Sex Crimes

KY High Court Denies Stay In Residency Restrictions Challenge

In October, the Kentucky Supreme Court ruled that a state law prohibiting sex offenders from living near schools, playgrounds, and day care centers could not be applied retroactively, to those convicted before the enactment of the law. On Monday, the Court rejected a request to stay the ruling. From The Courier-Journal:

Kentucky Attorney General Jack Conway asked that the ruling be stayed, but that request was rejected in a brief order from the court on Monday.

Allison Martin, a spokeswoman for Conway's office, said the office now will ask the U.S. Supreme Court for a stay to review the Kentucky high court's ruling. She said the office has until Dec. 30 to file its request with the nation's high court.

The Kentucky Department of Corrections released a statement saying that because Monday's ruling by the Kentucky Supreme Court is a final order, probation and parole officers are being notified that sex offenders who committed their crimes prior to July 12, 2006, are no longer subject to the residency restrictions of the 2006 law.

The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list.

FL Policy Analyst: Residency Restrictions are Ineffective

A legislative policy analyst today told Florida legislators that sex offender residency restrictions do not work. The analyst cited studies from Minnesota, Colorado and Florida, which found no connection between where sex offenders lived and where they committed new crimes. From the Miami Herald:

Studies show that laws prohibiting sexual predators from living near schools and other places where children congregate do not prevent offenders from committing new crimes and may be counterproductive, a legislative policy analyst told a House panel Tuesday.

Marti Harkness, who specializes in criminal justice issues in the Office of Program Policy Analysis and Government Accountability, said better options would be to bar offenders from smaller zones near places where children gather and keeping tabs on them with electronic monitoring.

Florida prohibits certain sex offenders from living within 1,000 feet of schools, day care centers, parks and other places that attract children, but some local governments have expanded the ban to as much as 2,500 feet, most notably in South Florida.

Those limits made it so difficult for sexual predators to find affordable housing in Miami-Dade County that some offenders have been living under a bridge in view of tourists and others using the span, creating a backlash against the restrictions.

I'm guessing nothing will change in Florida.

CA Supreme Court Hears Challenge To Residency Restrictions

The California Supreme Court heard a challenge to the state's sex offender residency restriction law. The plaintiffs in the case are four sex offenders who were found living within 2,000 feet of place where children gather (such as a park, school, or day care center) and who were told that they must move within 45 days. The Contra Costa Times has more. A decision is expected within 90 days. From the San Jose Mercury News:

The state Supreme Court on Tuesday is considering whether the residency restriction contained in Proposition 83 is so broad and intrusive that it violates the constitutional rights of registered sex offenders. Under the law, critics say, many sex offenders cannot find a place to live in urban areas across the state and are effectively forced into homelessness.

Gov. Arnold Schwarzenegger, a strong backer of Proposition 83, is defending the law, along with the state Department of Corrections and Rehabilitation, which has largely been responsible for enforcement through its parole units. The administration's lawyer declined to comment but in court papers has defended the law's constitutionality.

Jessica's Law, however, has been openly questioned for its effectiveness, even in the law enforcement community, and also for its legality. More than 20 states have adopted similar provisions, with courts taking a mixed view of whether they pass legal muster. Most courts, including two federal courts in California, have found the laws cannot be applied retroactively to sex offenders who committed their crimes and were released from prison before the laws were passed.

Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts.

I think the California case could be important in the overall scheme of residency restriction law. While some courts have found problems with residency restrictions, most of the rulings have been quite limited (either by being based upon statutory grounds or constitutional issues that did not invalidate the entire statutes). California will certainly be the most high profile state that has had its highest court review such laws. If the court issues a definitive ruling against the restrictions, it might have a wider effect.

Separation of Church and Sex Offender?

Doug Berman at Sentencing Law & Policy has an interesting post discussing the religious rights of sex offenders. Berman also directs us to a post by Cornell Law Prof. Dorf who discusses the issue in a bit more depth. From Sentencing Law & Policy:

Over at Dorf on Law, Mike Dorf has this post with an extended discussion of the question in the title of his post: "Can Sex Offenders Be Barred From Church?"  Because I am not a First Amendment expert, I cannot take issue with the much of his constitutional analysis, but I was both struck and troubled troubled by Mike's apparent willingness to embrace the idea that a state always has a strong justification for seeking to keep any and all sex offenders away from any and all places in which children might be found.

Specifically, at the end of his post, Mike says this: "Is there a compelling interest in keeping registered sex offenders away from children?  Of course."  I am left wondering if "compelling interest" analysis is this easy.  Some (perhaps many) "registered sex offenders" have not harmed a child and likely pose no special threat to children.  Registered sex offenders include  folks whose only victim was an adult and who engaged in fully consentual sex acts (such as a female prison guard who had sex with one of her prisoners).  Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?

More fundamentally, is Mike suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or the rally or the movie or the street?  I fully understand the gut instinct that we want to protect children from even marginally risky people in inherently risky places, but I am troubled by any analysis that is so quick to assume that all registered sex offenders are always so risky that they can and should be treated as if they were radioactive.

There has been a pretty active discussion about this case on the Criminal Justice Professor listserv. My inclination is that this type of challenge has a fair chance of success if 1) the offender can show that the restrictions essentially make all churches off limits if Sunday School counts as a day care; or 2) a secondary constitutional right besides free exercise is implicated. There are similar cases emerging across the country and I'm interested to see how the courts treat these claims.

Op-Ed: Residency Restrictions Don't Help

Newsday has an interesting new editorial explaining the obvious: sex offender residency restrictions don't make kids safer. From the editorial:

Conventional wisdom is a powerful force that often leads the well-intentioned astray. For example, there's the widespread belief that we can make children safer by restricting where known sex offenders are allowed to live. The notion is enticing in its simplicity. Make sure offenders don't lay their heads near schools or parks or other places where children congregate, and kids will be safely ensconced in a predator-free bubble. Unfortunately, it isn't that easy.

Residency restrictions don't make children safer. In fact, they may make communities more dangerous by pushing offenders underground. No one wants a sex offender living nearby. And the effort to protect kids is important and heartfelt. But the public, and elected officials, shouldn't waste their time and energy on ever more exclusionary residency laws.

Having a kid snatched by a stranger skulking around a school yard is a nightmarish prospect. But that's not how it usually happens. Nine out of 10 children who are sexually abused know and trust their abusers. They aren't strangers. They're a relative or babysitter, a coach or Mom's boyfriend. It's proximity through those and other relationships that puts children in harm's way.

Even when the attacker is a stranger, victims are increasingly likely to have met them on the Internet. Besides, residency restrictions limit where offenders sleep, but not where they go. So they provide a false sense of security, while doing nothing to prevent most dangerous encounters.

What these restrictions do instead is cluster offenders in fewer and fewer places - too often in poor, politically powerless communities. And as it becomes harder for offenders to find legal housing, more will drop off the grid. They'll report false addresses, or stop reporting any address at all. Some will become homeless and virtually impossible to monitor. And when the restrictions force offenders away from the support of relatives and counselors, or make it difficult for them to work, those laws increase the likelihood that they will reoffend.

Day Care Centers can do more than Care for Kids

Central Florida has come up with an innovative new way of getting rid of a group of sex offenders who have congregated together in a mobile home park: set up a daycare center nearby and push them out. From WKMG Orlando:

What began as concern over a school bus stop located on Orange Blossom Trail near a mobile home park that houses more than 90 sex offenders became a plan to push them out in the name of children’s safety after a proposal to move the bus stop didn’t work.

The woman who came up with the plan, Barbara Farris, said she wants them out and away from the public school bus stop. In fact, Farris has been sitting down the street, protesting their presence.

According to the release conditions placed on sex offenders, they are prohibited from living near schools, churches and day cares, but there is nothing that says can’t live by the bus stop.

So Farris has ramped up her efforts, and said she has a location for the day care facility locked down and is working with someone who already owns multiple day cares.

“Once we get our license approved, they have 24 hours to relocate,” Farris said.

Farris said she has a list of other monitored communities where they could relocate, but all are out of the county.

I applaud the honesty. I guess it was only a matter of time before sex offender restrictions were used strategically. In other states, the lack of a grandfather clause for pre-existing residences has created Takings Clause issues. I wonder if there is a similar challenge currently underway in Florida. Certainly if the day care plan goes forward, I imagine there will such a lawsuit.

More Op-Eds Discussing Sex Offenders and Religion

Both the St. Louis Post-Dispatch and Time.com are running editorials asking whether sex offenders can be banned from churches, a topic we previously discussed. From the St. Louis Post-Dispatch:

James Nichols, 31, is a convicted sex offender who can’t understand why he is isn’t allowed in church.

According to this story by the Associated Press, Nichols was arrested after attending a church in North Carolina that also contains a daycare center. North Carolina law states that sex offenders can not come within 300 feet of “any place intended primarily for the use, care or supervision of minors.”

Nichols is now challenging that law as it relates to churches, claiming that his ability to practice his faith is critical to his rehabilitation.

According to the AP article, Joseph Green, pastor of a church Nichols attended, had this to say "I told him as long as he’s honest with me, then we’re willing to embrace him and help him focus and get his life back on track."

KY Supreme Court Strikes Down Retroactive Application of Residency Restrictions

The Kentucky Supreme Court in Kentucky v. Baker, (opinion available here) has found the retroactive application of the sex offender residency restriction to be unconstitutional. From the Lexington Herald-Leader:

A state law limiting where registered sex offenders may live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented, the Kentucky Supreme Court ruled Thursday.

The law prohibits sex offenders from living within 1,000 feet of playgrounds, day-care centers and schools, and the law changed how the distance is measured.

The court, in a 5-2 decision, said the law is punitive and violates the ex post facto clause, or retroactive law, in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes. The restrictions will still apply to anyone convicted after July 12, 2006.

As of Thursday morning, there were 280 sex offenders in Fayette County, and six were not in compliance, according to the Fayette County Sheriff's Office. Sheriff Kathy Witt said some addresses are visited every day. Those who are incompliant are usually not living at the addresses listed for the individuals.

H/T: Sentencing Law & Policy.

"Banned from churches, sex offenders go to court"

The Associated Press has an interesting article discussing the growing trend of banning sex offenders from churches. It was not long ago that the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Today, one North Carolina sex offender is challenging a new law that bans him from his church because it has a daycare center. From the article:

Convicted sex offender James Nichols said he was trying to better himself by going to church. But the police who arrested him explained: The church is off-limits because it has a daycare center.

Now Nichols is challenging North Carolina's sex-offender laws in a case that pits the constitutional right to religious freedom against the state's goal of protecting the public from child molesters.

At issue in Nichols' case and a similar one in Georgia are day care centers and youth programs at houses of worship where sex offenders can come into proximity with children. Sex offender advocates agree some convicts should not be allowed around children, but they contend barring all offenders denies them support needed to become productive citizens.

Church leaders feel caught between leading houses of worship where broken people can seek help and preventing criminals from exploiting a place of trust.

VA Supreme Court Lets School Boards Ban Sex Offender From School Property

The Virginia Supreme Court has ruled that school districts have final say in whether sex offenders are allowed on public school property. You may read the decision here. From the Charlottesville Daily Progress:

The opinion, which was written by Justice Barbara Milano Keenan, reverses a decision from the Charlottesville Circuit Court allowing a sex offender to come onto Charlottesville public school property under certain conditions.

Stacy Haney, a Richmond-based lawyer who represents the city’s School Board, said school supervision is vested in local school boards under the state’s Constitution. Haney said the Supreme Court’s opinion would be far-reaching.

Under state code, sexually violent offenders are prohibited from entering public or private school or daycare center property unless they attend the school, vote there or have a court order.
Doe was released from incarceration in 2000 and completed his supervised probation uneventfully. He filed a petition seeking permission to go onto school grounds to pick up his stepson and attend activities involving the child. Circuit Judge Edward L. Hogshire granted the request over the School Board’s objections, Haney said, imposing conditions to limit Doe’s on-campus time and requiring him to give the principal notice before coming to school activities.

“As long as Doe did what the order said, he could come onto property and the School Board couldn’t prohibit it,” Haney said. “What this opinion says is that while the trial court can enter an order lifting the statutory ban on sex offenders going onto the school’s property, the School Board retains the ability to say who can and can’t come onto school property.”

H/T: Sentencing Law & Policy.