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March 13, 2007

Sex offender work restrictions in my backyard

The NIMBY ("not-in-my-backyard") phenomenon has risen to new heights in my own backyard: as detailed in this Columbus Dispatch article, a central Ohio community has "become the first city in Ohio — and one of just a few nationally — to limit not only where sexual offenders live, but also where they work."  Here are more details:

Upper Arlington's new law would beef up current state law that bans sexual offenders from living within 1,000 feet of schools to encompass other areas.  Then it tacks on a limit for working, as well. The new law bans offenders from living and working within 1,000 feet of not just schools, but also day-care centers, parks, playgrounds, swimming pools and libraries. The restricted areas cover about two-thirds of Upper Arlington.

Councilwoman Linda Mauger made a motion to strike the employment restriction altogether, saying, "I would rather see that money put into education and enforcement." And Councilman Donald B. Leach Jr., another critic of the work restriction, said research has shown that such laws are "neither effective nor enforceable." Councilman Timothy S. Rankin, the law's sponsor, countered: "I’m convinced this law is definitely enforceable and will be enforced."

No details were given concerning how the law will be enforced.  Council President Edward F. Seidel Jr. said it's up to police and the city attorney to work it out. There was no discussion about jobs such as pizza-delivery drivers and gas-meter readers, whose jobs might not be located in the city but bring them into Upper Arlington.  The law does say that the restriction applies to anyone who works either seven consecutive days in Upper Arlington, or 30 times over a year....

Two states, Alabama and Georgia, and a small number of cities nationwide currently prohibit offenders from working or living within their boundaries.  Brenda Schwandt, president of the Upper Arlington Chamber of Commerce, said eight people responded to a recent e-mail survey of 481 businesses in and near the city concerning the new law. The chamber voted last week to not take a stand on the issue, she said....

Before the meeting, Grandview Heights Councilman Stephen Von Jasinski asked where banned Upper Arlington laborers will end up. "It sounds like everyone wants them to be in somebody else’s backyard and not their own," he said. "I don't know why Grandview should be the recipient of all the employees Upper Arlington may not want." Being small, Grandview Heights is largely already covered by state law that prohibits predators living within 1,000 feet of schools. Von Jasinski also worries about the competitive response by neighboring communities. "You're literally saying people have no right to be anywhere when you take this to the full extent of the law. "When do we create that leper island and just throw that key away?"

Any reader thoughts about the constitutionality and/or likely efficacy of this sex offender work restriction?  Anyone think the Supreme Court will have to weigh in on the constitutionality of (and possible limits on) all the sex offender restrictions sooner rather than later?

UPDATE:  Corey Yung at Sex Crimes has taken up these matters in this thoughtful post.

March 13, 2007 at 10:19 AM | Permalink


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» Work Restrictions in Ohio from Sex Crimes
At Sentencing Law Policy, Professor Berman points us to the decision of Upper Arlington, Ohio to apply work buffer zones to sex offenders:Upper Arlington has become the first city in Ohio — and one of just a few nationally — [Read More]

Tracked on Mar 13, 2007 11:00:26 AM

» Sex Offender Work Restrictions from SexCrimeDefender
Sentencing Law and Policy and Sex Crimes have in-depth spots up on new sex offender WORK restrictions in Ohio. When will the madness stop? [Read More]

Tracked on Mar 13, 2007 12:33:00 PM


Anyone think the Supreme Court will have to weigh in on the constitutionality (and possible limits) of all the sex offender restrictions sooner rather than later?

I doubt it. What would the constitutional objection be? Eighth Amendment? Right to travel? Equal protection? Due Process? This punishment may be "unusual," but it doesn't strike me a "cruel" in a constitutional sense. Once one is lawfully convicted of a crime, his right to travel can be taken away, and the trial is all of the process that is "due." An equal protection claim would get only rational basis scrutiny, and it seems to me dishonest to say that this is entirely irrational within the meaning of the doctrine.

Sounds to me like it's just bad policy that the political process might have trouble fixing. If these banishment provisions get to the point that they have interstate effects, Congress could rein them in.

Posted by: | Mar 13, 2007 10:38:30 AM

"Once one is lawfully convicted of a crime, his right to travel can be taken away"

Massachusetts courts have found banishment presumptively unconstitutional as punishment for a crime. I don't remember the reasoning and the extent to which it relied on the state constitution.

