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Article Excerpt
I. INTRODUCTION: MEET PATRICK LEROY
Patrick Leroy is thirty-seven, and has lived almost all of his life with his mother in East St. Louis, Illinois, (1) one of the state's--and nation's-poorest communities. In 1987, when Leroy was eighteen, he was convicted of an unspecified sexual offense, (2) for which he served six years in prison. (3) As a result of this conviction, Leroy is now considered a sex offender, mandating that he annually register his address with, and pay a registration fee to, the local authorities for the rest of his life, or be sentenced to up to three years in prison for noncompliance. (4) Since being released over a dozen years ago, he has lived in his mother's house and committed no further sexual offenses. (5)
In July 2000, Illinois passed a sex offender residency restriction law. (6) The law forbade anyone convicted of a sex offense from living within five hundred feet of playgrounds, schools, or day care centers. (7) The ban applied prospectively and retrospectively, exempting only those who owned a house within the five hundred foot buffer at the law's inception from having to move. (8) Violation of the residency restriction law in Illinois is a felony, punishable by one to three years in prison. (9) Leroy's mother's house, where Leroy had lived all of his non-incarcerated life, is located within five hundred feet of Miles Davis Elementary School. (10)
Leroy was charged in August 2002 with violating the residency restriction statute. (11) In the ensuing trial and appeal, Leroy argued that these new restrictions violated his substantive and procedural due process rights, his fight to equal protection, his right against self-incrimination, prohibitions against ex post facto laws, and prohibitions against cruel and unusual punishment. (12) The Fifth District of the Illinois Appellate Court rejected all these considerations; (13) the Illinois Supreme Court denied his appeal; (14) and now Patrick Leroy cannot live in his mother's house. (15)
The three-member panel's decision was not unanimous, as Judge Kuehn dissented vigorously to the "expulsion" of Patrick Leroy. (16) Judge Kuehn, in detailing the constitutional infirmities of the residency restriction law, (17) noted that the law's enforcement would result in a lifetime ban against Leroy returning to his longtime home, where he had lived without incident for thirteen years since release from prison. (18)
Patrick Leroy's story is not unique. He is just one of many former sex offenders now caught in an escalating movement to publicly identify and stringently control sex offenders in order to prevent the next graphic sex crime against children. Sex offenders are vilified and feared; their crimes considered our "society's worst nightmare." (19) But while legislators gain notoriety in this "race to the bottom" (20) for passing laws banning sex offenders from living near day care centers, schools, parks, libraries, pools, and recreations trails, larger questions loom: Have these laws made our children safer? More to the point, do these sex offender restrictions make sense? If these "Scarlet Letter" (21) laws are not effective, what system would ensure better sex offender risk management without wasting scarce public funds policing and onerously burdening those low-risk offenders like Leroy, who have lived without trouble down the street from schools, parks, and nurseries for many years?
To answer these questions, the Comment is divided into three main parts, considering residency restrictions as a microcosm of the larger problem of effective and constitutional sex offender risk management. Section II traces the recent development of sex offender laws and the resulting pariah-like status of sex offenders in contemporary America. (22) Sections III and IV specifically focus on residency restrictions, first scrutinizing their scientific, economic, and political problems before analyzing the ex post facto constitutional infirmities with the laws. (23) The conclusion from Sections III and IV is that uniformly applied residency restrictions will probably fail judicial scrutiny, and in any case are ineffective in preventing sex offender recidivism. (24)
The Comment's last part takes up the policy question of what states should implement in lieu of ineffective and unconstitutional uniformly-applied residential restrictions. Section V examines best practices for managing sex offender risk that have been implemented across the country, considering how each one works and its particular benefits and problems. (25) Finally, Section VI proposes a synthesized method of managing sex offenders, which achieves the paramount goal of protecting children by targeting the minority of offenders who are high risk while relaxing restrictions on the vast majority of offenders who studies have shown do not re-offend. (26) This synthesized risk management strategy better allocates scarce public resources, allays public fear, and withstands constitutional scrutiny. (27)
II. BACKGROUND
This section examines the political and social conditions that have led to the residency restrictions that forced Patrick Leroy to leave his mother's home. In turn, this section considers the political and legislative response to sex offenders, the mechanics of residency restrictions, the public's perception of sex offenders, and the judicial treatment of sex offenders.
