Next-generation sex offender statutes: Constitutional challenges to residency, work, and loitering restrictions

Harvard Civil Rights-Civil Liberties Law Review

Volumn 42, Issue 2, 2007, Pages 483-499

  Bains, Chiraag ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 34548607380     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (129)

1. GA. CODE ANN. § 42-1-15 (2006).
2. Id. Furthermore, a knowing violation of the residency, work, or loitering restrictions constitutes a felony punishable by a minimum of ten and a maximum of thirty years in prison. Id. § 42-1-15(d). The new statute also extends the registration requirement, retroactively, from ten years to life. Id. § 42-1-12(f)(7). These restrictions go well beyond those imposed by GA. CODE ANN. § 42-1-13 (2006), which prohibits registrants from living within 1000 feet of schools, child care facilities, and places where minors congregate.
3. Smith v. Doe, 538 U.S. 84 (2003).
4. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003).
5. ALA. CODE ANN. § 15-20-26 (2006) (prohibiting sex offenders from residing or working within 2000 feet of a school or child care facility and prohibiting them from loitering or working within 500 feet of a school, playground, park, or athletic facility); ARK. CODE ANN. § 5-14-128 (2003) (prohibiting Level 3 and Level 4 sex offenders from residing within 2000 feet of schools or daycare facilities but exempting those who resided on property they owned before the law was enacted); CAL. PENAL CODE § 3003(g) (West 2007) (prohibiting certain sex offenders on parole from residing within a quarter mile of a primary school); DEL. CODE ANN. tit. 11, § 1112 (2006) (prohibiting sex offenders from residing or loitering within 500 feet of school property); FLA. STAT. ANN. § 947.1405(7)(a)(2) (West 2007) (prohibiting sex offenders from living within 1000 feet of a school, daycare center, park, playground, designated school bus stop, or other place where children regularly congregate); GA. CODE ANN. § 42-1-15 (2006); IDAHO CODE ANN. § 18-8329 (2006) (prohibiting sex offenders from "be[ing]" or loitering on school property, "be[ing] in any conveyance" owned or used by the school to transport students, or residing within 500 feet of school property, though also making exceptions for pre-enactment residence and allowing parents to drop off or pick up their children from school); 720 ILL. COMP. STAT. 5/11-9.4(b-5) (West 2006) (prohibiting child sex offenders from residing within 500 feet of a playground, child care center, or facility with programming targeted exclusively at minors); IND. CODE ANN. § 35-42-4-11 (West 2006) (prohibiting certain classes of sex offenders from residing within 1000 feet of school property, a youth program center, or a public park, or within one mile of their victims' residences); IOWA CODE ANN. § 692A.2A (West 2003) (prohibiting sex offenders from residing within 2000 feet of a school or child care facility); KY. REV. STAT. ANN. § 17.545 (West 2006) (prohibiting sex offenders from residing within 1000 feet of a school, public playground, or daycare facility); LA. REV. STAT. ANN. § 14:91.1 (West 2004) (prohibiting sex offenders from residing within 1000 feet of any school, daycare facility, playground, youth center, public swimming pool, or video arcade); MICH. COMP. LAWS ANN. §§ 28.733-28.735 (West 2006) (prohibiting sex offenders from working or loitering within 1000 feet of school property but exempting those already working in such areas before enactment); MISS. CODE ANN. § 45-33-25(4) (West 2006) (prohibiting sex offenders from residing within 1500 feet of the real property of a school or child care facility, with certain exceptions); MO. ANN. STAT. § 566.147 (West 2006) (prohibiting certain sex offenders from residing within 1000 feet of any public school, private school for students in twelfth grade or below, or child care facility existing before residency is established); N.C. GEN. STAT. ANN. § 14-208.16 (West 2006) (prohibiting sex offenders from residing within 1000 feet of school or child care center property); OHIO REV. CODE ANN. § 2950.031 (West 2006) (prohibiting sex offenders from residing within 1000 feet of a school); OKLA. STAT. ANN. tit. 57 § 590 (West 2006) (prohibiting sex offenders from residing within 2000 feet of any school, other educational institution, playground, park, or child care facility); OR. REV. STAT. §§ 144.642, 144.643 (West 2006) (generally prohibiting sex offenders from residing near places where children are the primary occupants); S.D. CODIFIED LAWS §§ 22-24B-22, 22-24B-23 (2006) (prohibiting sex offenders from residing within 500 feet of any school, public park, public playground, or public pool); TENN. CODE ANN. § 40-39-211 (2007) (prohibiting sex offenders from residing or working within 1000 feet of any school, child care facility, public park, playground, recreation center, or public athletic field); TEX. CODE CRIM. PROC. ANN. art. 42.12(13B) (Vernon 2005) (prohibiting sex offenders from residing within 1000 feet of a place where children commonly gather).
