Federal habeas in the information age

Minnesota Law Review

Volumn 85, Issue 1, 2000, Pages 147-213

  Logan, Wayne A ^a,b,c,d  

^a William Mitchell College of Law   (United States)

^b WESLEYAN UNIVERSITY   (United States)

^c STATE UNIVERSITY OF NEW YORK   (United States)

^d UNIVERSITY OF WISCONSIN   (United States)

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[No Author keywords available]

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EID: 0041830415     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (399)

1. See U.S. CONST, art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). For comprehensive discussions of the writ's suspension during wartime, see MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991);
2. WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WAR TIME (1998).
3. For explorations of the common law and historic origins of the writ more generally, see WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980);
4. ROBERT S. WALKER, THE CONSTITUTIONAL AND LEGAL DEVELOPMENT OF HABEAS CORPUS AS A WRIT OF LIBERTY (1960);
5. Zechariah Chafee, Jr., The Most Important Human Right in the Constitution, 32 B.U. L. REV. 143 (1952);
6. Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 NOTRE DAME L. REV. 1079 (1995);
7. Dallin H. Oaks, Legal History in the High Court: Habeas Corpus, 64 MICH. L. REV. 451 (1966);
8. Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 MICH. L. REV. 862 (1994).
9. Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95 (1868). Blackstone referred to habeas as "the most celebrated writ in English law." 3 WILLIAM BLACKSTONE, COMMENTARIES *129. Alexander Hamilton, in responding to criticism that the Constitution lacked the protections afforded by the Bill of Rights, sought to neutralize concern by pointing to the availability of the writ, characterizing it as among "the greater securities to liberty." THE FEDERALIST No. 84 (Alexander Hamilton); see also 10 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 658 (1938) (referring to the writ as "the most effectual protector of the liberty of the subject that any legal system has ever devised").
10. Fay v. Noia, 372 U.S. 391, 401 (1963).
11. See Ex parte McCardle, 73 U.S. (6 Wall.) 318, 326 (1867) (stating that habeas jurisdiction extends to every "possible case of privation of liberty contrary to the National Constitution, treaties, or laws").
12. See generally Alan K. Chen, Shadow Law: Reasonable Unreasonableness, Habeas Theory, and the Nature of Legal Rules, 2 BUFF. CRIM. L. REV. 535 (1999) (surveying recent limits imposed on habeas availability);
13. Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381 (1996);
14. Note, The Avoidance of Constitutional Questions and the Preservation of Judicial Review: Federal Court Treatment of the New Habeas Provisions, 111 HARV. L. REV. 1578 (1998).
15. See, e.g., Frank J. Remington, Restricting Access to Federal Habeas Corpus: Justice Sacrificed on the Altars of Expediency, Federalism and Deterrence, 16 N.Y.U. REV. L. & SOC. CHANGE 339 (1987-1988);
16. Yale L. Rosenberg, Kaddish for Federal Habeas Corpus, 59 GEO. WASH. L. REV. 362 (1991);
17. Jordan Steiker, Restructuring Post-Conviction Review of Federal Constitutional Claims Raised By State Prisoners: Confronting the New Face of Excessive Proceduralism, 1998 U. CHI. LEGAL F. 315;
18. Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1 (1997);
19. Robert Weisberg, A Great Writ While it Lasted, 81 J. CRIM. L. & CRIMINOLOGY 9 (1990).
20. See infra text accompanying notes 20-38.
21. When reference to the "Great Writ" is made, such reference typically has as its object the writ ad subjiciendum, which guards against illegal detention and commands government actors to produce the petitioner so that the legality of the detention can be tested. See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807) (Marshall, C.J.). Blackstone identified four other historic forms of habeas: habeas corpus ad satisfaciendum, ad respondendum, ad prosequendum, testificandum et deliberandum, and ad faciendum et redpiendum.
22. See Fay, 372 U.S. at 399-400 n.5 (citing 3 WILLIAM BLACKSTONE, COMMENTARIES *129-32).
23. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82 (empowering federal courts to inquire into the "cause of commitment" of federal prisoners).
24. Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385-86 (codified as amended at 28 U.S.C. § 2241 (1994)). As a technical matter, in 1833 Congress allowed petition by a select group of persons detained by state actors: federal officials. Force Act of March 2, 1833, ch. 57, § 7, 4 Stat. 634-35. Similarly, in 1842, Congress extended habeas protection to foreign nationals detained by states. Act of Aug. 29, 1842, ch. 257, 5 Stat. 539. In a recent article, Professor Eric Freedman called into question the persistent assumption by the Supreme Court and scholars alike that federal habeas initially applied only to those detained by federal authorities. See Eric M. Freedman, Milestones in Habeas Corpus: Part I, Just Because John Marshall Said It, Doesn't Make It So: Ex parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789, 51 ALA. L. REV. 531 (2000).
25. Upon reviewing the ratification debates surrounding the Suspension Clause and federal decisions from the area of the seminal Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), where Chief Justice Marshall deemed federal habeas unavailable to state prisoners, Freedman concludes that Section 14 of the Judiciary Act of 1789 and common law authority provided federal courts authority to issue habeas writs relative to state and federal prisoners alike. See id.
26. As Professor Larry Yackle has observed, "[t]he modern 'custody' requirement has ancient roots, bearing a correlative relation to the function of the writ in the seventeenth century - to secure the release of persons who were wrongly confined. Applicants for the writ had to be in some form of 'custody' from which they could be discharged." Larry W. Yackle, Explaining Habeas Corpus, 60 N.Y.U. L. REV. 991, 999 (1985). Cases have also described the common law origins of the writ. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("It is clear from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody."); McNally v. Hill, 293 U.S. 131, 136 (1934) (stating that the common law function of writ is to test "the legality of the detention of one in the custody of another").
27. 28 U.S.C. § 2255 (1994 & Supp. 1998-99) (extending the right to "[a] prisoner in custody under sentence" of a federal court); 28 U.S.C. § 2254(b) (1994 & Supp. 1998-99) (extending the right to "a person in custody pursuant to the judgment of a State court").
28. 28 U.S.C. §§ 2241(c)(3), 2254(a) (1994); see also 28 U.S.C. § 2255 (1994 & Supp. 1998-99) (referencing the "Constitution or laws of the United States").
29. Id. The enabling provision for federal habeas jurisdiction is found in 28 U.S.C. § 2241(a) (1994) (providing "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions"). The states, in turn, have their respective post-conviction provisions. See DONALD E. WILKES, JR., FEDERAL AND STATE POSTCONVICTION REMEDIES AND RELIEF § 9-2 (1996); Clive A. Stafford Smith & Remy Voisin Starns, Folly By Fiat: Pretending That Death Row Inmates Can Represent Themselves in State Capital Post-Conviction Proceedings, 45 LOY. L. REV. 55, 57 (1999). The focus here, however, is exclusively on the federal habeas right available to state and federal prisoners and its construction by federal courts.
30. Carafas v. LaVallee, 391 U.S. 234, 238 (1968). In addition, petitioners must satisfy other requirements such as exhaustion of available state remedies and timeliness. See 2 JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §§ 22-24 (3d ed. 1998 & Supp. 1999); LARRY W. YACKLE, POSTCONVICTION REMEDIES §§ 52-87 (1981 & Supp. 2000). Habeas petitions are civil, collateral actions that are legally and procedurally distinct from direct appeals in the criminal process, yet nonetheless challenge the basis of criminal conviction and custody. See O'Neal v. McAnich, 513 U.S. 432, 440 (1995); Teague v. Lane, 489 U.S. 288, 310 (1989). Unlike a traditional civil action, however, with habeas "someone's custody, rather then mere civil liability, is at stake." O'Neal, 513 U.S. at 440.
31. See, e.g., Wales v. Whitney, 114 U.S. 564, 571-72 (1885) (denying writ sought by Navy officer who was confined to the territorial limits of the District of Columbia, because restraint must involve "actual confinement or the present means of enforcing it"); Sibray v. United States, 185 F. 401, 403-04 (3d Cir. 1911) ("The custody complained of must be actual and not constructive . . . . [The court must] have a subject to act upon, which is the body of the relator brought into court by the respondent."). But see Wolfe v. Johnson, 130 N.E. 286, 287 (N.Y. 1921) (Cardozo, J.) (construing the New York habeas writ expansively to include "constructive custody" associated with bail).
32. See BLACK'S LAW DICTIONARY 709 (6th ed. 1990) (providing Latin definition of habeas corpus as "[y]ou have the body"). For extended scholarly treatments of the "custody" requirement, see 1 LIEBMAN & HERTZ, supra note 15, § 8, at 321-44; YACKLE, supra note 15, §§ 41-51, at 177-229; Yale L. Rosenberg, The Federal Habeas Corpus Custody Decisions: Liberal Oasis or Conservative Prop?, 23 AM. J. CRIM. L. 99 (1995);
33. Frank W. Smith, Jr., Federal Habeas Corpus: State Prisoners and the Concept of Custody, 4 U. RICH. L. REV. 1 (1969);
34. Timothy C. Hester, Comment, Beyond Custody: Expanding Collateral Review of State Convictions, 14 U. MICH. J.L. REFORM 465 (1981);
35. Thomas M. Hitch, Comment, Federal Habeas Corpus: The Concept of Custody and Access to Federal Court, 53 J. URB. LAW 61 (1975).
36. See, e.g., Stallings v. Splain, 253 U.S. 339 (1920).
37. See, e.g., Weber v. Squier, 315 U.S. 810 (1942).
38. 371 U.S. 236 (1963).
39. Id. at 240.
40. Id. at 243.
41. Id; accord Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 510 (1982) (stating that the custody requirement is satisfied when a petitioner suffers "substantial restraints not shared by the public generally"); Fay v. Noia, 372 U.S. 391, 401-02 (1963) (stating that habeas functions "to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints"); 17A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4262 (Supp. 2000) (stating that "any restraint on a petitioner's liberty because of his conviction that is over and above what the state imposes on the public generally will suffice" to satisfy the custody requirement). With its focus on the liberty-restraining consequences of unlawful governmental action, habeas shares an originating purpose with the constitutional guarantee of due process, also dating back to the Magna Carta. See David Cole, Jurisdiction and Liberty: Habeas Corpus and Due Process as Limits on Congress's Control of Federal Jurisdiction, 86 GEO. L.J. 2481, 2502 (1998).
42. See Winthrow v. Williams, 507 U.S. 680 (1993) (prison); Townsend v. Sain, 372 U.S. 293 (1963) (jail); Brock v. Weston, 31 F.3d 887 (9th Cir. 1994) (special "civil" commitment facility for sexually violent predators).
43. See Jones, 371 U.S. at 242-43.
44. See Cervantes v. Walker, 589 F.2d 424, 425 (9th Cir. 1978).
45. See Lefkowitz v. Newsome, 420 U.S. 283, 286 n.2 (1975).
46. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300 (1984); Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., 411 U.S. 345, 346 (1973).
47. See Peyton v. Rowe, 391 U.S. 54, 67 (1968).
48. See Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986).
49. See Wottlin v. Fleming, 136 F.3d 1032, 1034 n.1 (5th Cir. 1998).
50. See Barry v. Bergen County Probation Dep't., 128 F.3d 152, 161 (3d Cir. 1997).
51. See Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993).
52. See Strait v. Laird, 406 U.S. 341, 346 (1972).
53. See United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999). Similarly, judicially compelled payment of a child support arrearage, even under the auspices of a county probation department, does not qualify as custody. See Galbo v. Tirri, 972 F. Supp. 292, 293 (D.N.J. 1997). The Galbo court elaborated as follows: Galbo is not being forced to act or refrain from acting in any way, other than to fulfill the terms of a court mandated civil judgment, ordering child custody payments. The Court's use of the Probation Department as the channel through which the payments should be made imposes no restraint on Galbo. Galbo is not on probation . . . . [H]e is not required to report to any specific individual to allow monitoring of his activities. Nor is he restrained from pursuing a given type of employment or from occupying a particular residence. Galbo is not made to submit to random drug tests or counseling. Thus, Galbo does not suffer under any of the hallmarks of custody under probation. Id. at 293-94.
54. See United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995); Spring v. Caldwell, 692 F.2d 994, 999 (5th Cir. 1982). But see Thistlethwaite v. City of New York, 497 F.2d 339, 343 (2d Cir. 1974) (suggesting in dictum that a fine already paid might suffice for habeas jurisdiction).
55. See Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (medical license); Harts v. Indiana, 732 F.2d 95, 96 (7th Cir. 1984) (driver's license); Ginsberg v. Abrams, 702 F.2d 48, 49 (2d Cir. 1983) (removal from judicial bench, loss of right to practice law, and disqualification as real estate or insurance agent); Harvey v. South Dakota, 526 F.2d 840, 841 (8th Cir. 1975) (exclusion from certain professions and the right to bear arms); Furey v. Hyland, 395 F. Supp. 1356, 1360 (D.N.J. 1975) (concerning a medical license and the legal capacity to hold public office); Whorley v. Brilhart, 359 F. Supp. 539, 541 (E.D. Va. 1973) (driver's license).
56. YACKLE, supra note 15, § 43, at 185 ("It may be that all the instances in which the Court is prepared to find 'custody' have not yet been identified, but it appears on the evidence to date that the cases can be arranged on a continuum . . . . As a practical matter, in the absence of clear rules for guidance . . . the best that can be proposed is a list of the decided cases and an attempt to identify the cases that remain for decision.").
57. The literature on collateral consequences is voluminous and expanding. See, e.g., George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895 (1999);
58. Walter M. Grant et al., The Collateral Consequences of a Criminal Conviction, 23 VAND. L. REV. 929 (1970);
59. Kathleen M. Oliveras et al., The Collateral Consequences of a Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 FED. PROBATION, September 1996, at 10;
60. Note, The Disenfranchisement of Ex Felons: Citizenship, Criminality, and "The Purity" of the Ballot Box, 102 HARV. L. REV. 1300 (1989);
61. Note, Civil Disabilities of Felons, 53 VA. L. REV. 403 (1967).
62. 391 U.S. 234 (1968).
63. Id. at 236.
64. Id. at 237-38 (footnotes and citations omitted).
65. Id. at 238.
66. Id. at 239.
67. Id. As a consequence, the Court squarely renounced its decision in Parker v. Ellis, 362 U.S. 574 (1960) (per curiam), which deemed moot a habeas claim of petitioner who was imprisoned at time of filing, yet freed when his petition was adjudicated.
68. 490 U.S. 488 (1989) (per curiam).
