Never going home: does it make us safer? Does it make sense? Sex offenders, residency restrictions, and reforming risk management law.

• Author: Durling, Caleb

1. INTRODUCTION: MEET PATRICK LEROY

   Patrick Leroy is thirty-seven, and has lived almost all of his life with his mother in East St. Louis, Illinois, (1) one of the state's--and nation's-poorest communities. In 1987, when Leroy was eighteen, he was convicted of an unspecified sexual offense, (2) for which he served six years in prison. (3) As a result of this conviction, Leroy is now considered a sex offender, mandating that he annually register his address with, and pay a registration fee to, the local authorities for the rest of his life, or be sentenced to up to three years in prison for noncompliance. (4) Since being released over a dozen years ago, he has lived in his mother's house and committed no further sexual offenses. (5)

   In July 2000, Illinois passed a sex offender residency restriction law. (6) The law forbade anyone convicted of a sex offense from living within five hundred feet of playgrounds, schools, or day care centers. (7) The ban applied prospectively and retrospectively, exempting only those who owned a house within the five hundred foot buffer at the law's inception from having to move. (8) Violation of the residency restriction law in Illinois is a felony, punishable by one to three years in prison. (9) Leroy's mother's house, where Leroy had lived all of his non-incarcerated life, is located within five hundred feet of Miles Davis Elementary School. (10)

   Leroy was charged in August 2002 with violating the residency restriction statute. (11) In the ensuing trial and appeal, Leroy argued that these new restrictions violated his substantive and procedural due process rights, his fight to equal protection, his right against self-incrimination, prohibitions against ex post facto laws, and prohibitions against cruel and unusual punishment. (12) The Fifth District of the Illinois Appellate Court rejected all these considerations; (13) the Illinois Supreme Court denied his appeal; (14) and now Patrick Leroy cannot live in his mother's house. (15)

   The three-member panel's decision was not unanimous, as Judge Kuehn dissented vigorously to the "expulsion" of Patrick Leroy. (16) Judge Kuehn, in detailing the constitutional infirmities of the residency restriction law, (17) noted that the law's enforcement would result in a lifetime ban against Leroy returning to his longtime home, where he had lived without incident for thirteen years since release from prison. (18)

   Patrick Leroy's story is not unique. He is just one of many former sex offenders now caught in an escalating movement to publicly identify and stringently control sex offenders in order to prevent the next graphic sex crime against children. Sex offenders are vilified and feared; their crimes considered our "society's worst nightmare." (19) But while legislators gain notoriety in this "race to the bottom" (20) for passing laws banning sex offenders from living near day care centers, schools, parks, libraries, pools, and recreations trails, larger questions loom: Have these laws made our children safer? More to the point, do these sex offender restrictions make sense? If these "Scarlet Letter" (21) laws are not effective, what system would ensure better sex offender risk management without wasting scarce public funds policing and onerously burdening those low-risk offenders like Leroy, who have lived without trouble down the street from schools, parks, and nurseries for many years?

   To answer these questions, the Comment is divided into three main parts, considering residency restrictions as a microcosm of the larger problem of effective and constitutional sex offender risk management. Section II traces the recent development of sex offender laws and the resulting pariah-like status of sex offenders in contemporary America. (22) Sections III and IV specifically focus on residency restrictions, first scrutinizing their scientific, economic, and political problems before analyzing the ex post facto constitutional infirmities with the laws. (23) The conclusion from Sections III and IV is that uniformly applied residency restrictions will probably fail judicial scrutiny, and in any case are ineffective in preventing sex offender recidivism. (24)

   The Comment's last part takes up the policy question of what states should implement in lieu of ineffective and unconstitutional uniformly-applied residential restrictions. Section V examines best practices for managing sex offender risk that have been implemented across the country, considering how each one works and its particular benefits and problems. (25) Finally, Section VI proposes a synthesized method of managing sex offenders, which achieves the paramount goal of protecting children by targeting the minority of offenders who are high risk while relaxing restrictions on the vast majority of offenders who studies have shown do not re-offend. (26) This synthesized risk management strategy better allocates scarce public resources, allays public fear, and withstands constitutional scrutiny. (27)

2. BACKGROUND

   This section examines the political and social conditions that have led to the residency restrictions that forced Patrick Leroy to leave his mother's home. In turn, this section considers the political and legislative response to sex offenders, the mechanics of residency restrictions, the public's perception of sex offenders, and the judicial treatment of sex offenders.

