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August 3, 2005

Great blog debate over residency restrictions

A wonderful blogsphere debate has developed over the constitutionality of sex offender residency restrictions (which, regular readers know, was the subject of major recent rulings by the Eighth Circuit and the Iowa Supreme Court).  Lior Strahilevitz kicked off the debate with this post at PrawfsBlawg, which prompted this response from Will Baude at Crescat, which led to this reply from Lior.  Be sure to read the comments, too, since they enhance the debate greatly.

Since my constitutional expertise does not go much beyond the sentencing field, I am disinclined to weigh in on the merits of the debate.  But I am inclined to highlight how this exchange amplifies my recent points in this guest-post at PrawfsBlawg that blogs can help fill a scholarly gap created by the modern realities of traditional law reviews. 

August 3, 2005 at 05:47 PM | Permalink


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» the banishment clause from a Public Defender
Prof Berman highlights the growing blogosphere debate about sex offender zoning laws, which restrict where a sex offender may live. The debate was kicked off by the 8th Circuit's decision in Doe v. Miller [pdf] and the Iowa Supreme Court's [Read More]

Tracked on Aug 4, 2005 10:06:36 AM

» the banishment clause from a Public Defender
UPDATE: Will Baude at Crescat has a follow-up post on the issue of sex offender zoning laws. How about a glance at procedural due process to determine whether the zoning ordinances were appropriately put into effect? I am no Administrative [Read More]

Tracked on Aug 4, 2005 3:19:53 PM


I am a Newspaper General Manager

To make a point, where does this end? Do we next have a group of citizens who are upset that a convicted burglar has moved in their neighborhood thus causing the legislature to pass a law banning anyone who has been convicted of burglary from living in a residential neighborhood?

Of how about a law banning a convicted bank robber from living within 2000 feet of a bank or financial institution?

As I said, where does this end?

This reminds me of W.W.II when the Japanese raided Pearl Harbor and we banished all the LEGAL U.S. RESIDENTS of Japanese origin to internment camps out of fear they MIGHT SOMEDAY do something to us.

One convicted sex offender killed an innocent young child in Florida. One convicted sex offender killed an innocent young child in Iowa. One convicted sex offender killed an innocent child in Colorado. Three separate acts convicted by three sick individuals. These acts were NOT committed by every sex offender in the United States. So passing laws that restrict EVERY sex offender is no different than sending them all to internment camps. (Which I am sure some of you would like to do anyway).

Sometime in the future, the "Witch Hunt" on sex offenders will be seen as unjust and it will be overturned.

Posted by: Tom | Aug 10, 2005 7:57:25 PM

The point of this type of legislation, the recent relevant court decisions, and any future legal manipulation of civil liberties is to essentially isolate and eventually exile today's list of the socially unacceptable.

When McMartin Preschool first popped up decades ago, society was shocked and aroused to ire by something considered to be unconscionable. Our society reacted in a swift and vengeful manner, typical of the knee-jerk reactionism we are seeing more and more of today. It did not matter that years later most of the McMartin type cases were found to be without truth or foundation, only that such cases opened our eyes to a problem which has yet to be addressed realistically.

There are persons within our society who prey on the weak and innocent. What society has yet to decide in the case of sex offenders is, are they truly criminal or are they psychologically defective. It is my understanding that a criminal act is one wherein the perpetrator knows he is violating the law and acts to do so without compulsion. Levels of crime are determined by the emotional states of malice or passion, and mitigation or heinousness is determined by circumstances. However, it is also recognized that the perpetrator's mental state has a bearing on any legal response.

Temporary insanity can reduce offenses and lessen sentencing, without ameliorating full responsibility. However, recognized states of persistent insanity amend individual responsibility enough to divert the perpetrator from the criminal into the medical system.

In the case of sex offenders, society seems to want it both ways. First, we want to punish out of vengence for the acts as if the individual was fully responsible. Subsequently we claim such persons are suffering from an incurable mental abberation which makes them a continuing threat to society. In this second case we opt to brand them with a scarlet letter, punishing socially in hopes of driving them away, and hoping to eventually subject them to permanent incarceration in a mental institution.

Doen't an uncontrollable mental abberation equate to a lessening of individual responsibility? If one is incapable of "thinking straight" when one commits a crime how can he be held fully accountable? Shouldn't such an individual qualify for diversion to the medical system right from the beginning?

It is also important to try and stop society from lumping all persons classifed as sex offenders together and judging them equally. Sex offenders include but are not limited to flashers, adults caught together in consentual but morally disapproved acts, and persons only slightly above or below the variously held "legal limits" established for prosecution of certain acts. ALL sex offenders suffer under the growing restrictions, not just those who rape and murder.

Personally, I wish people would realize they have a tendency to scapegoat because it is easier than taking the time to really think. Visceral responses should not dictate justice.

I also wish legal minds like those contributing here would stop considering this a philosophical question and act to help direct society into one or the other choice.

If sex offenders are criminals then they should not be subject to the additional and ever escalating social restrictions on their liberties once released into society. If they are not sane, then they should be treated with the same level of social sympathy and support that any other person so identified would be. If considered a threat due to their brand of insanity, be incarcerated in a treatment facility until judged to no longer be a threat.

Posted by: Anthony | Aug 23, 2005 1:20:19 AM

Here here Seattle must be in this debate!!!

Sex Offender Abuse by the Washington DOC

Posted by: homeless sex offender | Aug 23, 2007 11:20:34 AM

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