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October 17, 2006

The scattered law of sex offender residency restrictions

As previously discussed here and here, laws restricting where sex offenders can live and go have become very popular with states and localities.  But, as noted here, there seem to be few resources that compile and assess the current state of the law.  Thanks to CrimProf Blog, though, I see that the Dallas Morning News recently ran this strong article about the law of residency restrictions.  Here are some snippets:

It's become a national game of one-upmanship: Which U.S. city can put the toughest living restrictions on registered sex offenders? And it's being played here in North Texas, where farm towns, affluent suburbs and urban centers alike are approving increasingly broad "no sex offender" zones.  But lost in this race to ban sexual predators from American neighborhoods is a controversial civil rights question: Is it lawful to punish sex offenders who have already served their sentences?

As Dallas officials grapple this fall with whether to approve a sex offender ordinance, they'll do so with little legal clarity. A state senator is still awaiting a ruling from the Texas attorney general on the restrictions, which generally ban sex offenders with violent crimes or child victims from living within 1,000 to 2,000 feet of schools, day-care centers, parks and other child-friendly places.  And across the country, the courts have sent mixed messages.  Some have affirmed the local ordinances; others have overturned them.

The legal uncertainty surrounding sex offender residency restrictions, as well as the inevitability of continued litigation around these laws, presents an opportunity for an enterprising lawyer (or law student) interested in constitutional litigation.  Any thoughtful lawyer or law student who starts a blog covering this field could likely become a leading national expert on this emerging legal topic within a matter of months.  Any takers?

October 17, 2006 at 03:43 PM | Permalink


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I was under the impression that the recent Supreme Court cases re: ex post facto (from Alaska--registry is not punishment--so is a residency restriction punishment? esp. if legislature is careful to specify that safety, yes, safety requires it? Safety, yes, security, that demon); the need for a hearing on dangerousness (CT--no need for procedural due process protection, because being on registry is unrelated or not material to whether individual is dangerous) sort of set the tone for these cases. Of possible current interest is the residency restriction mosaic, but, I'm skeptical that SCOTUS OR the lower courts will be willing to override the legislatures.

The issue would seem to center on whether the restriction is a form of punishment, or "merely" necessary for protection of the public. Stated in that form, registrants lose. The real question underlying the issue is actually whether registration and other restrictions are required at all for protection of the public, especially for those who have served the full sentence. By definition these are rehabilitated individuals, and vote in most--enlightened--states.

On this, the empirical evidence is sparse, and seems to anecdotally weight in favor of the answer: No. Registration is unrelated to actual safety (see recent DOJ stats), but only to its perception by those who are being told they will be safer. So why don't we register multiple dui offenders and murderers, and those convicted of simple assaults? The mass herd instinct, unfortunately, has prevailed so far. Education and debate should certainly help throw some light on the truth.

I, for one, am ready to litigate any restriction in this area. Professor, I might just take you up on that offer too. I always wanted to be the expert. Just feed me.

Posted by: Morilun Zolbrod | Oct 18, 2006 8:18:35 PM

"...if legislature is careful to specify that safety, yes, safety requires it? Safety, yes, security, that demon); the need for a hearing on dangerousness (CT--no need for procedural due process protection, because being on registry is unrelated or not material to whether individual is dangerous) sort of set the tone for these cases."

It's a discordant tone, though, isn't it? Exclusion zones to regulate registrants in order to promote "public safety," based upon a presumption that the courts say isn't a factor in registration. Registration doesn't mean a person is presumed dangerous enough to trigger due process, but it does mean a person is so dangerous that the state must regulate residency, travel, and proximity, yes?

The question will be just how obvious the presumption of dangerousness must be before the Court decides it is indeed an element of registration.

Posted by: Ilah | Oct 19, 2006 1:33:34 AM

"just how obvious the presumption of dangerousness must be before the Court decides it is indeed an element of registration"?

Is the element of danger, possibility and mere possibility of future danger, and the presumption, not the ONLY justification for a registry? What other possible reason is there to "warn" the public in the guise of safety?

Posted by: Goodbar | Oct 19, 2006 8:36:59 PM

Therein lies the contradiction. IIRC, SCOTUS ruled in the Alaska case that since the legislature believed sex offenders--as a CLASS-- posed a greater danger, registration was constitutional. However, in the Connecticut case, SCOTUS ruled that since the state's regulations had nothing to do with INDIVIDUAL dangerousness, there was no due process question.

So all registrants--and no registrants--are particularly dangerous.

The ruling was also based upon the fact that registration required only once-a-year in-person updates, carried no restrictions of work or residence or travel, and that there was no evidence the public would engage in vigilante violence. (Plenty exists now, from petty harrassment to arson to random murder. In fact, I'd say residency restrictions are the result of failed vigilante actions. Since people discovered it was against the law to privately drive registrants from their homes, they pushed lawmakers to make it legal.)

