Criminal Justice

Obama Could Still Stop 'Megan's Law' From Making Sex Offenders Get Special Passports

For the first time in U.S. history, some citizens may be singled out for scarlet letters on their passports.

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timsackton/Flickr

Both the U.S. House and Senate have signed off on a bill to brand registered sex offenders as such on their passports and require federal officials to notify foreign governments whenever certain offenders intend to travel there. The bill is now on its way to President Obama; it's unclear whether he'll sign. 

If he does, it will be "the first time in U.S. history that any such special designation will appear on the passports of any U.S. citizens," writes lawyer and New America Foundation Senior Fellow David Post at The Volokh Conspiracy, "and I think it should send at least a small chill down all of our spines."    

Dubbed "International Megan's Law," the measure—sponsored by Rep. Chris Smith (R-N.J.)—says the secretary of state must impart a "visual designation" in "a conspicuous location" on the passports of all "covered sex offenders." Covered sex offenders include anyone whose victim was a minor. 

This is where people start to lose sympathy—for better or worse, most can't muster much concern for the constitutional rights of rapists and child molesters. But because of our overbroad sex-offender registry requirements, "covered sex offenders" may include teens who text each other explicit photos, men who offer to pay for sex with someone who is—known or unbeknownst to them—under 18, and statutory rape cases where the the age disparity between offender and victim is small and the relationship consensual. These people are already required to register with state and federal officials as sex offenders, thereby subjecting them to rules about where they can live, work, etc. Now they may face a lifetime of trouble traveling and perhaps even be prevented from entering certain countries entirely

Beyond the injustice of it, there's no evidence that the law—applied broadly or even only to those accused of the most serious sex crimes—would actually thwart international human trafficking or sex tourism, the stated goal of the bill according to Rep. Smith. For one thing, the passport requirement would only apply to sex offenders done serving their sentences, obviously. But we have little reason to think most of these people will reoffend. As Reason contributor Lenore Skenazy points out at the New York Post, "the general belief is that sex offenders have one of the highest recidivism rates around—that they get out of prison only to offend again. Surprisingly, the opposite is true." A Bureau of Justice report places the sex-offender recidivism rate at 5.3 percent, a recidivism rate lower than any crime other than murder. 

What's more, when it comes to those who have committed the most heinous crimes or are the most likely to reoffend, we already have a mechanisms in place to either prevent them from getting passports or notify foreign governments when they're traveling abroad. The Secretary of State can deny passports to people convicted of certain sex crimes, and Immigration and Customs Enforcement's (ICE) "Operation Angel Watch" already notifies foreign officials when Americans convicted of certain sex crimes are traveling there.

And the reason ICE knows the travel habits of these sex offenders? Because all people on state sex offender registries—regardless of why they're there or how long ago their crimes were committed—are required under federal law to "inform his or her residence jurisdiction of any intended travel outside of the United States at least 21 days prior to that travel." 

The new law would build on this, also establishing the feds must notify foreign officials whenever covered sex offenders intend to travel there, adding the special seal to covered sex offender passports, and setting up an "Angel Watch Center" within the Department of Homeland Security. The Angel Watch Center would receive information from foreign governments about sex offenders traveling to America and share this information with the Justice Department and state and local law-enforcement agencies, thereby instituting a globally coordinated system to monitor the movements of ostensibly free people. Congress has authorized $6 million per year for 2017 and 2018 to carry out the act's provisions. 

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  1. “A Bureau of Justice report places the sex-offender recidivism rate at 5.3 percent, a recidivism rate lower than any crime other than murder. ”

    And the recidivism rate for murder is so low because murderers go to jail so long. If you get 30 years for homicide, it’s unlikely you’ll be killing many more people when you get out at the age of 65.

    So effectively sex crimes have the lowest recidivism rate. I do think you’d have to break this up by sex crime though because there might be a vastly different recidivism rate for minor sex crimes as opposed to rape.

    1. Can we get those recidivism rates broken out by race?

      Just sayin’….

      1. It would be pointless. White people don’t commit crimes.

        Goddamn, normals who stumble on today’s threads are going to be so confused.

        1. Today’s threads?

          You’d better just be glad I’ll be working during the day full time again later this week. I could drag this out for months.

        2. The racist known as Irish is right! Woo!
          /fires matched .36 caliber revolvers in air

    2. That’s still way higher than the recidivism rate for the crime of suicide.

      1. The System works!

        1. No it doesn’t. 95% of sexual abuse is and always has been committed by those NOT on the registry.

          The only thing shown to actually help stop and prevent sexual abuse is education and prevention programs.

    3. So how did the rumor of high recidivism get started?

      1. It became more “known” when Smith vs Doe was being heard in the US Supreme Court. Prior to being added to the Supreme Court, Robets referenced to a paper that wasn’t peer reviewed and had no evidence to support its claim, when defending the registry requirement in Alaska.

        Multiple studies have been conducted, both at the State and Federal levels, and each of them prove “sex offenses have a high reoffense rate” a complete fabrication.

  2. Yes, but then enterprising places that don’t have any illusions about their main tourism industry could really profit off of this.

