Work Restrictions in Ohio

At Sentencing Law & Policy, Professor Berman points us to the decision of Upper Arlington, Ohio to apply work buffer zones to sex offenders:

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. 

Comments

[KipEsquire]

The right to pursue one's occupation is a well-established fundamental right subject to an entirely separate and additional layer of strict scrutiny. It was also not addressed in Doe v. Miler, as I recall.

[Corey Rayburn Yung]

It definitely wasn't subject to analysis in Doe v. Miller because the Iowa statute only applied residency restrictions.

As for whether there is a "fundamental right to pursue one's occupation" at stake in these cases, I'm not sure I agree. Work restrictions seek to limit the geographical area where an offender may work. They don't actually prevent sex offenders from working in such a substantial manner that a court would find a fundamental right would be at stake. Comparatively, I think there is more authority for a person being able to freely choose where they live than there is for choosing where they work.

If you think there is case law out there that disagrees with my analysis, I'd be very interested in reading it.

[Leah Simon]

Work restrictions do have an expulsion effect when it's hard enough to find work with a criminal record of any kind. Try finding work with a record as a sex offender. My family member has been trying for months and has yet to find one employer willing to give him the second chance that everyone deserves.

[Ilah]

"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."

What about a cumulative challenge that included registration itself? The Supreme Court specifically rejected the argument that retroactve registration was parallel to probation because, at the time, it carried no restriction of residency, employment, or travel. Since the sole realistic means of enforcing the restrictions is provided by the registry, registration becomes inseperable from them.

And, if I recall correctly, the Supreme Court already called registration and community notification the "least intrusive means" of protecting the public. If residency/work/travel restrictions were upheld, would registration then be called "the less-least intrusive?"

My area is criminal law with no background in employment law, but does anyone in that area want to comment on the relationship of RSO work restrictions to enforcement of geopgraphic non-compete clauses in employment contracts? The case law on non-competes (extent of restriction, duration, effect on ability to work in one's field, etc.) would seem to provide a good starting point for the courts that will eventually deal with work restrictions for RSOs.

[Bennie]

I cannot speak about case law since I am not an attorney, but I do know that courts have used the reasonableness test.

For example: Would it be reasonable to the ordinary person to believe that if he or she were under residency restrictions which banned the person from large parts of a city or state to also be capable of remaining employed or employable, the average person I think would say no.

If you were to ask people who have suffered the effects of residency restrictions that same question, the answer obviously would be no.

One can academically separate the effects of laws, but reality when laws are applied proves otherwise. There is no separation, one affects the other.

If it were said that a person could move to another city or another state, the burden of restrictions and employment still exist particularly when residency restrictions and employment restrictions are wide spread.

The hardships caused by these laws are not unintended, the effects are known, they involve simple deductions dear Watson.

There is no such thing as unintended consequences when it comes to the application of residency or work related restrictions targeted at sex offenders.

When these laws are applied summarily upon a class of people that is not homogeneous in character or nature, then these laws become and are actual punishment and banishment.

[Ed VanHorn]

As a treating clinician for an adult sex offender population, and as an observer of the selective media exposure addressing the more sensational (and therefore more profitable) issues of residency, work accessibility, and monitoring of registered sex offenders, I find the practice of generalization of sex offenders to be rather dismaying. I am particularly concerned about the effects of the inclusion by our legislators and other decision-makers of that population of "status" sex offenders who are neither violent nor predatory, but who have been lumped under the general "sex offender" designation, regardless of the severity of their offense. In particular, I refer to the cases of young offenders whose only offense record consists of having had consensual sexual intercourse with post-adolescent minor partners. I am confident that most reasonable persons would consider these individuals to be in a much different class than those offenders who have established records of repetitive, predatory behavior. Another extreme example would be the differences between a serial rapist and an first-time exhibitionist.

It appears that the decision-makers, such as state legislators and municipal governing entities, are unaware of the damaging effects that the current sex offender “witch hunt” is having on this special sub-category of primarily young people. Contributing to the problem are sweeping generalizations in the media that suggest that most interventions are ineffective. This may certainly be true in reference to the more serious offenders, but cannot (yet) be applied to first-time, non-violent status sex offenders. We have at our disposal a number of standardized diagnostic instruments to effectively predict degree of risk of recidivism - what is needed now is the development of an instrument to categorize the type of offender, rather than just the offense. There is also an obligation to educate the general public regarding the adverse effects of reactive approaches to the issue. The management of sex offenders is a very complex, convoluted, and challenging social issue, and effective and efficient categorization of that population is crucial to the concept and practice of social justice.