Albert V Bryan Federal District Courthouse / Tim Evanson

March 29, 2016; Wall Street Journal

Last month, NPQ reported on the widely decried law that for many marked a step backward in the criminal reform movement. In early February, President Barack Obama signed into law a measure that requires registered sex offenders to carry passports with “unique identifiers” when they travel out of the country. The law would also allow the federal government to share the travel information of the registered offender with the governments of the foreign countries the individual is visiting, potentially putting the individual at risk abroad.

Almost immediately after the law passed, several advocacy groups indicated they would challenge the constitutionality of the policy. On Wednesday, a federal judge in Northern California heard the first arguments brought by a nonprofit and will consider whether to block the federal law and decide whether to grant a preliminary injunction.

California Reform Sex Offender Laws filed a suit against the law on February 9th, the day after it was passed, and has been joined in support by several other groups, similarly contending it is a violation of offenders’ basic constitutional rights, including those granted under the First, Fifth, and Fourteenth Amendments.

Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, a group that is trying to stop the practice of including juveniles on sex-offender registries, indicated that about 200,000 of the 850,000 registered offenders were juveniles when they were convicted for their crime. Pittman also noted the law includes juveniles whose sex crimes were sending nude photos of themselves to another juvenile. The law also does not exclude sex offenders whom states have deemed to be rehabilitated, ignoring the possibility that they are no longer at risk for re-offense.

According to the suit, the identifiers on the passport put the individual and the friends or family traveling with the individual at undue risk. “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,” the lawsuit reads.

The original Megan’s Law was passed in New Jersey in 1994 and then became a federal law a few years later. The law made public sex offenders’ information and the crimes for which he or she was convicted to alert communities when an offender moves into their neighborhoods. While political leaders have endorsed International Megan’s Law, NPQ along with several other groups and commentators have denounced the law, in part because it is based on inaccurate information about sex offenders.

Tamara Rice Lave wrote a piece for the Huffington Post that does a great job outlining how the law is inconsistent with the research available about sex offenders. The law is based on the assumption that sex offenders need to be monitored because they will reoffend and monitoring offenders will prevent them from reoffending. Yet as seen in a nine-year study released in 2003 by the Department of Justice of 9,691 offenders across 15 states, only 5.3 percent of offenders were rearrested for a crime. Juveniles, whose inclusion on the registry has been seriously debated over the past few years, also have a much lower recidivism rate compared to adults.

Moreover, as Lave notes in her piece, the measures Megan’s Law has taken domestically have had little effect on curbing sexual offenses. A 2008 study by the U.S. Department of Justice measured the impact of Megan’s Law in New Jersey over 21 years to determine what effect if any the law’s registration and notification policies had had on the rate of offenses in the state. (Since New Jersey’s original state law inspired the federal law, the state would seemingly be a model candidate for examining the impact of the law.) The study made several important conclusions, some of which are quoted below:

  • “Megan’s Law has no effect on community tenure (i.e., time to first re-arrest).”
  • “Megan’s Law showed no demonstrable effect in reducing sexual re-offenses.”
  • “Megan’s Law has no effect on the type of sexual re-offense or first time sexual offense (still largely child molestation/incest).”
  • “Megan’s Law has no effect on reducing the number of victims involved in sexual offenses.”

In fact, Megan’s Law had the effect of further hindering criminal justice reform efforts, which is a concern NPQ has noted for the international law. After the law, harsher sentences were handed down to offenders and fewer sexual offenders were paroled.

In conclusion, the study found, “Given the lack of demonstrated effect of Megan’s Law on sexual offenses, the growing costs may not be justifiable.” As the case is before the federal court currently, we expect the arguments will bring up the current statistics and studies and how they do not align with the theories behind the law.—Shafaq Hasan