DOJ’s unconstitutional registry rules trap some Californians in a bind

Nearly 20 years ago, Congress passed a law requiring people convicted of certain sex offenses to register with their states, leaving it up to the U.S. Department of Justice, a part of the executive branch, to write many of the rules governing who must register, how often, what information they must provide, and when they have broken the law. But the DOJ’s job is also to criminally prosecute people who fail to follow the same rules the agency has written.

John Doe* enlisted in the Marines at 17 and was honorably discharged eight years later. When he was a 23-year-old service member in 1996, he had a sexual encounter with a 16-year-old girl that, while not sexual intercourse, broke California law against sexual activity with someone under the age of 18. He pled guilty to a misdemeanor and was sentenced to three years’ probation. He was also required to register as a sex offender with the State of California.

Otherwise, John was living on the straight and narrow. He married and had two children. He worked hard, becoming a successful businessman and an active member of his church and community.

By 2012, the State of California had recognized John’s rehabilitation by expunging his record and issuing a “Certificate of Rehabilitation.” Under California law, he no longer has a criminal record and isn’t required to register as a sex offender.

In December 2021, the U.S. Attorney General issued a new rule governing sex offender registration that would have required John to re-register as a sex offender—even though, as far as California is concerned, he no longer had a criminal record at all. In fact, California wouldn’t allow John to register; yet the new rule still would have presumed him guilty of a federal crime for failing to do so.

The Attorney General shouldn’t be able to unilaterally impose a rule that places tremendous burdens on people like John. Re-registering would have required John to provide the State with personal information, including all internet usernames, robbing him of the ability to protest the government’s action anonymously. He also would have been forced to stop going to his children’s schools and might even have had to move. Perhaps even worse, because he couldn’t register as the federal government has demanded, he faced the prospect of criminal prosecution at any time.

When Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006, it gave the Attorney General nearly unrestrained authority to create new registration requirements. The Attorney General is exercising that authority without input or direction from Congress. This is a clear violation of the principle of “non-delegation,” the idea that Congress cannot delegate its lawmaking power to the executive branch.

Represented by PLF free of charge and joined by others in a similar position and the Alliance for Constitutional Sex Offense Laws (ACSOL), John challenged Congress’ unconstitutional delegation of authority to the Attorney General to issue SORNA requirements—a clear violation of the non-delegation doctrine and separation of powers. They also challenged the authority for the new rule, its speech-chilling effects, and its denial of due process for those unable to register in California.

After the lawsuit was filed and the plaintiffs provided their records to DOJ, the government told the judge that in John’s case, he was no longer required to register under SORNA. But it didn’t make any such promise about our other clients or ACSOL members in similar positions, leaving them in limbo. And no one should have to rely on mere promises from the government not to enforce the law against them. John was able to voluntarily dismiss his portion of the lawsuit, but the other plaintiffs have continued the fight.

In January 2022, U.S. District Judge Jesus G. Bernal limited the DOJ’s enforcement of its new SORNA rule in California, finding that our clients were likely to succeed on their due process challenge. Judge Bernal noted in his order the profound threat the rule posed to justice: “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.”

*Our clients are using pseudonyms to protect the lives and reputations they have rebuilt.