Sex Offender Registry

Judge Dismisses Challenge to Special Sex Offender Passports

The plaintiffs argued that the newly mandated stigma is unconstitutional.

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Last week a federal judge in San Francisco dismissed a constitutional challenge to the so-called International Megan's Law (IML), which requires special passports for sex offenders and authorizes notification of foreign governments when they travel. The lawsuit, filed last February by seven unnamed sex offenders who worry that the IML will impair their freedom to travel, argued that the law, which was enacted in February, violates the First Amendment by compelling speech, imposes retroactive punishment, violates procedural and substantive due process, and denies the plaintiffs equal protection. Phyllis Hamilton, chief judge of the U.S. District Court for the Northerrn District of California, ruled that the lawsuit was premature, since the passport provision has not been implemented yet, and in any case fails to state any valid constitutional claims.

Hamilton says the First Amendment claim is clearly erroneous, because "the information contained in a passport is unquestionably government speech." She makes similarly short work of the lawsuit's claim that the IML imposes retroactive criminal penalties, noting that both the Supreme Court and the U.S. Court of Appeals for the 9th Circuit (which includes California) have held that registration of sex offenders, no matter how far-reaching and life-crippling the consequences, is not punitive and therefore does not implicate the Ex Post Facto Clause. If so, Hamilton says, it cannot be punishment to pass along information about a sex offender to foreign officials, whether by means of a notice or through a "unique identifier," even if the upshot is that he cannot travel internationally and therefore cannot see his wife, do his job, attend to his business, or claim his inheritance in Iran without risking summary execution (all concerns raised by the plaintiffs).

As for the lawsuit's procedural due process claim, Hamilton says the plaintiffs got all the process they were due when they were convicted of the offenses covered by the IML. In her view, all the new law does is share information about those convictions with foreign authorities, who can do with it what they want. Why should the U.S. government be held responsible for the forseeable consequences of branding American citizens as pariahs, perverts, and predators, regardless of the risk they pose to public safety?

Turning her attention to the equal protection and substantive due process claims, Hamilton says the appropriate level of scrutiny would be the "rational basis" test, which is barely a test at all. "Rational basis review is 'highly deferential,'" she writes. That is an understatement. The only question under this standard, Hamilton explains, is "whether there is some conceivable rational purpose that Congress could have had in mind when it enacted the law." The IML is aimed at preventing "the commercial sexual exploitation of minors," which is a rational purpose. Whether the law actually serves that purpose is beyond the scope of rational basis review. So is the fairness and wisdom of including anyone convicted of "a sex offense against a minor," even if he never assaulted anyone and never demonstrated a propensity to visit other countries for the purpose of having sex with minors.

The law covers many such offenders, including streakers, public urinators, teenagers who have consensual sex with other teenagers, and even teenagers who take nude pictures of themselves. The passport and notification provisions apply decades after the offense, whether or not the offender currently poses a threat, and notification applies even to offenders who are no longer required to register. One of the plaintiffs, who "routinely travels to Europe and Asia for business purposes," was convicted 25 years ago. Another plaintiff, who committed a crime minor enough that he was sentenced only to probation and was initially told he would not have to register as a sex offender, will nevertheless have to carry a special passport. A third plaintiff had his 1998 conviction expunged, was reinstated as a lawyer, and is no longer listed in California's registry but is still covered by the IML's notification provision.

Stigmatizing these men as a threat to children everywhere for the rest of their lives may seem irrational, but that does not mean it fails the rational basis test. "Under rational basis review," Hamilton explains, "a law 'may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.'" Even if the IML is poorly designed to achieve its ostensible goal, Congress says it will protect children, and that's rational enough for government work.

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33 responses to “Judge Dismisses Challenge to Special Sex Offender Passports

  1. She makes similarly short work of the lawsuit’s claim that the IML imposes retroactive criminal penalties, noting that both the Supreme Court and the U.S. Court of Appeals for the 9th Circuit (which includes California) have held that registration of sex offenders, no matter how far-reaching and life-crippling the consequences, is not punitive and therefore does not implicate the Ex Post Facto Clause.

    Oh, for fucks sake. Just drop the pretense of fairness and drop them in the ocean, then.

    Turning her attention to the equal protection and substantive due process claims, Hamilton says the appropriate level of scrutiny would be the “rational basis” test, which is barely a test at all. “Rational basis review is ‘highly deferential,'” she writes.

