Tagged: constitutional basis

International Megan’s Law (H.R. 515): Necessary? Constitutional?

Virtually unnoticed, on February 8, President Obama signed a new bill (H.R. 515), International Megan’s Law, requiring  that 1) the U.S. Immigration and Customs Enforcement Agency notify foreign officials when a convicted child sex offender is traveling to their country; and 2) the State Department put a “unique identifier” on the passports of persons who have been convicted of a sex crime involving a child (even if they were children at the time themselves and no matter when the conviction arose) who have been listed on a public sex offender registry. A lawsuit challenging the constitutionality of this law has been filed by California Reform Sex Offender Laws (CA RSOL). The plaintiffs include CEOs of major international companies who travel extensively – and innocently – for business.

The bill was signed eight days after it left Congress and four days after it was received by the White House. Supporters say that the law will help prevent sex trafficking by making it more difficult for sex offenders to “[plan] their trips around locations where the most vulnerable children can be found,” in the words of Congresswoman Ann Wagner, who co-sponsored the bill. Critics  assert that there has been no connection established between people on sex registries and international sex trafficking; that the branding passports will do nothing to protect the United States from its own sex offenders who, indeed, will be limited in traveling, even for innocuous purposes; that such limitations are unconstitutional; and that the “unique identifier” endangers the safety of such tourists and anyone flying with them. Moreover, a large percentage of people on the registry for child sex offenses were themselves minors when they were convicted, usually of engaging in sexual conduct as with a minor incapable of consent only because of age. Significantly, many Americans use their passports not for travel but simply for identification purposes – and those people will be unfairly subjected to all of the negative consequences of such identification.

A personal observation:  Is there no limit to the US urge to stigmatize and punish the other? Is the urge to punish and stigmatize really justified by the desire to help prevent sex crimes in other countries? Shouldn’t that be done by the legislatures of other countries, who might want to restrict the entry of various people and are fully capable of doing so?  Reciprocal international efforts to limit sex trafficking are legitimate, but this Act is overbroad, unhealthy, and probably unconstitutional.

Related Readings:

A Recent Decision: Fatally Improper Conduct Between Deliberating Jurors

While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus  to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.

In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.

Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.

Related Readings: