The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When I was growing up, in a Jewish family in Brooklyn in the 1950s, Hitler and the Holocaust were common subjects of conversation in my household. Though at the time it all seemed like ancient history—along with the Civil War, the Black Death, the fall of Rome, and everything else that had ever happened before I was born—I realized, when I became an adult, that to my parents and their generation it must have seemed as though it had happened the day before yesterday.
I remember asking my dad, when he had been talking about the roundup of the Jews and the infamous "yellow star," a simple question that deeply puzzled my 7-year-old brain: How did the Germans know who to round up? How did they know who was, and who wasn't, Jewish? My own family wasn't observant in the least—we didn't go to synagogue, or celebrate the Jewish holidays, I didn't go to Hebrew School, etc.; so if they were rounding up all the Jews in Brooklyn, how would they know about us?
And I vividly remember his reply: They knew it because in Germany, they recorded your religion on your birth certificate, and on all your other important government documents (ID card, passport, etc.). [I'm not sure that that was entirely accurate—but it does capture the substance of the matter***]. And, he reassured me, we—here in the United States—don't allow that sort of thing.
I was reminded of all that by a provision in a statute that recently sailed through the House and Senate: "International Megan's Law" (IML for short), ostensibly designed to "prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders."
The statute (full text here) requires the secretary of state to affix a "unique identifier" on all passports issued to "covered sex offenders"—a "visual designation affixed to a conspicuous location on the passport indicating that the individual is a covered sex offender." A "covered sex offender" is anyone previously convicted, at any point in his/her life, for a sex offense involving a minor.
It is, as far as I can determine, the first time in U.S. history that any such special designation will appear on the passports of any U.S. citizens, and I think it should send at least a small chill down all of our spines. Not to overdo the analogy, but it does call to mind Martin Niemoller's famous dictum ("First they came for the communists . . ."). It is part and parcel of a dispiriting and disheartening campaign (on which I have commented a number of times in the past—see e.g. here, here and here) piling punitive disability upon punitive disability—not just public shaming, but also restrictions on residency locations, employment, Internet use, etc.—on this particularly despised class.
Passports are not merely the necessary implements for international travel—they are a basic badge of citizenship, and they are used for all sorts of identification purposes (opening a bank account, getting a job, getting a driver's license) having nothing to do with international travel. There is something truly odious—"Scarlet Letter"-esque, one might say—about requiring people to bear, for their entire lives, this conspicuous badge of dishonor, whatever their prior crime (for which they have already been duly punished) may have been. And the fact that the category of "covered sex offenders" includes many thousands of people whose crime involved consensual sexual relations with an underage partner, in many cases when they themselves were teenagers, just serves to make it seem even more wildly disproportionate; the notion that this entire class is somehow predisposed to engage in child sex trafficking is nonsensical, and squarely at odds with the actual recidivism data.
It is fundamental to our notions of a free society that we do not punish people because we fear that they might commit a crime in the future, even if we would be safer if the government locked up all potential murderers, rapists, robbers and sex offenders. Disrupting the horrific international sex-trafficking industry is a laudable and important goal—but surely there is some line beyond which the government may not go in ostensible pursuit of that goal, and in my eyes this statute crosses it.
***UPDATE: Turns out he wasn't far off from the truth; here's a write-up from the US Holocaust Museum's Timeline:
German Jews' Passports Declared Invalid
On October 5, 1938, the Reich Ministry of the Interior invalidates all German passports held by Jews. Jews must surrender their old passports, which will become valid only after the letter "J" has been stamped on them.
The government required Jews to identify themselves in ways that would permanently separate them from the rest of the German population. In an August 1938 law, authorities decreed that by January 1, 1939, Jewish men and women bearing first names of "non-Jewish" origin had to add "Israel" and "Sara," respectively, to their given names. All German Jews were obliged to carry identity cards that indicated their heritage, and, in the autumn of 1938, all Jewish passports were stamped with an identifying red letter "J". As Nazi leaders quickened their war preparations, antisemitic legislation in Germany and Austria paved the way for more radical persecution of Jews.
Thanks to Paul Rigney for the pointer.]