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Wednesday, August 03, 2005

Zoning Cartman

Super-blogger Will Baude has a characteristically intelligent post at Crescat responding to my hang-wringing about sex offender residency restrictions, and he also points to Douglas Berman's policy-oriented critique of these laws.  Will questions whether ghettoization is unconstitutional if we remove race and ethnicity from the criteria. Good question: So let's try a hypothetical. Illinois enacts a law prohibiting obese citizens from living within 2,000 feet of a fast food restaurant. The law would seem to withstand rational basis scrutiny, given the costs that obese people impose on taxpayers via Medicaid and Medicare. So we want to know whether obese people have a fundamental right to live where they choose. Again, I want to see some historical research before I decide on the answer, but it seems that free citizens' choice of where to live is as central in American notions of freedom as some other rights deemed fundamental by the courts. Charles Tiebout long ago identified the social welfare benefits of free citizen mobility.  And I'm no libertarian, but I get the impression that totalitarian societies tell people where they must live and free societies let the market sort it out.

My "zoning Cartman" hypothetical brings to mind one other anthropological question on this trend, which will perhaps pique the interest of the crim law scholars here.  I don't want a sex offender moving in next door to me either, so I understand the impetus for this legislation.  But why do you suppose these law single out sex offenders but not, say, murderers? Is it something about our squeamishness with respect to sex crimes, or our romanticization of non-sexualized violence? The media's obsessive focus on sex crimes? The crime committed by one plaintiff in the 8th Circuit case was evidently indecent exposure. If I have to live next door to a criminal, I'll choose a flasher over a murderer any day of the week.

Posted by Lior Strahilevitz on August 3, 2005 at 11:44 AM in Constitutional thoughts | Permalink


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Anthony-Your comment about putting a scarlet letter on a sex offender would be aiding in them to reoffend. If that's all it takes is pissing them off because they can't live where they want is all the more reason to keep them from living near children. Sounds like you made a good case to keep them out of town.

Posted by: shirl | Jan 11, 2006 1:25:25 PM

My response initially is for both "somedad" and "MJ" who take exception to Ms. Hurt's comment.

What you fail to realize is that the vast majority of "sex offenders" are not child molesters, rapists and murderers. The majority of them are people who have been convicted of morals charges that qualify them as sex offenders. This includes solicting for prostitution, flashing, adult same-sex relations, statutory rape, and more. In addition, when you cite your recidivism figures you forget the 50% who do NOT repeat offend, but are still held suspect and accountable to all the ex post facto restrictions on their civil liberties.

You also both seem to be focusing on the "sensational" cases concerning serial molesters and murderers. Those, while highly publicized, are a mere fraction of a percent the total cases. It does not excuse them, but to my mind only proves that either the criminal justice or psycho-medical system is at fault in such cases.

Christine zeroed in on the type society should be most concerned with because they make up the majority of those which threaten children...sexual abuse by members of the child's own family or close family freinds. People do not like to address this issue because it would require them to recognize family and interpersonal relationship dysfunctions they would much rather avoid. Sex offenders don't just magically appear, they develop right under their own family's shielding eyes. Yes they become teachers, coaches, camp counselors and even policemen, but they usually start with "safe" family or freinds after typically suffering at the hands of adults of the same when they were children.

What people don't realize is that excessive restrictions often elevate negative activity in response. If a felon knows they are facing life imprisonment after a second or third strike, they are more apt to act with violence to insure they avoid the penalty. I believe that by the same token if you place scarlet letter restrictions on sex offenders you may be aiding in recidivism by making them feel they might as well act since they are being punished for it anyway.

I think the key here lies in determining, as a society, whether a child molester, rapist, or sex murderer is sane and thus deserving of criminal prosecution or NOT sane, and thus deserving of diversion into the psycho-medical system. You really can't have it both ways and be considered an enlightened society.

Posted by: Anthony | Aug 23, 2005 2:04:47 AM

If tactics are all that matter, forget equal protection analysis. You're not going to convince this Court, or a close future approximation of this Court, that keeping sex offenders away from kids is as irrational as keeping the mentally handicapped away, or keeping gay-rights-activists from enacting legislation.

Posted by: Will Baude | Aug 5, 2005 11:45:22 AM

Paul, isn't the point you're making really the same as mine -- that these statutes should fit within Cleburne & Romer, because they seem to be based on irrational animus and not a legitimate regulatory purpose? I think the right-to-travel cases ultimately just get you tangled up (as some other posts show) in things like the Commerce Clause. (Honestly, I like the argument that the right to relocate is a way of ensuring the free flow of labor, but 1. therefore, like the dormant commerce clause, it should be defeasible by Congress and 2. it's pretty hard to see how it relates to sex offenders). Better to avoid those problems, no?

