Sex Offenders, Custody and Habeas

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.