Kafka's unfinished novel unearthed

Reading Kafka can at times feel like self-inflicted torture. But who knew he could be prescient about events in modern criminal justice--the H. G. Wells of crime. 

Simple Justice, a regular read, has uncovered  a criminal justice story worthy of Kafka.*
(*Scott Greenfield's term.)

In the scheme of impossible demands, the sex offender registry concept has more than its share. Much as there may be empathy for certain crimes and criminals, sex offenders remain pariahs as an incident to rape culture and believing women. While there’s empathy for murders, there’s nothing but hatred and damnation for anyone who’s saddled with the “sex offender” characterization, whether deserved or not. So in 2021, Attorney General Merrick Garland decided to add another impossibility to the mix, because who doesn’t hate sex offenders?

The lead plaintiff, identified as John Doe in court documents, enlisted in the Marines at 17. Six years later, according to the original complaint, he had “a consensual but inappropriate encounter” with a 16-year-old girl that “did not involve sexual intercourse.” Because the teenager was two years younger than California’s age of consent, that encounter resulted in criminal charges. Doe pleaded no contest to a misdemeanor count of sexual battery, which required him to register as a sex offender. He was sentenced to three years of probation.
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          “Since then,” the complaint says, “Mr. Doe has dedicated himself to making amends and becoming a model citizen. He expressed sincere remorse for his crime and voluntarily underwent psychological treatment. And equipped with a healthier perspective, he pursued higher education and has had a rewarding and productive career, became a loving husband and father, and became an active participant in his church. He has done everything one is supposed to do following a criminal conviction.”

And indeed, California recognized that Doe “paid his debt to society,” to the extent there was a debit owed, and was given an unconditional pardon in 2012 and has his records expunged. Problem solved? Not even close.

It appears the federal district judge has somewhat agreed.

​The Court agrees with Plaintiffs that the practical effect of the Rule, in conjunction with 18 U.S.C. § 2250, has done exactly what is forbidden by the Constitution: “to declare an individual guilty or presumptively guilty of a crime.” Patterson, 432 U.S. at 210. In the Rule, the Government disavows any obligation or burden “to establish that a registration jurisdiction’s procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA” before prosecuting the individual for failure to do what it acknowledges is impossible. 86 F.R. at 69867. Doing so subverts the procedural safeguards deeply rooted in our history and constitutional framework.

The Pacific Legal Foundation has this to say on the case.

Represented by PLF free of charge and joined by the Alliance for Constitutional Sex Offense Laws (ACSOL), John is challenging 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.
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In 2019, the Supreme Court declined to reinvigorate the non-delegation doctrine in a case called Gundy v. United States. However, the Court avoided ruling on the constitutional issue, while several Justices mentioned in dissent that SORNA is ripe for a constitutional challenge. This case could present them with an opportunity to revisit that decision.

BTW, I'm told that Simple Justice has some leads out on an unfinished story by Lewis Carroll, initially titled 'Alice in KafkaLand.'