A. THE POLITICAL RESPONSE TO SEX OFFENDERS
Strict laws that specifically target sex offenders are a recent innovation. After several well-publicized brutal sexual assaults and murders of children by previously convicted sex offenders living inconspicuously near their victims, states began to pass "Megan's Laws" in 1990. (28) The laws are named after Megan Kanka, a seven-year-old girl from New Jersey who was victimized and then killed by a neighbor who community residents did not know was a twice-convicted sex offender. (29)
Megan's Laws, also known as sex offender registration acts (SORAs), require offenders to register promptly when they are released from prison, and also mandate that sex offenders convicted in the past now register themselves with their local police department. (30) The goal is to put a face on sex offenders, so they can no longer prey as strangers on the most vulnerable members of society. (31) The laws, although state-created, became essentially mandatory when Congress passed legislation conditioning 10% of all federal law enforcement funding to the state on the state having an acceptable sex offender registration law. (32)
Despite sex offenders being the only class of convicted felons generally forced to register and have their names and pictures posted on websites accessible to the general public, (33) legislators and local officials have since sought even harsher measures. The mayor of Albuquerque proposed posting sex offenders' photos and descriptions at the zoo and other places where children congregate because he believed that an offender had "'Danger: Will re-offend' virtually stamped on his forehead." (34) When asked about the constitutional rights of the offenders that were possibly being violated by this proposed law, the mayor replied that the "offender surrendered his rights when he committed his first attack," and so "his rights should not be taken into consideration when formulating a sex offender policy." (35) For Halloween 2005, state officials in South Carolina, county officials in Cook County, Illinois, and city officials in Rochester, New York, all placed prohibitions on sex offenders having any contact with Halloween festivities. (36) The increasingly onerous restrictions have led one commentator to conclude: "Politicians, even in honest attempts to protect the public good, sometimes go too far without considering unintended consequences." (37)
B. RESIDENCY RESTRICTIONS
Thirteen states, including Illinois, have passed laws in the last five years banning sex offenders from living within a certain distance of schools, parks, day care centers, and "places where children normally congregate." (38) Residency restrictions are justified as a means of "taking away a portion of the opportunity" for sex offenders to re-offend. (39) In terms of width of the prohibited zone, they range from a five hundred foot restriction in Illinois (40) to two thousand feet in Alabama and Iowa. (41) Oregon has adopted a "general prohibition" against sex offenders living "near where children reside." (42) In terms of prohibited locations, most states' restrictions encompass school and child care facilities, and sometimes parks and the current location of the particular offender's victim. (43) Georgia's law also includes a vague proscription against living within one thousand feet of any area "where minors congregate." (44) These residency restriction laws, like previous sex offender laws, have been generally applied not just prospectively to offenders being sentenced in the future and currently imprisoned or on parole, but also retrospectively to anyone previously convicted of a "sex offense." (45)
Smaller units of government have also enacted residency restrictions. Cities and counties across the country have passed residency restrictions. (46) The restrictions include extensive bans, such as 2500 feet around anywhere children congregate in Miami Beach, Florida, (47) and expanding the list of restricted areas to also include public pools, libraries, and multi-use recreation trails in several Iowa counties and communities. (48) In addition, quasi-governmental units like common interest communities have added covenants banning sex offenders altogether from their communities. (49)
The laws grandfathered some offenders living within the restricted areas, but not all. Illinois, for example, exempted those sex offenders who owned houses within restricted zones from moving when the law came into being, but did not exempt longtime renters or those, like Leroy, who lived with a relative who actually owned the home. (50) Also, a convicted sex offender who had been renting a house which was not in a restricted zone when the law was enacted would be in violation of the law if at any point in the future one of the restricted uses, like a day care facility or a playground, were to be built within the proscribed five hundred feet of his rented property. (51)
C. PUBLIC PERCEPTION AND RESPONSE TO SEX OFFENDERS
