Legal, Policy and Training Division
TRAINING BRANCH
www.fd.org
- The
Adam Walsh Child Protection and Safety Act of 2006 -- Part I (October
2006)
by Amy Baron-Evans and Sara Noonan (National Federal Defender Sentencing Resource and Research and Writing Counsel)
This paper gives a brief overview of the Adam Walsh Act and suggests some (though not all) possible legal challenges to the Act.
- Discovery
in Child Porn Cases After Adam Walsh: 20 Questions
by Craig W. Albee, Glynn, Fitzgerald & Albee, S.C., Milwaukee, WI
- Adam
Walsh Act: Implementation, Implications, and Challenges - Understanding
How the Adam Walsh Act Changes Pretrial Release
by Marcus J. Berghahn, Hurley, Burish & Stanton, S.C., Madison, WI
- Adam
Walsh Act: Pretrial Litigation Including Pretrial Release and Discovery
and Prophylactic Measures to Protect Our Clients
by Nancy Joseph, Assistant Federal Defender, Federal Defender Services of Wisconsin, Inc.
- Challenging
Bail Provisions of Adam Walsh
On December 7, 2006, in U.S. v. Crowell, Magistrate Judge Leslie G. Foschio held that the Adam Walsh Act's requirement that specific pretrial release conditions be imposed on all defendants accused of certain crimes violates the Fifth Amendment's Due Process Clause, the Eighth Amendment's Excessive Bail Clause, and separation of powers. The case was resolved before the district court could rule on Magistrate Judge Foschio's decision, but the opinion and the briefs filed by AFPD Marianne Mariano of the Western District of New York provide a good reference point for challenging the mandatory pretrial release conditions.
-
Victory
Under the Discovery Restriction Provision of the Adam Walsh Child Protection
and Safety Act
On January 28, 2008, in U.S. v. Winslow, Judge Smith, D. Alaska, found that the government's conditions for the defense's review of the computer hard-drive seized in the case violated the defendant's due process, fair trial and Sixth Amendment rights. As a result, the court ordered the government to provide the defense attorney with a copy of the hard drive, under specified conditions.On January 25, 2007, in U.S. v. Knellinger, Judge Payne, E.D. Virginia, found, based on extensive expert testimony, that a reasonable computer expert would not agree to take a case in which s/he was required to examine the hard drive on government premises because of the expense and difficulty of moving their equipment to a government facility and the inability to provide adequate assistance under those conditions. Thus, the court held, because "ample opportunity" for inspection was not available at a government facility, a mirror image had to be provided to the expert. Reading the statute in this way allowed the court to avoid the constitutional question presented if it were read otherwise.
- The
Adam Walsh Act -- Part II (November 2006)
by Amy Baron-Evans and Sara Noonan (National Federal Defender Sentencing Resource and Research and Writing Counsel)
This paper describes the Sex Offender Registration and Notification Act (SORNA) and its complex requirements. The paper also describes how the law might operate, and suggests some challenges it appears to invite.
- First
Supplement to Adam Walsh Act - Part II (May 2007)
by Amy Baron-Evans (National Federal Defender Sentencing Resource Counsel)
This paper addresses new developments since the publication of the original Adam Walsh Act - Part II memo, including the Attorney General's interim rule regarding retroactivity, a favorable case applying the Ex Post Facto Clause, and the new sentencing guidelines.
- Second
Supplement to Adam Walsh Act - Part II (Sept. 1, 2007)
by Amy Baron-Evans, National Sentencing Resource Counsel)
This paper discusses developments since the first Supplement to Adam Walsh Act II (May 2007), including recent dismissals of SORNA indictments and other relevant caselaw; an analysis of and potential challenges to the guidelines issued by DOJ's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking ("SMART" Guidelines); a comparison of the Wetterling Act and SORNA; and a review of and potential challenges to the applicable Sentencing Guidelines.
- Select
Dismissal Motions and Court Orders in SORNA Cases
- The
National Guidelines for Sex Offender Registration and Notification -
Final Guidelines
The “SMART” Guidelines are for the purpose of providing “guidance and assistance” to jurisdictions in implementing SORNA, so they can be deemed in compliance by the “SMART” Office by the due date, July 27, 2009, and not lose federal funding. The proposed guidelines were published for comment 5/30/07, see Fed. Reg. 30210-01, 2007 WL 1540140 (May 30, 2007), the comment period closed 8/1/07, and the guidelines were issued in final form on July 1, 2008. For a summary of the differences between the proposed and final guidelines, see: Significant Changes to the SORNA Guidelines.
- Juvenile Offenders Required to Register Under SORNA: A Fact Sheet
- Adam
Walsh Act III: It’s Not the Sentence, It’s the Commitment
. . .(Sept. 10, 2007; revised Sept. 25, 2007)
by Amy Baron-Evans and Sara Noonan (National Federal Defender Sentencing Resource and Research and Writing Counsel)
Title III of the Adam Walsh Child Safety and Protection Act of 2006 established the Jimmy Ryce Civil Commitment Program for Dangerous Sex Offenders, now codified at 18 U.S.C. §§ 4247, 4248. Under this new program, the AG or anyone authorized by the AG or the Director of BOP may seek to civilly commit anyone in BOP custody by “certifying” him (or her) as “sexually dangerous.” This memorandum describes the new civil commitment law and how BOP is interpreting and using it, and suggests ways to protect clients against being certified in the future.
-
Dismissal Motions
and Court Orders in 4248 Civil Commitment Cases
- Respondent
Wins Evidentiary Hearing in 4248 Case (W.D. Oklahoma): Findings of Fact/Conclusions
of Law Available Here
-
BOP Sex Offender Treatment Program
Materials
(Program description and consent form)
- BOP
Sex Offender Management Program Description
- BOP
Materials Relating to 4248 Civil Commitments
(BOP Interim Procedures (Dec. 21, 2006); Certification Review Panel Guidelines; proposed BOP regulations (Aug. 3, 2007); and SDP evaluation consent form)
- Legal
Resource Guide to the Federal Bureau of Prisons 2008
- Sample
Releases and Consent Forms
- Static-99
Coding Rules
- District
of Oregon Order Regarding Conditions of Release
In this case, the defense avoided the creation of sex offender evaluations that could later be used to subject the defendant to a civil commitment order. The Conditions of Release provide that the defendant participate in sex offender evaluation and counseling at the direction of U.S. Pretrial Services, but that counseling reports indicate the defendant is only attending and appropriately participating in treatment; any detailed reports must be sent under seal to the Court.
- No
Easy Answers - Sex Offender Laws in the US
Human Rights Watch, September 2007
This report details evidence of the harm caused to people subject to this country's various sex offender laws, including the Adam Walsh Act. The report focuses on registration requirements but also contains information that could be useful in challenging several aspects of the Act. Part IV of the report contains recidivism statistics that are particularly valuable to attorneys challenging 4248 civil commitment proceedings.
- Sex
Crimes Blog
This blog by Corey Rayburn Yung, Professor of Law at John Marshall Law School, is devoted to the criminal laws regulating and punishing sexual violence. Among other information, it contains a set of links and documents related to the Adam Walsh Act.
- Adam
Walsh and Civil Commitment Materials
by Sentencing Resource Counsel; Federal Public & Community Defenders
(This compilation includes materials posted elsewhere on this page, as well as a PowerPoint presentation on all aspects of the Adam Walsh Act. It is particularly useful for training presentations.)