« The obvious loophole | Main | More thoughts about blogs as a law professor's medium »

Wednesday, August 03, 2005

Sex Offender Residency Restrictions and the Right to Live Where You Want

One of the most interesting public policy developments of the last few years has been the rise of land use restrictions that regulate who your neighbors are, as opposed to what your neighbors can do.  Perhaps the most important example of this trend is the enactment, by at least twelve states, of sex offender residency restrictions.

Such laws generally prohibit registered sex offenders from residing within 1,000 or 2,000 feet of schools or day-care facilities.  Some of them, however, such as Louisiana’s and Georgia’s are broader, and include places like video arcades, swimming pools, and any location “where minors congregate.”

The constitutionality of sex offender residency restrictions was recently tested in the 8th Circuit.  See Doe v. Miller, 405 F.3d 700 (8th Cir. 2005).  In Doe, the court reversed a district court opinion that had invalidated Iowa’s sex offender registry requirements.  The court noted that the law prohibited sex offenders from living in many Iowa towns altogether, and rendered 77% of the state’s housing units off limits to convicted sex offenders.  Most of the remaining 23% of Iowa's housing units consisted of rural farmhouses.  Still, the court found no constitutional violation, rejecting, inter alia, ex post facto arguments, substantive due process claims, and procedural due process claims.  The opinion was controversial, as five 8th Circuit judges voted to hear the case en banc.

To me, the most interesting part of the 8th Circuit’s opinion was its rejection of the plaintiffs’ claim that there is a “fundamental right to live where you want.”  The court basically quoted Washington v. Glucksberg’s two-pronged test for new fundamental rights (is the right deeply rooted in the nation’s history and implicit in the concept of ordered liberty?), and said the plaintiffs failed to develop an argument for how that right satisfies those prongs.  But is it really so hard to construct such an argument?  While early American municipal ordinances sometimes confined members of certain ethnic groups to ghettos, these laws are rightly viewed today as embarrassments, though perhaps our revulsion has more to do with ethnicity than ghettoization as such.  Still, setting aside banishment laws and particularized restraining orders, I can think of little historical precedent for states preventing citizens from living in homes they can afford to buy, let alone rendering entire cities off limits to undesirables.  And it’s not far fetched to say that the right to live where one pleases (again, if one can afford to do so) is implicit in the concept of a free society, whatever that means.  Government-mandated ghetto-ization is, after all, a hallmark of un-free societies.  Unless we want to embrace a problematic “greater power (to incarcerate) includes the lesser power (to ghettoize)” tack, these laws should prompt serious reflection.  I am not entirely convinced that this right counts as fundamental under the Glucksberg framework, but it seems to me the question is close enough to warrant some scholar’s careful historical research and perhaps more sustained attention from the nation’s judges.

Posted by Lior Strahilevitz on August 3, 2005 at 12:08 AM in Constitutional thoughts | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Sex Offender Residency Restrictions and the Right to Live Where You Want :

» Redlining Sex Offenders -- Update and Blawg Debate from A Stitch in Haste
A while back I blogged, twice, about cities establishing "no residency zones" where sex offenders, particularly ... [Read More]

Tracked on Aug 4, 2005 3:44:37 PM

» CA cases on animal restrictions for felons from Hounded, Cowed,
Given how politically disempowered convicted criminals are in this country, and the general law and order approach to criminal justice, is not surprising that legislatures and courts have seen it fit to regulate the keeping of animals by convicted felons. [Read More]

Tracked on Nov 29, 2006 1:49:27 AM


Sex offenders should most definetly be branded for life. We need to know who they are. As far as their families suffering-that's the fault of the sex offender. He or she is the one responsible for inflicting that trauma. Blame him-no one else. And for the poster that is afraid of her neighbors because her husband is a sex offender. It's not the neighbors you should fear- it's your husband. I can't believe you are so low as to stay with someone that finds children sexually attractive. Your as sick as he is.

Posted by: sel | Jun 19, 2006 10:54:26 AM

Yes this ordinance has been tested many times in court. It always holds up. Look up Issaquah,Washington. Their ordinance is very strict and it has held up every time. The only thing the courts have asked for is fine tuning the ordinances. Their spreading like wild fire. Hopefully one day sex offenders will have their own island they will be sent to.

Posted by: sel | Jun 19, 2006 10:39:16 AM

Let's see-- so exposing ones self is minor? I think not. Children should never be exposed to a man's genitals. All sex offenders think they have paid the price by being convicted and serving their probation so they should be left alone to live their lives. I bet the child wishes they had been left alone to live their lives too! What a joke! And yes you are grandfathered in if you already reside where they inact a sex offender residency ordinance. Some cities make them move out. But very few.

Posted by: sel | Jun 19, 2006 10:34:36 AM

Georgia just passed the 1000 ft band on where sex offenders
can live. My friend has been out of prison for 5 years.
Works, has purchased a home, and his past is behind him.
He is concerned that a day care or school could come into
his area and open a business with in a 1000 ft and he would
have to move. Has this been tested in court, or is one
grandfathered in. 0'Neal

Posted by: O'neal | Jun 17, 2006 8:09:50 AM

I am also labeled as a "child molester", and I think all this is "cruel and unusual punishment". Like other people here have said, why don't murders have to register as a murdered and be plastered all over the web, TV, etc? When I was young, I made a mistake, and at the end of this year, I would've been off the registery, but now, they've passed this law, basically resentencing me. How long must I pay for my sins?

Pretty soon, we'll be living the "communist" life, if we keep allowing the government to not consider all the consequences of something they are about the pass. When you have as much corruption as we have, it's a wonder everyone is not in prison, except the rich....

I am now 37 years old, and have never reoffended, and do not plan on it. I would be more than willing to have a GPS thing on my legs and under house arrest until the end of the year, to satisfy the public.

What must I do to get the public to let me become a normal person in society.

I do agree, violent sexual predators should be locked up, but, after evaluations to prove they are high risk. People like me who are trying to better themselves should not be labeled the same, they need to break this down into various other categories. I never touched my victim, and only exposed my self to them. I think I've payed my debt to society.

If it would make everyone happy, I'd get on national TV and blow my friggin brains out, just so you can get your "blood lust" fix....

People need to be more opened minded and try to help people. I also would not like a violent sex offender living next to me, but at least the government can provide places for people to live, where they are not constantly harrassed and threatened. Are they going to provide me with a security guard, it is their motto to protect and serve.

It's all this political crap where people pass laws just to get the vote, and boost their ego alittle more.

Remember Hitler and the "Master Race"? Pretty soon, nobody will be left except the rich, all the poor people will be executed or pushed out of the country....

Open your eyes people, consider both sides of the story.

Peace, and god bless.....

Posted by: Anonymous | May 29, 2006 2:27:46 AM

it's a sad thing that there are people in the world that would hurt a child in that way. the thing is, parents should be educating their children better to not become a victim. yes, some sex offenders are dangerous, but then you also have the idiots that don't use their brain and make a bad mistake. unfortunately these "idiots" are classified with the "dangerous" ones. majority of the "idiots" are young and uneducated by their parents to know the difference between right and wrong. i have children and they know everything there is to know about sex and the dangers to them. i have educated my children for their safety and they will most likely not become victims, but then my children won't be at a party getting drunk and not thinking of the consequences of wrong actions. i don't think all offenders should be treated the same and i think parents should educate their children better for life.

Posted by: tanya | May 18, 2006 2:56:43 PM

the listing of offenders online is wrong! saying that sex offenders are no longer human beings and that they should be herded and branded like cattle is wrong!the constitution plainly states: all men(humans) are created equal that they have certain unalienable rights(rights that cannot be taken away from them)but now the government and the courts in there continuing corruption are disregarrding what the costitution says and it is only a matter of time before government expands these violations of the individuals rights to include all citizens of this country! bam now you live in a dictatorship! because nobody tried to stop it! until it was too late!

Posted by: j doe | May 10, 2006 4:50:42 PM

How about addressing how the sex offender registration affects the family of the offender????

What's the difference between "freedom of speech" and
verbal harassment?
MY husband is a registered sex offender--child porno-one count. I live in constant fear of my neighbors.

What about us?

Posted by: Jean | May 5, 2006 3:09:43 PM

Actually, my son treats women better than that so I never had to worry about it.

Posted by: shirl from texas | Mar 1, 2006 12:42:58 AM

Shirl, think real hard about that when they are at a drunken frat party.

Posted by: James | Apr 23, 2006 2:17:02 AM

"Rational Restrictions"...what if....

DUI Offenders cannot live or work within x distance of any place alcohol is dipensed or sold...or ever hold a driver license...

Drug Offenders cannot live or work within x distance any drug is dispensed or sold...

Burglars cannot live or work within x distance of any other residence or business...

Muggers cannot live or work within x distance of another person...

