Sentencing Law and Policy

Examining the efficacy of sex offender residency restriction

A helpful reader pointed me to this new research article, titled "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism," appearing in the April 2008 issue of Criminal Justice and Behavior.  Here is the abstract:

In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers.  Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006.  Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.

A telling headline for modern sentencing times

This local story from California, carrying the headline "Sex offender faces up to millenium in prison," tellingly reveals so much about modern American attitudes toward incarceration. Here are snippets:

A convicted sex offender could be sentenced to more than a millenium in prison for molesting two girls, a prosecutor said Thursday. Horace Mann Williams, 44, is facing a penalty of up to 1,330 years in prison when he is sentenced Friday at the Murrieta Courthouse, said Deputy District Attorney Burke Strunsky.

Williams previously spent six years in prison for sexual molestation in the early 1990s.... Outside court, jurors said they convicted Williams because he showed a pattern of behavior typical for child molesters. “After a first offense and after a parole violation, he couldn't stay away from girls,” one juror said.

According to a probation officer's sentencing memorandum filed with the court, Williams is not eligible for parole and should receive consecutive time for each count and enhanced sentences for having prior strike offenses, having multiple victims and committing multiple offenses against multiple victims.

I think it is worth speculating whether Williams, if he had been threatened with the death penalty for repeat child rape, might have been more deterred after his release for his first offense.  Obviously, the prospect of being subject to imprisonment for over a millenium did not keep Williams from molesting kids again.  Though I doubt the distant threat of the a distant execution would have deterred Williams, I also see the good arguments for states to continue to consider experimenting with alternatives to incarceration for repeat sex offenders.  Perhaps if states get serious about new approach to preventing repeat sex offending, somebody might figure out a better way to deal with these crimes before the year 3308 when Williams could be scheduled for release.

Another sad story in the sex offender panic universe

This local story, headlined "Plan for sex offender center scuttled by death threat," spotlights the challenges of even providing treatment for low-level sex offenders:

A woman who planned to open a treatment center for sex offenders said she's decided not to open shop after receiving a death threat.  Holly Chandler has been under fire since residents around 1401 Highland discovered she was remodeling a former mechanics shop at that address into a counseling center for sex offenders....

"I got an anonymous threat on my cell phone from a man who said if I stepped in that building, the building would burn with me in it," Chandler said. "I don't need to get hit in the head with a brick to realize the danger." The building has been a target for vandals. Chandler said it's been shot at, windows have been broken and obscenities have been spray painted on its exterior.

Chandler said her clients are afraid to attend classes there. "I never meant to cause a panic, but that's what this whole thing has turned into," Chandler said. "My mission has always been to treat sex offenders as a means of keeping a community safe," she said....

Chandler said the treatment sessions are for fewer that a dozen low-level sex offenders and last for one hour, once a week.  She said she's been having the classes for about 10 years at various locations in Shawnee with no complaints.  She has classes in 23 counties.

Long Ninth Circuit opinion on variety of child porn sentencing issues

Through a long opinion that is not easily summarized, the Ninth Circuit speaks to a range of child porn federal sentencing issues today in in US v. Stoterau , No. 07-50124 (9th Cir. Apr. 30, 2008) (available here).  Here is how the opinion starts:

Joseph Stoterau pleaded guilty to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1).  In this appeal, he challenges several aspects of his sentence, including the length of his term of imprisonment and several special conditions of his supervised release.  We affirm in part, vacate in part, and remand.

A quick skim while on the road makes it hard to tell whether the Ninth Circuit breaks any new ground here.  I trust all the able lawyers on the coast will help me figure out if Stoterau is worthy of a close read.

Panty raid involving a sex offender

This local story provides a little (perverted?) levity at the end of a long work week:

Petaluma police officers seeking an explanation for why women's panties were discovered during a routine search of a male sex offender's home learned the underwear had been acquired from a surprising source.  Larry Allen Riebli, 45, is believed to have taken the garments from homes for sale during open houses, police said.

Riebli, who is on probation for a conviction for annoying or molesting a child, admitted taking the underwear during a search Tuesday of his Baywood Drive home, police said.  The panties were part of a cache of 25 to 30 pairs, about 20 of them purchased from stores, a handful bought from prostitutes and the remainder allegedly taken from houses up for sale, Deputy Sonoma County District Attorney James Patrick Casey said.

District Judge finds AWA registration provision unconstitutional

Thanks to this piece from the Orlando Sentinel, I see that US District Judge Gregory Presnell late last week reach a notable constitutional conclusion about the Adam Walsh Act's sex offender registration provisions.  From the news report:

An Orlando federal judge has ordered the release of two jailed, out-of-state sex offenders who moved to Florida, ruling that part of the Adam Walsh Act requiring their registration is unconstitutional. U.S. District Judge Gregory Presnell on Friday ruled that the 2006 federal law requiring state sex offenders to register with law-enforcement officials when they move across state lines was largely a local issue.

