Monday, May 31, 2010
Austin, TX — Texas has been unconstitutionally designating some prison inmates as sexual criminals without giving them an appropriate hearing, the 5th Circuit Court of Appeals ruled Friday.
The ruling could affect as many as 6,900 prison inmates who have never been convicted of a sex offense although they may be sexual predators.
The lawsuit was brought by Raul Meza, who was convicted in the 1982 murder of a 9-year old girl. He was released from prison in 1993 under the state’s mandatory supervision law and then re-incarcerated until 2002.
At that time the Board of Pardon’s and Paroles listed Meza as a sex offender, a condition that was rescinded in 2005. Meza was not allowed to see the evidence against him or have a hearing before the board. "Meza is no longer required to register as a sex offender," the court said.
The 5th Circuit noted that in previous cases it has ruled that inmates cannot be designated as a sex offender without a due process hearing.
The 5th Circuit said the state has an interest in rehabilitating sex offenders before they re-enter society, but it said inmates also have a legitimate interest in making certain the record against them is free of errors. But the state at present does not allow inmates to review the record that is used to designate them as sex offenders or to put additional provisions on their parole.
"We conclude that the current procedure provided to parolees who have never been convicted of a sex offense and who face possible sex offender registration and therapy is constitutionally insufficient," the court said.
"In compiling 6,900 parolee packets, human error will inevitably occur and parolees may be falsely accused of sexually deviant behavior," the court said. "By simply granting the parolees the right to review his packet, such human errors could be avoided."
Texas Department of Criminal Justice spokeswoman Michelle Lyons said the agency plans to review the ruling next week with the Texas Attorney General’s Office to see what step to take next.
Friday, May 28, 2010
I wonder if any of the usual suspects who get riled up about property rights will have any complaints about the intriguing forfeiture ruling from the Eighth Circuit today in US v. Hull, No. 08-4015 (8th Cir. May 26, 2010) (available here). Here is how the decision in Hull starts:
Larry Richard Hull was convicted of two counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(1). The district court ordered forfeiture of Hull’s real property, which consisted of approximately nineteen acres in rural Iowa, pursuant to 18 U.S.C. § 2253(a)(3). Hull appeals the forfeiture order, contending that the evidence was insufficient to support forfeiture of the property under § 2253(a)(3). He also asserts that the district court erred by failing to make adequate findings of fact to determine whether forfeiture was a grossly disproportionate penalty in violation of the Excessive Fines Clause of the Eighth Amendment. We affirm.
Anyone concerned with U.S. property rights and the government's growing power to confiscate property from citizens should be outraged by this ruling.
Nationwide, more than 700,000 convicted sex offenders have registered their whereabouts with local police (..and growing each day). Every state has a sex offender registry of some kind.
But as many states face persistent budget shortfalls, it's become a real question how well law enforcement can keep track of such a large caseload.
"Sometimes federal mandates and state laws get passed without a real sense of what the lingering costs are," says Suzanne Brown-McBride, deputy director of the Council of State Governments Justice Center.
Earlier this month, the Justice Department proposed significant changes to the registration requirements states must meet under the Adam Walsh Act, a 2006 law that was meant to ensure that offender registries across the country adhere to similar standards. Only three states — Ohio, Delaware and Florida — are in compliance. Many of the rest say it imposes costs that are too high for them to bear.
Even some advocates for harsher penalties for sex crimes worry that states will not devote the resources needed to keep track of so many offenders, often for life.
"It's the worst it's ever been because of the economic crisis," says Ernie Allen, president and CEO of the National Center for Missing & Exploited Children, which estimates 100,000 sex offenders are not even currently registered with states. "Our argument lies not in throwing up your hands and saying we can't do this. The answer lies in triage — deciding who represents the greatest risk."
Incarceration's High Cost
The greatest expense, of course, is incarceration. Sex criminals, along with drug offenders, are the fastest-growing part of prison populations, Allen says. Last week, the Supreme Court ruled that Congress had not overstepped its authority in the Adam Walsh Act by allowing federal prisons to hold "sexually dangerous" inmates after their sentences are completed.
The California legislature is currently considering a bill, known as Chelsea's Law, which would allow for life sentences for more categories of sex offenders and lifetime parole for others. The bill has the backing of Republican Gov. Arnold Schwarzenegger and could pass the State Assembly as early as next week.
But state officials have warned that the cost of implementing Chelsea's Law will be high as the lengthier sentences play out. An analysis by the state corrections department found the law would cost $1 million in 2015 but $54 million by 2030. The California Legislative Analyst's Office says costs will run much higher, "at least a few tens of millions of dollars annually within the next decade" and hundreds of millions annually in decades to come.
California's budget shortfall currently stands at $19 billion and the corrections budget is already under deep stress. The state is releasing 6,500 prisoners early this year in part to save money. California is under court order to release 40,000 prisoners over the next two years, and perhaps many more over three years, because of overcrowding.
An Expanding List
At the same time, states have come under some criticism for requiring registration and community notification for an ever-expanding list of offenses — including public urination, "sexting" (minors sending nude pictures to each other via cell phones) and "Romeo and Juliet" cases involving older teens who had consensual sex with younger ones.
The argument from some advocacy groups holds that there are twin dangers associated with registration lists that contain thousands of petty criminals: The registry lists are too long to track effectively and can allow the worst offenders to slip through the cracks.
But purging the lists of minor offenders would not necessarily make them more manageable, says Roxanne Lieb, director of the Washington State Institute for Public Policy. "Sometimes there's discussion about sexting and Romeo and Juliet, but you're talking about tiny numbers," she says. "It would still be a huge number to monitor. It's not going to solve the problem of too many people to watch and keep track of in any way."
Can States Bear The Cost?
Still, even proponents of harsher penalties increasingly say there's value in laws that recognize some sex offenders require more oversight than others. Yet the trend in most states has been to differentiate less between various categories of offenders — moving away from "tiered" systems that imposed different notification requirements depending on the severity of the crime.
And it's the very fact that the Adam Walsh Act puts offenders into three different tiers that has contributed to states' fear about the cost, suggests Alisa Klein, a public policy consultant with the Association for the Treatment of Sexual Abusers. The practical effect of the federal law (AWA) would be to force states to put more offenders into the highest-risk category — leading to much greater administrative and enforcement costs.
If states do not comply by July 26 — itself an extension of last year's deadline – they stand to lose 10 percent of their funding under a congressional grant program for law enforcement. But with only a couple of months left and few states on board, it appears that most are deciding the cost of compliance will be higher than the penalty.
The question now is what sort of calculations states will make moving forward. Congress and state legislatures may have made bigger promises in protecting against sex offenders than they're willing to pay for, or that agencies may be able to deliver.
"What happens is the legislature has basically made a commitment to the citizens regarding how sex offenders will be managed and kept track of," says Lieb of the Washington State Institute for Public Policy. "To the extent they're not able to fulfill those expectations, then it becomes grounds for disappointment and lawsuits and other financial consequences."
Click on map to see how many sex offenders have been registered in each state, and which states have the highest rates of registered sex offenders per capita.
Thursday, May 27, 2010
Lebanon, Ohio -- Police in Lebanon said the abduction and sex assault of a 21-year-old college student has been ruled a hoax. Investigators said Kristen Lamb admitted Thursday during an interview that the alleged abduction and sexual assault was a hoax. They said they attribute Lamb's actions over her family's attention to her brother's recent wedding.
