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Wednesday, April 27, 2005

New Miami Beach Sex Offender Laws

Also via Crimprof, I noticed the issue of the new Miami Beach laws which will effectively ban sex offenders from moving into the city.  (There's a newspaper discussion here).

My first thought was "I wonder what Dan Filler thinks of this?"  Filler has argued that sex offender laws are often constructed through a narrative about white children being abducted by strangers for sexual abuse.  In fact, the brunt of these statutes falls on African-Americans who are registered as sex offenders, many for convictions unrelated to sexual abuse of strangers.  I suspect that the Miami Beach law will have similar effects, skewed along racial lines and only loosely related to the perceived problem it sets out to address.

Filler's piece is at 89 Iowa L Rev 1535 (2004), and the SSRN version is available here

Posted by Kaimi Wenger on April 27, 2005 at 03:54 PM in Criminal Law, Kaimi Wenger | Permalink

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Comments

Kaimi,

Do you think there is any room for an EP/P&I challenge to these kinds of zoning restrictions? Under any set of circumstances (i.e. statewide restrictions)?

Posted by: Dave Hoffman | Apr 27, 2005 5:04:27 PM

Dave,

I wouldn't hold my breath. EP jurisprudence is very constrained right now. It would be nice to wave Filler's piece around and say "equal protection violation!" but the reality is that such a claim doesn't look too strong under existing case law.

I don't know the state constitutional provisions or the caselaw on them. It might be possible, particularly in states with more liberal constitutions, to bring this sort of claim as a state constitutional claim.

Posted by: Kaimi | Apr 27, 2005 7:50:36 PM

Now if the whole state did it, it would be a logistical nightmare. Still, do you have any more right to be in Florida than you do to be in Miami Beach? I'm not sure.

If the legislature didn't grandfather in existing residents, then you would almost certainly trigger the takings clause.

An interesting question might be how this will affect existing arrangements to convey property to third-parties who are sex offenders. I.e., I own a house in Florida, and my will says "on my death, my house goes to my son" and my son is a sex offender. Does my son have a takings claim?

For that matter, what if it's an estate with (1) a set date of transfer, and (2) a requirement that the son reside on the property?

I.e., "I convey my house to my wife for a term of ten years. Thereafter, it goes to my son Dan in fee simple, but if Dan doesn't reside in the house, it goes to my son Dave."

Now if the term is in its ninth year, and Dan is a sex offender -- well, we've got a property right coming to him in one year, which he now will have to forfeit. Maybe that's a taking.

Posted by: Kaimi | Apr 27, 2005 7:57:47 PM

I think the real constitutional challenge here would come based on the fundamental right to interstate travel. Yes, you definitely have a right to be in Florida (at least as a U.S. citizen). See e.g. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986) (Brennan, J., plurality opinion).

I would suggest that since there's a fundamental right to live in a state of one's choice unconstrained by law, that right extends to living in a city of one's choice. (Otherwise the state could avoid the right to interstate travel just by banning people from each city.) I suppose the state could impose a disability on that right, either on the state or local level, as an incident to a criminal conviction, but my intuition is that such laws would be looked at very suspiciously: if every state/city did it, it would amount to a revocation of a convict's U.S. citizenship (or at least the right to residence that's the most important right therefrom), and that would be totally unconstitutional. Afroyim v. Rusk, 387 U.S. 253 (1967)

Also, at what point do these laws become unconstitutional ex post facto laws? Just about every court to consider an ex post facto challenge to Meghan's law-type bills have rejected them on the ground that these aren't punishments, but at a certain bloodthirsty point, does it become punishment?

While I'm showing off my raw constitutional badness, how about a Lawrence v. Texas problem? One major argument that was pitched against the sex offender registration laws back in the 90's was that many of the laws had an overbroad scope and included stupid archaic things like sodomy convictions. I think that, in the wake of Lawrence, registration laws would have to be unconstitutional as applied at least to sodomy, fornication etc. convictions.

Posted by: Paul Gowder | Apr 27, 2005 9:18:08 PM

An interesting recent decision from an Illinois Appellate Court, People v. Leroy, 2005 WL 880969 (April 12, 2005), addresses some of these issues. Illinois passed a law that permanently forbids registered sex offenders from residing within 500 feet of any school, daycare center, playground or similar child facility. The law also applies this ban retroactively to any registered offender who did not have an ownership interest in the residence. Mr. Leroy had lived for 36 years at his mother’s residence, which was located within 500 feet of an elementary school. The State kicked him out and he had to move to another town.