69. Id. at 489-90.
70. Id. at 490. The Court had no difficulty in concluding that the petitioner was in custody on the basis of his 1978 imprisonment. Id. at 493. The Court, however, "express[ed] no view on the extent to which the 1958 conviction itself may be subject to challenge in the attack upon the 1978 sentences which it was used to enhance." Id. at 494. Nevertheless, in the wake of Maleng, lower courts have "uniformly read [Maleng] as consistent with the view that federal habeas courts may review prior convictions relied upon for sentence enhancement and grant appropriate relief." Custis v. United States, 511 U.S. 485, 512 n.7 (1994) (Souter, J., dissenting); see also United States v. Clark, 203 F.3d 358, 364 (5th Cir. 2000) ("[A]s long as the habeas relief sought is framed as an attack on a present sentence, as to which the prisoner is still 'in custody,' then the expired conviction used to enhance that sentence may be challenged.").
71. Maleng, 490 U.S. at 491.
72. Id.
73. Id. at 492.
74. Id. (emphasis added).
75. Id. 54. See Garlotte v. Fordice, 515 U.S. 39, 47 (1995) (holding that consecutive sentences must be conceived in "the aggregate," permitting scrutiny of convictions associated with sentences that have already been served).
76. See Rosenberg, supra note 17, at 117 n.111 (stating that "the Court has not directly decided whether the custody requirement is met by collateral consequences alone," but Carafas and Maleng "strongly suggest" and "support" the contention that the requirement would not be satisfied).
77. See Note, Developments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038, 1077 (1970) (noting that "by refusing to consider the collateral restraints themselves a custody, Carafas results in an apparent, arbitrary distinction").
78. YACKLE, supra note 15, § 43, at 187.
79. Id. § 49, at 219 (emphasis in original); see also Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir. 1984) ("The existence of collateral consequences . . . may enable a petitioner who has fully served a sentence he wished to challenge to avoid being dismissed on mootness grounds, but it will not suffice to satisfy the 'in custody' jurisdictional prerequisite unless, as in Carafas itself, federal jurisdiction has already attached."); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir. 1984) ("[A] sentence that has been fully served does not satisfy the custody requirement of the habeas statute, despite the collateral consequences that generally attend a criminal conviction."). This paradox is evident in the Ninth Circuit's case law on sex offender registration and notification laws. Compare Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998) (concluding that the laws do not satisfy habeas custody requirement), cert. denied, 525 U.S. 1081 (1999), with Wood v. Hall, 130 F.3d 373, 376 n.1 (9th Cir. 1997) (rejecting claim of mootness in part because conviction would potentially subject petitioner to the laws). In addition, in order to avoid mootness, it appears that only "legal" collateral consequences qualify, those of a mandatory and statutory origin. See Lane v. Williams, 455 U.S. 624, 632 (1982) (suggesting that discretionary, "non-statutory consequences" relating to parole violation do not suffice to avoid mootness); see also YACKLE, supra note 15, § 49, at 220 (inferring that the Court's "repetitive use of the adjective 'legal' in referring to collateral consequences in the cases" suggests that "only legal effects will suffice"). As a result, mootness may prevail if the petition relies solely "upon the moral stigma of a criminal conviction and the social burdens imposed upon convicts by the private community." Id. Professor Yackle concludes that "[c]omplaints about official, legal effects of convictions are perhaps distinguishable from less tangible, social consequences." Id. (emphasis in original).
80. See McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999), cert. denied sub. nom. Henry v. Lockyer, 120 S. Ct. 397 (1999); Williamson, 151 F.3d at 1184.
81. See Note, Criminal Registration Ordinances: Police Control Over Potential Recidivists, 103 U. PA. L. REV. 60, 61-64 (1954) [hereinafter Registration Ordinances]. In 1934, Professor August Vollmer of the Berkeley law faculty advocated "universal registration" of all persons, highlighting what he saw as its manifold advantages.
82. See Note, Universal Registration, 25 J. OF CRIM. LAW, CRIM. & POL. SCI. 650, 650-52 (1934-1935). Two years later, the Philadelphia City Council passed an ordinance dedicated exclusively to persons convicted of crimes.
83. Note, Criminal Registration Law, 27 J. OF CRIM. LAW & CRIMINOLOGY 295, 295 (1936-1937). In Germany, criminal registration laws date back to the 1860s. Mathieu Deflem, Surveillance and Criminal Statistics, in 17 STUDIES IN LAW, POLITICS AND SOCIETY 149, 161 (Austin Sarat & Susan S. Sibley eds., 1997). The laws share a common pedigree with the eugenics and "signalment" movements of the mid-late nineteenth century, products of the emerging discipline of criminology and its effort to systematize crime control and analysis. In 1880s Paris, for instance, Alphonse Bertillon spearheaded a system of "anthropological signalment" that measured the head, arms, feet, and ears of criminal suspects, as well as scars and other identifying characteristics. The police used these data to solve cases and corroborate the identities of criminal suspects.
84. See generally ALPHONSE BERTILLON, SlGNALETIC INSTRUCTIONS (R.W. McClaughry ed., 1896).
85. See Elizabeth A. Pearson, Status and Latest Developments in Sex Offender Registration and Notification Laws, in NATIONAL CONFERENCE ON SEX OFFENDER REGISTRIES 45 (U.S. Bureau of Justice Statistics ed., 1998).
86. For an interesting discussion of how the justice system in effect subverted California's registration law in the 1960s by commonly permitting sex offenders to plead to crimes not requiring registration, see E.A. Riddle, Note, Compulsory Registration: A Vehicle of Mercy Discarded, 3 CAL. W. L. REV. 195 (1967).
87. State v. Ulesky, 252 A.2d 720, 721 (N.J. 1969).
88. Registration Ordinances, supra note 60, at 63; see also id. at 104 ("Local authorities also use the ordinance to expel 'undesirables' from the jurisdiction by suspending sentence upon condition that they leave town . . . . The pattern of selective prosecution which was discerned in some communities enables local authorities to use the ordinances as an additional effective harassing weapon.").
89. 355 U.S. 225 (1957).
90. Id. at 229.
91. See, e.g., Reyes v. United States, 258 F.2d 774, 781 (9th Cir. 1958) (upholding 18 U.S.C. § 1407 (1956), requiring registration of persons convicted of narcotics offenses who seek to enter or leave the United States); United States v. Bologna, 181 F. Supp. 706, 708-09 (S.D. Cal. 1960) (same). Judicial concern has surfaced, however, over locally-initiated registration ordinances, with the specter of state legislative preemption playing a central role. In State v. Ulesky, 252 A.2d 720 (N.J. 1969), for instance, the Borough of Belmar, New Jersey enacted an ordinance requiring those convicted within the past ten years of a "crime or a narcotics violation" to register with police within twenty-four hours of entry. Id. at 721. Such persons were required to submit a written statement under oath and forced to carry an identification card furnished by the authorities, the latter containing a photograph of the registrant as well as address and offense-related information. Id. Ulesky was arrested for failing to comply with the ordinance and eventually appealed to the New Jersey Supreme Court. Id. The Ulesky court reversed, concluding that the state had preempted the field when it required registration solely of narcotics offenders. Id. at 722-23. "The Legislature having considered the subject and having acted with such particularity, there is reason to believe the Legislature was unwilling to say that other convictions warranted such restraint upon the right of the individual merely to be or to move about." Id. at 722. The court added: Perhaps, too, it may be that the cumulative burden of legislation by all municipalities could exceed what due process of law would permit if it should appear the same public need could be met with a more modest burden by a statewide program or a statute specifying some uniform local legislative approach. It seems to us, therefore, that the subject is such that, while it does not foreclose the delegation of the State's police power to municipalities, it nonetheless advises against that course except under statutory guidance and restraint. For example, the Legislature, if it wished municipalities to deal with the matter, might well specify the particular crimes which it believes to be so suggestive of recidivism as to warrant the burden of registration, or prescribe a time limit upon the conviction, or require reciprocal recognition of registration among municipalities. Id. at 723. The Ulesky court, therefore, did not premise its holding on any per se objection to registration laws, but rather on the preemption concerns and the perceived benefits of uniformly applicable registration laws. See id. (suggesting a "central agency . . . as a more palatable alternative to successive appearances at each local police headquarters"). The California Supreme Court reached essentially the same result in Abbott v. Los Angeles, 349 P.2d 974 (Cal. 1960). Abbott essentially invalidated a Los Angeles criminal registration ordinance, using as an "example" of the California Legislature's intent to occupy the field its statute that targeted sex offenders alone for registration. Id. at 982. This narrow focus, the court reasoned, "leads unerringly to the conclusion that the Legislature has adopted a clear policy based upon the dual presumptions that certain criminals are recidivistic and others are not, and that certain types of crime require registration and others do not." Id; see also id. at 983 (inferring a legislative determination "that criminal identification together with maintenance and dissemination of criminal statistics is best handled at [the] state level").
92. The psychopath laws were directed toward securing involuntary civil institutional commitment of sex offenders, unlike registration laws, which seek community-based control of offenders. For discussions of the historic and contemporary uses of commitment laws, see Samuel J. Brakel & James L. Cavenaugh, Of Psychopaths and Pendulums: Legal and Psychiatric Treatment of Sex Offenders in the United States, 30 N.M. L. REV. 69 (2000);
93. Eric S. Janus & Nancy H. Walbeck, Sex Offender Commitments in Minnesota: A Descriptive Study of Second Generation Commitments, 18 BEHAV. SCI. & L. 343 (2000). In 1997, the U.S. Supreme Court endorsed a modern-day incarnation of the sexual psychopath laws when it rejected ex post facto, double jeopardy, and substantive due process challenges to Kansas's Sexually Violent Predator Act, which permits putative civil commitment of sex offenders after their release from prison.
94. See Kansas v. Hendricks, 521 U.S. 346, 350 (1997). In contrast to the avowed therapeutic mission of earlier commitment laws, the modern regimes are unabashedly predicated on incapacitation. See Janus & Walbeck, supra, at 344 (noting the "fundamental shift in the espoused justification for sex offender commitments": "Second generation sex offender commitments are explicitly aimed at incapacitation.").
95. See E.B. v. Verniero, 119 F.3d 1077, 1081-82 (3d Cir. 1997) (recounting the rapid passage of "Megan's Law" in the New Jersey Legislature); see also Robert Hartley, 'Megan's Law' is Questioned as Injunction is Extended, N.Y. TIMES, July 10, 1996, at B6 (recounting how legislators rushed the bill through session, with little in the way of hearings, in response to pleas of Megan's parents and the bill's advocates).
96. See, e.g., ADAM SAMPSON, ACTS OF ABUSE: SEX OFFENDERS AND THE CRIMINAL JUSTICE SYSTEM 124 (1994) (noting that the "vehemence of the hatred for sex offenders is unmatched by attitudes to any other offenders");
97. Mimi Hall, A Furor Brews Over Release of Sex Offenders, USA TODAY, Aug. 17, 1994, at A3 (describing marked upsurge in public concern over sex offenders and legislative efforts in response);
98. David van Biema, Burn Thy Neighbor, TIME, July 26, 1993, at 58 (noting that the "mass culture and some experts" refer to sex offenders as "irredeemable monsters").
99. See Andy Newman, Megan, Her Law and What It Spawned, N.Y. TIMES, Feb. 25, 1996, at N.J. 18.
100. Brian McGrory, Clinton Sets Tracking of Sex Offenders, BOSTON GLOBE, Aug. 25, 1996, at Al;
101. see also Ron Fournier, Clinton Signs Law On Sex Offenders, CHICAGO SUN-TIMES, May 18, 1996, at 12 (quoting President Clinton: "If you dare to prey on our children, the law will follow you wherever you go - state to state, town to town.").
102. See Registration Ordinances, supra note 60, at 77-78. This distinction between the old and new regimes, however, will not likely persist. Delaware, for instance, now requires that sex offender registrants have a "Y" emblazoned on their automobile drivers' permits. See DEL. CODE ANN. tit. 21, § 2718(e) (1998). Similarly, Arizona, Michigan, and Texas now require registrants to acquire drivers' licenses or other official personal identification cards with photographs to facilitate their ongoing identification. See ARIZ. STAT. § 13-3821(H) (1999); MICH. COMP. LAWS § 28.725(a)(6), (7) (2000); TEX. CODE CRIM. PROC. arts. 42.016, 62.065 (2000). The Arizona and Texas laws mandate that the cards be renewed on an annual basis, in contrast to the lengthier renewal periods for non-registrants. See ARIZ. STAT. § 13-3821(H); TEX CODE CRIM. PROC. arts. 42.016, 62.065.
103. Congress has set forth certain de minimis requirements with which states must comply if they are to avoid losing ten percent of their federal law enforcement funding. For instance, federal law designates minimal standards as to which offenders must register, the information that must be provided (name, address, fingerprints, and a photo), and the period of registration (ten years). 42 U.S.C. § 14071(a)-(b) (Supp. 1994).
104. See Wayne A. Logan, A Study in "Actuarial Justice": Sex Offender Classification and Procedure, 3 BUFF. CRIM. L. REV. 593 (2000) (discussing the methods currently employed in jurisdictions to classify offenders for purposes of registration and notification).
105. See, e.g., ALASKA STAT. § 11-56.835 (1998); ARIZ. REV. STAT. § 13-3824 (Supp. 1999); MICH. COMP. LAWS § 28.729 (West 2000); MINN. STAT. § 243.166 (2000); WASH. REV. CODE § 9A.44.130(10) (2000).
106. As with registration, jurisdictions failing to develop systems to "release relevant information that is necessary to protect the public" risk the loss of significant federal law enforcement funds. 42 U.S.C. § 14071(e) (2000).
107. See, e.g., CAL. PENAL CODE § 290.4(a)(3) (West 1999); N.Y. CORRECT. LAW § 168-p (McKinney 2000).
108. Several organizations maintain web sites that permit links to jurisdictions currently making use of the Internet for notification purposes. See, e.g., Megan's Law in All 50 States, available at http://www.klaaskids. org/pg-legmeg.htm (last visited Sept. 24, 2000); Nationwide Registries and Links, available at www.parentsformeganslaw.com (last visited Sept. 24, 2000).
109. See generally Paul Zielbauer, Posting of Sex Offender Registries on Web Sets off Both Praise and Criticism, N.Y. TIMES, May 22, 2000, at B1 (surveying rapid proliferation of state web sites and the concerns raised). The sites, which customarily contain such identifying information on registrants as home addresses, offense information, and mug shots, have proved enormously popular.
110. See Melissa Moore, New Sex Offender Site Can't Tell Entire Story, THE ADVOCATE (Baton Rouge, La.), at 9B, May 10, 2000 (noting that in the two weeks since being initiated Louisiana's new site had nearly one million visitors), available at http://www.theadvocate.com/opinion/story.asp?storyid= 2110 (last visited Sept. 24, 2000).
111. See, e.g., DEL. CODE ANN. tit. 11, § 4121(a)(1) (Supp. 1998) ("Methods of notification may include door-to-door appearances, mail, telephone, newspapers or notices to schools and licensed day care facilities within the community, or any combination thereof."). See generally DEVON B. ADAMS, U.S. DEPT. OF JUSTICE, SUMMARY OF STATE SEX OFFENDER REGISTRY DISSEMINATION PROCEDURES: UPDATE 1999 (1999) (describing a variety of notification methods).
112. LA. REV. STAT. ANN. § 15:542(b) (Supp. 2000).
113. Id.
114. See, e.g., Byron M. v. City of Whittier, 46 F. Supp. 2d 1037, 1039, 1042 (C.D. Cal. 1998) (interpreting "advise the public" language in the California statutory law to allow the use of the media); State v. Wilkinson, No. 82,347, 2000 WL 992105, at *9 (Kan. 2000) (permitting the use of an Internet web-site on the basis of a statutory requirement that registrants' information shall be "open to inspection").
115. The Guidelines associated with notification underscore the government's determination in this regard: [A] state cannot comply with the Act by releasing registration information only to law enforcement agencies, to other governmental or non-governmental agencies or organizations, to prospective employers, or to the victims of registrants' offenses. States also cannot comply by having purely permissive or discretionary authority for officials to release registration information. Information must be released to members of the public as necessary to protect the public from registered offenders. Megan's Law, Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, as Amended, 64 Fed. Reg. 572, 581 (1999). The Guidelines, however, are also at pains to emphasize that the federal requirements represent "a floor for state programs, not a ceiling" relative to the gamut of eligible offenders, the type of information collected, and the means and scope of information disseminated to communities. Id. at 572-79.
116. See, e.g., ALA. CODE § 15-20-21(3) (Supp. 1999); ALASKA STAT. ANN. § 18.65.087(b) (Michie 1998); HAW. REV. STAT. ANN. § 846E-3 (Michie Supp. 1999); KAN. STAT. ANN. § 22-4907 (1995 & Supp. 1999); S.C. CODE ANN. § 23-3-490 (Law. Co-op. Supp. 1999); TENN. CODE ANN. § 40-39-106(f) (West 1997 & Supp. 1999).
117. See, e.g., CAL. PENAL CODE § 290 (West 1999); CONN. GEN. STAT. ANN. §§ 54-250 to 54-261 (West Supp. 1999); 730 ILL. COMP. STAT. 150/2 to /12, 152/105 to /130 (West Supp. 2000); IND. CODE ANN. § 5-2-12-4 (Michie Supp. 2000); KAN. STAT. ANN. §§ 22-4902 to 22-4909 (1995); LA. REV. STAT. ANN. § 15:546 (West Supp. 2000); MICH. COMP. LAWS ANN. §§ 28.722 to 28.730 (West Supp. 2000); OKLA. STAT. ANN. tit. 57, §§ 581-589 (West Supp. 2000); S.C. CODE ANN. §§ 23-3-400 to -460, 23-3-520 (Law. Co-op. Supp. 1999); TENN. CODE ANN. §§ 40-39-101 to -110 (1997 & Supp. 1999); UTAH CODE ANN. § 77-27-21.5 (Supp. 2000).
118. See, e.g., ARIZ. REV. STAT. ANN. § 13-3825 (West Supp. 1999); MASS. GEN. LAWS ANN. ch. 6, §§ 178D, 178K (West 1999); MINN. STAT. § 244.052 (2000); N.J. STAT. ANN. §§ 2C:7-1 to :7-11. (West 1999); N.Y. CORRECT. LAW §§ 168 1-n (McKinney 1999); OR. REV. STAT. §§ 181.585 to .588 (1997) (amended 1999); TEX. CRIM PROC. arts. 62.02, 62.03 (1999); WASH. REV. CODE ANN. § 4.24.550 (West Supp. 1999).
119. See, e.g., ALA. CODE § 15-20-20 (1999) ("[T]he Legislature finds that releasing information about criminal sex offenders to law enforcement agencies and, providing access to or releasing such information . . . to the general public, will further the primary government interest of protecting vulnerable populations and in some instances the public, from potential harm."); OHIO REV. CODE ANN. § 2950.02(A)(1) (Anderson 1999) ("If the public is provided adequate notice and information . . . members of the public and communities can develop constructive plans to prepare themselves and their children . . . ."); TENN. CODE ANN. § 40-39-101(b)(6) (1999) (To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of sexual offenders and for the public release of specified information regarding sexual offenders.").
120. See, e.g., Doe v. Poritz, 662 A.2d 367, 389 (N.J. 1995) ("[The l]aws not only protect against crime but deter it: both for the potential offender . . . as well as for those who might otherwise commit a first offense but for the potential impact . . . .").
121. See, e.g., Femedeer v. Haun, Nos. 99-4082, 99-4093, 2000 WL 1217746, at *5 (10th Cir. 2000); Russell v. Gregoire, 124 F.3d 1079, 1093 (9th Cir. 1997); Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997); Spencer v. O'Connor, 707 N.E.2d 1039, 1044 (Ind. Ct. App. 1999); Snyder v. State, 912 P.2d 1127, 1132 (Wyo. 1996).
122. See, e.g., Artway v. Attorney Gen., 81 F.3d 1235, 1267-68 (3d Cir. 1996); Opinion of Justices to the Senate, 668 N.E.2d 738, 755-56 (Mass. 1996).
123. See, e.g., State v. Cameron, 916 P.2d 1183, 1186 (Az. Ct. App. 1996).
124. See, e.g., Rise v. Oregon, 59 F.3d 1556, 1558 (9th Cir. 1995); Rowe v. Burton, 884 F. Supp. 1372, 1381 (D. Alaska 1994).
125. To the very limited extent that courts have found fault with the laws, such concern almost always, as a rule, relates to notification, not registration. See, e.g., Rowe v. Burton, 884 F. Supp. 1372, 1380 (D. Alaska 1994) (concluding that the retroactive imposition of notification, but not registration alone, violates the Ex Post Facto Clause); State v. Myers, 923 P.2d 1024, 1041 (Kan. 1996) (same); State v. Babin, 637 So. 2d 814, 824 (La. Ct. App. 1994) (same).
126. See, e.g., Cutshall v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999), cert. denied, 120 S. Ct. 1554 (2000); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997); Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998); Doe v. Kelly, 961 F. Supp. 1105, 1112 (W.D. Mich. 1997); State v. Wilkinson, No. 82,347, 2000 WL 992105, at *8 (Kan. 2000); People v. Logan, 705 N.E.2d 152, 160-61 (Ill. App. Ct. 1998). But see Doe v. Pataki, 3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998) (concluding that registration and notification implicate a liberty interest requiring due process protection); Doe v. Attorney Gen., 715 N.E.2d 37, 43-45 (Mass. 1999) (same); Doe v. Poritz, 662 A.2d 367, 411 (N.J. 1995) (same); Noble v. Board of Parole and Post-Prison Supervision, 964 P.2d 990, 997 (Or. 1997) (same). The judicial distinction drawn between registration and notification, discussed supra in note 93, is evident in the due process realm as well. Compare Boutin v. LaFleur, 591 N.W.2d 711, 718 (Minn. 1999) (permitting the compelled registration of an offender charged with but not convicted of a statutorily enumerated sex offense requiring registration), with In re Risk Level Determination of C.M., 578 N.W.2d 391, 399 (Minn. Ct. App. 1998) (precluding notification under similar circumstances). For a discussion of the due process concerns raised by notification laws more generally, see Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. CRIM. L. & CRIMINOLOGY 1167 (1999).
127. See, e.g., Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), cert. denied, 120 S. Ct. 1554 (2000); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), cert. denied, 523 U.S. 1007 (1998); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), cert. denied, 522 U.S. 1122 (1998); E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1081 (1998).
128. Williamson v. Gregoire, 151 F.3d 1180, 1181 (9th Cir. 1998), cert. denied, 525 U.S. 1081 (1999).
129. See Brief for Respondent-Appellee at 2, Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998) (No. 97-35699).
130. Williamson, 151 F.3d at 1181. Washington was the first U.S. jurisdiction to institute a sex offender notification law (as opposed to registration alone), in 1990, predating the high-profile legislative efforts in New Jersey. See Pearson, supra note 61, at 45.
131. Williamson, 151 F.3d at 1181 (citing WASH. REV. CODE § 9A.44.130 (1), (3)(a) (1998)).
132. Id. (citing WASH. REV. CODE § 9A.44.135 (1)(a) (1998)).
133. Id. (citing WASH. REV. CODE § 9A.44.130(5)(a) (1998)).
134. Id. (citing WASH. REV. CODE § 9A.44.130(1) (1998)).
135. Id. The court merely noted that Williamson was required to apprise authorities of his name change, neglecting to mention that, because of his sex offender registrant status, the request would be screened beforehand by authorities: No sex offender under the requirement to register under this section at the time of application shall be granted an order changing his or her name if the court finds that doing so will interfere with legitimate law enforcement interests, except that no order shall be denied when the name change is requested for religious or legitimate cultural reasons or in recognition of marriage or dissolution of marriage. WASH. REV. CODE § 9A.44.130(7) (1998).
136. See § 9A.44.083(2) (identifying first degree child molestation as a "class A" felony).
137. See § 9A.44.140(3). To be successful, Williamson would be required to (1) establish that he had not been convicted of "any new offenses" during the ten consecutive years since his initial registration and (2) prove by "clear and convincing evidence" that his continued registration would not "serve the purposes" of the registration and notification laws. Id. 106. See § 9A.44.130(10), (11).
138. See § 4.24.550(4).
139. See § 4.24.550(1); see also id. at § 4.24.550(2) ("The extent of the public disclosure of relevant and necessary information shall be rationally related to: (a) The level of risk posed by the offender to the community; (b) the locations where the offender resides, expects to reside, or is regularly found; and (c) the needs of the affected community members for information to enhance their individual and collective safety.").
140. § 4.24.550(3).
141. Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998), cert. denied, 525 U.S. 1081 (1999).
142. Id.
143. Id; see also id. at 1183 ("We are unaware of any other case that has analyzed the 'in custody' requirement as it relates to a similar state law. Nor do we find the precedents interpreting this phrase so closely analogous as to be controlling."). Four years before, however, yet another Ninth Circuit panel addressed whether a habeas petitioner's involuntary civil commitment pursuant to Washington's "Sexually Violent Predators Act" satisfied the custody requirement. See Brock v. Weston, 31 F.3d 887, 888 (9th Cir. 1994). The panel unanimously concluded in the affirmative. Id. at 890.
144. Williamson, 151 F.3d at 1183 (quoting Maleng v. Cook, 490 U.S. 488, 492 (1992) (per curiam)).
145. Id.
146. Id.
147. Id. (quoting Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993) (per curiam)).
148. Id. at 1184 (citation omitted).
149. Id.
150. Id.
151. Id. ("[T]he loss of a driver's license amounts to a much greater limitation on one's freedom of movement than does the Washington sex offender law, but the former does not satisfy the 'in custody' requirement either.").
152. Id.
153. Id.; cf. McDonald v. Marin County Sheriff, No. 98-16144, 1999 WL 390991, at *1 (9th Cir. May 25, 1999) (rejecting a habeas claim on its merits brought by a California registrant successfully prosecuted for failure to register).
154. Williamson, 151 F.3d at 1184.
155. Id. (citing Russell v. Gregoire, 124 F.3d 1079, 1093 (9th Cir. 1997)).
156. See id. (stating that Russell "is not directly controlling, of course, because the 'in custody' requirement may be satisfied by restraints other than criminal punishment, such as conscription into military service or a denial of immigration").
157. Id.
158. 164 F.3d 1240 (9th Cir. 1999), cert. denied sub. nom. Henry v. Lockyer, 120 S. Ct. 397 (1999).
159. Id. at 1242.
160. Id. In actuality, the Washington and California laws do differ in significant ways. In Washington, registration information is disseminated by means of active notification effectuated by local law enforcement based on discretionary risk assessments. WASH. REV. CODE § 4.24.550 (2000). In California, statutory law mandates which offenders are subject to registration and notification, and registrants' information is spread primarily by means of an "access" system, whereby community members obtain information through a CD-ROM or a "900" telephone number. CAL. PENAL CODE § 290.4 (1999). But see § 290(m) (2000) (allowing police to carry out affirmative community notification when they "reasonably suspect" that a "child or other person may be at risk").
161. Henry, 164 F.3d at 1242.
162. 170 F.3d 1246 (9th Cir. 1999) (per curiam).
163. Id. at 1247.
164. Id.
165. At the time of this writing, one trial court, the Northern District of Ohio, has also addressed the question of whether registration and notification satisfy the custody requirement. See Thomas v. Morgan, 109 F. Supp. 2d 763 (N.D. Ohio 2000). Citing Williamson, the court held that the classification of the petitioner as a "sexual predator," triggering Ohio's most extensive registration and notification conditions, did not create a custodial situation. Id. at 767-68.
166. Close examination of Henry and McNab makes it unclear whether the respective panels were focusing on the effects of both registration and notification, because express mention is made only of registration. The California laws at issue in Henry, however, subject all statutorily eligible sex offenders to compulsory notification. See CAL. PENAL CODE §§ 290, 290.4 (West 1999). The Oregon law at issue in McNab subjects all eligible offenders to a review by a state agency, which determines whether notification is warranted, and, if so, the degree. See OR. REV. STAT. § 181.586 (1999).
167. Jones v. Cunningham, 371 U.S. 236, 240 (1963).
168. See, e.g., Dick Foster, Colorado Prisons Bursting at Seams: Inmate Population Threatens State Funds for Education, Health, Other Pressing Needs, DENVER ROCKY MTN. NEWS, Jan. 17, 2000, at 4A;
169. Mark Tatge, Counties Feel Pinch of Rising Jail Costs: Tougher Sentences Add to Local Tabs, THE PLAIN DEALER (CLEVELAND), Aug. 14, 1999, at 1A;
170. Jack Wardlaw, Hainkel Says Jail Costs Are Shackling the State: Judiciary Committee Will Meet to Discuss It, TIMES-PICAYUNE (NEW ORLEANS), Feb. 8, 2000, at A2.
171. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1998 Table 2.16 (1999) (noting that a mere twenty-three percent of persons surveyed have "a great deal" or "quite a lot" of confidence in the criminal justice system) [hereinafter SOURCEBOOK]. This sentiment was captured in the 1970s by the pessimistic surmise that "nothing works," a reaction to Robert Martinson's meta-analysis of then existing recidivism studies. See Robert Martinson, What Works? - Questions and Answers About Prison Reform, 35 PUB. INTEREST 22 (1974);
172. see also FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981);
173. DOUGLAS LIPTON ET AL; THE EFFECTIVENESS OF CORRECTIONAL TREATMENT: A SURVEY OF TREATMENT EVALUATION STUDIES (1975). Empirical work, however, belies this unqualified pessimism. An increasing body of work supports that, in fact, correctional interventions do have positive results, when the interventions focus on particular offender populations and interventions.
