|Sex Offender Residency Restrictions Fact Sheet [Last Update May 31, 2011]
"The Ordinance appears to attempt to ensure public safety, in certain parts of Allegheny County, by isolating all
Megan’s Law registrants in localized penal colonies of sorts, without any consideration of the General Assembly’s
policies of rehabilitation and reintegration." -- Pennsylvania Supreme Court Justice CJ Castille
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
- 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
- Thomas Pauli, Michigan registrant, dies of hypothermia after being denied shelter because shelters
were too close to a school (Tom Rademacher, "Death of homeless sex offender in Grand Rapids poses
questions." Michigan Live, Jan. 29, 2009)
- Julia Tuttle Causeway: Miami Dad County 2500 ordinance forces sex offenders to live under bridges
[John Zarrella and Patrick Oppmann, "Florida housing sex offenders under bridge." CNN, April 6, 2007].
The number of residents as of May 2009 is over 60 [J. Doug Gill, "Sexual predator laws force Miami sex
offenders to create their own tent city." Examiner.com, May 4, 2009]
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.
- 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
- 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
- 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.
- 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
- May 2011, Doe et al. -v- County of Allegheny: Pennsylvania Supreme Court strikes Allegheny County 2500
foot ordinance, stating law created "penal colonies" for former offenders
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!
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
Residency Restrictions for Convicted Sex Offenders: A Popular Approach on Questionable Footing: http: