Sex Offender Residency Restrictions Fact Sheet [Last Update Oct. 7, 2009]

Intro: This is a shortened version of my comprehensive Sex Offender Fact Guide, specifically addressing the issue of
residency restrictions. It is designed specifically as a quick reference for any argument to the residency laws.

Banishment by Attrition: Residency Restrictions for Sex Offenders

  • As of 2006, 22 states had some form of residency restriction: Alabama, Arkansas, California,
    Georgia, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana, Minnesota, Michigan, Missouri, New
    Mexico, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Washington, and West
    Virginia. (Marcus Nieto and David Jung, California Research Bureau, “The Impact of Residency
    Restrictions on Sex Offenders and Correctional Practices: A Literature Overview,” 2006, p.17).
  • As of 2009, around 30 states have either state or local residency laws in place
  • “Banishment by Attrition:” Sex offender laws greatly diminish the ability of sex offender housing,
    hampering successful reintegration of sex offenders into the community after prison. (Logue "Once
    Fallen" 2007)

Impact of sex offender laws on housing availability

  • Cincinnati Enquirer Residency Restrictions Report 2007
  • Multi-housing units unavailable before residency restriction increase: 38,674 (44%)
  • Multi-housing units unavailable after residency restriction increase: 54,447 (60%)
  • 131 Available apartments called
  • 3 apartments (1.5% of all) were both available and met residency restriction requirements
  • Study conducted BEFORE Cincinnati increased residency restrictions in 2007

Negative impact of residency restrictions- ineffective, inefficient, counterproductive

  • Law doesn’t restrict activity, only residence (Dan Klepal, “City debates strict limits on where sex
    offenders live”, Cincinnati Enquirer, Dec. 6th, 2006)
  • Law has no impact on recidivism
  • Study: offenders who met a criteria that included an previous offense to the offender’s
    residence and had a minor victim; “Not one of the 224 sex offenses would likely have
    been deterred by a residency restriction law.”
  • Recidivism correlated to “social or relationship” proximity rather than residential
    proximity; 49% committed offense 1+ miles from home.
  • Deterrent effect “slim” due to rarity of the offenses it was trying to protect; they found
    housing restrictions detrimental
  • Causes stress and instability in life, critical factors in recidivism
  • I have had to move out of a home that I owned because of the 1,000-ft rule- 22%
  • I have had to move out of an apartment that I rented - 28%
  • When released from prison, I was unable to return to my home- 25%
  • I have been unable to live with supportive family members - 44%
  • I find it difficult to find affordable housing because of the 1,000-ft rule- 57%
  • I have suffered financially because of the 1,000-ft rule- 48%
  • I have suffered emotionally because of the 1,000-ft rule- 60%
  • “Preventing Sexual Violence: How Society Should Cope With Sex Offenders” (John Q.
    LaFond, 2005, American Psychological Association): The laws have had many adverse
    consequences, such as vigilantism, loss of employment, residence, and relationships,
    difficulty in obtaining suitable housing, and incentives to violate existing registration laws (p.
    113-6, 118).
  • Increased number of sex offenders failing to register, giving false addresses, or homeless
  • 140 sex offenders were unaccounted for before residency laws were enforced
  • 400 sex offenders were unaccounted for after residency laws enforced in 2005
  • 350% Increase in one year (2004-2005)
  • About 700 sex offenders moved out of the state or even the country…There was also an
    increase of arrests of sex offenders for giving false addresses. (Lee Rood, “Data: Sex
    Offenders Fleeing The State,“ Des Moines Register, April 1st, 2007).
  • “At least 15 sex offenders have been arrested because of homelessness since the law took
    effect in July 2006.” While the sheriff‘s office maintains that homelessness is not an
    acceptable excuse [for not being able to register], a lawsuit filed by the Southern Center for
    Human Rights and the ACLU argues the law is cruel and unusual because the law “leaves
    offenders with virtually nowhere to live” (Shaila Dewan, “Homelessness Could Mean Life in
    Prison for Offender.” New York Times, August 3rd, 2007).
  • With so few places to live, sex offenders tend to cluster in areas because so few are willing to
    rent to them regardless of restrictions. There are a number of major flaws in the sex offender
    restrictions, but the one question I ask most frequently is this: Where do you expect the sex
    offender to live? (Logue, “Once Fallen” 2007)
  • Law had no impact on sex crimes
  • From 9/05 to 8/06: Only 1 stranger sex offense against a child
  • From 9/04 to 8/05: 433 sex crimes against children
  • From 9/05 to 8/06: 445 sex crimes against children (+12)
  • Examples of negative impact of Residency Restriction Laws