Robbers cannot live or work within x distance of any other buisness...or person...

Check Kiters cannot live or work within x distance of a bank nor hold any bank account...

Forgers cannot sign ANYTHING!...

Prostitutes cannot live or work {ahem} within x distance of anyone that has sexual desires...

Crank Callers cannot live or work within x distance of a telephone...

Imbezzlers cannot live or work x distance from any place or person that uses monetary transactions...

These seem to be "reasonable restrictions".......BLAH!

Posted by: James | Apr 23, 2006 1:50:56 AM

Actually, my son treats women better than that so I never had to worry about it.

Posted by: shirl from texas | Mar 1, 2006 12:42:58 AM

Yes, I guess I am under the list of plain stupid and I have been dealing with more than just the category they put me under. Not only have I paid for my stupidity with 5 years of my life, but I will pay for it the rest of my life in everything I do because of my record and registering for life as a sex offender for something I did when I was 17 and immature and the crime I committed did not hurt anybody. Yes, she said she was 15 and even if the girl was 17, that still would of landed me in prison. It's true that I shouldn't have sex until I'm married, but who in this world still believes that? Maybe only religious people, even if that. If you had a son that made a "mistake", would you support him going to prison? You have to look at it in other people's point of view. We are all curious about sex when we are teenagers.

Posted by: Bill | Feb 25, 2006 10:59:29 AM

You said the girl told you she was 15? That would have still landed you in prison. I also wonder where were the parents of this 13 year old? Did they know she was at this party?

Posted by: shirl from texas | Feb 23, 2006 12:31:00 AM

Sorry Bill -there isn't a list for being just plain stupid so you will have to deal with the one they put you under.

Posted by: shirl from texas | Feb 21, 2006 8:17:31 PM

I understand the fear parents have when they hear the word sex offenders. I too would be cautious until I do my research and find out exactly what his past was. I am classified as a sex offender. I committed my offense when I was 17 years old. I do admit that I made a "mistake" and had sex with a girl at a party who said said she was 15, but was 13. So I ended up doing 5 years in prison for aggervated sexual assault because I made a mistake. So now I am classified as a pedofile, rapist, sex predator...and I'm not any of those, is that right? Should I be treated as such? I believe that the people with my situation should be put under a different category. Now I card every person I date...and even that isn't 100% fool proof because of fake licenses. Before you make a judgement, know what you are judging.

Posted by: Bill | Feb 20, 2006 11:01:47 PM

I agree so much with everything in your post. The argument that the first time sex offender always comes up with is that all sex offenders do not reoffend. What I want to know is how do we guarantee it without putting our children in danger. There is no way to pull that off. It can't be done. Most of them call their offense a mistake. I think a mistake is not a strong enough word. It's not just called a mistake when you destroy a child's life. These two and three time offenders were 1st offenders at one time.

Posted by: shirl from texas | Feb 18, 2006 5:46:44 PM

My community had a convicted violent sexual predator (note not a 1st offense) move into a residential neighborhood. He would stand outside on the property only during the times young children would be walking by to or from school. Our community really freaked out by this and some other bizaare behavior on this property. It was clear he was trying to create opportunities to become acquainted with children, so he was no longer a "stranger". Only because our Sheriff's Dept. held a public notification meeting did everyone learn the truth. We asked our state legislature to pass a law similiar to Iowa's, but they were more concerned about the "fairness" to sex offenders than protecting children from such obvious dangers. I support such reasonable restrictions to keep convicted repeat sex offender from being able to set up camp in such a "target rich environment".

Here is the irony: Our government tells the public that sex offenders can not be "cured", and they move towards a philosophy of containment: lifetime parole, registration lists, etc. -- but now the liberals are complaining about "fairness"! Given the apparent truth that the long term effects of sexual assualts on children are underreported and massively harmful, if they survive...who should carry the burden of protecting our children?! Should parents be forced to walk their children to and from school every day so convicted sexually violate predators can live next to schools? Must parents "educate" their children at earlier and earlier ages -- really taking away their innocence earlier that anyone would like? Or should those multiple convicted criminals who are "uncurable" and carry the gravest danger to our children be clearly "tagged" and restricted in how close they can get to our children? It is they that violated the terms of our organized society; the old concepts of "banishment" ring with some sense of justice - should they wish to apply for reinstatement into an organized community that includes children (easily abducted, victimized, abused, stolen, killed....unsophisticated in self-protective reporting and testifying), how are rational restrictions on their residence "wrong"?

