Let the burden fit the crime: extending proportionality review to sex offenders.

• Author: Miller, Erin
• Position: COMMENT

Draconian restrictions on the activities and privacy of convicted sex offenders are a new, and troublesome, trend. In 1994 and 2006, following a national dialogue about crimes against children sparked by several high-profile incidents, Congress passed two laws requiring states to register and regulate sex offenders residing within their borders. (1) States and municipalities soon caught on, and deepened restrictions. In the last five years alone, local governments have forbidden sex offenders to live within 2,000 feet of schools; (2) "be" within 500 feet of parks or movie theaters; (3) enter public libraries; (4) drive buses or taxis; (5) photograph or film minors; (6) and use social networking websites like Facebook. (7) Others have required sex offenders to advertise their status on driver's licenses (8) or social networking profiles; (9) wear GPS bracelets at their own expense; (10) notify local police when present in any county within the state for longer than ten days; (11) provide notice to all new neighbors within a roughly quarter-mile radius when they move; (12) and pay up to $100 annually to maintain sex offender registries. (13) These burdens typically last for a decade or for life, depending on the jurisdiction and the type of crime committed. (14)

Some sex offender restrictions (SORs) can be harder to comply with than is apparent at first glance. Residency restrictions, for example, can create overlapping f orbidden zones that bar sex offenders from living in entire cities. (15) A few years ago in Miami, sex offenders were known to camp under a bridge, one of few locations outside all exclusion zones. (16) Violating these restrictions can result in a felony conviction and as many as ten years in prison. (17)

Legislators often justify SORs on the grounds of preventing recidivism and see child molesters as the main targets. (18) The theory is that if the public is notified of dangerous past offenders in their neighborhood, and those offenders are barred from entering public areas frequented by vulnerable persons, then future sexual assaults can be prevented. The argument seems to be persuasive to much of the public, for SORs are popular with constituents. (19) Yet very few sex offenders--including child molesters--are recidivists. (20) Of those convicted of offenses against children, even fewer pose threats to the public at large because victims are often a member of the offender's own family. (21)

These restrictions often indiscriminately reach all sex offenders, irrespective of their dangerousness. Many SORs apply to first-time offenders and those convicted of minor offenses. (22) An eighteen-year-old who had consensual sex with his sixteen-year-old girlfriend and was convicted of statutory rape in Arizona could be required to register as a sex offender, depending only on his and her exact birth dates. (23) Or someone convicted of urinating in public in California today might be forced to live in an isolated corner of Sacramento. (24)

SOR statutes, however carelessly drawn, largely evade constitutional checks. They ordinarily meet the rational basis test, for legislators can always allege that sex offenders pose some threat of recidivism, and that restricting their movements or privacy reduces the threat, even when they fail to target the sex offenders who pose an actual danger. Courts have condoned SOR statutes under rational-basis review even when legislators acted on erroneous information about recidivism rates among sex offenders. (25) And the Supreme Court has explicitly limited other constitutional review of SORs. In Smith v. Doe, the Court held that community notification laws for sex offenders do not violate the Ex Post Facto Clause because post-sentence restrictions on sex offenders are "civil" rather than "criminal." (26) Presumably this means SORs cannot be reviewed under the Cruel and Unusual Punishment (27) or Double Jeopardy Clauses, either. Because SORs typically enroll sex offenders automatically based on prior convictions at trial, the Court held in a companion case to Smith that the Due Process Clauses do not require the government to hold individualized hearings to determine whether an offender should be subject to SORs. (28)

The lack of constitutional checks might be surprising given that courts review some civil sanctions for "proportionality" with the underlying wrongdoing under the Due Process Clauses. In the landmark case BMW of North America, Inc. v. Gore, (29) the Supreme Court invalidated a punitive damage award in a civil lawsuit as "grossly excessive" compared to the injury done. (30) The Court developed three "guideposts" for assessing proportionality that resemble the factors in cruel-and-unusual-punishment analysis under the Eighth Amendment. (31)

