Walsh Act Watch: The Pseudo-Extension (Updated)

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Note: This piece was corrected on December 16 to clarify that the legislation, not the Department of Justice, is responsible for the so-called "pseudo-extension."

The Justice Department can’t give another extension to states who haven’t implemented the Adam Walsh Act. But based on what a Justice Department official told the Federal Advisory Council on Juvenile Justice (FACJJ), there is an end-around of sorts in the Walsh legislation that allows the department to give states more time before they actually lose federal money.

Follow along:

States have until July of 2011 to be deemed substantially compliant by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART). Only four have complied thus far – Ohio, Delaware, Florida and South Dakota – so plenty of states will be short of implementation in July.

SMART office director Linda Baldwin mostly dodged questions from FACJJ California delegate Sandra McBrayer about how many states might make it.

“It won’t be 80 percent,” Baldwin offered.

States were supposed to line up with Walsh by 2009, but the law allowed for Attorney General Eric Holder to offer two extensions. Now, Justice has to impose the following penalty on states that don’t: a 10 percent cut to the state’s Byrne Justice Assistance Grant.

But…

Baldwin said states that were going to be penalized could apply to use that 10 percent of the Byrne Grants for efforts to move towards substantial implementation. So instead of a significant loss in federal funds, the penalty would become having to use that 10 percent on the very effort they were supposed to have already made to avoid losing the money.

The offer emanates from this part of the Sex Offender Registration and Notification Act, which is a major aspect of the Walsh Act:

Amounts not allocated under a program referred to in this section to a jurisdiction for failure to substantially implement this title shall be reallocated under that program to jurisdictions that have not failed to substantially implement this title or may be reallocated to a jurisdiction from which they were withheld to be used solely for the purpose of implementing this title.

Quite the creative fix. There were three main concerns keeping most states from complying with Walsh: the potential cost of setup and more rigorous monitoring, the inclusion of juveniles on the national registry, and conflicts between the Walsh rules and state law.

Exceptions have been made for state-federal conflicts, so states do not have to implement a part of Walsh that contradicts state constitutions or settled case law.

The juvenile issue will be partially addressed in new supplemental guidelines that should be finalized soon. States will be able to keep a juvenile shielded from the public registry and include him only on a list viewable by law enforcement. 

Re-granting the Walsh penalty would somewhat address the cost factor. It quite literally buys time on the start-up costs in a year when most governments are strapped for cash. It does not address states’ fears of the long-term maintenance cost.

Some other quick notes on the Walsh Act:

- There are currently 16 states or territories that have reached the “implementation review” stage with the SMART office, and another 21 in “preliminary review.” Another 15 have submitted early information for review by the staff. So there is a decent chance that half of the states could be substantially compliant by July, more likely it will be under half. 

- We don’t envy the next few months in the lives of Stephanie LoConto, Scott Matson, and Lori McPherson. Those three are the policy advisors for the SMART office, who will have to either shepherd 52 states and territories to compliance in the next six months or at least work with them on a spending plan for the penalty money.

- Another “wild card” in the Walsh Act saga is litigation. A state with a fairly sophisticated sex offender monitoring system may not incur huge costs by complying, but defending itself from legal challenges to Walsh is a different story. Nevada, Ohio and South Dakota have already been subject to Walsh-related litigation.

“The 10 percent [penalty] will pale in comparison to the litigation costs,” FACJJ Ohio delegate Yeura Venters said.