Sex offenders are different: extending Graham to categorically protect the less culpable.

• Author: Buske, Eric J.

INTRODUCTION

Phillip Alpert was seventeen years old when his then-sixteen-year-old girlfriend sent him nude photos. (1) A year later at age eighteen, during a breakup, Alpert made an error in judgment. (2) He went online and forwarded the pictures to his girlfriend's email contact list. (3) He was arrested and charged with seventy-two offenses, including lewd and lascivious battery, possesssion of child pornography, and distribution of child pornography. (4) He pled guilty and is now a registered sex offender. (5) Alpert cannot live near schools or playgrounds and was expelled from school. (6) Barring a change in current law, he will be removed from the sex offender registry when he turns forty-three. (7)

John Doe, on the other hand, has a long history of sexual crimes, typically involving children. (8) He has multiple convictions for molestation, attempted molestation, and exhibitionism. (9) Doe was banned from entering the Lafayette, Louisiana, public parks after a citizen complained that he was cruising parks and watching children. (10) Doe readily admitted that he went to the park to watch children, that he was having sexual urges toward them, and that he thought about exposing himself to them. (11) Doe's psychiatrist testified that Doe had no control over his sexual thoughts and that he would always have inappropriate urges for sexual contact with children. (12) She opined that the park ban helped him to control his urges, but conceded that it was no guarantee he would not reoffend. (13)

These two stories represent two extremes of sex offenders. (14) While Alpert clearly committed a crime and deserved to be punished, he has no other history of sexual violence or pedophilia. (15) Alpert was a minor himself when he received the pictures, and had just turned eighteen when he sent them out. (16) He was motivated by anger after his breakup, not a desire for sex or violence. Doe is a pedophile, and cannot control his thoughts toward children. (17) He readily admits his urges, and his psychiatrist testified that he should be kept away from children. (18) Despite these differences, Alpert and Doe are both registered sex offenders. (19) And, as registered sex offenders, Alpert and Doe would be subject to the same residency restrictions in some states. (20)

First enacted in 1995, residency restrictions have rapidly spread in the last fifteen years. (21) The restrictions prohibit designated sex offenders from residing within certain distances, often 1000 or 2000 feet, of areas where children congregate. (22) The specific details vary from law to law. (23) Some states, such as Florida, seek to regulate only those whose crimes include children. (24) others only restrict those who have committed more serious sexual crimes or are otherwise classified as dangerous. (25) Louisiana, for example, makes it unlawful for a sexually violent predator to be within (1000) feet of defined areas that children are likely to frequent. (26) other state laws, however, go further and apply broadly to all registered sex offenders--regardless of the underlying crimes. (27) Residency restrictions may be imposed by either states or municipalities, (28) with many municipalities imposing more stringent restrictions than the states. (29) The most commonly stated reasons for imposing these restrictions are to prevent children from abduction and to prevent pedophiles from "grooming" children. (30)

Though popular, residency restrictions have been consistently criticized in academic literature. (31) Many commentators observe that they are ineffective or unnecessary. (32) others highlight the extreme loss of liberty these restrictions impose. (33) Still others observe that they often regulate offenders' interactions with children even when such offenders have not targeted children previously and there has been no finding that these offenders are likely to reoffend. (34) Residency restrictions appear to assume that most sex offenders are violent pedophiles that target strangers, even when reality differs. (35)

Given these criticisms, it is not surprising that residency restrictions have been repeatedly challenged in courts--though they have not yet reached the Supreme Court. (36) Defendants consistently challenge these restrictions by claiming that their imposition constitutes a taking, (37) infringes upon an individual's right to substantive due process, (38) and offends the Eighth Amendment (39) and the Ex Post Facto Clause. (40) The variety of these challenges is not surprising given that residency restrictions are relatively new and do not clearly fit within any one provision of the Constitution. (41) Though punitive in effect, they do not easily fit within the judicial definition of punishment. (42) Thus, courts must attempt to delineate where the laws fit into a given constitutional scheme. (43)

