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Law Creating Passport Mark for Sex Offenders Faces First Challenge

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.

Congress passed the original Megan’s Law in 1996. Named after 7-year-old Megan Kanka, who was raped and killed by a neighbor in New Jersey, the law mandates authorities publicly disclose information about convicted sex offenders. The federal statute is modeled from the New Jersey law of the same name, which requires authorities to tell communities the whereabouts of convicted offenders. It has been copied across the country and survived many legal challenges.

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.

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.

Federal law 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.

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.
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 400,000 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.”

Danielle Bennett, a spokeswoman for ICE, said the agency operates under a narrow definition of a sex offense against a minor spelled out in a 2006 federal law. Video voyeurism and possession of child pornography are among the specified offenses. “Offenses including public urination and consensual sexual conduct among teenagers … are not included as part of this limited definition,” she said.

One plaintiff, a Hawaii resident who asked to be identified only by his first name, Bob, said he was denied entry into the Philippines, where his wife of five years lives, when he tried to visit over the holidays in 2012.

Bob was convicted in 2009 of a peeping Tom charge and made to register as a sex offender when Hawaii broadened its registration law three years later. In Manila, he said the bureau of immigration pulled him aside at customs, told him he wasn’t allowed to enter the country and put him on a flight home.

The U.S. communiqué to Filipino authorities said Bob “was convicted in 2009 of violation of privacy in the first degree. Subject is expected to arrive in Manila on December 31, 2012 at 1925H.”

After hiring Filipino lawyers to help him demonstrate he isn’t a threat, Bob has been able to travel to the country, he said. But he described his position with the Philippines government as “tenuous.”

“That alert doesn’t just mean I had a conviction in the U.S. That means I’m traveling there with the intent to commit a crime against a child,” Bob said. Article – Wall Street Journal

JOE PALAZZOLO, Wall Street Journal
March 29, 2016 2:30 p.m. ET

Join the discussion

  1. Anonymous

    I love how thick the hypocrisy is in Rep. Smith. With his right hand he is exclaiming “Knowledge is power in terms of protection” to justify the existence of this bill, while with his left hand he is disregarding, or even actively preventing all attempts to bring to light, the volumes of research showing the ineffectual nature of registries. He is using the phrase “Knowledge is power” to justify a bill based purely on conjecture and innuendo, when all legitimate data points to the opposite conclusion. The man should be jailed for dereliction of duty…

  2. Q

    Don’t ya just love it when every time someone want’s to pass a dubious law the word “predator” is always thrown about without regard to anything? Let alone the type of crime, conviction date, the mountain ranges of empirical data. I guess these people think all the laws that have worked for a long, long time are not good enough anymore.

  3. RP

    “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.”

    I love the presumption of guilt. He allows for no ligitimate reason to travel. The only reason a person could. E traveling is to engage in illicit behavior. No Due Process, no evaluation just mark for a future crime they have not committed and are shown statistically will not.

    Rep Smith would have been more accurate to sell “ignorance is bliss”

    All the same, I wish Jan would stop making direct Nazi references. It does not help.

    • steve

      “All the same, I wish Jan would stop making direct Nazi references. It does not help.”

      Major news publications are doing the same. Did you read the Washington Post article?

  4. wonderin

    “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.”

    A typical spin on the truth, applied by people content that any law they support is a just law.

    • curiouser

      So using the logic of the bombastic Mr. Smith, wouldn’t weakening an unconstitutional, counter productive and ex post facto punishment be considered a good thing? Just because a law is a law doesn’t mean its a GOOD law. I believe history is replete with examples of laws that were later determined to have been very BAD ideas. Interment camps, anyone? Slavery? Segregation? Prohibition?

  5. Mike r

    like how rvery new law that comes out states thatitwill only apply to certain offenders.

  6. Eric Knight

    (Chris Smith) asked (a delegation of Thai officials) 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.

    This comment is clearly punitive, and should be cited for future registry cases. This is beyond a regulatory consequence of the registry.

  7. steve

    From Twitter: No Decision YET in International Megan’s Law Injunction: We just heard from those in the courtroom that today’s… http://fb.me/7fv3YkuHs

  8. Mike

    Do they actually have any statistics that the pilot program they are using actually prevented any sex trafficking? Or that angel watch is just a part of a political action committee that will get an ever larger government grant. I committed my crime 35 years ago and I have an ever greater burden on me. I will never understand how this isn’t additional punishment. I didn’t plead guilty to this additional punishment (megans law), yet they keep pileing additional requirements. I now have an additional local problem. homefacts.com is making a living, posting my face on their website. They are able to make their website show up very high on the larger search engines. Now I can’t keep tenants in my rental apartments. One If anyone knows if their is anything I can do about that let me know.

    • PK

      “If anyone knows if their is anything I can do about that let me know”

      Leave the country.

      • Notgivingup

        Some RCs have worked hard, have good jobs, invested in their homes, land, families. Where would they go? How would they make a living in another country even if they could find one they could get into. Leaving is not the Answer, coming together to keep fighting is.

        • PK

          I would imagine it would be a more difficult decision for some people.

        • Jason

          If you’ve had a good job, and have some land, then hopefully you’ve had some equity build.

          Buying rental property in a foreign country is one of the best ways to make money in a place where you don’t speak the language or have any traditional job prospects.

          Not saying it’s easy, but for me it was the price of freedom. I can play with my kids at parks. I can go to my kids’ school functions. I can move whenever I want even if it’s 500 feet from a school or daycare. I can babysit for friends. If I find a lost kid, I can help them. I can and do ask police officers for directions.

          I am not a danger to anyone, and I was sick of living in a place that treated me that way.

          The noose is tightening. IML is just another step. I’m not immune from all problems. I will likely want to go back to the US someday. This passport marker may catch up to me. Hopefully I’ll have a new citizenship sooner or later.

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