For some criminal convictions, the judgment imposes a registration requirement.[125]  Under California narcotics offender registration requirements, for example, the defendant must go to the police station, give fingerprints and a photo, and register.[126]  Some courts have held this is the equivalent of punishment.[127]  Disobedience of this requirement is itself a criminal offense.  This restraint on liberty as a result of the judgment of the court is greater than that suffered by other citizens.  The defendant’s freedom of movement is controlled in part by the statute that commands a personal appearance at the police or sheriff’s department each time the defendant moves, in order to register the new address at the new police department.  There is a strong logical argument that this restraint constitutes custody sufficient to meet the jurisdictional requirement for habeas corpus.[128] 

 

            The Ninth Circuit, however, has rejected this argument, holding somewhat illogically that two different state registration requirements are “collateral consequences” only and not sufficient to satisfy the custody requirement for federal habeas corpus.[129]

[125] C.E.B., California Criminal Law: Procedure and Practice (5th ed. 2000) § 38.25.  Newly added registration requirements include arson under Cal.Penal Code § § 451, 453.  California Penal Code § 457.1; see Cal. Stats. 1994, ch. 11X.  In addition, sex offender registration has been expanded to include some misdemeanors, for which lifetime registration is required.  California Penal Code § 290, 290.1, 4852.01; see 1994 Cal. Stats., chs. 863, 867.

[126] California Health & Safety Code § § 11590-11594 (defendant must register anew each time s/he moves during the five years following the judgment).

[127] A U.S. District Court has held that the punitive aspects of public notification of the identity of sex offender registrants constitute have sufficient similarities to punishment that the Constitution prevents ex post facto application of a new public notification law.  Artway v. Attorney General of N.J., 81 F.3d 1235 (3d Cir. 1996).

[128] See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

[129] Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998); Henry v. Lundgren, 164 F.3d 1240 (9th Cir. 1999) (rejecting claim that California sex offender registration which required personal appearance at police station constituted custody sufficient for federal habeas corpus jurisdiction under 28 U.S.C. § 2241(c)(3)).

Ninth Circuit

POST CON RELIEF -- EX POST FACTO - REGISTRATION REQUIREMENT DOES NOT CONSTITUTE PUNISHMENT, SO MAY BE APPLIED RETROACTIVELY TO OFFENSE COMMITTED PRIOR TO STATUTORY CHANGE
Hatton v. Bonner, ___ F.3d ___ (9th Cir. Jan. 27, 2004) (amendment to Penal Code 290, requiring registration for persons convicted of violating Penal Code 220 [assault with intent to commit oral copulation], could be applied retroactively to defendant who committed offense prior to the amendment, because registration is not punishment), citing Smith v. Doe, 123 S. Ct. 1140 (2003).