6. See Corey Rayburn Yung, Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 WASH. U. L. REV. (forthcoming 2007) (manuscript at 3 & n.15) (providing citations to legislation pending in twelve states), available at http://ssrn.com/abstract=95 9847.
7. Whitaker v. Perdue, No. 06-140 (N.D. Ga. 2006).
8. Several other articles have explored one or more of the claims discussed here, usually with reference to a recently passed law or recently decided case. See, e.g., Yung, supra note 6 (discussing residency restrictions as tantamount to banishment); Michael J. Duster, Note, Out of Sight, Out of Mind: State Attempts To Banish Sex Offenders, 53 DRAKE L. REV. 711 (2005) (describing the Eighth Circuit's resolution in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), of claims based on the Ex Post Facto Clause, double jeopardy, substantive due process, procedural due process, and the privilege against self-incrimination);
9. Steven J. Wernick, Note, In Accordance with a Public Outcry: Zoning Out Sex Offenders Through Residence Restrictions in Florida, 58 FLA. L. REV. 1147 (2006) (describing the outcome of challenges based on procedural due process, substantive due process, the privilege against self-incrimination, and the Ex Post Facto Clause in Miller);
10. Note, Making Outcasts Out of Outlaws: The Unconstitutionality of Sex Offender Registration and Criminal Alien Detention, 117 HARV. L. REV. 2731 (2004) (suggesting substantive due process, equal protection, and bill of attainder as grounds to challenge registration laws);
11. Recent Legislation, Alabama Strengthens Restrictions on Sex Offenders, 119 HARV. L. REV. 939 (2006);
12. The Supreme Court, 2002 Term - Leading Cases, 117 HARV. L. REV. 327 (2003) (criticizing the Supreme Court for construing the statute in Connecticut Department of Public Safety as nonpunitive and suggesting two kinds of overbreadth challenges).
13. U.S. CONST. art. I, § 10, cl. 1.
14. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.).
15. See id.; see also Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810).
16. Smith v. Doe, 538 U.S. 84, 92 (2003) (citing Hudson v. United States, 522 U.S. 93, 100 (1997)).
17. Id. (alteration in original) (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)).
18. 372 U.S. 144 (1963).
19. Smith, 538 U.S. at 97.
20. Id. at 92 (internal quotation marks omitted).
21. Id. at 96, 105; Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1017 (8th Cir. 2006); Doe v. Miller, 405 F.3d 700, 718, 723 (8th Cir. 2005); Doe v. Baker, No. Civ-A. 1:05-CV-2265, 2006 WL 905368 (N.D. Ga. Apr. 5, 2006) (rejecting ex post facto challenge to GA. CODE ANN. § 42-1-13, the less punitive predecessor to HB 1059); Thompson v. State, 603 S.E.2d 233, 236 (Ga. 2004); People v. Leroy, 828 N.E.2d 769, 779, 782 (Ill. App. Ct. 2005); see also Coston v. Petro, 398 F. Supp. 2d 878, 884-86 (S.D. Ohio 2005) (dismissing claim against residency restrictions for lack of standing, but noting that the law is neither punitive in intent nor excessively punitive in effect).
22. Jerry Keen, People Are Sick and Tired of Being Taxed to Death Through Local Property Taxes . . . , GEORGIADAILYD IGEST.COM, Sept. 6, 2005, http://www.georgiadailydigest.com/ article_12588.shtml.
23. Smith, 538 U.S. at 94.
24. GA. CODE ANN. § 42-1-15(d) (2006).
25. See ARK. CODE ANN. § 5-14-128 (2003) (class D felony); IOWA CODE ANN. § 692A.2A (West 2003) (aggravated misdemeanor).
