How Sex Offender Laws Circumvent the Constitution:
Civil/ Regulatory versus Criminal/ Punitive

A fact guide from Derek “The Fallen One” Logue - © Nov. 26, 2007

Sex Offender laws have faced constitutional challenges since the day of their inception, yet have withstood
the perpetual onslaught primarily on a simple premise: sex offender laws are “civil” or “regulatory” in
nature, not “criminal” or “punitive.” This argument is integral to the survival of sex offender legislation.
Criminal laws are bound by various safeguards allotted to us by the US Constitution; civil laws are free
from these safeguards. Legislators successfully circumvented the Constitution by declaring sex offender
laws “civil.” This notion must be attacked in order to have any hope of repealing such blatantly
unconstitutional laws.

Is this argument really that important?

Without a doubt, this argument is the backbone of sex offender legislation. In my own case, McNeil v.
Logue, Case # A050486 (Ct of Common Pleas, Hamilton Co, OH 2006), I made the claim sex offender
residency restrictions violated both the 8th Amendment (cruel and unusual punishment) and the 14th
Amendment (Due Process, right to peacefully reside within a state). The judge ruled, “This argument fails
because the restriction is of a civil nature and does not constitute a punishment… Chapter 2950 (Ohio‘s
sex offender code) is absolutely devoid of any language indicating an intent to punish… Protecting the
public and preventing crimes are the types of purposes [the US Supreme Court has] found regulatory and
not punitive.” While the judge admitted the law “does impose a certain restraint on residency and may
serve a deterrent effect,” he would not admit it served the traditional means of punishment. “Because this
court has determined the law is non-punitive, there can be no 8th Amendment violation.” This argument
reflects other famous court decisions: Doe v. Miller, 405 F. 3d 700 (8th Cir. 2005), the ruling reversing the
first successful challenge to residency restrictions; Smith v. Doe, 538 US 84 (2002), upholding Alaska’s sex
offender registry; and Kansas v. Hendricks, 521 US 346 (1997), which upheld civil commitment for sex
offenders. In fact, virtually every counterargument begins with the regulatory nature of these laws.

Are these laws punitive?

If you have experienced these laws firsthand, then you’re shouting “yes” emphatically. Proving this in a
court of law, however, is quite the challenge. As noted in McNeil v. Logue, even when the court admits sex
offender laws serve a punitive purpose, the court favors the regulatory argument. This is why I believe this
argument must be emphasized in every challenge to sex offender laws. The following cases lay the
groundwork to the argument residency restrictions are indeed punitive:

Argument # 1: SO laws are punitive by the nature of the laws’ effects

  • Though the residency restrictions are regarded as civil sanctions, even a civil penalty is considered
    a punishment if the sanction cannot be fairly said to serve a remedial purpose, but instead as a
    deterrent or retribution, [US v. Gartner, 93 F. 3d 633, cert. denied 519 US 1047], or when it is
    overwhelmingly disproportionate to the damages caused to the government [US v. Walker, 940 F.
    2d 442].
  • Demery v. Arpaio, 378 F. 3d 1020, cert. denied 125 S. Ct. 2961, 162 L. Ed. 2d 887: claim that
    certain sanctions served purposes of deterrence and public scrutiny does not justify sanctions which
    do not serve a legitimate governmental purpose or causes harm to the targets of the sanctions.
  • E.B. v. Verniero, 119 F. 3d , rehearing denied 127 F.3d 298, cert. denied, 522 US 1110: even when
    punishment is neither the actual or objective purpose of the law, civil sanctions may constitute
    punishment if the effects or “sting” are harsh enough to be considered a punishment, and must be
    evaluated in light of importance of any legitimate governmental interest served.

Argument # 2: SO Laws serve as historical means of punishment

  • In Artway v. Attorney General of the State of New Jersey, 81 F. 3d 1235, rehearing denied 83 F. 3d
    594: even if some remedial purpose can fully explain a legislative measure, if historical analysis
    shows a sanction has been traditionally regarded as punishment, and if text or history does not
    demonstrate that the measure is not punitive, it must be considered a punishment.

