Federal Defense Attorney John Teakell

The Adam Walsh Child Protection and Safety Act enacted by Congress in 2006, has recently been declared to be unconstitutional by one federal court.  On June 11, 2008, United States District Judge Donald W. Molloy found that Congress cannot federally criminalize a sex offender’s failure to register in a state-run database. In a lengthy opinion, Molloy found that Congress exceeded its authority by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction. Molly also held that a provision of the National Sexual Offender Registration and Notification Act is unconstitutional and dismissed a federal indictment accusing one sex offender of failing to register in Montana.

25 Years Later the Bill Becomes Law

The Adam Walsh Child Protection and Safety Act became law on the 25th anniversary of the abduction and murder of Adam Walsh on July 27, 1981, in Hollywood, Florida. Adam Walsh’s body was found 16 days after his abduction, and the perpetrator of the crime has yet to be found. John Walsh, Adam’s father, is the host of the television series America’s Most Wanted. John Walsh, along with the National Center for Missing and Exploited mounted an aggressive campaign for several years to get the bill passed into law.

Under the terms of the Act, failure to register and update information is made a felony under the law. It also creates a national sex offender registry and instructs each state and territory to apply identical criteria for posting offender data on the Internet such as the offender’s name, address, date of birth, place of employment, photograph, etc.

The Court’s Decision may have an Impact on Similar Cases

The case which declared the law unconstitutional was United States v. Waybright, No. CR 08-16-M-DWM (Dist. Mont. June 11, 2008). Bernard L. Waybright, 58, was convicted of a misdemeanor sex crime in a West Virginia state court in 2004. As part of his sentence, he was required to register under the federal Sexual Offender Registration and Notification Act, which keeps track of where sex offenders reside. However, Waybright ignored these rules when he traveled to Montana on several occasions and did not re-register with local law enforcement authorities, as required by federal law.

In the Court’s order for dismissal, Molloy dismissed the indictment finding that the enactment of a particular provision requiring all sex offenders to register, regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the United States Constitution. Molloy therefore declared the provision unconstitutional. “This would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life,” Molloy wrote in the opinion.  The Judge also found his decision could potentially clear the way for other similar indictments to be dismissed on the same grounds.