Justice Department regulations threaten people with prosecution for failing to register even when their state no longer requires it.
JACOB SULLUM — 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 Doe, despite his expungement, to re-register with California, even though the state will not let him do that. The new rule said that “only pardons on the grounds of innocence terminate registration obligations under SORNA.”
In addition to Doe, the plaintiffs who challenged that perplexing edict include two other California men who received certificates of rehabilitation and a current California registrant who worried that SORNA would require him to maintain his registration even when that is no longer feasible. The Alliance for Constitutional Sex Offense Laws (ACSOL) joined the lawsuit on behalf of members who face the same dilemma as Doe because their records have been expunged or because they have successfully sought relief from California’s registration requirements. Other ACSOL members are still required to register under California law but are not able to supply all the information required by the Justice Department because the state does not collect it.
“For individuals like Plaintiffs, at least some of whom allege a remarkable record of rehabilitation and positive contributions to society following convictions in the distant past, the prospect of being returned to prison for up to 10 years due to circumstances beyond their control is a particularly disturbing one,” Bernal notes. That threat, he says, is inconsistent with due process.
“May the Government attempt to imprison California registrants like Plaintiffs for up to a decade for failing to do the impossible, unless they, not the Government, prove impossibility?” Bernal writes. “This Court holds that the answer is no.”
The government “presumes that Plaintiffs are guilty of a federal crime unless they prove their lack of culpability at trial,” Bernal says. “While the legislative branch may define the elements of an offense, and the Constitution requires the prosecution to prove beyond a reasonable doubt those elements, ‘[i]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.'”
Bernal notes that “whether a defendant registered ‘as required,’ and accordingly whether it was possible for him to do so, is an essential element of the offense” created by SORNA. The government “violates due process when it relieves itself of the burden of proving that essential element, i.e. that it was possible to register under state law,” he writes. “Because the Rule, in conjunction with 18 U.S.C. § 2250, fails to provide the minimum procedural safeguards required by the Constitution, it violates due process.”
Bernal therefore issued a preliminary injunction that bars the Justice Department from prosecuting a California resident under 18 USC 2250 unless it has first verified that “the individual was required to register under California law” or that the state “allows the individual to furnish” information required by SORNA. “With this order,” the PLF notes, “the DOJ’s SORNA rule is now unenforceable in California and could be vacated nationwide in the judge’s final decision.”
The plaintiffs also argued that the Justice Department’s demand for “remote communication identifiers” has a chilling effect on their freedom of speech, which includes the right to anonymously express opinions online. Bernal concluded that there was not enough evidence at this stage of the case to conclude that the plaintiffs were likely to prevail on that claim. But he says the plaintiffs “raise a substantial question as to whether the Rule imposes an impermissible burden under the First Amendment.”
Bernal says he is “concerned that the Rule does not provide any clear explanation of why and how the identifier disclosure provision advances a governmental interest.” Judging from SORNA’s goals, that requirement is aimed at preventing or detecting inappropriate contact with minors. But Bernal notes that the requirement on its face would apply even in contexts, such as posting or commenting on news stories, where it is “unlikely” that requiring the disclosure of usernames “would help the government protect children.”
Another claim in the lawsuit has potentially broad implications. The plaintiffs argued that SORNA violates the separation of powers by improperly delegating legislative authority to the attorney general. The law effectively allows the Justice Department to define criminal offenses by issuing regulations that impose new registration requirements. The plaintiffs say that power runs afoul of the “nondelegation” doctrine.
Bernal thinks that claim is apt to fail under current precedents, which allow the executive branch to “fill in the details” of federal statutes as long as Congress provides an “intelligible principle” to guide that process. But he is sympathetic to complaints about the resulting proliferation of federal crimes tied to regulatory violations.
“The modern rule,” Bernal notes, approves “delegations whereby the Executive or an independent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regulations a criminal offense and fixes the punishment, and the regulations ‘confin[e] themselves within the field covered by the statute.'” Explaining the consequences of that leeway, Bernal quotes Mike Chase‘s book How to Become a Federal Criminal: “Congress has passed thousands of federal criminal statutes and has allowed federal agencies…to make thousands upon thousands more rules that carry criminal penalties.” Those rules “cover everything from how runny ketchup can be to…just how friendly you can get with a pirate.”
Bernal notes that “no one, not even the Government, knows how many federal crimes there are,” and “the federal government has stopped even trying” to count them. “This Court is sympathetic to arguments challenging such a state of affairs, which has eroded some of ‘the most vital procedural protections of individual liberty found in our Constitution,'” he writes. “But the Court is also bound to follow controlling precedent, and until the Supreme Court provides a new directive, Plaintiffs are unlikely to succeed on the merits of their nondelegation claim.”
There are signs that the current Court might be prepared to provide “a new directive” by reviving the long-moribund nondelegation doctrine. In the 2019 case Gundy v. United States, the justices considered 34 USC 20913, a SORNA provision that gives the attorney general broad authority to decide whether and which sex offenders convicted before the law was enacted are subject to its registration requirements. The petitioner, Herman Gundy, challenged the Justice Department’s retroactive application of SORNA, arguing that the law violated the nondelegation doctrine.
A four-justice plurality avoided that issue by reading 34 USC 20913 as requiring the attorney general to impose registration requirements on previously convicted sex offenders “as soon as feasible.” In a separate opinion, Justice Samuel Alito agreed with the result, but not because he embraced the plurality’s narrow interpretation of Section 20913. Instead, he said upholding the law was consistent with the Court’s longstanding reluctance to invoke the nondelegation doctrine. “Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years,” he wrote, “I vote to affirm.”
But Alito also said that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” That caveat is potentially important given the current makeup of the Court. Three justices dissented in Gundy, saying it was clear that SORNA violated the separation of powers.
“The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty,” Justice Neil Gorsuch wrote in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas. “Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”
Justice Brett Kavanaugh, who was confirmed in October 2018, did not participate in Gundy, and he has since been joined by Justice Amy Coney Barrett, who replaced Justice Ruth Bader Ginsburg in 2020. If Kavanaugh or Barrett is open to the reconsideration that Alito suggested in 2019, there may well now be a majority in favor of constraining the executive branch’s authority to create crimes by administrative decree.