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I am glad they used discretion when sentencing this child. His life should not be ruined at this age for anything.
HOWELL (AP) - A 10-year-old Howell boy accused of forcing a first-grader to perform a sex act while on a school bus has pleaded no contest to a charge of gross indecency between males.
In exchange for the boy's plea, prosecutors dismissed a charge of first-degree criminal sexual conduct and his name will not be added to the state's sex offender registry.
The boy was to go to trial Wednesday in Livingston County Juvenile Court.
The boy's attorney, James Balmforth, and his mother declined to comment.
An 11-year-old co-defendant pleaded no contest last month to gross indecency and received two years' probation.
A no-contest plea is not an admission of guilt but is treated as such for sentencing purposes.
Tuesday, April 15, 2008
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Do our laws really protect kids, or are they misdirected reactions based on myths, misperceptions and stereotypes?
By Kelly Davis
Most people reading this will remember when there were no public sex-offender registries—no online portals where you can type in your address and find out if a sex offender is living nearby or sign up to receive an e-mail alert when one moves into your neighborhood. A decade ago, there weren’t folks who memorized names and faces and went door-to-door to let their neighbors know that a sex offender moved in down the street—no one putting up fliers in apartment-building lobbies and laundry rooms.
No sex-offender registry or neighborhood watch would have kept a babysitter from molesting me when I was 6. He was around 16 or 17, the brother of our regular babysitter who filled in whenever his sister was busy. I don’t remember how many times it happened, but I know it was more than once. Years later, I found out that he molested my sister, who was 4, and my best friend, who lived across the street.
At some point I told my mom what happened, but I don’t know what words I used. At 6, “penis,” “vagina” and “sex” weren’t part of my vocabulary. Whatever I said, my mom didn’t believe me—at least that’s what she told me.
Looking back, I think she knew I was telling the truth, but she just didn’t know how to respond.
And then I simply forgot that it ever happened—until my first serious relationship in high school, when I had to admit to the guy that, in my mind, the male penis was a diseased, disgusting thing. A year later I ended up in counseling for severe anxiety and depression. There was a box on a questionnaire asking if I’d ever been the victim of sexual abuse, and that opened the door.
A couple of weeks ago, I threw the babysitter’s name into a national sexual-offender registry. A match came up, but the photo was a guy from Texas who happened to have the same name. I doubt the babysitter went on to become a habitual child molester—statistics suggest that he didn’t. I think it was a case of a sexually confused teen who made a bad decision.
In nine out of 10 sexual assaults, the victim knows the perpetrator. In roughly 35 to 40 percent of those cases, it’s a relative. And if it’s not a relative, it’s mom’s new boyfriend (one of the more common victim-offender relationships) or, as in my case, a babysitter.
“The mythology of the dirty old man in the trench coat with the candy lurking around kids at a school yard is misplaced,” says San Diego County Public Defender Marian Gaston. “The vast majority of sex offenders, they don’t look like that…. It’s not this easily identifiable group of outsiders who can then be cast away. It’s your sister’s new boyfriend; it’s your stepdad.”
The term “sex offender” conjures the kind of monolithic image Gaston refers to—one that’s reinforced by the news media and tough-on-crime politicians, despite evidence to the contrary. Misperception and fear, rather than good empirical research, seem to be what drives sex-offender laws.
A case in point is a new law that takes effect this week in San Diego.
The “Child Protection” ordinance, passed unanimously by the City Council in March, is a spin-off of California’s Jessica’s Law, approved by voters in 2006. Among other things, Jessica’s Law created mandatory sentences for sex offenders, requires that certain sex offenders be outfitted with Global Positioning System (GPS) devices for life and expanded the list of what constitutes a sexual offense. Most controversial are the 2,000-foot-radius “predator-free zones” the law established around schools and parks in which sex offenders who are paroled after Nov. 7, 2006, are forbidden to live (for a look at how this maps out in San Diego County, click here).
The law was named after Jessica Lunsford, a 9-year-old Florida girl who was abducted from her home, raped and killed in 2005 by John Couey, a registered sex offender who lived about 100 yards from the Lunsfords. Couey abducted Jessica by entering the home at night through an unlocked door.
Four unnamed plaintiffs—two from San Diego County—are challenging Jessica’s Law before the state Supreme Court, arguing that the law’s residency restrictions are too broad. None of the four’s crimes involved children.
Despite the court challenge, San Diego went ahead and added more locations to the list of safe zones: city libraries, city parks, amusement parks (SeaWorld, the zoo), video arcades, licensed daycare facilities and businesses that cater to children, like Chuck E. Cheese. (The Page 13 map factors in only schools and parks.)
Additionally, the San Diego law creates “presence” restrictions that forbid registered sex offenders from being within 300 feet of any of the above locations. While the city’s enhanced residence restrictions apply only to people who commit a sexual offense after the law takes effect, the 300-foot restriction applies to all registered sex offenders.
Sgt. Mark Sullivan, who supervises the San Diego Police Department’s Sex Offender Registration Unit, said enforcement of the presence restriction would likely be complaint-driven.
“We used to get complaints from mothers that would take their kids to the park and say, ‘There’s a weird guy staring at my kids,’ and they’d call the police, the police would show up [and] realize they’re talking to a sex offender,” Sullivan said, “but there was no law that would allow an officer to tell him to leave.”
Now, under the new city law, the individual could be arrested, he said.
Unlike Jessica’s Law, which has no defined punishment for anyone who violates the residence restriction (unless the person’s on parole and, in that case, it’s a parole violation), San Diego’s ordinance makes it a misdemeanor criminal offense, punishable by up to six months in jail.
At the meeting where the City Council voted to implement the law, only one person spoke in opposition. Laura Arnold, a public defender, presented each council member with a 10-page memo that summarized what a number of studies have found: Restricting where a sex offender lives has no influence on whether or not he’ll commit another crime. In fact, Arnold told the City Council, research has found that such restrictions can be counterproductive, pushing sex offenders into low-income communities and rural areas or, worse, onto the street.
In 2006, the California Coalition Against Sexual Assault, an umbrella group for 84 rape crisis centers and sexual-assault prevention programs, issued a strongly worded position statement opposing Jessica’s Law: “Residency restrictions… don’t make communities safer. Residency restrictions don’t reduce recidivism, don’t improve supervision of offenders and ultimately do not protect children from sex offenders.”
And, according to a study by the Minnesota Department of Corrections that looked specifically at repeat offenders, it really does come down to relationships and not geography: “What matters with respect to sexual recidivism is not residential proximity, but rather social or relationship proximity.”
In 2006, the year before Jessica’s Law went into effect, 2,000 sex offenders registered as transient with their local police agencies. According to recent numbers from the state, 3,140 sex offenders have registered as transient—a 63-percent increase in less than two years. In San Diego, roughly 200 of approximately 1,880 registerd sex offenders have declared themselves homeless.
Sex offenders with permanent addresses are required to register annually or when they move, but transient registrants must check in with the police department every 30 days and provide officers with a general idea of where to find them, Sullivan said.
“They’ve made it very difficult for this population to find housing,” said Steve Kubicek, supervisor of adult parole operations for San Diego County. “With the city, now you’re adding [more locations]. It’s almost as if they’re purging the city of all registrants.”
Transient registrants, Kubicek pointed out, are more likely to commit other crimes. “We may see an increase in drug use when they go on the streets,” he said.
“Jessica’s Law was passed hurriedly in an election year,” he added. “And here we are in an election year.... I think [lawmakers’] intent was absolutely valid, but I think [the city law] was passed prior to evaluating the impact of the residency restriction.”
In Iowa, where a similar 2,000-foot rule has been in place since 2002, the Iowa County Prosecutors Association and more than three-dozen local governments have demanded that the state’s legislature repeal the residence restriction because of the number of offenders who’ve gone underground. And in Miami-Dade County, a reporter for the weekly Miami New Times discovered roughly 30 men living under a freeway overpass, the only place they could legally reside from 10 p.m. to 6 a.m. or risk violating probation or parole.
There are other consequences of residency restrictions. Laura Arnold recently had to find a way around the law to get a client into a drug treatment facility that was too close to a school. The client, a former prostitute, is a registered sex offender because she once said “Show me your dick” to a vice cop. “Counseling” a person to expose himself is a sex crime.
Unlike most new laws the City Council enacts, this one got very little discussion; council members talked in general terms about needing to protect children, and Councilmember Ben Hueso talked about how a similar National City ordinance was pushing sex offenders into his district and so the city needed to push back. There was no factual evidence presented to the public as to why the ordinance was needed.
Not only does the ordinance lack any clear reason for being, but also, as written, it contains wrong information, specifically a portion included in the “whereas” statements that lead off the document:
“According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to re-offend and prey on the most innocent members of our society, and more than two-thirds of victims of rape and sexual assault are under the age of 18 and sex offenders have a higher recidivism rate for their crimes than any other type of violent felon.”
No such study exists. The information, rather, comes from a talk given by Florence Shapiro, a senator from Texas, at a 1998 conference organized by the Department of Justice. Shapiro was there to discuss “Ashley’s Law,” her overhaul of Texas’ sex-offender rules, prompted by the highly publicized death of Ashley Estell, a 7-year-old who, in 1993, was abducted from a playground and later found strangled. A man named Michael Blair, who’d helped search for the girl, was convicted and sentenced to death for her murder. Though an autopsy found no indication that Ashley had been sexually abused, Shapiro stuck with the story that the girl had been raped, and that’s what she told the audience who gathered for the conference. Blair, 23 years old at the time of the trial and already a convicted child molester, damned himself by telling the jury that he saw nothing wrong with consensual sex with underage girls. (Blair’s conviction is currently on appeal since repeated DNA tests of physical evidence suggest there were two men involved, neither of them Blair.)
Because Blair had served a shortened sentence for a child-molestation case, he became Shapiro’s poster sex offender—if he’d remained in prison, she argued, Ashley would still be alive.
“Sex offenders are a very unique type of criminal,” Shapiro told conference attendees. “I like to say they have three very unique characteristics: They are the least likely to be cured; they are the most likely to re-offend; and they prey on the most innocent members of our society.”
Those words—attributed to a “U.S. Department of Justice study”—have made their way into various pieces of sex-offender legislation, like Jessica’s Law and San Diego’s new ordinance, even though the DOJ included a disclaimer along with the transcript of the conference, saying the contents “do not necessarily reflect the views and policies of the U.S. Department of Justice.”
One part of the statement is true—more than two-thirds of victims of rape and sexual assault are under 18. But the rest of the information isn’t accurate. A number of studies, including two by the Department of Justice (one released in 1997, another in 2003), have found that sex offenders have a much lower recidivism rate than any other type of criminal. According to the 1997 DOJ report, for which researchers tracked 272,111 parolees for three years, only 5.3 percent of the 9,691 sex offenders in the group were rearrested for another sex crime. As for the non-sex-offender cohort, 68 percent were rearrested. Other studies have found higher rates of recidivism among sex offenders—14 percent, on average, and as high as 26 percent—but still lower than for other criminals.
Parole’s Kubicek said his own experience confirms what the studies have found. “It’s very low for us for a new sex offense,” he said.
As the state’s Sex Offender Management Board put it, in its 219-page analysis of California’s sex-offender laws, released in January, “Statements that sex offenders cannot be ‘cured’—a concept generally accepted by experts in this field—have often been misinterpreted to mean that they will inevitably re-offend. In fact, the majority of sex offenders do not re-offend sexually over time.”
Ultimately, though, debates about recidivism mean little when it comes to the population most affected by sexual assault. As Phyllis Shess, the deputy district attorney who heads the DA’s sex offender unit, pointed out, “You have to ask, is 1 percent [recidivism] acceptable? Is 10 percent acceptable? When you’re talking about these kinds of issues, no it isn’t.”
So what’s the answer? Jessica’s Law mandated that all “high-risk” felony sex offenders must wear a GPS device for life, so that their movement can be monitored by law enforcement. The California Department of Corrections and Rehabilitation began outfitting all newly paroled sex offenders—regardless of risk level— with some form of GPS device beginning last July.
In December, California was spending $21,000 a day on GPS monitoring, which comes out to $20 million a year. The state’s Legislative Analyst’s office estimated that within 10 years, the cost for GPS monitoring could grow to $100 million annually and continue to increase. Right now local governments are expected to pick up the cost after a person completes parole, an idea that no municipality has yet embraced.
While some studies have found that GPS-monitored offenders have lower recidivism rates, pilot-programs in San Diego and Tennessee found no significant difference between GPS-monitored sex offenders and those not on GPS. It’s not necessarily going to stop someone who’s dead-set on reoffending “It’s GPS, it’s not real-time; you’re not going to get the information until the following day.”
If anything, it stops an offender from absconding, though the device can just as easily be cut off. The Tennessee Department of Corrections warned that GPS devices are a resource drain when used too broadly and shouldn’t be used for life-long monitoring. Successful rehabilitation requires that an offender be given a goal to work toward, the study found.
At a community forum on San Diego’s Child Protection ordinance, Al Killen-Harvey, supervisor in the trauma counseling program at Rady Children’s Hospital, questioned whether GPS devices were the best use of limited resources:
“We only have so much money, and that money’s now gone to looking at these kinds of tracking devices. We’ve wiped out early prevention and education programs that we used to have 15 and 20 years ago where we taught kids about healthy touch and bad touch and how to report it. We’ve wiped out funding for mental-health services for families that are economically distressed, which is a factor that may lead someone to cross a boundary that they wouldn’t have crossed before.
“In the macro sense, yeah, we’ve missed the mark here and we’re allocating way too much money in an area where the bang for the buck is minimal compared to where the real risk level is,” Killen-Harvey said.
His point on prevention is an important one. Eighty-seven percent of sex crimes committed each year are first-time offenses by people who aren’t already known to the police. It’s a statistic that turns public policy on its head—why put all the attention on the guys we already know about?
“There are agencies out there that have demonstrated that if you do a good public health, public awareness campaign, including a [hotline for] people who are afraid they might hurt a child… you can actually reduce the incidence of sexual assault in your community,” said Marian Gaston, the public defender. “Why wouldn’t we spend money on that? And instead, we’re busy spending how many millions of dollars on GPS for people who are in their 60s and who are statistically just not going to do it again.”
Then there’s the issue of treatment. The public’s perception is that treatment doesn’t work—a sex offender is a sex offender for life. But not everyone who molests a child fits the clinical definition of a pedophile, for one thing—sometimes other self-destructive factors drive behavior, like drug addiction. Recent studies have shown that, for repeat offenders, therapy does, in fact, lead to lower recidivism rates. California, however, is one of the few states that don’t offer in-custody treatment; only once a person’s released from custody is treatment mandated. It’s puzzling, given that Jessica’s Law is putting people behind bars longer.
The California Department of Corrections and Rehabilitation has plans to build a new locked treatment facility for sex offenders, but, as the state’s Sex Offender Management Board pointed out in its January report, nothing’s moved beyond the planning stage. Anyone who falls into the category of “sexually violent predator,” based on a pre-release assessment, is turned over to one of two state mental hospitals, rather than paroled, where the individual goes through a multi-phase treatment program, is reassessed and then, if he’s found by a judge to be stable enough, released back into the community.
Once someone’s off probation or parole, treatment ends and it’s rare that those who need it will seek it voluntarily, said Shess, the deputy district attorney.
“We did an experiment through the [county’s] Sexual Offender Management Council, offering resources to people who felt like stresses—whatever it was in their life that might be putting them in a situation where they might re-offend—and no one took advantage of it.” The counseling wasn’t free, but it would have been low-cost, Shess said. And, even then, the county would have made arrangements for someone who couldn’t afford to pay. “We didn’t even get that far. Nobody called to say, ‘Hey I’m a prior offender, I’m feeling like I might need help—no one.”
Around 90 percent of sex offenders aren’t under state or county supervision, Kubicek noted. “The 10 percent that are on parole are receiving the best supervision available,” he said. “My concern is, how do we enforce the 90 percent who are receiving no supervision, who are just registering?”
One might assume that when a sex offender goes in to register with the police each year (or, each month if he’s a transient), there might be a brief talk with a counselor or some other kind of assessment that happens. But, aside from an initial assessment when an individual first registers, there’s not much follow-up. The city of San Diego has only five officers dedicated to the sexual-assault unit (which includes sex-offender management): one sergeant (Mark Sullivan), two detectives and two code-compliance officers who staff the office where more than 100 people go to register each week.
What if, rather than putting restrictions on where a sex offender can live and move about town—strategies whose effectiveness isn’t supported by evidence—the City Council pledged to fund a risk-assessment counselor for the police department? Sure, money’s short, but it’s hard to argue when it comes to protecting kids. Hire an intake counselor or set up a hotline that someone like my mom could call to find out how to respond when her kid says the babysitter’s asking her to do things she doesn’t understand.
Another thing to think about: It’s difficult to turn in a friend or relative when you know that, unlike any other crime, this is one that will follow the person around for the rest of his life. Would my mom have turned the guy over to police if it meant a lifetime of public scrutiny and, in essence, banishment?
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LITCHFIELD (AP) - A Big Lake woman is suing Meeker County, alleging she was unreasonably strip-searched after several arrests and once required to show her pierced breasts to be photographed.
Gail Lynn Simpson's federal lawsuit seeks more than $75,000 and changes in the county's strip-search policy.
Simpson says she was arrested on misdemeanor charges five times from 2004 to 2007, and she was strip-searched each time. Her lawsuit says Meeker County's policy is to strip-search all arrestees without regard to the seriousness of the charge.
The attorney representing Meeker County, Jon Iverson, says the county's policy does allow for discretion on who is searched.
(Copyright 2008 by The Associated Press. All Rights Reserved.)
By Patrick Henry, March 23, 1775.
No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the House. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do opinions of a character very opposite to theirs, I shall speak forth my sentiments freely and without reserve. This is no time for ceremony. The questing before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.
Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.
I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free-- if we mean to preserve inviolate those inestimable privileges for which we have been so long contending--if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained--we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!
They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable--and let it come! I repeat it, sir, let it come.
It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace-- but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!
If you've been harassed by Perverted-Justice, or their vigilante squad, or anybody else for that matter, join in on this civil action... The main web site is here. Also, if you have been harassed by these people, SAVE EVERYTHING, you will need evidence to back up anything you say!
Case Title: Cyberharassment, Cyberstalking and Defamation
The aforementioned groups are involved in conspiracies against private individuals designed solely to defame, harass, stalk and cause irreperable harm to anyone that disagrees with their tactics. The Rick Ross Institue recently added Perverted Justice to their list of known cults and/or dangerous organizations. Thousands of individuals have been irreperably harmed by their tactics as well as their families.
Seeking to form a class action lawsuit against Perverted Justice Foundation Inc., PLuna Foundation, and absolutezerounited.blogspot et.al For cyberstalking, cyberharassment and portraying victims in a false light, invasion of privacy, and violations of the DMCA.
|Others have joined this Class Action:|
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Video at the end.
PUYALLUP -- Investigators say a man who was making bombs in his house blew himself up inside early Tuesday morning, blasting the roof off of his home and causing the structure to burn to the ground.
Investigators believe the man who died in the blast is Zane Dittman, but they are waiting for the medical examiner to make a positive identification.
Pierce County Sheriff spokesman Ed Troyer said a couple called 911 after returning home Monday evening to find their 26-year-old roommate angry and handling explosives.
When deputies arrived at the house near the intersection of 160th Street and 70th Avenue East, the man ran upstairs with a duffle bag full of explosives and other bomb making materials. Troyer said the man began playing music loudly and deputies backed away from the house.
"The cops were supposed to call us and as far as I knew they were going to call us before they showed up. They just beat on the door and sent everybody in a panic," said home owner Sean Remlick.
Deputies evacuated Remlick and his fiance out of the home and exited around midnight. Just moments later, the top floor of the house exploded.
"He either accidentally or intentionally set the explosion off, which took the whole top floor off of the residence and engulfed the house in flames," Troyer said.
Firefighters arrived but were not able to enter the house to attack the fire because of the fear that there may be more explosives inside. The fire continued to smolder until about 8 a.m., and a body was found in the rubble after several hours of searching.
Dittman is a convicted sex offender who answered an ad on the Craigslist Web site seeking a roommate for the house.
Remlick said he had no idea Dittman was a sex offender.
"Never had an argument with him, never raised his voice, never yelled, never threatening," he said.
Dittman was the subject of a 2003 Amber Alert and was convicted of taking his then girlfriend's 10-year-old son from Spokane to Kirkland, where the boy was eventually found.
A bomb robot was used to check the charred remains of the house and nearby vehicles for bombs, but no other explosives were found.
Troyer said the bombs the man used were wrapped with glass, marbles and nails.
It was not clear exactly what caused the man to become angry and detonate the explosives.
"He's had some issues with law enforcement over the years," Troyer said. "And actually, from what we're learning, had a rough week leading up to this... paranoid, changing locks and doing some strange stuff, according to witnesses."
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Publication: State News
Author: Abner, Carrie
Megan Kanka. Dylan Greene. Jessica Lunsford. Sadly, the names of these children--all victims of convicted sex offenders are too familiar to the American public. And for policymakers, these children have become the inspiration for dozens of bills in statehouses nationwide, including efforts to mandate longer sentences for sex offenders, to prohibit sex offenders from living near schools and child care centers and to increase penalties against convicted offenders for failing to register with authorities. Despite these efforts, states struggle to develop long-term sex offender management policies and programs that ensure the public safety.
Managing Sexual Offenders: The Challenge for State Officials
The National Center for Missing and Exploited Children reports that there are approximately 560,000 registered sex offenders in the United States. And while the number of convicted sex offenders in state prisons is increasing, most convicted offenders live in the community under probation or parole supervision. The Center for Sex Offender Management reports that approximately 60 percent of convicted sex offenders are released under supervision in communities across the country--either directly after sentencing or following a period of incarceration. Moreover, as many as 100,000 convicted sex offenders are estimated to be "lost" in the system across the country, with law enforcement unable to find or track their whereabouts.
According to the Office of Juvenile Justice and Delinquency Prevention, however, the number of substantiated child sex abuse cases has declined approximately 40 percent since the early 1990s, from an estimated 150,000 cases in 1992 to just under 90,000 cases in 2003. Despite this decline, sex offender issues remain in the public spotlight.
According to a report by the Center for Sex Offender Management (CSOM), "Public sentiment that the criminal justice system should do more to safeguard the community from sex offenders has led to the enactment of a host of measures in recent years, such as sex offender registration, community notification, and involuntary civil commitment for some sex offenders."
In the early 1990s, only five states required convicted sex offenders to register their addresses with law enforcement agencies. Following the abduction of ll-year old Jacob Wetterling from his neighborhood in St. Joseph, Minn., however, Congress in 1994 passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act, requiring states to develop and implement a sex offender registry. As a result, all 50 states currently have sex offender registries.
States have continued to address the issue of sex offender management through additional legislation and programs.
According to Stateline.org, more than 100 sex offender laws were passed by state legislatures in 2005--more than double the number passed in 2004. And in 2006, sex offender management issues appear to be taking an equally prominent role in statehouses across the country, with sex offender bills under consideration in nearly every state.
