To protect the fundamental right to due process, a federal judge has permanently blocked the Justice Department (DOJ) from prosecuting Californians who fail to register under the Sex Offender Registration and Notification Act (SORNA) if the state doesn’t require them to do so.
In a lawsuit filed by the Pacific Legal Foundation (PLF), a public-interest law firm, four John Does described the impossibility of complying with the DOJ. A rule issued by former Attorney General Merrick Garland in 2021 required anyone who’s ever been convicted of a sex offense to register with their state, regardless of whether their state’s laws match the federal requirements. Anyone who fails to fully register faces up to 10 years in federal prison.
This new rule was particularly problematic for individuals who are no longer required, nor permitted, to register as a sex offender in their home state. One plaintiff, identified as John Doe #2, was convicted 21 years ago of a misdemeanor offense for which he spent 60 days in jail, according to the complaint. While he was initially required to register as a sex offender in California, after receiving intensive therapy and “obtain[ing] a master’s degree in Social Work to help treat other people with sex addictions,” reads the complaint, his conviction was expunged, and he was issued a certificate of rehabilitation. Under California law, he is no longer required to register as a sex offender and is even prohibited from doing so. But under federal law, he was still required to comply with SORNA’s registration requirements under threat of prosecution.
Another plaintiff, named in the complaint as John Doe #4, similarly faced the distressing threat of federal prosecution. Although he was required to register with the state at the time the lawsuit was filed (he successfully petitioned to be removed from the registry in 2023), California only required a registrant’s address and a copy of their identification. But “the new rule requires much more,” Caleb Kruckenburg of the Pacific Legal Foundation told Reason when the lawsuit was filed. “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 Pacific Legal Foundation says there are thousands of individuals in California alone facing the same penalties for circumstances outside of their control. In 2023, District Judge Jesus G. Bernal issued a preliminary injunction against the DOJ, citing SORNA’s inconsistency 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?” wrote Bernal. “This Court holds that the answer is no.”
Under the Due Process Clauses of the Fifth and 14th amendments of the U.S. Constitution, the government is required to bear the burden of proving all essential elements of a crime beyond a reasonable doubt. Under SORNA, however, the government “presumes that Plaintiffs are guilty of a federal crime unless they prove their lack of culpability at trial,” Bernal continued. In issuing the now permanent injunction on April 9, Bernal reiterated these due process violations and blocked the DOJ from prosecuting individuals who’ve failed to fully register without first confirming that the state of California requires the person to register or collects certain information.
“This ruling is an important win for the fundamental principle of due process: the government must bear the burden to prove that someone broke the law,” Allison Daniel, a PLF attorney, tells Reason. “It cannot transfer that burden to the accused by requiring that they affirmatively prove they did not.”
