The Marshall Project has published an important new article by Maurice Chammah on legal challenges to restrictions on where registered sex offenders can work, live, and visit. See “Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic.”  Chammah writes that activists, finding lawmakers unreceptive to any measure perceived to benefit sex offenders, “have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.”

 Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

These arguments are proving effective.  This past August, the 6th U.S. Circuit Court of Appeals invalidated a Michigan law that applied tight registration restrictions to people convicted before the law was passed.  The court wrote that the law “has much in common with banishment and public shaming.”

Since 2014, state and federal judges have struck down laws restricting where sex offenders can live in California, New York and Massachusetts. In addition to the Texas lawsuits, there are ongoing legal battles over registries and restrictions associated with them in Illinois,Wisconsin, Louisiana, Alabama, Colorado, Nevada and, Idaho, among other states.

Advocates must overcome governments based on two 2003 U.S. Supreme Court decisions upholding sex offender registry schemes in Alaska and Connecticut against constitutional challenge, on grounds that registration is appropriate regulation as opposed to punishment. Writing for the majority and citing earlier opinions, Justice Anthony Kennedy noted that such laws were crucial because “the risk of recidivism posed by sex offenders is ‘frightening and high.’”

“A lot of states have treated Smith v. Doe as a blank check,” says Miriam Aukerman, an ACLU attorney who successfully challenged Michigan’s laws.

Kennedy’s “frightening and high” line was based on a 1988 Department of Justice guide for treating sex offenders, which cited an unfounded conjecture in the magazine Psychology Today. Further studies have shown the ineffectiveness of residency restrictions. In 2003, the Minnesota Department of Corrections collected data on nearly 100 sex offenders who had been released from prison and concluded, “There is no evidence in Minnesota that residential proximity to schools or parks affects reoffense.” As many as90 percent of child victims know their rapists, but residency restrictions are meant to stop sexual assaults by strangers, a much rarer scenario. The California Sex Offender Management Board, a state agency, concluded in 2008 that restrictions had led more sex offenders to become homeless, and in turn more likely to reoffend.

Some of these studies have been cited in decisions siding with registrants against states and cities. J.J. Prescott, a University of Michigan law professor, suspects that years of newsstories about the difficulties of living on the sex offender registry have had an effect. “Judges read the papers,” he says. “They see the same stuff on the internet that we see. As the lack of social science supporting these laws becomes increasingly conspicuous, I believe they’ve become more likely to take the constitutional objections seriously.”

Plenty of judges have come to the opposite conclusion, ruling that various restrictions do not constitute “punishment” (and therefore do not violate the Constitution’s ban on adding punishments long after conviction). In September, California’s 9th Circuit Court of Appeals upheld a lower court ruling in favor of Arizona’s sex offender laws. Attorneys for the states and cities with restrictions tend to portray them as not particularly invasive. Louisiana’s 5th Circuit Court of Appeals is due to rule in a lawsuit against Lewisville, Texas, which argues that its ordinance against sex offenders living within 1,500 feet of any place where children gather is a “relatively limited restraint.”

 

Chammah describes one situation in which pressure short of litigation did work to roll back residency restrictions:

[Texas activist Mary Sue] Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe. She enlisted Denton lawyer Richard Gladden. He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field. Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own.

Gladden sent letters threatening lawsuits to 46 city councils. Within two months, half of them had repealed their ordinances. Gladden and Molnar are currently suing 11 of the remaining towns.

Chammah reports that North Carolina activist Robin Van der Wall is convinced

it is only a matter of time before the conflicting judicial opinions leads the Supreme Court step in.

“That,” he says, “would set the stage for the grand show.”