Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.

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Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time:

2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws:  post-application challenges

Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries.

South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems:  in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8]

Petition criteria and procedures vary considerably among the states,[9] and to date the lack of opportunity for relief has not triggered constitutional concern.  In In re Jimmy M.W.,[10] for instance, the petitioner was placed on the West Virginia registry in 1998 as a result of pleading no contest to sexual abuse in the third degree, a misdemeanor, for touching the breast of a fourteen-year-old girl.  Because the conviction involved a minor, the state required that the petitioner register for his lifetime.[11] In 2012, after remaining compliant with registration requirements for fourteen years, and marrying the victim and raising children with her, petitioner’s effort to be removed from the registry was rebuffed by a state trial court.[12] The state’s highest court affirmed, reasoning that state law did not extend any opportunity for relief to lifetime registrants such as petitioner, and neither the U.S. nor West Virginia Constitutions required any such opportunity.[13]

Finally, to date, courts have been disinclined to conclude that the effects of RCN qualify as “custody” sufficient to trigger federal habeas corpus coverage.[14]

 

[1] Under the Adam Walsh Act, the following registrants can have their statutorily designated RCN periods reduced: (i) Tier I (usually subject to 15-year period) reduced by five years if “clean record” for ten years (ten-year total duration) and Tier III juveniles (usually subject to lifetime period) reduced to twenty-five years if “clean record” for twenty-five years (twenty-five year total duration). See 42 U.S.C.A. §16915(b)(2),(3).

[2] S.C. Code § 23-3-460 (2014).

[3] S.C. Code § 23-3-430(F).

[4] See, e.g., Ala. Code § 15-20A-24 (2014); S.D. Code § 22-24B-19 (2014); Neb. Code § 29-4005(1)(b)(i) (2014).

[5] See, e.g., Ariz. Stat. § 13-3821(D); D.C. Code 22-4002 (2014); Va. Code § 9.1-910 (2014).

[6] See, e.g., Fla. Stat. § 943.0435(11) (2014); N.D. Stat. § 12.1-32-14(16); Wyo. Stat. § 7-19-304 (2014).

[7] Haw. Rev. Stat. § 846E-10(e).

[8]. Id. at § 846E-10(b).

[9] See Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2015 Wis. L. Rev.___ (2015)(forthcoming).

[10] 2014 WL 24042298 (W. Va. 2014).

[11] Id. at *1.

[12] Id. at *3.

[13] Id.

[14] See Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn. L. Rev. 147 (2000).