Argument # 3: SO Laws counter their own claim the sole purpose is public safety

  • The residency restriction law is an act of banishment comparable only by deportation of illegal
    aliens. Trop v. Dulles, 356 US 86 (1958): an order of banishment (or “divestiture”) was executed
    against a native born citizen who did not voluntarily relinquish or abandon his citizenship or become
    involved in any way with any foreign nation. “Divestiture of a natural born citizen was held to be
    unconstitutionally forbidden as a penalty ‘more cruel and more primitive, inasmuch as it entailed
    statelessness’ or ‘the total destruction of the individual’s status in organized society.” (CRS/LII Ann.
    Const. 8th Amdt,. www.law.cornell.edu/anncon/html/amdt 8_user.html).
  • In Rutherford v. Blankenship, 468 F. supp. 1357, 1360 (W.D. Va. 1979), the Court stated, “To
    permit one state to dump its convict[ed] criminals into another is not in the interests of safety and
    welfare; therefore, the punishment by banishment to another state is prohibited by public policy.”
  • Romer v. Evans, 517 US 620 (1996): “If the constitutional conception of ‘equal protection of the laws’
    means anything, it must at the very least mean that a bare…desire to harm a politically unpopular
    group cannot constitute a legitimate governmental interest…”

Argument # 4: “Risk alone” does not justify “regulatory action.”

  • The mere knowledge of a person’s past behavior does not justify a belief the person will
    automatically re-offend (Tot v. US, 319 US 463.)
  • The courts also established in order to prove conspiracy, there must be some concrete action
    related to specific acts [US v. Cintolo, 818 F. 2d. 980, 1003 (1987)].
  • The Courts have also struck down punishment based on a degraded status alone, like a drug addict
    [Robinson v. California, 270 US 660 (1962)].

Argument # 5: Laws must be limited only to those acts directly related to sex crimes

  • While the state may claim a compelling interest in deterring convicted sex offenders from re-
    offending, there are certain fundamental rights that are being infringed upon, and thus “more than a
    compelling interest is needed to survive constitutional scrutiny. The statute must be narrowly tailored
    to meet the compelling interest.” [Reno v. Flores (1993), 507 US 292, 301-302].
  • State v. Burnett (2001) 93 Ohio St. 3d 219, a law barring convicted drug offenders from entering
    Cincinnati’s “Over-The-Rhine” district failed constitutional analysis because it went beyond
    restricting those interests associated with illegal drug activity and restricted a substantial amount of
    innocent conduct, like living in an apartment, or visiting human services. The law restricted and/or
    punished behavior not even linked to criminal activity; merely the act of being in the restricted area
    was enough to get you arrested. Also, the restriction restricted drug offenders from obtaining the
    assistance or support networks necessary for rehabilitation which was otherwise severely diminished
    by the restrictions. Later upheld in Johnson et al. v. City of Cincinnati, 2002 FED App. 0332P (6th
    Cir.), cert. denied, US Supreme Court case no. 02-1452.
  • Furman v. Georgia, 408 US 238 (1972): “The Court will consider whether a punishment is (a) too
    extreme or barbaric; (b) arbitrarily imposed; (c) excessive, disproportionate, or inconsistent with
    contemporary norms; or (d) unnecessary to achieve a penal purpose that could be served by a less
    severe punishment.” (John Q. La Fond. “Preventing Sexual Violence: How Society Should Cope With
    Sex Offenders.” American Psychological Association, 2005, p. 180).

Argument # 6: SO Laws counter other fundamental rights and governmental interests

  • On the flip side, there are a number of ‘legitimate governmental interests” largely neglected by our
    government. The Courts have firmly established that “rehabilitation of criminals is of paramount
    interest.” [Abbott v. City of Beverly Hills, (Cal. Supreme Court, Feb. 26, 1960)] In the Abbott case, it
    was determined that registration of ex-felons is both in conflict with public policy and at variance with
    “moral and ethical concepts of decency and human dignity.”
  • In US v. Guest, 383 US 745 (1966), the Court addresses certain rights as basic and fundamental;
    “The reason, it has been suggested, is that a right so elementary was conceived from the beginning
    to be a necessary concomitant of the stronger Union the Constitution created.” See also Edwards v.
    California, 314 US 160; Kent v. Dulles, 357 US 116, 125-6; and Apthecker v. Secretary of State, 378
    US 500, 517.

Successful challenges to the laws

Though some of the cases presented thus far are specific to the residency restriction issue, the argument
itself applies to sex offender laws in general. For example, In the aforementioned Doe v. Miller case,
dissenting Judge Mallory  finds the laws violate Ex Post Facto, punitive as historical banishment, serves
traditional aims of punishment, imposes an affirmative disability or restraint, and excessive in meeting its
goals. While Mallory was the minority in this case, there have been a few successful challenges to various
sex offender laws. In each argument, the issue of punitive versus regulatory was addressed in some form
or fashion.

