Reframing the Punishment Test Through Modern Sex Offender Legislation

By Jane Ramage

Modern sex offender registration and notification laws blur the distinction between criminal and civil law. Despite being labeled as civil regulatory schemes, these laws impose severe burdens on personal liberty—burdens that we tend to associate with criminal punishment. In 2003, the U.S. Supreme Court determined that at least one sex offender registration and notification program functioned as a civil remedy rather than a criminal sanction. In upholding the Alaska Sex Offender Registration Act, the Supreme Court held that the burdens imposed by the statute did not impose additional punishment on registered sex offenders and thus did not trigger the constitutional protections reserved for criminal defendants.

As sex offender legislation has grown in scope and severity, federal courts have continued to reject challenges brought by registered sex offenders who allege that these programs impose additional punishment. In 2016, however, the Sixth Circuit broke new ground and determined that the requirements set forth in the amendments to the Michigan Sex Offender Registration Act had transformed the scheme from civil to criminal. This Note explores the growing circuit split among federal courts in assessing the nature of sex offender legislation and proposes that courts reframe the current punishment analysis to resolve these inconsistencies.