A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible
A rule that Attorney General Merrick Garland issued in 2021 notionally requires people to do things that are plainly impossible. If they have been convicted of a sex offense, they must register with their state, even when the state neither requires nor allows them to do so. They also must supply the state with all the information required by federal law, even when the state does not collect that information.
Under 18 USC 2250, someone who fails to meet those requirements and who travels outside his state can be charged with a federal crime punishable by up to 10 years in prison. At trial, the defendant has the burden of proving that he was unable to register “as required” by the federal Sex Offender Registration and Notification Act (SORNA). That Kafkaesque situation, a federal judge in California ruled yesterday, violates the constitutional right to due process.
The Justice Department, U.S. District Judge Jesus G. Bernal writes, “has done exactly what is forbidden by the Constitution: ‘to declare an individual guilty or presumptively guilty of a crime.’ In the Rule, the Government disavows any obligation or burden ‘to establish that a registration jurisdiction’s procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA’ before prosecuting the individual for failure to do what it acknowledges is impossible.” That policy, Bernal says, “subverts the procedural safeguards deeply rooted in our history and constitutional framework.”
The case, John Doe v. Department of Justice, illustrates the perverse consequences of the federal government’s attempt to identify and track sex offenders through detailed registration requirements that often conflict with state law. The plaintiffs, who are represented by the Pacific Legal Foundation (PLF), include California residents whom the state no longer requires to register as sex offenders because it has certified their rehabilitation and expunged their records. The Justice Department said they had to register anyway. It also said they were obligated to supply and update information that California would not collect even if it allowed them to register.
“California requires registrants to provide their current address and a photocopy of an identification or driver’s license to their local sheriff,” PLF attorney Caleb Kruckenberg explained when the lawsuit was filed last year. “The new rule requires much more. A registrant must include his social security number, his ‘remote communication identifiers’ (e.g., internet usernames), his work or school information, and information concerning any international travel, passport and vehicle registration, or professional licenses.”
The lead plaintiff, identified as John Doe in court documents, enlisted in the Marines at 17. Six years later, according to the original complaint, he had “a consensual but inappropriate encounter” with a 16-year-old girl that “did not involve sexual intercourse.” Because the teenager was two years younger than California’s age of consent, that encounter resulted in criminal charges. Doe pleaded no contest to a misdemeanor count of sexual battery, which required him to register as a sex offender. He was sentenced to three years of probation.
“Since then,” the complaint says, “Mr. Doe has dedicated himself to making amends and becoming a model citizen. He expressed sincere remorse for his crime and voluntarily underwent psychological treatment. And equipped with a healthier perspective, he pursued higher education and has had a rewarding and productive career, became a loving husband and father, and became an active participant in his church. He has done everything one is supposed to do following a criminal conviction.”
State courts officially recognized Doe’s rehabilitation, clearing his 1996 conviction in 2002 and issuing a certificate recommending an unconditional pardon in 2012. He therefore “is no longer a convicted criminal and has not registered as a sex offender for more than a decade.”
In the meantime, however, Congress approved SORNA. That 2006 law made a sex offender’s failure to follow state registration requirements, already a crime under state law, a federal felony. Initially, that was not a problem for Doe, since by 2012 California had removed him from the state registry. But in December 2021, the Justice Department published SORNA regulations that required D
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