174. See generally D.A. ANDREWS & JAMES BONITA, THE PSYCHOLOGY OF CRIMINAL CONDUCT (2d ed. 1998);
175. FRANCIS T. CULLEN & BRANDON K APPLEGATE, OFFENDER REHABILITATION: EFFECTIVE CORRECTIONAL INTERVENTION (1998).
176. See Jody L. Sundt, Is There Room for Change?: A Review of Public Attitudes Toward Crime and Alternatives to Incarceration, 23 S. ILL. L. REV. 519, 526-32 (1999) (discussing public opinion surveys showing considerable public support for alternatives to imprisonment).
177. Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. CHI. L. REV. 733, 733 (1998).
178. Joan Petersilia, The Evolution of Community Corrections, in COMMUNITY CORRECTIONS: PROBATION, PAROLE, AND INTERMEDIATE SANCTIONS 1 (Joan Petersilia ed., 1998) (noting that starting in the 1980s probation and parole officers "were encouraged to redirect their efforts toward offender surveillance and monitoring, with community safety rather than offender rehabilitation as their primary goal").
179. See generally Todd R. Clear & David R. Karp, The Community Justice Movement, in COMMUNITY JUSTICE: AN EMERGING FIELD 2-28 (David R. Karp ed., 1998).
180. Id. at 14 (arguing that the "central focus is community-level outcomes, shifting the emphasis from individual incidents to systemic patterns, from individual conscience to social mores, and from individual goods to the common good").
181. Id. at 18; see also id. at 13 ("The new frontier of community justice is thus a cutting edge in the way it uses information, organizes staff, plans its activities, and is accountable to its environment.").
182. GARY T. MARX, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA 220 (1988);
183. see also JOHN LONVMAN ET AL., TRANSCARCERATION: ESSAYS IN THE SOCIOLOGY OF SOCIAL CONTROL 9 (1987) ("The advent of community corrections and other non-segregative techniques of control has resulted in more control, not less, as the control net is widened and its mesh thinned . . . .") (citation omitted).
184. See generally Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591 (1996);
185. Toni M. Massaro, The Meanings of Shame: Implications for Legal Reform, 3 PSYCHOL. PUB. POL'Y & L. 645 (1997);
186. Aaron S. Book, Note, Shame On You: An Analysis of Modern Shame Punishment as an Alternative to Incarceration, 40 WM. & MARY L. REV. 653 (1999);
187. Phaedra Kelly, Comment, The Ideology of Shame: An Analysis of First Amendment and Eighth Amendment Challenges to Scarlet-Letter Probation Conditions, 77 N.C. L. REV. 783 (1999).
188. Kahan, supra note 146, at 632-34.
189. See id. at 631-32; see also Courtney Persons, Note, Sex in the Sunlight: The Effectiveness, Efficiency, Constitutionality, and Advisability of Publishing Names and Pictures of Prostitutes' Patrons, 49 VAND. L. REV. 1525 (1996);
190. John Larrabee, Fighting Crime With a Dose of Shame, USA TODAY, June 19, 1995, at 3A (discussing the weekly cable television show of a Massachusetts police chief who broadcasts the names and photographs of arrestees, branding each with an epithet like "slithering low-life" or "punk of the week").
191. Garvey, supra note 140, at 738.
192. Kahan, supra note 146, at 632-37; see also Book, supra note 146 at 686 ("The current problems of overcrowding in America's prisons and soaring budgets have reached their limits . . . . Shaming punishment sets an example for others and provides the public with a tangible sense of justice in action.").
193. Kahan, supra, note 146, at 630. Recently, Professor Stephen Garvey provided a helpful analytic framework for conceiving of shame sanctions. First, there are informational sanctions designed to "condemn and shame" the offender before the public at-large, e.g., wearing a t-shirt proclaiming one's criminal status. Second, there are sanctions designed more to educate or reform the individual offender, which can be carried out in private, and come in three forms: (1) talionic punishments, whereby the offender is forced to experience the harm he has caused (e.g., being forced to watch the film "Mississippi Burning" as a result of a hate crime); (2) talionic restitution, whereby the offender must repair the harm caused (e.g., requiring a shoplifter to work in a store); and (3) apology rituals, whereby the offender is required to publicly express to his victims his remorse and the reasons underlying it. See Garvey, supra note 140, at 784-94.
194. Kahan, supra note 146, at 635.
195. In a report prepared under the auspices of the U.S. Department of Justice, Professors Michael Smith and Walter Dickey recently echoed this information-based approach to corrections: "The process ought to be grounded in information, gathered systematically and periodically, about the particular public safety threats and the naturally occurring community capacities to contain them found, neighborhood by neighborhood, throughout a State." Michael E. Smith & Walter J. Dickey, Reforming Sentencing and Corrections for Just Punishment and Public Safety, in SENTENCING AND CORRECTIONS: ISSUES FOR THE TWENTY-FIRST CENTURY 9 (U.S. Dep't. of Justice ed., Sept. 1999).
196. The main academic proponents of this view are Professors Malcolm Feeley and Jonathan Simon. See generally Jonathan Simon & Malcolm M. Feeley, True Crime: The New Penology and Public Discourse on Crime, in PUNISHMENT AND SOCIAL CONTROL: ESSAYS IN HONOR OF SHELDON L. MESSINGER 147-80 (Thomas G. Bloomberg & Stanley Cohen eds., 1995);
197. Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications, 30 CRIMINOLOGY 449 (1992).
198. See also CRIME AND THE RISK SOCIETY (Pat O'Malley ed., 1999) (collecting writings that touch on various aspects of this shift).
199. David Beatty, Community Notification-It's the Right Thing To Do, 59 CORRECTIONS TODAY, Oct. 1997, at 20.
200. Id.
201. CENTER FOR SEX OFFENDER MANAGEMENT, AN OVERVIEW OF SEX OFFENDER COMMUNITY NOTIFICATION PRACTICES: POLICY IMPLICATIONS AND PROMISING APPROACHES 4 (1997).
202. For extended discussions of the nation's predominant dependence on incarceration and penal institutions, starting in the late 1700s, and especially since the 1820s, see generally INCARCERATING CRIMINALS: PRISONS AND JAILS IN SOCIAL AND ORGANIZATIONAL CONTEXT (Timothy J. Flanagan et al. eds., 1998);
203. THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY (Norval Morris & David J. Rothman eds., 1998);
204. INCAPACITATION: PENAL CONFINEMENT AND THE RESTRAINT OF CRIME (Franklin E. Zimring & Gordon Hawkins eds., 1995).
205. See James Austin & Barry Krisberg, The Unmet Promise of Alternatives to Incarceration, 28 CRIME AND DELINQUENCY 374, 405-06 (1982) (recognizing that community-based alternatives to prison were being used to exercise control over offenders previously placed on probation or released pursuant to a suspended sentence). As one commentator recently noted, "if alternative sanctions prove effective in dealing with traditionally non-incarcerated felons, they may then merit serious consideration as sentencing alternatives for a broader range of criminals."
206. Note, Developments in the Law: Alternatives to Incarceration, 111 HARV. L. REV. 1863, 1967-69 (1998);
207. see also Leena Kurki, Incorporating Restorative and Community Justice Into American Sentencing and Corrections, in SENTENCING AND CORRECTIONS, supra note 153 ("Restorative and community justice initiatives could continue to confine their efforts to juvenile offenders and people who commit minor crimes. This seems unlikely, as these approaches are expanding rapidly and winning many new supporters who want to extend their application. . . . [I] t seems likely that restorative and community justice values will to some extent become more institutionalized in criminal justice processes.") (footnote omitted).
208. Professor Andrew Von Hirsch recently assailed the "anything but prison" justification for community-based sanctions, which he asserted is premised on "fallacies of intrusiveness" that obfuscate the actual burdens of community intervention. Andrew Von Hirsch, The Ethics of Community-Based Sanctions, in Petersilia, supra note 141, at 189-97. Von Hirsch observes: Intervention in the community is tolerable irrespective of its intrusiveness, this theory asserts, as long as the resulting sanction is less onerous than imprisonment. This is tantamount to carte blanche: Because imprisonment (at least for protracted periods) is harsher than almost any other community punishment, one could virtually never object. Id. at 192.
209. Today, non-incarcerative sanctions by far constitute the dominant form of correctional intervention in the U.S. In 1997, approximately seventy percent of adults under correctional supervision were actually in the community under the auspices of probation or parole. See SOURCEBOOK, supra note 138, Table 6.1. This community orientation enjoys support from liberals, because it compares favorably to incarceration as an alternative, and from conservatives, because of the cost savings involved. For an insightful discussion of the underlying political forces driving this change, see Mark C. Dean-Myrda & Francis T. Cullen, The Panacea Pendulum: An Account of Community as a Response to Crime, in Petersilia, supra note 141, at 3-18.
210. The enthusiastic embrace by law enforcement of sophisticated "crime mapping" computer software and the use of DNA to track and prosecute offenders represent only two of the many examples of this shift. See KEITH HARRIES, MAPPING CRIME: PRINCIPLE AND PRACTICE (1999);
211. Paul E. Tracy & Vincent Morgan, Big Brother and His Science Kit: DNA Databases for 21st Century Crime Control?, 90 J. CRIM. L. & CRIMINOLOGY 635 (2000).
212. For discussions of other representative innovations in this reorientation, see WILLIAM G. STAPLES, THE CULTURE OF SURVEILLANCE: DISCIPLINE AND SOCIAL CONTROL IN THE UNITED STATES (1997);
213. Christopher Slobogin, Technologically-Assisted Physical Surveillance: The American Bar Association's Tentative Draft Standards, 10 HARV. J.L. & TECH. 383 (1997);
214. Christopher S, Milligan, Note, Facial Recognition Technology, Video Surveillance, and Privacy, 9 S. CAL. INTERDISCIPLINARY L. J. 295 (1999);
215. Kevin Flynn, Police Gadgets Aim to Fight Crime With 007-Style Ingenuity, N.Y. TIMES, March 7, 2000, at B2.
216. See generally Tony Fabelo, "Technocorrections": The Promises, the Uncertain Threats, in SENTENCING AND CORRECTIONS, supra note 153. After discussing the variety of emerging information-reliant, technology-based surveillance systems available to law enforcement, the author notes: Reducing the risk of recidivism has always been part of the mission of corrections, but only in the technocorrectional world is it possible to reduce the risk of violent recidivism to almost zero. The promise of technology to supervise offenders more effectively will accelerate the impulse to expand technocorrections. Id. at 4.
217. Aspects of this shift have been noted by numerous authors, who warn of an increasing indifference and passivity among Americans in the face of significant privacy intrusions and losses. See, e.g., DAVID BRIN, THE TRANSPARENT SOCIETY: WILL TECHNOLOGY FORCE Us TO CHOOSE BETWEEN PRIVACY AND FREEDOM? (1998);
218. FRED H. CATE, PRIVACY IN THE INFORMATION AGE (1997);
219. CHARLES J. SYKES, THE END OF PRIVACY (1999).
220. This predilection toward expansion has already manifested in the effort in many states to modify their registration and notification laws to cover juvenile sex offenders. See, e.g., ALA. CODE §§ 15-20-20, 15-20-28 (1999); CAL. PENAL CODE § 290(m)-(n) (West 1999); COLO. REV. STAT. ANN. § 18-3-412.5(6.5) (West 1999); TEX. CRIM. PROC. CODE ANN. arts. 62.01-.12 (West Supp. 2000). See generally Michael L. Skoglund, Note, Private Threats, Public Stigma? Avoiding False Dichotomies in the Application of Megan's Law to the Juvenile Justice System, 84 MINN. L. REV. 1805 (2000).
221. It is also manifest in legislative broadening of the expanse of sex offenses triggering registration and notification. See, e.g., David Shepardson, State Adds Crime to List for Sex Offenders, DETROIT NEWS, Sept. 2, 1999, at D1 (discussing amendments in Michigan law to include sodomy, sexual delinqency, child kidnapping, and solicitation of a prostitute under the age of eighteen). As discussed above, registration provisions alone for select offender subgroups, other than sex offenders, have been in existence for decades.
222. See supra Part H.A. and accompanying text; see also Licia A. Espositio, Annotation, State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register With Authorities, 36 A.L.R. 5th 161 (1996 & Supp. 1999).
223. See, e.g., Maria Orecchio & Theresa A. Tebbett, Sex Offender Registration: Community Safety or Invasion of Privacy?, 13 ST. JOHN'S J. LEGAL COMMENT. 675, 699-700 (1999) ("If communities have the right to know of the presence of convicted sex offenders, then they arguably have a similar right with respect to other released violent criminals who have established residence in their locales . . . . [T]he underlying purposes of community notification laws pertaining to convicted sex offenders apply with equal force to other violent offenders.");
224. Allan Gustafson, Inmates Called Riskier Than Fairview Men, STATESMAN JOURNAL (Salem, Or.), Jan. 22, 1998, at C1 (noting the recent suggestion by the author of Oregon's notification law to the effect that the law be "broaden[ed] . . . to allow public notice when risky noncriminal individuals are released from institutions").
225. Most commonly, statutory coverage extends to persons convicted of kidnapping and false imprisonment or unlawful restraint of persons under 18 years of age, including attempts. See, e.g., ARIZ. REV. STAT. § 13-3821(A)(1)(2) (1999); ARK. CODE ANN. § 12-12-903(8) (Michie 1999); HAW. REV. STAT. § 846E-1 (1999); 730 ILL. COMP. STAT. 150/3 (1999); KAN. STAT. ANN. § 22-4902(a)-(c) (1999); MINN. STAT. ANN. § 243.166(1)(ii),(2) (1999); WYO. STAT. ANN. § 7-19-301(a)(iv) (Michie 1999). Montana, however, extends coverage to those convicted of homicides, aggravated assaults, robbery, kidnapping and arson. MONT. CODE ANN. § 46-23-502(9)(a) (1999). Kansas's law extends to those convicted of homicides, including involuntary manslaughter. KAN. STAT. ANN. § 22-4902(d) (1999). Minnesota targets those convicted of kidnapping both minors and adults. MINN. STAT. § 243.166(a)(1)(ii) (2000). Arkansas makes eligible those convicted of stalking as well as those who knowingly expose others to the HIV virus. ARK. CODE ANN. § 12-12-903 (West 1999).
226. See, e.g., CAL. PENAL CODE §§ 290(a)(2)(A) (West 1999) (possession of child pornography); KAN. STAT. ANN. § 22-4902(a)(4) (1999) (adultery, consensual sodomy, if one of the parties is under eighteen); LA. REV. STAT. ANN. § 15:542(E) (West 1997) (consensual sodomy, bigamy); MICH. COMP. LAWS §§ 28.722(d)(iii) (2000) (repeat visitations of indecent exposure and "disorderly persons" laws); MINN. STAT. § 243.166(a) (indecent exposure and possession of child pornography); N.M. STAT. ANN. §§ 29-11A-3, 30-6A-3 (Michie 1997) (possession of child pornography with intent to distribute); OHIO REV. CODE ANN. §§ 2907.08, 2907.09, 2950.01(D)(1) (Anderson 1998) (prohibiting public indecency and voyeurism); S.C. CODE ANN. §§ 23-3-430(C)(10)(12) (Law. Co-op. 1999) (buggery, "peeping"). Consistent with this broadening, a recent study in New Orleans concluded that over forty percent of registrants listed on an internet website maintained by the state of Louisiana were convicted under the state's anti-sodomy law, typically used to prosecute male and female prostitutes. See Pamela Coyle, 400 Sex Offenders in Region; Web Site Lists Many in N.O.: 44% Probably Prostitutes, TIMES PICAYUNE (New Orleans), May 2, 2000, at Al.