Habitat for Inhumanity- The ill-legality of residency restrictions

Are residency laws punitive (I.e., a punishment, thus a criminal matter) or regulatory (I.e., a
public safety or civil matter)?

  • Though the residency restrictions are regarded as civil sanctions, even a civil penalty is considered
    a punishment if the sanction cannot be fairly said to serve a remedial purpose, but instead as a
    deterrent or retribution, [US v. Gartner, 93 F. 3d 633, cert. denied 519 US 1047], or when it is
    overwhelmingly disproportionate to the damages caused to the government [US v. Walker, 940 F.
    2d 442].
  • Demery v. Arpaio, 378 F. 3d 1020, cert. denied 125 S. Ct. 2961, 162 L. Ed. 2d 887: claim that
    certain sanctions served purposes of deterrence and public scrutiny does not justify sanctions
    which do not serve a legitimate governmental purpose or causes harm to the targets of the
    sanctions.
  • E.B. v. Verniero, 119 F. 3d , rehearing denied 127 F.3d 298, cert. denied, 522 US 1110: even when
    punishment is neither the actual or objective purpose of the law, civil sanctions may constitute
    punishment if the effects or “sting” are harsh enough to be considered a punishment, and must be
    evaluated in light of importance of any legitimate governmental interest served.
  • In Artway v. Attorney General of the State of New Jersey, 81 F. 3d 1235, rehearing denied 83 F. 3d
    594: even if some remedial purpose can fully explain a legislative measure, if historical analysis
    shows a sanction has been traditionally regarded as punishment, and if text or history does not
    demonstrate that the measure is not punitive, it must be considered a punishment.
  • The residency restriction law is an act of banishment comparable only by deportation of illegal
    aliens. Trop v. Dulles, 356 US 86 (1958): an order of banishment (or “divestiture”) was executed
    against a native born citizen who did not voluntarily relinquish or abandon his citizenship or become
    involved in any way with any foreign nation. “Divestiture of a natural born citizen was held to be
    unconstitutionally forbidden as a penalty ‘more cruel and more primitive, inasmuch as it entailed
    statelessness’ or ‘the total destruction of the individual’s status in organized society.” (CRS/LII Ann.
    Const. 8th Amdt,. www.law.cornell.edu/anncon/html/amdt 8_user.html).
  • In Rutherford v. Blankenship, 468 F. supp. 1357, 1360 (W.D. Va. 1979), the Court stated, “To
    permit one state to dump its convict[ed] criminals into another is not in the interests of safety and
    welfare; therefore, the punishment by banishment to another state is prohibited by public policy.”

Why is this argument so critical?

  • In civil law, there are NO constitutional safeguards against such actions as cruel and unusual
    punishment, due process, etc. In a criminal matter, constitutional safeguards apply.
  • Lawmakers know this base concept of law, and have used this to circumvent the constitution in
    order to pass sex offender laws.

