foundation for Justice Department's Project Safe Childhood, established shortly before passage of the act. The Project directs the various United States Attorneys to coordinate federal, state, local and tribal efforts to investigate and prosecute Internet crimes against children. It features strategic planning, training, and information sharing at the judicial district level. Participants include the FBI (Innocent Images Unit); the Secret Service; the Postal Service (Child Exploitation Task Forces); Immigration and Customs Enforcement (Cyber Crime Center); the Justice Department's Criminal Division and Internet Crimes Against Children (ICAC) Task Forces; state, local and tribal law enforcement officials, and the National Center for Missing and Exploited Children.
section_title: Training to Combat Internet Abuse
paragraphs: Section 145 instructs the Attorney General to expand his efforts to prevent misuse of the Internet by sex offenders. It ask that he expand training opportunities for federal, state and local law enforcement officials and prosecutors and that he involve members of the computer industry and other agencies in efforts to combat the sexual victimization of children through the Internet.
section_title: Prison Programs
paragraphs: Section 622 authorizes the Bureau of Prisons to establish residential and nonresidential sex offender monitoring programs to treat and supervise sex offenders.
section_title: Awareness Campaign
paragraphs: Section 629 authorizes the Attorney General, in consultation with the National Center for Missing and Exploited Children, to develop and execute public awareness programs relating to child-safe use of the Internet and to access to federal and state sexual offender registries.
section_title: Fugitive Safe Surrender
paragraphs: Section 632 instructs the Marshals Service to establish and coordinate a Fugitive Safe Surrender program in designated cities for the capture of fugitives from federal, state and local justice. It authorizes appropriations for that purpose in the amounts of $3 million (for FY2007), $5 million (for FY2008), and $8 million (for FY2009).
section_title: More Prosecutors
paragraphs: Section 704 directs the Attorney General to increase by not less than 200 attorneys the number of prosecutors dedicated to child sexual exploitation cases and assigned to the various United States Attorneys offices â subject to the availability of appropriations.
section_title: Forensic Resources
paragraphs: Section 705 asks the Attorney General and the Secretary of Homeland Security to increase the number of computer forensic examiners devoted to the investigation of sexual exploitation of children and related offenses â by not fewer than 30 examiners in the case of the Department of Justice and not fewer than 15 in the Department of Homeland Security.