227. Expansion in times to come might also be prompted by equal protection claims based on a theory of under-inclusiveness, notwithstanding that a "rational basis" standard of judicial review would likely apply. See, e.g., People v. Felarca, 88 Cal. Rptr. 2d 587, 593 (1999) (deeming "irrational" a California law that required persons convicted of oral copulation with a minor to register but not those convicted of sexual intercourse with a minor). Such claims, however, would likely succumb to traditional judicial deference to legislative authority. As the California Court of Appeal was at pains to note hi a prior case challenging the California sex registry, [t]he fact that there are some types of classes of sex offenses which are not made subject to registration does not per se require the finding there is a denial of equal protection. This may be based upon the legislative determination a particular type of offender does not recidivate or recidivates less . . . . In this final analysis, these are matters for consideration for the Legislature and should be addressed to that body. People v. Mills, 146 Cal. Rptr. 411, 416 (1978). However, as courts become sensitized to the current empirical uncertainty over whether sex offenders recidivate more than others, we might witness a corresponding greater receptivity to equal protection claims. See, e.g., David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex Offense Cases, 78 MINN. L. REV. 529, 572-73 (1994) (stating that "no study has demonstrated that sex offenders have a consistently higher or lower recidivism rate than other major offenders");
228. R. Karl Hanson & Monique T. Bussiere, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. CONSULTING & CLINICAL PSYCHOL. 348, 357 (1998) (concluding based on a meta-analysis of sixty-one follow-up studies that only thirteen percent of subjects committed new sex offenses within a four-to-five year follow-up period);
229. Kirk Heilbrun et al., Sexual Offending: Linking Assessment, Intervention, and Decision-Making, 4 PSYCHOL. PUB. POL'Y & L. 138, 139 (1998) (noting that there is "little consensus in the literature" on recidivism).
230. Frank v. Magnum, 237 U.S. 309, 346 (1915) (Holmes, J., dissenting).
231. See, e.g., Roe v. Office of Adult Probation, 938 F. Supp. 1080, 1092 (D. Conn. 1996) (stating the laws seek "to protect the public from devastating crimes. This goal certainly is one within the traditionally broad police powers of the State").
232. See supra notes 89-95 and accompanying text.
233. Cf. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991) (holding that custody for habeas purposes is broader than "custody" required to trigger speedy trial provisions). This same principle is evidenced in decisions of courts grappling with the effects of sex offender community notification in different constitutional contexts. See, e.g., State v. Scott, 961 P.2d 667, 676 (Kan. 1998) (concluding that notification does not constitute punishment relative to the Eighth Amendment's ban against cruel and unusual punishment); State v. Myers, 923 P.2d 1024, 1042 (Kan. 1996) (concluding that notification does constitute punishment relative to the Ex Post Facto Clause's ban against retroactive punishment). For a more general discussion of this principle, see Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 AM. CRIM. L. REV. 1261, 1285-88 (1998).
234. See LIEBMAN & HERTZ, supra note 15, § 9.1, at 363-410 (surveying the broad array of constitutional claims reached by federal habeas); § 11.2(c), at 452-86.
235. Contra People v. Adams, 581 N.E.2d 637, 641 (Ill. 1991) (noting that a registration "requirement is an innocuous duty compared to the potential alternative of spending an extended period of years in prison").
236. Mackenzie v. Barrett, 141 F. 964, 966 (7th Cir. 1905).
237. At present, U.S. jurisdictions reflect considerable variation both in their methods and means of registration and notification. See supra notes 70-86 and accompanying text. Therefore, analysis of the custody question must necessarily be jurisdiction-specific, and, when appropriate, consider the registration and notification effects imposed on a given habeas petitioner. The basic thrust of the discussion here, however, should be generally applicable to registration and notification laws nationwide.
238. See supra note 72.
239. See, e.g., ARK. CODE ANN. §§ 12-12-911, -918 (Michie 1999); IDAHO CODE § 18-8307(4) (Supp. 1999); 730 ILL. COMP. STAT. ANN. 150/3(c)(6) (West Supp. 1999); ME. REV. STAT. ANN. tit. 34-A, § 11226 (West 1999); MONT. CODE ANN. § 46-23-504(5) (1999).
240. See 42 U.S.C. § 14071(10 (Supp. 1999); see also supra note 73 and accompanying text.
241. See, e.g., HAW. REV. STAT. ANN. § 846E-5 (Michie 1999) (requiring registration every three months for all registrants); KAN. STAT. ANN. § 22-4904(c) (1999) (same); MICH. COMP. LAWS § 28.725 a(4)(b) (1999) (same). Persons deemed "sexually violent predator[s]" and other more serious offenders are commonly required to verify registration, and sometimes be photographed anew, every 90 days. See, e.g., N.Y. CORRECT. LAW § 168-(f) (McKinney 1999); S.C. CODE ANN. § 23-3-460 (Law. Co-op. 1999).
242. See supra note 75 and accompanying text. Furthermore, registration violations can serve as predicate offenses for purposes of habitual felon sentence enhancement laws. See, e.g., Hampton v. State, No. CC-98-229, 1999 WL 982401, at *2 (Ala. Crim. App. Oct. 29, 1999) (deeming a registration violation, a "Class C" felony, as a sufficient basis to enhance a sentence under the state Habitual Felony Offender Act).
243. Doe v. Attorney Gen., 686 N.E.2d 1007, 1016 (Mass. 1997) (Fried, J., concurring). Justice Fried continued: "To require registration of persons not in connection with any particular activity asserts a relationship between government and the individual that is in principle quite alien to our traditions, a relationship which when generalized has been the hallmark of totalitarian government." Id. 184. This burden extends even to those forced to seek temporary habitations, a not unusual occurrence given the housing difficulties faced by registrants. See State v. Pray, 980 P.2d 240, 243 (Wash. Ct. App. 1999) (upholding the conviction of individual for failure to register while living in three different locations over a ten-day period). In Washington State, permanent transients classified as Level II or III offenders must report in person to police and verify their registration information on a weekly basis, and Level I registrants must do so on a monthly basis. See Sarah Duran, Is There a Sex Offender Living Next Door?, THE NEWS TRIBUNE (Tacoma, Wash.), June 4, 2000, at Al.
244. See, e.g., FLA. STAT. ANN. § 943.0435(2) (West Supp. 2000); MICH. COMP. LAWS ANN. § 28.723(3) (West 1998).
245. This stems both from the fact that states vary in the aggressiveness of their registration and notification regimes and from the obvious disincentives associated with being subject to a new wave of notification upon relocating to a new jurisdiction, or even when relocating within a given jurisdiction.
246. State v. Taylor, 835 P.2d 245, 250 (Wash. Ct. App. 1992) (Agid, J., dissenting); cf. City of Chicago v. Morales, 119 S. Ct. 1849, 1857 (1999) (citation omitted) (identifying "the 'right to remove from one place to another according to inclination' as 'an attribute of personal liberty" protected by the Constitution"); Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (invalidating a one-year residency requirement for welfare eligibility because the limit infringed the right to "travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement").
247. Williamson, 151 F.3d at 1181; see also, e.g., CAL. CIV. PROC. CODE § 1279.6 (West Supp. 1999) (prohibiting any change unless the court deems "it is in the best interest of justice to grant [the change] and that doing so will not adversely affect the public safety"); 735 ILL. COMP. STAT. 5/21-101 (West 1999) (prohibiting change for entire registration period); N.H. REV. STAT. ANN. § 547:3-i(II) (1997 & Supp. 1999) (permitting change only if registrant "makes a compelling showing that a name change is necessary"); UTAH CODE ANN. § 77-27-21.5(16) (1999) (prohibiting change during the entire registration period).
248. See, e.g., ALA. CODE § 15-20-26 (1999); MINN. STAT. § 244.052 (sub. 3) (k), (sub. 4) (1999); see also Debra Baker, Slamming the Door: N.J. Court Lets Homeowners Turn Down Renters, Buyers on Megan's Law List, A.B.A. J., Jan. 2000, at 24 (discussing decision by New Jersey trial court to uphold bylaw of homeowners' association that barred sale or lease of property to registrants). Judge Richard Matsch recently enjoined application of a Colorado local ordinance prohibiting sex offenders from living together.
249. Karen Abbott, Judge Puts Sex Offender Law on Hold, DENVER ROCKY MTN. NEWS, Feb. 2, 2000, at 21A. He did so in response to a suit brought by a family containing three foster sons who were registered sex offenders. Id. Judge Matsch further noted that he didn't "like what's going on." Id. Limits on employment are at times backed up by the threat of civil fines for employers if a registrant is not terminated. See, e.g., IND. CODE ANN. § 5-2-12-12 (West Supp. 1999); OKLA. STAT. ANN. tit. 57, § 584(F) (West 1999).
250. See Jones v. Cunningham, 371 U.S. 236, 242-43 (1963) (holding that constraints associated with parole satisfy the custody requirement for habeas petitions); Cervantes v. Walker, 589 F.2d 424, 425 (9th Cir. 1978) (holding same with respect to probation). Indeed, it is not uncommon for registration and notification to be imposed as conditions of probation or parole. See, e.g., State v. Hutchinson, No. 99-0034, 2000 WL 722572, at *3 (La. Ct. App. May 17, 2000).
251. See, e.g., Steven Amick, Vandals Attack Ex-Convicts Home, THE OREGONIAN (Portland), July 27, 1996, at B1;
252. David Ammons, Released Sex Offender Hounded in Northwest, L.A. TIMES, Aug. 1, 1993, at A18.;
253. Kathryn Wexler & Sarah Schweitzer, Fears Build into Second Arson of Predator's Home, ST. PETERSBURG TIMES (FIa.), Nov. 24, 1999, at B1;
254. Carolyne Zinko, Flyers Falsely Call Artist a Molester, SAN FRANCISCO CHRONICLE, July 14, 1997, at A1.
255. See, e.g., Robert Hanley, Neighbor Accused of Firing at House of Paroled Rapist, N.Y. TIMES, July 1, 1998, at B6;
256. Jon Nordheimer, 'Vigilante' Attack in New Jersey is Linked to Sex-Offenders Law, N.Y. TIMES, Jan. 11, 1995, at A1.
257. See generally Paul Zielbauer, Posting of Sex Offender Registries on Web Sets Off Both Praise and Criticism, N.Y. TIMES, May 22, 2000, at B1 (citing and discussing several violent attacks).
258. See, e.g., Doe v. Pataki, 940 F. Supp. 603, 609 (S.D.N.Y. 1996) (describing an incident in which a registrant and his mother were forced to flee a community after Guardian Angels distributed wanted posters and reporters staked out residence around the clock); Steven Amick, Protestors Win, Sex Offender Will Move, THE OREGONIAN (Portland), July 30, 1996, at B2 (describing how protestors placed torches on front lawn of registrant, who soon moved);
259. Katherine Long, Gas Station Picketed Over Ex-Con's Hiring: Boss Stands By Choice, SEATTLE TIMES, Feb. 2, 1995, at B5 (describing a demonstration during rush hour intended to discourage drivers from patronizing a gas station that employed a registrant);
260. John T. McQuiston, Sex Offender is Suing His Neighbors Over Protests, N.Y. TIMES, June 20, 1997, at B1 (describing protest rallies directed at registrant, a brick-throwing incident, and harassment calls to the registrant's employer).
261. See, e.g., Todd S. Purdum, Death of Sex Offender is Tied to Megan's Law, N.Y. TIMES, July 9,1998, at A16 (describing two separate suicides). 195.
262. See, e.g., Allen G. Breed, Paroled Sex Offender Tests Couple's Faith, THE DALLAS MORNING NEWS, Sept. 2, 1999, at 10A;
263. David Chanen, Threats Lead to Eviction of St. Paul Sex Offender, STAR-TRIBUNE (Minneapolis), Feb. 26, 1998, at B1;
264. Lisa Richardson, Megan's Law is Put to Test as Towns Bounce Child Molesters, L.A. TIMES, May 25, 1997, at A3;
265. Lisa Sink, Long After Release Date, Man Still Lives in Prison, MILWAUKEE J. SENTINEL, June 1, 1999, at 1. According to one recent survey of registrants, "housing and employment have become nearly impossible [to find] for sex offenders."
266. Richard G. Zevitz & Mary Ann Farkas, Sex Offender Community Notification: Managing High Risk Criminals or Exacting Further Vengeance?, 18 BEHAV. SCI. & LAW 375, 388 (2000). The authors relate the experience of one Wisconsin registrant: I was evicted from my apartment. I found another apartment that I could afford. The DOC said, no, you can't live here because it was fairly close to a school. We found another place, but it was kind of close to a park. So then we came out here only because my girlfriend's mother owns the place . . . . It's like I'm stuck here because I'm afraid to move. As soon as I move, they're going to renotify and it's going to be the whole shebang again. Id. at 382. Another interviewee recounted that he had moved seven times in a five-month period, and described one particular eviction: "On [] Street, I was there for 22 hours and the police chief personally came with my PO and the supervisor, and handed me a piece of paper for the neighborhood saying I was removed from the neighborhood." Id. Other interviewees related that they were left with no housing option other than return to the care of the Department of Corrections. Id. 196. See, e.g., Zevitz & Farkas, supra note 195 at 382-84 (surveying hardships suffered by family and friends reported by Wisconsin registrants);
267. Gene Warner, 2 Sex Offenders Say They Don't Deserve Harsh Label, BUFFALO NEWS, Dec. 27, 1999, at B1 (recounting physical beatings and harassment suffered at school by a registrant's child).
268. This occurrence itself is quite likely given the empirical reality that sex crime victims most often know or are related to their assailants. See LAWRENCE A. GREENFELD, U.S. BUREAU OF JUSTICE STAWSTICS, SEX OFFENSES AND OFFENDERS 4 (1997) (citing data that three-out-of-four rape and sexual assault victims had a prior relationship with their assailant). Indeed, this empirical reality gives force to perhaps the most compelling argument against the undifferentiated use of registration and notification laws, undercutting their implicit assumption that information is needed to guard against victimization by strangers.
