Can Someone Be Freed Without Ever Being Held?

Imagine you find yourself living in Florida: the government tells you that because of the nature of a crime you committed, you may not live in certain places; 1,000 feet within any park, playground, school or daycare in the state.[1] There is also a possibility that you may not be able to use a personal computer, or even use the internet. Imagine the difficulties that will arise in finding a job. In a world that is increasingly dependent on technology, what kind of job doesn’t require the use of a technological device or the internet? Sounds quite inconvenient to say the least.

These are the conditions faced by Louis Clements, a Florida resident who was registered as a sex offender for life in 2008 after pleading guilty in a state court to "lewd and lascivious conduct." Clements maintains that he was pressured to plead guilty by his attorney and family members.[2] In addition to the aforementioned restrictions, Florida law also requires law enforcement to notify members of the community of registered sex offenders in the area, further putting the personal information of people like Clements in jeopardy.[3]

In 2017, Clements filed a habeas corpus petition in federal court pursuant to 28 U.S.C. § 2254, which allows anyone who is "in custody" to challenge the legality of their detention. Given Clements' circumstances, it seems reasonable on his part to interpret his post-conviction restrictions as a registered sex offender as a restraint on his liberty, and subsequently a determination that he is "in custody" to the state. These restrictions are perpetual in that he will remain on the sex offender registry for the rest of his life.

The district court dismissed Clements' petition, determining it did not have the power to hear his case because he was not "in custody." The United States Court of Appeals for the Eleventh Circuit, which has appellate jurisdiction over Florida, emphasized that since 1960, the United States Supreme Court has not interpreted being "in custody" as a literal physical restraint. Instead, there is room for interpretation on what types of restraints on someone's liberty qualifies as being "in custody," and opens the door to habeas relief.[4]

Nonetheless, the court of appeals ultimately upheld the district court’s dismissal, citing the fact that the Supreme Court has only expanded habeas relief for individuals who were on parole or pretrial release and faced excessive limits on their personal freedom and movement. Additionally, the court of appeals declared that although the sex offender registration and reporting requirements were inconvenient, they did not restrict Clements' freedom and movement.

This case presents an interesting question, which is currently pending before the Supreme Court: does Florida's registration and reporting requirements for sex offenders qualify them as people "in custody" within the meaning of 28 U.S.C. § 2254?

Although these restrictions hold merit, not just as a consequence of being convicted but also to ensure the safety of society at large, imposing these restrictions for life without the opportunity of a formal appeal is certainly excessive. Especially considering how individuals may demonstrate considerable changes in their behavior and psychology throughout their lifetime. Either through going through certain experiences, attending therapy programs, or just through the natural course of life. Registered sex offenders may face excessive social ostracization, even if they have demonstrated considerable change. This does not appear to benefit anyone, especially given how sex offenders are traditionally more likely to suffer from mental illness or personality disorders.[5] These conditions are also often attributed as a factor of recidivism.

Therefore, denying registered sex offenders the right to challenge their lifetime "confinement" constrains them permanently to a criminal classification they might one day outgrow. If these individuals pose such a great risk to society that they require lifetime registration as sex offenders, it is interesting that they are still permitted to roam free and are not confined to jail cell for life.