Tag: international megan’s law

Sex offender passport law survives challenge

A federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel.  The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect. In her September 23 ruling, Judge Phyllis J. Hamilton, chief judge of the Northern District of California, found that the suit was premature since the law has not yet been fully implemented, reiterating her reasoning in denying preliminary relief last spring.  But Judge Hamilton also reached out to decide the constitutional claims raised by the plaintiffs, finding each of them without merit in light of the governmental interest at stake. At the same time, Judge Hamilton stressed that the plaintiffs had challenged the law on its face, leaving open the possibility of successful challenges to its application in specific cases down the line.  In his analysis of the decision at Reason.com, Jacob Sullum suggests what such an as-applied challenge might look like: 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. Applying the law to such individuals may seem irrational and cruel, but a facial challenge is not concerned with individual instances of injustice: 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. It remains to be seen how the law will be implemented, and whether relief or waiver provisions will be included to avoid problems of overbreadth.       Read more

Scarlet Letter law can move forward — for now

A federal judge in the Northern District of California has declined to block enforcement of the so-called “Scarlet Letter” provision of the recently-enacted International Megan’s Law (IML). U.S. District Judge Phyllis Hamilton ruled on April 12 that a challenge to the requirement that sex offenders’ passports be marked with a unique identifier was not ripe for injunctive relief, “because significant steps must be taken before the passport identifier can be implemented,” and because “it is unclear how the provision will be implemented.” The court also held that the plaintiffs did not have standing to challenge a separate IML provision requiring notification of a registered sex offender’s intended foreign travel. Respecting the IML passport identifier provision, the court pointed out that the statutory language makes clear that no such requirement is yet in effect, and that it will not take effect until after the Secretaries of Homeland Security and State and the Attorney General have developed a process for implementation, submitted a joint report to Congress regarding this proposed process, and, finally, certified that the process has been successfully implemented. See IML §§ 8(f), 9(a)-(b). Citing a State Department declaration, the court pointed out that “the State Department ha[s] not completed the necessary process to begin implementation of § 8, and thus no U.S. passports have received the unique identifiers required by the IML.  Nor is the State Department prepared to begin placing such identifiers on U.S. passports at this time.” Moreover, based solely on the statutory language, it is not clear, for example, what form the identifier will take, which citizens will be required to carry a passport with the identifier, or whether the identifier will appear on the face of the passport or will be readable only by a scanner. Accordingly, the plaintiffs were “unable to clearly articulate which acts they seek to have enjoined or why.” And it may be some time before they are able to do so.  The State Department’s “best estimate” is that it will not be prepared to implement the passport identifier provisions “until at least some time in the fourth quarter of calendar year 2016.”  Moreover, regulations on issuance of passports under the IML may be subject to notice and comment, which could push full implementation back even further. Finally, the court noted that at the hearing, plaintiffs’ counsel indicated that plaintiffs would not oppose the passport identifier “if it were limited to [those with] convictions for child trafficking and tourism.” In other words, plaintiffs do not necessarily seek to enjoin the entire passport identifier provision. Plaintiffs’ counsel reiterated that the purpose of the IML was to address child sex trafficking, which she asserted was not what her clients were convicted of and not what resulted in their being required to register as sex offenders. This raised a question for the court as to whether plaintiffs are mounting a facial constitutional challenge to the law, as they claim, or an as-applied challenge. A separate challenge to the IML’s requirement that the United States notify foreign countries of forthcoming visits by U.S. sex offenders, fell victim to similar threshold issues.  In assessing the plaintiff’s likelihood of success, the court ruled that the plaintiffs lacked standing to maintain the claim because they were already subject to similar notification requirements via programs currently operated by the U.S. Marshall’s Service and Department of Homeland Security: Both the USMS and ICE HSI have had international notification provisions in place for over five years, and representatives of both agencies have indicated that the agencies do not anticipate that the nature of their notifications will change as a result of the IML. Moreover, the Operation Angel Watch and USMS notification schemes currently in effect utilize procedures to identify only registered sex offenders who travel, and do not make notifications regarding persons not currently subject to registration requirements. Because plaintiffs are not challenging the pre-existing notification provisions, they have not shown that an alleged injury resulting from implementation of the IML would be redressable. Further, any injury that plaintiffs might be asserting relating to such notifications would not be fairly traceable to the IML, and cannot be said to be “certainly impending.” In light of these facts, the court finds that plaintiffs cannot show a likelihood of success on the notification claim. The government justifies the passport identifier requirement as an attempt to close a loophole in the current notification scheme, whereby a person can travel to an intermediate country then proceed to their final destination in a third country. The court also rejected an argument that the notification provisions violated the Fifth Amendment by burdening the fundamental right to travel, citing Supreme Court cases for the proposition that no constitutional right to international travel has been recognized by the courts. We will continue to follow the case.   Read more

Challenge to “Scarlet Letter” travel law moves forward

Last 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. International Megan’s Law: America’s Global Embarrassment (Huffington Post) An important step to reduce child sex tourism (Rep. Chris Smith (R – N.J.), sponsor; Washington Post) The yellow star, the scarlet letter, and ‘International Megan’s Law’ (Volokh Conspiracy) Do sex offenders deserve a scarlet letter on their passport? (L.A. Times)       *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” Read more