IRREGULAR PASSION: THE UNCONSTITUTIONALITY AND INEFFICACY OF SEX OFFENDER RESIDENCY LAWS[dagger]

By Agudo, Sarah E. | Northwestern University Law Review, Winter 2008 | Go to article overview

IRREGULAR PASSION: THE UNCONSTITUTIONALITY AND INEFFICACY OF SEX OFFENDER RESIDENCY LAWS[dagger]


Agudo, Sarah E., Northwestern University Law Review


"[C]ertain duties must be observed even towards those at whose hands you may have received unjust treatment. There is a limit to revenge and to punishment. "[double dagger]

INTRODUCTION....................308

I. THE CONSTITUTIONAL LIMITS OF SEX OFFENDER RESIDENCY LAWS.................... 311

A. Due Process.................... 312

B. Ex Post Facto.................... 321

C. Self-Incrimination.................... 326

D. Right to Inter/Intrastate Travel.................... 329

II. POLICY CONCERNS AND CONSIDERATIONS ....................331

A. As Applied: A Need for Fairness and Line-Drawing.................... 332

B. Decrying "NIMBY" and a Look at Alternative Approaches.................... 334

III. STAKEHOLDER INTERESTS AND POLITICAL MOTIVATIONS.................... 337

CONCLUSION....................338

INTRODUCTION

Sex offenders are among the most hated members of our society. They commit heinous crimes, often against our most vulnerable citizens, and there is a commonly held perception that they are frequent recidivists who are resistant to rehabilitation. Justified or not, society has developed a heightened intolerance for sex criminals.1

In recent years, laws protecting society from these offenders have grown increasingly broad; the restrictions have become more severe and applicable to more people.2 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.3 For example, many states prohibit sex offenders from living within 1000-2500 feet of schools, bus stops, or daycare centers.4

Today, public outrage and political risk-aversion have driven these laws to the outer boundaries of constitutionality. Some states, such as Georgia, may have already crossed that line.5 With no decisions from the United States Supreme Court and only two from federal courts of appeals regarding the constitutionality of these statutes,6 district courts are being flooded with cases that present questions of first impression.7 These courts must decide how far the Constitution permits the states to go to separate potential reoffenders from their potential victims.8 Some of the most recent laws are the harshest,9 and class action lawsuits brought in the name of sex offenders are springing up throughout the country.10 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.11

Research on the effectiveness of residency laws is scarce. However, a few studies suggest that residency restrictions have no impact on sex offense recidivism.'2 A study conducted by the Virginia Criminal Sentencing Commission found that parolee employment was correlated with lower recidivism rates,13 which suggests that residency laws that indirectly diminish employment opportunities will increase offense rates among paroled sex offenders. Protecting the public from sex offenders is unquestionably important, but states should not sacrifice civil liberties in favor of unproven methods of control.

Reasonable and constitutionally acceptable residency laws may well exist.14 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.

Part I examines existing and potential constitutional challenges to various state residency laws.

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