269. For instance, according to the Western District of Michigan, registration and notification do nothing more than compile truthful, public information and make it available. To the extent public use of such information may result in damage to plaintiffs' reputation or may destabilize their employment and other community relations, such effects . . . would appear to flow most directly from plaintiffs' own convicted misconduct and from private citizens' reactions thereto, and only tangentially from state action. Doe v. Kelley, 961 F. Supp. 1105, 1112 (W.D. Mich. 1997); see also Doe v. Pataki, 120 F.3d 1263, 1279-80 (2d Cir. 1997) (acknowledging that notification is "doubtless the 'but for' cause of some" vigilantism, but rejecting that such acts are fairly "attributable to community notification" per se); State v. Williams, 728 N.E.2d 342, 357 (Ohio 2000) (stating "[i]t cannot be presumed that the receipt of public information will compel private citizens to lawlessness").
270. See DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 197 (1989). See generally Barbara E. Armacost, Affirmative Duties, Systemic Harms, and the Due Process Clause, 96 MICH. L. REV. 982 (1996) (discussing the rationales and criticisms of "failure-to-protect" jurisprudence).
271. Cf. Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1, 7 (1991) ("No one doubts that Hester Prynne's scarlet letter provided more than neutral information, or that the effort of Senator Joseph McCarthy to 'expose' the background of his political opponents was not simply public education.") (footnotes omitted).
272. James Q. Whitman, What is Wrong With Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1059 (1998); see also id. at 1088 (asserting that shame sanctions "involve a dangerous willingness, on the part of the government, to delegate part of its enforcement power to a fickle and uncontrolled general populace").
273. Id.; see also Kreimer, supra note 200, at 40-41 ("Where the relations between the subject of disclosure and the recipient of the disclosed information are already charged with violent potential, disclosure is a virtual invitation."); Toni M. Massaro, Shame, Culture, and American Law, 89 MICH. L. REV. 1880, 1938 (1991) ("Once an offense becomes notorious, the public will do as it chooses with the information.");
274. Robert A. Prentky, Community Notification and Constructive Risk Reduction, 11 J. OF INTERPERSONAL VIOLENCE 295, 296 (1996) (stating that vigilantism is the "logical outcome of telling people that an evil menace lurks next door").
275. Indeed, the Supreme Court has repeatedly signaled its sensitivity to the causal relation between the release of information and the dangers presented by the predictable reactions of third parties. See, e.g., Thornburgh v. Am. College of Obstetricians & Gynecologists, 476 U.S. 747, 766-67 (1986) (regarding the possible harassment of women seeking abortions as a result of the government's disclosure of their identities), overruled on other grounds by Planned Parenthood v. Casey, 505 U.S. 833 (1992); Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 92-93 (1982) (regarding possible threat of harassment of political contributors as a result of disclosing their names).
276. In modern times, this labeling plays a paramount role in the criminal adjudicatory process. See DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY: A STUDY IN SOCIAL THEORY 252 (1990) ("[P]enality communicates meaning not just about crime and punishment but also about power, authority, legitimacy, normality, morality, personhood, social relations, and a host of other tangential matters.");
277. PRINCIPLED SENTENCING: READINGS ON THEORY AND POLICY 416 (Andrew von Hirsch & Andrew Ashworth eds., 2d ed. 1998) (observing that "the convicted offender is excluded from the moral universe of discourse, and is made to serve merely as the object of and conduit for public messages of denunciation"). This denunciatory function, with its stigmatizing force, however, has not always been foremost. In colonial America, for instance, society viewed offenders more as sinners than as irredeemably flawed individuals.
278. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 39 (1975) ("Like sin, crime could strike in any man's family or among any man's neighbors.").
279. See supra note 69 and accompanying text (discussing acute disdain for sex offenders). Recognition of this unique stigma is evidenced in the several state and federal courts that have held that the stigmatizing effects of registration and notification jeopardize a liberty interest, sufficient to require due process protections before the laws are applied. See supra note 94. Moreover, federal courts uniformly recognize this stigma in due process claims by inmates seeking to avoid being branded "sex offenders" in the prison environment. See Chambers v. Colo. Dep't of Corr., 205 F.3d 1237, 1242-43 (10th Cir. 2000) (recognizing an inmate's liberty interest in "not being labeled a sex offender."); Kirby v. Siegelman, 195 F.3d 1285, 1291-92 (11th Cir. 1999) (recognizing an inmate's liberty interest in "not being branded a sex offender," an interest similar to that in not being branded "mentally ill"); Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (stating that it could "hardly conceive of a state's action bearing more 'stigmatizing consequences' than the labeling of a prison inmate as a sex offender").
280. E.g., ARK. CODE ANN. § 12-12-902 (Michie 1999) ("The General Assembly finds that sex offenders pose a high risk of reoffending after release from custody."); FLA. STAT. ANN. § 775.21(3)(a) (West 2000) ("Sexual offenders are extremely likely to use physical violence and repeat their offenses."); NEB. REV. STAT. ANN. § 29-4002 (Michie Supp. 2000) ("The Legislature finds that sex offenders present a high risk to commit repeat offenses."); S.C. CODE ANN. § 23-3-400 (West 1999) ("Statistics show that sex offenders often pose a high risk of re-offending."); TENN. CODE ANN. § 40-39-101(b)(1) (1997) ("[S]exual offenders pose a high risk of engaging in further offenses after release . . . and protection from these offenders is a paramount public interest.").
281. E.g., OR. REV. STAT. ANN. § 181.586 (Lexis Supp. 1999); see also FLA. STAT. ANN. ch. 775.21 (West 2000) (referring to "sexual predators").
282. E.g., LA. REV. STAT. ANN. art. 15:542.1 (West Supp. 2000); N.C. GEN. STAT. ANN. § 14-208.6A (Lexis 1999); S.C. CODE ANN. § 23-3-460 (West Supp. 1999). Federal law expressly requires that jurisdictions identify "sexually violent predators." 42 U.S.C. § 14071(a)(2)(C) (2000). Such an offender is one who has "been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." Id. § 14071(a)(3)(C).
283. E.g., OHIO REV. CODE ANN. § 2950.01 (B) (Anderson 1999); OKLA. STAT. ANN. tit. 57, § 584(H)(b) (West Supp. 2000). The derogatory quality of the labels used, in lieu of the more neutral phrase "sex offender," is itself worthy of note, in that it comports with the justice system's historic preference for "filth" metaphors in reference to criminals. See Martha G. Duncan, In Slime and Darkness: The Metaphor of Filth in Criminal Justice, 68 TUL. L. REV. 725 (1994). Referring to sex offenders in such hyperbolic terms, to borrow from Professor Duncan, "tends to hide the criminal's humanity while encouraging us to see the criminal as an object. Moreover, the metaphor invites a particular emotional response to the criminal, the same one we consciously feel toward slime: disgust." Id. at 799; see also Doe v. Pataki, 940 P. Supp. 603, 621-22 (S.D.N.Y. 1996) (quoting a New York legislator's comment in consideration of that state's registration and notification law, likening sex offenders to the "human equivalent of toxic waste"), aff'd in part, rev'd in part, 120 F.3d 1263 (2d Cir. 1997);
284. Malcolm Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications, 30 CRIMINOLOGY 449, 470 (1992) (referring to modern American penology as serving a "kind of waste management function");
285. Peter Linebaugh, (Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein, 60 N.Y.U. L. REV. 212, 238-39 (1985) (likening the criminal justice system in eighteenth century England to a "garbage collection system").
286. People v. David W., 733 N.E. 2d 206, 210 (N.Y. 2000) (quoting Paul v. Davis, 424 U.S. 693, 703 (1976)).
287. Id. at 211.
288. See WASH. REV. CODE § 4.24.550(1)-(2), (4) (2000); see also Logan, supra note 74, at 602-19 (describing similar methods in other jurisdictions).
289. E.B. v. Verniero, 119 F.3d 1077, 1117 (3d Cir. 1997) (Becker, C.J., concurring and dissenting in part) (emphasis in original).
290. Doe v. Pryor, 61 F. Supp. 2d 1224, 1231 (M.D. Ala. 1999); see also Doe v. Poritz, 662 A.2d 367, 419 (N.J. 1995) (notification exposes a registrant to "public opprobrium not only identifying him as a sex offender but also labelling him as potentially currently dangerous"); cf. Liberty Lobby v. Anderson, 746 F.2d 1563, 1568 (D.C. Cir. 1984) (Scalia, J.) ("Even the public outcast's remaining good reputation, limited in scope though it may be, is not inconsequential."), vacated on other grounds by 477 U.S. 242 (1986).
291. See supra notes 191-197 and accompanying text.
292. See E.B., 119 F.3d at 1102 ("Knowing that someone is a convicted sex offender and has been evaluated as a continuing risk is likely to affect how most people treat that person."); Doe v. Pataki, 3 F. Supp. 2d 456, 467-68 (S.D.N.Y 1998) ("[W]idespread dissemination of the above information is likely to carry with it shame, humiliation, ostracism . . . ."); Commonwealth v. Williams, 733 A.2d 593, 606 (Pa. 1999) ("Notification puts the registrant's livelihood, domestic tranquility, and personal relationships all around him in grave jeopardy."); see also Duncan, supra note 209, at 751-55 (noting that, historically, likening offenders to "slime" and "filth" facilitates their banishment). As noted, banishment seemingly represents one of the central appeals of the laws. See, e.g., Pataki, 940 F. Supp. at 621-22 (quoting a New York legislator's enforcement of the state's notification law: "I think that one of the results of this legislation might be that this guy is going to go out of town, out of state, and that's very good for us."), aff'd and rev'd in part on other grounds, 120 F.3d 1263 (2d Cir. 1997); Sheila Grissett, Law Keeps Sex Offenders in Public Eye, TIMES-PICAYUNE (New Orleans), Oct. 24, 1993, at B1 (quoting a Louisiana official's approving conclusion that the state's aggressive notification law has discouraged sex offenders from locating in Louisiana);
293. Turning Point: The Revolving Door: When Sex Offenders Go Free (ABC TELEVISION BROADCAST, Sept. 21, 1994) (quoting police officer who stated that "Washington, by having a sexual offender law, is, in essence, telling its sexual offender, 'Hey, you'd best leave the state if you don't want to be registered.'"). But see Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) ("To permit one state to dump its convict criminals into another is not in the interests of safety and welfare; [it] . . . is prohibited by public policy."); People v. Baum, 231 N.W. 95, 96 (Mich. 1930) (stating that such an orientation "tend[s] to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several states which is the basis of the union itself").
294. Lois Presser & Elaine Gunnison, Strange Bedfellows: Is Sex Offender Notification a Form of Community Justice?, 45 CRIME & DELINQ. 299, 309 (1999). As Professor James Whitman recently asked: "Does anyone really doubt that our own shame sanctions, whether directed against sex offenders or drunk drivers, have some impact on 'public opinion' about that person?" Whitman, supra note 201, at 1088. Writing with respect to shame sanctions more generally, Whitman observes: "The problem with shame sanctions . . . is that . . . they exclude the offender entirely from the life of ordinary transactions just as members of shunned classes are excluded everywhere from the simple dignity of admission to the marketplace." Id. at 1090 n.155. Whether community notification, as a technical matter, is a "shame sanction" has been the subject of some disagreement. Professor Stephen Garvey, for one, asserts that "the primary aim of [notification] is nether to shame nor to educate. Public notification statutes appear designed primarily to protect third parties." Garvey, supra note 140, at 737 n.21. However, whatever the "primary aim" of notification, the unavoidable and irreducible outcome of notification is that it stigmatizes registrants with shameful information, and for this reason most commentators consider community notification a shame sanction.
295. See, e.g., Daniel Feldman, The "Scarlet Letter Laws" of the 1990s: A Response to Critics, 60 ALB. L. REV. 1081 (1997); Whitman, supra note 201;
296. April R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 CAL. L. REV. 885, 911-13 (1995); see also E.B., 119 F.3d at 1119 (Becker, C.J., concurring and dissenting in part) (characterizing notification as "the functional equivalent of shaming punishments");
297. AMITAI ETZIONI, THE LIMITS OF PRIVACY 62 (1999) ("[A]lthough community notification would ideally lead to reintegrative shaming rather than to its punitive counterpart, in either case 'outing" the offender is necessary, both for shaming to work and for the community to be protected.").
298. E.B., 119 F.3d at 1125 (Becker, C.J., concurring and dissenting in part); cf. Richard A. Posner & Eric B. Rasmusen, Creating and Enforcing Norms, With Special Reference to Sanctions, 19 INT'L REV. L. & ECON. 369, 371 (1999) ("It is important to note . . . that even when viewed purely as an external sanction, that is, as the product of the actions or reactions of other people, shame (like guilt) is felt even if other people take no action.").
299. For classic treatments of the disabling effects of social stigma more generally, see ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 5 (1963);
300. S. GIORA SHOHAM & GIORA RAHAV, THE MARK OF CAIN: THE STIGMA THEORY OF CRIME AND SOCIAL DEVIANCE (2d ed. New York Press 1982). As Professor Goffman observes, "[w]e believe the person with the stigma is not quite human. On this assumption, we . . . reduce his life chances." Goffman supra, at 6;
301. cf. 2 ALEXIS DETOCQUEVILLE, DEMOCRACY IN AMERICA 261 (Phillips Bradley ed., 1985) (1840) ("In a democratic country . . . public favor seems as necessary as the air we breathe, and to live at variance with the multitude is, as it were, not to live.").
302. Jones v. Cunningham, 371 U.S. 236, 240 (1963); see also Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 895-97 (2d Cir. 1996) (holding that threatened banishment from the Seneca Indian tribe and land satisfied the habeas custody requirement).
303. See People v. Pennington, 610 N.W.2d 608, 611 (Mich. Ct. App. 2000) (per curiam) (observing that the laws closely resemble "quarantine notices when public health is endangered by individuals with infectious diseases" and that with notification "individuals can expect to experience some embarrassment and isolation").
304. As Professor Seth Kreimer has noted, "[t]he impact of stigma depends upon the strength and pervasiveness of the mobilized hostility. To be branded a Socialist in 1954 is quite different than being branded a Socialist in 1990." Kreimer, supra note 200, at 53. Given this relationship, and the unprecedented disdain currently felt for sex offenders, the government-sponsored labels used today obviously engender unique stigma.
305. JOHN STUART MILL, ON LIBERTY 4-5 (David Spitz ed., W.W. Norton & Co., Inc. 1975) (1859); see also Kreimer, supra note 200, at 6 ("The power of public opprobrium, once evoked, is often more pervasive and more penetrating than criminal punishment.").
306. JEAN-PAUL SARTRE, BEING AND NOTHINGNESS: AN ESSAY ON PHENOMENOLOGICAL ONTOLOGY 222 (Hazel E. Barnes trans., 1956).
307. Zevitz & Farkas, supra note 195, at 382-83.
308. Presser & Gunnison, supra note 217, at 310.
309. See JEREMY BENTHAM, THE PANOPTICON WRITINGS (Miran Bozovic ed., Vers. 1995) (1791). Panoptic correctional houses were actually constructed in the United States: in 1800, Virginia utilized a semi-Panoptic design for its prison; Pennsylvania and Illinois built Panoptic prisons in 1826 and 1919, respectively.
