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

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. Link to Paper / Yale Law Journal

Related posts

Notify of

We welcome a lively discussion with all view points - keeping in mind...


  1. Your submission will be reviewed by one of our volunteer moderators. Moderating decisions may be subjective.
  2. Please keep the tone of your comment civil and courteous. This is a public forum.
  3. Swear words should be starred out such as f*k and s*t and a**
  4. Please avoid the use of derogatory labels.  Use person-first language.
  5. Please stay on topic - both in terms of the organization in general and this post in particular.
  6. Please refrain from general political statements in (dis)favor of one of the major parties or their representatives.
  7. Please take personal conversations off this forum.
  8. We will not publish any comments advocating for violent or any illegal action.
  9. We cannot connect participants privately - feel free to leave your contact info here. You may want to create a new / free, readily available email address that are not personally identifiable.
  10. Please refrain from copying and pasting repetitive and lengthy amounts of text.
  11. Please do not post in all Caps.
  12. If you wish to link to a serious and relevant media article, legitimate advocacy group or other pertinent web site / document, please provide the full link. No abbreviated / obfuscated links. Posts that include a URL may take considerably longer to be approved.
  13. We suggest to compose lengthy comments in a desktop text editor and copy and paste them into the comment form
  14. We will not publish any posts containing any names not mentioned in the original article.
  15. Please choose a short user name that does not contain links to other web sites or identify real people.  Do not use your real name.
  16. Please do not solicit funds
  17. If you use any abbreviation such as Failure To Register (FTR), Person Forced to Register (PFR) or any others, the first time you use it please expand it for new people to better understand.
  18. All commenters are required to provide a real email address where we can contact them.  It will not be displayed on the site.
  19. Please send any input regarding moderation or other website issues via email to moderator [at] all4consolaws [dot] org
  20. We no longer post articles about arrests or accusations, only selected convictions. If your comment contains a link to an arrest or accusation article we will not approve your comment.
ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  

Inline Feedbacks
View all comments


I would not have read a case about punitive damages against BMW and said to myself, “This case could apply to sex offenders.” But I’m glad someone has. I think this approach will look at the cumulation of laws including residency restrictions, presence restrictions, privacy invasions, food stamp curtailment, Section 8 housing restrictions, etc. If we can make a case that the burdens these regulations put on registrants are completely out of proportion to their benefits, perhaps we can make some progress.

Bravo to the author of this law review article. When a Yale student can figure this out, the rest of the nation can’t be far behind.

I think the author’s analysis only works well with the most innocuous of sex crimes, like the example of consensual sex between minors, the example given in the article. When applied to crimes where there is an adult and a child I can not see how it is going to do much to challenge sex offender restrictions. The author doesn’t give an example of how the test might be used with more serious cases.

Well thought out and thoroughly researched. This author really shines a light on the disproportionate and punitive nature of sex offender laws, as well as the illogical nature of the entire witch hunt. Having said that it’s back to the question I’ve been asking for several years now;

“why is it that everyone sees the truth in these unjust laws except the legislators, lawmakers, judges and the general population?”

Wouldn’t it be great if everyone was exposed this this kind of scholarly work instead of the trash most people get and consider gospel from the lame stream media?

“When one man is enslaved ..all are NOT free “..President Kennedy. The Yale law student explains in his review of due process violations and restrictions that all to those registered (enslaved)…there are NO exemptions …all free men deserve fundamental rights.