How is this debate even capable of being measured when the safety of children is so readily the single most important goal of any government? Convicted repeated sex offenders loose their right to vote, but their freedom to live where they want trumps the safety of our children? If they were capable of being treated against recidivism, it should be provided before they are released and allowed to re-offend a second time.

Posted by: KNCOLO | Feb 18, 2006 4:50:27 PM

Your right I don't know you. Didn't even know you were a sex offender untill you announced it. What about the life, liberty and pursuit of happiness of the child you had sex with. I am very happy -happy you don't live next door to me. I know there is no way for you to understand-- people that care about their children DO NOT want you around just like their is no way for me to understand why you had sex with a child. We have to diffrent complete set of rules that we live by. Mine is -you don't have sex with children- yours is you do. And about the sex offender that hasn't been caught yet? I just pray he never gets to my children but Iknow one thing for sure you won't. And believe me hating sex offenders isn't a bad thing. What's to like? It's so disgusting.

Posted by: shirl from texas | Feb 16, 2006 12:26:12 AM

Okay shirl from texas,
First, you dont know me, my situation, or anything. You just see "sex offender" and prejudge. Its unfortunate that we have people like you in this world. What are you going to do about the guy that has not been caught and isn't a "sex Offender" yet? How are you going to stop that guy or women from getting to know your children? The choice shouldn't be yours that I can live next to you or not. Declaration of Independance says after "All men are created equal," that, "life, liberty and the pursuit of happiness" You are definatly not happy, maybe you should pursue some. Your opinion of me doesn't matter because I know I dont have to worry about if I hate someone or not.

Posted by: Nathan | Feb 15, 2006 11:50:52 AM

I do see your point with a lot of your comments but I still don't want to live by a sex offender. As a law abiding citizen I should have that right not to have my kids live next to one. And your right- most sex offenders do know their victims. So that's one reason I don't want you living next to me. I don't want you to get to know my children.

Posted by: shirl from texas | Feb 10, 2006 5:01:14 PM

Here is an opinion from a sex offender. I moved from Iowa to North Carolina to avoid these laws. I know what the general public thinks of what makes up a sex offender, sorry but you don't. Society only knows what they see on TV. Isn't it better to try to make anti-social poeple more productive? Isn't the Dept. of Coreections suppose to do this?Well, if I moved backed to Iowa, I could not live within 2000 feet of a school or daycare. But, I sure can go to the school for parent teacher conferences. I know I made a mistake and owe my victim. The only thing I can do is help other sex offenders. I have worked hard to improve myself and my life. I cant give back what I have taken.But I can be a productive member of society.
I slept with a teenage girl and I'm put in the same category as a sexually violent predator. The sexually violent predators are the one's you need to keep a eye on, not me. These are the images that society gets when they see my label. I have custody of my daughter. Doesn't that say something about me, my case, etc.? These 2000 feet laws not only effect me but also my family. My children did not commit a crime, I did. Being a registered sex offender doesn't make me a bad parent either. I can prove this because everyone that I deal with, social workers, teachers, couselors all know of my past. Plus my children are ages 11-15. They can speak for themselves. They love me, and are very happy.
Do these laws stop sex offending. NO! I never met any sex offender that committed a crime because of where they live. I've more time with all different types of offenders. Offenders choose someone they know MOST of the time. People need to start to take resposibility for their actions. If someone wanted to commit a sex crime, they will do it know matter where they live. I could drive to California from North Carolina, commit a sex crime and come back. How far is California from North Carolina? Does the death penalty keep offenders from killing? NO
Answer this. What are you going to do but the Offenders who haven't been caught yet? How should we restrict their residency?
Re-offending of a sex offender is a lesser chance than any other crime. Your going after the wrong end of the stick.

Posted by: Nathan | Feb 10, 2006 12:17:42 PM

Sounds to me like your very perverted to say some of the things you said. I imagine you must be a sex offender. And yes as long as there are people in the world like you children will continue to be molested.

Posted by: shirlfromtexas | Feb 3, 2006 1:50:45 AM

shirl from texas said-
"The report from the Justice dept. that was quoted is so far removed from the truth."
Really? And what is the "truth"? I'm sorry you feel that the US Department of Justice would fabricate statistical data in order to dispel the myth that all sex offenders are raping children on a daily basis. Perhaps you have a more "reputable" report by someone who actuall KNOWS a little bit about criminal justice? Maybe that crackpot Laura Ahearn for example?