    Thanks, progressives!

    1. yeh….pretty much.

      They are either “a continuing danger to society”, in which case removal from society is absolutely necessary.

      Or they are no longer a danger to society.

      The government can’t have it both ways. Frankly, dropping them in the ocean is better for everyone.

      1. That’s what always seems really crazy about the registries to me. If someone is so dangerous they can’t be within 1000 feet of a child, or whatever it is, they really should be locked up. And there is no reason why the vast majority of people convicted of statutory rape or indecent exposure or public lewdness or anything like that should be on a list.

  2. registration of sex offenders, no matter how far-reaching and life-crippling the consequences, is not punitive

    Until that is dealt with, nothing else matters

    1. You have been determined to be administratively executed by lethal injection. Nope, no reviewsies because it’s not a punishment. Just death.

    2. Yeah, somehow being deprived of their liberty to travel and live freely ex-post facto violates neither the 5th amendment nor Article I, Section 9, Clause 3. Because FYTW.

    3. The 6th Circuit Court of appeals applied the term “punitive” to the retroactive applications of restrictions tacked on to the Michigan state sex offender registry. Here is the article:

      https://reason.com/blog/2016/08…..x-offender

      This sets up what is called cross-circuit conflict and sets up an issue for review by the U.S. Supreme Court.

      Basically that judge has zero empathy for the plight of registered citizens to say “no matter how far-reaching or life-crippling the restrictions may be”. She was tacky by saying “they had all the due process they needed when they were convicted of the crimes that qualify them for this law.” She sounds like a woman with an axe to grind somewhere.

  3. Was it just my imagination, or did someone named Elizabeth Nolan Brown post some phantom AM links at 8:44 this morning, which subsequently vanished?

    1. shhhhhh…. it’s a ruse to throw Fist off his game

    2. Apparently you only get one bite at the AM Links

  4. It has the possibility of ruining their livelihoods and devastating their personal lives and it’s not punishment? They can waste as many words as they want saying this isn’t punitive but that is bullshit on its face. With credit to Orwell, this is something so stupid only a judge could believe it.

    1. Here’s the short and dirty:

      “If you commit a sex crime against a minor, you deserve whatever you get and nothing is too stigmatizing or disabling for the likes of pedophiles and ephebophiles.” That’s what the judge basically said.

      I whole heartedly DISAGREE with her on that. Anyone can change if they really and truly put their mind to it.

      She likes the registry law and its effects on offenders and intends to be intellectually dishonest and a judicial activist in order to preserve it.

      If the sex offender registry laws were to be subjected to a strict scrutiny test, they’d fall flat and every judge who refuses such a standard of review knows it!!!

  5. C’mon, ENB! Stop collecting links and just post it!

    1. She did already, and then they were gone.

      Obviously, it has been determined that we do not deserve AM links this morning.

      1. I guess we had it coming to us, huh?

        1. We know what we did.

          1. It wasn’t me! Really. [Hides “Matrons of Above-Average Temperature” pictorial material.]

  6. Honestly, I don’t disagree with the judge.

    That’s not to say I agree with the law as a law. But I don’t think it’s unconstitutional to have publicly available criminal records, nor to share such information with other countries, and the government can put whatever damning information it pleases on the IDs it itself issues.

    Any issues with the actual effectiveness or humanity of the law should be addressed legislatively, not judicially.

    1. It’s de facto additional punishment added on, in many cases, long after the person has done his/her sentence. If foreign governments seek out this information it’s available to them but we shouldn’t be just offering it up for the reasons stated in this article. But, hey, these people are sex offenders so fuck ’em, right?

    2. In many cases, other countries border control already have access to such information and can use it to exclude people if they want.

      I’m not sure where I’d come down on this. The main problem, as usual with sex-offender registry stuff, is that the requirements are overly broad and apply to people who really don’t pose a danger to anyone. If people are really so dangerous, keep them locked up. If not, let them get on with their lives. Or if there is to be a registry and scarlet letters on passports, at least only make it apply to people who pose a significant danger. Which, as you say, is something legislatures have to do.

    3. That’s bullshit. Legislators in the US are supposed to be free to enact arbitrary crap, they are supposed to be limited to a tightly constrained set of activities, and even there, they have to comply with constitutional constraints.

      The US Constitution does not give Congress the power to inform foreign governments about the past sexual or legal history of US citizens, hence lawmakers shouldn’t be able to pass laws that mandate that.

    4. That’s bullshit. Legislators in the US are supposed to be free to enact arbitrary crap, they are supposed to be limited to a tightly constrained set of activities, and even there, they have to comply with constitutional constraints.

      The US Constitution does not give Congress the power to inform foreign governments about the past sexual or legal history of US citizens, hence lawmakers shouldn’t be able to pass laws that mandate that.

  7. Phyllis Hamilton, chief judge of the U.S. District Court for the Northerrn District of California, ruled that the lawsuit was premature,

    Then what the fuck is the rest of the opinion about, you piece of shit? If the suit is premature, that’s it, there’s no case. Everything else you’re saying after that is pre-judging a hypothetical future case – which is a fucking violation of one of the first rules of judicial ethics you lying asshole bitch.

    1. Not only that, she was wrong. The law has been passed. There is clearly a real case or controversy here. You do not have to wait for the law to be implemented to challenge its constitutionality. Once it is passed, it is the law and can be challenged. The plaintiffs from what I can tell were not challenging the way the law was implemented. They are making a facial challenge to the law itself.

      This decision is just comically wrong on about five different levels.

      1. That hateful, spiteful, vindictive whore of a judge has an ax to grind somewhere. Maybe she or someone she knows is a victim of sexual abuse and is blatantly allowing personal bias override her duties as a judge to be neutral and objective. She sounds like “Heck, yeah! Bring on all the restrictions you can think of! I’ll put my stamp of approval on it!!”

  8. This isn’t a first amendment claim. The judge is right about that. This is, however, an ex post facto punishment. Had the judges and juries who sentenced these people known about this requirement, they very well might have given lighter sentences in light of the lifetime stigma associated with it. To now after they have served their sentences add this punishment is no different than passing a law that says they have to serve more jail time or more parole.

    As Lee Genes points out above, the heart of the problem with this decision is the judge’s finding that this isn’t punitive. That is an unreasonable finding.

    1. tar, feathers

    2. I think that some judges are starting to get real about the nature and intention of the registry and the laundry list of restriction attached thereto. That’s why I think Brock Turner got such a short confinement order. The judge knows the registry is a civil death penalty. I think that’s why some judges are backing off of long prison sentences. The registry laws are punitive and unconstitutional on their faces and all it takes is for a circuit appellate judge to apply a strict scrutiny test to the registry and consider the proportionality of the punishment to the crime. Also they need to evaluate the disproportionate nature of the penalty for failing to register. Basically offenders are being given a decade plus in prison for refusing to fill out paperwork.

  9. The opponents of “living constitution” thinking have been emphasizing until they’re blue in the face – if you can use creative “interpretation” to *add* rights to the Constitution, you can similarly use creative “interpretation” to *subtract* rights.

    The key rhetorical advantage of the living-constitution crowd, at least with people who feel warm and fuzzy about human rights, is that “we” (meaning judges) must be able to protect vulnerable minorities whose rights the founders were either too careless or too bigoted to protect. And that if we stick to the text of a constitutional clause, as illuminated by its original public meaning, you’re throwing oppressed minorities under the (segregated) bus.

    But in cases like this, the “evolving constitution” doctrine shows its fangs – it shows how we can take a constitutional provision like the ex post facto clause and piss all over its text and history in order to target vulnerable people.

  10. International Megan’s Law

    You have got to be shitting me.

  11. The law covers many such offenders, including streakers, public urinators, teenagers who have consensual sex with other teenagers, and even teenagers who take nude pictures of themselves.

    When are men going to take their balls back and resist this? I’m beginning to think that those conspiracy nuts who think the elite class is out to punish all men might just have a point.

  12. Somewhat ironically, there are countries around the world where the very crimes that landed these people on a list are not only perfectly legal but part of the fabric of their culture.

    Also, serious question, are we going to put a big letter ‘M’ on the passports of ex-murderers or do they get a pass? Because once you start calling out one subclass of criminal for extra disclosure, why not do it with people who have actually taken someone’s life from them? That seems like the worst possible crime, but apparently in reality the worst crime is having sex with your 17 year old girlfriend when you’re 18.

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