The media has reported that the U.S. State Department has begun revoking the passports of certain sex offenders and requiring them to get new passports that will now conspicuously state:

The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).

IMG_20171106_230520Definitely not the endorsement I’d prefer to have on my passport.  Diving a bit deeper into the law, the change seems mandated by Congress in a fairly bi-partisan bill in 2016, quickly signed by President Obama.  It applies to all “covered sex offenders,” which in this case means you’re been “convicted of a sex offense against a minor” in any state and that you’re still subject to any state’s sex offender list registration requirement.

There are many reasons why this is a dumb idea (none of which are that sex offenders don’t deserve to be punished).  Allow me to propound a few:

1. Our Current Sex Offender List System is Broken

I think we can all agree that once a sex offender has served his or her time in prison, our #1 goal should be to ensure that they do not re-offend upon release.  So what do we do?  We make it so that they can’t ever get a decent job, we make it so that they often cannot find affordable housing and live or even live with their families, we stigmatize them wherever they go, and if they slip up with often onerous registration requirements, it’s back to jail.  All by putting them on “the list.”

Miami, for example, bans sex offenders from being within 2,500 feet of where children “congregate.”  That’s half a mile.  How many apartments in your community are not within half a mile of a school or a park?  The result: dozens of sex offenders live under a bridge, because there is simply not enough housing outside of 2,500 feet to house them all.

To many, the above yields a response of, “Good, they deserve it.”  But, lack of empathy notwithstanding, the problem is that someone with a job and a stable home is going to be far less likely to re-offend than someone who’s forced to live on the streets with a bunch of other sex offenders.  You might not like the idea of helping a rapist get back in the workforce, but failing to do so increase the risk of a new victim.

Until we reform our current sex offender list systems, I’d oppose any attempt to expand them.

2. The Government Has Lied About Recidivism

“[T]he average member of the general public believes that 75 percent of sex offenders will reoffend,” according to a study on the matter.  Indeed, the U.S. Supreme Court itself has quoted “80%” as being the recidivism rate.  McKune v. Lile, 536 U.S. 24, 33 (2002).

But as the New York Times recently reported:

A few years ago, Ira Ellman, a legal scholar affiliated with the Center for the Study of Law and Society at the University of California, Berkeley, and the researcher Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

Needless to say, the author of the Psychology Today article has recanted his number, and that most actual scientific studies put the actual 3-year recidivism rate at 3.5%According to the Department of Justice, “Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.”

So, no, these lists are not justified by some special risk of recidivism inherent to this particular type of crime.  All criminals released from prison have a risk of a repeat, but the number for sex offenders simply is not that high.

3. It’s a Lot More Than Child Molesters

Let’s say you’re a mid-20s guy and you head out to a bar in Venice Beach, CA.  You meet a beautiful girl inside and end up taking her home with you.  Just to be extra careful, you check her ID, which indicates that she’s 21.  But after you have sex, you learn she’s not — she’s actually 17.

If you get caught, even though you met her in a bar and you checked her ID, you’re going to jail and you’re going to be on the sex offender list, and now you’re getting your passport revoked so that the government can add a scarlet letter to the new one.  Even if you went through heroic efforts to ensure that she was of legal age, mistake is no defense in California (as in most states), and you’re… well… fucked, so to speak.

In some states, public urination is a sex offense.  If you do it near a school, or a child happens to see you, does that qualify you for the new visa marking?  It very well may.  Same with the teenage couple where one is a little over the age of consent and one a little under.  Same with the teen convicted of possessing child pornography of his or herself.

Frankly, our sex offense laws are inconsistent and often unjust (and that goes both ways — there are also many who should be punished that are not).  Until the laws are fixed, we should not be adding to the problem with new punishments also to be implemented unjustly.

4. So Why Not Murderers?  Drug Traffickers?  Mafia Members?

If we’re going to release dangerous people from prison — and why we apparently do that is beyond the scope of this post — why treat a sex offender worse than a murderer?  Why not add a label for people who smuggle drugs when they travel (something actually relevant at the border)?  What about international mobsters?

Because this is just like the TSA — it’s security theater.  These are measures that make people feel good, or at least feel like Congress is doing something, even when they’re not.    The U.S. already sends sex offender information to many foreign countries as our citizens depart for them.  This law just allows our legislators to go home to their constituents and pretend that they did something to protect the children.

5. These People Have Already Served Their Time

I think there should be significant prison sentences for sex offenders — enough to strongly deter them and others from committing the crime and to rehabilitate the offender as much as possible.

But once a person has re-paid their debt to society, it’s simply unfair to add a new penalty.  So-called “ex post facto” laws are forbidden by the Constitution, but we get around that by pretending that these registration requirements are not criminal laws but rather public safety laws.  That distinction is certainly not comforting to those who can’t get jobs or find apartments as a result.

Again, many perhaps don’t care, or will frame this as being “sympathetic to sex offenders.”  But as a civil libertarian, I know that the easiest way for our rights to be eroded is to blame terrorism or pedophiles.  Nearly every privacy grab has been on one of those two bases, from secret FISA spying to warrantless searches of digital devices at the border.  Let’s not put up with infringements of the rights of sex offenders just because we don’t like them, because once sex offenders lose those rights, the rest of us do too.