I'm sure you think the fact that 85% of sex offenses are by first time offenders is a myth as well? Perhaps you don't care for the statistical methods of the National Center for Missing and Exploited Children either, since they are the ones who tell us 50% of ALL sex offenses against children are perpetrated by the child's PARENT? A further 15% are by siblings. And another 25% are by other relatives, close family friends, teachers, preachers, etc. In case your math is fuzzy, that leaves 5% of ALL offenses being perpetrated by a stranger.
Shirl, you're a greater danger to your own children than any sex offender out there today. Not only statistically, but because you are so close-minded on the subject. While you're so busy protesting down at City Hall about sex offenders living near schools, your husband is likely to be at home diddling your daughter. And you'll be none the wiser. And you'll probably call her a liar if she tells on him.
THAT is the truth of sexual abuse in America. We can continue to push harder and harder on the already-caught. But in doing so we are taking away valuable time and resources.
Let me leave you with a question. Do you honestly believe that if you woke up tomorrow and EVERY registered sex offender in USA was dead there would never be another sex offense perpetrated?

Posted by: mystikwarrior | Feb 1, 2006 11:24:56 AM

I will tell you exactly where we draw the line. We keep sex offenders from having easy access to our children. The report from the Justice dept. that was quoted is so far removed from the truth. Actually you can take it several ways. Sex offenders are more likely to stay out of jail because they are not easily caught. Sex offender crimes are not like any other. It a very hard crime to prove at times. There's never a witness. No survalence cameras. Crimes against children are herendous. Even though it's not a cure all I am for these city ordinances that keep sex offenders from living too close to where children gather. Sex offenders should have worried about their rights before they took the right of an innocent child to be safe and happy. The offender deserves nothing!

Posted by: shirl from texas | Jan 11, 2006 10:34:05 AM

Who is next? Here is my analogy of the whole situations. Now that we have been able to pass this 2000 ft law, we can now start an Alcoholic Registry. This will be for everyone that has any charges relating to alcohol. This registry will be created because most sex offenders have had alcohol and drug abuse in their past so that makes alcoholics at risk to maybe become sex offenders. Examples of charges would be public intox , OWI , Drinking on a public highway, drunk and disorderly, drunk driving, and many more different ranges of charges. They will then add these groups of people to 2000 ft. state law because we need to protect our children from them. Then will come the city ordinances that state they cant live within 2000 feet of a bar. They can go there and drink, but they just can’t live within 2000 feet. Next we need to put trackers on them and get their DNA. They will then go to open AA meeting and get phone list to get numbers of people to make sure they are going to meetings. They will then be treated like they are not human because they don’t have any rights at all. Due to the fact that there are some of them that can’t ever get sober then we must treat them all alike drunk or sober because it is hard to tell who will stay sober and who won’t. We really don’t care if it inconveniences a few of them because are children are the most important thing. They will never be given the opportunity to better themselves because we need to keep our children safe first. Now that the 2000 law is in effect for schools and daycares and ordinances are in effect we need go out and give them an evections notice of 1 week to 1 month that they will have to move from their family, friends and support groups (meetings) no exceptions. This will now make it even harder to get and stay sober proving that the politicians are correct. We also need to make these people look so awful in the publics eyes that it is hard for them to get job and change their life around making them feel less then human. And once we get this accomplished then we can add a drug, felony, burglary and domestic abuse registries.
o This may sound far-fetched to you but it is not so far from the truth. The only way this can be changed is if we write the politicians and let them know that this behavior is not OK. They say they are doing this for us and not their own agenda.

Posted by: DaAnn | Dec 13, 2005 4:19:02 PM



Posted by: TERENCE BODDIE | Dec 2, 2005 2:14:47 AM

The point of this type of legislation, the recent relevant court decisions, and any future legal manipulation of civil liberties is to essentially isolate and eventually exile today's list of the socially unacceptable.

When McMartin Preschool first popped up decades ago, society was shocked and aroused to ire by something considered to be unconscionable. Our society reacted in a swift and vengeful manner, typical of the knee-jerk reactionism we are seeing more and more of today. It did not matter that years later most of the McMartin type cases were found to be without truth or foundation, only that such cases opened our eyes to a problem which has yet to be addressed realistically.

There are persons within our society who prey on the weak and innocent. What society has yet to decide in the case of sex offenders is, are they truly criminal or are they psychologically defective. It is my understanding that a criminal act is one wherein the perpetrator knows he is violating the law and acts to do so without compulsion. Levels of crime are determined by the emotional states of malice or passion, and mitigation or heinousness is determined by circumstances. However, it is also recognized that the perpetrator's mental state has a bearing on any legal response.

