Dodging Due Process: How United States v. Dodge Pushes the Limits of Civil Regulation

On March 5, 2010, the U.S. Court of Appeals for the Eleventh Circuit in United States v. Dodge held that courts may take a non-categorical approach in determining whether a defendant qualifies as a sex offender under the Sex Offender Registration and Notification Act. Although a non-categorical approach is warranted by accepted standards of statutory construction, courts following a non-categorical approach in the future should be wary of violating due process. Given that registration requirements have certain punitive characteristics, defendants may be successful in due process challenges to registration decisions based on facts neither admitted by the defendant nor submitted to a jury. Moreover, registration decisions based on a defendant’s underlying conduct stray from prior Supreme Court reasoning suggesting that registration decisions based on conviction history alone are consistent with due process.