Even with such challenges, residency restrictions have largely been upheld. (44) Indeed, many states and municipalities have passed, or have attempted to pass, increasingly restrictive statutes in recent years. (45) The public hatred towards sex offenders makes statutes like these especially popular. (46)

While the arguments against residency restrictions are compelling, this Note does not call for their abolition. As the Doe situation illustrates, (47) there are offenders who should be kept away from children. Instead, this Note argues that the real problem with current residency restrictions is that they are applied too broadly, and against numerous offenders who do not deserve to be so restricted. (48) In lieu of barring them all together, courts should rein in the scope of who can be constitutionally restricted, thereby preventing comparatively innocent conduct from being grouped with sexually dangerous behavior. This Note urges achievement of this objective through the categorical approach to the Eighth Amendment.

The categorical approach to the Eighth Amendment can be adopted in this context through two relatively minor shifts in current doctrine. (49) One is via an extension of a recent court decision, Graham v. Florida, (50) to allow sex offenders to challenge residency restrictions categorically, rather than individually. The other is for courts to recognize residency restrictions as punishment. This Note proceeds in five parts. The first provides relevant background on the Eighth Amendment. The second explores the meaning of Graham v. Florida and how it relates to residency restrictions. The third evaluates residency restrictions under the Eighth Amendment. The fourth explores the meaning of punishment, whether it encompasses residency restrictions, and reasons to redefine it. Part V offers some concluding thoughts.

1. EIGHTH AMENDMENT BACKGROUND

   In addition to banning barbarous punishments like torture, (51) the Eighth Amendment requires proportionality between sentences and punishment. (52) A consistent definition of proportionality has proven elusive. (53) The current doctrine consists of two separate types of proportionality analysis. (54) The first type considers the circumstances surrounding a particular defendant and a particular sentence in order to determine if the sentence is grossly disproportionate. (55) The second type allows classes of defendants to challenge a sentencing practice and results in "categorical restrictions" on sentences under the Eighth Amendment. (56) This part will outline the development of these approaches.

   1. Defining Proportionality

      The Supreme Court first expressly acknowledged that punishments must be keyed to offenses in Weems v. United States. (57) Paul Weems, a public official in the Philippines, was convicted of falsifying a public document and sentenced to a fine and fifteen years of cadena temporal, a form of imprisonment that involves hard labor. (58) The Court began its analysis by acknowledging that the full scope of "cruel and unusual" had not been clearly defined. (59) It proceeded to describe a series of decisions, with some suggesting the requirement of proportionality and others disavowing it. (60) Ultimately, the Court expressed its belief that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense." (61) The Court then struck down Weems' sentence as disproportionate, and thus cruel and unusual. (62)

      A series of decisions after Weems laid down other basic principles of current Eighth Amendment analysis. (63) Robinson v. California (64) held that ninety days' imprisonment was cruel and unusual for the crime of addiction to narcotics. (65) Cruelty, it held, should not be determined in the abstract. (66) The Court illustrated the point by noting that a day in prison would be cruel and unusual if imposed for the crime of having a cold. (67) Trop v. Dulles (68) discussed Weems and held that the meaning of the Eighth Amendment derives from "the evolving standards of decency that mark the progress of a maturing society." (69) Several cases thereafter have invoked this analysis while striking down application of the death penalty to certain lesser crimes. (70)

      Weems definitively established that sentences must be proportional, but it did not provide a clear test or factors that courts should consider in evaluating sentences. (71) Eighth Amendment cases after Weems reaffirmed proportionality, but also did not outline clear guideposts for reviewing courts. Finally, in Solem v. Helm, which was decided seventy-three years after Weems, the Court began to articulate the standards that inform current proportionality analysis. (72)

      Jerry Helm was a career criminal who committed his seventh nonviolent felony by writing a bad check. (73) He was sentenced to life in prison under a recidivist statute. (74) The Court first rejected the State's contention that proportionality was not applicable to a felony prison sentence. (75) Finding that federalism and the need for individual sentencing create a wide range of constitutional sentences, the Court found...