The ruling, made in two unrelated sex-offender cases pending in Orlando, led to the dismissal of charges against Robert D. Powers, 43, and Tommy William Buckius, 60, both of Orlando....

The ruling in US v. Powers, No. 6:07-cr-221-Orl-31(M.D. Fla. April 18, 2008), is available at this link.  Here is Judge Presnell's concluding paragraph:

As the Government notes, the Adam Walsh Act was enacted with a commendable goal — to protect the public from sex offenders. However, a worthy cause is not enough to transform a state concern (sex offender registration) into a federal crime. If an individual’s mere unrelated travel in interstate commerce is sufficient to establish a Commerce Clause nexus with purely local conduct, then virtually all criminal activity would be subject to the power of the federal government.  Surely our founding fathers did not contemplate such a broad view of federalism.  Accordingly, the Court finds that the adoption of the statute under which Defendant is charged violates Congress’ power under the Commerce Clause and is, therefore, unconstitutional.

The government will surely appeal this ruling, and I know some other district courts have already upheld the constitutionality of these provisions of the AWA.  It will only be a matter of time before we get some circuit law (and perhaps some circuit splits) on the reach and application of the AWA.  Stay tuned.

A strong review of sex offender litigation in the states

Stateline.org has this effective new piece headlined "Lawsuits test crackdown on sex criminals."  The piece essentially previews the broad array of sex offender laws and issues that could be clogging up the dockets of lower courts (and perhaps also the Supreme Court) for years to come.  Here is an excerpt:

From California to North Carolina, a flood of litigation has accompanied an expansion in the scope and severity of penalties imposed by local, state and federal lawmakers on those who commit sex crimes.

Penalties for molesters and other sex criminals have toughened considerably in recent years and now include execution in at least five states, chemical castration in eight states and the use of technology to monitor offenders’ every move in more than half the states.

In some instances, punitive measures are limited only by lawmakers’ imaginations. In Louisiana, for example, a proposal being debated this legislative session would forbid offenders from wearing masks on Halloween or Mardi Gras.  In New Jersey, a new state law prevents molesters and others from surfing the Internet unless it is for work-related purposes; Florida and Nevada have similar laws.

The recent legal challenges take aim at laws that sex criminals say violate constitutional guarantees, including privacy, due process and protection from cruel and unusual punishment.  Supporters of the laws say they are necessary to protect children from predators who are capable of committing brutal crimes.

Feds giving money to states to track sex offenders

According to all the local stories linked below, this week a number of states got grants from the federal government to assist with sex offender tracking:

• From the Montgomery (Alabama) Advertiser, State receives approval of grant to track sex offenders

• From KCRG (Iowa), Grant to Improve Collection of Sex Offender Info

• From the Grand Forks (North Dakota) Herald, ND receives grant to track sex offenders

I wonder if anyone will be tracking whether this government money being devoted to tracking sex offenders will prove to be a good use of our tax dollars.

Will the FLDS case impact perceptions of child rape and sex offenders?

Over at Grits for Breakfast, Scott has been doing effective coverage of the FLDS case, including this interesting post asserting that "more law blawggers need to weigh in on West Texas polygamy case."  Though I won't fault other law bloggers for their posting agendas, I will do my part by noting one of the reasons I have been fascinated by the scenes and interviews now coming out of the YFZ Ranch which have become the focal point of a lot of the MSM coverage the last few days. 

Of particular interest is hearing some pundits talk about the case in terms of "child rape," while seeing videos of many mothers expressing heartfelt (and scripted?) concerns about the well-being of their children.  Beyond the fact that the men from the YFZ Ranch are not seen, I wonder if viewers are struggling with the notion that these mothers may be directly complicit (and legally accountable) for what would be the crime of child rape in most jurisdictions.

Needless to say, I doubt most members of the public or politicians think of the FLDS mothers when they think about child rapists and sex offenders.  But, as this case continues forward and evidence emerges concerning adults repeatedly having sex with underage girls, the national image of child rape and sex offender may be altered.

Louisiana getting even crazier about sex offender sanctions

As detailed in this AP article, the folks in the bayou region cannot get enough of getting tough with sex offenders:

Masking at Halloween or Mardi Gras could become a forbidden tradition in Louisiana for people convicted of sex offenses under one bill approved Monday by a state Senate committee, and castration could become a sentencing option in some sex cases under another measure approved by the panel.

Sen. Nick Gautreaux, D-Meaux, sponsored the bills, both of which go next to the full Senate for debate later in the legislative session. Also Monday, the Senate was set to discuss a separate package of bills, backed by Gov. Bobby Jindal, that would raise the minimum jail sentence for molestation of a juvenile from one to five years and require such convicts to register with the state as sex offenders for life, instead of the current 15 years.