26. Smith, 538 U.S. at 92 (noting that such a finding "ends the inquiry").
27. Kansas v. Hendricks, 521 U.S. 346, 361 (1997).
28. 828 N.E.2d 769, 779 (Ill. App. Ct. 2005).
29. See Keen, supra note 18.
30. Doe v. Baker, No. Civ-A. 1:05-CV-2265, 2006 WL 905368, at *3 (N.D. Ga. Apr. 5, 2006) (internal quotation marks omitted) (quoting Mann v. State, 603 S.E.2d 283 (Ga. 2004)).
31. For an example of how to apply the five-factor analysis to a statute imposing residency restrictions, see Duster, supra note 8, at 730-37.
32. See statutes cited supra note 5 and cases cited supra note 17.
33. GA. CODE ANN. § 42-1-15 (2006).
34. See Sarah Geraghty, Challenging the Banishment of Registered Sex Offenders from the State of Georgia: A Practitioner's Perspective, 42 HARV. C.R.-C.L. L. REV. 520 & n.36 (2007) (describing sheriffs' estimates that 222 out of 230 offenders in Bibb County, 490 out of 490 in Dekalb County, and 277 out of 278 in Gwinett County would have to move to comply with HB 1059).
35. See, e.g., Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) ("While banishment of course involves an extreme form of residency restriction, we ultimately do not accept the analogy . . . . Unlike banishment, § 692A.2A restricts only where offenders may reside.").
36. Doe v. Baker, No. Civ-A. 1:05-CV-2265, 2006 WL 905368, at *3 (N.D. Ga. Apr. 5, 2006).
37. See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997) (holding that civil commitment, postsentence incapacitation of sexual predators deemed to be abnormal, is not punitive); United States v. Salerno, 481 U.S. 739 (1987) (holding that pretrial incarceration based on future dangerousness does not constitute punishment); Miller, 405 F.3d 700 (holding prohibition against residing within 2000 feet of a school or child care facility to be civil and nonpunitive).
38. 521 U.S. at 371.
39. Id. at 357.
40. Id. at 358.
41. 603 S.E.2d 233, 236 (Ga. 2004); see also Denson v. State, 600 S.E.2d 645, 647 (Ga. Ct. App. 2004).
42. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).
43. U.S. CONST. amend. XIV, § 1.
44. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 580 (2006).
45. See State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005).
46. 424 U.S. 319 (1976).
47. See id. at 335.
48. Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003); accord Doe v. Miller, 405 F.3d 700, 708-09 (8th Cir. 2005) ("[T]he absence of an individualized hearing in connection with a statute that offers no exemptions does not offend principles of procedural due process."); People v. Leroy, 828 N.E.2d 769, 778 (Ill. App. Ct. 2005).
49. CHEMERINSKY, supra note 40, at 580.
50. See Geraghty, supra note 30, at 518-19 & nn.26-28.
51. In Weems v. Little Rock Police Department, the Eighth Circuit held a process involving review of official records, psychological testing, and a personal interview sufficient to satisfy due process under the Mathews test. 453 F.3d 1010, 1019 (8th Cir. 2006).
52. Washington v. Glucksberg, 521 U.S. 720, 720 (1997).
53. Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
54. Id. at 720-21 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)).
55. Id. at 721 (quoting Palko v. Connecticut. 302 U.S. 319, 325-26 (1937)); see also Paul v. Davis. 424 U.S. 693, 713 (1976).
56. Flores, 507 U.S. at 302.
57. Glucksberg, 521 U.S. at 720.
58. Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20 (1984) (explaining that "[f]amily relationships, by their nature, involve deep attachments and commitments" and "only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty").
59. See Doe v. Miller, 405 F.3d 700, 709-10 (8th Cir. 2005); State v. Seering, 701 N.W.2d 655, 662-63 (Iowa 2005); see also Graham v. Henry, No. 06-CV-381-TCK-FHM, 2006 WL 2645130, at *10 (N.D. Okla. Sept. 14, 2006) (right to live with wife).
60. See Doe v. Baker, No. Civ-A. 1:05-CV-2265, 2006 WL 905368 (N.D. Ga. Apr. 5, 2006) (right of extended family to live together); People v. Leroy, 828 N.E.2d 769 (Ill. App. Ct. 2005) (right to live with mother).
61. 431 U.S. 494, 541 (1977) (plurality opinion).
