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April 16, 2014

"Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders"

The title of this post is the title of this paper by Erin Lynn Miller, which I just noticed via SSRN. Here is the abstract:

Under current due process doctrine, punitive damages awards against civil defendants are reviewed for "proportionality" with the underlying misconduct, in accordance with traditional principles of retribution in punishment.  This Comment argues that the same proportionality analysis could and should be applied to review statutes imposing harsh civil restrictions on the lives of released sex offenders who have already served their criminal sentences.

The argument first proceeds by way of analogy.  Like punitive damages in the civil context, sex offender restrictions are (1) in tension with the principle of fair notice of punishment, (2) imposed via a structurally defective procedure, (3) directed against a socially disfavored group, and (4) punitive in nature. It is these justifications that the Supreme Court has offered for reviewing the proportionality of punitive damages. Adapting the proportionality test developed in the punitive damages case BMW v. Gore, this Comment then outlines four factors that courts could use to review sex offender restrictions under the Due Process Clauses.

April 16, 2014 at 10:38 AM | Permalink


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Lady Justice is is still blind and holds the scale signifying equality of law for all.

We are trying to get away with continued punishment for those convicted of a more serious crime AFTER completion of the original imposed sentence.

Bullshit! You don't get to pick and choose who gets released and who must endure more punishment.

Posted by: Book38 | Apr 16, 2014 5:27:03 PM

Hopefully state courts will start to come around to the opinion that life long registration is unconstitutional.

Johnson v. Lloyd -- http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27383.pdf

In that case, Circuit Court Judge William H. Seals, Jr. held that the purpose of the registry was to "protect the public from sexual offenders who may re-offend," and that Johnson did not satisfy this criteria.

Posted by: IScream | Apr 25, 2014 9:13:52 PM

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