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

A fact guide from Derek W. Logue – Nov. 26, 2007

(Note: This article was one of OnceFallen’s earliest articles. The civil/regulatory argument still comes up regularly in court battles against sex offense legislation, so there may still be value in this article from 2007, but there have been many successful battles against many of the laws listed in this article that could provide better info than what is listed here.)

Sex Offense laws have faced constitutional challenges since the day of their inception, yet have withstood the perpetual onslaught primarily on a simple premise: sex offense laws are “civil” or “regulatory” in nature, not “criminal” or “punitive.” This argument is integral to the survival of sex offense 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 offense 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 offense 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,. 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.” 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.