In a way, SCOTUS already ruled on residency restrictions/exclusion zones in Korematsu. What remains to be seen is if they'll incorporate elements of Endo.

Posted by: Ilah | Oct 19, 2006 11:38:27 PM

Hi! I am doing a research paper about the sex offenders punishments. I personally think th they are not harsh enough. I was wondering if you by chance new a web site I could find the range of punishments for sex crimes. I need this so I can compare them to what some sex offenders have recieved compared to what the law calls for. I do not think sex ofenders should be allowed to plea out. I think it should either be guilty or not guilty and they should have to go to trial and be proved not guilty. They should not be able to say no contest or if they do be given the same punishment it would be for someone that was proven guilty. I would be greatly obliged to get any information you may be able to give me in my venture to find information. I am a student with the University Of Phoenix Online in the Criminal Justice/ Criminology field. Thank You. Kristal Wheeler

Posted by: Kristal Wheeler | Nov 2, 2006 4:51:12 PM

I live in Ohio, I was wondering if there is a law in Ohio that states if a sex offender can or cannot return to his place of residency (once he's served his sentence) if there is a minor in the home?

Thank you

Posted by: Tammy | Nov 10, 2006 4:50:40 PM

I am a defense attorney for an indigent defense organization. I just passed last february's bar exam on my first try ( without a prep course ;)

This message is for you. I would proofread your grammar and sentance construction before sending anymore posts. I am not trying to be mean but your post makes you sound very far from impartial. A sex offender is someone who has been convicted- that is, he or she has plead guilty or has been tried and found guilty by way of his constitutional right to a jury trial. A alleged sex offender who stands charged of something still enjoys a presumption of innocence until proven guilty beyond a reasonable doubt. By restricting the defendant who stand charged only in any of their due process rights such as trial you are saying that he deserves less protection from the constitution based soley on what he is charged with. This would lessen the truly innocent persons chances of proving their actual innocence. Its a flawed viewpoint.

Posted by: NewEsq | Dec 12, 2006 6:00:28 PM

I am a convicted sex offender, basically for being seen in the state of cross dress, but the military courts made it into whatever they wanted. Oh, my daughter tried to pull up my dress as I was trying to get back to my room and change. No sexual intention from the either of us, but according to that. It was an Indecent Act.

I went through a courts martial, convicted, and sentenced to two years in a military prison. I have to register as a sex offender.

It was a kangaroo court at best. Taped testimony found to be tainted, but judge allowed transcripts of tainted tapes in. Did not allow expert on child testimony, becasue he threw out tapes. MIlitary lawyers were not allowed to show coercive actions of ex-wife, who was offered financial support if she testified. Two many reasons to list.

After I moved to a state with assessments after almost 10 years, I found out, they want you to admit to other crimes or they will make you a higher level. I didn't, they made me take a lie detetcor test. I passed, so they made me a higher level for moving into a house.

I have lost jobs, received death threats, and lost everything I owned. So when I end up homeless, jobless, and without hope, that somehow promotes public safety. I have lost hpe in the justice system and American Society. The home of the afraid of their own shadow.

No offense, but few lawyers have the will to fight a sex offender case, even when the orginal trial is obviously very flawed.

Dangerous Transgender
Beware, I may wear a dress to a mall near you.

PS Military lawyers for defense, military lawyers for the first appeal, and retired or ex-military lawyers for final military appeal. Add vindictive ex-wife, General who was a canidate for Chairmen of the Joint Chiefs, transgenderism, and financial support offered the day of arrest. Did I ever have a chance?

Posted by: jdoe | Jan 6, 2007 1:57:20 AM

Can anyone point me in the right direction on special parole restrictions for sex offenders in Illinois? They sure as heck don't seem to be working. I have a child sex predator who has been paroled into a condo over a day care center, next to a school, a park and and a child care facility.

Illinois state law would normally prevent him from living in such a location, but it contains an exemption for persons who owned his home in the restricted area prior to passgage of the Illinois law. ((Text of Section from P.A. 94-164) 720 ILCS 5/Sec. 11-9.3. Presence within school zone by child sex offenders prohibited) Ok, so he is exempt from the usual residency rules that apply to all Illinois sex offenders.

However, in 2005 the state also modificed the Uniform Corrections Act to add special parole conditions that the Parole Board can at, its discretion, apply to sex offender parolees. One discretionary condition says they (the PRB) must approve his residence. Another discretionary condition says he can't live by a day care, school, park, child care facility, etc.

Well, obviously no chose to apply any discretion in this situation because he's above a day care center. But who is at fault and how to legally hold them accountable?

The law says the Parole Board of Review has the discretion to apply the special sex offender residency conditions. The Department of Corrections "IDOC" says it controls the administrative function of granting/denying placement. Thus, IDOC says, the PRB will not step in on IDOC's decision on residency conditions because this is a placement issue under IDOC's jurisdictioncy conditons.

