Upper Arlington has become the first city in Ohio — and one of just a few nationally — to limit not only where sexual offenders live, but also where they work.
The unanimous vote came last night during a City Council meeting.
Three of the seven council members raised concerns about how the city would keep track of offenders who work in the city, and whether a possible costly legal challenge would be worth it.
In the end, however, only one business owner spoke out, and a passionate group of parents applauded those who supported the measure.
Professor Berman asks two (or three, if you count the efficacy question separately) questions about the measure:
Any reader thoughts about the constitutionality and/or likely efficacy of this sex offender work restriction? Anyone think the Supreme Court will have to weigh in on the constitutionality (and possible limits) of all the sex offender restrictions sooner rather than later?
When the Upper Arlington ordinance was just a proposal I had this to say:
While this is a new type of restriction in Ohio, other communities across the country have implemented work restrictions for some time. I am actually a bigger fan (on a relative scale) of work restrictions than I am of residency restrictions. At least work restrictions limit sex offender locations when they are awake (as opposed to residency restrictions which just limit where a sex offender sleeps at night). Work restrictions also have less of a banishment effect than residency restrictions because the "safe" areas outside of residency exclusion zones often include primarily commercial and industrial areas. With that being said, supplementing residency restrictions with work restrictions, as is the case in Ohio, is the worst of both worlds since it just reinforces the banishment effect and further undermines the ability of sex offenders to reintegrate into society. And while I think work restrictions alone are better than residency restrictions alone, that is hardly a ringing endorsement.
So, to answer Professor Berman's questions, I do think work restrictions are preferable to residency restrictions only because residency restrictions are so fundamentally flawed. Further, a state which allows both sets of restrictions really is increasing the banishment effect of the exclusion zones. The constitutionality of these laws is still an open question, but so far supporters of the restrictions are winning the battle. No major court has really addressed work restrictions independent of residency restrictions, so a new challenge could be brought with slightly different arguments. However, the arguments against work restrictions seem much weaker.
Because Doe v. Miller is still the paradigmatic case on these types of laws, you can follow the logic of the court on each challenge and see that work restrictions are less likely to raise constitutional problems. On the ex post facto claim, for instance, work restrictions are likely to seem less punitive because work restrictions alone do not have the same expulsion effect as do residency restrictions. In fact, many of the areas outside of exclusion zones are commercial and industrial sectors where a hypothetical sex offender could still get a hypothetical job. Similarly, on substantive due process challenges, the idea that work restrictions affect a right to travel is probably hard to establish. And since America affords no "right to employment," it is unlikely a court will find any core liberty at issue.
I do think a more interesting challenge to these laws would be a cumulative and aggregate challenge to both laws. This challenge would argue that while either law independently might be legal (accepting the legal reality of today), but together they are punitive in design and effect. This is the sort of aggregation problem that I focus on in my article on residency restrictions. While my article in its current form does not really address work restrictions, I may think about integrating work exclusion zones before it goes to print if more communities follow the lead of Upper Arlington.
Do I think the Supreme Court will eventually rule on these restrictions? Absolutely. The court did not duck ruling on sex offender registration, notification, or civil commitment. I think it is only a matter of time before they take a residency restriction case. Unfortunately, if I had to guess which way they would rule, I think it would be in favor of these restrictions.