Temporary insanity can reduce offenses and lessen sentencing, without ameliorating full responsibility. However, recognized states of persistent insanity amend individual responsibility enough to divert the individual from the criminal into the medical system.

In the case of sex offenders, society seems to want it both ways. First, we want to punish out of vengence for the acts as if the individual was fully responsible. Subsequently we claim such persons are suffering from an incurable mental abberation which makes them a continuing threat to society. In this second case we opt to brand them with a scarlet letter, punishing socially in hopes of driving them away, and hoping to eventually subject them to permanent incarceration in a mental institution.

Doen't an uncontrollable mental abberation equate to a lessening of individual responsibility? If one is incapable of "thinking straight" when one commits a crime how can he be held fully accountable? Shouldn't such an individual qualify for diversion to the medical system right from the beginning?

It is also important to try and stop society from lumping all persons classifed as sex offenders together and judging them equally. Sex offenders include flashers, adults caught together in consentual but morally disapproved acts, and persons only slightly above or below the variously held "legal limits" established for prosecution of certain acts.

Personally, I wish people would realize they have a tendency to scapegoat because it is easier than taking the time to really think. Visceral responses should not dictate justice.

I also wish legal minds like those contributing here would stop considering this a philosophical question and act to help direct society into one or the other choice.

If sex offenders are criminals then they should not be subject to the additional and ever escalating social restrictions on their liberties once released into society. If they are not sane, then they should be treated with the same level of social sympathy and support that any other person so identified would be. If considered a threat due to their brand of insanity, be incarcerated in a treatment facility until judged to no longer be a threat.

Posted by: Anthony | Aug 23, 2005 1:07:36 AM

I would agree with your arguements as to the constitutionality of the new law..I am a sex offender..my crime happened 10 yrs ago..I knew the victim and I have paid the price..most view sex offenders as the lowest scum on the earth..however if people really knew what a sex offfender was..they would realize that we are also human..Todays society puts so much taboo on sex..we fear what we don't understand..now the legislatue has passed a law that(in my opinion.) puts society more at risk..in treatment you learn what risk factors are..what each persons risk factores are..and how to deal with those factors..There also is no adequate treatment..treatment doesn't deal with the whole person..only the crime itself. It's like a catch 22..you can't empathize with the offender(what has happened to them)or you revictimize the victim..it's all one sided from the corrections point of view..I have paid my dues in more ways than what most people can imagine..I live with what I did every day of my life..and I have paid a heavy cost. I have not reoffended and have no desire to do so..I don't have the urges you hear about..and I have let go of all the negative things from my past..I have forgiven those who imposed their will on me..and I hope someday I can be forgiven..Get to know me..and you'll see me as a normal person trying to be a productive member of society...I'm sapose to close on a house the same day the injunction is lifted..I carefully canvassed the area before I purchased the home...there is a day care that may be a matter of feet shy of 2000 ft..were talking as the crow flies..thats how authorities measure the distance..I do what I'm sapose to to remain compliant..I was told the area was ok...now I may have bought a home that I can't live in because of a couple feet..and if this law is enforced...there is no where else to live..except maybe an old motel..there are 88 registered offenders ....where do we live.? And the old notion once a sex offender always a sex offender..is simply not true..I made poor choices...It doesnt matter what anyone says to me..or what ever treatment they think needs to be taken...the truth is ...it comes down to my choice..I have chosen to change my life..to become a productive member..but it is those few that ruin it for the many..the law needs to change..

Posted by: Michael | Aug 22, 2005 1:31:12 AM

Sorry to ramble, but there is one other point I would like to make.

About 90% of the available housing in the state of Iowa has effectively been eliminated by this law to those who are on the sex offender registry. In addition, another 90% of landlords are now asking if you ARE or HAVE EVER BEEN A REGISTERED SEX OFFENDER. If you answer yes, they can refuse to rent to you. and since it is a CRIME to lie about this, you must answer yes if you have.

That means that of the 10% of residences that are available for a sex offender to live in, only 10% of those will actually allow you live in the residence. So approximately 99% of the available housing in the state is now off limits to sex offenders.

Posted by: Tom | Aug 11, 2005 7:52:56 PM

Sorry, but your all wrong about the residency or "grandfather" aspect of the law.