Last year, Florida passed the "Jessica Lunsford Act," which increases the minimum penalties for sex crimes against children and requires lifetime electronic monitoring for certain offenders. This year, at least half a dozen states are considering similar legislation.
Virginia lawmakers passed HB 1037, establishing the Office of Sexually Violent Predator Services within the Department of Mental Health, Mental Retardation and Substance Abuse Services. The purpose of the new state agency is to administer provisions related to the civil commitment of violent sexual offenders.
In Minnesota, sex offenders who fail to register may soon find themselves on state Web sites and "Most Wanted" postings as a result of a new statewide initiative announced by Gov. Tom Pawlenty to crack down on non-compliant sex offenders.
And in Kansas, Sen. Phil Journey has proposed that sex offenders be required to sport pink license plates on their automobiles.
While few would argue against legislative and programmatic efforts to ensure the safety of the public--and of children in particular--against violent sexual crimes, some state leaders have expressed concern that the urgency of efforts to strengthen sex offender management policy is prohibiting lawmakers from fully considering the range of long-term impacts such policies will have.
According to Carl Wicklund, executive director of the American Probation and Parole Association, the challenge for state lawmakers is to "keep unintended consequences to a minimum, while still developing legislation that ensures the public safety. Policymakers must be careful not to create new victims by being overzealous in controlling sexual offenders."
And some state legislators agree.
"There are myths surrounding sex offenders that must be exposed, such as all sex offenders re-offend, treatment does not work, and the risk to our children lies in strangers," says Kansas Rep. Ward Loyd. For state policymakers, he adds, "there is a fear, in some ways, of not going far enough to protect the public against sex offenders--a fear of being accused of being soft on crime--when, in fact, the greater risk is casting too wide a net in trying to target the individuals we really need to catch."
Legislating for Safety
What should state lawmakers keep in mind as they consider sex offender management legislation? Experts say states should consider a number of issues, including the complexity of the sex offender population, the changing role of technology in sex offender management and interjurisdictional issues.
Sex Offenders: A Diverse Population
While often referred to as a single group, the sex offender population comprises a variety of individuals who have committed a wide range of crimes. For instance, in some states the term "sex offender" may be used to describe both an adult serial rapist and a juvenile who has engaged in sexual play with a younger relative.
Yet the differences between groups of sex offenders can be significant. According to CSOM, "reoffense rates vary among different types of sex offenders and are related to specific characteristics of the offender and the offense."
Due to widespread underreporting of sexual crimes, sex offender recidivism rates are difficult to calculate. Nevertheless, some studies suggest that there are significant differences in recidivism patterns among various categories of sex offenders. In a 1995 study on sex offender recidivism, researchers found that child molesters had a 13 percent reconviction rate for sexual offenses and a 35 percent reconviction rate for non-sex offenses over a five-year period. Meanwhile, the study found a 19 percent reconviction rate for rapists who had committed a new sexual offense and a 46 percent reconviction rate for non-sexual offenses.
And in contrast to popular belief, recidivism rates for sex offenders are lower than for non-sex offenders. In a 2003 study of sex offender recidivism rates, the Bureau of Justice Statistics found that 43 percent of sex offenders--versus 68 percent of non-sex offenders--were rearrested for a new offense within three years of their release from prison in 1994.
These differences, experts argue, should be reflected in state sex offender management legislation. Wicklund encourages state policymakers to consider the distinctions between various groups of sex offenders--and the different risk levels they pose to the public--when developing sex offender policies. "No two offenders are the same, and no two situations are the same," he says. "If we legislate to treat different groups of cases the same for purposes of justice and public safety, we may get neither."
The Changing Role of Technology
In today's world, technological innovations play a critical role in the management of sexual offenders. At least a dozen states now allow the use of Global Positioning System devices to track the movements of convicted sexual offenders, and even more state legislatures are currently considering bills authorizing, or in some cases requiring, the use of GPS devices to monitor offenders.
While GPS and other similar devices present new opportunities to enhance the tracking and monitoring of sex offenders, these and other emerging technologies are constantly evolving. For state policymakers, therefore, the concern is to what degree legislation should specify technologies for monitoring and tracking offenders.
Some point to potential dangers in specifying which types of technology to use for monitoring offenders. Given the rate at which technologies are evolving, today's state-of-the-art innovations may be obsolete tomorrow. "It's not very wise to prescribe the type of technology in legislation," says Wicklund. "Technologies are changing every day. Rather, it is wiser to authorize the use of technologies and let corrections officials determine the appropriate device."
Moreover, the use of such technologies places enormous re source pressures on the states. Technology to track and monitor offenders, like GPS devices, is often quite costly. And its use also requires additional resources, including staff to monitor the whereabouts of offenders, justice personnel to respond to offenders in prohibited areas and additional resources for general maintenance and upkeep.
Jurisdictional issues provide additional challenges for state policymakers. Recent concerns about the estimated 2,000 registered sex offenders evacuated from the Gulf Coast during Hurricane Katrina highlight the challenges associated with ensuring that offenders are monitored and tracked even when they cross jurisdictional boundaries.
Disparate state sex offender laws create additional challenges in tracking offenders across state lines. With the recent passage of laws increasing the restrictions for convicted sex offenders in some states, officials worry that sex offenders will relocate to other states where laws are less stringent.
According to some officials, this is already happening. Local law enforcement officials in Nebraska have reported an influx of sex offenders from Iowa. County officials argue that the influx is due in part to Iowa's newly enacted residency law, which prohibits sex offenders who victimized children from living within 2,000 feet of a school or child care center.
State policymakers across the country are calling for more coordination among states to address this issue.
Rep. Loyd argues that state policymakers "need a coordinated effort to address the response to high-risk sex offenders. If laws are overly restrictive in one jurisdiction, sex offenders will move with or without complying with registration requirements.
"For every high-risk sex offender we lose track of, the ability to monitor and control inappropriate behavior is lost, and the risk of a repeat of the event in Florida is increased," Loyd said, referring to the case of Jessica Lunsford, the 9-year old Florida girl who was abducted, assaulted and murdered by a convicted sex offender in 2005.
Mapping the Way: Making States Safer
Policymakers point to the need for increased awareness of sex offender management issues among state officials and the general public alike. "We must make smart decisions on our choices for public safety that are evidence based, and we must develop a system of public education that focuses on abuse prevention and actions parents can take to enhance the safety of their children," Loyd said.
Some state officials are calling for increased collaboration among states in an effort to share information and best practices on sex offender management policies and programs. A national dialogue for state leaders on these issues would allow policymakers and practitioners to discuss state options for the effective management of sex offenders as well as the long-term impacts of policy and programmatic initiatives.
With the memory of Jessica Lunsford and others still fresh in the minds of the American public, concerns about sex offenders and their crimes will likely remain a high priority for state leaders in the near future. As policymakers continue to push for new ways to protect citizens against violent sexual crime, they should keep in mind the long-term impacts of sex offender management policies and programs.
Never going home: does it make us safer? Does it make sense? Sex offenders, residency restrictions, and reforming risk management law
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Publication: Journal of Criminal Law and Criminology
Author: Durling, Caleb
I. INTRODUCTION: MEET PATRICK LEROY
Patrick Leroy is thirty-seven, and has lived almost all of his life with his mother in East St. Louis, Illinois, (1) one of the state's--and nation's-poorest communities. In 1987, when Leroy was eighteen, he was convicted of an unspecified sexual offense, (2) for which he served six years in prison. (3) As a result of this conviction, Leroy is now considered a sex offender, mandating that he annually register his address with, and pay a registration fee to, the local authorities for the rest of his life, or be sentenced to up to three years in prison for noncompliance. (4) Since being released over a dozen years ago, he has lived in his mother's house and committed no further sexual offenses. (5)
In July 2000, Illinois passed a sex offender residency restriction law. (6) The law forbade anyone convicted of a sex offense from living within five hundred feet of playgrounds, schools, or day care centers. (7) The ban applied prospectively and retrospectively, exempting only those who owned a house within the five hundred foot buffer at the law's inception from having to move. (8) Violation of the residency restriction law in Illinois is a felony, punishable by one to three years in prison. (9) Leroy's mother's house, where Leroy had lived all of his non-incarcerated life, is located within five hundred feet of Miles Davis Elementary School. (10)
Leroy was charged in August 2002 with violating the residency restriction statute. (11) In the ensuing trial and appeal, Leroy argued that these new restrictions violated his substantive and procedural due process rights, his fight to equal protection, his right against self-incrimination, prohibitions against ex post facto laws, and prohibitions against cruel and unusual punishment. (12) The Fifth District of the Illinois Appellate Court rejected all these considerations; (13) the Illinois Supreme Court denied his appeal; (14) and now Patrick Leroy cannot live in his mother's house. (15)
The three-member panel's decision was not unanimous, as Judge Kuehn dissented vigorously to the "expulsion" of Patrick Leroy. (16) Judge Kuehn, in detailing the constitutional infirmities of the residency restriction law, (17) noted that the law's enforcement would result in a lifetime ban against Leroy returning to his longtime home, where he had lived without incident for thirteen years since release from prison. (18)
Patrick Leroy's story is not unique. He is just one of many former sex offenders now caught in an escalating movement to publicly identify and stringently control sex offenders in order to prevent the next graphic sex crime against children. Sex offenders are vilified and feared; their crimes considered our "society's worst nightmare." (19) But while legislators gain notoriety in this "race to the bottom" (20) for passing laws banning sex offenders from living near day care centers, schools, parks, libraries, pools, and recreations trails, larger questions loom: Have these laws made our children safer? More to the point, do these sex offender restrictions make sense? If these "Scarlet Letter" (21) laws are not effective, what system would ensure better sex offender risk management without wasting scarce public funds policing and onerously burdening those low-risk offenders like Leroy, who have lived without trouble down the street from schools, parks, and nurseries for many years?
To answer these questions, the Comment is divided into three main parts, considering residency restrictions as a microcosm of the larger problem of effective and constitutional sex offender risk management. Section II traces the recent development of sex offender laws and the resulting pariah-like status of sex offenders in contemporary America. (22) Sections III and IV specifically focus on residency restrictions, first scrutinizing their scientific, economic, and political problems before analyzing the ex post facto constitutional infirmities with the laws. (23) The conclusion from Sections III and IV is that uniformly applied residency restrictions will probably fail judicial scrutiny, and in any case are ineffective in preventing sex offender recidivism. (24)
The Comment's last part takes up the policy question of what states should implement in lieu of ineffective and unconstitutional uniformly-applied residential restrictions. Section V examines best practices for managing sex offender risk that have been implemented across the country, considering how each one works and its particular benefits and problems. (25) Finally, Section VI proposes a synthesized method of managing sex offenders, which achieves the paramount goal of protecting children by targeting the minority of offenders who are high risk while relaxing restrictions on the vast majority of offenders who studies have shown do not re-offend. (26) This synthesized risk management strategy better allocates scarce public resources, allays public fear, and withstands constitutional scrutiny. (27)
This section examines the political and social conditions that have led to the residency restrictions that forced Patrick Leroy to leave his mother's home. In turn, this section considers the political and legislative response to sex offenders, the mechanics of residency restrictions, the public's perception of sex offenders, and the judicial treatment of sex offenders.