Gautreaux's castration bill, involving both physical and chemical castration, applies to a range of offenses including aggravated rape, simple rape, incest and indecent behavior with a juvenile.  A judge would have the option of sentencing a first-offender to treatment with the drug medroxyprogesterone acetate, with the aim of diminishing his sexual impulses.

On a second offense the treatment would be mandatory, though in each case a medical expert would have to determine for the court that the treatment would be effective. Once ordered to undergo the treatment, the offender would have the option of physical castration — which Gautreaux said some offenders might prefer to avoid any drug side effects or in hopes of permanently curbing impulses that led to his offense.

Nobody spoke against the bill in committee Monday but committee members raised questions, including whether drug treatment would be mandatory under the bill for female sex offenders. Gautreaux said he would research the issue and deal with it when the bill comes up for floor debate.  After the hearing, a lobbyist said the bill will be opposed. "It is state-sanctioned mutilation and that is cruel and unusual punishment," George Steimel, lobbyist for the Louisiana Association of Criminal Defense Lawyers, said Monday afternoon. 

Georgia legislature passes revised sex offender residency restrictions

As detailed in posts here and here, last year the Georgia Supreme Court struck down part of the state's sex offender residency restriction on a takings theory.  Now, as detailed in local stories here and here, the state legislature has tried to fix the law.  However, as this excerpt spotlights, this legislative fix may not end the constitutional litigation over these matters:

The Georgia General Assembly has passed legislation reinstating residency and work restrictions on registered sex offenders.  The restrictions were voted on Friday without going through the typical Senate committee process, and without hearings on the Senate side....

Senate President Pro Tempore Eric Johnson ... stated that the bill addressed the Georgia Supreme Court's concerns about property rights.  However, the bill only exempts sex offenders who own their own homes.  In that case, the sex offenders can remain in their homes if a day-care center, church, park, or other forbidden area locates within 1,000 feet of the home.

Tenancy is a property right, by law, said Sen. Vincent Fort, D-Atlanta.  He is concerned that the bill does not provide protection for renters. "There could be further legal challenges," Johnson said....  "We can continue to address some things in the future," Johnson said.  But, "if we do not adopt this bill today, there are no restrictions on where they can live and work.  It is critical that we now adopt 908, which is now in SB 1."...

"On its face, it's unconstitutional," said Sen. Nan Orrock (Email), D-Atlanta. "There is different treatment of homeowners and those who rent.  We're already in murky constitutional ground."  Then, there are the unintended consequences, she said. "With sexual offenders who have served their time and who are back in the community, our highest priority is that they not re-offend and prey on another victim," Orrock said.  But putting in the residency restrictions "set in motion this moving around of former sex offenders."  Studies show, clearly, she said, that sex offenders who have to move from a stable home or job are more likely to re-offend....

The restrictions are exactly the same as the ones implemented in 2006. In almost every case, all registered sex offenders are treated equally, regardless of whether they were convicted of child rape or public urination.  No sex offender may live within 1,000 feet of a child care facility, church, school, or "area where minors congregate."  Those areas are defined as: parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries and public and community swimming pools. Adding libraries is the only change to that definition.

Some related posts on sex offender residency restrictions:

• Georgia Supreme Court strikes down sex offender residency restrictions (on a takings theory)!
• California Supreme Court to review sex offender residency restriction
• Missouri high court limits application of sex offender residency restriction
• Ohio Supreme Court narrows state's sex offender residency restriction
• Sex offender laws as a "hot topic" for states in 2008
• Is GPS tracking a better way?
• The potential downsides of sex offender residency restrictions
• More criticism of sex offender residency restrictions
• A poster child for the problem of residency restrictions
• Major Human Rights Watch report about sex offender sanctions
• What's to come in sex offender residency restriction litigation?
• Does the efficacy of sex offenders residency restrictions impact their constitutionality?

Sex offender wants judge to allow him to watch baseball

This AP story out of Indianapolis provides a fitting way to celebrate the first full week of regular season MLB games:

A convicted sex offender banned by a city ordinance from entering parks has asked a judge for permission to watch his son play baseball at a Little League complex.

Eric Dowdell, 34, said he will seek an exemption from the ban based on his completion of counseling, probation and other requirements set by the ordinance for an exemption.  A hearing on the request has been scheduled for April 11 in Jeffersonville City Court.

Dowdell said kids need to be protected from offenders. But he said there should be a distinction between someone like him, who made a mistake years ago and has been a good parent, and someone who might harm children.  Dowdell was convicted of sexual battery in 1996, according to the Indiana Sheriff's Registry of Sex Offenders, and was no longer required to register as an offender after 2006.

Dowdell lives in Clarksville and his 11-year-old son plays in the Little League there, but the games will be played in the Jeffersonville complex this year because the Clarksville site is undergoing a renovation....