This Comment argues that the justifications the Court appealed to in the punitive damages context militate with equal or greater force for a comparable requirement for SORs, and then proceeds to show that the test the BMW Court outlined easily translates into the SOR context. While scholars have proposed constitutional review of SORs under doctrines other than the one articulated in this Comment, proportionality offers unique advantages. Unlike review under the Ex Post Facto Clause (32) or Eighth Amendment, (33) proportionality does not flout Smith's judgment that SORs are civil regulations. Unlike review for violation of particular constitutional liberties, such as free speech, (34) proportionality can be used to review all SORs, not just those that infringe particular substantive rights. Proportionality analysis also drives to the heart of the problem with many recent SORs: that they target more people, more harshly, than is necessary to achieve their objectives. It could therefore go a long way toward curbing SORs of great severity or duration that are imposed indiscriminately on many or all categories of sex offenders, including those convicted of non-violent crimes.

1. PROPORTIONALITY REVIEW OF PUNITIVE DAMAGES

   Courts review criminal punishments under the Eighth Amendment for proportionality, meaning that punishments must bear some reasonable relationship to the crimes that trigger them. (35) While early twentieth-century precedents hinted that due process requires civil penalties, too, to be proportionate, the Court did not invalidate a single civil damages award for disproportionality from the Lochner era until 1996. (36) Due process regulated only the procedures used to deprive a person of life, liberty, or property, imposing no substantive limit on the amount of that deprivation.

   The early hint that proportionality might be a "substantive" due process right was confirmed in 1993 in TXO Production Corp. v. Alliance Resources Corp., when a plurality of the Court extended proportionality review to punitive damages. (37) Punitive damages may be imposed in civil lawsuits, in addition to compensatory damages, to further state interests in punishment and deterrence. (38) Generally they are available only for reckless, malicious, or oppressive conduct. (39) TXO established that a punitive damages award violates the Fourteenth Amendment's Due Process Clause if it is "grossly excessive" relative to the state's legitimate purposes. (40) The Court has not applied due process proportionality to any other civil penalty. (41)

   When the Court first overturned a punitive damages award as "grossly excessive," in Gore in 1996, it articulated three "guideposts" for excessiveness: the reprehensibility of the conduct; the disparity between the punitive and compensatory damages; and the difference between the punitive damages and other civil penalties for similar misconduct, in the same or other jurisdictions. (42) This review is stricter than rational basis but falls short of heightened scrutiny. (43) Using the Gore factors, the Court has invalidated punitive damages with ratios to compensatory damages of 500:1 (44) and 145:1. (45) In 2003, the Court refined the test into a near-categorical principle: "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." (46)

   The Court has offered several justifications, express and implied, for applying proportionality review to punitive damages. On the cursory reasoning of the early 1900s civil proportionality cases, cited by Gore, deprivations of property that are "plainly arbitrary and oppressive" (47) or "grossly excessive" (48) compared to what is required to achieve any government purpose are presumably issued without due process. In and since Gore, the Court has identified specific features of punitive damages that raise special due process concerns triggering proportionality review: they (1) may not give fair notice to potential offenders of the penalties for their conduct; (2) are imposed through an adjudication designed for a different purpose; and (3) are imposed with so much discretion and against such disfavored groups that the risk of arbitrary enforcement is high. Additionally, while the Court has not expressly observed it, a fourth feature unites punitive damages with other sanctions reviewed for proportionality under other constitutional provisions: they serve to punish, a function that implicates traditional retributive limiting principles like proportionality.

2. THE PARALLEL BETWEEN PUNITIVE DAMAGES AND SEX OFFENDER RESTRICTIONS

   The four justifications listed above for applying a proportionality principle to punitive damages can readily be applied in other contexts. Below, I elaborate on these justifications and explain how they apply with equal or greater force to SORs. Conveniently, a 2003 opinion by Chief Justice Rehnquist suggests that a "substantive due process" challenge to SORs remains open. (49)

   First, both punitive damages and SORs raise concerns about adequate notice. The Court's primary reason for imposing a proportionality requirement in Gore was that, without it, potential...