310. JOHN W. ROBERTS, REFORM AND RETRIBUTION: AN ILLUSTRATED HISTORY OF AMERICAN PRISONS 55 (1997).
311. REG WHITAKER, THE END OF PRIVACY: How TOTAL SURVEILLANCE Is BECOMING A REALITY 35 (1999) ("The Inspector sees without being seen. His presence, which is also an absence, is in his gaze alone. Of course, the omnipresence of the Inspector is nothing more than an architectural artifice, really just an elaborate conjuring trick.").
312. MICHEL FOUCAULT, DISCIPLINE AND PUNISH 201 (Alan Sheridan trans., Vintage Books 1979). Foucault elaborates: There are two images, then, of discipline. At one extreme, the discipline-blockade, the enclosed institution . . . . At the other extreme, with panopticism, is the discipline-mechanism: a functional mechanism that must improve the exercise of power by making it lighter, more rapid, more effective, a design of subtle coercion for a society to come. Id. at 209.
313. See supra notes 70-75 and accompanying text (discussing constraints and national coverage of registration and notification laws). Indeed, if a registrant changes state residence, he is required to deduce whether his crime of conviction compels registration within that new state, as states differ in their respective substantive requirements. So, before going to the trouble of registering with local police, a potential registrant might be faced with a difficult legal research project, a burden not shared by other newcomers. See, e.g., Roe v. Attorney Gen., No. 99-2706-H, 1999 WL 1260188, at *1 (Mass. Super. Nov. 23, 1999) (discussing the difficulty of discerning whether the crime of conviction in Florida constituted a "like offense" requiring registration as a "sex offender" under Massachusetts law); see also, e.g., CONN. GEN. STAT. § 54-251(a) (1999) ("If any person who is subject to registration under this section regularly travels into or within another state or temporarily resides in another state . . . such person shall notify the Commissioner of Public Safety and shall also register with an appropriate agency in that state provided that state has a registration requirement for such offenders.").
314. This phrase is borrowed from STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT AND CLASSIFICATION 71 (1985).
315. See Foucault, supra note 228, at 207 (observing that "the seeing machine was once a sort of dark room into which individuals spied; it has become a transparent building in which the exercise of power may be supervised by society as a whole"); id. at 203 (noting that panopticism is concerned with "individualizing observation, with characterization and classification"). This same surveillance effect was evidenced in previous registration efforts. In 1950s Philadelphia, for instance, one local detective supported registration because "it led the 'criminals' to believe that they were under the surveillance of the police department. The registrant's feeling of constant surveillance and obligation to notify the police of any change of address might impose some regimentation upon the criminals." See Registration Ordinances, supra note 60, at 64. The author elaborated: In one case a Negro woman came into the Identification Division of the Philadelphia Police department to report that she was leaving the city for four days to attend her mother's funeral and wanted to notify the police so that she would not be in trouble when she returned . . . . One individual reported that he had lost his registration card and had come to the police right away because he did not want to get in trouble. Id. at 64 n.24. Another objection is the psychic effect which it has on every man who has committed a crime. It opens up old sores. It re-affirms the conviction that exists in the minds of too many of these people that the police are anxious to get something on them. The fact that this is not so does not matter. The important thing is that this group of individuals feels that it is so . . . . Current Note, Criminal Registration Law, 27 J. CRIM. L. & CRIMINOLOGY 295, 295-96 (1936)
316. In this sense, the interests threatened by registration and notification resemble those protected by the Fifth Amendment, which in pertinent part guards against compelled extraction of information by the government. Professor Charles Fried offers the following analysis: By according the privilege as fully as it does, our society affirms the extreme value of the individual's control over information about himself . . . . [I]t is the point of the privilege that a man cannot be forced to make public information about himself. Thereby his sense of control over what others know of him is significantly enhanced, even if other sources of the same information exist. Charles Fried, Privacy [A Moral Analysis], in PHILOSOPHICAL DIMENSIONS OF PRIVACY: AN ANTHOLOGY 203, 214-15 (Ferdinand David Schoeman ed., 1984); cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (stating "compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [taxes or punishment] . . . were thought likely to produce").
317. See 139 CONG. REC. H10, 319-02, H10,320 (daily ed. Nov. 20, 1993) (statement of Rep. Sensenbrenner); 139 CONG. REC. H10,319-02, H10,321 (daily ed. Nov. 20, 1993) (statement of Rep. Ramstad).
318. See supra text accompanying note 71.
319. Over thirty years ago, in his landmark study of the impact of then-modern technology upon privacy, Professor Alan Westin recognized the critical role of surveillance in the government's effort to exert social control: Surveillance is obviously a fundamental means of social control . . . . The whole network of American constitutional rights . . . was established to curtail the ancient surveillance claims of governmental authorities . . . . Writings by leading social scientists have made it clear that observation by listening or watching which is known to the subject necessarily exercises a restrictive influence over him. In fact, in most situations this is exactly why the observational surveillance is set up - to enforce the rules. ALAN F. WESTIN, PRIVACY AND FREEDOM 57-58 (1967). The universal surveillance associated with registration and notification is not just compulsory but also largely actual, not merely perceived, which sets the laws apart from the self-regimenting influence of Bentham's Panopticon. Nonetheless, it is a central component shared by both. See Whitaker, supra note 227, at 36 ("Bentham's metaphor shows how surveillance can exact compliance and be an effective tool for social control, but only to the extent that the subjects of surveillance have no alternative to the Inspector's gaze.").
320. One aspect of this anxiety stems from the uncertain timing of such acts, an uncertainty that in some ways makes the lot of registrants even more angst-ridden than that of probationers and parolees. As the Second Circuit observed with respect to a pendent threat of banishment experienced by members of the Seneca Indian tribe, [w]hile "supervision" (or harassment) by tribal officials or others acting on their behalf may be sporadic, that only makes it all the more pernicious. Unlike an individual on parole, on probation, or serving a suspended sentence - all "restraints" found to satisfy the requirement of custody - the petitioners have no ability to predict if, when, or how their sentences will be executed. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 895 (2d Cir. 1996).
321. State v. Taylor, 835 P.2d 245, 250 (Wash. Ct. App. 1992) (Agid, J., dissenting).
322. See Registration Ordinances, supra note 60, at 62-63 (identifying the re-arrest of those who failed to comply with registration requirements as a "principal" objective of circa 1950s registration laws).
323. Once again, the parallel to Bentham's Panopticon is evident. As noted by Reg Whitaker, "Bentham believed that surveillance would ensure compliance,
324. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (deeming it significant that under such circumstances "[d]isobedience is itself a criminal offense"); see also Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986) (per curiam) (deeming the custody requirement satisfied when defendant is subject to a suspended sentence threatening future imprisonment).
325. Jones v. Cunningham, 371 U.S. 236, 242 (1963). To be sure, unlike the parolee in Jones whose readmission to prison for failure to comply with specified terms could be based on a mere administrative decision by a parole board, any conviction for failure to register or to maintain registry information presumably would be preceded by formal adjudication, with its procedural rights and protections. However, it is indisputable that registrants, unlike other community members, suffer from this specter of governmental intrusion, which, though short of summary incarceration, at a minimum subjects them to the threat of re-arrest on suspicion of a registration violation, a specter that surely warrants some recognition in the custody analysis.
326. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 895 (2d Cir. 1996) ("Restraint' does not require 'on-going supervision' or 'prior approval' [to satisfy the custody requirement].").
327. Consistent with this latitude, it is not uncommon for states to expressly allow private dissemination of registrant information. See, e.g., N.Y. CORR. LAW § 168-1(6)(b) (McKinney Supp. 2000) (specifying that "any entity receiving information . . . may disclose or further disseminate such information at [its] discretion").
328. See, e.g., Paul P. v. Farmer, 80 F. Supp. 2d 320 (D.N.J. 2000) (enjoining New Jersey's notification law because it failed to impose sufficient controls to guard against unintended disclosures by local authorities). The court further explained: A system of distributing this information with zero "leakage" to unauthorized persons is, in reality, unattainable. However, the mandate for the Attorney General is not to devise a perfect system, but one calculated to achieve the goals of the statute without unreasonably impinging on the "nontrivial" privacy interests of the plaintiffs. Id. at 325. The district court subsequently approved the State's revised guidelines. See Paul P. v. Farmer, 92 F. Supp. 2d 410 (D.N.J. 2000), aff'd, No. 00-5244, 2000 WL 1277961 (3d Cir. 2000). Under the new regime, registrant information contained in a flier will be disseminated in redacted and unredacted form; the latter contains inter alia the exact home address of the registrant, which is provided only to community members willing to sign a receipt pledging that they will not disclose the information to unauthorized persons and not harass the registrant, his family, or employer. Id. at 411. All other community members will receive redacted information forms, which, while containing all other information, reflect only the general area of the registrant's home. Id.
329. The court in Paul P., for instance, noted forty-five documented instances of misuse, yet not a single action for contempt was initiated. See Paul P., 80 F. Supp. 2d at 324 n.8.
330. See supra note 78 (listing organizations that provide links to state-initiated Internet cites). In addition to state-sponsored sites, numerous local police departments maintain independent cites providing registrant information. See id.
331. To quote Charles Sykes, "[d]ata is like a prostitute; [o]nce it's on the street, everybody has access to it." CHARLES J. SYKES, THE END OF PRIVACY 101 (1999) (citing an advocate for the mentally ill). Given this ephemeral quality, it should come as no surprise that enterprising citizens have seized the initiative to create Internet sites on their own to disseminate registrants' information. See, e.g., www.jaye.org (site maintained by Michigan State Senator Dave Jaye, disclaiming that the site "is not responsible for inaccuracies") (last updated Aug. 1, 2000); http://www.parentsformeganslaw.com/html/offender.lasso (containing information on New York registrants "hand transcribed" by volunteers from Parents for Megan's Law organization) (last visited Oct. 10, 2000);
332. (Nicole Brodeur, Looking Backward, Staying Alert, NEWS & OBSERVER (Raleigh, N.C.), Apr. 8, 1998, at B1 (recounting the rapid spread of information as a result of private citizen's effort to print registry information from web site and contact community members about a particular registrant).
333. See Rich Calder, Technology Aids Sex-Offender Alerts, May 24, 1999, available at http://www.apbnews.com (last visited Sept. 24, 2000).
334. As Ruth Gavison has observed, "privacy is seldom protected in the absence of some other interest." Ruth Gavison, Privacy and the Limits of the Law, in PHILOSOPHICAL DIMENSIONS OF PRIVACY: AN ANTHOLOGY 346, 348 (Ferdinand David Schoeman ed., 1984) [hereinafter Shoeman].
335. Fried, supra note 232, at 203, 218.
336. GAVISON, supra note 249, at 347; see also DAVID BRIN, THE TRANSPARENT SOCIETY: WILL TECHNOLOGY FORCE US TO CHOOSE BETWEEN PRIVACY AND FREEDOM? 79 (1998) (describing privacy as "a wonderful, highly desirable benefit of freedom");
337. JUDITH WAGNER DECEW, IN PURSUIT OF PRIVACY: LAW, ETHICS, AND THE RISE OF TECHNOLOGY 44 (1997) (observing that "liberty, privacy, and autonomy are distinct concepts that overlap in their extensions");
338. Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. REV. 962, 1000 (1964) (stating "[i]ntrusion and public disclosure are merely alternative forms of injury to individual freedom and dignity"). Even more fundamentally, numerous commentators have noted the sociobiological origins of the need for privacy. See, e.g., Alan Westin, The Origins of Modern Claims to Privacy, in Schoeman, supra note 249 at 56-74; see also Pavesich v. New England Life Ins. Co., 50 S.E. 68, 69 (Ga. 1905) (noting that privacy has "its foundation in the instincts of nature" and natural law).
339. SYKES, supra note 164, at 227; see also Gavison, supra note 249, at 362 (observing "privacy is central to the attainment of individual goals under every theory of the individual that has ever captured man's imagination").
340. JOHN A. HALL, LIBERALISM: POLITICS, IDEOLOGY AND THE MARKET 86-87 (1988). For additional discussions of the relation between privacy and the exercise of political autonomy, see SYKES, supra note 164, at 84-85;
341. Anita Allen, Coercing Privacy, 40 WM. & MARY L. REV. 723, 732-33 (1999).
342. See GOFFMAN, supra note 218, at 41-72 (discussing the empowering effect on personal identity of uncontrolled information disclosure).
343. See Jeffrey H. Reiman, Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed By the Highway Technology of the Future, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 27, 39 (1995); see also Briscoe v. Reader's Digest Ass'n, 483 P.2d 34, 37 (Cal. 1971) (citations omitted) ("The claim is not so much one of total secrecy as it is of the right to define one's circle of intimacy to choose who shall see beneath the quotidian mask. Loss of control over which 'face' one puts on may result in literal loss of self-identity, and is humiliating beneath the gaze of those whose curiosity treats a human being as an object.").
344. See HELEN MERRELL LYND, ON SHAME AND THE SEARCH FOR IDENTITY 50 (1958) (stating "[t]he thing that has been exposed is what I am").
345. See Fried, supra note 232, at 210 (observing that privacy in its "dimension of control over information is an aspect of personal liberty"); Gavison, supra note 249, at 363-64 (stating that privacy "functions to promote liberty of action"); id. at 365-66 ("Privacy enables individuals to establish a plurality of roles and presentations to the world. This control over 'editing' one's self is crucial, for it is through the images of others that human relations are created and maintained.").
346. See SYKES, supra note 164, at 221 ("The erosion of privacy asphyxiates private life as it contracts the distance that separates individuals from one another and from the state."); Kreimer, supra note 200, at 71 ("Unwanted observation by others is itself a limitation of autonomy . . . . [T]he power of the state to inflict the [associated] sense of vulnerability is itself a sanction."). See generally Bloustein, supra note 251, at 1003 (arguing that the dignity-effacing aspect of privacy deprivations serves to limit individual liberty because it deprives persons of their individuality and human dignity).
347. 489 U.S. 749 (1989).
348. A "rap-sheet" typically reflects an individual's date of birth, physical description, and history of arrests, charges, conviction, and sentences. Id. at 752.
349. Id. at 764.
350. Id. at 763.
351. Id. at 770.
352. 510 U.S. 487 (1994).
353. Id. at 502.
354. Id. at 500.
355. Id. at 501.
356. But see Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999) (noting the "general understanding that home addresses are entitled to some privacy protection whether or not so required by statute").