The majority upheld this statute over Leroy's many arguments. But, the decision generated a lively debate about whether Leroy’s forced relocation from his residence, subject to this residency limitation everywhere in Illinois, qualifies as “banishment,” with the majority and dissent expressing differing views of what the historical punishment of banishment in fact entails. All appeared to agree, however, that true banishment—like you cannot live in this town?—would amount to punishment for ex post facto purposes. The majority also addressed Leroy’s interesting EP argument that the law improperly discriminates between those who can afford to buy into the ownership exemption and those, like Leroy, who cannot. Apparently this exception was established to keep the State from having to respond to Kaimi’s argument and buy up large numbers of owner-sex offender homes.

Posted by: Brooks | Apr 27, 2005 10:10:39 PM

Brooks... but a leasehold is a property interest!?

(I'll have to read that case tomorrow.)

Posted by: Paul Gowder | Apr 27, 2005 10:30:00 PM

I have a client here in Florida. His case involves two counts of sexual batter upon his WIFE which occured during a divorce action. They have since reconciled and live with their three children. He took a no-contest plea to dispose of the matter in mid-1997 BEFORE the Florida registration law was enacted. He has therefore never formally been declared a "sex offender" by a court of law. However, since he fits within the criteria (without regard to whether or not adjudication was withheld) the FDLE has made him register, and his face is on the internet. The law makes no distinction between sexual offender and pedophile, which obviously, he is not. Notes have been placed on the family car stating "We do not want you here", and his childs Day-Care center insists that he not show up at the school to pick up his children. BUT HE IS NOT A PEDOPHILE. Accusations of molestation and sexual battery are not at all unknown in bitter divorces and custody battles, whether they have merit or not. The law in Florida paints with a broad brush, and common citizens do not make the subtle distinction between "sex offender" and Pedophile. Any thoughts are welcome.

Posted by: Robert Devin | May 13, 2005 3:59:33 PM

I live in Georgia, which is dealing with this now, and here is SOME of
my comments.

I totally agree, ANY "registry" is just plain wrong. The Nazi's used them, and they banished millions of jewish people who did not deserve any of the pain, suffering and death they were forced to succumb to.

People who say "but it's for the children" is just trying to scare the hell out of the public, and guess what, it's working. Just look at all the hateful things MANY people who are uneducated are saying, like "LET'S HANG EM ALL", "THEY SHOULD ALL REPORT TO THEIR LOCAL POLICE DEPARTMENT AND CHECK IN". These people are very uneducated, hopefully they will read all these replies, and DO SOME RESEARCH before ranting off more hate-filled-talk.

I am all for punishing predators and pedophiles, but, while they are in jail or prison, they need to be getting professional help. People can change, you just have to give them the tools to help them change. If you just lock them up for years, and then let them out, they are just going to be worse than when they originally went in.

I've never been in prison, but I know jail is very bad. You have a lot of cops with GOD complexes, who think EVERYONE in jail are scum, when they are the ones who need help. I've seen a cop break a guys arm in jail, just because he asked for some coffee, the cop told him "Shut the **** up you queer!", and the guy started other bad comments back to the cop, who then thru him on the ground and broke his arm. This cop should be locked up for a long time, until he gets his anger issues worked out, or loose his job.

I am a SO myself, and I'm not trying to down play what I did. I know it was wrong, but I don't think I deserve all this, who was simply getting out of my shower one morning, just moved into a new apartment, and thought there was woods in the back. I had plans for the day to go to the lake, so I wanted to see what the weather was like, so while I was still nude, I walked back to the back sliding glass door, opened it slightly, and pulled the curtains back. An 11 year old was back there, and she saw me. I was not fondling myself or anything. She ran and told he mother, and now, since 1998, I've been fighting this SO registry and laws since, and also labeled a "CHILD MOLESTOR" just because the girl was 11 years old and someone I didn't know. Also labeled a "VIOLENT" person because she was so young, and someone I did not know.

I've recently took a sex evaluation, and the therapist
said I passed it with flying colors, meaning I'm normal
and do NOT have any sexual desires for kids. But,
because my original victim was 11 years old, I'm in the
medium or high risk. Why? If I came back to the
therapist in 50 years, it would be the same. Why am I
not judged on how I am today, not something I did back
in 1988? How's this right? If I passed it with "flying
colors", then I'm LOW RISK!!!!! I've never been
convicted of another sex crime, and have no intention of
being, but all these stipulations are making it hard to
not FAIL!!!!

