In the Zone: Sex Offenders and the Ten-Percent Solutions

Author:Asmara Tekle-Johnson
Position:Assistant Professor of Law Thurgood Marshall School of Law

Asmara Tekle-Johnson, Assistant Professor of Law, Thurgood Marshall School of Law. J.D., Cornell Law School; A.B., Harvard College. I would like to thank Keshia Babin, Fabiola Cagigal, and Joely Stewart, Thurgood Marshall School of Law Class of 2008, 2007, and 2010, respectively, for their research and editorial assistance. In addition, I thank Mario L. Barnes, Pamela Bridgewater, Patricia Broussard, Walter Champion, Marcella David, Aya Gruber, Denise Hancock, Dannye Holley, Thomas Kleven, Kali Murray, Janai S. Nelson, Danyahel Norris, Angela Onwuachi-Willig, Jean Powers, Caprice Roberts, DeCarlous Spearman, and L. Darnell Weeden. Special thanks to my family. I also benefited from comments received at the 2007 annual meetings of the Midwest People of Color Conference, the Lutie A. Lytle Black Women Law Faculty Writing Workshop, the Southeastern Association of Law Schools ("SEALS"), and the LatCrit Conference.

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With the horrific and highly publicized disappearances, sexual assaults, and murders ofJessica Lunsford,1 Jacob Wetterling,2 and Megan Kanka,3 it is no wonder that society currently views convicted sex offenders as some sort of "human . . . toxic waste" destined to live on the literal and social margins of society.4 Legislators have attempted to manage this "human-waste" problem in a number of ways, such as through registration requirements5and community-notification provisions.6 Currently, sex-offender waste management has devolved into sex-offender residency restrictions ("SORRs"), or legislative regimes that mandate wholesale restrictions on where convicted sex offenders may live, generally without any accompanying rehabilitative measures.7

SORRs typically prevent convicted sex offenders from residing within certain distances-generally between 500 and 2500 feet-of areas where Page 611 children may congregate, such as schools or child-care facilities.8 In spite of evidence that family members or acquaintances of the child commit almost ninety-three percent of sexual assaults committed against children seventeen years of age or younger,9 these schemes focus on strangers10-who account for less than ten percent of total child sexual assaults11-and are strengthened by the erroneous perception that all offenders are destined to reoffend.12

At first glance, SORRs seem plausible because, in theory, convicted sex offenders-especially those who abuse children-would have less access to Page 612 and be less tempted by the objects of their desire.13 In practice, however, there is no evidence proving the effectiveness of SORRs.14 Instead, they arguably worsen the problem by isolating convicted sex offenders from the Page 613 urban cores, where countervailing forces such as employment opportunities, public transportation, social services, therapeutic personnel, family, and law enforcement are most likely to exist and counteract any recidivist impulses.15Thrust out of mainstream urban society into a downward trajectory of "homelessness and transience,"16 the convicted sex offender suffers from increased acute "psychosocial stressors," which is alarmingly correlated with an increased tendency to reoffend.17 Further compromising public safety, SORRs cut off easy access to treatment for those most at risk to recidivate.18

The proliferation of SORRs19 suggests that the convicted sex offender, unlike the convicted murderer, is morally irredeemable, no matter the offense20 or the individual propensity to reoffend. However, in the midst of Page 614 this highly charged atmosphere, this Article asserts a need for rational discourse that truly focuses on protecting children and the larger public from dangerous sex offenders without trampling on the Constitution and common sense in the process.

Lacking in SORR scholarship21 is an in-depth application, incorporating empirical data, of the complete analytical framework under the Ex Post Facto Clause22 reiterated by the Supreme Court in Smith v. Doe,2the most recent Supreme Court case involving sex-offender legislation. Similarly absent are innovative alternative solutions to the very real problem of child sex abuse. Accordingly, Part I introduces a sampling of state statutes and local ordinances pertaining to sex offenders that are likely unconstitutional as retroactive punishments under the Ex Post Facto Clause. It also explores the practical consequences of the current SORR approach. Part II mines precedent in state and federal district courts and courts of appeal to explore the arguments weighing against the constitutionality of many SORR legislative regimes under the Ex Post Facto Clause. Part III recasts SORRs as negative "human zoning,"24 or land-use policies that zone sex offenders out of the city ostensibly to order perceivably disordered individuals,25 but with dangerous and inhumane consequences. It then Page 615 proposes the Sex-Offender Containment Zone ("SOCZ"), a novel "positive" zoning and land-use scheme that zones high-risk sex offenders back into the city.

I Overview
A Reoffense

Unquestionably, government has a legitimate interest in protecting children from dangerous sexual offenders, whether strangers or acquaintances, who would repeatedly prey on them.26 Statistics suggest, however, that the perception that most or all convicted sex offenders are destined to reoffend varies significantly from reality.27 As a whole, sex offenders are no more likely to reoffend, and are even less likely to reoffend based on reconviction rates, than are other criminal offenders.28 In contrast, Page 616 data support the contention that one specific group of high-risk offenders, namely pedophiles, is resistant to treatment and very likely to reoffend, with reoffense rates of over fifty percent.29 Still, according to at least one leading authority in the field, these reoffense rates are lower than those of the general criminal-offender population.30

This public obsession with the ten percent-to the virtual exclusion of the vast majority of sex offenders, who sexually violate children by taking advantage of proximate relationships-has led to sometimes absurd results. The most obvious example is that, while a convicted sex offender is prohibited from living within an arbitrarily set distance of a child-friendly place, he is nonetheless permitted to live with the child and family member whom he sexually assaulted in the first place.31

B Regimes

Like their antecedents mandating registration and community notification, SORRs run the gamut, from relatively lenient to more moderate to comparatively severe and likely retroactive in violation of the Ex Post Facto Clause.32 Many restrictions, however, are in force for an Page 617 offender's lifetime or for a significant portion of time.33 Determining whether the effects of an SORR scheme are so severe that the SORR is unconstitutional under the Ex Post Facto Clause is largely dependent on four factors, all stemming from the Mendoza-Martinez "effects test"34: (1) whether the regime encompasses a broad range of convicted or registered sex offenders in lieu of providing an individualized determination of each sex offender's dangerousness to the community; (2) whether the distance markers prescribed in the statute are prohibitive to such an extent that, for example, they literally zone a registered sex offender out of a city or town, providing the offender with little or no choice but to reside in rural areas where law enforcement, familial and therapeutic support, employment opportunities, and transportation are less likely to be available; (3) whether the list of proscribed sites is so expansive in scope that an offender is similarly zoned out of the city at a significant distance from support and employment networks that might keep him from reoffending; and (4) the length of time that a convicted sex offender is affected by a restriction.35

1. State Regimes

Average and more moderate SORR schemes tend to avoid blanket restrictions on all sex offenders but apply to a broad subcategory of child-victimizing or sexually violent offenders,36 though without individualized...

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