Police said the University of Cincinnati nursing student admitted that she went to the location in a wooded area where she sat for more than 15 hours. She told police that she used zip ties from her father's toolbox to bound her wrists. Lamb also told police that she used a pillow case from her own room to cover her head. Police said Lamb took officers to the wooded area north of her home, where they found the pillow case and one zip tie.
According to police, Lamb said she had no other help in the alleged abduction and sexual assault. Police are now talking with prosecutors about possible criminal charges against Lamb.
This woman must be charged severely as anyone should be after making a false accusation of sex abuse. Her family should be ashamed of her for her inexcusable actions.
See previous posts for important information about this topic.
The Bradley County Sheriff’s Office and U.S. Marshal’s Service is in the process of contacting sex offenders to verify the information they provided for the state’s sex offender registry is accurate and up-to-date.
Five teams of two people each consisting of personnel from the BCSO and U.S. Marshal’s Service started Tuesday verifying offenders live at the address where they are registered and are abiding by any applicable restrictions regarding minor children living in the same home.
The Tennessee Sex Offender Act requires offenders report changes in residence, employment, or enrollment in an educational facility within 48 hours. Offenders on registries in other states are required to register in Tennessee within 48 hours after they establish residence.
The New Hampshire State Senate last week tabled and thus killed HB 1628, a bill to encourage police to actively notify the neighbors whenever a sex offender is released into their midst. A dozen opponents, including several sex offenders, had packed the senate public hearing on the legislation.
In response, the Senate Judiciary Committee voted 3-1 to kill the bill politely by sending it to interim study in an election year. A co-sponsor of the bill, Sen. Sheila Roberge (R-Bedford), voted to effectively defeat her own legislation after hearing the evidence against it.
There was no debate on the later Senate floor motion to table. Whatever infighting led to that outcome happened behind closed doors. After the vote, one senator said people were worried about the consequences to the families of sex offenders if neighbors got into the habit of welcoming every sex offender harshly.
I certainly expected an emotional floor fight in the senate chambers. Sen. Robert Letourneau (R-Derry) missed the committee vote, but he co-sponsored the bill and would have voted for it. Close split decisions are rare in senate committees and often lead to donnybrooks on the senate floor. All 24 senators received an email from me the night before the final vote with a copy of an op ed I had just published in the Laconia Citizen. The full text appears at the bottom of this update.
I’m sorry to say the Senate killed HB 1484 the same way, a bill to bar towns from imposing residency restrictions against sex offenders. I heard conflicting reasons from senators and sources close to the governor for the surprising vote to table this fine legislation. It had sailed through the House and left Senate Judiciary Committee with a 5-0 ought-to-pass endorsement. The sponsors tentatively plan to resubmit the bill for next year. (contact your senators !)
Losing this favorable legislation was palatable in an election year. Only five towns have adopted these residency restrictions, and several have chosen not to enforce them in light of a district court decision last August. It shot down the Dover residency restriction against sex offenders as a violation of fundamental property rights.
It’s gotten surprisingly little attention, but much of Georgia’s harsh and arguably unconstitutional sex offender law was effectively tossed out last Friday.
That’s when Gov. Sonny Perdue signed House Bill 571, the near-total rewrite of the 2006 state law authored by Christian Coalition head-turned-politician, Rep. Jerry Keen, R-St. Simon’s. HB 571, in turn, was introduced and shepherded through the Legislature by new House Speaker David Ralston, R-Blue Ridge.
So, as of Friday, what’s changed ? Well…
* Sex offenders can’t be forced from their homes or apartments if a park or daycare opens nearby.
* Judges now have discretion to exempt some registered sex offenders from restrictions on where they’re allowed to work.
* Sex offenders are no longer be prohibited from taking part in such church activities as choir and Bible study.
* Homeless sex offenders no longer risk going to prison for failing to have a fixed address.
* Folks won’t be added to the sex-offender registry for a misdemeanor.
The new law also — and this is a biggie — allows judges to remove convicted sex offenders from the state registry after they’ve completed their sentence.
Perhaps just as importantly, the new law provides for sex offenders to be evaluated in terms of their relative risk to the public. For the past few years, the only distinction the law made was in the case of “sexual predators” — serial rapists and child molesters. Everyone else was dumped into the same basket, regardless of whether they’d been convicted of stalking or having sex with an underage girlfriend.
Law-enforcement officials, from the GBI to local sheriffs, have long asked legislators to create a mechanism to differentiate between dangerous pervs and folks like Wendy Whitaker, our cover subject from 2006, who has remained on the state registry despite the fact that she was convicted under a law that was subsequently overturned.
Which brings us to the new law’s shortcomings. For one, it doesn’t address the issue of school bus stops. You’ll recall that, under Keen’s law, sex offenders were prohibited from living near a “designated school bus stop.” That provision was enjoined by a federal judge, however, after it was realized that school systems frequently change bus routes and that there’s no official designation process for bus stops. At this point, I can’t imagine the state would continue to fight to salvage a provision that’s never been enforced.
More troublesome is the fact that the new law applies only to sex offenders convicted since July 2008, meaning it still won’t help folks like Whitaker. Those and other improvements to the law will have to be shaped by future lawsuits.
We say, bring ‘em on !
View Georgia General Assembly HB 571 here.
05/20/10 - House Date Signed by Governor
A BILL to be entitled an Act to change and enact provisions of law relating to classification of sexual offenders, sexual offender registration, and restrictions on sexual offenders' residences, workplaces, and activities; to amend Code Section 5-6-35 of the O.C.G.A., relating to appeals requiring an application for appeal, so as to make such Code section applicable to appeals reviewing a decision of the Sexual Offender Registration Review Board; to amend Article 1 of Chapter 10 of Title 17 of the O.C.G.A., relating to procedures for sentencing in criminal cases, so as to provide that, classification shall be by the sentencing court rather than the Sexual Offender Registration Review Board; to amend Article 2 of Chapter 1 of Title 42 of the O.C.G.A., relating to classification and registration of sexual offenders and regulation of the conduct of such offenders, so as to revise provisions relating to registration; to provide for an effective date; to repeal conflicting laws; and for other purposes.
Readers in states other than Georgia need to pay attention to this report. Only when the people fight these laws will lawmakers back down. If you are not actively participating in the fight against these abusive sex offender laws, then you are part of the problem!
Wednesday, May 26, 2010
Gov. Charlie Crist signed a bill today that strengthens Florida's laws against sex offenders and predators.
Crist signed the bill — which makes it illegal for sex offenders and predators to loiter or prowl within 300 feet of a place where children congregate — in front of several-dozen parents, teachers and staff at Timber Lakes Elementary School. (How does a police officer define loitering? It is a subjective determination and is open to abusive application)
The legislation also makes it illegal for sex offenders or predators who were previously convicted of a crime against children, to:
• Approach a child in a public park with the intent to engage in sexual conduct or sexual communication
(It is illegal to do that in any place at any time, already)
•Be at a child care facility or school without prior notification or approval
(Many people required to register as sex offenders are parents of school children and have every right to be at their child's school just like any other parent)
The bill also limits sex offenders and predators from participating in activities that would be attractive to children, such as dressing up in costumes like Santa Claus or the Easter Bunny.
