Constitutional Collectivism and Ex-Offender Residence Exclusion Laws

• Author: Wayne A. Logan
• Position: Visiting Professor of Law, College of William and Mary School of Law (Fall 2006)
• Pages: 2-40

Visiting Professor of Law, College of William and Mary School of Law (Fall 2006); William Mitchell Research Professor of Law, William Mitchell College of Law. Special thanks to Kim Dayton, Brannon Denning, Neal Devins, Dave Douglas, Jim Dwyer, Roderick Hills, Eric Janus, Alexandra Klass, Roxanne Lieb, David Logan, Paul Marcus, Ronald Rotunda, Norman Williams, and Ron Wright for their helpful comments. Also, many thanks to Robin Dull, of the Iowa Law Review staff, for his input and suggestions.

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I Introduction

Among the most notable accomplishments in America's ongoing evolution is a definitional one: the transformation of the nation's denizens, initially disposed to identify with their states, into "Americans." This development, of course, was not the result of mere chance or inadvertence: the nation's Constitution itself was born of a recognized need to bind residents more tightly than permitted by the Articles of Confederation,¹ as evidenced in the Preamble's invocation of "We the People of the United States."² Almost a century later, in the wake of a regionally inspired Civil War,³ the need to fortify the nation's collective identity was again made manifest, inspiring a constitutional amendment expressly making Americans citizens both of the "States wherein they reside" and "of the United States."⁴ As a result, national citizenship came to serve as "the dominant and paramount allegiance among us" to a greater extent than ever before.⁵

Throughout the nation's history one premise has thus held firm: "that the peoples of the several states must sink or swim together."⁶ FirstPage 3 jeopardized by primarily commercial conflict (late 1700s) and later political conflict (mid-1800s), national solidarity today faces a new threat, one of a social nature: state efforts to ban ex-criminal offenders, in particular those convicted of sex offenses, from their bounds.

At this time, eighteen states and hundreds of localities have adopted laws preventing convicted sex offenders from living in prescribed areas,⁷ affecting thousands of individuals.⁸ Given the enormous political appeal of exclusion laws,⁹ and the reluctance of the judiciary thus far to invalidate them,¹⁰ there is every reason to expect that they will continue to proliferate, and if past experience holds, inspire efforts to target other ex-offender subpopulations as well. This expansion, however, will come at the expense of the nation's collectivist tradition, for while the individuals targeted by the laws are despised and feared, they ineluctably also constitute part of the "people[]" with whom all Americans must "swim."¹¹

This Essay addresses how such subnational efforts at social control undermine American constitutional collectivism. Part II provides an overview of the current wave of residence exclusion laws, examining the broad range of constraints the laws impose on individuals. The discussion then situates the laws in the context of other governmental strategies to use geographic limits to achieve social control goals, an impulse the Supreme Court once deemed "founded . . . in the sacred law of self-defense."¹² Residence exclusion laws, however, differ from these kindred efforts in important ways, most importantly because the laws can effectively result inPage 4 indefinite status-based banishment from entire states, backed by threatened criminal sanctions.

Part III examines the state and federal judicial decisions that have thus far addressed residence exclusion laws. Showing characteristic deference to the police power of states, in each instance courts have rebuffed challenges. Missing from these decisions, which focused on the residence restrictions of the particular provisions challenged, however, is critical concern for the actual in-state and out-of-state consequences of exclusion laws. While the laws do not impose de jure banishment,¹³ they do, in conjunction with already acutely limited housing options for ex-offenders, impose limits that result in de facto banishment. Individual state efforts to expel and repel ex-offenders, in turn, ultimately have broader systemic effects; other states, fearful of an invasion of ex-offenders, respond by adopting their own exclusion laws, domino-effect style. As a consequence, as the laws gain favor, a classic tragedy of the commons problem is now taking shape, with states exporting negative externalities in the form of increased social welfare costs associated with offender reentry, and, ultimately, the prospect for criminal recidivism.

