Criminalizing The Impossible

In the scheme of impossible demands, the sex offender registry concept has more than its share. Much as there may be empathy for certain crimes and criminals, sex offenders remain pariahs as an incident to rape culture and believing women. While there’s empathy for murders, there’s nothing but hatred and damnation for anyone who’s saddled with the “sex offender” characterization, whether deserved or not. So in 2021, Attorney General Merrick Garland decided to add another impossibility to the mix, because who doesn’t hate sex offenders?

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.”

And indeed, California recognized that Doe “paid his debt to society,” to the extent there was a debit owed, and was given an unconditional pardon in 2012 and has his records expunged. Problem solved? Not even close.

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.”

These rules created a number of dilemmas, some theoretical and some very practical. On the theoretical side, since the offense for which conduct was criminalized, and denominated a sex offense requiring registration, was a creature of state law, and a state pardon was similarly a creature of state law that gave rise to the legal fiction that the offense never happened, relieving the defendant of all burdens imposed as a result of conviction, it had nothing to do with the feds, who had no say either way as to what the state chose to criminalize or subsequently pardon. But the feds didn’t care that they were sticking their nose into something over which their jurisdiction should have been non-existent.

But it was the very practical part that burned Doe.

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).

In other words, the rule issued by Garland required Doe to not merely continue to register under California law, but provide far greater information than Califorinia law required. Except Doe couldn’t register because he had been pardoned and his records expunged. While the feds didn’t find the pardon sufficient since it wasn’t an “innocence” pardon, it fully satisfied California and precluded Doe from either the need to, or the possibility of, registering as a sex offender.

In a suit by Caleb Kruckenberg of Pacific Legal Foundation, District Judge Jesus G. Bernal held in response to a motion for a preliminary injunction that this Kafkaesque requirement failed due process.

The Court agrees with Plaintiffs that the practical effect of the Rule, in conjunction with 18 U.S.C. § 2250, has done exactly what is forbidden by the Constitution: “to declare an individual guilty or presumptively guilty of a crime.” Patterson, 432 U.S. at 210. 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. 86 F.R. at 69867. Doing so subverts the procedural safeguards deeply rooted in our history and constitutional framework.

Sometimes, the rule goes back to the most basic doctrines of law, one of which is that the law cannot require a person to do the impossible.

As Plaintiffs observe, it has “long been a feature of the common law that a person cannot
be held criminally responsible for things over which he has no control.”

While the statute provided the defendant with the opportunity to prove that he was not required to register, that element of the federal crime was a burden on the defendant rather than the government to prove. In other words, that the defendant was required to register was presumed, with the burden shifting to the defendant to rebut it. Judge Bernal rejected Garland’s shifting this burden onto the defendant.

The question of what would satisfy due process is not before the Court, nor is it this Court’s role to (re)write the law. But to speak clearly on the matter at hand it is useful to say this: whether a defendant registered “as required,” and accordingly whether it was possible for him to do so, is an essential element of the offense codified at 18 U.S.C. § 2250. However it might be alternately written, 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, or not impossible. 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.

One problem down. 99 to go.