By Kyle . . . We are witnessing a disturbing trend in America of punishing people after they have completed their official court-imposed sentence for an offense or even before any criminal charges have been filed and a person has been convicted of a crime.

In the arena of sex offenses, this manifests in several ways. Indefinite civil commitment-habeas corpus anyone? Registration beyond the term of the sentence. Registration results in numerous harms which clearly constitute “punishment”: serious housing restrictions; movement restrictions; domestic travel restrictions, making travel for business and pleasure a nightmare; employment challenges; and now, passport markings (A Scarlet Letter) because of the International Megan’s Law in conjunction with Angel Watch. This is not only “compelled speech” (as it is for registration in general) but restricts one’s ability to travel freely internationally for business or pleasure.

All of this is based upon a perceived, theoretical (and very inaccurate, skewed) risk of POTENTIAL FUTURE sexual criminal offending, a la the pre-crime of the movie Minority Report.

Additionally, the U.S. Federal Government refuses to issue a passport to anyone with an outstanding federal tax debt of at least $50,000.00, this before any criminal charges have been filed or a person has been convicted of a tax crime. Again, potential future crimes. Of course, they fear the person may flee the country and never return to settle the tax debt. Fair enough, but if that is the case, then charge them, arrest them, and try them; else, leave them alone.

Innocent until proven guilty? Not any longer in America apparently.

What this really comes down to are understandings of just what constitutes unconstitutional, compelled speech and whether domestic and international travel restrictions, housing restrictions, movement restrictions, etc., aren’t actually criminal punishment rather than just civil administrative, public safety policies.

You could even throw in the restrictions of a former felon with no violent weapon offense being forever banned from owning guns for personal protection, in violation of the Second Amendment. We know from 35 years of data that the argument of public safety holds no water. Given that, these can be seen as nothing less than intentional, vindictive criminal punishment (restrictions of constitutional rights) beyond the terms of the sentence without due process?

Does placing these types of restrictions on people past the terms of their original sentence or without any legal proceedings or due process constitute “punishment” rather than just “inconvenience”? I believe it clearly does. These types of extra-legal punishments need to be litigated out of existence or legislatively abolished. Failing that, it is a sad joke to call America a free country where all citizens enjoy protected, constitutional rights.

Kyle is a person required to register on the sex offender registry in Colorado.

The post Due Process: Another one bites the dust first appeared on NARSOL.

 Also published at the Washington, D.C. Patch

By Sandy . . . “They do it with no regard for travel plans, for the reservations made, for the months of planning and the hundreds and hundreds of dollars that have been spent and will be lost. They don’t care.” Don, a South Carolina registrant with a historic conviction for a sexual offense against a minor, was explaining his months-long struggle with the State Department that ended abruptly when he received a letter from them informing him that his passport had been revoked as it lacked the “unique identifier” required on passports of people with his conviction.

This was in 2020. Earlier that year, Don was planning a trip to Israel with his church travel group. He had heard anecdotal stories from others about passports revoked at the last minute, and he determined that he would find out the status of his. Calls to his local registration office produced nothing in the way of an answer. Every call to the State Department yielded the same answer: “Your passport has not been revoked; no, we can’t tell you when it will be; you’ll know it has happened when you get the letter from us saying it has.” Multiple calls to the office of Lindsey Graham, his state senator, prompted them to call the State Department, where they received the same answer Don had received.

Don lucked out. He made the trip to Israel; no where along the way was he told that his passport was revoked, and he returned home with no difficulties. The letter came a scant month later. He remains resentful and angry that there was not a better flow of communication whereby those who would be affected by what is called the International Megan’s Law could be given information that would help them manage their travel plans without the fear of losing their passports before or during the trip.

What is the International Megan’s Law (IML) and how does it work?

The law that authorizes the inclusion of what is called a “unique identifier” became effective in 2017 and is known as the International Megan’s Law. The relevant part states, “Except as provided under paragraph (2) [which gives the exemption policy for persons so longer required to register], the Secretary of State shall not issue a passport to a covered sex offender unless the passport contains a unique identifier, and may revoke a passport previously issued without such an identifier of a covered sex offender” [emphasis added].

