« Swift capital justice for Saddam | Main | An eventful holiday week in the circuits »

December 30, 2006

Strong editorial against residency restrictions

This morning's New York Times brings this editorial weighing in against sex offender residency restrictions.  Here are some highlights:

Of all the places that sexual predators could end up after prison, the worst is out of sight, away from the scrutiny and treatment that could prevent them from committing new crimes.  But communities around the country are taking that risk, with zoning laws that banish pedophiles to the literal edges of society.

There is a powerful and wholly understandable impulse behind laws that forbid sex offenders to live within certain distances of schools, day care centers and other places that children gather.  Scores of states and municipalities have created such buffer zones, then continued adding layer upon layer to the enforcement blanket....

The unintended consequence is that offenders have been dispersed to rural nowhere zones, where they are much harder to track....  Many offenders respond by going underground. In Iowa, the number of registered sex offenders who went missing soared after the state passed a law forbidding offenders to live within 2,000 feet of a school or day care center.  The county prosecutors' association has urged that the law be repealed, for the simple reasons that it drives offenders out of sight, requires "the huge draining of scant law enforcement resources" and doesn't provide the protection intended....

The problem with residency restrictions is that they fulfill an emotional need but not a rational one.  It's in everyone's interest for registered sex offenders to lead stable lives, near the watchful eyes of family and law enforcement and regular psychiatric treatment.  Exile by zoning threatens to create just the opposite phenomenon — a subpopulation of unhinged nomads off their meds with no fixed address and no one keeping tabs on them.  This may satisfy many a town's thirst for retributive justice, but as a sensible law enforcement policy designed to make children safer, it smacks of thoughtlessness and failure.

Some related posts:

December 30, 2006 at 10:08 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Strong editorial against residency restrictions:

» Back from Holiday Travel from Sex Crimes
I have been traveling over the holidays and haven't been able to blog. Needless to say, I have a lot of catching up to do. To start, there is an editorial in today's New York Times about sex offender residency [Read More]

Tracked on Dec 30, 2006 4:16:03 PM


Sentencing scholars will undoubtedly find this sentence interesting. Defendant was sentenced to a total term of 115 years to life for touching/pinching two girls bottoms in a grocery store.

This one should make its way up to the SCOTUS for a variety of reasons and the dissent spells out the problems with California statutes and the sentence.

Posted by: George | Dec 30, 2006 2:26:03 PM

George, are you kidding? All you need to do is read the case you link to. This defendant belongs behind bars--for life. He is a vicious child sex predator. God only knows how many children are saved by his incarceration.

Posted by: federalist | Dec 30, 2006 3:44:43 PM

Your reply was predictable and expected, federalist. Of course I read the opinion and think the dissent is reasonable. The majority is reasonable based on the law as well. But reasonable people can disagree, as did the Court. Did you read the dissent? You are right about one thing, "God only knows" and so why not civil commitment instead? At least then it would be possible to know in advance if he was no longer likely still a danger. Treatment might take a year, 2 years, 20 or never, but 115 years assumes never. Justice that assumes so much cannot be trusted.

The word "vicious" you use is a convenient one because it is so ambiguous:


Function: adjective
Etymology: Middle English, from Anglo-French vicios, from Latin vitiosus full of faults, corrupt, from vitium vice
1 : having the nature or quality of vice or immorality : DEPRAVED
4 a : dangerously aggressive : SAVAGE (a vicious dog) b : marked by violence or ferocity

The dissent, I think, distinguishes between definition 1 and 4 or maybe between 3 and 4. A sentence of 115 years, or any life sentence, should be reserved for the 4 types.

As Justice Scalia wrote in Monge v. California, 524 U.S. 721 (1998):

"Perhaps Congress should have taken a lesson from the California Legislature, which (if my worst fears about today’s holding are justified) may have stumbled upon the El Dorado sought by many in vain since the beginning of the Republic: a means of dispensing with inconvenient constitutional “rights.” For now, California has used this gimmick only to eviscerate the Double Jeopardy Clause; it still provides a right to notice, jury trial, and proof beyond a reasonable doubt on “enhancement” allegations as a matter of state law. But if the Court is right today, those protections could be withdrawn tomorrow."