(This is just plain ridiculous, unconstitutional and unenforceable in all but public settings)
Crist noted the legislation was passed unanimously.The bill signing prompted applause from the parents and staff who gathered in the school's media center to see the governor. "Now we get to protect our children more," Crist said. (He is clearly pandering for political advantage, which is disgraceful and ignorant of the facts that only 2% of child sex offenses are committed by strangers)
Judges have ruled the system that places sex offenders in Scotland on a register for life with no way of being removed is in breach of their human rights.
In a landmark judgment involving a convicted sex offender who was placed on the sex offenders register indefinitely at the age of 15, three judges said the scheme, as it stands, is incompatible with the European Convention on Human Rights (ECHR).
It means hundreds of people in Scotland could appeal their cases and challenge their inclusion on the register, while Scottish ministers will now have to change the law to bring the system into line with European legislation.
In future, the system will have to allow offenders to be able to apply for their removal from the register if they can prove they no longer pose a risk.
The decision follows the judgment last month of the Supreme Court, the highest in the land, to unanimously dismiss a Home Office challenge in relation to two English offenders who were on the register for life.
Lawyers for 52-year-old Angus Thompson and a teenager, who raped a child when he was aged just 11, successfully argued that the lack of opportunity to demonstrate they had reformed was a breach of their human rights.
The new UK Government may now have to adapt legislation to make provision for those who want their inclusion on the register re-examined.
The sex offenders register contains the details of anyone convicted, cautioned or released from prison for a sexual offence against children or adults since September 1997, when it was set up.
There are 3913 registered sex offenders in Scotland, of which 1631 are subject to the notification requirements for an indefinite period (for life).
In the Scottish case, Lord Hamilton, the lord president, Lord Reed and Lady Smith upheld the appeal of Mr A – who pled guilty in 1993 at the High Court in Airdrie to two charges of assault with intent to rape, one of which included an element of robbery. He was 14 at the time of the offences.
While the case is to be continued later next month – to decide on how it affects ministers and to what extent it will be applied retrospectively – lawyers said it was agreed yesterday that Scottish ministers will have to change the law.
Tony Kelly, his solicitor, said: “This outcome was inevitable given the recent declaration by the United Kingdom Supreme Court that the Sex Offender Notification Scheme, under the Sexual Offences Act 2003, was incompatible with convention rights – in that it failed to provide a mechanism for review to enable offenders to apply for their removal from the register.
“The court has continued the matter to discuss and decide upon the question of the remedy to be afforded to: the particular petitioner in this case; and Scottish ministers.
“This has important ramifications in relation to sex offender notification for the past and in the future.”
Kelly added: “Scottish ministers’ recognition that legislation will require to be forthcoming (and that in early course) is, perhaps, an indicator of the significance of this ruling for the Sex Offender Registration Scheme in Scotland.”
Offenders are placed on the register for life if they are sentenced to 30 months or more in jail. Any convicted offender on the register has to notify the police of their personal details, any change of address and when they travel abroad.
A Scottish Government spokesman said: “We will consider the impact of any judgment on the notification regime as it relates to offenders subject to indefinite notification. The objective is to have in Scotland a notification system that will be compatible with Article 8 of the European Convention on Human Rights.
“The Scottish Government’s priority is protecting the public. Scotland has one of the most robust systems of managing sex offenders in the world. The notification requirements form an important part of this system. They provide an invaluable tool to the authorities in allowing the police to keep track of the whereabouts of individual sex offenders; and managing the risk of known sex offenders.”
Once again, High Courts in other countries are far ahead of U.S. Courts. The European Court of Human Rights gets it. The have recognized much sooner than U.S. Courts, that applying lifetime sex offender registration with no possibility or means to prove their way off the list, is a violation of rights. Now, when will U.S. Courts get it?
In a vote of 4-1, Boerne City Council made it unlawful for registered sex offenders to reside within 1500 feet of places where children gather.
Prior to this, state law prohibited registered sex offenders from going within 1000 feet of just schools or parks. Boerne has expanded that list to include public and private playgrounds, daycares, public libraries, and more.
The vote came after an hour and a half of debate. One councilman called it a very decisive issue for the city. The community seemed split down the middle in their support for it or against it.
Those against it argued it would severely limit the areas in which registered sex offenders could live. Thus, it would create a cluster of sex offenders. That would lower property values in those areas, and make it unsafe for the children who already live in those areas.
Another big argument against the ordinance was that it was not ethical or even an effective way to protect children. The councilman who voted against it said, "The threat to our children is so much less the guy in the trench coat hiding under the street light. As it is, it's the people they already know. The vast majority of crimes to children are committed by the people they know."
Council also voted to increase the fine for anyone who violates this ordinance from $500 to $2000.
As reported, about half those residents understand that these residency limits do not work, and cause unintended negative consequences for the city. Sadly, their city council is still ignorant about these facts and is still hand-picking low-hanging political fruit from the tree.
A new state law now lets judges put video voyeurs on the sex offender registry. Video voyeurism is classified as a felony. It's when someone records another person in the nude without their consent, makes copies of the recording, or distributes them.
The law says if a person is convicted of video voyeurism, a court can order them to register with the Department of Corrections as a sex offender.
"Hopefully for the persons with cell phones and all these things, persons thinking of taking an inappropriate picture and putting it on the Internet, that maybe they'll think twice," Representative Ted Zigmunt said.
"It might take a little time, but as soon as you start seeing persons' pictures out there on the sex offender registry it's going to hit home for a lot of people," Brown County sheriff's captain Jeff Sanborn said.
This is just more dilution of the stated intent of these registries. With so many people listed on sex offender registries, their original purpose is lost.
Madison, Wisconsin - A state appeals court changed the rules Wednesday for exempting young adults from registering as convicted sex offenders, if they’re caught having consensual sex with minors.
The law says offenders do not have to register if they’re less than 4 years older than their victims. But the 2nd District Appeals Court in Waukesha said the four-year calculation should be based on the actual birthdays of the 2 parties – and not their calendar year ages.
It means that Matthew Parmley of Sheboygan must register with the state as a sex offender – because he was 4 years and 4 months older than the girl he was convicted of having sex with in 2004. Parmley had asked that be exempt from registering – and while a circuit judge agreed with him, the appellate court did not.
Appeals Judge Daniel Anderson said the old formula allowed for a nearly 5-year age difference in some cases, and that was not the intent of the law. There was no immediate word on whether Parmley would appeal to the State Supreme Court.
Elko, Nevada — A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison.
Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.
With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.
The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime.
“The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.
Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor. “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.
After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. (After? You should have questioned this before sentencing, you idiot)
Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008. (If this is a fact, then why was she not charged on this allegation? Because it was not prosecuted , it is unlikely to be true. )
Taylor claimed she was intoxicated and doesn’t remember what happened that night. She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.
As long as murderers get more lenient sentencing than sex offenders do, this societal sex offender hysteria should eventually collapse. As it is now, sex offenders are encouraged by the legal system to kill their victims rather than allow them to live. Is that the incentive we want? If they simply murder the victim, there is no one to testify against them. They would get a much lighter sentence and be completely "free" after completing their sentence, rather than being listed on a sex offender registry for the remainder of their life.
Tuesday, May 25, 2010
The father of murdered Escondido teenager Amber Dubois wants all convicted sex offenders to carry special identification. Moe Dubois wants the state to require all sex offenders carry a distinctive driver's license or state-issued card that would be branded with a special mark indicating that person had been convicted of a sex crime.
