Criminal Justice Federalism and National Sex Offender Policy

Abstract

This paper, part of a symposium, examines the federal government's sustained effort to recast state policies regarding sex offender registration and community notification laws. While commentators have typically focused on federal Commerce Clause-based incursions on state criminal justice authority, with registration and notification the U.S. has invoked the Spending Clause, a less controversial yet more invasive strategy, driving outcomes nationwide, not merely within the federal system alone. As a result, borrowing from Justice Harlan, the U.S. has "fasten[ed] on the States federal notions of criminal justice" in a major way.

After providing an overview of the historic reluctance of the U.S. to intrude upon state police power authority, the paper traces the modern dissolution of this resolve, focusing in particular on federal efforts to impose national registration and notification policy. The enterprise began in 1994 with the Jacob Wetterling Act, and culminated in 2006 with enactment of the Adam Walsh Act, marking the zenith (to date) of federal efforts to nationalize sex offender policy. The paper then examines the numerous federalism-related implications of the federal incursion, as well as why it has failed to prompt resistance. The paper concludes with a discussion of whether, in instrumental terms, the federal government is well-suited to serve as a national criminal justice policy maker, and presuming its continued determination to insist on such a role, the nature and form it should take.

Keywords: federalism, sex offender, megan's law, registration, community notification