62. 416 U.S. 1, 9-10 (1974).
63. 383 U.S. 745, 757 (1966).
64. United States v. Wheeler, 254 U.S. 281, 293 (1920) (noting that under the Articles of Confederation, state citizens "possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom"); Williams v. Fears, 179 U.S. 270, 274 (1900) ("[T]he right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty . . . secured by the 14th Amendment.").
65. Doe v. Miller, 405 F.3d 700, 712 n.3 (8th Cir. 2005).
66. Reno v. Flores, 507 U.S. 292, 302 (1993) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (second alteration in original)).
67. Appellant's Brief and Argument at *15, Miller, 405 F.3d 700 (No. 04-1568). The court agreed that the plaintiff's formulation was overly general. See Miller, 405 F.3d at 711.
68. People v. Leroy, 828 N.E.2d 769, 776 (Ill. App. Ct. 2005).
69. Graham v. Henry, No. 06-CV-381-TCK-FHM, 2006 WL 2645130, at *7 (N.D. Okla. Sept. 14, 2006) (second emphasis added).
70. State v. Seering, 701 N.W.2d 655, 664 (Iowa 2005).
71. See, e.g., Miller, 405 F.3d at 710 ("[T]he Iowa statute does not operate directly on the family relationship . . . . [N]othing in the statute limits who may live with the Does in their residences."); id. at 712 ("The Iowa statute . . . does not erect an 'actual barrier to interstate movement.'") (citation omitted).
72. See, e.g., Seering, 701 N.W.2d at 666 (holding that "freedom of choice in residence" is "an important interest" but "not a fundamental one").
73. 377 F.3d 757, 769-70 (7th Cir. 2004).
74. Id. at 771-73.
75. Reno v. Flores, 507 U.S. 292, 302 (1993).
76. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993).
77. See, e.g., Graham v. Henry, No. 06-CV-381-TCK-FHM, 2006 WL 2645130, at *7 (N.D. Okla. Sept. 14, 2006).
78. U.S. CONST. amend. XIV, § 1.
79. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
80. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911).
81. City of Cleburne, 473 U.S. at 440.
82. 538 U.S. 1, 10 (2003) (Souter, J., concurring).
83. United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001); see also Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005) (citing LeMay).
84. See, e.g., Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1016 (8th Cir. 2006).
85. See Moore, 410 F.3d at 1347.
86. See Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239 (1897).
87. U.S. CONST. amend. V.
88. Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
89. See Ruckleshaus v. Monsanto Co., 467 U.S. 986, 1000-01 (1984).
90. Penn. Cent. Transp. Co. v. N.Y. City, 438 U.S. 104, 124 (1978).
91. Id.
92. See Plaintiffs' Response to Defendants' Motion to Dismiss at 35-36, Whitaker v. Perdue, No. 06-140 (N.D. Ga. Aug. 17, 2006).
93. Richard Tewksbury, Exile at Home: The Unintended Collateral Consequences of Sex Offender Residency Restrictions, 42 HARV. C.R.-C.L. L. REV. 531, 539 (2007) ("[R]e-search provides little if any support for the effectiveness of residential restriction laws in deterring or preventing sexual offenses.").
94. Doe v. Baker, No. Civ-A. 1:05-cv-2265, 2006 WL 905368, at *9 (N.D. Ga. Apr. 5, 2006); see also Mann v. State, 603 S.E.2d 283, 285-86 (Ga. 2004) (rejecting the takings claim of a sex offender who lived with his parents and could not show he had "any economic stake in the property").
95. Baker, 2006 WL 906368 at *8.
96. Armstrong v. United States, 364 U.S. 40, 49 (1960).
97. Baker, 2006 WL 906368 at *9; cf. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 592 (1897) ("Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking . . . ." (quoting Chicago & N.W. Ry. Co. v. City of Chicago, 140 Ill. 309, 323 (1892))).
98. Baker, 2006 WL 906368 at *8.
99. GA. CODE ANN. § 42-1-12(g) (2006).
100. Id. § 42-1-12(f)(7).
101. U.S. CONST. amend. V. The Supreme Court extended application of this right to the states in Malloy v. Hogan, 378 U.S. 1 (1964).
102. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE 372 (2000) (citing Garner v. United States, 424 U.S. 648 (1976)).