Part IV discusses how residence exclusion laws defy the collectivist traditions on which the nation was founded and threaten the destructive interstate discord the federal union was designed to avoid. After canvassing the many textual manifestations of constitutional collectivism, the Essay focuses on its prime jurisprudential manifestations, singling out two of the Supreme Court's Dormant Commerce Clause decisions in particular. The first, Edwards v. California,¹⁴ addressed a state effort to exclude the poor, a subclass of the nation's citizenry that, like ex-offenders, has historically been regarded with disdain. The second, City of Philadelphia v. New Jersey,¹⁵ addressed a state effort to bar solid and liquid waste from its territory, an impulse that again parallels modern American correctional policy, aptly referred to as a system of "waste management."¹⁶

In both instances, the Court, while acknowledging the exigencies motivating state isolationism, invalidated the laws because they betrayed the collective imperative of dealing with challenges (the poor and waste) faced by all states. By analogy, the states cannot be permitted to eschew the social and economic challenges presented by ex-offenders, who today reenterPage 5 society in unprecedented numbers. In sum, just as the nation recognized the need to quell state isolationism vis-‡-vis economic and commercial matters, so too must it recognize the need to limit state efforts to isolate themselves from the collective social responsibility of ex-offender reentry.

Part IV examines the prospects for a means to stem the proliferation of exclusion laws. Ideally, the states themselves, in the face of the obvious nowin, comity-based problems associated with exclusion, would resist the temptation to enact the laws. However, the potent political appeal of exclusion weighs heavily against this likelihood. Courts provide another possible avenue; however, the absence of a specific constitutional basis for intervention makes judicial relief equally improbable. Finally, given that the laws present a collective action problem generated by self-interested states, federal congressional intervention has significant appeal. However, federal political leaders, who themselves must stand for reelection before state voters, likely will be disinclined to contravene the politically popular impulse to exclude, resulting in the continued enactment and application of the laws by states.

II Fear and Loathing (in One's Own Backyard)

In addition to being the world's sole political superpower, modern America enjoys preeminent distinction as a punisher. In recent years, the nation has been engaged in an unprecedented experiment in mass penality,¹⁷ regularly leading the world in imprisonment rates.¹⁸ America's penchant for the death penalty, likewise, remains an enduring basis of distinction among Western countries.¹⁹ As recognized by Michael Tonry, "[W]e live in a repressive era when punishment policies that would be unthinkable in other times and places are not only commonplace but alsoPage 6 are enthusiastically supported by public officials, policy intellectuals, and much of the general public."²⁰

Foremost among the targets for the nation's punitive zeal have been sex offenders.²¹ Beset by a "moral panic" in the 1990s,²² states significantly increased prison terms for convicted sex offenders²³ and took renewed interest in long-dormant provisions permitting their involuntary commitment upon release from prison.²⁴ These measures, while achieving the desired goal of physical confinement, failed to assuage public concerns over ex-offenders subject to community release. To address this gap, states in the mid-1990s (at the urging of the federal government) enacted sex offender registration and community notification laws, now in effect nationwide.²⁵

With the dawn of the new millennium, however, another community-based strategy has gained popularity-laws prohibiting convicted sex offenders from living in specified locations. Eighteen states now prohibit such individuals from living near schools and other places where children potentially congregate.²⁶ The spatial limits range from 500 feet²⁷ to 2,000Page 7 feet,²⁸ with most states setting the ban at 1,000 feet.²⁹ All laws use schools and parks as geographic anchor points, but some sweep more broadly. Louisiana, for example, also specifies "any playground, public or private youth center, public swimming pool or free standing video arcade facility,"³⁰ while Georgia's newly adopted law also prohibits residency within 1,000 feet of any church or "area where minors congregate"³¹-defined to include, inter alia, school bus stops, parks, neighborhood centers, playgrounds, gymnasiums, and swimming pools.³² In addition, many states augment residence restrictions with limits on where targeted individuals can loiter³³ or prohibit them from working within the designated zone.³⁴ Finally, most states treat violations of the laws as felonies,³⁵ with Georgia punishing violations with prison terms between ten and thirty years.³⁶

Pa...