Academic journal article St. John's Law Review

Sex Offenders, Custody and Habeas

Academic journal article St. John's Law Review

Sex Offenders, Custody and Habeas

Article excerpt


The conventional rhetoric surrounding discussions of habeas corpus, as the great instrument for the protection of freedom, often ignores the realities of how access to habeas corpus is granted or, more importantly, denied. The legislature has taken great efforts to limit state petitioners' access to the federal courts.1 Generally, courts have enforced the procedural rules and regulations, making access to courts for state petitioners cumbersome and complicated;2 however, in at least one respect, the jurisdictional requirement of custody, courts have taken a more liberal view.

To obtain federal habeas review of a petitioner's state conviction, the petitioner must be in custody.3 The Supreme Court's determination of the meaning of the custody requirement has revolved around restraints on liberty.4 Petitioners need not be physically confined to demonstrate custody, but must suffer significant restraints on their liberty.5 Using this paradigm, the Supreme Court has extended the definition of custody to those on parole, those on probation, and those out on bond awaiting trial.6 Lower courts have extended this reasoning even further;7 however, courts have failed to apply the custody requirement to sex offenders seeking habeas review in a coherent, realistic manner.

Most courts have determined that once a person's prison sentence has expired, she is no longer considered to be in custody for purposes of habeas review, even if she has to comply with sex offender requirements.8 Using a variety of standards and factors, courts have determined that the sex offender requirements are not significant restraints on physical liberty.9 In doing so, courts have failed to consider the particulars of the sex offender legislation compared to those of other jurisdictions and have failed to consider the data produced by social scientists on the implications of the sex offender designation. The reality is that sex offenders from many states are burdened by restrictions and requirements far more onerous than individuals on probation or parole. Further, like individuals on probation or parole, sex offenders are subject to severe criminal penalties for violation of the requirements. Failure to acknowledge these realities leads to a result that is required by neither Supreme Court precedent nor by the habeas statute.

This Article focuses on habeas petitioners under a conviction from state court seeking federal habeas review. First, Part I will discuss the historical context of the writ of habeas corpus and the development of its purpose and scope. Part I also examines the current status of habeas corpus law, recent legislative efforts to limit its reach, and, specifically, the idea of custody as a prerequisite to habeas relief. Part II explores the evolution of the custody requirement both at the Supreme Court and in lower federal courts. In particular, this section looks at how the meaning of custody has evolved over time from physical custody to more intangible restrictions on liberty. Part III addresses the application of custody jurisprudence to the issue of sex offenders. The Supreme Court has not directly addressed this issue, but several circuit courts have, and Part III addresses the implications of these decisions. Part IV examines sex offender legislation by discussing the particulars of various state statutes and reviewing social science research regarding the effect of the legislative requirements. Finally, Part V looks at the standard applied by courts when discussing sex offender designation as "custody." This Article argues that the standard has shifted and been analyzed inconsistently. The conclusion contends that, consistent with Supreme Court and lower court precedent on the issue of custody, individuals in many states subject to sex offender laws suffer significant restraints on their liberty and, therefore, meet the jurisdictional requirement for habeas review.


Often considered "the most celebrated writ in the English law"10 and "[t]he most important human rights provision in the Constitution,"11 the writ of habeas corpus has been for centuries esteemed as the preeminent means by which people of a free society maintain their liberty. …

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