A. THE POLITICAL RESPONSE TO SEX OFFENDERS
Strict laws that specifically target sex offenders are a recent innovation. After several well-publicized brutal sexual assaults and murders of children by previously convicted sex offenders living inconspicuously near their victims, states began to pass "Megan's Laws" in 1990. (28) The laws are named after Megan Kanka, a seven-year-old girl from New Jersey who was victimized and then killed by a neighbor who community residents did not know was a twice-convicted sex offender. (29)
Megan's Laws, also known as sex offender registration acts (SORAs), require offenders to register promptly when they are released from prison, and also mandate that sex offenders convicted in the past now register themselves with their local police department. (30) The goal is to put a face on sex offenders, so they can no longer prey as strangers on the most vulnerable members of society. (31) The laws, although state-created, became essentially mandatory when Congress passed legislation conditioning 10% of all federal law enforcement funding to the state on the state having an acceptable sex offender registration law. (32)
Despite sex offenders being the only class of convicted felons generally forced to register and have their names and pictures posted on websites accessible to the general public, (33) legislators and local officials have since sought even harsher measures. The mayor of Albuquerque proposed posting sex offenders' photos and descriptions at the zoo and other places where children congregate because he believed that an offender had "'Danger: Will re-offend' virtually stamped on his forehead." (34) When asked about the constitutional rights of the offenders that were possibly being violated by this proposed law, the mayor replied that the "offender surrendered his rights when he committed his first attack," and so "his rights should not be taken into consideration when formulating a sex offender policy." (35) For Halloween 2005, state officials in South Carolina, county officials in Cook County, Illinois, and city officials in Rochester, New York, all placed prohibitions on sex offenders having any contact with Halloween festivities. (36) The increasingly onerous restrictions have led one commentator to conclude: "Politicians, even in honest attempts to protect the public good, sometimes go too far without considering unintended consequences." (37)
B. RESIDENCY RESTRICTIONS
Thirteen states, including Illinois, have passed laws in the last five years banning sex offenders from living within a certain distance of schools, parks, day care centers, and "places where children normally congregate." (38) Residency restrictions are justified as a means of "taking away a portion of the opportunity" for sex offenders to re-offend. (39) In terms of width of the prohibited zone, they range from a five hundred foot restriction in Illinois (40) to two thousand feet in Alabama and Iowa. (41) Oregon has adopted a "general prohibition" against sex offenders living "near where children reside." (42) In terms of prohibited locations, most states' restrictions encompass school and child care facilities, and sometimes parks and the current location of the particular offender's victim. (43) Georgia's law also includes a vague proscription against living within one thousand feet of any area "where minors congregate." (44) These residency restriction laws, like previous sex offender laws, have been generally applied not just prospectively to offenders being sentenced in the future and currently imprisoned or on parole, but also retrospectively to anyone previously convicted of a "sex offense." (45)
Smaller units of government have also enacted residency restrictions. Cities and counties across the country have passed residency restrictions. (46) The restrictions include extensive bans, such as 2500 feet around anywhere children congregate in Miami Beach, Florida, (47) and expanding the list of restricted areas to also include public pools, libraries, and multi-use recreation trails in several Iowa counties and communities. (48) In addition, quasi-governmental units like common interest communities have added covenants banning sex offenders altogether from their communities. (49)
The laws grandfathered some offenders living within the restricted areas, but not all. Illinois, for example, exempted those sex offenders who owned houses within restricted zones from moving when the law came into being, but did not exempt longtime renters or those, like Leroy, who lived with a relative who actually owned the home. (50) Also, a convicted sex offender who had been renting a house which was not in a restricted zone when the law was enacted would be in violation of the law if at any point in the future one of the restricted uses, like a day care facility or a playground, were to be built within the proscribed five hundred feet of his rented property. (51)
C. PUBLIC PERCEPTION AND RESPONSE TO SEX OFFENDERS
Sex offender restrictions have met with resounding public support. It is not a stretch to say that child sex offenders are the bogeymen of our day. (52) A recent Gallup poll found that 66% of people surveyed were "very concerned" about sex offenders, whereas only 52% were as concerned about violent crime, and just 36% worried as much about terrorism. (53) Sex offenders invite fear because of their sordid and well-publicized crimes against children, (54) and because many believe (incorrectly) (55) that sex offenders re-offend at a much higher rate than other criminals. (56) Celebrities from Oprah Winfrey to Bill O'Reilly have advocated for harsher punishment and more stringent surveillance of convicted offenders. (57) Syndicated columnist Ann Landers, whose advice columns appear in one thousand newspapers across the country, recently concluded, "The only molesters who can be considered permanently cured are those who have been surgically castrated." (58)
Communities across the country have treated released sex offenders like pariahs. (59) In the fall of 2005, Cook County began a movement to ensure that no bus stops were placed near sex offenders' homes, in order to prevent offenders from preying on unsuspecting children as they waited for the school bus. (60) In the first year of this initiative, school systems shifted the bus stops, but already one resident argued that instead, the sex offenders should be forced to move: "They should get rid of the sex offenders. Kids shouldn't have to go through that." (61) A sex offender in California who completed the state sex offender treatment program and then underwent voluntary castration while in prison was still turned down by at least 120 rehabilitation facilities upon release, and neighbors refused to allow him to move in with his father in the State of Washington. (62) As a result, he now lives in a trailer on the grounds of a California prison. (63)
Sex offenders also risk bodily harm for being on the list. In April 2006, a Canadian man accessed Maine's online registry, and used the personal information available on it to locate and kill two offenders before killing himself. (64) In response, Maine only briefly shut down the "popular" website. (65) As one state representative put it, "[Just] because two people that were on the website were horribly killed doesn't take away the need for that website." (66)
No convicted sex offenders hold major political office. Indeed, in New Hampshire in the fall of 2005, a heated controversy arose whether a state elected official should resign because he had employed a convicted sex offender who had been cited on several occasions for failure to register. (67) At one point, the Republican councilman faced calls from the entire New Hampshire Congressional delegation, who were all Republicans, as well as the state's Democratic governor to resign. (68)
Thus, the public both hates and fears sex offenders, resulting in approval of ever increasingly harsh penalties for these political pariahs. (69) Indeed, no state which has passed a residency restriction statute has repealed it, and Alabama has recently enhanced its law with more restrictions on where sex offenders can live, work, and even loiter. (70)
D. JUDICIAL RESPONSE
Courts from across the nation have generally approved of unusually harsh punishments meted out to sex offenders. Judges have conditioned the release of offenders on them placing signs on their front lawns identifying themselves to all passersby as sex offenders. (71) A federal district court judge in Arizona was twice overruled by the Ninth Circuit for imposing rigorous probation restrictions on a man facing marijuana charges who had been convicted fifteen years earlier of sexual contact with a teenage female. (72) A twelve-year-old boy in Illinois was permanently banished (along with his family) from his community, and made to register as a sex offender for the rest of his life, a shockingly harsh sentence handed out by a juvenile court and upheld by the state's supreme court. (73)
When addressing challenges to the constitutionality of sex offender laws, both federal and state courts have generally deferred to legislative findings, upholding first the SORAs (74) and later residency restriction laws. (75) But this judicial trend of upholding all uniformly applied restrictions of sex offenders may not last forever, as already Justice Kuehn and others have vigorously dissented over the constitutionality of residency restrictions. (76) The next two sections of this Comment will examine residency restrictions in more detail, concluding that the restrictions are neither constitutional nor effective in preventing sex offender recidivism.
III. FOUR NON-CONSTITUTIONAL CONCERNS WITH RESIDENCY RESTRICTIONS
There are four principal concerns with residency restrictions, apart from their constitutional frailties: that the laws are based on two flawed premises; that they become a heavy tax burden on the government; and that they provoke two real estate crises, first in the already undesirable communities where sex offenders often end up living, and second, for the low-income sex offenders themselves. Section III takes up each of these critical concerns in turn.
A. TWO FLAWED SCIENTIFIC ASSUMPTIONS ABOUT RESIDENCY RESTRICTIONS
Residency restrictions are justified by two flawed scientific and factual premises: that sex offenders target unknown children in their neighborhood to commit many of their offenses and that sex offenders re-offend at a much higher rate than other felons. (77) The Georgia legislator who sponsored the state's residency restriction justified the measure for both reasons, claiming that sex offenders are "virtually impossible to rehabilitate and these crimes are so difficult to detect and control, [that] those persons who are convicted of sexual offenses against children ... are apt to be repeat offenders." (78) Both of these claims are false.
First, the image of the stranger sex offender harming neighborhood children is far from reality. Studies have shown that it is not strangers, but "[r]elatives, friends, baby-sitters, persons in positions of authority over [a] child, or persons who supervise children [who] are more likely than strangers to commit a sexual assault." (79) Indeed, one study found 80% of abused girls and 60% of abused boys are harmed by people that they know, either a friend or a family member. (80) Another study concluded that strangers commit no more than 10% of all child molestation cases. (81) A 2003 Department of Justice survey confirmed this, indicating that among the incarcerated child sex offenders in state prisons in 1997, only 7% were in prison for crimes where the victim was a stranger to the assailant. (82) The implication, then, is that laws should focus on preventing sex offenders from harming children whom they know, and not fixate on preventing the rare attacks by strangers. (83) Unfortunately, "[l]egislators [instead] tailor sex offender bills to the local or national high-profile crimes that rouse public outrage and horror ... [even though] the vast majority of sexual abuse is committed by acquaintances or family members of the victims, not sexual predators lurking in the bushes." (84) Some experts even contend residency restrictions do more harm than good, as they lull the public into a false sense of security from stranger sex offenders when the vast majority of predators meet their victims through jobs, volunteering, or social networks. (85)
Furthermore, studies have not shown a correlation between a sex offender's "residence['s] distance from a school or child care facility, and an increased likelihood of recidivism." (86) A California newspaper conducted a review of nearly five hundred released sex offenders who lived legally near schools and day care facilities. (87) The newspaper found that only one of the five hundred was arrested during the one year period, and that was for committing a parole violation and not another sexual assault. (88) Rather, psychologists conclude that if a sex offender wants to re-offend, he will do it; and "it doesn't really matter how close the school is." (89) Similarly, a Minnesota Department of Corrections study determined that the only two recidivist acts of child sexual assault committed in parks on unknown victims occurred several miles away from the offenders' homes, leading the department to conclude that a five hundred foot or even one mile restriction would not likely prevent the rare offender who wanted to harm again. (90)
The second spurious claim made about sex offenders is that they re-offend at an "astronomically" (91) higher rate than do other criminals, justifying the harsh restrictions placed uniquely on them among all felons. (92) However, extensive private studies refute this claim. In 1998, a massive study of 29,000 sex offenders found recidivism rates of 12.7% for child molesters over five years. (93) Admittedly, at least one survey found a higher total, with a 1991 study finding child molesters had a recidivism rate of 31% for sexual crimes and 43% for any violent act. (94) But a meta-analysis of studies of sex offender recidivism rate concluded that the studies' aggregate recidivism rate for sex offenses was 10-15% within five years and 40% within fifteen to twenty years. (95)
Government statistics have also concluded that sex offenders re-offend at a far lower rate than do other offenders. In 2003, the Department of Justice (DOJ) published a comprehensive study of sex offenders released from prison in 1994. (96) Of those sex offenders and rapists released from prison in 1994, only 14% were recidivists at that point. (97) Of those child molesters released in 1994, only 3% were rearrested within three years for a sexual offense against a child, and 14% were rearrested within three years for any violent offense. (98) All told, 39% of released sex offenders were rearrested within three years, but half of those arrests were for "public order offenses" like parole violations or traffic infractions. (99)
These recidivism rates were markedly lower than those of other felons; as "compared with other ex-cons, sex offenders were paragons of virtue." (100) The DOJ's internal study concluded that 68% of prisoners released in 1994 were rearrested for any offense (including minor ones) within three years, with 68-74% of property criminals and 50-67% of drug offenders rearrested. (101) A British study of adult men released from prison in 2002 produced even more striking results, as 85% of those convicted of theft from vehicles were rearrested for any offense within two years, and only 17% of child sex offenders were rearrested for any offense. (102)
Altogether, although sex offenders do pose some risk as a group, less than half are likely to ever re-offend, even over a two-decade span, and government studies have found that less than one in twenty will harm a child again in the three years after the offender is first released from prison. Even the New Hampshire legislator who chaired the state legislature's Committee on Criminal Justice and Public Safety conceded that only one in thirty sex offenders are predators about whom society should be concerned. (103) Further, any claims that sex offenders have a higher recidivism rate over any period as compared to other felons appear unfounded. (104) Only 39% of sex offenders were arrested for another crime within three years, (105) compared to other felons, whose arrest rate for all crimes approached 70%. (106) Some critics have responded by arguing that stated sex offender recidivism rates are artificially low because sex crimes are underreported, especially within families, (107) but the level of underreporting would have to be quite high for sex crimes to make up the current gap between sex offenders and other criminals. Furthermore, underreporting of sex crimes committed within families would not support residency restrictions, which are premised on keeping stranger sex offenders away from unsuspecting children. While these lower recidivism rates do not support the conclusion that sex offenders should not be supervised at all, they do call into question any court (108) or expert (109) who rationalizes residency restriction laws because sex offenders re-offend at higher rates than other criminals.
