A law of passion, not of principle, nor even purpose: a call to repeal or revise the Adam Walsh Act Amendments to the Bail Reform Act of 1984.

• Author: Handler, Michael R.

1. INTRODUCTION

   On July 27, 2006, George W. Bush signed the Adam Walsh Child Protection and Safety Act of 2006 (AWA). (1) Standing next to him was John Walsh, the father of the AWA's namesake. (2) Exactly twenty-five years earlier, Adam Walsh, who was six years old at the time, was abducted and murdered. (3) However, John Walsh did not receive the privilege of standing next to President Bush as he signed the AWA because his son was a victim of the type of crime against children the AWA was intended to protect. Instead, John Walsh was likely given the honor because he was also the host of America 's Most Wanted, a long-running show on the FOX network devoted exclusively to apprehending extremely dangerous fugitives. In addition to helping catch the criminals that America 'S Most Wanted features on the show, Mr. Walsh and his program have been lauded for their role in helping bring the threat of crime, especially sexual offenses against children, to the forefront of the public's mind. (4)

   John Walsh and his television program were instrumental to the passage of the AWA. (5) The success of America's Most Wanted and other shows inspired by its success, including NBC's To Catch a Predator and CNN's Nancy Grace, have helped create a public panic about the threat of child sex offenders. (6) This panic has created a demand for Congress to enact laws that in many other contexts would be considered draconian. (7) Philip Jenkins explains how, during a panic, "concern over sexual abuse provides a basis for extravagant claims-making by professionals, the media, and assorted interest groups, who argue that the problem is quantitatively and qualitatively far more severe than anyone could reasonably suppose." (8) Fear mongering, in turn, produces excessive and ill-considered legislative responses, with lawmakers adopting new policies that "may cause harm in areas having nothing to do with the original problem and that divert resources away from measures which might genuinely assist in protecting children." (9)

   Much of the AWA--including the AWA Amendments to the Bail Reform Act of 1984 (BRA)--is exactly the excessive and ill-considered legislative response that Mr. Jenkins warns is characteristic of Congress making laws in response to a panic. In enacting the AWA, the federal government for the first time sought a prominent role in sex offender policy, substantially expanding prior federal efforts to regulate and punish sex offenses, (10) The AWA was formed from a conglomeration of bills that were before Congress at the time and includes many different laws. Scholars and appellate courts have vociferously debated the constitutional and practical merits of many of the AWA's laws. Such laws include the Sex Offender Registration and Notification Act (SORNA), which requires that a sex offender register in any jurisdiction where he or she resides, works, or is a student, (11) and the Jimmy Ryce Civil Commitment Program, which authorizes the federal government to civilly commit, in a federal facility, any "sexually dangerous" person "in the custody" of the Bureau of Prisons--even after that person has completed his prison sentence. (12)

   Commentary on the AWA Amendments to the BRA, however, is conspicuously missing from the literature on the AWA laws, even though the Amendments also raise significant constitutional and practical concerns. Before the AWA Amendments were passed, a judicial officer exclusively decided, on a case-by-case basis, whether to release a defendant, whether to impose pretrial release conditions, and what pretrial release conditions to impose. (13) The AWA Amendments, in contrast, impose mandatory pretrial release conditions, including electronic monitoring and curfew, on all defendants charged with certain enumerated sexual offenses against children. (14)

   This Comment argues that Congress must repeal the AWA Amendments or, in the alternative, revise them so defendants can avoid the imposition of these now mandatory release conditions with rebuttal evidence that the conditions are not necessary to ensure the public's safety. First, the AWA Amendments must be repealed or revised because they are unconstitutional on their face as a violation of the Excessive Bail and Due Process Clauses. Second, the Amendments' imposition of mandatory pretrial release conditions is inconsistent with one of the core principles of federal pretrial release under the BRA--judicially determined individualized bail. Lastly, the Amendments do considerably more harm than good because costly pretrial release conditions are imposed automatically even when they are unnecessary to ensure the public's safety.