The Courts and its rulings on laws governing human behavior and risk assessment

  • The mere knowledge of a person’s past behavior does not justify a belief the person will
    automatically re-offend (Tot v. US, 319 US 463.)
  • While the state may claim a compelling interest in deterring convicted sex offenders from re-
    offending, there are certain fundamental rights that are being infringed upon, and thus “more than a
    compelling interest is needed to survive constitutional scrutiny. The statute must be narrowly
    tailored to meet the compelling interest.” [Reno v. Flores (1993), 507 US 292, 301-302].
  • State v. Burnett (2001) 93 Ohio St. 3d 219, a law barring convicted drug offenders from entering
    Cincinnati’s “Over-The-Rhine” district failed constitutional analysis because it went beyond
    restricting those interests associated with illegal drug activity and restricted a substantial amount of
    innocent conduct, like living in an apartment, or visiting human services. The law restricted and/or
    punished behavior not even linked to criminal activity; merely the act of being in the restricted area
    was enough to get you arrested. Also, the restriction restricted drug offenders from obtaining the
    assistance or support networks necessary for rehabilitation which was otherwise severely
    diminished by the restrictions. Later upheld in Johnson et al. v. City of Cincinnati, 2002 FED App.
    0332P (6th Cir.), cert. denied, US Supreme Court case no. 02-1452.
  • The courts also established in order to prove conspiracy, there must be some concrete action
    related to specific acts [US v. Cintolo, 818 F. 2d. 980, 1003 (1987)].
  • Furman v. Georgia, 408 US 238 (1972): “The Court will consider whether a punishment is (a) too
    extreme or barbaric; (b) arbitrarily imposed; (c) excessive, disproportionate, or inconsistent with
    contemporary norms; or (d) unnecessary to achieve a penal purpose that could be served by a less
    severe punishment.” (John Q. La Fond. “Preventing Sexual Violence: How Society Should Cope
    With Sex Offenders.” American Psychological Association, 2005, p. 180).

Our Neglected Rights

  • On the flip side, there are a number of ‘legitimate governmental interests” largely neglected by our
    government. The Courts have firmly established that “rehabilitation of criminals is of paramount
    interest.” [Abbott v. City of Beverly Hills, (Cal. Supreme Court, Feb. 26, 1960)] In the Abbott case, it
    was determined that registration of ex-felons is both in conflict with public policy and at variance with
    “moral and ethical concepts of decency and human dignity.”
  • Universal Declaration of Human Rights, Article 13: “Everyone has the right of freedom of movement
    and residence within the borders of each state.”
  • In United States v. Wheeler, 254 US 281 (1920), it was duly noted that from the time of the Articles
    of Confederation, the right to peaceably reside within a state and be immune from unlawful
    deportation to another state. The Court noted as follows: “That the Constitution plainly intended to
    preserve and enforce the limitation as to discrimination imposed upon the states by Article 4 of the
    Confederation, and thus necessarily assumed the continued possession by the states of the
    reserved power to deal with free residence, ingress and egress, cannot be denied for the following
    reasons… Because that view has been so conclusively settled as to leave no room for controversy.”
    Citing Ward v. Maryland, 12 Wall. 418, 430 (20 L. Ed. 449), the Court states the clause “plainly and
    unmistakably secures and protects the right of a citizen of one state to pass into any other state of
    the Union… to acquire personal property; to take and hold real estate…”
  • In US v. Guest, 383 US 745 (1966), the Court addresses certain rights as basic and fundamental;
    “The reason, it has been suggested, is that a right so elementary was conceived from the beginning
    to be a necessary concomitant of the stronger Union the Constitution created.” See also Edwards v.
    California, 314 US 160; Kent v. Dulles, 357 US 116, 125-6; and Apthecker v. Secretary of State,
    378 US 500, 517.
  • Godfrey/ Bothelho v. John Doe et al., No. 01-729 (March 5, 2003): Individuals has right to travel &
    reside wherever they desire unless under court supervision.
  • The Courts had also struck down punishment based on a degraded status alone, like a drug addict
    [Robinson v. California, 270 US 660 (1962)].
  • Romer v. Evans, 517 US 620 (1996): “If the constitutional conception of ‘equal protection of the
    laws’ means anything, it must at the very least mean that a bare…desire to harm a politically
    unpopular group cannot constitute a legitimate governmental interest…”

Broad laws punish everyone regardless of severity of the offense

  • “Predator laws, in short, ascribe group risk to the individual” (Eric S. Janus, Failure To Protect,” p.
    102).” Residency restrictions or proximity laws form a “collective punishment.” Wikipedia def. --“the
    punishment of a group of people for the crime of a few or even of one. It is contradictory to the
    modern concept of due process, where each person receives separate treatment based on their
    individual circumstances, as they relate to the crime in question.”
  • The 1949 Geneva Conventions- 4th Convention Article 33 states, “No protected person may be
    punished for an offense he or she has not personally committed,”…”collective penalties and
    likewise all measures of intimidation or of terrorism are prohibited.”

