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Georgia Criminal Law Review

Document Type

Notes

Abstract

Clements v. Florida is a recent Eleventh Circuit decision holding that the court could not hear the habeas petition of a post-conviction sex offender in Florida since he failed to meet the “in custody” requirement for filing a habeas petition. However, the Eleventh Circuit did not consider the land restrictions in place against the petitioner and other sex offenders in Florida. This decision may leave sex offenders without an avenue to challenge the restrictions in place against them. Such restrictions have led to homelessness and poverty leaving sex offenders with no place to work or live, in poverty, as outcasts of society. This Note proposes that had the Eleventh Circuit considered the land restrictions in place against post-conviction sex offenders in Florida, it would have held that sex offenders in Florida, like the petitioner, are “in custody” for purposes of a habeas petition. Such a decision would be following Supreme Court precedent from Jones v. Cunningham, in which it was held that a petitioner is “in custody” when they have great restraints on their liberty in ways that free persons in this country do not face and, would be following the equitable principles which guide the purposes of habeas corpus as the “Great Writ.” This Note offers a unique framework for applying the Jones standard, and argues that the court should apply the following test to determine whether the standard is met: whether a person of average ability, under the conditions in place against the petitioner, could do that which the ordinary person can do in daily life without great hinderance. Under such a test, sex offenders would be “in custody” when faced with the restrictions seen in states such as Florida and Georgia. This is an issue of great importance due to the significant restraints on the liberty of this marginalized group and due to the nature of this issue as an open question yet to be resolved by the courts. This Note contributes to the conversation by offering a framework in which some, but not necessarily all, post-conviction sex offenders may be considered “in custody” for purposes of habeas corpus.

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