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October 6, 2016

Noting the tide starting to turn in litigation challenging sex offender residency restrictions

The Marshall Project has this notable new article on a notable new development concerning sex offender residency restrictions.  The article is headlined "Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic."  Here is how it gets started:

Mary Sue Molnar estimates that she gets at least five calls a week from Texans on the sex offender registry who can’t find a place to live. Numerous towns around the state have passed ordinances prohibiting those on the list from residing within a certain distance — anywhere from 500 to 3,500 feet — of a school, park, daycare facility or playground. In some towns, that’s almost everywhere.  “We’ve got people living in extended-stay motels,” says Molnar, who runs the sex-offender-rights group Texas Voices for Reason and Justice. “We’re in a crisis mode.”

Molnar and her allies have considered lobbying the Legislature to ban these ordinances, but they’ve found lawmakers unreceptive in the past to any bill perceived to benefit sex offenders. So she decided to go to court.  Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe.  She enlisted Denton lawyer Richard Gladden.  He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field.

Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own.  Gladden sent letters threatening lawsuits to 46 city councils.  Within two months, half of them had repealed their ordinances.  Gladden and Molnar are currently suing 11 of the remaining towns.  Restrictions on where registered sex offenders can work, live, and visit vary widely from state to state and city to city.

Over the last few years, Molnar and her counterparts in other states have come to the same conclusion: Politicians aren’t going to help them. “Who wants to risk being called a pedophile-lover?” says Robin van der Wall, a North Carolina registrant on the board of the national group Reform Sex Offender Laws.  So the activists have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.

Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

Their legal strategies are proving effective. This past August, the 6th U.S. Circuit Court of Appeals invalidated a Michigan law that retroactively applied various restrictions to people convicted before the laws were passed. Judge Alice Batchelder wrote that the law “has much in common with banishment and public shaming.” Since 2014, state and federal judges have struck down laws restricting where sex offenders can live in California, New York and Massachusetts.  In addition to the Texas lawsuits, there are ongoing legal battles over registries and restrictions associated with them in Illinois, Wisconsin, Louisiana, Alabama, Colorado, Nevada and, Idaho, among other states.

October 6, 2016 at 10:09 AM | Permalink

Comments

I have recently worked on an interesting administrative appeal of a sex offender registration matter in Kentucky. The registrant pled guilty to non-violent (consensual) statutory rape in Maryland 12+ years ago. He was sentenced to serve 18 months and had the balance of his 10 year sentence probated. The Maryland plea agreement and judgment also specified that he would have to register as a sex offender for 10 years following his release from jail. The defendant moved to Kentucky after being released from jail, and complied with Kentucky and Maryland law by registering as a sex offender in Kentucky, which has advised him that he will be required to remain registered for LIFE! Kentucky law appears to provide for registration for either 20 years or life. In this defendant's case, the attorney has argued that Kentucky is failing to give Full Faith and Credit to the Maryland criminal judgment, which requires only 10 years of registration, which has already expired, so the defendant should no longer have to be or remain registered as a sex offender in Kentucky. There is a 1935 U.S. Supreme Court case that provides support for the proposition that Kentucky must abide by the 10-year registration requirement set froth in the Maryland plea agreement and criminal judgment.

Posted by: Jim Gormley | Oct 6, 2016 10:39:34 AM

Life would be so much easier for all of us if we just get rid of the punitive, shameful registry. It serves no purpose, and even those involved in the legal system can't seem to figure out amongst themselves what the legalities are, 1000ft, 2500 ft, 3000 ft.
It's ridiculous. Time to change.

Posted by: kat | Oct 6, 2016 11:47:48 AM

Residential restrictions on ex-sex offenders can also put landlords at risk. If a landlord evicts a former sex offender due to residential restrictions, that evictee might retaliate by ransacking the rental property, stealing plumbing, wiring, and other valuable items belonging to the owner. One can sell these things on the black market for a hefty price. In a fit of rage, the former sex offender facing eviction might feel that he or she has nothing to lose by retaliating against any landlord who enforces this law, even if the landlord does not want to do so.

It could also put police and other law enforcement personnel at risk if a former sex offender chooses to seek revenge against Megan's Law and other sex offender legislation by targeting police, prosecutors, judges, probation/parole officers, and politicians with violence. I pray this never happens except that it has happened in isolated cases. If GROUPS of former sex offenders in places like Miami, Florida, whose residency restrictions requires them to live under a freeway, should ever band together to form radical self-defense groups like the Black Panthers, etc., we could see pitch battles between former sex offenders and police in Miami just as we have race riots between police and minorities.

Posted by: william r. delzell | Oct 7, 2016 10:00:52 AM

william r. delzell | Oct 7, 2016 10:00:52 AM: You are right of course. But if a landlord has to evict someone due to a law, the person who is evicted should recognize that the landlord is not the person at whom the retaliation should be directed. A person who retaliates has an obligation to get it right.

But I've seen plenty of instances where landlords did not check about a person's nanny big government Registration status before signing a lease and then later, when it was discovered, attempted to evict the person. Those landlords definitely should be retaliated against, by any means that is legal, as often as possible, for the rest of their lives. But along the lines that you mentioned, I am very confident that some people would choose to return to the landlord years and years later and have someone burn his/her house down. Some people are just not going to worry about illegal activities.

I can't really see that groups of Registered people will ever band together for illegal activity. I think it is much, much more likely that they will just act as "lone wolfs" and repeatedly strike from the shadows. That has happened of course and I'm confident it is happening today.

Posted by: FRegistryTerrorists | Oct 8, 2016 1:15:02 PM

Actually, I agree with your statement that not all landlords or landladies choose to enforce these restrictions, but do so since the law forces them to. You are right to say that former offenders should not condemn them. In fact, I though I went out of my way to distinguish between those landlords/landladies who do not willingly evict a former offender who has gone straight just because of a stupid and unjust law from those landlords/landladies who DO gleefully enforce such eviction laws. Furthermore, I never ADCOCATED that former resort to violent means in fighting these laws; I merely warned that some former offenders, either as lone wolves or as a group (most likely the former as you suggest, might eventually get a notion to retaliate against these laws by whatever means are at their disposal.

Posted by: william r. delzell | Oct 10, 2016 9:17:17 AM

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