   This Comment proceeds in six parts. Part II provides an overview of federal pretrial release and detention under the BRA, the Supreme Court's decision in United States v. Salerno upholding the BRA's constitutionality, and the AWA Amendments to the BRA. Part III describes how the federal judiciary has reacted to the AWA Amendments. Part IV argues that the AWA Amendments must be repealed or revised. Part V proposes a revision to the Amendments that fulfills Congress's original purpose in enacting the Amendment while fixing the problems described in Part IV. Part VI concludes.

2. BACKGROUND

   1. THE BAIL REFORM ACT OF 1984

      The history of federal bail legislation begins with the Judiciary Act of 1789, in which Congress mandated that bail be granted to all defendants accused of noncapital crimes. (15) Yet, the use of bail was so inconsistent in the mid-twentieth century that Congress passed the Bail Reform Act of 1966. (16) One commentator notes that "[b]efore 1966, federal courts relied on bail 'almost exclusively' to ensure a defendant's presence at trial." (17) The Bail Reform Act of 1966 required the federal courts to release any defendant charged with a non-capital crime on his or her recognizance or an unsecured appearance bond unless the court determined that the defendant would fail to appear for trial under such minimal supervision. (18)

      The Bail Reform Act of 1984, part of the Comprehensive Crime Control Act of 1984, when initially passed "effected a dramatic overhaul of the nature and function of federal pretrial release proceedings." (19) Section 3142 changed prior law dramatically by including "the nature and seriousness of the danger to any person or the community that would be posed by the person's release" as a factor a judicial officer must consider in determining conditions of pretrial release. (20) The change in the law reflected "the deep public concern ... about the growing problem of crimes committed by persons on release." (21)

      The BRA requires a hearing to determine whether any condition or combination of conditions of release would protect the safety of the community and reasonably ensure the defendant's appearance. (22) The BRA also places the burden on the government to establish the defendant's dangerousness by "clear and convincing evidence." (23) In a bail hearing, the BRA aides the government by including a rebuttable presumption in favor of detention based on risk of flight and protecting public safety in two categories of cases: (1) where the defendant has, while on pretrial release in the preceding five years, committed and been convicted of one of the offenses for which a detention hearing may be held; or (2) where the defendant is charged with a major drug offense or certain firearm offenses. (24) Thus, while Congress left "[t]he pretrial fate of other defendants subject to a hearing who pose a specific and unrestrainable danger before trial ... entirely to courts to be determined on a case-by-case basis," the establishment of presumptions of dangerousness and flight in the BRA gave Congress some control over the pretrial process that otherwise would be left to the courts. (25)

      Aside from the BRA's "presumption of dangerousness" provision, "Congress hesitated to go very far in specifying what characteristics should receive the most weight in the determination of dangerousness." (26) Instead, Congress put in place extensive procedural mechanisms in an effort to increase the accuracy of judicial determinations of future dangerousness. (27) At a bail hearing, the defendant has the right to counsel, the fight to testify, the opportunity to examine and cross-examine witnesses in support of or against future dangerousness, and the right to present information by proffer. (28) The judicial officer must take into account certain statutory factors and find by clear and convincing evidence that no conditions of release are adequate to ensure public safety, giving written findings of fact and reasons for his determination. This decision is also subject to immediate review. (29)

      If the judicial officer finds that detention is not necessary to ensure public safety, the judicial officer may release the defendant on personal recognizance or unsecured appearance bond. (30) If such release "will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community," (31) the judicial officer must impose "the least restrictive ... condition, or combination of conditions, that ... will reasonably assure the appearance of the person as required and the safety of any other person and the community." (32)

   2. UNITED STATES V. SALERNO AND THE CONSTITUTIONALITY OF THE BRA'S PRETRIAL DETENTION PROVISION

      In United States v. Salerno, the Supreme Court held that the Bail Reform Act's pretrial detention provision was constitutional. (33) Although the AWA Amendments to the BRA concern situations where a defendant is released on bail pursuant to [section] 3142(b), Salerno's rejection of due process and excessive bail challenges to the BRA's detention provision informs the constitutional analysis of the AWA Amendments' mandatory pretrial conditions. (34)

      First, the Court rejected the argument that the BRA's authorization of pretrial detention constitutes impermissible...