Dubois says he knows the legislation could meet resistance at the state capitol by those who may argue more restrictions won’t make communities safer or those who say the law would infringe on the civil liberties of sex offenders. Others could be concerned about the potential cost.
The driver's license measure is part of a four-bill package aimed at cracking down on sex offenders -- and Moe Dubois says he's ready to fight to try and push them through. Dubois is scheduled to introduce his legislation proposals in Long Beach at noon today.
California wouldn't be the first state to impose a law branding ID cards.
In Delaware sex offenders get a new driver's license after release from prison marked with the letter "Y" designating them as someone convicted of a sex crime.
In Louisiana people convicted of certain sex crimes are issued licenses with "SEX OFFENDER" printed in bold on the ID.
Yellow Badge: The yellow badge (or yellow patch), also referred to as a Jewish badge, was a cloth patch that Jews were ordered to sew on their outer garments in order to mark them as Jews in public. It is intended to be a badge of shame associated with antisemitism. In both Christian and Islamic countries, persons not of the dominant religion were intermittently compelled by sumptuary laws to wear badges, hats, bells or other items of clothing that distinguished them from members of the dominant religious group.
The yellow badge that was compulsory in the Middle Ages was revived by the German Nazis.
Monday, May 24, 2010
At first glance, the Supreme Court ruling on Monday allowing dangerous sexual offenders in psychiatric units to be locked up after they've completed their prison sentences until they are considered safe seems logical. After all, if they are deemed a danger to society, they must be kept away from society. That's simple to understand. Many states use what is called civil commitment to hold dangerous sexual offenders after their prison terms have expired.
But considered further, the ruling is troubling as it dangerously blurs the line between the criminal justice system and the mental health system.
If a sex offender is in prison for a sex crime, he is being punished for his crime. If a sex offender is in a psychiatric unit following his prison sentence, then the implication is that he should have qualified for a verdict of not guilty by reason of insanity. A prisoner does not become mentally ill the moment he leaves prison. The mental state of the offender should be established at the onset. If it is determined that he is a threat to the public and will continue to pose a threat by virtue of his mental state, then civil commitment should be used.
The ruling underscores the vexing problem of how we as a society need to reevaluate the categorization and treatment of sex offenders. It is enduringly difficult finding the balance between the safety of society as a whole versus the rights of an individual, especially if that individual has paid his debt to society.
"The fact that the federal government has the authority to imprison a person for the purpose of punishing him for a federal crime — sex-related or otherwise — does not provide the government with the additional power to exercise indefinite civil control over that person," said Justice Clarence Thomas in the dissenting opinion.
While it is tempting to say to the federal government "go for it" when it comes to the open-ended confinement of sexual offenders by any means, we must be wary of a government overstepping its boundaries when it comes to removing the rights of select groups of citizens.
There is a recent — and glaring — history of a state using the mental health system to impose its will on the public. In the Soviet Union, psychiatric hospitals were de facto prisons used to punish political and religious dissenters. Let's keep our society safe, yes, but not at any cost.
by Sarah E. Agudo: Northwestern University - School of Law; Harvard University - John F. Kennedy School of Government
Northwestern University Law Review, Vol. 102, No. 307, 2008 (download paper here)
Sex offenders are among the most hated members of our society. In recent years, laws protecting society from these offenders have grown increasingly broad; the restrictions have become more severe and applicable to more people. Residency laws, which dictate where sex offenders can live upon release from prison or while on parole, exemplify this trend. Twenty-two states in the United States currently have some form of residency law that restricts where sex offenders can live. For example, many states prohibit sex offenders from living within 1000-2500 feet of schools, bus stops, or daycare centers. Today, public outrage and political risk-aversion have driven these laws to the outer boundaries of constitutionality. It is likely that these recent expansions of sex offender legislation and the ensuing litigation over their constitutionality will prompt a Supreme Court decision establishing the limit on states' control over their released offenders. Reasonable and constitutionally acceptable residency laws may well exist. The aim of this Comment is not to call for the abolition of all residency laws, but rather to promote a cogent dialogue regarding the upper bounds of their effectiveness and constitutionality in order to provide a framework for future legislation. Although, in many areas of law, democratic processes can adequately safeguard those bounds, the public outrage against sex offenders threatens to chill the usual political protections and justifies careful judicial oversight.
There are laws in more than 20 states and hundreds of communities limiting or proscribing where convicted sex offenders may live and work. See Lawsuits Test Crackdown On Sex Criminals, Stateline.org, April 18, 2008; Sex-Offender Residency Laws Get Second Look, USA Today, Feb. 26, 2007. These residency zones or exclusions are frequently imposed in conditions of probation and parole or as a facet of registration laws. They raise constitutional issues in addition to the practical problems created by shutting off access to family members, affordable housing, employment, therapeutic treatment and public services.
This article collects recent court decisions, research papers and reports that have addressed the efficacy of exclusionary zoning laws and the impact of these restrictions on sex offenders reentering their communities. For additional resources on Megan's Law and the Adam Walsh Act, see generally Ken Strutin, Sex Offender Laws, LLRX, Sept. 28, 2007; and Sex Offender Resources (NACDL).
Restrictions have been challenged on a variety of constitutional grounds, such as substantive due process, equal protection, right to travel, ex post facto, bill of attainder (e.g., banishment), and taking of property. See Anti-Sex-Offender Zoning Laws Challenged, Stateline.org, Dec. 9, 2006. Recent appellate decisions show how these laws fare in the gristmill of constitutional analysis, and offer insight into possible paths to Supreme Court resolution. See Exactly When And How Will Scotus Confront Sex Offender Residency Restrictions?, Sentencing Law and Policy Blog, May 14, 2008.
- Georgia: Mann v. Dept. Of Corrections, 282 Ga. 754, 653 S.E.2d 740 (2007)
"Although we earlier determined appellant's property interest in his rent-free residence at his parents' home to be 'minimal,' Mann, supra, 278 Ga. at 443 (2), we find appellant's property interest in the Hibiscus Court residence he purchased with his wife to be significant. As a registered sex offender, the locations where appellant may reside are severely restricted by OCGA § 42-1-15 (a); as recognized by other states, those locations may also be subject to private limitations, see Mulligan v. Panther Valley Prop. Owners Assn., 766 A2d 1186 (N.J. Super. Ct. App. Div. 2001) (discussing homeowner association covenants prohibiting sale of property to sex offenders), and we note that HN5 nothing in OCGA § 42-1-12 et seq. expressly precludes Georgia cities and counties from enacting additional restrictions. See Wernick, In Accordance with a Public Outcry: Zoning Out Sex Offenders Through Residence Restrictions in Florida, 58 Fla. L. Rev. 1147, 1163-1164 (2006) (discussing ordinances enacted by local governments in Florida that have expanded state statutory buffer zones). Nevertheless, appellant and his wife were able to find and purchase a house that complied with the residency restriction in OCGA § 42-1-15. The evidence is uncontroverted that the Hibiscus Court property was purchased for the sole purpose of serving as their home. OCGA § 42-1-15, by prohibiting appellant from residing at the Hibiscus Court house, thus utterly impairs appellant's use of his property as the home he shares with his wife."