We protect even the most heinous for good reason, and Isom's charges aren't even the most heinous. You too often confuse the Constitution with the offense and the offender. The Founders were well aware of offenders far more heinous that this defendant, and they wrote, and the country ratified, the Bill of Rights anyway. Why would they do that?

Posted by: George | Dec 30, 2006 4:31:41 PM

First: Civil commitment, in my view, is extremely problematic from a constitutional standpoint and is a band-aid solution to the problems caused by lenient criminal penalties for these predators.

Second: The attack on the 15 year old described qualifies as "vicious".

Third: This guy is definitely a problem. He likes to attack children. He belongs behind bars. Forever. The issue is not, George, whether by some miracle this sick pervert would somehow lose his desire or somehow garner up the strength to resist his sick urges, but whether states are entitled to throw the book at someone who is a sex offender, gets sentenced and then released, and then, as you euphemize "pinches/touches girls' bottoms". The answer to that question is "yes", given (a) the complete reprehensibility of the past and present conduct and (b) the danger to the state of letting a pervert like this walk the streets. Once someone has broken the law, the state is entitled to sentence based on judgments about how dangerous such people are. It may very well be that this man could somehow wake up one day and be fine, but the state is not compelled to take that risk.

Fourth: as for confusing the Constitution with the offense or the offender, I think that an unfair slap. The reality is that the Constitution does allow for exceedingly harsh punishments, especially for repeat offenders. This guy, a convicted violent sex offender, decided to mess with some little girls by engaging in conduct that was a little bit more than your euphemization (which euphemization makes me wonder about your bona fides). I don't see how the Constitution generally has an issue with what is effectively a life sentence. Think about this--the Constitution would not have been offended had the guy been sentenced to 115 years for the attack on the 15 year old, and, I might add, it may not even be offended by a death sentence for the attack on the 15 year old (we'll see what the Supreme Court says about these child molestation death sentences, which I disagree with on policy grounds, although I fully think them Constitutional).

Fifth: while I certainly agree that the Constitution protects all--I also think that many seek to give defendants more rights than the Constitution actually gives. And I also think that people confuse their idea of what an appropriate sentence ought to be with Constitutional limitations.

I for one am glad this Isom guy is behind bars for the rest of his life.

Posted by: federalist | Dec 30, 2006 5:25:53 PM

This is a fact not a "euphemisim" [sic]: "pinches/touches girls' bottoms". That is what he did, and your "bona fides" comment is par for the course. (For the record, again, I'm not a lawyer anyway.)

But your post points out how ludicrous this premise is:

"Thus, the jury in this matter was not tempted to convict him simply to punish him for the offense against Jessie." (p 12)

Jessie was the 15-year-old. Your point of view makes it very clear that the jury might want to punish him based on the "uncharged offense" and maybe give him life because of that offense. That the legislature does not acknowledge this is either naive or devious, and admitting that evidence in this case is or should be unconstitutional. Your posts prove it.

It would be interesting to know if the jury thought 115 years was a fair sentence once they knew.

Posted by: George | Dec 30, 2006 5:51:59 PM

George, I don't know if my posts "prove" anything. As for evidence of prior crimes being part of the proof of charged crimes, there is an ongoing dispute about the extent of the use of this evidence. I have little problem with it here.

In any event, the post is about residency restrictions for sex offenders. One point the NY Times misses is that these bans often have the intent of simply forcing sex offenders out of state--making them someone else's problem.