Posted by: BDG | Aug 5, 2005 10:55:12 AM

Will: I agree. I guess the question for a results-oriented guy like me (ssshhhh, don't tell!) is which theory it would be easier to correct the judicial idiocy on: the punishment issue or the interstate travel issue. In light of the fact that governing supreme court precedent on the interstate travel issue is relatively decent, whereas on the punishment issue there's stuff like Smith v. Doe, 538 U.S. 84 (2003)...

Posted by: Paul Gowder | Aug 5, 2005 9:33:05 AM


I agree with you that the court's lack of interest in the punishment/regulation distinction is problematic, but I still think fixing that problem is the way to find the "line" that you say "certainly has to be drawn", in explaining which non-banishment programs are sufficiently like banishment that a state should not be able to apply them to out-of-state sex-offenders.

As you and I both know, the fact that a measure is "to protect the community" does not prove that it isn't punitive. Many justify jail on the grounds that you don't want the guy out there on the streets hurting people.

Posted by: Will Baude | Aug 5, 2005 7:29:35 AM

Will: the problem with that is that the courts have unfortunately defined "punishment" out of existence when it comes to sex offenders. It seems like any civil disability the legislatures can come up with -- forced treatment, notification, and now exile -- is not "punishment" simply because the states are permitted to believe that their actions are purely protective.

I fully expect the next "not punishment" law that the legislatures pass to be a public branding of sex offenders with hot irons on the forehead. After all, it's to protect the community! It's not punitive! Really! Children need to be able to see the big red S on the bad old guy's forehead and know to run away!

Posted by: Paul Gowder | Aug 4, 2005 11:10:47 PM

Why stop there? "Convicted sex offenders may live in this state, but only if they reside in the state prison. And pay their own way."

The point is taken. But it seems like this line-drawing is *really* the question of when civil measures become de facto criminal punishments. Of course, Iowa (or Ohio) lacks the constitutional jurisdiction to punish California citizens for committing sex offense to other California citizens in California, even if they later move to Iowa, so once the measure is a punishment it is invalid straight-up, with no need to refer to rights of travel, ex post facto clauses, or whatever else.

Posted by: Will Baude | Aug 4, 2005 10:41:09 PM

However, I take it the question is much different when the state does not literally wall off all of its state. One could attempt to craft a jurisprudence about how much a given regulation burdens a given class of people who might want to move there, but it would quickly devolve into incoherence, I think.

Will, that's as may be, but a line certainly has to be drawn. Can you imagine the statutes? "Convicted Sex Offenders may only live in the northwest quadrant of the City of Akron, in houses painted red, with uncurtained skylights and picture windows, none containing any shrubbery higher than two feet, and with no driveway longer than thirty feet."

Posted by: Paul Gowder | Aug 4, 2005 5:49:41 PM


You seem to be making two different points. First, you say that the unconstitutional scenario I imagined (a state law formally barring sex offenders from the state of Iowa) is different from what the state has done here (effectively barring sex offenders from certain parts of the state). I certainly agree that it's different, but I wonder whether at some point a regime of effective exclusion might become so burdensome that, for constitutional purposes, it is indistinguishable from a formal ban. Imagine, for instance (because I know it's an issue close to your heart), a law whose operation confined sex offenders to neighborhoods not zoned for residential uses. Or a law whose operation confined offenders to areas where no residential property was currently on the market (or where housing was so expensive that few if any ex-cons could afford to live there). I'm not sure there's a definitive answer here, but my sense is that the P/I clause doesn't (or shouldn't) allow that kind of thing.

Your second point is that the right to travel doesn't prohibit states from enacting laws whose burdens fall harder on citizens with certain preferences than others with different preferences. I agree with you, but am not sure what this has to do with the issue at hand. The problem with the Iowa law (and the variant of it discussed above and in my last comment) is that they are status-based residency restrictions. They say that certain classes of people MAY NOT live in the state (or at least in big chunks of it). The proper analogue with same-sex marriage is thus a law that would bar anyone who has received a same-sex marriage license in another state from living in Iowa (or parts thereof). That, I take it, would raise far more serious constitutional problems. Indeed, I think it would clearly be unconstitutional. Don't you?

Posted by: bw | Aug 4, 2005 5:17:18 PM


I think that's pretty clearly right under the right-to-travel cases that you cite. Philadelphia v. N.J. is applicable only if the banishment is discriminatory, but some might be.

However, I take it the question is much different when the state does not literally wall off all of its state. One could attempt to craft a jurisprudence about how much a given regulation burdens a given class of people who might want to move there, but it would quickly devolve into incoherence, I think.

