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
    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
  • 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

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."

I
n 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 Questionable Footing: http:
//
ssrn.com/abstract=1395347
Residency Laws Brochure available for download courtesy of Once Fallen and wwww.sosen.org!
CLICK HERE TO DOWNLOAD THE BROCHURE!
           SEGREGATION 1950                                                              SEGREGATION   2010
(c) 2007-2012 Derek W. Logue/ Once Fallen. No part of this website may be used in any way without expressed written consent of the site owner.
NOTICE! Once Fallen has a new RESIDENCY LAWS page in article format. This new page can be FOUND
HERE. The page you are on will be updated in the near future and will not be neglected, and kept for
archival purposes, but for now, the new Residency laws page is the more up to date version. I hope to
have both pages synchronized soon. http://
oncefallen.com/residencylaws.html