Residency Restrictions

  • State v. Benjamin David Groves, 05771-AGCR-199229 (Polk Co. Iowa 2006): Polk county judge
    Carol Egly dismisses case; “Residency restrictions are a severe restriction of the defendant’s liberty
    rights…defendant’s rights to substantive due process has been violated.”
  • Doe v. Miller (US Dist. Ct., So. Dist. IA, Davenport Div. Case # 3:03-cv-90067, 2002): The Court
    ruled the law violated Ex Post Facto, the 14th Amdt. procedural and substantive Due Process, and
    the 5th Amdt. safeguard against self-incrimination. Overturned by the 8th US Cir. Ct. of Appeals, but
    see Malloy’s dissenting opinion;
  • Mikaloff v. Walsh, Case No. 5:06-cv-00096, US Dist. Ct., ND Ohio, (2007): Strikes down Ohio’s
    residency restrictions as violating Ex Post Fact laws, also noting the laws are punitive and excessive
    to their stated purpose. (as in State v. Burnett)
  • Commonwealth v. Baker, 07-M-00604 (Kenton Dist. C., 4th Div. Apr. 20, 2007, cert. granted Aug.
    23, 2007, 2007-SC-000347). Strikes down Kentucky’s restrictions.
  • State of Florida v. Schmidt et al., Case # 16-2006-MO-010568-AXXX [Duval Co. FL (Oct. 11th, 2007)
  • Mann v. Georgia Dept. of Corrections et al., Case # S07A1043 [Sup. Ct. Georgia (November 21,
    2007)]

Registration/ “Megan’s Law”

  • In State of Hawaii v. Eto Bani (Nov. 21, 2001), the Court struck down the state’s registration law
    because it allowed authorities to notify the public about sex offenders without notifying the offenders
    or given the chance to argue they pose no threat (Bill Myers, “Hawaii Supreme Court.”  www.actwin.
    com/eatonohio/gay/schawaii.html). The registry in Hawaii was not fully abolished, but offenders were
    given the chance to argue their dangerousness. In 2003, the state Attorney General began a
    campaign to reverse the State Supreme Court’s ruling and deny the right to a hearing at all
    (Honolulu Star-Bulletin editorial, “Allow Sex Offenders to shed scarlet letter.“ Dec. 22nd, 2003).
  • In the birthplace of Megan’s law, New Jersey, saw more than its share of challenges, including
    another ruling against the law in the Federal District Court of Camden in 2001. Again, not a total
    victory, but in this ruling, the amount of information given in the registry. Connecticut also shut down
    its registry on a court order (Laura Mansnerus, “Megan’s Law Requirement Struck Down By US
    Judge, New York Times, Dec. 8th, 2001).  

Adam Walsh Act

  • US v. Cole, No. 07-cr-30062-DRH [S.D. Ill. (2007)]; United States v. Sallee, No. CR-07-152-L (W.D.
    Okla. Aug.13, 2007); United States v. Muzio, 2007 WL 2159462 (E.D. Mo. 2007); United States v.
    Stinson, 2007 WL 2580464 (S.D. W.Va. 2007): covers ex post facto challenges to the law
  • US v. Comstock et al., Case # 5:06-hc-02195-BR (E.D. NC Sept. 9, 2007): successful challenge to
    the Jimmy Ryce Civil Commitment Act, though noting the AWA is a civil, rather than criminal, matter

Points to consider

  • All legal challenges to sex offender laws must begin with arguing the punitive nature of the laws: all
    SO laws impose substantial penalties on all offenders, serve traditional means and goals of
    punishment, goes beyond regulating direct criminal actions, and justifies punishment on the basis of
    perceived risk alone.
  • Rehabilitation of offenders is also a paramount governmental interest; while legislators argue SO
    laws are issues of public safety and welfare, there is virtually no evidence to support their notion
    these laws work as intended, which is integral to any claim of legitimate interest. There are a myriad
    of studies available on each SO law to supplement such arguments.
  • Sex offender laws “shock the conscience,” a term meaning a law is so onerous it literally shocks
    human logic and reason. Emphasize the uniqueness of the SO Laws -- many of the laws are
    exclusive to sex offenders.
  • Convincing the judge the disputed law is indeed punitive opens the case to the constitutional
    safeguards people have taken for granted.
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