   1. THE POLITICAL RESPONSE TO SEX OFFENDERS

      Strict laws that specifically target sex offenders are a recent innovation. After several well-publicized brutal sexual assaults and murders of children by previously convicted sex offenders living inconspicuously near their victims, states began to pass "Megan's Laws" in 1990. (28) The laws are named after Megan Kanka, a seven-year-old girl from New Jersey who was victimized and then killed by a neighbor who community residents did not know was a twice-convicted sex offender. (29)

      Megan's Laws, also known as sex offender registration acts (SORAs), require offenders to register promptly when they are released from prison, and also mandate that sex offenders convicted in the past now register themselves with their local police department. (30) The goal is to put a face on sex offenders, so they can no longer prey as strangers on the most vulnerable members of society. (31) The laws, although state-created, became essentially mandatory when Congress passed legislation conditioning 10% of all federal law enforcement funding to the state on the state having an acceptable sex offender registration law. (32)

      Despite sex offenders being the only class of convicted felons generally forced to register and have their names and pictures posted on websites accessible to the general public, (33) legislators and local officials have since sought even harsher measures. The mayor of Albuquerque proposed posting sex offenders' photos and descriptions at the zoo and other places where children congregate because he believed that an offender had "'Danger: Will re-offend' virtually stamped on his forehead." (34) When asked about the constitutional rights of the offenders that were possibly being violated by this proposed law, the mayor replied that the "offender surrendered his rights when he committed his first attack," and so "his rights should not be taken into consideration when formulating a sex offender policy." (35) For Halloween 2005, state officials in South Carolina, county officials in Cook County, Illinois, and city officials in Rochester, New York, all placed prohibitions on sex offenders having any contact with Halloween festivities. (36) The increasingly onerous restrictions have led one commentator to conclude: "Politicians, even in honest attempts to protect the public good, sometimes go too far without considering unintended consequences." (37)

   2. RESIDENCY RESTRICTIONS

      Thirteen states, including Illinois, have passed laws in the last five years banning sex offenders from living within a certain distance of schools, parks, day care centers, and "places where children normally congregate." (38) Residency restrictions are justified as a means of "taking away a portion of the opportunity" for sex offenders to re-offend. (39) In terms of width of the prohibited zone, they range from a five hundred foot restriction in Illinois (40) to two thousand feet in Alabama and Iowa. (41) Oregon has adopted a "general prohibition" against sex offenders living "near where children reside." (42) In terms of prohibited locations, most states' restrictions encompass school and child care facilities, and sometimes parks and the current location of the particular offender's victim. (43) Georgia's law also includes a vague proscription against living within one thousand feet of any area "where minors congregate." (44) These residency restriction laws, like previous sex offender laws, have been generally applied not just prospectively to offenders being sentenced in the future and currently imprisoned or on parole, but also retrospectively to anyone previously convicted of a "sex offense." (45)

      Smaller units of government have also enacted residency restrictions. Cities and counties across the country have passed residency restrictions. (46) The restrictions include extensive bans, such as 2500 feet around anywhere children congregate in Miami Beach, Florida, (47) and expanding the list of restricted areas to also include public pools, libraries, and multi-use recreation trails in several Iowa counties and communities. (48) In addition, quasi-governmental units like common interest communities have added covenants banning sex offenders altogether from their communities. (49)

      The laws grandfathered some offenders living within the restricted areas, but not all. Illinois, for example, exempted those sex offenders who owned houses within restricted zones from moving when the law came into being, but did not exempt longtime renters or those, like Leroy, who lived with a relative who actually owned the...