Larry Wilder, the lawyer who drafted the Jeffersonville ordinance, has said repeatedly that he believes the ban is constitutional. Wilder says "going into a park in Jeffersonville is not a fundamental right."

Geez, it is just like a sex offender to ask some activist judge to let him get some kinky fun watching little boys run around in a local park.  Next thing you know, these sex offenders will start asking judges to let them eat apple pie and drive a Chevy.  Why can't a local government just force those they do not like to live in the shadows forever?!?I?  Of course, if all judges would just act like umpires the way the Chief Justice of the United States urges, we would not have all these crazy activist-judge problems (unless sex offenders started signing up themselves to be umpires or judges).

Judge Weinstein makes notable headlines with notable jury-based ruling

Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Here are the headlines:

• From the New York Post here, "Judge's Bizarre Ruling Aids Perv"
• From the New York Daily News here, "Father convicted of downloading child porn not given jail time"

Here is the start of the Post article:

In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases.  Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.  It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

"The judge has gone out on a limb here," said a law-enforcement source. "There's clear case law that says the jury should not be informed about mandatory minimums."

Is that a sex offender GPS device on your pants or are you just glad to see me?

Pardon the randy post title, but I could not resist a bit of levity when reporting an interesting aspect of today's Sixth Circuit denial of en banc rehearing in Doe v. Bredesen.  As detailed here, a Sixth Circuit panel last November split in Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (available here) when rejecting a challenge to the application of Tennessee's new GPS sex-offender tracking rules.  Judge Keith dissented from that panel ruling and today he has five other Sixth Circuit judges joining his dissent from the denial of en banc review.  Here are snippets from the dissent (with cites omitted):

This case presents a rare “question of exceptional importance” for which en banc review is appropriate....  The Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (the “Surveillance Act”), imposes retroactively a requirement that all convicted sex offenders not only register with the Tennessee sexual offender registry, but also wear a relatively large device (a global positioning system, “G.P.S.”) at all times....

[G]iven the large size of the G.P.S. device, the Surveillance Act violates Appellant Doe’s constitutional rights under the Ex Post Facto Clause.  The box measures 6 inches by 3.25 inches by 1.75 inches. Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir. 2007).  The box must be worn outside any coat or outer garment, making it plainly visible to onlookers. Id. at 1002. In essence, this box is a modern day “scarlet letter,” branding sex offenders with a marker of their crime for all to see.

I believe that the retroactive application of the Surveillance Act constitutes an Ex Post Facto Clause violation because (1) as a catalyst for public ridicule, it is a form of shaming, humiliation, and banishment, which are well-recognized historical forms of punishment; (2) it promotes the traditional aims of punishment; and (3) it is excessive in forcing Doe to broadcast his sex offender status not only to those who choose to inquire, but also to the general public....

Whether or not other members of this court agree with my dissent, this issue is important enough to merit review by the full court.  We must be careful, in our rush to condemn one of the most despicable crimes in our society, not to undermine the freedom and constitutional rights that make our nation great. I dissent.

Some related posts on sex offender GPS tracking:

• Split Sixth Circuit panel addresses challenges to Tennessee sex offender GPS rules
• Lifetime GPS tracking after consensual teenage sex
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• The practical challenges of sex offender tracking
• New article examining incapacitation innovations
• Major Human Rights Watch report about sex offender sanctions

A poster child for the problem of residency restrictions

Thanks to this post at the blog Iowa Champion, I saw this MSNBC article about a woman suffereing as the result of broad sex offenders residency restrictions.  Here are some details:

Jennifer Lower was convicted of a misdemeanor sex offense in Ohio seven years ago. After moving to Iowa, and then moving her family to a town with no schools or day cares -- which she can't live near under Iowa law -- she's learned that she is still in violation of the law.

From the Cass County Jail, Lower, 29, said she's frustrated.  Lower is a married mother of three.  She already moved her family to try to comply with Iowa's sex-offender residency law that bans sex offenders from living within 2,000 feet of a school or day care.  She said she can't find a home that complies.  "It's not fair. My rights are basically gone, it seems like," Lower said.

Forced out of Atlantic, Lower and her family moved 5 miles west to Marne, Iowa. There are no schools or day cares in Marne, so Lower said she thought she and her family were safe.  Then Marne passed a new ordinance, making it illegal for sex offenders to live within 2,000 feet of a park or school bus stop. Lowers' home was a couple blocks from the park and less than a block from a bus stop, so once again, a court ordered Lower to move.

She refused and a judge put her back in jail.  "My landlord don't even think I'm a threat," Lower said.  This time, she's lost her children, who are now in foster care.  "The only thing I need to get my kids back is have a stable home," Lower said.

