The upshot was Wilson was done with his sentence, but remained a convicted rapist. And convicted rapists, of course, are sex offenders who must register. Being innocent and all, this didn't sit well with Wilson, and so he sought to have his conviction overturned by habeas corpus. The problem, obviously, was the establishment of jurisdiction for the habe, since his sentence was over.
The solution was his sex offender registration. Or at least it seemed to be, until the Fourth Circuit in a divided opinion smacked him down.
The district court dismissed Wilson’s petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).
We affirm. While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence. We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.
The notion of custody for habeas corpus purposes is defined as a substantial restraint on a person's liberty, which would seem a fair definition.
To satisfy § 2254’s jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.
Parole? Custody. Supervised release? Custody. After all, they can tell you what to do, where to go and make you pee in a cup. They can require you to go to rehab or job training, and inspect your home at will. That's a pretty substantial restraint on liberty, right?
But not being required to comply with the requirements of sex offender registration laws. Sure, they can require you to notify the police when you move into a jurisdiction, and can forbid you from living in most parts of town. They can require you to stay away from places where other person's walk freely, and go nowhere near children. They can limit your use of the internet or force you to include on your Facebook status that you're a sex offender.
And this is not a restraint on liberty.
The reason is summed up in two words: Collateral consequences. The legal fiction that laws that may have been passed long after sentence was imposed and completed, laws that dictate the performance of some of the most fundamental aspects of one's life, laws that control how one exists in society for potentially the rest of one's life, are not part of the punishment for the conviction of a crime. Instead, by characterizing them as "civil" rather than criminal, they are magically not punishment but collateral consequences.
In dissent, Judge James Wynn is clearly disturbed by the fact that the decision slams shut the court doors to an innocent man. After running through the caselaw, without reliance on the facile distinction provided by the legal fiction of collateral consequences, he concludes:
I question the majority opinion’s decision to follow the Ninth Circuit’s decade-old summary decision in Henry. Uncontestably, the in-person reporting requirements applicable to Wilson in Virginia and Texas "significantly restrain [Wilson’s] liberty to do those things which in this country free [people] are entitled to do," and, consequently, the majority opinion should squarely address the question of whether, in the Fourth Circuit, "[s]uch restraints are enough to invoke the help of the Great Writ."
Judge Wynn argues to break away from the fiction, at least within the Fourth Circuit where the court is under no constraint by holding from other circuits. Judge Wynn looks to what the sex registration laws demand rather than the denomination of civil, and concludes the obvious, that they are a huge restraint on the liberty "to do things which in this country free [people] are entitled to do." And once stripped of the fiction, that's the hard question.
Even so, Judge Wynn's concern isn't about the legal fiction of sex offender registration laws, but about how they foreclose redress by Wilson due to this substantial claim of innocence:
Our hands are not tied here; no precedent forecloses the relief sought in this case. Rather than blindly adhering to formalist procedural concerns, we should instead be guided by the equitable principles that traditionally govern the law of habeas corpus, Munaf v. Geren, 553 U.S. 674, 676 (2008), and by the Supreme Court’s mandate to construe the "custody" requirement liberally, particularly in cases involving deprivations on liberty, credible claims of actual innocence, and an absence of forum for redress.
The problem left on the table is that it's not just about Eric Wilson, or about defendants with substantial proof of actual innocence. Rather, it's about a concept that was fundamentally flawed from the outset, where in society's fit of fear and outrage, they created a horrendous an ex post facto system of punishment, called it a civil regulation, and the courts shut their eyes to all reason and stamped it approved.
Whether they understood its ramifications at the time, or its expansion to such heinous crimes as public urination, or the piling on of additional restrictions that would ultimately leave registered sex offenders with neither a place to live or a chance to be law-abiding productive citizens, is unclear. Yet that's been the end result of this fiasco.
It's cases like Eric Wilson's, because of the sympathy generated by an innocent man wrongfully convicted, that have the potential to change minds, to bring the slightest chance of reason to a fiction gone insane. And if the court can't find it worth its while to come clean on behalf of a guy like Wilson, then there is little hope the insanity will ever come to an end.
H/T Doug Berman
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