- Illinois: People v. Morgan, 377 Ill. App. 3d 821, 881 N.E.2d 507, 317 Ill. Dec. 339 (Ill. App. Ct. 3d Dist. 2007)
"Defendant, [a convicted sex offender] . . . , was convicted following a jury trial of knowingly residing within 500 feet of a school building that persons under the age of 18 attended (720 ILCS 5/11-9.3(b-5) (West 2006). Defendant was sentenced to 30 months' probation and fined. Defendant appeals his conviction and fines. We affirm in part and vacate and remand in part. Turning to the subsection at issue in the instant case, we adopt the reasoning and analysis employed by the Fifth District in Leroy and apply it to the subsection under consideration before us. In doing so, we find that the law is constitutional. We conclude that, in accordance with the analysis employed by the court in Leroy, section 11-9.3(b-5) does not constitute an impermissible ex post facto law. Therefore, defendant's argument must fail."
- Indiana: State v. Pollard, No. 05A02-0707-CR-640 (Ind. Ct. App. May 13, 2008)
"For all of these reasons, we hold that Indiana Code section 35-42-4-11, otherwise known as the residency statute, is an ex post facto law as applied to a person in Pollard’s circumstances. The residency statute is a criminal statute that criminalizes residency because of the resident’s status as a sex offender. In addition, the statute’s effect is punitive because it is applied retroactively to sex offenders who established ownership and property rights in a residence prior to the effective date of the statute, and because it forces them to relinquish some or all of their ownership rights or face a felony charge. Perhaps most importantly, Indiana’s residency statute does not exempt ownership established prior to the statute, provide a constitutional taking procedure, or exempt ownership impacted by later construction of a protected facility or area."
- Iowa: Wright v. Iowa Dept Of Corrections, No. 01 / 06–0863 (Iowa April 11, 2008)
"Floyd Wright, who was convicted of a sexual offense against a minor in 1977, challenges the district court's ruling that he was subject to the residency restrictions of Iowa Code section 692A.2A (2005), which prohibits sex offenders from residing within two thousand feet of certain facilities such as schools. Wright contends that he is not subject to the statute because he was not a "registered" sex offender. Even if the statute were applicable, Wright contends it would violate his equal protection and substantive due process rights and would be invalid as a bill of attainder. The district court rejected his arguments, and so do we."
- Missouri: R.L. v. Missouri Department Of Corrections, 245 S.W.3d 236 (Mo. 2008)
"The same long-standing principles applied in Phillips apply in this case. As with the registration requirements in Phillips, the residency restrictions at issue in this case impose a new obligation upon R.L. and those similarly situated by requiring them to change their place of residence based solely upon offenses committed prior to enactment of the statute. Attaching new obligations to past conduct in this manner violates the bar on retrospective laws set forth in article I, section 13."
- Ohio: City of Middleburg Heights v. Brownlee, 2008 Ohio 2036, 2008 Ohio App. LEXIS 1739 (Ohio Ct. App., Cuyahoga County May 1, 2008)
"Defendant John F. Brownlee, Jr. (appellant) appeals the court's granting an injunction prohibiting him from residing within 1,000 feet of a school. After reviewing the facts of the case and pertinent law, we reverse the court's ruling and order the injunction vacated. In the instant case, appellant bought his home in 1972; he committed the offensive acts in February and March 2003; and the statute's effective date is July 31, 2003. Accordingly, the court erred when it applied R.C. 2950.031 to appellant, and his first assignment of error is sustained."
- Ohio: Hyle v. Porter, 117 Ohio St. 3d 165, 2008 Ohio 542, 882 N.E.2d 899 (2008)
"We hold that HN1R.C. 2950.031 does not apply to an offender who bought his home and committed his offense before the effective date of the statute. The judgment of the First District Court of Appeals is reversed."
- United States:Validity Of Statutes Imposing Residency Restrictions On Registered Sex Offenders, 25 ALR6th 227
"In recent years, a number of state or local statutes imposing residency restrictions on registered sex offenders have been enacted. In Doe v. Miller, 405 F.3d 700, 25 A.L.R.6th 695 (8th Cir. 2005), cert. denied, 126 S. Ct. 757, 163 L. Ed. 2d 574 (U.S. 2005) (applying Iowa law), the court of appeals held that an Iowa statute that prohibited persons who had committed a criminal sex offense against a minor from residing within 2,000 feet of a school or child care facility, did not violate the Due Process Clause of the Fourteenth Amendment, was not retroactive criminal punishment in violation of the Ex Post Facto Clause, did not interfere with the right of sex offenders to travel, and did not violate the right against self-incrimination under the Fifth Amendment. This annotation collects and summarizes those cases in which the courts have determined the validity of state or local statutes imposing residency restrictions on registered sex offenders."
Scholars and researchers have examined the effectiveness of residency restrictions on sex offender behavior and its lawfulness as punishment.
- Banishment By A Thousand Laws: Residency Restrictions On Sex Offenders, 85 Wash. U. L. Rev. 101 (2007)
"Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Nineteen states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed 'internal exile.' Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America. Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society."
- Constitutional Collectivism And Ex-Offender Residence Exclusion Zones, 92 Iowa L. Rev. 1 (2006)
"The US has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that "the peoples of the several states must sink or swim together." The article discusses the continued need for this tenet in the face of state expulsionist tendencies and invokes in support the Court's decisions invalidating state laws barring entry of the poor and solid waste. In both instances, the Court, while acknowledging the exigencies motivating states, invalidated the laws because they betrayed the national imperative of dealing with challenges faced by all states. As the article establishes, a kindred understanding and resolve is now necessary as states seek to isolate themselves from the shared national responsibility of offender reentry."
- Controlling Sex Offender Reentry: Jessica's Law Measures In California (SSRN 2006)
"This paper examines current research on the effectiveness of electronic monitoring and residential restrictions in preventing recidivism amongst sex offenders in California, as well as the experiences of other states that have experimented with these techniques. The paper focuses on four questions: 1) What are the trends in California sex offense data and other states with sizable sex offender populations? 2) What does research and other state experiences tell us about the effectiveness of electronic monitoring in preventing recidivism and absconding of sex offenders? 3) What does research and other state experiences tell us about the effectiveness of residential restrictions in preventing recidivism of sex offenders? 4) In light of California's sex offender population, and CDCR's current methods for supervising paroled sex offenders, what challenges would CDCR and other state agencies likely face in implementing expanded electronic monitoring and residential restrictions?"
- Does Residential Proximity Matter? A Geographic Analysis Of Sex Offense Recidivism, 35 Crim. Just. & Behavior 484 (2008)
"In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers. Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism."
- Has Georgia Gone Too Far-Or Will Sex Offenders Have To?, 35 Hastings Const. L.Q. 309 (2008) $
"Given the wide range of issues that were presented by Georgia's latest sex offender residency restriction, this note will discuss how Georgia's new residency restriction statute, as originally written, violated (1) the Ex Post Facto Clause, (2) the Eighth Amendment, (3) Procedural Due Process under the Fourteenth Amendment, and (4) the Free Exercise Clause of the First Amendment. Lastly, the note will analyze potential issues under the Dormant Commerce Clause and other policy considerations to argue that, in practice, the use of such harsh residency restrictions might make for a more dangerous situation for children, sex offenders, and the rest of society."