Cass County Attorney Daniel Feistner said Lower's sex crime was a misdemeanor and she may not be much of a threat to the community, but he said he has to enforce the law consistently.  "Unfortunately, as a prosecutor, I don't have the luxury of looking at her individually and say I can apply the law to her or not to her and to someone else," Feistner said.

Especially if Lower's 2001 Ohio misdemeanor sex offense was really minor, her story could readily get new people sympathetic to the plight of relatively minor sex offenders being subject to relatively broad residency restrictions.

Some related posts:

• Does the efficacy of sex offenders residency restrictions impact their constitutionality?
• Sex offender laws as a "hot topic" for states in 2008
• A sober (and caffeinated) look at GPS tracking realities
• Is GPS tracking a better way?
• The potential downsides of sex offender residency restrictions
• More criticism of sex offender residency restrictions
• Major Human Rights Watch report about sex offender sanctions

More evidence localities love to hate sex offenders

This local story from California, headlined "Cities modify Jessica's Law even as court mulls validity," highlights that localities get a kick out of kicking sex offenders when they are down.  Here are excerpts from the article:

As the state Supreme Court considers the validity of California's sex-offender statute, known as Jessica's Law, San Diego and other cities are passing tougher versions of it. Jessica's Law says registered sex offenders can't live within 2,000 feet of a school or park where children gather. This month, the San Diego City Council and Mayor Jerry Sanders approved an ordinance that adopts the residency restriction and adds another limitation.

Under the city ordinance, registered sex offenders can't be within 300 feet of an amusement center, arcade, day care facility, library, playground, park or school. The residency restriction applies to sex offenders convicted of crimes after the ordinance was signed, but the 300-foot rule covers all registered sex offenders.  Similar measures have been approved in National City, La Mesa and Santee....

Versions of Jessica's Law — named after a young Florida girl who was raped and murdered by a convicted sex offender in 2005 — have been approved in 42 states.  Since enforcement in California began, 607 sex offenders have declared themselves homeless — a fourfold increase, according to the state.

In San Diego, the number of registered transient sex offenders increased 40 percent, police said. The 1,886 registered sex offenders in the city are among the 3,931 in the county, including violent child molesters, people convicted as juveniles and individuals busted for indecent exposure.

Effective reports on sex offending

As detailed here, the Deseret Morning News (in Utah) has published a four-part series on sex offending. Here is how they describe the series and links to the article:

Deseret Morning News reporters Lucinda Dillon Kinkead and Dennis Romboy spent three months investigating sex offenders in Utah. They spoke with 85 people whose lives have been affected by the pervasive and gut-wrenching issue of sexual abuse. This four-day series explores the widespread, growing problem that is exhausting the criminal justice system and traumatizing families.

• Just how prevalent is sex abuse in Utah?
• A look at adult and juvenile sex offenders. Who are they?
• The varied victims of sexual abuse and how they cope
• Who's watching the sex offenders?

Fostering self-help in tracking sex offenders

The New York Times has this interesting article about sex offender tracking, headlined "Woman With a Mission: Keeping Tabs on Sex Offenders." Here are excerpts:

For the past decade, Ms. [Laura] Ahearn has been painstakingly compiling such information about sex offenders and distributing it — first by hand, then by e-mail — to their neighbors, including updates like a new car or new scar.  Last week, her nonprofit advocacy group, Parents for Megan’s Law and the Crime Victims’ Center, received a $593,000 federal grant to take the project national, using the sharp new mapping program that enables such a computerized tour.

“Probably safer than giving it in person,” said Ms. Ahearn, 44, a tough-talking smoker and workaholic who started the group as a grass-roots crusade with several volunteers and now has 25 part- and full-time employees and a million-dollar annual budget. “Sex offenders may be good at what they do, but all of us are getting better at what we do.”

Senator Charles E. Schumer and Representatives Timothy H. Bishop, Pete King and Carolyn McCarthy all joined Ms. Ahearn in her inconspicuous office in a strip mall here to announce the federal grant.  The group plans to use the money to compile sex offender data from all 50 states into maps on a revamped version of parentsformeganslaw.com, its Web site, scheduled to make its debut on May 1; to create a national e-mail notification program to alert people about offenders in their ZIP code; and to establish a toll-free number that Ms. Ahearn says will be the first national Megan’s Law help line.

Critics call Ms. Ahearn’s zealous pursuit of sex offenders counterproductive and unconstitutional, and contend that overexposure can deter the offenders from checking in with the authorities. “Mapping out sex offenders makes them greater social lepers than they already are,” said Seth Muraskin, executive director of the Suffolk County chapter of the New York Civil Liberties Union. “You’re fostering punishment, not rehabilitation, and you’re leaving them very vulnerable to mob justice.  You’re basically challenging vigilantes to come to their doors.”...

