Gone, But Not Forgotten? Habeas Corpus for Necessary Predicate Offenses

Criminal registration schemes have a long lineage in the United States, and indeed throughout the modern era. The past decade, however, has seen an unprecedented surge in criminal registrations since the mid-1990s implementation of Megan’s Laws aimed at sex offenders. Today, nearly 700,000 people are registered under these laws. Given the political popularity of criminal registration and community notification laws, and the increasing accessibility of registration information through the Internet, it would not be surprising to see such schemes extended to wider classes of offenders—or even to all those convicted of felonies.

Inherent in every community notification scheme is a requirement that the offender update their information with law enforcement. Since few offenders would do this voluntarily, these schemes ensure compliance by threatening strict penalties for those who go off-the-radar. 

Courts have recognized that those subject to these schemes face a unique situation: if arrested for failing to register they cannot contest the crime that served as the basis for their registration offense—only whether or not they complied with the registration statute. Courts have considered civil commitment schemes in a similar light; under those schemes offenders can be held beyond their initial sentence if it is determined they will continue to pose a danger if released. Because offenders cannot challenge their underlying, expired convictions if arrested for failing to register, offenders have sought to challenge those convictions through habeas corpus. Courts disagree as to whether offenders can challenge their expired, underlying convictions (“necessary predicate offenses”) when arrested for failing to register as a sex offender or civilly committed (“necessary-predicate-based offenses”). This Comment seeks to understand the unique challenges brought about by the increasing prevalence of necessary-predicate-based offenses and whether or not habeas corpus might be a tool to allow for offenders to challenge necessary predicate offenses.