- How To Stop A Predator The Rush To Enact Mandatory Sex Offender Residency Restrictions And Why States Should Abstain 86 Or. L. Rev. 219 (2007) "A new trend in state legislation emerged as twenty-two states entered legally unsettled waters by enacting various residency restrictions for convicted sex offenders. Legislators tout the need for such residency restrictions to reduce child sex offenders' opportunities for contact with potential victims. However, courts disagree whether these new laws are constitutional, and research increasingly questions their utility. This Comment will first look at the primary legal questions facing the courts, examining various legal challenges to state residency restrictions and the limited research surrounding the efficacy of such restrictions. Next, this Comment will address the 2006 California ballot measure Proposition 83, which serves as a practical case study of these new restrictions and their unsettled legal ramifications. Finally, this Comment will examine Oregon's nonmandatory residency restriction and explain why it serves as the best model for achieving the goals of protecting our children, monitoring the sex offender population, and withstanding judicial review. Ultimately, this Comment will attempt to show that research on mandatory residency restrictions may affect the way future courts rule on these restrictions. This Comment will also attempt to persuade those presently in favor of mandatory residency restrictions that more flexible, nonmandatory restrictions will increase the likelihood of achieving their stated objectives."
- In The Zone: Sex Offenders And The Ten Percent Solutions (SSRN 2008)
"This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause. The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional."
- Irregular Passion: The Unconstitutionality And Inefficacy Of Sex Offender Residency Laws, 102 Nw. U. L. Rev. 307 (2008)
"The Comment concludes that non-tailored residency laws are unconstitutional. These same laws are also unwise and ineffective in terms of their stated goals, rendering them poor policy decisions. Given their ineffectiveness and the threat they pose to fundamental rights, this Part argues that it is important that courts assess the laws rigorously and without bias, particularly because the political outlash against sex offenders is immense, irrational, and hard for legislators to reverse. Until courts correctly deem these non-tailored residency laws unconstitutional, both the rights of sex offenders and the safety of their potential victims will be at risk due to the crippling political outrage surrounding the issue."
- Never Going Home: Does It Make Us Safer? Does It Make Sense? Sex Offenders, Residency Restrictions And Reforming Risk Management Law, 97 J. Crim. L. & Criminology 317 (2006)
"One of the most hotly debated issues in criminal law today is how to manage the perceived risk of sex offenders loose in the community. Beyond mandatory registration and community notification, over a dozen states, including Illinois, have enacted residency restrictions that forbid sex offenders from living within a certain distance of schools, parks, day care centers, or even "places where children normally congregate." This Comment scrutinizes these laws to see if they make sense, and more importantly, if they make us safer. The answer to both questions appears to be no. After detailing the statistical, political, and constitutional problems that render these restrictions ineffective and unconstitutional, I shift my attention to envisioning a better system of risk management. I end by critically examining best practice methods of states across the country that more effectively allocate finite resources to identify and control high risk offenders to prevent them from harming again, while allowing the vast majority of offenders who are low risk to better re-integrate into and become productive members of society."
- Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, 40 Akron L. Rev. 339 (2007)
"This article will look at why sex offenders are treated differently than other criminal offenders. Sex offenders are subject to sanctions and prohibitions above and beyond what other criminal offenders must face. Next, the article will look at some of the residence and employment restrictions placed on sex offenders to determine if they are rationally related to any legitimate government interest without overbearing the sex offender's constitutional rights. Finally, the article will offer an alternate means of sex offense prevention that encourages sex offender assimilation back into society instead of further exclusion."
- Reentry And Reintegration: Challenges Faced By The Families Of Convicted Sex Offenders, 20 Fed. Sent. R. 88 (2007) $
"Our article will focus on the adult family members of convicted sex offenders and the many challenges they face in reuniting with their loved ones post-incarceration. We will explore the general knowledge on families of prisoners and incorporate preliminary findings from our ongoing research on the experiences and needs of families of convicted adult, male sex offenders."
- Sex Offender Re-Entry: A Summary And Policy Recommendation On The Current State Of The Law In California And How To 'Safely' Re-Introduce Sex Offenders Into Our Communities (SSRN 2006)
"This paper attempts to provide a comprehensive review of the current and pending sex offender legislation in California, examine their effectiveness or ineffectiveness and any possible loopholes, and conclude with a broad recommendation on where the state of California's law and policies surrounding the safe release and supervision of sex offenders into the community should be heading. In doing so, the paper will rely on current statistics on sex offenders in California, policy recommendations by various organizations on this topic, media profiles and case histories of recent real-life sex crimes, and actual data from the California online sex offender registry to discover the profile of the "real" sex offender in California. This paper will also examine the roll of public outcry and moral panic in the implementation of these laws and the effect this may have had on their specific provisions and eventual effectiveness in order to provide a more comprehensive review of the impetus behind such regulations and hopefully to inform future legislation of the lessons of the past."
- Sex Offender Residence Restrictions: Sensible Crime Policy Or Flawed Logic?, 71 Fed. Prob. 2 (Dec. 2007)
"Although 22 States now have laws that restrict where sex offenders can live, with 1,000 to 2,500-foot exclusionary zones being most common, research on the effects of sex-offender residence restrictions is limited. Only one study (Minnesota Department of Corrections, 2007) has specifically examined the relationship between residence restrictions and reoffending. That study was prospective, because no such law was in place where the study was conducted (Minnesota). There is a growing body of evidence, however, that residence restrictions have unintended consequences for sex offenders and communities. These adverse effects include homelessness for sex offenders; transience; lack of accessibility to social support, employment, and rehabilitative services; registry invalidity; and the clustering of sex offenders in poor, rural, or socially disorganized neighborhoods. Residence laws are often based on erroneous assumptions about sex-offender high reoffending rates and the belief that most sex offenders target strangers for victimization. In addition, they are rarely coupled with the administration of proven risk-assessment instruments and procedures. In the absence of evidence that residence restrictions are effective in achieving their intended goal of improved community safety, their unintended adverse effects may outweigh their benefits. It is crucial that research be conducted to determine whether residence restriction laws are effective."
State legislatures and government bureaus along with civil rights and other interested groups have published reports on the outcomes of residence and employment restrictions for sex offenders.
- IX. Residency Restriction Laws in No Easy Answers: Sex Offender Laws In The U.S.
"The inability of convicted sex offenders to find housing when they are released from prison has become a significant barrier to their successful reintegration into society. This is particularly problematic for registrants who have limited resources, or for those who because of work, community, or family obligations want to live in particular locations. Residency restrictions prevent offenders from living in the areas closest to jobs and public transit, since schools, daycare centers, and parks are often built in the center of main residential areas of cities and towns."
(Human Rights Watch 2007)
- Impact Of Residency Restrictions On Sex Offenders And Correctional Management Practices: A Literature Review (California Research Bureau 2006)
"Today some communities in the United States banish sex offenders from living in their midst, resulting in a difficult dilemma: where can these offenders live, and where can they best be supervised and receive treatment, if available? This report describes local ordinances and state statutes restricting where a sex offender may reside, discusses what research has found so far about the success of these restrictions, considers the impact that these restrictions are having on criminal justice management practices and sex offender treatment regimens, and examines constitutional implications."
- Residential Proximity & Sex Offense Recidivism in Minnesota (Minnesota Department of Corrections 2007)
"In an effort to curb the incidence of sexual recidivism, state and local governments across the country have passed residency restriction laws. Designed to enhance public safety by protecting children, residency restrictions prohibit sex offenders and, in particular, child molesters from living within a certain distance (500 to 2,500 feet) of a school, park, playground or other location where children are known to congregate. Given that existing research has yet to fully investigate whether housing restrictions reduce sexual recidivism, the present study examines the potential deterrent effect of residency restrictions by analyzing the sexual reoffense patterns of the 224 recidivists released between 1990 and 2002 who were reincarcerated for a sex crime prior to 2006." See also Sex Offender Recidivism in Minnesota (Minnesota Department of Corrections 2007).