Ms. Ahearn, a mother of two, was studying to become a social worker when New York State enacted Megan’s Law in 1995, and she found that it was difficult, despite the new disclosure requirements, to get the names and addresses of local sex offenders from the authorities. So she began pressuring politicians and the police, all the while compiling her own local registry and posting it online, complete with offenders’ addresses and graphic details about their crimes.

More criticism of sex offender residency restrictions

Providing another interesting perspective on sex offender residency restrictions is this new piece on SSRN from Asmara Johnson, titled "In the Zone: Sex Offenders and the Ten Percent Solutions." Here is the abstract:

This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause.  The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation.  It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.

At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child.  On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.

Some related posts:

• Does the efficacy of sex offenders residency restrictions impact their constitutionality?
• Sex offender laws as a "hot topic" for states in 2008
• A sober (and caffeinated) look at GPS tracking realities
• Is GPS tracking a better way?
• The devil's in the details of GPS tracking of sex offenders
• The potential downsides of sex offender residency restrictions

A new note on sex offender residency restrictions

Thanks to this post at CO, I see a new note on sex offender residency restrictions from the Northwestern University Law Review.  This piece — Sarah E. Agudo, Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws, 102 Nw. U. L. Rev. 307 (2008) (available here) — has these passages in its introduction:

Sex offenders are among the most hated members of our society.... In recent years, laws protecting society from these offenders have grown increasingly broad; the restrictions have become more severe and applicable to more people.  Residency laws, which dictate where sex offenders can live upon release from prison or while on parole, exemplify this trend.  Twenty-two states in the United States currently have some form of residency law that restricts where sex offenders can live. For example, many states prohibit sex offenders from living within 1000–2500 feet of schools, bus stops, or daycare centers....

It is likely that these recent expansions of sex offender legislation and the ensuing litigation over their constitutionality will prompt a Supreme Court decision establishing the limit on states’ control over their released offenders.

Research on the effectiveness of residency laws is scarce.  However, a few studies suggest that residency restrictions have no impact on sex offense recidivism.... Protecting the public from sex offenders is unquestionably important, but states should not sacrifice civil liberties in favor of unproven methods of control. Reasonable and constitutionally acceptable residency laws may well exist.

The aim of this Comment is not to call for the abolition of all residency laws, but rather to promote a cogent dialogue regarding the upper bounds of their effectiveness and constitutionality in order to provide a framework for future legislation. Although, in many areas of law, democratic processes can adequately safeguard those bounds, the public outrage against sex offenders threatens to chill the usual political protections and justifies careful judicial oversight.

Some related posts:

• Does the efficacy of sex offenders residency restrictions impact their constitutionality?
• California Supreme Court to review sex offender residency restriction
• Sex offender laws as a "hot topic" for states in 2008
• A sober (and caffeinated) look at GPS tracking realities
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• The potential downsides of sex offender residency restrictions

An economically astute(?) forfeiture approach to sex offenders

As this article spotlights, legislators in Kentucky are talking about an new way to punish sex offenders:

Two state representatives from Northern Kentucky want the property of sex offenders confiscated so that those who use the Internet to lure their victims lose their computers for starters. The bill, filed last month by Reps. Arnold Simpson, D-Covington, and Thomas Kerr, R-Taylor Mill, would “require the forfeiture of all real and personal property used in or acquired as a result of certain sexual offenses against minors.”

If passed, the measure would allow for the seizure of property used by convicted sex offenders, including their cars, money, computers, money, homes — any personal belongings they may have used during the sex crime against a minor....

Too often, Simpson said, the tendency in Frankfort is to enhance criminal penalties in ways that result in longer sentences. The problem with longer sentences, he said, is that they increase correctional expenses for the state and counties. “I feel the bill would be still another tool to attempt to combat crimes against our children and would have little or no budget impact,” said Simpson.

The proposed sex offender law would work much like those already on the books for taking the property of convicted drug dealers. “If they use an asset in a crime they run the risk of forfeiting their property,” Kerr said. Under the bill, officials would also be able to take the sex offender’s home, or other property, if that is where the sex crime took place.

“HB 210 may be unconstitutional in that the state cannot deprive a person of property without affording a prompt opportunity to reclaim it if it is unlawfully seized,” said Daniel T. Goyette, chief public defender for Louisville Metro Public Defender's Office. “The Constitution requires a remedy for all injuries done to property ‘without sale, denial or delay.’”...

Under the bill, property would be seized by law enforcement, held and then sold. The funds would go to police and prosecutors, minus any liens on the property, such as car loans. “This will help prosecutors by giving them additional funds to prosecute the offenders,” said Kerr. Kenton County Commonwealth’s Attorney Rob Sanders, who, according to Simpson, requested the bill, said that under the bill 15 percent of the money that comes from sex offenders’ confiscated property would be earmarked for prosecutors, who could use the funds for expert witnesses, forensic investigations and the like. Law enforcement agencies investigating such crimes would collect about 85 percent of the money brought in from sex offenders’ seized assets.