The law further authorizes the Angel Watch Center to receive information as to which registrants need the unique identifier on their passports and then to pass that information on to the State Department.

It starts, though, at the lowest level. One portion of IML requires persons on a sex offender registry to give 21-day notification to their local law enforcement office of their intent to travel out of the country. The local offices then give those names to the Angel Watch Center—which is part of Immigrations and Customs Enforcement (ICE)—and they in turn send the names to the State Department. That is when any registrants who are passport holders find themselves in receipt of a letter saying their passport has been revoked. Not “It will be unless you send it in for the special marking,” but, “It has been.”

There are many, many—too many to ignore—horror stories of this process being triggered while registrants were mid-travel and found themselves being denied entry into a country or unable to board a plane to get back home.

What is the “unique identifier”?

25 words, counting numbers, constitute this identifier. “The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(1).”

Initially, this was printed on the last page of the passport (see top image). More recently it is printed on the page with the photograph or adjacent to the photograph.

A memo released by the SMART (Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking) office in 2019 includes this statement: “Broadly speaking, this provision is applicable to anyone who is currently required to register as a sex offender based on a conviction for a sex offense against a minor.”

Broadly speaking. So . . . in one of the twelve states where 18 is the age of consent, this would include a conviction flowing from a consensual relationship between a 19-year-old young adult and a 17-year-old teen who later got married. This would include a case of a teenager being prosecuted and registered for sexting nude or partially nude self-images to a romantic partner a year younger. This would include the conviction of a young adult who traveled to see a 17-year-old met in an online chat room, only to find there was no actual victim at all but a law enforcement officer as part of an entrapment operation. This would include the eleven-year-old child convicted and registered for inappropriate sex play with a cousin. As the second and third examples are federal crimes, the age of consent is 18 across all states. For the last example, 35 states register children, some as young as eight.

Why are passports revoked? Does it have to be done this way?

Passports have always been revoked under a few, individualized circumstances. Prior to 2017, revocation was reserved for people discovered to be non-citizens, those who owe “serious, delinquent tax debt” (IRS), and in some situations of criminal indictment where an order is in place forbidding them to leave the country.

After the implementation of IML, persons designated a “covered sex offender” have had their passports revoked based on a historic conviction, some as old as forty years or more. Everyone in the category is targeted.

Look again at the directive in the law: “. . . the Secretary of State shall not issue a passport to a covered sex offender unless the passport contains a unique identifier, and may revoke a passport previously issued without such an identifier of a covered sex offender” [emphasis added].

They may revoke. Thay are not required to revoke. Other options are available. They choose to revoke.

What are the other options? What is the solution?

There are a variety of reasons why passports need to be modified. The most common ones are that people change their names, there was an error in the information that is printed as part of the document, or there is some other document error. Most needed changes have the same solution: passports are mailed to the State Department along with the correct information and documentation. Changes and corrections are made; errors are amended, and the passports are mailed back. There is no fee; the passport is not considered new even though it may be, depending on what needed to be done. Some situations, such as passports being lost, stolen, or damaged, allow the option of handling the matter in person at a local office, but none of them result in revocation, only amendment or replacement. Adding the “unique identifier” could be done in the same manner, and that is what NARSOL asked for in a letter sent to the State Department February 1, 2024, and signed by NARSOL, NARSOL’s associated and affiliated organizations, and a significant number of other civil rights-related organizations. Time will tell if the suggestions in our letter bear any fruit or, indeed, if it is even acknowledged.

Based on past experience, Don is not optimistic. When asked if he applied for a new passport, he said he did, but he didn’t do so immediately. His revoked passport was only a year old. He had held a passport for many, many consecutive years, and having to go through the entire procedure, including proof of citizenship, extensive documentation, and a costly fee, as though he were a first-time applicant, was galling. “After having a passport for close to fifty years, I had to start from zero,” he said.

The post “Stop revoking passports,” NARSOL tells State Department first appeared on NARSOL.