103. See id. (quoting Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 79 (1965)).
104. See id.
105. See California v. Byers, 402 U.S. 424, 436 (1971) (Harlan, J., concurring).
106. See Leary v. United States, 395 U.S. 6 (1969); Marchetti v. United States, 390 U.S. 39 (1968); Albertson, 382 U.S. 70.
107. 402 U.S. at 434 (plurality opinion).
108. Id. at 427.
109. Id. at 454 (Harlan, J., concurring). The Supreme Court has generally adopted Justice Harlan's approach over that of the plurality opinion. WHITEBREAD & SLOBOGIN, supra note 98, at 374.
110. See People v. Leroy, 828 N.E.2d 769, 782-83 (Ill. App. Ct. 2005).
111. See id. at 783. This court applied the inquiry as described by Chief Justice Rehnquist in his plurality opinion in Byers, "balancing the public need for protection against the individual claim to constitutional protection." Id.
112. Byers, 402 U.S. at 430 (plurality opinion).
113. The Leroy court found that the Illinois statute did "not implicate inherently illegal activity," 828 N.E.2d at 783, but other courts have yet to rule on this matter.
114. Doe v. Miller, 405 F.3d 700 (8th Cir. 2005); State v. Seering, 701 N.W.2d 655 (Iowa 2005).
115. See Miller, 405 F.3d at 716; Seering, 701 N.W.2d at 670.
116. See Miller, 405 F.3d at 717-18.
117. See Seering, 701 N.W.2d at 670.
118. See Duster, supra note 8, at 770-71 ("The only way [suppression as remedy] would be effective in a trial context would be for any derivative evidence to be excluded as well, including evidence of a defendant's actual residential address.").
119. 370 U.S. 660 (1962).
120. U.S. CONST. amend. VIII.
121. Solem v. Helm, 463 U.S. 277, 284, 288 (1983); see also Weems v. United States, 217 U.S. 349, 371 (1910) (holding that the Eighth Amendment prohibits "all punishments which, by their excessive length or severity, are greatly disproportioned to the offenses charged"). In 1991, the Supreme Court appeared to reverse course, saying "we think it most unlikely that the English Cruell and Unusuall Punishments Clause was meant to forbid 'disproportionate' punishments." Harmelin v. Michigan, 501 U.S. 957, 974 (1991). This language, however, appeared in a part of Justice Scalia's majority opinion joined only by Chief Justice Rehnquist.
122. Helm, 463 U.S. at 292.
123. See People v. Leroy, 828 N.E.2d 769, 543-44 (Ill. App. Ct. 2005) (rejecting the contention that the statute inflicted cruel and unusual punishment because it did not constitute the punishment of virtual banishment).
124. 701 N.W.2d 655, 670 (Iowa 2005).
125. Helm, 463 U.S. at 291 n.7.
126. The Fifth Amendment requires that no person "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The success of a double jeopardy claim will depend on whether the statute can be understood as imposing criminal punishment. See Graham v. Henry, No. 06-CV-381-TCK-FHM, 2006 WL 2645130, at *4, *6 (N.D. Okla. Sept. 14, 2006) (noting the statute's remedial intent and finding it "unlikely that Plaintiff will succeed in demonstrating that Section 590 is so punitive in effect as to negate the Oklahoma Legislature's intent to create a civil scheme"); see also Hudson v. United States, 522 U.S. 92, 98-99 (1997).
127. "No state shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ." U.S. CONST. art. I, § 10, cl. 1. Thus far, at least one state's residency restrictions have been challenged on this basis. See Coston v. Pedro, 398 F. Supp. 2d 878, 880, 882 (S.D. Ohio 2005) (dismissing plaintiffs' claim of violation of the right against impairment of contracts for lack of standing).
128. See Doe v. Moore, 410 F.3d 1337, 1349 (11th Cir. 2005) (rejecting claim that registration statute violated separation of powers by, inter alia, undermining the judiciary's sentencing role); Mann v. State, 603 S.E.2d 283, 287 (Ga. 2004) (denying claim that residency restriction statute violated separation of powers by granting judicial authority to probation officers).
129. See Mann, 603 S.E.2d at 286-87 (denying claim that statute was unconstitutionally overbroad because "less restrictive remedies are available to promote the State's interest" and unconstitutionally vague in its definition of the terms "areas where minors congregate" and "child care facilities").