Copyright (c) 2004 The Harvard Law Review Association
Harvard Law Review
NOTE: MAKING OUTCASTS OUT OF OUTLAWS: THE UNCONSTITUTIONALITY OF SEX OFFENDER REGISTRATION AND CRIMINAL ALIEN DETENTION
117 Harv. L. Rev. 2731
One of the most important yet neglected aspects of the American criminal justice system is the increasing imposition of "civil disabilities," or "collateral consequences," attending criminal conviction. 1 In most states, for example, felons may not vote, serve on juries, run for public office, or receive certain welfare benefits. 2 While felon disenfranchisement and other forms of "civil death" have a long history in the United States, 3 the most recent and controversial examples of civil disabilities single out particularly unpopular categories of felons for the curtailment of personal liberties. 4 Sex offenders, for example, are subject to public registration requirements, commonly known as "Megan's Laws," in all fifty states, 5 and aliens convicted of "aggravated felonies" are subject to mandatory detention and deportation under federal law. 6 Such collateral sanctions are constitutionally problematic in part because they apply automatically upon conviction without an individualized hearing. 7 Last Term, however, the Supreme Court upheld both of these sanctions against due process challenges. 8 In response, this Note offers a slate of alternative constitutional attacks and argues that the Court's current approach toward civil disabilities is internally contradictory, as well as deeply inconsistent with core constitutional norms drawn from the Due Process, Equal Protection, and Bill of Attainder Clauses. Based on these norms, the Note concludes that the Constitution prohibits legislatures from making outcasts out of outlaws - that is, from branding certain classes of felons as dangerous in order to impose civil ...
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