When the law was passed in 2001 the legislature knew they could not kick out anyone who was currently living in a residence so they put in the July 2001 point. The law applies to everyone, home owners, renters and those living with others. It depended on your registered address at the time. The problem is, you were effectively FORCED to STAY in that residence for the remainder of your LIFE.

Under another aspect of the Iowa code, anyone on the registry who is out of his residence for longer than 5 days, must inform the authorities at his previous address and he must reregister at the address he is currently occupying or he is in violation of the registry regulations.

For instance, someone has to go into the hospital for 2 weeks. He must inform his local sheriff's office that he is not going to be living in his registered address and he must inform the sheriff's office in the county where the hospital is of his new address. By those terms, when he goes back to his previous address, he MUST REREGISTER with his local sheriff's office, thus changing his DATE of tenancy to AFTER July 1, 2001. And he would then be in violation of the 2000 foot law.

Or another example that happened to a friend of mine. He was living in a location when the law was passed, however his landlord told him to move. Under the 2000 foot restriction he was forced to move completely out of the county because there was not one town in the county that he could legally move into a residence in, and the rest of the county was rural farmland and there was no available housing in it. This was particularly difficult given the time constraints he was under, since he MUST have a residence on file, and he only had 30 days to find a new address.

One last example. Say someone is arrested and charged with a crime and ordered to jail for 30 days and given 2 years probation. After he spends his 30 days in the county jail, he must register an address. Even if he previously lived in his OWN home that he OWNED prior to July 1, 2001 the Date of the application of the registry address is what they go by. NOT that he lived there before. Its the DATE ON HIS REGISTRATION APPLICATION AT THE SHERIFF'S OFFICE. Since he is MOVING BACK INTO HIS PREVIOUS ADDRESS AFTER BEING RELEASED he is in violation of the 2000 foot law. It is NOT that he lived there before July 1, 2001. It is that he must live there AT THE TIME HE REGISTERS.

So anyone who is now moving, or being released from jail, falls under the 2000 law, even if they own property or live with their parents or a loved one. (Which by the way is now a felony if the loved one or even his mother has children under the age of 18 also living in the residence).

My point is, it is NOT the fact that he established residence before 2001 that matters, what matters is he MUST MAINTAIN THE ADDRESS INDEFINITELY or he will loose his right to live in the address, even if he owns the property.

Posted by: Tom | Aug 11, 2005 7:39:10 PM

This conversation between Baude is Gowder is really interesting. It illustrates how a legal rule forwarding a "liberal" value (living where one wants; living free from stimagism) would also forward a "conservative" one (doing away with rent control). Something tells me no court would consistenly apply this rule, though.

Posted by: Mike | Aug 3, 2005 2:44:13 PM

For sure. It just means that ever existing-use-is-okay grandfather clause has to be somehow weighed to see what burden it creates on the right to travel. In the case of New York City, where rent-controls are well, well, below the market rates, the burden is almost certainly greater than it was in Saenz.

Posted by: Will Baude | Aug 3, 2005 2:11:33 PM

Mike: assuming the judge accepted my argument, I think they'd have to strike the whole law down for just the reasons you identify -- it would be a taking without that exception. Of course, they could pay compensation... I don't really have the energy to argue about the merits of my argument either. :-)

Will: that may be so, but we have to look at the total effect too. To the extent that urban rent control statutes, non-conforming uses, etc. manage to take 77% of a state's property off the market, I think I agree with you. However, if there's no substantial impairment of the right to travel because there's plenty of alternate living possibilities, then there wouldn't seem to be a problem with a grandfather clause because there's no actual injury to the non-grandfatherees. (Would they even have standing? Eeeh, probably.)

Posted by: Paul Gowder | Aug 3, 2005 2:01:10 PM

Incidentally, note that Paul's argument against the grandfather clause would apply in some form or another to almost all land use laws with a non-transferrable grandfather clause. This would include a lot of urban rent-control statutes, some of the doctrine of non-conforming uses, and possibly the doctrine that you can only bring a regulatory takings claim if you own the land now and owned it back when it was first regulated.

Posted by: Will Baude | Aug 3, 2005 1:40:02 PM

Paul, like I said, I didn't say I agreed with the analysis. But you made one point I'd like to address: "The statute clearly does not treat people from in-state and out-of-state equally, since only people in-state could possibly meet that prior to 7/1/02 requirement."