Posted by: federalist | Dec 30, 2006 7:28:05 PM

The focus of the legislatures and the politicians on sex offenders is the crime du jour. In the past it has been crack, and way back was alcohol. This too will pass. I can tell you, having represented a number of so-called sex offenders, that incarcerating them serves no purpose. What they suffer from is a "Disease", and they need treatment, just as the alcoholic does, and just as the narcotics addict does. Those who argue for life without parole for every offense save jaywalking, are the same ones who whine about the cost of prison, etc. Can't have it both ways. And, to "george", and others, don't be surprised by the comments by "federalist". They should be treated as a source of amusement; just as the dolt Frist's comments were regarding Terry Shaivo [sp?]. Federalist claims to be an attorney, but likely has not been in a courtroom since his swearing in, and i think his idea of "pro bono" work means donating his free time to Trump on a real estate closing. In anther posting he claimed to be a "corporate attorney". Ahh, yes, in the finest tradition of Lincoln no doubt.
P.S. I expect the usual diatribe back from federalist. "Consistency is the hobobblin of small minds."

Posted by: Bernie Kleinman | Dec 31, 2006 11:11:40 AM

Could you guys try staying on topic for once?

The original post is interesting, and has nothing to do with whether residency restrictions on sex offenders are too harsh or not. The argument is that they're ineffective and ultimately harmful to the people they seek to protect. If any of you folks have any rational comments on that, I'd love to hear them.

I think that a lot of criminal laws are enacted on the basis of people's visceral reactions to crime. This isn't always a bad thing (I think it's a good thing, usually), but it's questionable in cases like this when the laws (arguably) backfire. Does anyone have any thoughts on whether the NY Times' descriptive arguments are correct, or if so what the solution might be?

Posted by: Bill | Dec 31, 2006 12:11:12 PM

Bill, you are right. I apologize.

Posted by: Bernie Kleinman | Dec 31, 2006 2:37:25 PM

Along with Bernie Kleinman, I apologize as well. With one disclaimer. The People's empathy for crimes victims is a valid consideration in the enactment of law. Given that, no rational adult would want John Couey living in the neighborhood with their children, and rational adults might even condone sacrificing the Bill of Rights to banish him. One solution is residency restrictions, often promoted by pandering lawmakers (Sample interviewed 35 legislators from Illinois. Of these 35 policy makers, only four were confident that sex offender registration and notification laws were effective; however, nearly all of the sample agreed “that current sex offender legislation . . . successfully addressed the public’s demand for action”(Sample 2001, 96)).

The definitions of "vicious" are blurred. Residency restrictions are based on many fears and false equations, for example, in Carrasco the defendant's sentence was only a few more years than Isom's ("98 years and eight months and a consecutive term of 25 years to life" compared to Isom's 115 years), though in Carrasco "A jury convicted appellant of one count of murder, seven counts of rape, two counts of robbery, two counts of burglary and three counts of injury to telephone lines."

When defendants are so equated, banishment is inevitable. It is no coincidence the banishment laws gained popularity as Jessica's Law spread across the the nation. Any sex criminal equals a (potential) murderer, and banishment at the very least is the only rational solution. At what point does the People's visceral reaction become moral panic? Residency restrictions are a symptom of a more profound malaise. I failed to explicitly make this connection in the first post, but there is a logical connection.

Posted by: George | Dec 31, 2006 7:49:15 PM

I would refer all of you to a related posting by Prof. Berman:
It involved a selection for the Ethicist column that appears in the Sunday NY Times magazine section. I, along with several others, offered their comments.
As I said there, and I will say it here, one of my biggest problems with this entire SOR business, is that I can find out that my neighbor on the right downloaded kiddie porn 15 years ago, but my neighbor on the left, who just finished 15 years for manslaughter is hidden from me. I am sorry, but the logic escapes me. I have represented many SOs, and they are generally no more threatening than anyone else, and often are guiltyof crimes of thought more than anything else.