- Sex Offender Residence Restrictions (Report to the Florida Legislature 2005)
"Sexual violence is a serious social problem and policy-makers continue to wrestle with how to best address the public's concerns about sex offenders. Recent initiatives have included social policies that are designed to prevent sexual abuse by restricting where convicted sex offenders can live, often called "sex offender zoning laws," or "exclusionary zones." As these social policies become more popular, lawmakers and citizens should question whether such policies are evidence-based in their development and implementation, and whether such policies are cost-efficient and effective in reaching their stated goals."
- Statement On Sex Offender Residency Restrictions In Iowa (ICAA 2006)
"The Iowa County Attorneys Association believes that the 2,000 foot residency restriction for persons who have been convicted of sex offenses involving minors does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measures."
"The political outlash against sex offenders is immense, irrational, and hard for legislators to reverse."
-Sarah Agudo in the Northwestern University Law Review, 2008
Myth: Sex offenders are dirty old strangers who steal kids from playgrounds
An Ohio prison intake report on sex offenders imprisoned in 1992 revealed that 2.2 percent of child molesters were strangers to their victims, and 89 percent of perpetrators had never been convicted before.
In their 1993 textbook, The Juvenile Sex Offender, Howard Barbaree and colleagues estimated that teenagers perpetrated 20 percent of all rapes and half of all child molestations.
A 2006 report for the Ohio Sentencing Commission said 93 percent of molestation victims were well known to their perpetrators, over half the offenders victimized close relatives, and 93 percent of molesters had never been arrested for a previous sex crime.
A December 2009 study by David Finkelhor of UNH and colleagues for the US Justice Department analyzed national sex crime data from 2004. That year the estimated population of underage sex offenders was 89,000, and they had committed 35.8 percent of all sex crimes reported to police. One in eight juvenile sex offenders was under age 12. The study said that between 85 and 95 percent of young offenders would never face another sex charge.
Myth: Residency restrictions are harmless to sex offenders and protect kids
A 2005 survey of 135 Florida sex offenders by researchers Jill Levenson and Leo Cotter found that residency restrictions had forced 22 percent of this group to move out of homes they already owned. 25 percent were unable to return to their homes after release from prison. Respondents agreed in varying degrees with these statements about the impact of residency restrictions on their lives:
* I cannot live with supportive family members. 30%
* I find it difficult to find affordable housing. 57%
* I have suffered financially. 48%
* I have suffered emotionally. 60%
* I have had to move out of an apartment that I rented. 28%
The Iowa County Attorneys Association issued a position paper in 2006 opposing a 2,000 foot residency restriction against sex offenders from places where kids congregate. Among many criticisms, the prosecutors said, “Law enforcement has observed that the residency restriction is causing offenders to become homeless, to change residences without notifying authorities of their new locations, to register false addresses or to simply disappear. If they do not register, law enforcement and the public do not know where they are living. The resulting damage to the reliability of the sex offender registry does not serve the interests of public safety.”
A 2007 report by the Minnesota Department of Corrections tracked 224 sex offenders released from prison between 1999 and 2002 who committed new sex crimes prior to 2006. The first contact between victim and offender never happened near a school, daycare center or other place where children congregate. The report concluded, “Not one of the 224 sex offenses would likely have been deterred by a residency restrictions law.” The study warned that these laws isolate offenders in rural areas with little social and treatment support, with poor transportation access and with few job opportunities. The resulting increase in homelessness makes them harder to track and supervise. “Rather than lowering sexual recidivism,” the report said, “housing restrictions may work against this goal by fostering conditions that exacerbate sex offenders’ reintegration into society.”
A position paper on the current website of the Iowa Association of Social Workers says that concentrations of Iowa sex offenders are living in motels, trailer parks, interstate highway rest stops, parking lots and tents. The site notes many other unintended consequences:
* Families of offenders who attempt to remain together are effectively subjected to the same restrictions, meaning that they too are forced to move, and may have to leave jobs, de-link from community ties, and remove their children from schools and friends.
* Physically or mentally impaired offenders who depend on family for regular support are prevented from living with those on whom they rely for help.
* Threat of family disruption may leave victims of familial sexual abuse reluctant to report the abuse to authorities, thereby undermining the intention of the law.
* Threat of being subjected to the residency restriction has led to a significant decrease in the number of offenders who, as part of the trial process, disclose their sexual offenses; consequently, fewer offenders are being held accountable for their actions.
* Loss of residential stability, disconnection from family, and social isolation run contrary to the “best practice” approaches for treatment of sex offenders and thus put offenders at higher risk of re-offense.
* No distinction is made between those offenders who pose a real risk to children and those who pose no known threat.
Myth: Treatment is a waste of money on sex offenders
The New Hampshire Prison sex offender treatment program compiled recidivism data in 1999 for a national survey by the Colorado Department of Corrections. Lance Messenger, the New Hampshire program director at the time, reported a 6.2% sex crime re-arrest rate after an average of 4.8 years on parole for 204 men who completed the Intensive Sex Offender Treatment Program. The recidivism rate was 12.4% for 435 sex offenders who received no treatment and had spent an average of 8.6 years in the community. Messenger is now in private practice and recently told this writer his report did not constitute a rigorous scientific study.
A Colorado recidivism study in 2003 led by Kerry Lowden tracked 3338 sex offenders released from prison between 1993 and 2002. After three years in the community, 5.3 percent had been arrested for a new sex crime. Each month an inmate took part in the intensive therapeutic community for sex offenders behind the walls reduced by 1 percent his risk of committing a later sex crime. The report said these treatment programs “profoundly improve public safety as measured by officially recorded recidivism.”
Vermont corrections personnel tracked 195 adult male sex offenders over a six-year period ending in 2006. Those who completed sex offender treatment had a sex-offense recidivism rate of 5.4 percent.
Lorraine R. Reitzel and Joyce L. Carbonell published a meta-analysis in 2006 of nine studies of recidivism among juvenile sex offenders with a combined sample of 2,986 kids. The sex crime recidivism rate was 12.5 percent for young offenders tracked for an average of 59 months. The rate was 7.37 percent for kids who had taken a sex offender treatment program and 18.9 percent for those who had not.
Fact: Most types of sex offenders have low sex-crime recidivism
A report to the Ohio Sentencing Commission in 1989 said 8 percent of sex offenders were convicted of a new sex crime within a decade. The 10-year Ohio recidivism rate for incest was 7.4 percent.
A 1998 Canadian Government study by Karl Hanson and Monique Bussiere, entitled “Predicting Relapse: A meta-Analysis of Sexual Offender Recidivism Studies,” examined 61 research efforts between 1943 and 1995 with a combined sample of 28,972 sex offenders. The overall recidivism rate for new sex offenses was 13.4 percent during the average follow-up period of four to five years. Of the 9,603 child molesters in the combined cohort, the rate was 12.7 percent. Some of these studies dated back to the period when only stereotype serial sex offenders went to prison, thus weighting the results toward greater recidivism.