List of Court Cases ruling against residency restriction laws

  • Thor Jourgensen, “Revere Sex Offender Law Dismissed,” Daily Item of Lynn, Massachusetts,
    August 16th, 2006: Chelsea District Court magistrate dismissed the case against a Level 3 sex
    offender, and the state later chose not to pursue the case any further.
  • (http://www.acluok.org/LegislatureCourts/DoevLane.htm) Oklahoma: the ACLU settled a suit
    involving a sex offender who was being forced out of a residence after the house had already been
    pre-approved by the sheriff’s office
  • State v. Benjamin David Groves, 05771-AGCR-199229 (Polk Co. Iowa 2006): Polk county judge
    Carol Egly dismisses case; “Residency restrictions are a severe restriction of the defendant’s liberty
    rights…defendant’s rights to substantive due process has been violated.”
  • Doe v. Miller (US Dist. Ct., So. Dist. IA, Davenport Div. Case # 3:03-cv-90067, 2002): The Court
    ruled the law violated Ex Post Facto, the 14th Amdt. procedural and substantive Due Process, and
    the 5th Amdt. safeguard against self-incrimination. Overturned by the 8th US Cir. Ct. of Appeals, but
    see Malloy’s dissenting opinion; he finds the laws violate Ex Post Facto, punitive as historical
    banishment, serves traditional aims of punishment, imposes an affirmative disability or restraint, and
    excessive in meeting its goals.
  • Trudi Gilfillian, “Lower’s sex offender law tossed.” Press of Atlantic City, Dec. 23rd, 2006: Superior
    Court Judge Valerie Armstrong; limits on public safety intrusions and punitive effects
  • Lisa Grzyboski, “Sex Offender Ordinance Void in Cherry Hill.” Courier Post, Cherry Hill NJ, March
    1st, 2007: The third strike against residency restrictions in NJ
  • Mikaloff v. Walsh, Case No. 5:06-cv-00096, US Dist. Ct., ND Ohio, (2007): Strikes down Ohio’s
    residency restrictions as violating Ex Post Fact laws, also noting the laws are punitive and excessive
    to their stated purpose. (as in State v. Burnett)
  • Commonwealth v. Baker, 07-M-00604 (Kenton Dist. C., 4th Div. Apr. 20, 2007, cert. granted Aug.
    23, 2007, 2007-SC-000347). Strikes down Kentucky’s restrictions.
  • State of Florida v. Schmidt, Case # 16-2005-MO-037352-AXXX (Duval Co. FL , Oct. 11, 2007):
    Struck down because the law violated substantive due process
  • Mann v. Georgia Dept. of Corrections, Case # S07A1043 (GA Sup Ct 2007): Georgia's Supreme
    Court strikes down state law as over-broad, punishment, exiles sex offenders from Georgia
  • The Ohio Supreme Court has ruled residency laws do not apply to ANYONE convicted before the
    residency laws passed in March 11, 2003! http://www.ohiojpc.org/text/press/Billings.pdf. In addition
    to Hyle v. Porter and Mikaloff v. Walsh, this is the THIRD case which has struck down residency
    restrictions in Ohio! When I find the brief I will post a link to it. But for those convicted BEFORE the
    law was passed, the residency laws don't apply to you in Ohio.
  • People v. Mosley, Case No. G038379 (Cali. Sup. Ct. 2008): We conclude, based on our analysis of
    the salient Mendoza-Martinez factors, Jessica’s Law’s residency restriction has an overwhelming
    punitive effect. It effectuates traditional banishment under a different name, interferes with the right
    to use and enjoy real property near schools and parks, and subjects housing choices to
    government approval like parole or probation. It affirmatively restrains the right to choose a home
    and limits the right to live with one’s family. It deters recidivism and comes close to imposing
    retribution on offenders... The severe punitive effect of Jessica’s Law’s residency requirement
    clearly outweighs the proclaimed lack of regulatory, non-punitive intent... Because the residency
    restriction is punitive, its imposition by the court increases the penalty for a nonsexual offense
    beyond the prescribed statutory maximum based upon the jury verdict alone.
  • GH v Township of Galloway, A-64/65-08, (NJ Sup Ct May 2009) -- State law precludes any local
    ordinances
  • Indiana v. Pollard, Case # 05S02-0906-CR-305 [Sup. Ct. IN, June 30, 2009] -- Residency laws
    cannot be applied retroactively, violates constitution
  • NEW! Alabama Judge strikes down the law keeping people behind bars due to being unable to find
    a residence before their EOS date, they are arrested for failure to register.
  • NEW! Commonwealth of Kentucky -v- Michael Baker 2007-SC-000347-CL, 10-1-2009 -- KY
    Supreme Court rules residency laws cannot be applied to anyone convicted before July 12, 2006

