Sex Offender Registry

Judge Dismisses Challenge to Special Sex Offender Passports

The plaintiffs argued that the newly mandated stigma is unconstitutional.



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.