B. THE PUBLIC FISCAL BURDEN OF RESIDENCY RESTRICTIONS
The second concern is the fiscal burden that residency restrictions place on state and local governments. Wisconsin considered enacting a residency restriction law, but concluded it would have cost at least $17 million to create sufficient housing for displaced sex offenders in rural areas outside restricted zones. (110) Illinois's shorter five hundred foot restriction will cause less problems than Iowa's two thousand foot restriction, where studies have shown that entire communities are off limits to sex offenders. (111) However, the possibility remains even in Illinois that a displaced offender could present a compelling case that in an area near where he once lived, there is no possible alternative housing, and thus the state should have to provide it. The state would then be required to build public sex offender housing, an unenviable political task. The potential for embarrassment and public ire alone should give legislators pause when considering these laws.
C. THE REAL ESTATE CRISIS FOR LOW-INCOME COMMUNITIES
Residency restriction laws have led to two real estate crises. The first crisis has developed in the areas in which sex offenders can legally live because there are no prohibited facilities nearby. On the private sector side, real estate developers are concerned that once the public learns which areas are open to sex offenders, the housing values in those still-unrestricted areas will plummet. (112) A study of home values in Montgomery County, Ohio confirmed this fear, finding that those homes located in close proximity to the residence of a known sex offender decreased in value by up to 17%. (113)
Residents of those neighborhoods open to sex offenders end up bearing the true cost of residency restrictions as their neighborhoods become the dumping ground for society's pariahs. Already in Illinois, sex offenders are massing in the 60628 zip code on the Far South Side of Chicago. (114) This poor, primarily black area now houses more than one tenth of the state's paroled offenders, who often live in boarding houses that are willing to accommodate them in large numbers. (115) The ACLU thus concluded, "while 'herding former offenders into penal colonies may help get politicians re-elected, ... it is a poor use of law enforcement dollars. The unfortunate families who happen to live in the few areas where these former offenders can live aren't too thrilled about it either."' (116)
D. THE REAL ESTATE CRISIS FOR POOR SEX OFFENDERS
Low-income sex offenders face a severe housing problem when they are released from prison because residency restrictions can dramatically limit where an offender can live. Since schools, day care centers, and parks are most often built in the center or main residential areas of cities and towns, residency restrictions prevent offenders from living in the areas closest to jobs and public transit. (117) In rural areas with small, compact towns, a residency restriction can mean that an entire town is off limits, leaving only distant farmhouses as possible options where a sex offender can live. (118) For example, an Iowa sex offender was found living with his family of three in a car on an abandoned farm property because residences in the small farm towns were either off limits or too expensive. (119)
Whenever an area does become the newest dumping ground for offenders, the reaction among those living there has been to push sex offenders out. In Chicago, the local alderman for the Far South Side neighborhood that currently houses a tenth of the state's paroled sex offenders lobbied the city to pass an ordinance preventing multiple sex offenders from living in the same building, effectively ending the boarding house practice in place now. (120) Federal law already bans sex offenders from living in federal public housing, and a court in the State of Washington allowed a private low-income landlord to expel a sex offender tenant even though the offender had both disclosed his conviction from the beginning and been a compliant tenant for six years. (121) Further, since the Archdiocesan Housing Authority had the district court's ruling confirmed on appeal, the evicted tenant had to reimburse the authority for its attorney's fees. (122) The court conceded, "[W]e recognize that the Housing Authority's rule is harsh as applied to Demmings, and regret that he must suffer adverse consequences. Indeed, the rule is harsh as to all sex offenders, who increasingly struggle to find housing upon their release. The rule is, however, reasonable." (123)
These "reasonable" residency restrictions most harshly affect low-income offenders, who return to society ostracized and without resources, such as a car, after spending several years in prison. (124) As these isolated offenders live far from work opportunities and without the means to get there, scholars have concluded that they become even more marginalized and less integrated into society. (125) New Hampshire's chief parole and probation officer concluded that sex offenders readjust to society better when they have access to "employment, family support, social interaction, church attendance and meetings with recovery groups, such as Alcoholics Anonymous." (126) As a result, the residency restrictions meant to protect the community may instead lead to banished sex offenders coming to believe "their essential identity is as a sex offender," which then "stimulate[s] reoffense." (127)
Thus the residency restrictions suffer from several practical problems that call into question their basis, efficacy, and fairness. Their scientific premise is spurious and only leads to overinclusive and ineffective restrictions that will do nothing to stop the small fraction of sex offenders who will harm unknown children again. Instead, the residency restrictions limit the opportunities available to all sex offenders, many of whom are quite poor, as they attempt to reintegrate into society. Further, residency restrictions could become costly and politically unpopular if a state were forced to provide or even build banished sex offender housing. Lastly, those areas outside of the prohibited zones where sex offenders can live are shouldering the burden for the rest of society, and soon enough these communities too will act to avoid the stigma and plummeting housing values that follow sex offenders.
IV. CONSTITUTIONAL CHALLENGES TO RESIDENCY RESTRICTION LAWS
The United States Supreme Court has not yet taken a case that considers the constitutionality of residency restrictions, having recently denied certiorari on the Eighth Circuit decision Doe v. Miller. (128) The Court has held SORAs constitutional in the 2003 decision of Smith v. Doe. (129) However, the majority in Smith included dicta that sex offenders could use to distinguish residency restrictions from SORAs (130) and then successfully challenge residency restrictions as unconstitutional for violating the ex post facto prohibition in the Constitution. (131) Section IV, after summarizing Smith, will analyze residency restrictions under the five factors of the Mendoza-Martinez ex post facto test, (132) applying the facts and arguments of the principal cases to date that have challenged residency restrictions in state (133) and federal court. (134)
Besides People v. Leroy in the Illinois state courts, offenders in Arkansas, Ohio, Iowa, Georgia, and Alabama have all challenged the constitutionality of residency restrictions. The Eighth Circuit recently upheld Arkansas's residency restriction for offenders assessed as high-risk. (135) Federal district courts in Ohio (136) and Georgia (137) have also recently upheld those states' residency restrictions. There are two cases from Iowa challenging that state's residency restrictions: State v. Seering, an Iowa Supreme Court case upholding the state's residency restriction over two dissenting votes; (138) and Doe v. Miller, an Eighth Circuit opinion upholding the Iowa residency restriction by a two-to-one vote and reversing the district court judge who had ruled in favor of the plaintiff class of sex offenders. (139) The supreme courts of Alabama (140) and Georgia (141) have both upheld residency restrictions in brief opinions that quickly dismissed the constitutional arguments raised by the offenders.
A. SMITH V. DOE
The most significant Supreme Court case regarding sex offender restrictions is Smith v. Doe, which upheld Alaska's SORA provisions. (142) In Smith, both respondent sex offenders had been convicted and served their prison sentences long before Alaska passed its SORA, so they argued that the SORA was a punitive provision applied retroactively to them, thus violating the ex post facto prohibition contained in Article 1, Section 10 of the United States Constitution. (143) The Supreme Court subjected the SORA to the five factors of the ex post facto analysis that it outlined in United States v. Mendoza-Martinez, (144) and concluded that the SORA was civil and nonpunitive, and thus did not violate the ex post facto prohibition. (145) In the six-to-three opinion, (146) the Court held that Alaska had the right to require registration since the offenders posed a substantial risk of re-offending, noting that the Court had previously concluded that sex offenders are "much more likely than other type[s] of offender[s] to be arrested for a new rape or sexual assault." (147) The Court then rationalized upholding Alaska's law by stating it was "conjecture" and that there was "no evidence" that the SORA led to "substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords." (148)
B. EX POST FACTO ANALYSIS
Residency restrictions come under ex post facto scrutiny because they, like all other post-conviction and parole sex offender risk management laws, purport to be civil and not criminal in nature. (149) The ex post facto clause of Article 1, Section 10 of the Constitution prohibits a law from imposing additional punishment for a sentenced crime after the initial sentence has been handed down. (150) If a law does impose an additional punishment on the person, then the law is punitive and an impermissible ex post facto law. (151)
The Supreme Court has developed a two-step test to determine if a law is civil or punitive. (152) First, a court faced with an ex post facto challenge will examine the stated legislative intent of the statute. (153) With residency restrictions, all reviewing courts have concluded that the legislative intent was civil, not punitive, citing the legislative record stating that the restrictions are intended to protect society and children from sex offenders, rather than to punish sex offenders. (154)
A court will then progress to the second step of examining whether, despite the law's stated civil intent, the law's effects are nonetheless so punitive that they negate its stated intent. (155) The Supreme Court, in United States v. Mendoza-Martinez, (156) created a list of seven "guideposts" for a court when considering this question, five of which the Smith court concluded were relevant to an analysis of sex offender risk management laws: (1) Is the restriction historically regarded as a punishment? (2) Does the restriction impose an affirmative disability or restraint? (3) Does the restriction promote the traditional aims of punishment (i.e., retribution and deterrence)? (4) Does the restriction have a rational connection to a nonpunitive purpose? (5) Is the restriction excessive with respect to its purpose? (157) The Supreme Court has not stated how to weigh these five factors (158) or whether a law is categorically unconstitutional after failing a certain number of the factors, leaving lower courts able to weigh and discount factors as they see fit. (159)
1. Is the Penalty Historically Considered a Punishment? (160)
The first Mendoza-Martinez factor considers whether or not the penalty at issue has been historically considered a punishment. (161) The historical punishment similar to residency restrictions is banishment, which American colonists used to eject those who would not comply with a community's norms or rules. (162) Residency conditions placed on sex offenders and other paroled criminals that have been found to constitute banishment have been ruled unconstitutional. (163)
Courts have resorted to several arguments to avoid answering the question of whether residency restrictions are actually banishment. The Leroy court noted that the offender could always find somewhere else to live. (164) Several courts have concluded the restrictions did not constitute banishment as in colonial days, since the offender could enter the restricted zone to visit or conduct business, although he could never again stay the night. (165) Other courts avoided the banishment issue procedurally by saying that the sex offender did not allege sufficient facts at trial to show that he was rendered homeless. (166) The Alabama Supreme Court further concluded that there was no evidence that anyone had ever been banished from one's home as a result of the state's residency restriction. (167)
Instead, quite the opposite is true: the only way residency restrictions would work, in the eyes of the public and legislators, is if the law did root out those sex offenders living near schools, parks, and child care facilities and prevent others from moving into the restricted zones.
Observers and dissenting judges who have concluded that residency restrictions constitute banishment offer ample support for their contention. Miller provided the strongest empirical proof of actual banishment caused by the restrictions, as the plaintiff sex offenders produced studies showing that several Iowa counties, (168) cities, (169) and small towns were essentially inaccessible. (170) The dissenting Eighth Circuit judge in Miller thus concluded that residency restrictions were tantamount to banishment: "The difficulty in finding proper housing prevents offenders from living in many Iowa communities. This effectively results in banishment from virtually all of Iowa's cities and towns." (171) The dissenting judge in Leroy considered Illinois's residency restriction a "substantial" limitation on where Leroy could live in his hometown of East St. Louis, concluding that "to indefinitely expel a man from his family home, and separate him from family members with whom he has lived his entire life, seems decidedly similar to a method of punishment employed in colonial times." (172) The two dissenting judges on the Iowa Supreme Court in Seering also found that Iowa's residency restriction law constituted banishment for its detrimental social effect on the released sex offender, as it "imposes an onerous and intrusive obligation on a convicted sex offender, results in community ostracism, and marks the offender as a person who should be shunned by society." (173)
Lastly, the language of the Smith decision affirming the SORAs should not extend to upholding residency restrictions. In Smith, the Court decided the SORAs did not constitute banishment because the practice in colonial times involved "face to face shaming" and expulsion, whereas the SORAs resulted in social condemnation through correct information. (174) The Court then approved of the SORAs partly because the measures placed no limit on where a sex offender could live. (175) As Judge Melloy noted in his dissent in Miller, the Supreme Court could not use the same reasoning to uphold residency restrictions, for restrictions do involve expulsion and place limits on where an offender can live. (176)
2. Does the Restriction Impose an Affirmative Disability or Restraint? (177)
The courts that upheld residency restrictions in Leroy, Seering, and Miller conceded that the law violates the second ex post facto guidepost of imposing an affirmative disability or restraint. (178) As noted above, the law would not work unless it prevented sex offenders from living in certain places. However, the Leroy majority downplayed the importance of this guidepost, terming it insufficient to render residency restrictions punitive. (179)
Dissenting judges that have criticized residency restrictions have not brushed off this factor so quickly. First, the factor differentiates SORAs from residency restrictions, since the former do not place a limit on where sex offenders can live and thus work, but the latter's aim is exactly that limitation. This differentiation matters since it indicates the Court's reasoning in Smith for upholding the SORAs (180) does not provide a strong basis for also upholding residency restrictions. Indeed, the SORA in Smith passed this second factor as well as the previous one examining banishment. On the other hand, the federal district court in Miller, which held Iowa's residency restrictions unconstitutional, found that the residency restriction "impose[d] exactly the affirmative restraint that the Supreme Court [in Smith] found lacking in Alaska's sex offender registration schemes." (181) The dissenter in Miller's Eighth Circuit decision agreed, as he was concerned that residency restrictions went "far beyond" mere registration, becoming the type of law that Smith implied would be illegal. (182) Thus, residency restrictions clearly impose an affirmative restraint, although what weight this factor should carry in the overall consideration of ex post facto analysis remains unclear.
3. Does the Restriction Promote the Traditional Aims of Punishment? (183)
If residency restrictions are civil, then they should not promote the traditional aims of punishment--retribution and deterrence. (184) Courts have offered two reasons why sex offender management laws in general do not promote retribution and deterrence. First, in Smith, the United States Supreme Court concluded that Alaska's SORA was not retributive since the law was reasonably related to sex offenders having unusually high rates of recidivism, although the Court cited to no particular data when making this assertion. (185) Rather, the statistical evidence compiled by private and public sources and summarized in Section III.A show that sex offenders are in fact far less likely to re-offend than other felons and cast doubt on Smith's assertions to the contrary. (186) Second, the Leroy court accepted that Illinois's residency restrictions might be deterrent, but found the law still acceptable since many government initiatives deter without being considered punishments, and residency restrictions do not "significantly" promote deterrence. (187)
Judge Kuehn, dissenting in Leroy, considered Illinois's residency restrictions to be deterrent and highly retributive. (188) Judge Kuehn noted the ironic consolation offered by the majority that Leroy could visit his mother at her home, every day if he wished, so long as he did not sleep there at night. (189) As a result of these permissible visits, Leroy could be at his mother's home during the day--when school was in session and he allegedly posed a risk to children--but could not spend the night at the house when the school children would have all returned to their homes. Judge Kuehn concluded this result could only be considered retributive:
Absent a tendency to promote retribution, what legitimate purpose would legislators have in removing Patrick Leroy from his home, given the fact that he has lived there for 10 years without re-offending, despite his close proximity to the hundreds upon hundreds of children who have matriculated to Miles Davis Elementary School during the same tame span? (190)
Judge Kuehn further criticized the uniform application of these residency restrictions, which fail to consider sex offenders' prior offenses or case histories, leading him to conclude that the law was only meant to punish the offender and not protect the community: "Since this Act treats all offenders alike, without consideration of whether a particular offender is likely to reoffend, its retroactive residency restriction promotes and furthers retribution, a traditional aim of punishment." (191)
4. Does the Restriction Have a Rational Connection to a Nonpunitive Purpose? (192)
Residency restrictions have a rational connection to a nonpunitive purpose, as they are designed to keep children safe from sexual assault by known offenders. (193) Despite the statistics in Section III.A that show the far lower recidivism rate of child sex offenders compared to other released felons, (194) this nonpunitive purpose still has merit. The question, again, is how much weight should be accorded to this factor as compared to the other four factors, a matter on which the Supreme Court has given no guidance. (195) The Eighth Circuit in Miller announced that this guidepost was the "most significant factor" and that it trumped the previous factors which the residency restriction had violated, but cited no authority for this conclusion. (196) Hopefully, a future Supreme Court case will decide the relative weight of these ex post facto factors or more strongly insist on equal consideration of all the factors to halt this judicial fiddling.
5. Is the Restriction Excessive with Respect to its Purpose? (197)
The fifth factor turns on the empirical issue of how often sex offenders re-offend, and hence the legitimacy of laws restricting the areas in which they can live. The Smith Court concluded that sex offenders had a high rate of recidivism, specifically noting a report issued by the DOJ showing that sex offenders could do nothing for twenty years and then harm children again. (198) The Court cited to the report to justify a registration system to keep track of dormant but still potentially dangerous offenders. (199) In Miller, the Eighth Circuit endorsed the testimony of a state expert who testified that there were "very high rates of re-offense" by sex offenders who target children, and rejected the testimony of the plaintiffs' expert of the who testified that sex offenders had an average recidivism rate of 20-25%. (200) Section III.A detailed the statistics produced by the DOJ and academics which refute these courts' beliefs in sex offenders' abnormally high recidivism rates. (201) Nevertheless, courts have deferred to legislative judgment, noting that it is not the job of the courts to determine if sex offender management laws are drafted in the best possible way, so long as the laws are a reasonable way of achieving the ends of preventing sex offender recidivism. (202)
Judges critical of sex offender management laws have expressed great concern with the overinclusivity of these restrictions. Justice Souter, concurring only in the judgment in Smith, questioned whether "the fact that the [SORA] uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on." (203) Justice Ginsburg, dissenting in Smith, criticized the overinclusivity of Alaska's SORA law as "[excessive] in relation to its nonpunitive purpose." She pointed out the inconsistency of the alleged purpose of the Act--to prevent recidivism--with one of the respondents' situation, as the Alaska courts had twice noted his successful rehabilitation and had even granted him custody of a child of the same age and gender as his previous victim. (204) Justice Ginsburg noted this incongruity in warning about the potentially punitive effect of overinclusive sex offender registration laws. (205) Put another way by one scholar:
By allowing these individuals to return to the community following their punishment, whether or not they are subject to probation or parole, [the state] has tacitly agreed they are safe enough.
Infringement on their right to establish a home and maintain familial relationships results in significant restrictions on their ability to reintegrate into society and shocks one's sense of fair play. (206)
Since residency restrictions apply for life, they evince a belief that sex offenders will never be rehabilitated, leading the dissenting judge in Seering to conclude that it "exceeds the non-punitive purpose of the statute." (207)
C. CONCLUSIONS ON RESIDENCY RESTRICTIONS
For the reasons stated above, serious questions remain regarding the efficacy, basis, and constitutionality of residency restriction laws for convicted sex offenders. Constitutionally, the residency restrictions violate as many as four of the five applicable guideposts in the ex post facto analysis, and as a scholar reiterated after analyzing the Iowa residency restrictions, "there is no place in our Constitution for such an exception to the prohibition of ex post facto laws." (208) Courts have thus far upheld residency restrictions by downplaying the guideposts which the restrictions clearly violate and emphasizing their rational relation to a nonpunitive purpose, but a law's constitutionality should not depend on judicial sleight of hand. Further, the reasoning in the United States Supreme Court's Smith decision which upheld the SORAs' constitutionality does not convincingly extend to upholding residency restrictions, as these latter measures constitute banishment and impose real limitations on where sex offenders can live and, by extension, work, rather than simply providing information to the public as the former laws do. (209)
Examining the law from scientific, social, and political viewpoints, residency restrictions are no less troubling. The rationale of needing enhanced policing measures because sex offenders have a higher rate of recidivism than other felons is specious; in the first three years after release, only 3% of sex offenders will harm children again whereas nearly 70% of other violent criminals will be rearrested. (210) While one can argue quite persuasively that any further sexual offenses against children are unacceptable, the claims of sex offenders' higher recidivism rates are undermined by the overwhelming amount of research conducted on the topic that indicates otherwise. Second, residency restrictions may not deter those rare offenders who do wish to harm children whom they don't know, as even a one mile restriction would not have stopped those few offenders in Minnesota who traveled several miles to parks to harm unknown children. (211) Lastly, the costs on both society and on offenders are enormous. Offenders are overwhelmingly poor and lack the resources after prison to become productive members of society, especially when they are forced to live far from jobs and urban areas as social outcasts.
In the short term, these laws will likely continue to be upheld, especially by state court judges facing re-election pressures. (212) That said, grave constitutional questions exist with uniformly-applied residency restrictions, and dissenting judges are increasingly voicing cogent concerns about these restrictions. A well-researched case, documenting on a large scale that the residency restrictions prevented or essentially prevented sex offenders from finding available housing, would force a court to either strike down the residency restriction or clearly contradict the Court's reasoning in Smith v. Doe for upholding SORAs.
V. BEST PRACTICE METHODS FOR MANAGING SEX OFFENDER RISK IN THE COMMUNITY
Recognizing that residency restrictions are an inappropriate answer for sex offender risk management, policymakers concerned with protecting their community must consider new and different strategies. As befits our federalist system, states are trying many different methods to prevent sex offender recidivism, reforming not only the post-prison restrictions on sex offenders, but also the type of courts that handle these cases and the sentencing structure for sex offenders. This final section will consider four methods that aim to manage sex offenders: (1) use of risk assessment criteria to match post-prison restrictions to prior acts and future risk, (2) indeterminate sentencing, (3) civil commitments, and (4) sex offender reentry courts. Section V examines how each of these methods works in practice before weighing their benefits and concerns. Section VI proposes a comprehensive risk management system using a mix of methods that best focuses a state's finite resources on those sex offenders who are identified to pose the greatest risk, while allowing the many low-risk offenders who are highly unlikely to re-offend to reintegrate into society with only minimal restrictions placed on them.
A. BETTER-TAILORED RESTRICTIONS THROUGH RISK ASSESSMENT CRITERIA
States should implement well-founded risk assessment criteria to categorize sex offenders based on future risk and prior bad acts, and then tailor restrictive measures accordingly. As discussed in Section III.A, studies show that sex offenders do not re-offend at a higher rate than other criminals; in fact, quite the opposite is true, as even the longest twenty-year study shows that fewer than half of sex offenders will re-offend. (213) Legislators would thus better protect the community by creating assessment criteria to identify the sex offenders that pose the greatest risk of re-offending. Prosecutors could then reasonably seek, and judges could reasonably impose, longer prison sentences and more controlling post-prison restrictions on those high-risk offenders.
Several states now use criteria for assessing the risk of sex offender recidivism. Nebraska's assessment criteria, known as an instrument, determines both the registration and level of custody requirements placed on a sex offender upon release from prison, (214) although it could easily be modified to include determinations of residency restriction level or any other risk management measure. (215) State authorities created the instrument in consultation with Mario Scalora, a professor of law and psychology at the University of Nebraska, who tracked 1,300 sex offenders to determine which factors most closely related to recidivism when the offender was released into the community. (216)
Nebraska's instrument focuses on the offender's past acts and his psychiatric state upon release. (217) The offender is then assessed to be at a risk level of either one (low), two (medium), or three (high). (218) The instrument weighs the following factors in determining the offender's risk level:
- Whether the conduct of the sex offender was characterized by repetitive and compulsive behavior;
- Whether the sex offender committed the sexual offense against a child;
- Whether the sexual offense involved the use of a weapon, violence, or infliction of serious bodily harm;
- The number, date, and nature of prior offenses;
- Whether psychological or psychiatric profiles indicate a risk of recidivism;
- The sex offender's response to treatment;
- Any recent threats by the sex offender against a person, or expressions of intent to commit additional crimes; and
- Behavior of the sex offender while confined. (219)
The presence of either of two additional factors automatically result in an offender being assessed a level one (low) ranking: proof of advanced age or debilitating illness. (220) On the other hand, the presence of any one of four other indicators results in an automatic level three (high) determination of the sex offender's risk: "(1) Torture or mutilation of the victim or the infliction of death, (2) abduction and forcible transportation of the victim to another location, (3) threats to reoffend sexually or violently, and (4) recent clinical assessment of dangerousness." (221)
The assessor then considers which conditions on release would minimize the sex offender's risk of recidivism: probation, parole, counseling, therapy, or treatment. (222) For those offenders released into the public, the assessment level affects who in the public is alerted to the offender's status and presence in the community. (223) If an offender is determined to be level one, only law enforcement officials are notified of his location. (224) If level two, then nearby schools, daycare centers, and religious and youth organizations are also notified of the offender's identity. (225) If level three, all members of the public who might encounter the individual are notified. (226)
Risk assessment criteria have several advantages. First, assessment criteria can ensure a better allocation of state resources. The state can imprison or harshly restrict the high risk offenders, while enabling low and moderate risk sex offenders to live in the community with appropriate restrictions and undergo mandatory outpatient treatment. The latter option is significantly cheaper than incarceration. (227)
Second, risk assessment criteria allow courts to impose future restrictions in proportion to an offender's prior acts. Judges (228) and scholars (229) critical of the uniformly-applied residency restrictions have urged this type of nuanced, individually tailored approach. In Leroy, Judge Kuehn criticized the disconnect between risk and punishment caused by uniformly-applied residency restrictions:
[A] man branded a child sex offender for having had consensual sex with a 17-year-old girl could safely reside in close proximity to toddlers gathered at a daycare center but present a problem living across the street from a high school. On the other hand, a pedophile grandfather, branded a child sex offender for fondling his young grandchildren and their friends, presents a potential problem living across the street from a daycare center but could safely reside in close proximity to a high school. [Instead,] this Act treats all offenders alike, without consideration of whether a particular offender is likely to reoffend.... (230)
Judge Kuehn noted at the beginning of his dissent that the record did not even detail exactly what crime Leroy had committed as an eighteen-year old, and "[w]ithout a better understanding of the nature of his offense, particularly his choice of victim, we cannot assess Leroy's likelihood for recidivism." (231) Information now posted on Leroy's Illinois Sex Offender Database entry indicates he was convicted of a criminal sexual assault in which the victim was over eighteen (when he himself was only eighteen), which further raises questions of why Leroy should be banished from living near an elementary school. (232)
Dissenting in Miller, Judge Melloy similarly concluded that the uniform application of residency restrictions made no sense without a determination of ongoing individual risk. (233) One of the plaintiffs, John Doe II, was convicted of having consensual sex with a fifteen-year-old when he was twenty years old, a crime that would not seem to indicate he was a threat to toddlers in day care centers. (234) Another plaintiff, John Doe VII, was convicted of statutory rape in Kansas, an act not even criminalized in Iowa, but he nonetheless had to register and live outside the two thousand foot prohibited zone. (235)
Some courts have expressly rejected the notion that a sex offender's prior acts should guide the severity of his punishment, believing that this would result in offenders merely receiving lighter sentences. (236) But that would not necessarily be the case. In Seering, Iowa officials enforced a two thousand foot residency restriction from schools and day care centers against the convicted offender while still allowing him to live with the victim of his "lascivious conduct": his teenaged daughter. (237) If the Iowa courts had employed a risk assessment criteria and tailored the sentence accordingly, it is likely that they would have imposed restrictions on Seering that were designed to protect his teenaged daughter and other teenaged females, rather than imposing broad and seemingly unrelated restrictions on Seering's proximity to day care centers.
Some of the system's critics focus on how the risk assessment instrument is devised. (238) If the criteria too heavily weigh "static risk factors" that never change, like prior offenses and deviant sexual preferences, inmates could permanently have no chance of lessening heavy restrictions despite successfully demonstrating progress or completing rehabilitation. (239) Instead, critics believe the criteria must also consider "dynamic risk factors," like "sexual deviancy and peer group associations, difficulties with intimacy, the presence of deviant sexual fantasies, and cognitive distortions regarding sexual offenses," that could be positively affected by rehabilitation. (240) Kondo is also concerned that experts have proven no more accurate on average than laymen at predicting exactly which offenders will commit future sex crimes. (241) Other critics contend that problems with underreporting of all sex crimes lead to an underestimation of offenders' dangerousness. (242)
Another concern is manipulation of the criteria to skew the results. California, for example, has a multi-tiered system of risk evaluation, yet assesses 82% of sex offenders as high risk, (243) raising suspicions that the tiered system has become a vehicle to hand out harsher sentences to most offenders. Thus, procedural safeguards would need to be imposed, including a periodic review of the assessments to ensure a reasonable distribution of offenders across the risk tiers. Indeed, the potential for prosecutorial abuse is a recurring problem with these proposed methods, (244) and periodic independent monitoring will be needed for all.
The use of risk assessment criteria to determine appropriate sentences for convicted sex offenders, while not foolproof, would nonetheless be a considerable improvement over the current method of meting out uniform punishment to all. That said, assessment criteria would be a large step forward in managing the risk of sex offenders. Such a system would alleviate ex post facto concerns and mollify the critics who contend that with the current residency restriction laws, "sex offenders are subject to the residency restriction regardless of whether they pose a danger to the population." (245) In addition, the use of risk assessment criteria and tailored restrictions would allow states to better allocate their finite resources to incarcerate and control high-risk offenders while letting the lowest risk offenders return to society with appropriate minimal supervision. Narrowly tailored residency restrictions, based on the circumstances of each individual sex offender, would also be more likely to withstand judicial scrutiny than those that are applied to all. For example, the Eighth Circuit correctly concluded that the Arkansas residency restrictions predicated on a finding of high risk on the assessment criteria seems more likely to withstand judicial scrutiny than restrictions that indiscriminately apply to all sex offenders:
In considering whether the Arkansas residency restriction is nonetheless so punitive in effect as to negate the legislature's intent to create a civil, non-punitive regulatory scheme, we believe that Arkansas law is on even stronger constitutional footing than the Iowa statute. Unlike the Iowa law, the Arkansas statutory plan calls for a particularized risk assessment of sex offenders, which increases the likelihood that the residency restriction is not excessive in relation to the rational purpose of minimizing the risk of sex crimes against minors. This fine-tuning of the restriction addresses the principal concern of the dissenting judges who believed the Iowa statute violated the Ex Post Facto Clause. (246)
B. INDETERMINATE SENTENCING
Several states, including Washington and Colorado, have enacted indeterminate, also known as open-ended, sentencing as a way to impose longer prison sentences and more restrictive controls on high-risk sex offenders who have served their full sentences and are to be released back into the community. (247) Washington lawmakers passed the Sex Offender Management Act (SOMA) to correct the state's lack of supervision for these high-risk offenders. (248) Under SOMA, convicted offenders are given a minimum and maximum sentence length. (249) No less than ninety days before the minimum sentence is set to end, there is a hearing before the Indeterminate Sentencing Review Board (ISRB), which uses risk assessment criteria to predict the offender's probability of recidivism. (250) The presumption is toward releasing the offender, unless the state can show by a preponderance of the evidence that the offender is more likely than not to commit another sex offense after being released. (251) If the ISRB finds the offender to be more likely than not to re-offend, then the prisoner is sentenced to another minimum term of no longer than two years. (252) This review process repeats until the sex offender either wins release at the board's hearing or completes the maximum term of his sentence. (253) Upon release, the offender is placed on conditional parole, and the state can return the offender to prison if he does not comply with the conditions of parole. (254)
SOMA's advocates point to several advantages. First, indeterminate sentencing is an openly criminal measure and does not masquerade as a civil prevention, (255) the legislative sleight of hand under which residency restrictions are classified. (256) Second, the State has to make a "continuing [showing] of dangerousness [for a] justification for continued incarceration." (257) Therefore, the State must implement a risk management assessment criteria (258) and allow those offenders of no or low risk of recidivism to complete only their minimum sentence, concentrating state resources on preventing further harm by high-risk offenders. Next, the structure could provide incentive to incarcerated offenders to make a concerted effort to reform to improve their chances of gaining release at their subsequent hearing and then receiving fewer restrictions upon their parole. Conditional sentencing also enables state officials to include more restrictions on offenders upon release, enabling more control by officials over high-risk offenders. (259)
Lastly, in Washington, this method benefits the offenders upon release from prison in two ways. First, the state is required to place the offender in the least restrictive setting possible considering the offender's determined risk level. (260) Second, a provision preempts local land use codes when offenders are placed back in the community. (261) This latter provision is vital, as Washington already had to scale back its civil commitment program due to the high cost of lawsuits by municipalities protesting offender outpatient placement in their community. (262)
States' implementation of SOMA has revealed some problems. First, in Washington, the offenders do not receive any treatment while in prison. (263) Defenders of the system support this decision as cost effective, (264) but it could lead to an endless cycle of lost hearings by imprisoned offenders who cannot improve without the treatment that the system does not provide. As a result, the indeterminate system then becomes a sentence to maximum term in almost every case. Some legal scholars also wonder if this is just the sentencing trend swinging back from strict guideline sentencing toward ones of indeterminate length. (265) Legislators scrapped indeterminate sentencing during the "Law and Order" movement in the 1970s, as critics felt lenient judges used indeterminate sentences to let criminals off too lightly. (266) However, the solution reached at the time, "tough" determinate sentences, caused today's prison overcrowding problems, which ironically now result in offenders being released at the earliest possible moment to relieve that overcrowding. (267) One wonders, then, if indeterminate sentencing will do any better at fixing this structural flaw in our penal system.
The results in Colorado of indeterminate sentencing have shown several other problems with the system's implementation. First, though the state has set up a system of supervised release and indeterminate sentences, the release portion has virtually never been used. This has happened partly because, due to cuts to the program's counseling budget, imprisoned offenders are not receiving the counseling that the law requires them to complete before being eligible for supervised release. (268) As a result (although conceding that the program was only implemented in late 1998), 793 offenders have been sentenced under the program, but only 2 of 182 eligible prisoners have been granted parole and sent to community corrections. (269) An additional 5 out of 14 who met the criteria for release to community corrections are in a transitional community. (270) Thus, as seen before with assessment criteria, reviewing officials are judging nearly every offender as high risk when statistics strongly refute this belief. (271) The result is two-fold: a system on paper that has not really been tested by the realities of managing actual offenders; and a continued refusal by parole boards to believe that any offenders are actually low-risk and can be released back into the community.
In conclusion, the systematic review process of imprisoned sex offenders in indeterminate sentencing should better differentiate those high-risk offenders who require long-term incarceration from lower risk offenders who need only serve the minimum time. Furthermore, SOMA's use of risk assessment criteria and tailored restrictions will result in more effective control over the sex offenders who are released into the community.
C. CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS
Often referred to as sexually violent predator (SVP) laws or sex offender civil commitment laws (SOCCLs), (272) civil commitment regimes are already in place in many states, (273) including Illinois, (274) and have been ruled constitutional on several occasions. (275)
Procedurally, a civil commitment regime is somewhat akin to an indeterminate sentencing hearing process. After completing his prison sentence, a sex offender is tested for mental illness. (276) If the offender is diagnosed to be suffering from a treatable mental illness, (277) then the offender can be sent to civil but involuntary treatment. (278) Once committed, the offender undergoes mandatory therapy, which may require the offender to admit to his past deviant acts and discuss his motivations for committing them. (279) If the offender is found to have been treated for his mental disability, then he is immediately released. (280) The committed offender must have at least an annual review of his status, and is able to petition for a review at any time. (281) However, the defendant does not have an absolute fight to be present when the review board decides on his status since the commitment is civil. (282)
Supporters see civil commitments as a valuable component of a preventive justice system, complementing the indeterminate sentencing regime discussed in Section V.B. (283) Critics of civil commitments contend the system suffers from several key flaws. First, prosecutors have taken advantage of the regime's potential to hold offenders indefinitely and sought commitment for offenders deemed high risk, regardless of whether the offender actually suffers from the requisite mental illness. (284) "SOCCLs have a sustained popularity among the public and policy makers. This support exists largely because SOCCLs are not really about treatment. Instead, they are about the incapacitation of society's most heinous offenders. Thus, it matters little whether rehabilitation is achieved and proper procedures are followed." (285) Critics note that legislators have different tools available to handle high-risk offenders without mental disabilities, such as increasing sentence lengths or eliminating parole, and civil commitments should not be used for controlling those offenders. (286)
Courts have compounded prosecutors' abuse of the system by not carefully scrutinizing commitment requests. (287) Scholars found that in the sixteen states with SVP laws, prosecutors win between 75% and nearly 100% of their cases to civilly commit offenders. (288) As a result, commitments have become de facto indeterminate sentencing, but without the maximum sentence ceiling provided by SOMA. (289) As a result of the prosecutorial abuse and the lack of judicial scrutiny, critics have concluded that civil commitments are not a better reform, but just the favorite program of this generation of prosecutors to lock up problematic sexual offenders, (290) leading to a class of permanently incarcerated offenders who have completed their sentences but cannot gain release. (291)
Cost is a second significant concern. Studies have shown that to implement SVP laws costs $50,000 to $130,000 per year per offender, with an average cost of about $100,000. (292) This high cost would be a hard sell politically, and could lead to legislators slashing funding for the treatment component but keeping the involuntary commitment system in place. (293) Civil commitments without adequate funding for treatment would result in SVP offenders being permanently institutionalized with little chance of rehabilitation and release.
Like many available options, civil commitments are appropriate for some offenders, but certainly not all. For those offenders with treatable mental illnesses who do pose a recidivism risk, the state would be wise to use the civil commitment regime to thoroughly treat the offender before considering release. However, the problem with civil commitments is the temptation for state abuse. If courts become lax in their scrutiny of increasing claims by the state of mental illness among offenders about to be released from prison, while legislators cut funding for therapy available to committed offenders, the result could easily be that civil commitments become a shadow penal system that holds a significant percentage of offenders indefinitely. Indeed, even proponents admit the laws have already been misused, as "SVP laws thus commit some sex offenders who would not reoffend if released or placed in an outpatient program under aggressive supervision." (294) These nagging problems need to be addressed for civil commitments to be a legitimate state tool used to manage a discrete subset of sex offenders.
D. SEX OFFENDER REENTRY COURTS
Sex offender reentry courts follow a recent trend of specialized courts, such as those for drug treatment, domestic violence, and mental health. (295) Colorado has implemented sex offender reentry courts to much acclaim. (296)
The reentry court is at the center of a comprehensive approach to managing sex offenders, handling the offenders' case from the bail hearing through to conditional release. (297) As a specialized court, judges and counsel appearing in this court would receive training on effective sex offender risk management practices. (298) The judge plays an active role as the "reentry manager" of the "interagency team" in charge of the offender's case, supervising the treatment and holding the offender accountable for relapses or lack of effort in treatment. (299)
Polygraph testing plays a large role throughout the reentry court's processes. Bail is granted based on an initial assessment of risk level using actuarial tables and polygraph testing. (300) Those offenders determined to be low risk based on actuarial tables and the polygraph results can receive a deferred sentence for which the offender submits to rigorous treatment but is conditionally allowed to return to the community. (301) The reentry court then controls the offender's release and level of supervision. (302) Normally, a gradual release process is used, with the offender gaining privileges and shedding restrictions upon satisfying successive levels of expectations. (303) While the offender is on a deferred sentence, officials can exercise the more intrusive powers available to parole and probation officers, including warrantless searches of the offender's house and person so long as there are reasonable grounds. (304)
During treatment, the reentry court's supervision of the offender continues to rely heavily on results from mandatory polygraph testing, studying the offender's responses to specific questions about his past acts, and predilections to focus on relapse prevention components. (305) If the offender refuses to comply with further polygraph testing or demonstrates high-risk behavior, the court has a wide range of options to tighten control over the offender, which range from increasing surveillance and mandating additional treatment sessions to revoking community release and returning the offender to prison. (306)
Proponents believe this system offers the best of both worlds, as it is cheaper and more targeted than permanent incarceration for all, but still satisfies the public mandate for strong control over sex offenders. (307) Furthermore, sex offenders are incentivized to reform, as they will only gain freedom by taking the treatment seriously and complying with the polygraph testing, with the punishment that a failure to comply will result in fewer privileges and a possible return to prison. (308) The system's immediate consequences, including reincarceration, also help to overcome the sex offender's entrenched deviant behavior and fantasies. (309) Proponents also contend that using the polygraph while asking offender questions about his prior acts is the best way to solve the alleged underreporting problem with sex offenses, as the offender will be held accountable for, and know his variable sentence depends upon, his truthfulness and willingness to comply with all requests made of him. (310)
Critics are not convinced of the system's viability and legality. First, on a practical level, it would involve a massive financial effort to train judges and lawyers, coordinate interagency teams, and set up a separate court system for handling the offenders. (311) In an environment where many in the public simply want sex offenders locked up forever, devoting large amounts of money to halfway houses, counseling, and specially trained judges and probation officers for sex offender rehabilitation seems politically unrealistic.
Reliance on polygraph testing is another serious concern with the current procedure in Colorado's reentry courts. Proponents claim that polygraphs are 85% correct. (312) Illinois courts, among others, consider polygraph results too unreliable to be admitted as evidence, as the polygraph "impinges upon the integrity of our judicial system." (313) Admittedly, the Supreme Court in McKune v. Lile upheld the use of compelled polygraph testing on imprisoned sex offenders as serving a legitimate prison purpose, (314) but it remains true that courts are skeptical about the reliability and appropriate role of polygraphs in our judicial system.
This unreliability is compounded in the Colorado system by an incentive on the part of the offender to confess to sexual crimes they may not have committed. The Colorado practitioners who promote reentry courts believe that sex crimes are massively underreported, with one practitioner claiming the underreporting ratio is one arrest to every thirty actual acts of child rape or molestation, a figure she reached from the results of these compulsory polygraph tests. (315)
There are two responses to this shocking claim. First, this discrepancy is most likely exaggerated--especially when so many studies and meta-analyses have been completed about sex offender recidivism by disinterested scholars and the government, none of which have hinted at any sort of underreporting ratio approaching thirty to one. (316) Second, this claim calls into question the practitioners' motivations when testing these Colorado sex offenders. If the practitioners involved have an agenda to "find" undocumented sex offenses, one wonders if offenders realize that extravagant "confessions" in which they "tell all" mean a better chance that the prosecutor will declare the offender compliant with the testing, and thus eligible for release and lighter restrictions. This perverse incentive for an offender to lie and fabricate sex offenses never committed exemplifies the problems with basing a system on already unreliable polygraph testing.
In conclusion, reentry courts offer an interesting synthesis of several ideas. They use assessment criteria, flexible sentencing, and a more graduated approach to punishment. However, the costs of funding the parole and monitoring program could be financially burdensome and politically difficult to sustain. Further, a system heavily reliant on polygraph results, evidence found to be unreliable and inadmissible by other states, will not be readily adopted elsewhere. But those limitations should not prevent a state or court from implementing the useful practices in this model that bridge the gap between punishment and treatment
The handling of sex offenders is one of the most well-publicized criminal justice issues in our nation today, and states are trying a wide variety of strategies to manage sex offender risk of recidivism. Some strategies, like registration, appear to be here to stay, for better or for worse. Others, such as residency restrictions, have not faced Supreme Court scrutiny and very well may fail based on their retroactive, ex post facto application in a uniform manner to all offenders, regardless of demonstrated risk of recidivism and elapsed time since conviction. These flawed strategies should be modified or replaced by a scheme that borrows from the best practices of various states.
First, courts need to be more willing to take the time to tailor the restrictions and punishments imposed on sex offenders to the crimes committed, the probability of the offenders' recidivism, and their likely victims. Risk assessment criteria like Nebraska's would allow courts to factor criminal history and future risk of harm into sentencing and conditional release, ending the practice of uniformly-applied laws and instead efficiently focusing police resources on the highest risk offenders. Further, states should use the risk assessment criteria to grant longer, indeterminate sentences for the minority of sex offenders who pose a high risk of recidivism, while providing treatment for imprisoned offenders to enable those that can improve to do so. For those sex offenders continuing to suffer from serious but treatable mental disabilities, a secure civil commitment regime focused on rehabilitation would be the proper fit. Lastly, a specialized sex offender reentry court would be beneficial in ensuring continuity and expertise throughout this process, which would prevent high-risk offenders from being inadvertently released while better identifying the low-risk offenders who should serve their sentence and then be allowed to reintegrate into society with decreasing restrictions over time.
The remaining problem is how to handle the offenders like Patrick Leroy who have been living in the community for years and now are affected by retroactive laws. States could offer a deal to these offenders whereby they undergo the risk assessment criteria. For those offenders judged a low risk, as presumably most would be since they have lived without incident in the community for years or decades, the state would relax the restrictions on these offenders to registration only. For those found to be higher risk, reincarceration is legally out of the question, but the state could focus its surveillance and treatment resources on these offenders, and would be better able to catch the offenders before they commit their next sex offense.
Federalism has enabled states to implement many different strategies to handle sex offender risk management. It is now time for the best practices of risk management to be recognized and modeled across the nation, concentrating resources and policing on the few high-risk offenders while letting the many low-risk offenders return home. This strategy makes us safer and makes sense.