The U.S. Supreme Court last decided the issue of whether post-incarceration sex offender regulations constituted punishment or nonpunitive regulations over twenty years ago. In coming to its conclusion, the Supreme Court assessed the regulations as they were written in the 1990s and the early 2000s and maintained the assumption that offenders constituted a greater danger to the public than other classes of criminals. In 2018, post-incarceration sex offender regulations are far more restrictive than they were two decades ago and scientific studies tend to refute the public belief that sex offenders are more recidivistic than other criminals. Recognizing this, some state courts and the Sixth Circuit Court of Appeals have held that these regulations are actually punitive in nature-and thus should require the requisite accompanying criminal constitutional protections. This Note is intended to survey the sex offender regulation statues enacted over the past two decades and argues that the effect of these laws is punitive, and thus constitutional protections, as afforded to other classes of felons, should apply as well.
Ryan W. Porte,
Sex Offender Regulations and the Rule of Law: When Civil Regulatory Schemes Circumvent the Constitution,
45 Hastings Bus L.J. 715
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol45/iss4/4