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May 14, 2008

Exactly when and how will SCOTUS confront sex offender residency restrictions?

It is clear based on lots of lower court litigation that the constitutionality of sex offender residency restrictions will come before the US Supreme Court sooner or later. It is thus interesting to speculate exactly when and how these issues will get to the High Court.

New posts at other blogs reporting on recent constitutional rulings from state courts in Indiana and Ohio highlight the possibility that these issues will get to the Justices through the state court system.  However, some recent notable federal district rulings about various sex offender issues suggest federal sex offender cases could get to the Court first, especially if we start seeing some major circuit action on these matters. 

Notably, the constitutional issues presented in different cases often vary: frequently ex post facto punishment claims are pressed by former offenders subject to new residency restrictions, but various due process and takings claims have also found some traction in some settings.  And, though not always central to the legal issues, the background and specific crimes of a sex offender complaining about residency restrictions can always have an impact on judicial and public reactions to various types of constitutional claims.

Does anyone know of any especially potent residency restrictions cases in the pipeline that might be presented to the Supreem Court in the near future?

Some related posts on litigation over sex offender residency restrictions:

May 14, 2008 at 01:07 PM | Permalink

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» Residency Restrictions and the USSC from Sex Crimes
Berman posts:It is clear based on lots of lower court litigation that the constitutionality of sex offender residency restrictions will come before the US Supreme Court sooner or later. It is thus interesting to speculate exactly when and how these [Read More]

Tracked on May 15, 2008 11:25:21 PM

Comments

Standley v. Town of Woodfin, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/061449-1.htm, is a North Carolina case that involves a local ordinance banning sex offenders from public parks. Although the case does not involve residency restrictions, the plaintiff is compelling: "Plaintiff suffered a stroke in 1998, as a result of which he never travels without his mother. Plaintiff frequented the Woodfin Riverside Park, always with his mother and sometimes with other family members as well. Plaintiff challenged an ordinance, enacted on 19 April 2005, that prohibits registered sex offenders from knowingly entering any public park owned and operated by defendant-appellee Woodfin (the ordinance)." The North Carolina court of appeals upheld the ordinance, though a dissent in that court allows review by the state supreme court.

Posted by: j.m. | May 14, 2008 1:47:17 PM

Even if SCOTUS doesn't strike down residency restrictions as a whole. I hope they address what stats and local governments can and can not put no fly zones around. If you look at the scope some of these ordinances you can tell which ones are thought out as merely 'improving' on the state regulations and those that entertain the idea of putting enough circles around enough places you can effectively ban sex offenders from entire towns

Posted by: Mark | May 14, 2008 5:29:36 PM

Residency restrictions make sense when they are based on risk. True, sex offenders have a greater probability of committing another sex offense, then say, robbers have a greater probability of committing another robbery. And of course risk changes over time, a fact that categorical residency restrictions do not accommodate. But how much risk is intolerable, and at what time? That is the form in which this question should be presented.

Posted by: Tom McGee | May 14, 2008 7:13:44 PM

"True, sex offenders have a greater probability of committing another sex offense, then say, robbers have a greater probability of committing another robbery."

Nope. It's the other way around, and even most of those who push for those laws have acknowledged that fact and shifted their argument to, "But another sex offense does greater damage than another robbery."

Even so, the question certainly should not center upon whether any given offender--or all offenders--are of any risk of re-offending at all. The correct question is whether controlling residency and proximity has any impact upon recidivism. The second question is whether residency restrictions impact the overall instance of child sexual abuse, and the third question is whether residency restrictions impact reporting of ongoing abuse. Thus far, research has answered the first question with "Not a whit," the second question with "Too early to tell," and the third with "Yes, and not in a good way."

...which is all a divergence from what Prof. Berman asked, and will have no bearing upon court decisions.

Posted by: Ilah | May 14, 2008 8:56:46 PM

“Nope. It’s the other way around, and even most of those who push for those laws have acknowledged that fact…”

Sorry you miss my point. Categorical residency restrictions are the problem. I think of residency restrictions as being something like probation and parole conditions. There must be a reasonable relationship between the problem, which is risk, and the restraints needed to protect the public. Residency restrictions placed on all sex offenders categorically, do not meet this standard. Risk is attached to offenders, not offenses.

Posted by: Tom McGee | May 14, 2008 10:48:11 PM

"There must be a reasonable relationship between the problem, which is risk, and the restraints needed to protect the public."

On that we agree. So why is it desireable to link residency restrictions to offender risk before linking residency restrictions to reduction of that risk? At least five state studies I'm aware of have found no connection. And if there isn't a connection between residency restriction and risk reduction, I'm rather against skipping that conclusion in favor of debating offender risk levels.

Really, the best a residency restriction can do--if it functions as well as intended--is change the location and identity of a the victim targeted by a determined sex offender.

There may be isolated cases of sex offenders who will be deterred from re-offending if forced to live away from most housing, transportation, and employment. Or maybe simply not living across the street from the playground would be distance enough. Very well. However, states have determined individual risk assessments are a waste of time. Both SCOTUS and the Adam Walsh Act encourage that determination.

Posted by: Ilah | May 15, 2008 4:03:42 AM

“So why is it desirable to link residency restrictions to offender risk before linking residency reductions to reduction of that risk?”

With all due respect, I don’t know what you are talking about.

“However, states have determined individual risk assessments are a waste of time.”

Come on. If that were the case then there would be no basis for separating more dangerous offenders from less dangerous offenders. Sentencing would have nothing to do with public protection.

There are many different ways to reduce risk, depending upon the circumstances. The point is that there must be a reasonable relationship between the problem we are concerned about here, which is an offender’s risk of recidivism, and the actions taken to control that risk. If a residency restriction or any other kind of restriction will control an unacceptably high risk, that restriction is reasonable under those circumstances. If not, then it would be unreasonable. Risk determinations have to be individualized. That’s the problem. Categorical residence restrictions to control risk, whether they are restrictions like imprisonment or residence restrictions in the community are unreasonable, because they are not individualized. As I pointed out before, risk is attached to offenders, not offenses.

Posted by: Tom McGee | May 15, 2008 1:17:57 PM

"With all due respect, I don’t know what you are talking about."

Then perhaps I misunderstood. My understanding is that you believe residency restrictions are a valid means of post-release control as long as they are linked to the offender's assessed risk of reoffense.

Based on that understanding, I responded that residency restrictions ought to first be linked to a reduction in recidivism. At this time, residency restrictions have been shown to have zero impact on whether an offender re-offends--regardless of the offender's risk. In fact, a Minnesota DOC survey of released high-risk offenders found the majority of those who did re-offend chose to travel more than a mile from their residence.

I understand your point to attach risk to offenders rather than offenses. I happen to agree wholeheartedly. But since residency restrictions don't reduce recidivism, why bother applying them at all?

"If that were the case then there would be no basis for separating more dangerous offenders from less dangerous offenders. Sentencing would have nothing to do with public protection."

Registration and attached regulations are not a sentencing matter. They are mere civil schemes. As such, as SCOTUS ruled, there is no need to assess risk as long as community notification doesn't claim to be an indication of individual dangerousnes. That's why community notification can be applied retroactively sans assessments. To comply with the Adam Walsh Act, some states that chose to do risk assessments anyway are abandoning their system in favor of the mandated tier system--which is all about offenses rather than offenders.

Posted by: Ilah | May 15, 2008 10:00:24 PM

Read this well prepared letter to be submitted to the ACLU from a friend:

http://sexoffenderissues.blogspot.com/2008/05/letter-to-aclu.html

Posted by: ZMan | May 16, 2008 12:46:21 AM

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