Sex offender restrictions have met with resounding public support. It is not a stretch to say that child sex offenders are the bogeymen of our day. (52) A recent Gallup poll found that 66% of people surveyed were "very concerned" about sex offenders, whereas only 52% were as concerned about violent crime, and just 36% worried as much about terrorism. (53) Sex offenders invite fear because of their sordid and well-publicized crimes against children, (54) and because many believe (incorrectly) (55) that sex offenders re-offend at a much higher rate than other criminals. (56) Celebrities from Oprah Winfrey to Bill O'Reilly have advocated for harsher punishment and more stringent surveillance of convicted offenders. (57) Syndicated columnist Ann Landers, whose advice columns appear in one thousand newspapers across the country, recently concluded, "The only molesters who can be considered permanently cured are those who have been surgically castrated." (58)
Communities across the country have treated released sex offenders like pariahs. (59) In the fall of 2005, Cook County began a movement to ensure that no bus stops were placed near sex offenders' homes, in order to prevent offenders from preying on unsuspecting children as they waited for the school bus. (60) In the first year of this initiative, school systems shifted the bus stops, but already one resident argued that instead, the sex offenders should be forced to move: "They should get rid of the sex offenders. Kids shouldn't have to go through that." (61) A sex offender in California who completed the state sex offender treatment program and then underwent voluntary castration while in prison was still turned down by at least 120 rehabilitation facilities upon release, and neighbors refused to allow him to move in with his father in the State of Washington. (62) As a result, he now lives in a trailer on the grounds of a California prison. (63)
Sex offenders also risk bodily harm for being on the list. In April 2006, a Canadian man accessed Maine's online registry, and used the personal information available on it to locate and kill two offenders before killing himself. (64) In response, Maine only briefly shut down the "popular" website. (65) As one state representative put it, "[Just] because two people that were on the website were horribly killed doesn't take away the need for that website." (66)
No convicted sex offenders hold major political office. Indeed, in New Hampshire in the fall of 2005, a heated controversy arose whether a state elected official should resign because he had employed a convicted sex offender who had been cited on several occasions for failure to register. (67) At one point, the Republican councilman faced calls from the entire New Hampshire Congressional delegation, who were all Republicans, as well as the state's Democratic governor to resign. (68)
Thus, the public both hates and fears sex offenders, resulting in approval of ever increasingly harsh penalties for these political pariahs. (69) Indeed, no state which has passed a residency restriction statute has repealed it, and Alabama has recently enhanced its law with more restrictions on where sex offenders can live, work, and even loiter. (70)
D. JUDICIAL RESPONSE
Courts from across the nation have generally approved of unusually harsh punishments meted out to sex offenders. Judges have conditioned the release of offenders on them placing signs on their front lawns identifying themselves to all passersby as sex offenders. (71) A federal district court judge in Arizona was twice overruled by the Ninth Circuit for imposing rigorous probation restrictions on a man facing marijuana charges who had been convicted fifteen years earlier of sexual contact with a teenage female. (72) A twelve-year-old boy in Illinois was permanently banished (along with his family) from his community, and made to register as a sex offender for the rest of his life, a shockingly harsh sentence handed out by a juvenile court and upheld by the state's supreme court. (73)
When addressing challenges to the constitutionality of sex offender laws, both federal and state courts have generally deferred to legislative findings, upholding first the SORAs (74) and later residency restriction laws. (75) But this judicial trend of upholding all uniformly applied restrictions of sex offenders may not last forever, as already Justice Kuehn and others have vigorously dissented over the constitutionality of residency restrictions. (76) The next two sections of this Comment will examine residency restrictions in more detail, concluding that the restrictions are neither constitutional nor effective in preventing sex offender recidivism.
III. FOUR NON-CONSTITUTIONAL CONCERNS WITH RESIDENCY RESTRICTIONS
There are four principal concerns with residency restrictions, apart from their constitutional frailties: that the laws are based on two flawed premises; that they become a heavy tax burden on the government; and that they provoke two real estate crises, first in the already undesirable communities where sex offenders often end up living, and second, for the low-income sex offenders themselves. Section III takes up each of these critical concerns in turn.
