There’s no argument that having to register as a sex offender causes a severe burden on someone. But does that burden equate to that person being in custody for federal habeas corpus purposes? The federal courts of appeals are divided over this question, and now it has landed before the Supreme Court. Will they settle the debate? So far, the Court has ordered the government to respond, and that’s a good sign.
Louis Clements is a sex offender living in Florida. In 2017, he filed a habeas corpus petition in federal court, claiming that his lawyer put undue pressure on him to plead guilty to a sexual offense in state court in 2008, which resulted in his placement on the state’s sex offender registry for life (all sex offenders in Florida remain on the sex offender registry for life, even after they’re dead).
But the U.S. District Court for the Middle District of Florida in Ft. Myers agreed with the state and dismissed his case, saying it lacked jurisdiction because he was not “in custody.”
In order for a federal court to even hear a habeas petition challenging a conviction, under 28 U.S.C. § 2254, the person must be in some form of “custody.” Mr. Clements had already completed his state probation in 2013 and was not under any kind of probation or otherwise. Instead, he was only required to adhere to Florida’s numerous sex offender registry laws.
To be “in custody” for federal habeas purposes, it’s enough that a person is under some form of restriction that limits them from being able to do what a normal person would do. The Supreme Court has said that “custody” for habeas purposes means “being subject to restraints not shared by the public generally.” It doesn’t require someone to actually be in prison.
Mr. Clements is subject to various rules and restrictions in Florida. Here are just some restrictions Clements faces in Florida as a sex offender. If he fails to do any of these things, it’s a felony and likely more prison time:
- Live at least 1,000 feet away from places frequented by children (and much farther away in some counties);
- Report to the local sheriff’s office twice a year;
- Give notice within 48 hours of any changes to:
- Out-of-state travel plans
- Phone number
- Email address
- Online identifiers (social media account info)
- Enrollment in any school
- Access to any vehicles, even if not owned
The U.S. Court of Appeals for the Eleventh Circuit in Atlanta upheld the dismissal. It recognized that the Supreme Court had broadened the definition of “custody” for habeas purposes to include more than just physical confinement. However, the court said this applied only to parolees and pretrial releasees, who are subject to stringent restrictions on their freedom of movement.
The court of appeals acknowledged that this was “a hard question to answer,” based on its own cases and Supreme Court precedent, but ultimately concluded that Florida’s sex-offender reporting requirements were not harsh enough to constitute custody, at least not for habeas purposes.
The question before the Supreme Court is whether a person is “in custody” for purposes of Section 2254 if they are subject to a state-law sex-offender registration scheme that restricts their freedom of movement and other activities, requires them to make frequent personal appearances for in-person reporting at specific times and places, and the failure to do so subjects them to the threat of criminal sanctions.
Mr. Clements says in his petition to the Supreme Court that the Eleventh Circuit got it “wrong.” He said the court’s decision disregards the Supreme Court’s past rulings that someone is “in custody” when they are subject to “conditions which significantly confine and restrain [someone’s] freedom.”
He also pointed out that the Eleventh Circuit contradicted the Third Circuit’s precedent, which found that the in-custody requirement was “easily” met by Pennsylvania’s sex offender registration law, which is demonstrably less restrictive than Florida’s. It’s well known that Florida has the strictest sex offender laws in the country.
Mr. Clements reminded the High Court that he is required to register as a sex offender in Florida for the rest of his life and adhere to many restrictions “not shared by the public generally.” In addition to the dozens of changes he must report within 48 hours, he must appear in person at the local sheriff’s office at least twice a year at predetermined times and cannot leave the state without appearing in person at the sheriff’s office.
He argued that by granting review, the Supreme Court could put an end to the circuit split and bring the Eleventh Circuit’s precedent in line with the decisions of this court.
For the hundreds of thousands of people across the country who are denied federal habeas review of their state-court convictions and face significant restrictions on their liberty for the rest of their lives, a correct resolution of the question presented would have profound practical consequences.