California voters could not resist the chance to condemn human trafficking and sex offenders who prowl the Internet. In 2012, they approved Proposition 35, the Californians Against Sexual Exploitation Act, with 81.3% of ballots cast.
Powerful though it was politically, the initiative is a prime example of why, with rare exceptions, criminal law should not be written by initiative promoters. The 9th U.S. Circuit Court of Appeals made that clear Nov. 18 by striking down the Prop. 35 requirement that registered sex offenders provide law enforcement authorities with their Internet handles and email addresses.
The provision infringed on the First Amendment free-speech rights of people who had served their time, the judges concluded. Although their crimes may have been despicable, even sex offenders have rights once they no longer are on parole.
Prop. 35’s backers included earnest advocates who were motivated by their faith or had been victims. Former Facebook attorney Chris Kelly, a Democrat who lost a run for attorney general in 2010, provided the bulk of the $2.8 million used for the campaign.
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The initiative’s skeptics didn’t bother to organize a campaign. But in 2012, prosecutors worried that the initiative’s wording would undermine their ability to prosecute human trafficking. Civil libertarians quickly challenged the measure once it passed.
California long has required sex offenders to provide police with their addresses and photographs. The registry includes more than 90,000 names, more than police can track. Prop. 35 would have required that police capture online screen names for tens of thousand of registrants. The Legislature had rejected such proposals in the past because they were seen as too costly and burdensome.
The 9th Circuit case, Doe v. Harris, involved two parolees identified as Doe and Roe, who had been convicted of sex-related crimes more than two decades earlier and had completed probation and parole.
The judges said the initiative failed to make clear exactly what information they needed to provide; afforded insufficient safeguards against public release of the information; and had an overly broad requirement that they provide the information within 24 hours.
The legislative process, with its multiple hearings and analyses, can correct such ambiguities. Initiatives offer no opportunity for revision. Voters must vote up or down on language written by people who may or may not have expertise in complex areas of the law.
Human traffickers and other sex offenders are a scourge. But once they have served their time, the rule of law requires that their rights be restored. That is fundamental to our society.
State Attorney General Kamala Harris has not decided whether to appeal. She should drop it, and relegate Proposition 35 to the scrap heap of flawed initiatives.