Summary

Sex offender laws are passed as a result of various myths: that all sex offenders are “pedophiles who
cannot be cured,” who are likely to re-offend, and will target strangers. The media helps propagate these
myths, and politicians rely on the media to pass the laws. Various studies have shown the opposite to be
true, but are largely ignored. Residency restrictions are passed on the assumption “limiting access to
children reduces recidivism.” However, the laws do nothing to prevent sex crimes, but has plenty of
negative consequences, including increasing factors of recidivism and a false sense of security.
Lawmakers have justified sex offender laws by claiming such laws are regulatory/ civil, thus bypassing
constitutional safeguards. However, such arguments are shaky at best, and there have been a number of
successful legal challenges in lower courts.


NEWSCAST OF THE YEAR 2008!

A special kudos to KTKA 49 NEWS and KANSAS DEPT. OF CORRECTIONS secretary ROGER
WERHOLZ (There is also a video in the below link!

http://www.ktka.com/news/2008/may/19/do_residency_restrictions_sex_offenders_work/

Topeka — "They don't work." [My personal note -- How's THAT for a short answer?]

That's the short answer from Kansas Corrections Secretary Roger Werholz when asked why the state
doesn't have laws restricting where sex offenders can live.  "They don't work, and they actually make
things more dangerous rather than make them safer." Werholz and others point to research done in
other states like Minnesota, Florida, Arkansas and Iowa, which actually has a residency restriction in
place. "Where the sheriffs, district attorneys and the victims' services organizations all came out
asking that that legislation be repealed," said Werholz. The reason they asked that the legislation be
repealed is that a lot of the sex offenders who were required to register were absconding supervision,
going underground, because they were losing their places to live.

Kansas has looked at imposing residency restrictions, but has so far decided against it. And the state
has gone a step further and placed a moratorium against any city in Kansas putting in its own
restrictions. "What we want to do is not so much what makes us feel safer, but what makes us
safer," he said. "It's not what the sex offender deserves. It's what we deserve and we deserve to live in a
community and a state where our kids are as safe as possible. Residency restrictions does not deliver
that."

In addition to offenders going "underground" and no longer reporting where they live, other states
have found that residency restrictions can force offenders out of areas where they can get the
treatment they need and away from available jobs.

Iowa County Attorneys Association: Statement on Residency Restrictions (By the way this is
Iowa PROSECUTORS)
http://www.iowa-icaa.com/ICAA%20STATEMENTS/Sex%20Offender%20Residency%20Statement%
20Feb%2014%2006%20for%20website.pdf

Residency Restrictions for Convicted Sex Offenders: A Popular Approach on Questionnable
Footing: http://ssrn.com/abstract=1395347
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