Roger Hood and three British colleagues followed 162 released sex offenders for four years and tracked 62 others for six years. Their report in 2002, entitled “Sex offenders emerging from long-term imprisonment; A Study of Their Long-term Reconviction Rates and of Parole Board Members' Judgements of Their Risk,” found 1.2 percent were re-imprisoned for a new sex crime after two years. The report concluded, “These facts need to be more widely recognized and disseminated if there is to be rational debate on this emotive subject.”
A 2000 Iowa Corrections study tracked 233 sex offenders released in 1995 and 1996 under a new sex offender registry law. That group had a 3 percent sex crime recidivism rate after 4.3 years in the community. A similar control group of 201 sex offenders released before the registry law took effect had a 3.5 percent sex recidivism rate in the same length of time. The group supervised under the registry had a somewhat lower average recidivism risk score to begin with, and it had a higher proportion of people on probation as opposed to parole. The difference in recidivism rates was statistically insignificant.
A U.S. Justice Department report in 2003 tracked 9,691 sex offenders released from prisons in New York, California, Ohio and 12 other large states in 1994. Their recidivism rate for new sex arrests and convictions after three years on parole was 5.3 percent. 7.3 percent of child molesters with two or more prior arrests for that crime were charged anew for molesting. That compares with a 2.4 percent sexual recidivism rate for child molesters with only one prior arrest for that crime.
Karl Hanson and Andrew Harris published a 2004 report on 4,724 sex offenders in 10 Canadian and American samples ranging from 191 to 1,138 subjects. The average follow-up period was seven years after release. The overall sexual recidivism rates were 14 percent after five years, 20 percent after 10 years and 24 percent after 15 years. Incest offenders had corresponding rates of 6, 9 and 13 percent. Recidivism was defined as a new sex crime arrest or a new conviction. Counting only new convictions, the recidivism rates were generally half as high.
Karl Hanson and Morton-Bourgon published a similar meta-analysis in 2005 of 73 recidivism studies with a combined cohort of 19,267 sex offenders. After an average of nearly six years in the community they had a new sex crimes recidivism rate of 14.3 percent.
A 2005 report by Robert Barnoski of the Washington State Institute for Public Policy tracked the five-year sexual recidivism rates for 8,359 sex offenders released from Washington prisons between 1986 and 1999. Here are the results by year of release, showing the rate decreased over time.
| || 5-Year Rate |
| || Year |
| || 5-Year Rate|
A 2006 New York study analyzed the recidivism patterns for 19,827 sex offenders. The rate for new sex offenses after one year in the community was 2 percent. The cumulative rate increased to 3 percent after two years, 6 percent after five years, and 8 percent after 8 years.
A 2006 California study followed 93 adjudicated high-risk sexually violent predators released from civil commitment at the Atascadero State Hospital. Only 4.3 percent of these worst-of-the-worst offenders had committed new sex offenses after six years on the street.
A 2007 study by the Missouri Department of Corrections tracked 3,166 sex offenders released between 1990 and 2002. Twelve percent had been re-arrested for a new sex crime in those 12 years, and 10 percent had been reconvicted. The report also looked at sex offenders released in 2002. In the first three years on parole their sex crime recidivism rate was 3 percent. The report concluded, “Due to the dramatic decrease in sexual recidivism since the early 1990s, recent sexual re-offense rates have been very low, thus significantly limiting the extent to which sexual reoffending can be further reduced.”
An Alaska Judicial Council report in 2007 said 3 percent of sex offenders had committed a new sex crime in their first three years after release from prison.
A 2007 report by the Tennessee Department of Safety found that 4.7 percent of 504 sex offenders released from prison in 2001 were arrested for a new sex offense after three years. The sex crime recidivism rate was zero for offenders whose original crime was incest.
A 2007 Minnesota Department of Corrections study tracked 3,166 sex offenders released from Minnesota prisons between 1990 and 2002. After an average of 8.4 years in the community, 10 percent had been convicted of a new sex offense. Those released in the beginning of the study period were much more likely to reoffend within three years than those released later -- 17 percent in 1990 as opposed to 3 percent in 2002.
A 2007 report by Jared Bauer of the West Virginia Division of Corrections tracked 325 sex offenders for three years after release from prison in 2001, 2002 and 2003. The recidivism rate for any return to prison, not just for sex crimes, was 9.5 percent. Only six parolees returned for new sex related crimes, including three for failing to properly register as a sex offender. The sex crime recidivism rate was slightly less than 2 percent. Only 1 percent had an actual sex crime victim.
A 2008 report by the California Department of Corrections and Rehabilitation tracked 4,280 sex offenders paroled in 2003. In the first year 2.43 percent had been arrested for new sex crimes. The cumulative totals were 3.27 percent at the end of the second year and 3.55 percent after three years.
A 2008 study by California's Sex Offender Management Board reported on 4,204 sex offenders released in 1997 and 1998. 3.38 percent were convicted of new sex offenses in the next decade.
Utah criminologist Larry Bench tracked 389 Utah sex offenders for up to 25 years after release. His 2008 report disclosed that 7.2 percent had been arrested for a new sex crime.
An Indiana Corrections report in the spring of 2009 found that sex offenders released in 2005 had compiled a 1.05 percent sex crime re-conviction rate in three years. The study said this rate was “extremely low” and showed “a great deal of promise.”
Stan Orchowsky and Janice Iwama authored a 2009 study for the U.S. Justice Research and Statistics Association which showed similar low sex crime re-arrest rates after three years for sex offenders released from prison in 2001. The rates by state were as follows: Alaska 3.4%, Arizona 2.3%, Delaware 3.8%, Illinois 2.4%, Iowa 3.9%, New Mexico 1.8%, South Carolina 4.0%, and Utah 9.0%. The comparison three-year national rate was 5.3 percent noted previously for inmates released in 1994.
Chancellor Frank Brown has ruled that a Chattanooga businessman must register as a sex offender, though his attorney said he has not been in trouble since moving here in 1989.
The ruling in the 32-page opinion said the man identified thus far only as "John Doe" must register as a sex offender within 15 days unless an appeal was filed.
His attorney, Jerry Summers, did file the appeal to the Tennessee Court of Appeals.
The opinion says the man was convicted of gross sexual imposition in 1983 and served three years in prison in Ohio. At the time he moved to Chattanooga, there was no requirement that he register as a sex offender.
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The opinion says, "Since 1989, Mr. Doe has not been charged with or committed any sexual offense. He has established a business and been a productive member of society." However, he received a letter from county detective Jimmy Clift at the end of March directing him to sign up on the sexual offender registry.
The opinion says the defendant "looks at the sexual registry as punitive and claims that one cannot be punished now in a new manner for something that was not punishable in that matter when the crime was committed." (Ex Post Facto clause of the United States Constitution)
It says two states have upheld that argument, but Tennessee has not.
Chancellor Brown said, "This court of equity must follow the law. Despite understanding and acknowledging Mr. Doe's angst that he faces registration and would be required to perform certain activities now that were not required in 1983, this trial court must follow the law.
"There is a presumption that laws enacted by the General Assembly are constitutional. The appellate authority cited above is that the Act and Amendments to the Act are constitutional. The Act is regulatory and not punitive. The Act is based upon public policy and safety of the public."
He added, "The Tennessee appellate decisions have upheld the registration requirements. Thus, it certainly appears that Mr. Doe must register as an offender. At least, he must go through the TBI to determine if he must register. If he fails to do so, then his failure to register can be a separate criminal offense."