Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders

Abstract

Under current due process doctrine, punitive damages awards against civil defendants are reviewed for "proportionality" with the underlying misconduct, in accordance with traditional principles of retribution in punishment. This Comment argues that the same proportionality analysis could and should be applied to review statutes imposing harsh civil restrictions on the lives of released sex offenders who have already served their criminal sentences. The argument first proceeds by way of analogy. Like punitive damages in the civil context, sex offender restrictions are (1) in tension with the principle of fair notice of punishment, (2) imposed via a structurally defective procedure, (3) directed against a socially disfavored group, and (4) punitive in nature. It is these justifications that the Supreme Court has offered for reviewing the proportionality of punitive damages. Adapting the proportionality test developed in the punitive damages case BMW v. Gore, this Comment then outlines four factors that courts could use to review sex offender restrictions under the Due Process Clauses.

Keywords: due process, sex offender, proportionality, punitive damages