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September 20, 2008

Deep reflections on sex offender residency restrictions

Now available via this link at SSRN is a new piece by Shelley Ross Saxer, titled "Banishment of Sex Offenders: Individual Liberties, National Rights and the Dormant Commerce Clause, Environmental Justice, and Alternatives." Here is the abstract:

Sex offender residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities because we fear that they may reoffend in our neighborhoods. The practical effect of banishment through residency restrictions must be understood in the context that there are few places in modern day America to which a sex offender may be banished that is isolated from the rest of society.  Rather than being excluded and thrust into some undeveloped wilderness, sex offenders are banished through residency restrictions to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders.  Federalism concerns arise when states or municipalities attempt to exclude hazardous waste disposal from within the state, and judicial and legislative efforts to banish sex offenders to other states may also run afoul of Dormant Commerce Clause principles, which operate to discourage states from such protectionist activities.

Disproportionate siting of sex offenders into poor neighborhoods of color is also problematic and this overconcentration of offenders may result in lowered property values, segregation, and homelessness.  The federal government addressed a similar issue when studies in the late 1980's reported that hazardous waste sites were being placed near poor and primarily minority neighborhoods.  In addition to the public policy approaches taken to resolve environmental justice concerns, the Fair Housing Act has been considered an important litigation tool to address this indirect racism.  This Article examines what methods from the environmental justice movement might be available to deal with this "social justice" issue of sex offenders disproportionately burdening the unwary in poor minority communities.

Banishing sex offenders through residential restrictions, both legislative and private, impacts individual liberty, our national structure, and social policy considerations. Although most sex offenses are committed by relatives or acquaintances of the victims, rather than by strangers, our public policy approach has been to focus on the stranger sex offender. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of the sex offenders and the rights of our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences.  Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that state and local legislators should seriously reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism.  Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.

September 20, 2008 at 08:08 PM | Permalink

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Comments

I've made assertions before that sex offender colonies for all registered sex offenders are the ONLY solution that will satisfy everyone. Segregation of registered sex offenders without the high price tag of incarceration is the only decent solution we have to the registry.

Here is the original post I made over a year ago.

http://sentencing.typepad.com/sentencing_law_and_policy/2007/06/advocacy_agains.html

Posted by: Peter Del Valle | Sep 22, 2008 2:11:06 AM

Reading that thread I am amazed that Peter would actually want to draw attention to it. I suppose my sentencing reform came off much the same.

Posted by: Soronel Haetir | Sep 22, 2008 11:54:25 AM

Mr. Del Valle: "Unfortunately, these sex offenders have rights."

Someone posted the solution in the comments at this article: Upholding our rights: Even sex offenders are entitled to protections of Constitution.

Here it is:

Bob wrote on September 17, 2008 09:47 AM:

Jodi, what you need to do is amend the Constitution. To help you get that petition rolling, here is the language:

We the people find the government has the right to determine who shall be banished, who shall have the right to work, who shall have the right to love and procreate and who shall be ostracized instead. The government shall determine who has the right to life, liberty and the pursuit of happiness. No court shall deny the government these rights.

There it is. All you need to do is get three-fourths of states to ratify it.

What you miss in your analysis, Mr. Del Valle, is the premise. Your fear and everyone's fear is based on a false premise though parents really do have legitimate concerns. They always have.

As you try to get three-fourths of the states to ratify it, the real statistics will come out and people will ask if there are more rational solutions that aren't founded on fear incited by false statistics. The legal reaction should be no greater than the actual danger and that reaction should strive to actually solve the problem rather than put a band-aid on it.

Posted by: | Sep 22, 2008 12:14:21 PM

I am a marriage and family therapist. How can I help defend and promote the rights of the client's that I have had that have offended and done everything I can tell to get past their offense and move on? I have found that once they offend, they are kept from reentering society regardless of their behavior.

Posted by: haly freston | Jul 21, 2010 7:39:00 PM

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