How Much Punishment Do Homeless Sex Offenders Deserve? Residency Registration Requirements As Punishment For Acts Derivative Of Status

Rosalind Herendeen, American University Washington College of Law

Abstract

This Comment analyzes sex offender laws and their residency registration provisions as a form of cruel and unusual punishment, in violation of the Eighth Amendment. With society’s growing fear of sex offenders, federal and state governments have created increasingly stringent sex offender registration laws. Included in these laws are provisions that obligate convicted sex offenders to frequently update their residency information. Many convicted sex offenders become homeless, in large part because of laws that significantly limit where they may lawfully reside. For sex offenders who become homeless, residency registration laws are impossible to comply with. The sanction for failing to register a current home address ranges between a misdemeanor and a felony charge, for which offenders can be imprisoned.

States have the discretion to tailor their sex offender laws to meet their specific social welfare concerns and priorities. Some states, such as California and Illinois, have developed residency registration provisions that specifically take into consideration the transient nature of homeless sex offenders. The majority of states, however, have sweeping residency registration provisions that apply equally to sex offenders with and without permanent addresses. Even more problematic are the consequences of the Adam Walsh Act, a federal initiative which seeks to implement a national sex offender registration system. The residency registration provisions of the Adam Walsh Act fail to take into consideration the transient nature of homeless sex offenders and the reality that it is impossible for them to register a fixed home address.

As the Supreme Court addressed in Robinson v. California, 370 U.S. 660 (1962), individuals can only be punished for culpable acts, and not for their status. Further, the Robinson Court articulated the proposition that, under the Eighth Amendment, the criminalization of status constitutes cruel and unusual punishment. The crux of this Comment rests on the understanding that, while failing to register a permanent address pursuant to a sex offender registration law is an act of omission which states can, in theory, lawfully punish, it is also an act derivative of status. Failing to register a fixed address is an unavoidable consequence of a sex offender’s status as homeless and, as such, raises the same constitutional issues as punishing status alone. In the absence of residency registration provisions that address the transient status of homeless sex offenders, states are unlawfully punishing individuals for non-volitional and unavoidable conduct. Many states’ existing residency registration requirements, therefore, violate the Eighth Amendment.

This Comment further points to an additional legal challenge to residency registration provisions, a void for vagueness argument under the Due Process Clause. This additional constitutional challenge is founded on the premise that sex offender registration laws are vague in their application to homeless sex offenders, as they provide no guidance as to how homeless offenders are to comply with the laws’ requirements. Finally, this Comment develops policy recommendations by which states and Congress can amend sex offender registration laws to avoid constitutional violations.