Academic journal article Texas Law Review

"The Irons Are Always in the Background": The Unconstitutionality of Sex Offender Post-Release Laws as Applied to the Homeless *1

Academic journal article Texas Law Review

"The Irons Are Always in the Background": The Unconstitutionality of Sex Offender Post-Release Laws as Applied to the Homeless *1

Article excerpt

Introduction

Convicted sex offenders who have served their criminal sentence must, upon release, navigate "a byzantine code [that] govern[s their lives] in minute detail."2 Sex offender post-release (SOPR) laws impose affirmative obligations on sex offenders3 that extend far beyond any sentence of incarceration, often lasting the person's lifetime.4 SOPR laws require sex offenders to register with and periodically report in person to law enforcement, ban offenders from various avenues of gainful employment, mandate GPS monitors, and demand periodic fees.5 Some states and localities employ residency restrictions that prohibit sex offenders from living within a certain distance from schools, playgrounds, parks, or other places where children congregate.6 Municipalities also restrict where sex offenders may be physically present.7 Many paroled sex offenders must subject themselves to regular psychological evaluation, routinely take polygraph tests, and enroll in lengthy and expensive therapy.8 SOPR laws frequently require sex offenders to pay for their psychological treatment, polygraph tests, and GPS monitoring.9

Sex offender registration laws emerged as a response to a string of horrific crimes and resulting public outrage.10 In one such case, a disguised, armed man stopped eleven-year-old Jacob Wetterling while he was riding his bike with friends.11 The man ordered the friends to flee, and Jacob was not seen again.12 Although Jacob's body was never found, and his perpetrator never identified, the police discovered that recently released sex offenders had been staying in a nearby halfway house.13 In another case, seven-yearold Megan Kanka accepted a neighbor's invitation to play with his puppy.14 The neighbor, a twice-convicted pedophile, raped and murdered Megan before dumping her body in a park.15 Megan's parents said they would not have allowed Megan to travel around the neighborhood if they had known that there was a convicted sex offender living across the street.16

Incidents like these convinced legislators that sex offenders posed a high risk of recidivism and must be monitored.17 Congress responded in 1994 with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act.18 The statute made certain federal funding to the states contingent on each state establishing a sex offender registry. The states complied.19 Legislators and groups lobbying for registries believed that the "release of certain information about sex offenders to public agencies and the general public [would] assist in protecting the public safety."20 Sex offender registration was intended to "provide[] a system by which law enforcement agencies can track, supervise, and monitor these offenders."21 Legislators justified sex offender registration and community notification by the need to "increase public awareness about sex offenders . . . so that concerned citizens and parents can take protective actions to prevent victimization. "22 The aim was "to prevent recidivism by increasing scrutiny of sex offenders through enhanced law enforcement monitoring and public awareness."23 In sum, SOPR laws attempt to inform communities about a sex offender's presence in their neighborhood, expand the information available to police seeking to identify suspects, deter potential offenders, and limit access to potential victims through the use of residency and employment restrictions.24

Notwithstanding these goals, there is no proof that SOPR laws actually reduce recidivist sexual violence or deter first-time offenses.25 Indeed, numerous scholars and activists maintain that SOPR laws may actually increase non-sex crime recidivism because registrants have a more difficult time reentering society. Patty Wetterling, Jacob Wetterling's mother, was an early advocate of the registry and these comprehensive laws, but has recently questioned their effectiveness. She believes the laws have gone too far, are used against too many people, and are fueled by our anger. …

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