Posted by: Bernie Kleinman | Dec 31, 2006 9:32:29 PM

All the headlines that appeared in the newspapers and televisions about Sex Offenders are to mass-mediated wave of irrational public fear. The media is driven by their desire for sensationalism and ratings. Two states that have actually conducted studies on the impact of Residency Restrictions. Minnesota and Colorado concluded that residency restrictions would not help reduce sex abuse of children but might actually do more harm.

When Megan’s Law was signed into law in 1996, it was to be used for the worst sex offenders released from prison or jails. But since the introduction of the law, politicians and the media has engaged in piece mail reporting of high failures of the system without giving the citizens any real sense of the scope and outworking of the program or if they are in any way successful and worthy.

There is a growing problem in our Country. States are NOT OFFERING SEX OFFENDER TREATMENT PROGRAMS IN COUNTY JAILS. Why aren’t more resources being allocated to treat these individuals in county jails? In order to eradicate the problem, the government has to make sure that all viable effort is being made on the front lines. That means offering these programs at whatever the cost. Not waiting for another crime to be committed and enacting new laws. There should be a "light at the end of the tunnel" to motivate sex offenders to comply with sex offender treatment requirements.

The Department of Correction and/or the District Attorney are the first line of defense to ensure that dangerous individuals, those identified as Sexual Predators, aren’t released from prisons. The “Sexually Dangerous and/or Civil Commitment Law” was passed by every State, but you only see this law applied in very few intense. The only ones you do see or hear about are the ones that have made “National Headlines”. Why isn’t the District Attorney Office pursuing more cases of Sexually Dangerous and/or Civil Commitment hearings? The most effective way is not being put to use. So, stop blaming Sex Offenders and start asking accountability from District Attorney’s in every State.

If every District Attorney was doing his/her job, we would not need a Sex Offender Registry. The most dangerous individuals would be behind bars and not rooming our streets. This is what Megan’s Law was supposed to accomplish.

Finally should the government have unlimited powers to banish, segregate and punish individuals for the remainder of their lives. What's to stop the government from enacting these restrictions against; drunk drivers, shoplifters, and reckless drivers or anybody who commits a crime?

Public opinion will never change until the very essence of constitutional liberty affect them personally. Playing on the fear-appeal theory, these laws attempt to use “stranger danger” to its advantage.

Posted by: wavemix | Jan 17, 2007 2:45:41 PM

I must ask.... When will it ever be enough punishment for convicted sex offenders who have already paid their debt to society by serving their sentences. I am married to a sex offender who has done nothing short of doing everything correct and following all rules imposed on him by the parole board (curfew, county restictions, etc.) How are decent people supposed to get on with their lives and prove they no longer pose a threat to society? When my husband was first released from proson, he had a loving family to support him, a home to live, a job, cousneling and an abbundance of supportive friends. However, he was sent to a 'homeless' shelter, not allowed to work, along with countless other obstacles stanind in his way of reform. Not fair....at all.....I consider this a psychological hindurance in starting over and it only made things so much more difficult for everyone. My husband is a law abiding citizen who causes no threat to anyone and has served his sentence bravely. Is that not enough ? And why not ? Everyone knopws there are millions are ex-cons who pose thousand of threats to society....murderers, gang members, etc., who are considered violent but are not monitored in the way sex offenders are. Why is is that a sex offender is expected to re-commit a crime and not a murderer ? If you are going to come down hard on one type of felon, why not come down hard on all types of felons ?

Posted by: Regina Duggan | Apr 13, 2007 8:42:08 PM

hello i need help in finding a place for my step son who just came out from prison he is a sex offender he is in chula vista san deigo his parole wont tell him anything just for him to report to him as where he is my stepson has no family where he at he need a job but where does he go ? he was a paster in prison ministry he server 8 years we try everthing and look in to everthing i could do please help me

Posted by: virginia | Mar 10, 2008 3:22:46 AM

I like the foundation of this blog has a great variety of comments really appreciate it.

Posted by: adipex diet pills | Mar 22, 2010 3:18:07 PM


Posted by: KIM STOUT | May 20, 2010 11:46:24 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB