In a clash that has surfaced in federal courthouses across the country and a recent Houston case, a collection of judges have held it is their duty to set conditions of release for accused sex offenders despite a strict law that limits their discretion.

The constitutional conflict hinges on whether judges or lawmakers should decide how these defendants live their day-to-day lives after they are arrested. It touches on public safety, just treatment and whether the judiciary or legislative branch should determine bail conditions for a category of people accused of crimes involving children.

The ongoing dispute flared up locally in April when U.S. District Judge Lynn N. Hughes ordered court officials to remove the ankle monitor of a man named Sam Robinson who had just admitted to engaging in a sexually explicit video chat involving a child. The tracking device Robinson had been wearing was excessive, Hughes said, since the teenage girl in the streaming internet exchange was “halfway around the world” in the Philippines.

Like other judges, Hughes bristled at the notion that his duty to set bond was being usurped by a 2006 sentencing law that mandates inflexible conditions of release in child pornography and child sexual assault cases. Like others on the bench, he noted that the defendant before him had not been accused of having any physical contact with a child.

“He looked at pictures,” Hughes told a prosecutor who objected to him removing the tracking device. “You have no evidence he ever molested a child.”

The move by Hughes reflects a steady trend among a small collection of federal judges who have ruled that the Adam Walsh Child Protection and Safety Act is overly restrictive. The George W. Bush era act expanded the role of the federal government in handling sex crimes involving minors in order “to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” Legal journals note that the Walsh amendments were tacked onto the bill just seven days prior to its passage without substantive debate or legislative findings.



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