Imagine that Lawrence clearly does not apply to incest, and 49 states legalize incest while Iowa continues to prohibit it and enforce the prohibition. I take it that brother-sister romantic couple would try to argue that Iowa's policy "burdens" their right to travel. Similarly if there was one state that refused to legalize gay marriage when all other states did so.

There might be constitutional problems with such laws but I think it would be very, very, weird to suppose that substantive differences in state regulatory regimes inherently burden the "right to travel" of people who would like to live in one state but prefer the regime of another.

Posted by: Will Baude | Aug 4, 2005 4:25:59 PM

Picking up on Paul's point, is there any doubt that Iowa could not enact a law banning all convicted sex offenders from living anywhere in the state? Is it not a privilege of United States citizenship, protected by the 14th Amendment, to live -- if one chooses -- in a the State of Iowa? After all, one major purpose of the right to travel is to prevent an individual state from walling itself off from the rest of the nation by declaring that its borders are closed to certain classes of persons. A state law forbidding the poor from living in Iowa would be patently unconstitutional. See Edwards v. California, 314 U.S. 160 (1941); see also id. at 183 (Jackson, J., concurring) (arguing that "it is a privilege of citizenship of the United States, protected from state abridgment, to enter any state of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this, it means nothing."). A law banning all felons (or certain types of felons) should be equally infirm, no? What gives Iowa the right to foist its undesirables upon the other 49 states? Finally, what becomes of the Commerce Clause? If a state can't prevent out-of-state garbage from coming within its borders, see Philadelphia v. New Jersey, 437 U.S. 617 (1978), might it not be similarly barred from preventing "human garbage" from entering?

Posted by: bw | Aug 4, 2005 3:23:17 PM

The speeches in the Congressional Globe deliberating over the 14th Amendment seem to imply that one of the privileges and immunities of national citizenship was the right to earn a living. So while it makes sense that original Euclid-style zoning of really annoying workplaces makes some sense under this logic, the laws in many states that forbid people from engaging in light work at home are preposterous and perhaps presumptively unconstitutional.

But anyway, it's worth noting that Iowa did not try to kick the sex offender out of the state entirely; it "merely" tried to confine him to certain in-state ghettoes based on their own notions of the social good. Both may be bad, but they are bad in different ways.

Posted by: Will Baude | Aug 4, 2005 3:20:53 PM

BDG: I think it's a simple belief about what the concept of national citizenship means. When one is a citizen of a country, that comes with a few fundamental rights, including the right of residence. If we permit states to deprive people of the right to residence in their states, we run the risk of excluding people altogether. After all, what happens if everyone deprives sex offenders of the right to residence in their state? Where do they go? Canada? The ocean? It starts to look a lot like exile.

I don't know that this completely resolves your point -- I suppose exile from employment is bad too, but maybe there's also a higher state interest in workplace restrictions than there is in residency restrictions, because the workplace market is in some sense less competitive? There's less available work for any one person than there is housing, because each person only has one (or a few) careers. I'm only eligible for the lawyer jobs, and those jobs that use the similar skillset, I'm not eligible for doctor jobs. On the other hand, I'm eligible for every house in the country subject to income etc. Also, employers generally have more power over their employees than house sellers have over buyers, again leading to a higher state interest in regulating the relationshpi

Posted by: Paul Gowder | Aug 4, 2005 2:05:14 PM

I don't know much about criminology, but Lior's post -- especially the bit about Tiebout -- raises a question that's been bothering me lately: Why should the right to live where you choose be subject to less regulation (i.e., protected with closer judicial scrutiny) than the right to work where and how you want? In this case, for example, would any court bat an eye if a government entity refused to hire someone because of a prior sex offense conviction? (That's not a rhetorical question, by the way; I don't know enough about employment law to know the answer, although my general impression is "no.")

Now, by the way, I'm not saying let's reverse West Coast Hotel or anything. I agree that workplace restrictions should only get rational-basis scrutiny. But I'm a little fuzzy on why restrictions on interstate travel get strict scrutiny. Sure, ok, fundamental personal liberty, but that's in the right to contract, too. The importance of a community of principle formed by one's neighbors? Yep, but workplaces are communities, too.

Lior, it seems, falls back on economic arguments, such as the Tiebout hypothesis that free interstate travel (really, the right to relocate) disciplines state governments. But that puts a lot of weight on an economic theory ("Herbert Spencer's Social Statistics"?), and one that may well be wrong. Just why it might be wrong is obviously too complicated to get into fully here, but for starters consider whether it is likely that most or even many relocations are due to inefficient delivery of government services rather than *perceived* inefficiencies, jobs, family, etc.

So while I'm not crazy about residency restrictions, I'm not so sure they should get heightened scrutiny based on that Privileges & Immunities type of analysis. On the other hand, I'd be sympathetic to the argument that residency restrictions, like the one in Cleburne, are actually irrational because they're mostly based in fear and distrust. Cartman? I'd never trust that guy. Didn't he try to get Kenny's life support turned off?

Posted by: BDG | Aug 4, 2005 11:18:17 AM

Murderers are not only less random -- they kill other drug dealers, etc., or others they know for various reasons -- but also, adults may have a general sense that they can protect themselves by staying alert, not getting into certain circumstances, not walking certain places at night, etc.

The concern re molesters is that they may snag an 8-year-old kid, who is not old enough for full self-defense, but is perhaps too old to keep an eye on every second. Parents want to be able to let an 8-year-old walk, without parents, around the neighborhood.

Now, if the empirical evidence is that this doesn't work, then fine, let's re-evaluate. But without data either way, the distinction between the threat of murder and of molestation does seem valid to me.

Posted by: some dad | Aug 3, 2005 9:55:14 PM

I think the answer to Lior's anthropological question does rest, as Orin seems to suggest, not in qualitative differences between homicide and sex offenses, but in the perceived differences between these offenders. Because of the circumstances commonly leading to non-sex offense homicides that Orin identified, non-sex offense homicides generally are viewed as context-driven and impulse crimes whose perpetrators cannot be "zoned" effectively. Sex offenders, by contrast, commonly are thought to prey on their surrounding environment, which can extend to neighbors, schools, daycare centers and the like, the exact subjects that these zoning laws seek to protect.

Posted by: Brooks | Aug 3, 2005 3:59:38 PM

I think the answer to Lior's anthropological question may be the differences between common types of homicides and common types of sexual offenses. My understanding is that neighbor-to-neighbor homicide is extremely rare; most homicides involve drugs, gangs, relationships, robberies gone awry, etc. Sadly, neighbor-to-neighbor sexual offenses are much more common.

Posted by: Orin Kerr | Aug 3, 2005 3:22:12 PM


You seem dismissive of all of the safety measures that parents have "glommed" on to. So these items don't help to keep children safer?

You aren't suggesting that allowing a child molester to live directly beside an elementary school possesses no increased danger to children are you? Are you aware of the recidivism rates among pedophiles? One study that I'm aware of (Center for Sex Offender Management) showed that within five years after release, same-sex child molesters had a recidivism rate of over 50%. Better than 50/50 that a child will be assaulted within five years of release. It doesn't sound like laws aimed at restricting their residency is a "red herring" at all.

By the way, was your "it seems that one way to keep your kids away from sex offenders is not to date them" line a back-handed way of saying it is the parents fault? Given that so many women who are victimized by violence are or have been in a relationship with their attacker, what would you say if someone opposing a violence against women enhancement said "it seems that one way for women to keep from being raped or assaulted is to not date or marry rapists and abusers".

Posted by: MJ | Aug 3, 2005 1:34:42 PM

"Zoning Cartman." Now *that's* a great blog post title. Kudos, Lior.

Posted by: Hillel Levin | Aug 3, 2005 1:18:23 PM

On only naked intuition, I assume that "we" focus on sex offenders because we believe that sex offenders are more likely to be recidivists, less likely to be subject to rational deterrence, and more likely to be "uncontrollable". Therefore, people naturally focus on ex ante avoidance more than ex post punishment.

I don't know if these generalizations are accurate, but they are part and parcel with the state regulations that provide for sex offenders to be perpetually imprisoned beyond their actual sentences if they are deemed to be continuing dangers.

Posted by: Will Baude | Aug 3, 2005 12:06:36 PM

Lior, when I was guest blogging here, I blogged about new residential communities that were using deed restrictions to keep sex offenders from living there. I had the same reactions as you, namely what about murderers and thieves? Unfortunately, I think that this focus on the sex offenders is a misguided red herring for parents concerned about the safety of their children. Just as parents have glommed on to car seats, flame-resistant pajamas, outlet covers, and helmets for roller skating, ice skating, and riding a tricycle, parents glom on to the addresses of sex offenders to give them the ability to sleep through the night while raising children in a dangerous world. I can relax if I live in a sex-offender-free neighborhood. However, many of these sex-offender cases seem to involve family members or friends that would have been invited into your home anyway. At least from watching CNN.com, which is probably not a scientific survey, it seems that one way to keep your kids away from sex offenders is not to date them.

Posted by: Christine Hurt | Aug 3, 2005 11:58:13 AM

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