Seems like a run around to this poor little tax attorney. Under the IDOC's logic, the parole residency conditions for sex offenders will never be applied because the Board won't do it and the IDOC won't do it. There must be some legal responsibilities that must be fulfilled in the exercise of their fundtions. Given I have a very weak knowledge of this area, how do I legally attack this?

Posted by: Uptown Resident | Feb 13, 2007 8:32:34 PM

I am a registered sex offender. According to the judge, reason for registration goes back to my plea of guilty to indecent exposure in 1972. I was 21 at the time and knew nothing of charges and the implications behind them. In 2002 while being drunk in my own yard (not using alcohol as an excuse, just as a motivator)I got naked, then seen by neighbors, mostly adult. One child apparently saw me.

Judge said if not for the guilty plea in 1972 I would have been a one-time offender, and would not have to register.

Now, with the de facto meaning of sex offender being child molester, even sexual predator, others, and I are bearing an assault upon our lives and livelihoods. No legislature and almost no one in the legal systems want to make a difference on the side of those wearing that scarlet name.

The dim wits who say sex offender laws are not tough enough has gray matter that has gone pink. Many people on registries are not deserving of what they now must bare. I for one have come to have a very dim opinion of lawyers who won't even act as a whole to find a way of breaking down the sex offender wall built by ignorance, misconception, myth, and outright lies, and kept flamed by politicians.

Unfounded hate coming from people like one who commented earlier is the most disheartening of all because it says that there are people who refuse to acknowledge injustice in sex offender treatment by legislatures, law enforcement, and the courts.

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There are groups of activist against umbrella sex offender laws that are looking for and wanting one or more law students, and even enterprising attorney's to take on some of these laws (legal exercise) on residency restrictions and ex post facto. As most of you know the weakening of ex post facto in Article 1 sections 9 and 10 of the US Constitution is under a constant assault. There appears to be an attempt or effort to make ex post facto obsolete, and residency restrictions (a form of legalized banishment) acceptable practice.

What we are looking for are legal minds with vision willing to accept a challenge and willing to construct legal arguments as if arguing before the US Supreme Court on the two topics mentioned. Based on current Supreme court opinion on Smith v. Doe, how can you present an argument that will satisfy ex post facto, keeping in mind how the Supreme's are straining their jurist reasoning abilities to keep saying such and such is not ex post facto.

This is one of the biggest challenges I believe an attorney can have, going up against the prevailing judicial reasonings, and making a convincing and sound legal case in favor of ex post facto violations.

If anyone or a group of students are interested in taking something like this on as a personal or school project, email me and let's talk.

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I am a sex offender in Florida. HEAR MY PLEA. I NEED LEGAL HELP!!! I met a young man in his 3rd semester of Electrical Engineering at the local Jr. College. He took his GED at the age of 16 and passed in the top 10% of the country is Science. After taking the Florida Comprehensive Assessment Test (FCAT) he passed in the top 10% of the state in Science. After 3 months of him trying to convince me that love sees no age, he finally convinced me. On that day he asked me to marry him and because we truly feel our souls were meant to be together, I SAID "YES." We went a bit too far and made a mistake. His certifiably mentally ill mother (with a sex crimes record of her own) found out and filed charges. At the time it was 30 days before his 18th birthday and I was 39. He turned 18 before I was found guilty of 4 counts of "Lewd Behavior with a Minor" and sentenced to 3 years probation per count to run concurrent. Seven (7) days later we were married happily and remain so today.
You may ask yourself how my parents feel about such a match. You would be right to ask such a question. My parent stood as witnesses at our wedding because they understand what 'Unconditional Love" is and support our decision.
There is no "NO-Contact With the Victim Order" and never has been one, even at arraignment. I retained primary residency and custody of my 9 year old daughter. I have participated in and been discharged from Florida's required group therapy program. I have 2 years and 4 months left on my probation.
Because my husband is determined to complete his education and achieve HIS "American Dream" of becoming a "Bio-Robotic Integration Specialist," he joined the Navy. I admire his courage and determination. I was NOT permitted to go to his Graduation from Boot Camp.
HERE IS THE ZINGER: As if the above was not distressing enough. My husband wants me to join him in Illinois. Not an unreasonable request for a newly married man. OK...find a house that meets the requirements for Sex Offenders in the state of Illinois. DID THAT!... Not good enough. Now, find a place that meats Florida requirements for Sex Offender (they are tougher). DID THAT. Too Close to a SCHOOL by 50 feet. Find a another house. DID THAT. Too Close to a dirt lot Illinois is calling a park. Find another house. DID THAT. Almost a month and a half later, I am now being told that a Illinois state statute prevents Offenders for living with their Victims. FIND A HOUSE IN ANOTHER STATE if you want to live with your HUSBAND!!!!!!


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