Wouldn't that just lead to weird results? E.g., let's assume that the court agrees with your argument. Would that mean that the entire restriction would be struck down; or would it just mean the exemption would severed and struck? A court could say, "Paul, you're right. The exemption treats people differently, and thus, the exemmption should be struck down." But the general prohibition would stand.

The court could also do a weird balancing test, saying, "The reason for the exemption was the city's interest in not violating the Takings Clause. Thus, even though such an exemption might otherwise violate the right to travel interstate, the state only treated out-of-state people differently in order to avoid violating the Takings Clause." Locke v. Davey's bizarre play in the joints "rule" could come into play (re: there needs to be play in the joints between the Takings Clause and zoning away sex offenders).

Again, this would even assume that the judge would accept your argument. Hell, a court could easily say, "Out-of-state people who already owned property are treated differently than in-state people who already owned property. Thus, there is no disparate treatment. Moreover, that the law might have a disparate impact against out-of-state residents does not give rise to a violation of the right to travel interstate."

But I hate to argue over it, as I'm lukewarm. On one hand, I don't want child molestors living next my niece. On the other hand, I don't want the state to have the power to zone away certain undesirable groups.

Posted by: Mike | Aug 3, 2005 1:23:38 PM

Mike: the Court in Saenz said there were "at least three different components" to the right of travel, so it's possibly a nonexclusive list.

As I understand it, many of those residency restrictions have grandfather clauses that permit people who already own houses to continue owning them. Indeed, looking at the statute at issue in the Iowa case, which was conveniently placed at the end of the opinion, we see that the fact that "The person has established a residence prior to July 1, 2002" is sufficient to immunize them from a violation.

The statute clearly does not treat people from in-state and out-of-state equally, since only people in-state could possibly meet that prior to 7/1/02 requirement. Those travelers who became permanent residents of Iowa would not be treated like Iowans who had grandfathered homes.

Also, in Saenz, the Court specifically enforsed the analysis in Shapiro invalidating attempts to inhibit migration into the state by "needy persons." It's hard to see these broad laws as anything other than an attempt to inhibit migration into the state by sex offenders. If that's the motive, it seems like the Saenz-Shapiro language would invalidate it on that basis alone. (Of course, they'll claim that the real motive was to protect children from, I dunno, having to walk past the houses of sex offenders or something...)

Posted by: Paul Gowder | Aug 3, 2005 1:09:49 PM

Paul, we discussed this case at length a couple of months ago at C&F. Here's the answer to your interstate travel question:
The plaintiffs argued that a person from, say, Minnesota, who wanted to travel across the border to move into Iowa would be precluded from doing so. But as the Court noted in Saenz v. Roe, there are three components to the right to travel:

(1) “the right of a citizen of one state to enter and leave another state”;
(2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state”; and
(3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.”

But the law does not prevent someone from "enter[ing]" or "leav[ing]" Iowa or from being treated as a "welcome visitor." Visitation is fine: just don't stay in Iowa City. And since in-state and out-of-state sex offenders were treated equally, the challenge failed. I'm not saying I agree, but that was the court's analysis.

Here's two other posts - No Place to Live, The Legal Theories.

Posted by: Mike | Aug 3, 2005 12:42:49 PM

Cf. Shapiro v. Thompson, 394 U.S. 618, 629 (1969). "We do not doubt that the one-year waiting-period [for welfare] device is well suited to discourage the influx of poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible."

It would seem to me that the purpose of inhibiting migration by sex offenders into the state would similarly be impermissible, and that sex offenders too must be permitted to "migrate, resettle, find a new job, and start a new life."

Posted by: Paul Gowder | Aug 3, 2005 12:04:15 PM

I'm too busy/lazy to read the opinions, so feel free to scornfully ignore this comment, but whatever happened to the briefly-recognized-by-warren-court right to interstate travel? Wouldn't that imply a correlative right to live in a state of one's choice, which could be burdened by the exclusion from 77% of the state's housing units??

Suppose every state passed these laws. Would it be tantamount to depriving sex offenders of U.S. citizenship? (Since one of the rights of citizenship is residency...)

Would the dormant commerce clause at some point come into play?

Just some thoughts and speculations...

Posted by: Paul Gowder | Aug 3, 2005 11:53:38 AM

FYI: Just this past Friday, the Iowa Supreme Court in State v. Seering, No. 34 / 03-0776 (Iowa July 29, 2005) came to the same basic constitutional conclusions as the 8th Circuit in Doe:

Posted by: Doug B. | Aug 3, 2005 3:10:48 AM

The comments to this entry are closed.