Norfolk Four Update: Fourth Circuit Declares that Sex Offender Registries are not Considered "Custody"

The Fourth Circuit published US v. Flaherty yesterday, in which Eric Wilson, one of the "Norfolk Four, " had filed a federal Habeas Petition challenging his conviction. He argued that he was in custody because the requirements of the sex offender registry are sufficient restraints on liberty to be considered custody.


Wilson was convicted of rape in 1999 after a confession was coerced by Detective Robert Glenn Ford. Ford has since been convicted of  Conspiracy to Commit Extortion under Official Right, Extortion Under Official Right, and False Statement for his behavior in this case. He was sentenced to 360 months in Federal Custody. If you've never heard of this case, PBS did a Frontline documentary called "The Confessions" about it. It's well worth anyone's time to view if you want to develop or bolster a healthy distrust of law enforcement.

In the Case, the majority opinion indicated that the requirements of the Sex Offender Registry are too trivial and too collateral to satisfy the requirements of Custody. Judge Wynn properly points out in the dissent that the registry requires checking in with local law enforcement and maintaining an address within certain bounds (not to mention the social scrutiny involved), which is a significant restraint on his liberty and should be considered. 

The Court suggests, in a well-meaning bout of verbal diarrhea, that "Wilson has alleged compelling claims that significant legal burdens and disabilities imposed on him are wholly unjustified by any legitimate governmental interest; morally and legally, he is clearly entitled, in my judgment, to a judicial forum to test the accuracy of his claims. If, as the dissent posits, Virginia law would foreclose access to such a judicial forum under coram nobis or some other extraordinary procedure, I believe a due process claim under 42 U.S.C. § 1983 would raise grave issues of profound moment deserving of serious judicial examination." 

Apparently, there is some worry that should the Court decide that a sex offender register is "custody" it would open the floodgates of litigation and abhorrently allow yet another avenue for people for relief  merely on the grounds that they are actually innocent.

This raises the bigger political question of whether it is good for our Courts to be so dogmatic in their approach to these issues given the clear innocence of Mr. Wilson. Both sides will continue to argue the political and pragmatic implications of "judicial activism". In the meantime, people like Eric Wilson will live their lives, unable to find employment, unable to adopt, unable to live in certain areas, having to alert the government where he lives at all times among a populace that will believe him to be a dangerous rapist despite the overwhelming evidence to the contrary FOR THE REST OF HIS LIFE.

I presume that his attorneys will seek review by the Supreme Court. So, it appears that the government is not finished ruining his life yet.