A. TWO FLAWED SCIENTIFIC ASSUMPTIONS ABOUT RESIDENCY RESTRICTIONS
Residency restrictions are justified by two flawed scientific and factual premises: that sex offenders target unknown children in their neighborhood to commit many of their offenses and that sex offenders re-offend at a much higher rate than other felons. (77) The Georgia legislator who sponsored the state's residency restriction justified the measure for both reasons, claiming that sex offenders are "virtually impossible to rehabilitate and these crimes are so difficult to detect and control, [that] those persons who are convicted of sexual offenses against children ... are apt to be repeat offenders." (78) Both of these claims are false.
First, the image of the stranger sex offender harming neighborhood children is far from reality. Studies have shown that it is not strangers, but "[r]elatives, friends, baby-sitters, persons in positions of authority over [a] child, or persons who supervise children [who] are more likely than strangers to commit a sexual assault." (79) Indeed, one study found 80% of abused girls and 60% of abused boys are harmed by people that they know, either a friend or a family member. (80) Another study concluded that strangers commit no more than 10% of all child molestation cases. (81) A 2003 Department of Justice survey confirmed this, indicating that among the incarcerated child sex offenders in state prisons in 1997, only 7% were in prison for crimes where the victim was a stranger to the assailant. (82) The implication, then, is that laws should focus on preventing sex offenders from harming children whom they know, and not fixate on preventing the rare attacks by strangers. (83) Unfortunately, "[l]egislators [instead] tailor sex offender bills to the local or national high-profile crimes that rouse public outrage and horror ... [even though] the vast majority of sexual abuse is committed by acquaintances or family members of the victims, not sexual predators lurking in the bushes." (84) Some experts even contend residency restrictions do more harm than good, as they lull the public into a false sense of security from stranger sex offenders when the vast majority of predators meet their victims through jobs, volunteering, or social networks. (85)
Furthermore, studies have not shown a correlation between a sex offender's "residence['s] distance from a school or child care facility, and an increased likelihood of recidivism." (86) A California newspaper conducted a review of nearly five hundred released sex offenders who lived legally near schools and day care facilities. (87) The newspaper found that only one of the five hundred was arrested during the one year period, and that was for committing a parole violation and not another sexual assault. (88) Rather, psychologists conclude that if a sex offender wants to re-offend, he will do it; and "it doesn't really matter how close the school is." (89) Similarly, a Minnesota Department of Corrections study determined that the only two recidivist acts of child sexual assault committed in parks on unknown victims occurred several miles away from the offenders' homes, leading the department to conclude that a five hundred foot or even one mile restriction would not likely prevent the rare offender who wanted to harm again. (90)
The second spurious claim made about sex offenders is that they re-offend at an "astronomically" (91) higher rate than do other criminals, justifying the harsh restrictions placed uniquely on them among all felons. (92) However, extensive private studies refute this claim. In 1998, a massive study of 29,000 sex offenders found recidivism rates of 12.7% for child molesters over five years. (93) Admittedly, at least one survey found a higher total, with a 1991 study finding child molesters had a recidivism rate of 31% for sexual crimes and 43% for any violent act. (94) But a meta-analysis of studies of sex offender recidivism rate concluded that the studies' aggregate recidivism rate for sex offenses was 10-15% within five years and 40% within fifteen to twenty years. (95)
Government statistics have also concluded that sex offenders re-offend at a far lower rate than do other offenders. In 2003, the Department of Justice (DOJ) published a comprehensive study of sex offenders released from prison in 1994. (96) Of those sex offenders and rapists released from prison in 1994, only 14% were recidivists at that point. (97) Of those child molesters released in 1994, only 3% were rearrested within three years for a sexual offense against a child, and 14% were rearrested within three years for any violent offense. (98) All told, 39% of released sex offenders were rearrested within three years, but half of those arrests were for "public order offenses" like parole violations or traffic infractions. (99)
These recidivism rates were markedly lower than those of other felons; as "compared with other ex-cons, sex offenders were paragons of...
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