“It’s a great benefit to law enforcement and to the protection of children,” said Sanders. Goyette said the bill invites problems. “What people do not seem to understand about this is that if the government can seize a sex offender's property with impunity, there is nothing to prevent seizure of other property,” said Goyette.  “The government does not start exercising such power by seizing the property of citizens who have influence and positions of prominence in the community—they start with people everyone despises anyway.... I question whether this bill is even necessary, except to create a fund for prosecutors without imposing a tax for it,” Goyette said.

This article provides another great example of how prison costs are changing how states are thinking about crime and punishment.  It also spotlights why legislatures, because of the high cost of prisons, are always going to consider seriously ways to punish through deprivations of property rather than through deprivations of liberty.

I wonder if all the folks generally concerned about private property rights and the Supreme Court's Takings jurisprudence will speak out concerning this interesting Kentucky forfeiture proposal.  As regular readers know, I am generally a big fan of alternatives to imprisonment, and it seems that this Kentucky bill imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders.  Consequently, I hope this bill gets some traction and that more jurisdictions start considering property deprivations (as opposed to liberty deprivations) as a way to get tougher on sex offenders (and all sorts of other offenders, too).

Some related posts:

• Sex offender laws as a "hot topic" for states in 2008
• A sober (and caffeinated) look at GPS tracking realities
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• New article examining incapacitation innovations
• Another brave new world innovation for dealing with sex offenders
• Tech folks concerned about NJ law banning sex offenders from internet
• Reacting to sentencing on the front page: It's the economy, stupid?!?!

The potential downsides of sex offender residency restrictions

The Los Angeles Times today has this notable article on sex offender residency restrictions, headlined "Jessica's Law may increase crime risks: State officials say danger of sex offenders may rise as legal provisions lead to more homelessness."  Here are snippets:

The law voters passed to crack down on sex offenders could actually be increasing the danger such offenders pose by driving them into homelessness at a significant rate, members of a state board said Thursday.

In the 15 months since voters approved Jessica's Law, which restricts where paroled offenders may live and requires electronic monitoring of their whereabouts, the state has recorded a 44% increase in those registered as transients, according to a report released by California's Sex Offender Management Board.  The law prohibits ex-offenders from living within 2,000 feet of places where children gather, but it lacks adequate definitions of such places, the report says.  And in some counties and cities, the law's residency restrictions make large swaths of housing off-limits....

There are 67,710 registered sex offenders in California communities, the report says.  The state Department of Corrections and Rehabilitation has identified 4,345 offenders on parole that it says are subject to the law, but members of the state panel said it is unclear who else may be because the law is vague.  The number of transient sex offenders who could be homeless or moving from house to house increased from 2,000 more than a year ago to 2,879 today....

The report pointed out that what enforcement there is generates millions of dollars in costs to the cash-strapped state. California's corrections agency is spending an estimated $20 million a year to monitor more than 3,000 paroled sex offenders by global positioning system satellite technology. That is a fraction of those who would eventually have to be watched.

Some related posts:

• Does the efficacy of sex offenders residency restrictions impact their constitutionality?
• California Supreme Court to review sex offender residency restriction
• Sex offender laws as a "hot topic" for states in 2008
• A sober (and caffeinated) look at GPS tracking realities
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking

Missouri high court limits application of sex offender residency restriction

Thanks to this post at Sex Crimes, I see that the Ohio Supreme Court is not alone in issuing an important ruling limiting the application of a state residency restriction.  As detailed in this AP story, though "a unanimous ruling Tuesday, Missouri's high court upheld a decision in May by a circuit judge striking down a portion of Missouri's sex offender statutes that could have forced the sex offenders to move."  The ruling came in R.L. v. Missouri Department of Corrections, No. SC88644 (Missouri Feb. 19, 2008) (available here), and here is the opinion's summary:

Section 566.147, as applied to R.L. and those similarly situated, violates the bar on retrospective laws set forth in article I, section 13 of the state constitution.  Missouri has prohibited retrospective civil laws -- which create new obligations, impose new duties or attach new disabilities with respect to actions already past -- since it adopted its first constitution in 1820.  In applying this constitutional principle, this Court has held that a law requiring registration as a sex offender for an offense that occurred prior to the registration law's effective date was an invalid retrospective law in violation of article I, section 13. Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006). The same long-standing principles apply here, as the residency restrictions impose a new obligation on R.L. and those similarly situated by requiring them to change their place of residence based solely on offenses committed before the statute was enacted.

