Sex Offenders and Passports

December 22, 2008

This blog posting is being published as information, in response to a frequently-asked question regarding passports:

U.S. Department of Justice : Sex Offender (SORNA) Guidelines
U.S. Department of Justice : FAQ’s
Congressional Research Service (2007): Identification of sex offenders on U.S. passports

Although the Secretary of State is not authorized to identify a passport holder as a sex
offender on their passport, Title I of the Adam Walsh Child Safety and Protection Act of
2006 (42 U.S.C. §§ 16901 et seq.), the Sex Offender Registration and Notification Act
11 (SORNA), established uniform standards and guidelines for state, territorial, and tribal sex
offender registries and mandated the Attorney General to establish a national sex offender
registry, public website, and communitynotification program and to establish guidelines and
regulations to implement these activities. The statute provides for three tiers of sex offenders
depending on the seriousness of the offense of which the person was convicted and includes
certain juvenile offenders and also foreign convictions which were obtained in accordance
with sufficient safeguards for fundamental fairness and due process for the accused.
Community notification must be made bythe appropriate official in each state, territorial or
tribal jurisdiction to law enforcement,school,and housing agencies; any agency responsible
for conducting employment related background checks under § 3 of the National Child
Protection Act of 1993 (42 U.S.C. § 5119a); social service entities responsible for protecting
minors in the child welfare system; volunteer organizations in which contact with minors or
other vulnerable individuals might occur; and anyorganization, company, or individual who
requests such notification pursuant to procedures established by the jurisdiction. The
Attorney General, in consultation with the Secretary of State and the Secretary of Homeland
Security, is required to establish and maintain a system for informing relevant jurisdictions
about persons entering the United States who are required to register under SORNA

SORNA supersedes the former federal sex offender registry and notification law, the
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act
and related statutes…

Constitutional issues

A range of constitutional issues could arise with regard to the identification of a person
as a sex offender on his/her passport, similar to those which have arisen in the context of sex
offender registries and community notification requirements. During congressional
consideration of the Adam Walsh Child Safety and Protection Act, potential constitutional
concerns were noted as was the state compliance exemption for provisions held by State
Supreme Courts to be inconsistent with State constitutions. The federal sex offender
registration and community notification law has recently been upheld by a few federal district
courts against various challenges on ex post facto, procedural due process, substantive due
process, federalism,anddelegationgrounds. These cases concerned criminal charges under
18 U.S.C. § 2250, added by§ 141(a)(1) of SORNA, brought against sex offenders who failed
to register after moving interstate after the date of enactment of SORNA. The cases dealing
with ex post facto challenges generally follow Smith v. Doe, a U.S. Supreme Court decision
upholding a State sex offender registry, discussed below

One should note that the SORNA penalty for violating the requirement to register or update registry
information after traveling in interstate commerce, i.e., after moving to another state to live,
work, or attend school, also applies to travelingin foreign commerce, although the U.S. laws
cannot mandate registration in a foreign country.

Since passports fall solely within the jurisdiction of the Federal Government, the state case
law or considerations necessary for state registration/notification laws would be irrelevant
to passport guidelines. Although the registry and notification federal case law may be
relevant by analogy to the passport context and may indicate possible constitutional issues,
it is uncertain how the courts may treat legal issues that may arise for a passport
identification.

In addition, there is no fundamental right to a passport; revocation, restriction, or
impingement of a passport does not constitute an infringement of the constitutional right to
travel.

ConstitutionalFights will conduct further research into this topic and we will be submitting application for a U.S. Passport in the name of a registered sex offender to obtain a passport. We will report the results within the next month on this blog.
Update January 2009: Passport was issued to our test subject.

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