357. Doe v. Poritz, 662 A.2d 367, 411 (N.J. 1995).
358. Id; see also Artway v. Attorney Gen., 876 F. Supp. 666, 689 (D.N.J. 1995) ("[U]nlike previous access provisions, registration and public notification ensure that, rather than lying potentially dormant in a courthouse record room, a sex offender's former mischief whether habitual or once-off shall remain with him for life, as long as he remains a resident of New Jersey."); Boutin v. LaFleur, 591 N.W.2d 711, 718 (Minn. 1999) ("While it is true that the information regarding [petitioner's] case is available to the general public in the form of court documents, there is a distinct difference between the mere presence of such information in court documents and the active dissemination of such information . . . ."). For instances of other courts also recognizing a privacy interest as being jeopardized by the bundle of information made available by notification see, e.g., Doe v. Pryor, 61 F. Supp. 2d 1224, 1231 (M.D. Ala. 1999); Roe v. Farwell, 999 F. Supp. 174, 197-98 (D. Mass. 1998).
359. See Federal Labor Relations Auth., 510 U.S. at 500-501.
360. See supra notes 191-196 and accompanying text; see also Poritz, 662 A.2d at 409 ("[W]here as a result of the information disclosed under the Notification Law, plaintiff may be exposed to uninvited harassment, we conclude that disclosure of plaintiff's home address, particularly when coupled with the other information disclosed, implicates a privacy interest.").
361. Basic notions of utilitarianism and democratic liberalism, however, would militate against such a position. Professor George Fletcher recently noted: Punishment as an imperative of justice hardly makes sense if the program of punishment fails to include an opportunity for the offender's reintegration into society. There is no point to the metaphor of paying one's debt to society unless the serving of punishment actually cancels out the fact of having committed the crime. The idea that you pay the debt and be treated as a debtor (felon) forever verges on the macabre. George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Use of Infamia, 46 UCLA L. REV. 1895, 1907 (1999); see also People v. Pieri, 199 N.E. 495, 499 (N.Y. 1936) (Cardozo, J.) ("Persons who have been convicted of crime and served the sentence imposed are not thereafter barred from society or intercourse with other human beings; they are not outcasts, nor to be treated as such."); Whitman, supra note 201, at 1090 (noting the "dignity of the one-shot transaction the dignity that arises from our marketplace right to complete one deal and move on to the next one, the dignity that comes from our right to pay off a debt once and for all and be done with our creditor"). Jurisprudential support for this position is evidenced in recognition of the "private facts" tort relating to the publication of old arrest and conviction information. The tort was first recognized hi Briscoe v. Reader's Digest Ass'n, 483 P.2d 34 (Cal. 1971). Briscoe concerned an article published by Reader's Digest entitled "The Big Business of Highjacking," which mentioned Briscoe by name and detailed the events leading to his prior conviction for truck highjacking. As a result of the publication, Briscoe's 11-year-old daughter, as well as his friends, learned of his criminal history for the first time. After first noting that dissemination of the names of current criminal suspects and the circumstances of their alleged crimes warranted First Amendment protection, id. at 39, the court held that fairness and the interest in criminal rehabilitation warranted a different outcome with respect to past criminal activity: The masks we wear may be stripped away upon the occurrence of some event of public interest. But just as the risk of exposure is a concomitant of urban life, so too is the expectation of anonymity regained. It would be a crass legal fiction to assert that a matter once public never becomes private again. . . . Plaintiff is a man whose last offense took place 11 years before, who has paid his debt to society, who has friends and an 11-year-old daughter who were unaware of his early life - a man who assumed a position in "respectable" society. Ideally, his neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff here therefore endeavored to reveal as little as possible of his past life. Yet, as if in some bizarre canyon of echoes, petitioner's past life pursues him through the pages of Reader's Digest, now published in 13 languages and distributed in 100 nations . . . . Id. at 41-42.
362. See generally RODNEY A. SMOLLA, LAW OF DEFAMATION §§ 10:37-10:54 (2d ed. 2000);
363. John A. Jurata, Comment, The Tort That Refuses to Go Away: The Subtle Reemergence of Public Disclosure of Private Facts, 36 SAN DIEGO L. REV. 489 (1999).
364. It bears mention that at least one member of the current Court appears inclined to subscribe to the physical restraint requirement. See Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 339 (1984) (O'Connor, J., concurring) (opining that the custody requirement is satisfied only when petitioner "is under physical restraint or under a legal restraint that can be converted into a physical restraint without a further judicial hearing").
365. Peyton v. Rowe, 391 U.S. 54, 66 (1968).
366. 371 U.S. 236 (1963).
367. Id. at 243; see also Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000) ("The writ of habeas corpus plays a vital role in protecting constitutional rights."); Minnesota v. Murphy, 465 U.S. 420, 430 (1984) (stating that the custody requirement has been "defined broadly to effectuate the purposes of the writ").
368. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
369. See Kreimer, supra note 200, at 5 (noting that "[t]he expansion of government knowledge translates into an increase in the effective power of government").
370. See Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1830); 3 WILLIAM BLACKSTONE, COMMENTARIES *131.
371. Lehman v. Lycoming County Children's Serv. Agency, 458 U.S. 502, 510 (1982).
372. Although habeas is of statutory origin, the judiciary has been the main animating force behind its ongoing evolution as basis for redress against unlawful limits on personal liberty. See Developments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038, 1072 (1970) (footnote omitted) ("[S]ince the custody concept, taken from the common law heritage of the writ, has not been defined in the statute, the courts have not felt constrained by the statute in their elaboration of its meaning."); see also Yackle, supra note 11, at 1009 (stating the custody requirement has "quickly [given] ground whenever it threatened to interfere with the development of an effective system of postconviction review").
373. Fay v. Noia, 372 U.S. 391, 401-02 (1963); see also Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894 (2d Cir. 1996) ("A court [must] judge the 'severity' of an actual or potential restraint on liberty."); Harts v. Indiana, 732 F.2d 95, 96 (7th Cir. 1984) ("[W]hether someone who is not under physical constraint can be considered in custody depends on the amount of restriction placed on his or her individual liberty.").
374. See, e.g., Peter McGrath, If All the World's a Computer . . ., NEWSWEEK, Jan. 1, 2000, at 72. This shift in turn has triggered new understandings of privacy. As one commentator recently noted, "[w]here once the issue of 'privacy' was primarily having to do with one's physical seclusion, one's personal domain, and one's physical withdrawal from society's gaze, it has now come to include access to information about one's self."
375. Robert A. Reilly, Conceptual Foundations of Privacy: Looking Backward Before Stepping Forward, 6 RICH. J.L. & TECH. 6, 39 (1999), available at http://www.richmond.edu/jolt/v6:2/article1.html (last visited Sept. 24, 2000).
376. For discussions of the dramatic impact of new technologies on informational privacy more generally, see, e.g., Steven C. Carlson & Ernest Miller, Public Data and Personal Privacy, 16 SANTA CLARA COMPUTER & HIGH TECH. L.J. 83 (1999);
377. Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN. L. REV. 1193 (1998).
378. See, e.g., Joshua Quittner, Invasion of Privacy; Our Right to Be Left Alone Has Disappeared, Bit by Bit, in Little Brotherly Steps. Still, We've Got Something in Return and It's Not All Bad, TIME, Aug. 25, 1997, at 28.
379. See Megan's Law in All 50 States, available at http://www.klaaskids. org/pg-legmeg.htm (providing state-by-state numerical overview of persons currently subject to registration and notification) (last visited Sept. 24, 2000).
380. Included in this group is a significant share of persons subjected to registration and notification after having been released from prison or jail years, sometimes decades, before implementation of the registration and notification laws in the 1990s. This is because at least sixteen states impose registration requirements retroactively, with no time restriction, a situation that sweeps up many persons convicted of non-violent, consensual sex crimes heretofore the subject of aggressive police enforcement. See Robert L. Jacobson, Note, "Megan's Laws" Reinforcing Old Patterns of Anti-Gay Police Harassment, 87 GEO. L.J. 2431, 2467 (1999). However, because of the recently imposed one-year statute of limitations period on habeas petitions, such claims would likely be time-barred. See 28 U.S.C. § 2244(d) (1994 & Supp. II 1997); Brown v. Odea, 187 F.3d 572, 576 (6th Cir. 1999) (holding that petitioners whose convictions were final before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 have one year from April 24, 1996 to file); Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998) (same).
381. See supra note 168 and accompanying text.
382. See, e.g., ARIZ. REV. STAT. ANN. § 13-3821(C) (West 2000) ("sexual motivation"); IND. CODE ANN. § 5-2-12-4(1)(E) (Michie 2000) ("vicarious sexual gratification"); KAN. STAT. ANN. § 22-4902(c)(14) (Michie 2000) ("sexually motivated"). The Minnesota registration and notification law extends to enumerated offenses, as well as "another offense arising out of the same set of circumstances." MINN. STAT. § 243.166(a)(1) (2000). In addition to the broad, over-inclusive sweep of the laws, there is increasing evidence that the massive governmental effort associated with their operation is ensnaring and mis-branding individuals who, although convicted of crimes related to a statutorily enumerated offense, do not fall within their legal ambit. See, e.g., Anne Krueger, Convicted Rapist Sues Over Being Wrongly Labeled a Child Molester, SAN DIEGO UNION-TRIBUNE, April 17, 1999, at B-3;
383. Louise Palmer, Megan's Law Often Brands Wrong People: Hundreds Challenge Registry, TIMES-PICAYUNE (New Orleans), Oct. 12, 1997, at A10; cf. Akella v. Michigan Dep't of State Police, 67 F. Supp. 2d 716, 731-32 (E.D. Mich. 1999) (denying due process claim of homeowners whose address was wrongly listed on the Michigan sex offender registry).
384. See supra notes 89-95 and accompanying text.
385. See Logan, supra note 74, at 626-33 (discussing the limited availability of statutory rights of appeal or administrative review of classification decisions).
386. No discussion of available federal relief would be complete without brief mention of two potentially alternate remedial avenues: 42 U.S.C. § 1983 and the writ of coram nobis. For its part, however, § 1983 is neither intended nor designed to free citizens from wrongful "custody," but rather is designed to afford legal and equitable relief for constitutional wrongs of governmental actors. See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DEPAUL L. REV. 85, 104 (1988) (noting that "[r]elease from custody lies at the heart of the habeas corpus remedy. That relief, however, is not available in a civil rights action"); see also Allen v. McCurry, 449 U.S. 90, 104 (1980) (stating that the purpose of habeas is "not to redress civil injury, but to release applicant from unlawful physical confinement"). Coram nobis, on the other hand, much like habeas serves as a basis to vacate a conviction, and importantly, carries no express requirement that a petitioner be in "custody." However, coram nobis like habeas is an "extraordinary remedy," which courts are loath to extend. As the Supreme Court recently noted, the writ was traditionally available only to bring before the court factual errors "material to the validity and regularity of the legal proceeding itself," such as the defendant's being under age or having died, before the verdict. . . . "[I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." Carlisle v. United States, 517 U.S. 416, 429 (1996) (citations omitted). Moreover, as noted by one commentator, relief under coram nobis itself entails an exacting standard: Because the justification of habeas corpus ends with the completion of custody, the petitioner for a writ of coram nobis must show a continuing civil disability that is serious enough to substitute for the custody requirement. The governing theory is that the writ of coram nobis should be reviewed under at least as stringent a standard as the writ of habeas corpus.
387. M. Diane Duszak, Post-McNally Review of Invalid Convictions Through the Writ of Coram nobis, 58 FORDHAM L. REV. 979, 986 (1990); see also United States v. Morgan, 39 F.R.D. 323, 327 (N.D. Miss. 1966) (stating that coram nobis is "not merely a means of evading the jurisdictional prerequisites" of habeas). Finally, and of particular significance to the discussion here given the overwhelming disproportion of state sex offenders, coram nobis is available only to federal petitioners. See Yackle, supra note 15, § 35, at 162.
388. See generally MICHAEL TONRY, SENTENCING MATTERS 3-99 (1996) (discussing limits);
389. SENTENCING REFORM IN OVERCROWDED TIMES: A COMPARATIVE PERSPECTIVE 3-121 (Michael Tonry & Kathleen Hatlestad eds., 1997) (same).
390. See Jones v. Cunningham 371 U.S. 236, 242-43 (1963).
391. Although likely less common, refusal to deem the custody requirement satisfied also effectively bars consideration of any irregularities associated with the all-important classification determinations made by local authorities, when a jurisdiction's statutory law provides for such discretionary determinations. See Logan, supra note 74, at 602-19 (describing various approaches used to classify offenders for registration and notification purposes).
392. 151 F.3d 1180 (9th Cir. 1998).
393. 164 F.3d 1240 (9th Cir. 1999), cert. denied sub. nom. Henry v. Lockyer, 120 S. Ct. 397 (1999).
394. 170 F.3d 1246 (9th Cir. 1999) (per curiam).
395. 371 U.S. 236 (1963).
396. Indeed, the Court's disavowal of the tangible physical restraint test has inspired some to question retention of the custody requirement altogether. See, e.g., Yackle, supra note 11, at 1003 (observing that "[a]rguments for the abandonment of the 'custody' doctrine are powerful"); Timmothy C. Hester, Comment, Beyond Custody: Expanding Collateral Review of State Convictions, 14 U. MICH. J.L. REFORM 465, 473 (1981) (arguing that "[p]arties not in custody . . . cannot be presumed to present less meritorious or significant constitutional claims than persons in custody").
397. See Spring v. Cladwell, 692 F.2d 994, 996 (5th Cir. 1982) ("The concept of custody has been relaxed considerably by the Supreme Court . . . . Nonetheless, the custody requirement has not lost all meaning.").
398. See Waste Management of Wis., Inc. v. Fokakis, 614 F.2d 138, 140-41 (7th Cir. 1980) (stating the requirement "represents the balance Congress struck between the interests of the individual in remaining free of unlawful intrusion on his physical freedom and the state courts' interest in remaining free of interference with their final judgments"); LIEBMAN & HERTZ, supra note 15, § 2.4(e), at 83-84 (The 'custody' requirement provides a sensible rationing principle . . . . [I]t provides a sensible proxy for the nationally important questions whose prior resolution has in fact jeopardized nationally important interests."). Government-imposed sanctions in the form of license forfeitures and fines, for instance, would stretch beyond plausibility constructions of the express "custody" contained in the several habeas petitions. See, e.g., 28 U.S.C. § 2241(c) (specifying "[t]he writ . . . shall not extend to a prisoner unless . . . [h]e is in custody . . . ."); see also supra notes 35-37 and accompanying text (discussing decisions rejecting fines and license forfeitures as forms of "custody" for habeas purposes). Interestingly, however, the federal habeas statute governing alleged unlawful deprivations by states speaks of a "person" not "prisoner," in custody, perhaps suggesting application of a more liberal test. See 28 U.S.C. § 2254(a) (emphasis added). Compare 28 U.S.C. § 2255 (extending habeas relief to "a prisoner in custody under sentence" imposed by a federal court) (emphasis added).
399. See Minnesota v. Murphy, 465 U.S. 420, 430 (1984) (observing that "custody" has been "defined broadly to effectuate the purposes of the writ").