Some related posts:

• Ohio Supreme Court narrows state's sex offender residency restriction
• Georgia Supreme Court strikes down sex offender residency restrictions (on a takings theory)!
• What's to come in sex offender residency restriction litigation?
• The practical consequences of residency restrictions
• Does the efficacy of sex offenders residency restrictions impact their constitutionality?
• California Supreme Court to review sex offender residency restriction
• Sex offender laws as a "hot topic" for states in 2008

Ohio Supreme Court narrows state's sex offender residency restriction

As detailed in this official press release, the "Supreme Court of Ohio held today that, because a 2003 state law barring certain sex offenders from residing within 1,000 feet of a school does not expressly provide that its provisions apply retrospectively, the statute does not apply to an offender who bought his home and committed his crime before the law took effect."  Notably, as the press release goes on to explain, this fancy bit of statutory interpretation has allowed the Ohio Supreme Court to avoid some tougher issues:

Because the Court found that the residency statute does not apply retroactively, the justices did not reach or decide the issue of whether such a law, if expressly made retroactive by the legislature, would violate the Ohio Constitution’s prohibition against retroactive laws that infringe on an individual’s substantive right....

Justice Terrence O’Donnell dissented, stating that in his view the plain language of R.C. 2950.031 does clearly indicate legislative intent: 1) that the 1,000-foot residency restriction be applied to sex offenders regardless of whether their crimes were committed before or after the effective date of the statute; and 2) that covered offenders be barred both from “establishing a residence” and from “occupying residential premises” that are within 1,000 feet of a school after July 31, 2003 — regardless of whether an offender “occupied” those premises before the law was enacted.... Justice O’Donnell added that, having found clear legislative intent that the challenged statute be applied retroactively, he would go on to hold that the 1,000-foot residency restriction is remedial rather than substantive in nature, and therefore that retroactive application of the statute to require Porter to vacate his home did not violate Porter’s rights under Section 28, Article II of the Ohio Constitution.

By relying on statutory interpretation in Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), the Ohio Supreme Court essentially kicks this hot-potato issue over to the Ohio state legislature.  It will be VERY interesting to see how the Ohio legislature responds, especially since the defendant here is asserting property rights that can often change the usual political dynamics that surround crime and punishment debates.

Some related posts:

• Georgia Supreme Court strikes down sex offender residency restrictions (on a takings theory)!
• What's to come in sex offender residency restriction litigation?
• The practical consequences of residency restrictions
• Does the efficacy of sex offenders residency restrictions impact their constitutionality?
• Major Human Rights Watch report about sex offender sanctions
• California Supreme Court to review sex offender residency restriction
• Sex offender laws as a "hot topic" for states in 2008

More on technocorrections for sex offenders

This new article in the St. Louis Post-Dispatch, headlined "Technology keeps eye on sex offenders," provides a useful overview of various technocorrection issues surrounding sex offender tracking:

Nobody wants them.  But everyone wants to know where they are.  So cities and states are forging new laws and using the latest technologies to keep tabs on hundreds of thousands of convicted sex offenders.

Their home addresses are considered public information.  Some wear bracelets that can be tracked by satellite and cell phone towers. Others are forced to give their online identities and screen names to parole officers.  Some communities are limiting where offenders can live.

The ability to track them, safety advocates say, is one of the best ways to protect the public.  If you know where the bad people are, they say, it's easier to keep an eye on them. Or to avoid them altogether. Critics, however, say new laws and restrictions make it impossible for sex offenders to be anything more than social outcasts. And there are those who worry about putting so much emphasis on what they characterize as a small piece of the sexual crime problem....

What's changing is the ease of access and the options available. More than 600,000 registered sex offenders can be found in state and national databases, run both by government and private industry....

Sparked by the 2005 rape and murder of a 9-year-old Florida girl, many states are taking a more forceful approach, particularly against violent offenders or those who sexually assault children.  A hallmark of Florida's Jessica Lunsford Act is mandatory lifetime GPS tracking after an offender is released from prison.

The idea has caught on, with dozens of states enacting similar laws. Such monitoring costs around $20 a month for each offender. Generally using a mixture of GPS and cellular networks, offenders can be monitored passively or actively. Their movements might be checked only if there is a question about recent travels, or they might be watched constantly by someone at a computer screen....

It's also possible to declare certain areas, or even people, off-limits through the use of virtual fences and personal monitors. Previous victims, for example, could be notified whenever their attacker is nearby, said Daniel Graff-Radford, a vice president with Omnilink Systems, a Georgia company that monitors offenders for 100 agencies in 38 states....

And in what some characterize as an extreme variation of tracking technology, an Ohio company is promoting a device — which anyone could buy — that would vibrate whenever a bracelet-wearing sex offender comes within 50 yards.

Some related posts on sex offender GPS tracking:

• A sober (and caffeinated) look at GPS tracking realities
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• The practical challenges of sex offender tracking
• New article examining incapacitation innovations
• Another brave new world innovation for dealing with sex offenders

Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration

In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration.  Here is the opinion's key conclusion:

[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes.  As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42....  We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.

Download fushek_opinion.pdf