Posted by: John Carr | Mar 13, 2007 11:07:30 AM


This is by then-Justice Charles Fried.

Notable passage:

"Whether banishment is a valid condition of probation is a matter of first impression in Massachusetts. The majority of jurisdictions to have considered the matter hold that a probation condition banishing a defendant from a State is invalid and unenforceable because it infringes on his constitutional right to interstate travel and is not reasonably related to the goals of probation. Not all probation conditions restricting an individual's movement are invalid; conditions barring probationers from certain small geographic areas have been upheld in several States when they served the goals of probation. Banishment from an entire State, however, has been held to be invalid by numerous courts because it serves none of the goals of probation and "implicates serious public policy questions against the dumping of convicts on another jurisdiction." McCreary v. State, 582 So. 2d 425, 428 (Miss. 1991). "[B]anishment from a large geographical area, especially outside of the state, struggles to serve any rehabilitative purpose." Id. Notwithstanding the Commonwealth's conclusory assertion that, "it is only logical that [banishment] would ideally have a rehabilitative effect on the defendant," there is no showing that the defendant's inability to enter Massachusetts is likely to have a rehabilitative effect. Whatever crimes the defendant may be disposed to commit, there is no showing at all that he would be more inclined to commit them in the Commonwealth or more likely to reform if he stayed away from the Commonwealth. Nor does the defendant's banishment serve a legitimate public safety goal. The Commonwealth argues that the judge properly "exercised his authority to protect persons within this State." It is against constitutional principles of interstate comity to "make other states a dumping ground for our criminals"

Posted by: | Mar 13, 2007 11:51:36 AM

The ability to pursue one's occupation is a well-established fundamental right subject to an entirely separate and additional layer of strict scrutiny under the Fourteenth Amendment.

Posted by: KipEsquire | Mar 13, 2007 1:12:29 PM

If I was in Congress I would not lift a finger for the sex offenders regardless of the interstate implications, but would wait for the courts to do something, then accuse them of being criminal-coddling judicial activists.

Posted by: S.couts | Mar 13, 2007 4:08:53 PM

The ever-mutating attempts at protecting society from sex offenders will eventually provide some measure of protection. Not, however, because the neon license plates, marked drivers' licenses, workplace and residence restrictions, websites, electronic monitors, and constantly-changing registration and notice requirements. None of those are terribly effective, in and of themselves, at protecting society from a perceived threat.

What IS effective is that the legislators in their infinite wisdom have made violation of many of these vague new statutes felonies. So, try as these guys might to navigate the labyrinth, they will slip up. They will do the best they can under the circumstances. But they will forget to notify the authorities that they are working out of town for three straight days and staying in a hotel at the job site. (Three days at a location other than your registered address establishes "domicile" in Alabama, and triggers registration requirements). And interestingly enough, violating this new statute will result in being charged with a brand new felony.

Mission accomplished! It's not about the new laws -- they are meaningless. It's about the punishment for breaking the new laws. Most states have toughened the sentencing recently for offenders yet to be charged. But what could they do about the folks who had already served time and/or been rehabilitated? This is a way to get those guys back behind bars, too. It's that simple, and that unfortunate.

Thanks for your blog. I'm a non-practicing attorney.

Posted by: slim | May 4, 2007 12:12:37 AM

Upper Arlington's new law does nothing to protect is merely a feel-good measure as evidenced by the most recent accusation surrounding a high school teacher in Arlington (Feb 2008).


Posted by: J Johnson | Mar 2, 2008 12:29:21 PM

The sexoffender brush is far to broad, and except in extreme cases where you obviously have someone bent on molesting children most of the requirements and restrictions are cruel and unusual. We did away with the stocks, tarring and feathering and the like what, a century ago. It seems to me that not only the legislators, but this society as a whole is just rather small minded. The perpetual public humiliation on top of severe prison sentences is extreme and without question cruel and unusual. There individuals whose crimes warrant such measures and need to be under such intense scrutiny. The average person who is convicted of a sex crime and specifically those who had consentual sex with someone who was "under age" are being persecuted and prosecuted far, far beyond what is reasonable.

Posted by: joey | Aug 5, 2009 12:26:25 AM

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