« Oklahoma creates Death Penalty Review Commission full of prominent folks .... which will likely achieve ....? | Main | "Sentencing Reductions versus Sentencing Equality" »

March 30, 2016

Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law

ImagesAs reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:

A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.

The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.

The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. 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.

“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.

The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.

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.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....

Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.

Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”

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 Ms. Bellucci. 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.”

March 30, 2016 at 07:20 AM | Permalink


Sex offenders loose their constitutional rights the minute they were convicted as a sex offender.
The scarlet passport provision should be upheld.

Posted by: Breathren | Mar 30, 2016 11:30:33 AM


Learn to spell!

"encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S."

Since many countries have an "age of majority" which is less than the US of A, a "legal" act in their country could be illegal here, and place them on our registry.

Isn't government grand! We're here to protect you! Who will protect us from the government?

Not that idiot representative from NJ and the cowards who inhabit our Congress!

Posted by: albeed | Mar 30, 2016 12:52:57 PM

Any restrictions on travel or any other civil rights should be a part of sentencing with full due process. Also, these post conviction punishments and restrictions should not apply retroactively.

Posted by: Jason R | Mar 30, 2016 1:16:37 PM

In this case it seems all sex offenders (and that could be a skinny-dipper, a teen sexting, or anyone accidently downloading schild porn) gets lumped in with sex traffickers which is what the law was intended to prevent.

When will the government get it right, the label sex-offender, is not and should not be a one-size-fits-all label. Every sex offender is not a sex trafficker, every sex offender is not a child predator, every sex offender is not a pedophile.

And once you've served what was probably a ridiculously long sentence for a benign sex-offence, your sentence should be finished, you shouldn't lose any of your constitutional rights, you've paid your debt to society.

Posted by: kat | Mar 30, 2016 3:03:17 PM

Not only does this law smack of Stalinism and Nazism with its specially marked passports, it could actually endanger airport security.

Imagine an angry ex-sex offender who vents his or her rage against this law at an airport ticket line by threatening the agent who denied him or her a boarding pass by either running into a restricted area with the intention of putting the whole airport under lockdown for several hours with canceled flights (and irate passengers,)or by pulling out a concealed weapon outside the security area with the intention of harming staff members. Our airports have enough security issues without having to deal with an embittered former sex offender who decides to take revenge against this law by endangering staff and passengers alike. It's as if such a former offender is saying, "If I can't fly at your airport, then nobody can!"

Posted by: william r. delzell | Mar 30, 2016 4:03:56 PM

@william r. delzell

More than likely, it is the traveller himself, along with his or her family, whom will be in danger at the actions of agents in foreign countries. Registrants who have been detained at the airport prior to return to the US are essentially put in holding cells with no food and limited bathroom access before return to the country.

Posted by: Eric Knight | Mar 30, 2016 4:31:08 PM

This law is a precursor of worse oppression to come if it is allowed to stand. It is not designed to protect the public. There are almost 900,000 people on that registry, (that SHOULD be gotten rid of), and if you expand the number of peoples affected by it when you include family and friends it goes over to affecting 5,000,000 people. Men, women AND CHILDREN. Hitler made lists. Stalin made lists. People were okay with that because it was supposed "criminals" and "deviants" of society. 6 million people later in Germany and 40 million later under Stalin, dead, slaughtered and murdered. Don't not be mistaken. This is not limited to sex offenders. There are people talking about making lists of murderers, thieves, and other petty crimes. Posting pictures on the internet. And next it could be you.

When someone has paid for their crime, gone to jail, done their probation, gotten their counseling, the punishment should STOP. This punishment MUST stop. America has a very unhealthy obsession with sex. In Europe (and in many US states) the legal age of consent is 16 and sometimes 15. Branding people who had sex with a "minor" of 16 internationally is sending the message that they are a pedophile which they are NOT. Criminal records never die and Law enforcement knows who is a danger to society. Enough of this vigilante justice. Enough. Stop the insanity before they come round up your neighbors or even you because someone just doesn't like you.