I was also molested/raped by my brother when I was young, which I did not even remember until I went to therapy. And when I finally remembered it, I was VERY ANGRY, and if my brother was not in the military at the time, and at home, I'd probably purchased a gun, stuck it in his mouth, and pulled the trigger. But, I know that would've got me into a lot of trouble, upset my parents a lot, even though I know they were also upset this happenned. But, I am glad I did not do that, and I forgave my brother, whom I loved very much, and still do. But, he died in the marienes while traveling at a high rate of speed on a motorcycle, while drunk. He slammed into a mediam and it decapitated him.. When I found that out, it tore me apart, and I was really depressed, and I did not want to kill myself, but a lot of my actions seemed like I was trying to. I love my brother very much, and will miss him forever, even though I'm still angry it happenned. I think if this would've never happenned, I would not be in the situation I'm in now.

So most SO's, IMO, have probably been molested
themselves when they were young, and need help,
professional help. Not locked up for the rest of their
lives. If you are a TRUE Christian, then you know, you
must learn to love your enemy and forgive, which I've
done, so you must do the same. I'm not saying it's
right, but we MUST learn to love and learn from our
mistakes, not just lock them up and throw away the key.
That makes things worse. We have kids killing kids, and
people killing people for stupid stuff, like a pair of
shoes or 2 dollars. Come on!! WE MUST CHANGE!!

So if you know of anyone who was molested, or if you
were, believe me, you need to get help, please. Or
you might wind up in the same situation I'm in, or
worse.

I've been single my whole life, due to all this. I've
not trusted anyone, especially police, government
people, and many lawyers and therapists. They all seem
like they are out to do me in, or get all the hard
earned money I'm making.

Some issues with these laws are (in my opinion):

a) 1000 feet buffer zones, these do nothing but give the public a false sense of security. If someone wanted to hurt a kid, they just hop in the car and drive. And
also makes it very hard for someone to find a place
to stay, I know, been there, done that.

b) As far as churches, pools and places where kids congregate, same as above. False sense of security. Why can't I go to church and afterwards, hang around talking to people? Also, if someone had a business, then later a church was put up next door, they can now go to church, but cannot run their own business. Also, I have been all over the local area looking for hotels/motels to stay, and almost 100% of them have a pool or church near by.

c) They are also claiming it's to protect the kids, but what about the familes and kids of SO's? They do NOT
care about them, and now, instead of the SO being
punished, their whole family is. Their kids cannot be
around their mother or father because they are a SO.

d) These buffer zones, when enacted in ALL states, will basically BANISH SO's. Where are they going to live?
Some people have said some island somewhere, or who
cares.... EVERY human being has rights, even
murderers, jews, christians, SO's, everyone!!!

e) SO's are scape goats for politicians so they look
like they are TUFF on SO's to get votes. And if the
public accepts this, eventually they'll pass other laws
to make your life hell as well.

f) I don't like doing this, but, if you read Hitler's
"Mein Kampf" he made the following statement. Which if
you think about it, this is what politicians, John Walsh,
and many other folks are doing now. Pretty soon, more
crazy stuff will be passed, and eventually this will be
a Nazi country.

"The state must declare the child to be the most
precious treasure of the people. As long as the
government is perceived as working for the benefit
of the children, the people will happily endure
almost any curtailment of liberty and almost any
deprivation. -Mein Kampf, Adolf Hitler

Now think about the above for a minute. Pretty soon,
the prisons will be turning into concentration camps,
then Christians, Jews, Muslims, Blacks and any other
person, will wind up in there. Wake up people!!!!

g) By putting the offenders address on the registries,
this only helps vigilante's hunt us down to kill us. I
am constantly nervous when my phone rings, someone
knocks on my door, I go outside, I'm always thinking any
minute now someone is going to kill me or hurt me. I
know many people would probably love that, but how'd you
like to live like this? If someone gets near me to hurt
me, believe me, I'm not going to go without YOU getting
HURT!! Read the news, many SO's have already been
killed by vigilante's. I even read recently where a
JUDGE killed someone, just over something his wife said.
His wife said their 2 year old girl said the next door
neighbor touched her incorrectly. Now, that may've been
true, but I find it hard to believe a 2 year old would
say something like that. So, the JUDGE (father) took it
upon himself to go next door, climb into the guys window
while he was asleep, and stabbed him MANY times. Now you
understand why I am a nervous wreck, and constantly
worried......

