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September 9, 2018

"Sex Offenders, Custody and Habeas"

The title of this post is the title of this new paper by Wendy Calaway now available via SSRN.  Here is the abstract:

Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty.  It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence.  Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive.  However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts.  The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition.  The courts have not required that an individual be physically held in order to satisfy the custody requirement.  In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody.  However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements.

This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous.  The Article discusses the history and evolution of the custody requirement and its application to sex offender cases.  Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed.  The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.

September 9, 2018 at 11:48 PM | Permalink


With all the research and data available about sex offenders and the extremely low recidivism rate AND the very fact that Justice Kennedy used false information when making the statement that the recidivism rate was "Frightening and High" (See Washington Post Article: The big lie about sex offenders).

Now we have this excellent research about the factual custody of people who have the designation of "Sex Offender", with MANY people who have completed their sentence years ago >>> now back in custody without due process.

The Six Circuit Doe v Snyder has already decided that SORNA is punishment and is therefor Unconstitutional AND SCOTUS denied cert.

So I ask you, why is it that a United States citizen that is supposed to be afforded ALL the protections given in the Constitution, have been subjected to these kinds of restraints and when the courts provide relief (society and the politician's) turn a blind eye??

Don't give me the fantasy explanation that SORNA regulatory and not criminal......it's criminal and used solely on one group of individuals.

Posted by: Book38 | Sep 10, 2018 9:21:02 AM

Book38, I'll answer with three questions...

Why did the courts need to decide on Brown v. The Board of Education?
Why did the courts need to decide on the Dred Scott case?
Why did Eugenics start here and not Nazi Germany?

Simply put: All our courts are, first and foremost political organizations, not constitutional law arbitrators.

Posted by: tommyc | Sep 10, 2018 12:05:55 PM

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