Challenge to “Scarlet Letter” travel law moves forward

passportLast week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status.  Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).

As the Wall Street Journal reported,

The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.

The suit, filed in early February, also claims that the law violates the Fifth Amendment’s due process protections and the Constitution’s Equal Protection and Ex Post Facto Clauses. As stated in the complaint, the IML

imposes significant burdens on the rights and protected liberty interests of Covered Individuals, including the right to international travel, the right to associate with family, economic liberty, and equal protection. Further, the IML stigmatizes Covered Individuals in a manner that substantially infringes on their protected liberty interests by communicating that Covered Individuals pose a current risk to public safety because they are engaged in, or at risk of engaging in, international child sex trafficking.

Ostensibly, the IML is meant to curtail international child sex trafficking and sex tourism, but it will undoubtedly effect a huge number of Americans who pose little or no risk of engaging in such activity. From the Journal:

The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.
….

International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to [the plaintiffs’ attorney]. Nor does it exempt those who were minors at the time of their offense.

Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about [200,000] of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court.

“This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”

The Journal reports that many American sex offenders have been subjected to a similar “travel blacklist” for nearly a decade under an Immigration and Customs Enforcement (ICE) program called Operation Angel Watch:

U.S. Immigration and Customs Enforcement agents launched Angel Watch as a pilot program in California in 2007. Under the program, ICE shares publicly available information from U.S. sex-offender registries with its foreign counterparts “to utilize as they deem appropriate,” according to a summary of the program turned over in response to a Freedom of Information Act request.

[The federal Adam Walsh Child Protection and Safety Act of 2006] requires registered sex offenders to notify local law-enforcement authorities of their plans to travel abroad at least 21 days in advance. In fiscal 2014, ICE sent 2,291 notifications to authorities in more than 120 countries, up from 637 alerts in 2012, the summary shows.

Mexico accounted for more than half of the Angel Watch notices in 2014, while the Philippines, the next highest, received about 15%, according to the summary. Nearly 500 of the travelers flagged by Angel Watch were denied entry into their destination country that year, the documents show.

The IML essentially codifies and expands upon the existing “Angel Watch” program.  From the Journal:

Homeland Security officials and lawmakers said the International Megan’s Law would bolster the program. “The countries of destination lack sufficient resources to deal with the rising number of child predators,” Rep. Ed Royce, (R., Calif.) chairman of the House Foreign Affairs Committee, said while introducing the bill in January.

The passport identifier requirement is a major expansion of the pre-existing policy, and one that has no precedent under U.S. law, according to the complaint: “For the first time in the history of the United States, American citizens will be forced by the government to label and stigmatize themselves on a document foundational to citizenship.”

Regardless of the ILM’s constitutionality or desirability, the fact that such a sweeping law was ushered through Congress with little debate and no real opposition is indicative of the the unique stigma reserved for those that the law brands as “sex offenders.”  That the President was willing to sign such constitutionally problematic legislation speaks volumes about his disposition to pick a fight at this stage of his presidency.

A ruling on the motion for a preliminary injunction has not yet been issued. We will continue to provide updates as the litigation moves forward.

The plaintiffs’ complaint is available here and links to additional commentary are listed below.

 

 

 

*The law’s full title is “International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders”

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