h) The law says they would categorize people on the
registry into low, medium and high risk. THEY HAVE NOT
DONE THIS! They've put EVERYONE into the HIGH risk
area, and the PUBLIC has the impression we are all
hiding behind the bushes, waiting for your kid to come
by, so we can hurt and kill them. This is untrue!!
And is only the politicians scaring you, so you go
along with their laws. Wise up folks and read the laws,
then, with a truely open mind, tell me you think these
laws are fair.

i) The world today is cruel, so if you have kids, do
your job and monitor them. If I see your kid out on the
street, unattended, I'm going to call 911, tell them I'm
a SO, and some jerks kids are out roaming the street, so
come do your job and get the kid off the street. I'll
only be protecting myself, and I expect you to protect
your kids. Bush says the American public CANNOT PROTECT
THEMSELVES. Are you truely going to believe this?
Protect your kids, watch what they are doing on the
Internet, and who they are talking to, it's your job
and right to know what they are doing.

Ok, I think this is enough for now.... :)

Peace and God Bless you ALL!!!!!

Posted by: ZMan | Sep 3, 2006 9:31:20 PM

I pled guilty to having some naked pictures of girls under 18. I wsa a 40 year-old virgin and I was "curious". I was living in my car a the time, so everything I owned was in the car.

I pled guilty to "POSSESSION" of some naked pictures under 18, but the police report insinuates other things: THEY say I had weapons (I had some steak knives because everything I owned was in the car.) They inply I was a distributor or child pornography (Well, I wasn't charged with use of a computer to obtain illegal pornography, I was living in my car and charges of distribution don't make sense.) The arrest was shortly after the OJ Simpson Trial and they kept one of my "gloves" as "evidence". (No-one seems to know what that was about.)

In summary, the police saw someone living in his car, they figured he must be up to no good, and they proceded to make things up to chatge him with a crime - after the fact.

I am not and I have never been a threat to anybody, but I was guilty in the police's eyes of the crime of "suspiciousness".

I never served a jail sentence. I never figured out what it meant for me to register on the Sex Offender Registry (the state law said I was to register within 10 days after leaving prison - I never served any jail time.)

The logic for punishing any person on the SOR goes something like this: You need to register because Meghan was abducted and raped and murdered. Well, charge Meghan's murderor. Punishing me or anyone like me makes no sense. I am not and I have never been a threat to anybody.

Take your rage out on the people who committed a crime (if it exists). Otherwise, you are just like the people at the Roman games who liked to watch slaves getting killed by soldiers and animals just because they just liked seeing other people getting hurt. Period.

Posted by: Stoverman | Nov 28, 2007 9:34:06 AM

You know zman you might have something there... I have spoken with a few attorneys on challenging different aspects of megans law; which they all seem afraid to challenge for a number of reasons. But challenging megans law directly on the fact that we are not the defendant on that case perse, nor was poor megan our victim. Its exactly like someone being punished for someones actions and criminal activity. The hard part is prooving that its the legislations intent to deny us our rites and outcast us with punitive actions. I have been reading tons of cases for the last 12 years concerning sex offenses and higher court rulings. I can comprehend that they know what is going on and are turning the blind eye to justice. Event hough we have the liberty with the blind fold and scales its sad to see within our great country the suffrage that our citizens have to go through repeatedly being killed, relocated, constitutional rights being violated, assulted, and victims ourselves just to proove so they can take off the blind fold and make action that should have been taken from the start. I mean look at history and other past civil disputes through out time going back in history up to present. So many people died or were injured in the process to have their rights. Wars were fought to protect this right. When are we as a nation going to take of the blinds and use the scales. We might as well elect only blind people as judges and congressional leaders, if its going to stay like this.
The last time I checked we all are citizens regardless of age minors or adults women and men alike. We all have the right to live in the pursuit of life and liberty. Couldnt the SO Laws be construed to be a form of discrimination based on age and denying certain class of citizens based on conviction their liberties and freedom? That younger age citizens safeguards out weigh adult safguards when it comes to liberty. Wouldnt this cut against the grain that the constitutional provisions were created to be equal to all age groups and to be applied equally to all.

Posted by: zeph | Jan 24, 2008 12:07:02 AM

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