    Thailand and the Philippines could offer visa discounts and other perks/benefits to people who have these special passports.

    1. The Philippines already offers visa free travel to American sex tourists.

    2. Both Thailand and the Philippines have laws explicitly excluding registered sex offenders from entry. Travelers are, and have been, excluded as a result of U.S. notification laws for several years.

      1. Can you please provide a source? I can’t find any evidence of this. I’m interested in Thailand in particular.

  3. Obama could also take marijuana off the list of schedule I drugs, and I do not think he is going to do that either.

  4. At the very least, it seems like something a judge should have to include in a sentence.

    I don’t understand how they can just arbitrarily add to your sentence after the fact.

    1. Smith v. Doe, 2003 SCOTUS decision, states that you can do almost anything to a sex offender ex post facto and that it will not be considered punishment but instead “regulation”. By calling it “regulation” they manage to skirt Constitutional prohibitions on ex post facto punishment.

      This is how the online registry, residency restriction laws, professional red-lines and licensing, and presence restrictions for RSOs have all survived constitutional challenge.

      So they are “regulatory” and yet carry draconian criminal penalties (10 years in prison) for failure to fully comply.

    2. They argue that is civil requirement, not punative. But everyone knows that they ARE punative in nature.

  5. You know who else got special passports and were branded…

    1. Yep, we are in the same boat as Nazi Germany and Communist Russia.

  6. The terrible consequence of laws like these is that fairly normal kids sexting each other are lumped in with the guy who consistently rapes his 5 year old stepson. Of course, the numbers look a lot bigger that way ( teenagers sexting each other outnumber child rapists), so it gets more funding and more “experts” making careers for themselves.

    1. Regardless of someone’s crime, the now rather quaint notion of serving one’s time and exhausting one’s debt to society having done so are now out the door. Given the dramatically low reoffense rates (which are across the board for all sex offenders, btw and may be much lower than the oft-stated 5%, and which may be 1.8%) there can be no Constitutional justification for these laws against any Registrant.

  7. The Angel Watch Center would receive information from foreign governments about sex offenders traveling to America and share this information with the Justice Department and state and local law-enforcement agencies, thereby instituting a globally coordinated system to monitor the movements of ostensibly free people

    Yeah, no way Obama’s going to veto that.

  8. This reminds me of France’s new law to strip passports from people who are convicted of ‘terrorism’. Which in France is a pretty broad definition. I’m grateful to people like Volokh and Post who will stand up to this kind of abuse. The criminal justice system makes tons of money off branding people with the lifetime scarlet letter and on top of that they try to criminalize normal behavior such as consensual sex in which one participant fails to give ‘affirmative consent’ at every stage and subsequently regrets the interaction for one reason or another.

  9. Obummer could veto but he won’t because just like all those spineless Congressmen, he wouldn’t dare get in the way of Predator Panic. The Kristallnacht will be next on the agenda.

    1. Well, that escalated quickly.

  10. Why don’t they just publicly hang them and get it over with?

  11. what the fuck is wrong with republicans in NJ? (assuming it’s something different than the usual reasons republicans or anything to do with NJ suck)

  12. They came for the Jews, and I said nothing because I was not a Jew……

    Isn’t it time we got over the puritan sex thing?

  13. I could support this bill if the provisions include branding those making false rape allegations as “sex offender”.

  14. The registry is a false sense of security. 13 year old Nicole Lovell was murdered, for instance, by someone NOT on the registry. The registry has no value other than allowing bad parents to make poor decisions and blame others when it goes wrong. Making citizens “wear a star” isn’t going to stop these crimes. Only good parenting.
    https://www.youtube.com/watch?v=pYt-3fai-PI

  15. More details about the bill and why it’s wrong from the Identity Project (PapersPlease.org):

    Congress votes to stigmatize and surveil the travel of second-class US citizens

  16. I was greatly disappointed in Obama on this. This is repressive and serves to extend our prison walls to surround the US borders. Of course there were enough votes to pass without his signature so I would have felt better if he had just let it lie unsigned to keep his hands clean.

    There are some legal issues I cannot help but raise. Federally issued passports required to include an identifier of a state issued conviction? What about cases where an offense in one state lands a person on “the list” while the exact same behavior in another state does not? What about pissing in the ally? Romeo and Juliet cases? Cases where no minors were involved?

    I expand on this in my own blog here: http://joethevoter.org/index.p…..-revisited Comments welcome.

  17. First they came for the sex offenders…

    So who will be next on the shaming list? If the US ever issues Edward Snowden with a new passport will he be required to have a large red “L” (for leaker”) displayed on it? To warn off prospective countries of asylum perhaps.

    What about Muslims? Will a President Trump require American Muslims to have a red “P” (for potential terrorist) displayed on their passports?

    I find it difficult to believe that here we are in 2016 yet the US is following in the same footsteps Nazi Germany went along when it forced Jews to have a red “J” placed on their passports back in 1930s.

  18. Fantastic analysis . I was enlightened by the details , Does someone know if my assistant would be able to get a template CA FTB 592 form to fill out ?

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