Posted by: yasmina | Mar 30, 2016 4:55:26 PM

These laws are not about protecting the public, they are about sensationalizing crimes to frighten and control the people of the US. No other country in this world would put there citizens at risk in other countries like ours does. The political movement here is to police the world and control the citizens. They trick us to give up our rights, albeit, no one wants to protect sex offenders, but by starting with this "deemed" lower class on people, it makes it easier to move on to the next group of "undesirables". Absolute power corrupts absolutely. This will lead to government controlling more of our lives, and we have no one to blame but ourselves. We refuse to listen to reason, or actual statistics about the truth of recidivism rates, no, we pray to our own desire to punish and push away everyone we fear. I pray for our country and our people for one day we will wake up in a world we could not have imagined.

Posted by: mike | Mar 30, 2016 10:20:39 PM

The Nazi Census: Identification and Control in the Third Reich


"Originally published in 1984, this controversial study challenges census-taking by examining how the Hitlerian regime pioneered both the concepts and the processes of modern statistics-gathering about populations. No reader of this fascinating study can fail to be moved by the coldly bureaucratic thoroughness and mechanical efficiency with which the Nazis went about their business of targeting Jews, Gypsies, and other socially or biologically unwanted segments of German society."
—Michael R. Marrus, Chancellor Rose and Ray Wolfe Professor of Holocaust Studies, University of Toronto

Posted by: Anon | Mar 31, 2016 1:42:59 AM


Sex offenders loose their constitutional rights the minute they were convicted as a sex offender.

Happily enough, as demonstrated by the last twenty or so years of SORNA litigation, they do. Courts have been busy carving out a post-constitutional perch where legislatures are free to continue to ramp up the punishment, free from any procedural niceties such as Due Process or Ex Post Facto. IML is just the latest iteration, and we will see -- thanks to Janice -- whether the pendulum is going to start swinging in the other direction.

But, more to the point, I'd wager that most people are "sex offenders," but for the fact that most people simply have not been caught, given the rabid enthusiasm with which state (and federal) legislators have sought expansion of what constitutes a "sex offender."

Posted by: Guy | Mar 31, 2016 9:06:31 AM

I don't know who "Breathrin" is and I'm not sure I want to know. But whoever he, she, or it (maybe "Breatherin" is one of these new fangled robots with a mind of its own invented in Silicon Valley), is, this "Breatherin" individual might find himself/herself/itself falsely accused and convicted of a sex offense and have to carry a Scarlet Letter passport as well. Maybe then, "Breathren" wouldn't be so arrogant towards civil liberties and the bill of rights. One often has to be on the receiving side of such vile legislation as the various Megan's Laws before changing their mind about them.

It's like the old joke: "What is a bleeding heart liberal?" "It's a conservative of either gender who has been falsely accused and/or convicted of a violent crime," especially a sex crime like rape, or even of a harmless offense like accidentally running out of the house with no clothes on. "Breathren", be careful what you wish for; you might actually receive it.

Posted by: william r. delzell | Mar 31, 2016 2:39:16 PM

I think Breathren just pulled a bunch of people offsides. It's a bit, I think.

Posted by: MarK M. | Apr 1, 2016 2:43:10 AM

Breathren's comments reminds me of that incisive commentator on criminal justice, Inspector Sledge Hammer, in the eponymous 1980s satirical comedy. Sledge often said, "Criminals have no rights. They give up their rights when they choose to become criminals."

Of course, that was intended to be satire. If Breathren intended the same, he was perhaps a little too subtle ...

Posted by: J.L. Peterson | Apr 1, 2016 5:14:29 AM

Could continued and further marginalization of former sex offenders have a radicalizing effect on them as marginalization in Western Europe is having on Mid-Easterners and North Africans? What happens if even a small portion of disgruntled former sex offenders in this country choose the radical path as a way of responding to Megan's Law, civil commitment, and other measures that prevent re-assimilation? That's something for our damned tea-party politicians and law enforcement personnel to think over.

Posted by: william r. delzell | Apr 1, 2016 10:54:50 AM

You guys are all great
I support you all
I wish you were my neighbors :)

Posted by: Paul | May 1, 2016 8:27:57 PM

If the sex offender has fulfilled his time fulfilled his probation,fullfilled his parole why keep him trapped for the rest of his life.if he has remained out of trouble let him be free let him get on with his life.there are thousands on Megan's law who remain on there who have no repeated since the day they got out of jail but yet they still remain on Megan's Law

Posted by: Lisa | May 5, 2016 12:21:34 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB