Monday, November 10, 2008

The Second Circuit's Pragmatic Approach to Supervised Release for Sex Offenders

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The Second Circuit's Pragmatic Approach to Supervised Release for Sex Offenders

William and Mary School of Law
William & Mary Law Review, Vol. 49, 2007

Although the advent of the Internet has created significant benefits for Americans, the Internet has facilitated additional criminal activities as well. Aside from providing a new avenue for confidence men and snake oil peddlers, the Internet has created a new spawning ground for prostitution, child exploitation, and child pornography. The interplay of the these two developments—the great benefits to society and the great benefits to criminals—has created a split among American courts over how to deal with access to the Internet for sexual offenders after their release from the correctional system. In an effort to promote rehabilitation, federal law requires a sentence of supervised release following imprisonment for certain crimes. As part of that sentence, the courts may impose various conditions on offenders, some mandatory, others discretionary. Peddlers and users of child pornography often receive discretionary conditions that restrict their access to the Internet or to computers in general.

This Note examines how the circuit courts of appeals have approached the issue of Internet restrictions for sexual offenders on supervised release and argues that the pragmatic approach utilized by the Second Circuit most effectively addresses the primary goal of supervised release—rehabilitation of the offender. The Second Circuit allows the lower courts and probationary officers to harness technological advances for effective and reasonable monitoring of sexual offenders' computer uses. This type of monitoring avoids the opposing extremes: either prohibiting computer and Internet use altogether or not placing any restrictions on the use of the Internet or computers by sexual offenders. By doing so, this Note argues that the Second Circuit most effectively advances the purpose of supervised release as pronounced by Congress.

The Constitutionality of Strict Liability in Sex Offender Registration Laws

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The Constitutionality of Strict Liability in Sex Offender Registration Laws

Southwestern Law School
Boston University Law Review, Vol. 86, 2006

People are afraid, and it is understandable. One need only hear the heartbreaking account of a child abducted and assaulted, or murdered by a convicted sex offender, to appreciate a community’s desire to protect its children from predators living among them. Sex offender registration and notification schemes, which are designed to track the offenders and to protect the community, are motivated by justifiable regulatory intentions; nonetheless, legislators may be guilty of overreaching. This article explores the constitutionality of sex offender registration laws as applied to one specific group of convicted sex offenders - the statutory rapist who has been convicted in one of thirty jurisdictions that employs a strict liability framework. Specifically, this article questions whether strict liability provides a sufficient and constitutional framework for the requirement to register as a sex offender. I draw the distinction between a narrowly constructed sex offender registration system designed to protect the public, and a system marked by a net cast so wide that it captures offenders whose predatory behavior or criminal intent was never proven. This article argues that because of the convergence of several factors, including the recent Supreme Court decisions in Connecticut Department of Public Safety v. Doe and Lawrence v. Texas, the sweeping nature of sex offender registration laws unconstitutionally impacts the strict liability offender.

How to 'Safely' Re-Introduce Sex Offenders into Our Communities

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Sex Offender Re-Entry: A Summary and Policy Recommendation on the Current State of the Law in California and How to 'Safely' Re-Introduce Sex Offenders into Our Communities

Stanford University - Criminal Justice Center January 27, 2006

This paper attempts to provide a comprehensive review of the current and pending sex offender legislation in California, examine their effectiveness or ineffectiveness and any possible loopholes, and conclude with a broad recommendation on where the state of California's law and policies surrounding the safe release and supervision of sex offenders into the community should be heading. In doing so, the paper will rely on current statistics on sex offenders in California, policy recommendations by various organizations on this topic, media profiles and case histories of recent real-life sex crimes, and actual data from the California online sex offender registry to discover the profile of the "real" sex offender in California. This paper will also examine the roll of public outcry and moral panic in the implementation of these laws and the effect this may have had on their specific provisions and eventual effectiveness in order to provide a more comprehensive review of the impetus behind such regulations and hopefully to inform future legislation of the lessons of the past.

CA - Controlling Sex Offender Reentry: Jessica's Law Measures in California

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Controlling Sex Offender Reentry: Jessica's Law Measures in California

Stanford University - Criminal Justice Center January 27, 2006

This paper examines current research on the effectiveness of electronic monitoring and residential restrictions in preventing recidivism amongst sex offenders in California, as well as the experiences of other states that have experimented with these techniques. The paper focuses on four questions:

  1. What are the trends in California sex offense data and other states with sizable sex offender populations? 
  2. What does research and other state experiences tell us about the effectiveness of electronic monitoring in preventing recidivism and absconding of sex offenders?
  3. What does research and other state experiences tell us about the effectiveness of residential restrictions in preventing recidivism of sex offenders?
  4. In light of California's sex offender population, and CDCR's current methods for supervising paroled sex offenders, what challenges would CDCR and other state agencies likely face in implementing expanded electronic monitoring and residential restrictions?

Be They Fish or Not Fish: The Fishy Registration of Nonsexual Offenders

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University of Detroit Mercy School of Law; University of Utah - S.J. Quinney College of Law
William & Mary Bill of Rights Journal, Forthcoming

The article deals with a bizarre but common phenomenon: the registration of nonsexual criminals in sex offender registries. The practice has been challenged in a number of cases, but there is much disagreement among courts - often within the same jurisdiction - on its constitutionality, and on the analysis it entails. The issue has recently picked-up steam - reaching some state Supreme Courts (Florida's and Illinois'), and appearing in the popular news media. The article offers a comprehensive analysis of the Substantive Due Process issues involved, showing why registering nonsexual criminal in sex offender registries is a violation of the federal Constitution (both on the part of the States and on the part of the federal government). It also shows that the registration of nonsexual criminals in sex offender registries is a first-rate case-study for negligent policy-making (supported by faulty data), which frequently received a stamp of approval from an often-poor judicial reasoning, itself supported by an impoverished constitutional jurisprudence.

Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders

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Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders

John Marshall Law School - Chicago
Washington University Law Review, Vol. 85, 2007

Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Nineteen states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed “internal exile.” Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America. Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society.

Sex Offender Registration and Community Notification: Past, Present, and Future

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Sex Offender Registration and Community Notification: Past, Present, and Future

Florida State University College of Law

New England Journal on Criminal and Civil Confinement, Vol. 34, No. 3, 2007

Based on a keynote address delivered in conjunction with the Journal's annual symposium, this paper examines several of the major legal and policy issues associated with sex offender registration and community notification laws. Particular attention is dedicated to the Adam Walsh Act, a federal law taking effect in July 2006 that continues Congress' effort to foster changes in state registration and notification regimes as a result of its Spending Clause authority. In addition to discussing the federalism implications of the AWA, the paper examines several of its most significant provisions, including those calling for empirical assessment of registration and community notification, twelve years after Congress first pressured states nationwide to adopt laws in accord with its will.

Constitutional Collectivism and Ex-Offender Residence Exclusion Zones

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Florida State University College of Law

FSU College of Law, Public Law Research Paper No. 231
William Mitchell Legal Studies Research Paper No. 48
Iowa Law Review, Vol. 92, p. 1, 2007

The U.S. has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that the “the peoples of the several states must sink or swim together.” The article discusses the continued need for this tenet in the face of state expulsionist tendencies and invokes in support the Court's decisions invalidating state laws barring entry of the poor and solid waste. In both instances, the Court, while acknowledging the exigencies motivating states, invalidated the laws because they betrayed the national imperative of dealing with challenges faced by all states. As the article establishes, a kindred understanding and resolve is now necessary as states seek to isolate themselves from the shared national responsibility of offender reentry.

In the Zone: Sex Offenders and the Ten Percent Solutions

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In the Zone: Sex Offenders and the Ten Percent Solutions

Thurgood Marshall School of Law 03-01-08

This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause. The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.

At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.

SSRN Electronic Library - Articles of Interest

This is just a few of the many. Click the image above to visit the site.
  1. The Constitutionality of Strict Liability in Sex Offender Registration Laws
  2. Sex Offender Registration and Community Notification: Past, Present, and Future
  3. Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws
  4. Life Before the Modern Sex Offender Statutes
  5. Abusing State Power or Controlling Risk?: Sex Offender Commitment and Sicherungsverwahrung
  6. Controlling Sex Offender Reentry: Jessica's Law Measures in California
  7. Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?
  8. In the Zone: Sex Offenders and the Ten Percent Solutions
  9. Constitutional Collectivism and Ex-Offender Residence Exclusion Zones
  10. The Predictive Power of Juvenile Sex Offending: Evidence from the Second Philadelphia Birth Cohort Study
  11. Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders
  12. Forensic Use of Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility and Accountability
  13. Sex Offenders, Unlawful Combatants, and Preventive Detention: A Short Summary
  14. Child Sexual Abuse and the State: Applying Critical Outsider Methodologies to Legislative Policymaking
  15. Reforming (Purportedly) Non-Punitive Responses to Sexual Offending
  16. Be They Fish or Not Fish: The Fishy Registration of Nonsexual Offenders
  17. Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity
  18. Social Networking and Age Verification: Many Hard Questions; No Easy Solutions
  19. The Myspace-Ag Agreement: A Model Code of Conduct for Social Networking?

Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?

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University of Michigan Law School
Columbia University - Columbia Business School; National Bureau of Economic Research (NBER)

February 1, 2008

NBER Working Paper No. 13803

In recent decades, sex offenders have been the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information on sex offenders be made public. Using detailed information on the timing and scope of changes in state law, we study how registration and notification affect the frequency of sex offenses and the incidence of offenses across victims, and check for any change in police response to reported crimes. We find evidence that registration reduces the frequency of sex offenses by providing law enforcement with information on local sex offenders. As we predict from a simple model of criminal behavior, this decrease in crime is concentrated among local victims (e.g., friends, acquaintances, neighbors), while there is little evidence of a decrease in crimes against strangers. We also find evidence that community notification deters crime, but in a way unanticipated by legislators. Our results correspond with a model in which community notification deters first-time sex offenses, but increases recidivism by registered offenders due to a change in the relative utility of legal and illegal behavior. This finding is consistent with work by criminologists suggesting that notification may increase recidivism by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive. We regard this latter finding as potentially important, given that the purpose of community notification is to reduce recidivism.

Better Dead than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes

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Hmm, it seems Louisiana is still trying to get this passed. See this related article, which is from April 16th, 2008 in which the Supreme Court once again said the death penalty for rape is unconstitutional. But, I find it shocking that it only passed with a 5-4 vote.

John Marshall Law School, Chicago
St. Johns Law Review, Vol. 78, No. 4, p. 1119, Fall 2004

Beginning with the passage of the death penalty for rapists of children in Louisiana in 1995, a series of similar statutes have been proposed and passed in state legislatures across the country. The Louisiana Supreme Court subsequently upheld the statute despite the United States Supreme Court holding in Coker v. Georgia that capital punishment was unconstitutional for rape. The supporters of the new statute have argued that Coker does not apply to the rape of children. As a result, the political forces in favor of increasing punishment of child molestors have pushed the death penalty as a solution.

The United States has not been alone in pursuing this course. Even as the global trend has been away from using capital punishment, more countries are applying it the crime of rape. This is true even in countries where the death penalty is not allowed for murder.

This article argues that the source of this movement in the United States and around the globe is a revival of Victorian notions that someone is better off dead than raped. The elevation of chastity and purity has led activists, governments, and media to increasingly believe rape is a crime worse than murder. The article cites a range of speakers and writers who have argued that rape is indeed a crime worse than death.

Unfortunately, this trend serves to set back feminism in many ways. The emphasis on virginity and the invoking of Saint Maria Goretti has undermined efforts to help people recover from rape. After all, if it is better to be dead, then suicide is a logical option for many who have been raped. Further, the policy goals of these new statutes are often self-defeating. The end result of capital rape statutes is that criminals have an increased incentive to kill their victims so there will be no witnesses to their crime.

Because of the rhetoric driving these statutes, it is important that the fight against this statues not be confined to the legislatures and courtrooms. The cultural norms underlying these efforts must be attacked and awareness must be raised. Otherwise, the attitudes of patriarchy supporting the capital rape statutes will continue to undermine the goals of feminism in America and around the world.

Banishment of Sex Offenders: Individual Liberties, National Rights and the Dormant Commerce Clause, Environmental Justice, and Alternatives

Pepperdine University - School of Law

September 11, 2008

Sex offender residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities because we fear that they may reoffend in our neighborhoods. The practical effect of banishment through residency restrictions must be understood in the context that there are few places in modern day America to which a sex offender may be banished that is isolated from the rest of society. Rather than being excluded and thrust into some undeveloped wilderness, sex offenders are banished through residency restrictions to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders. Federalism concerns arise when states or municipalities attempt to exclude hazardous waste disposal from within the state, and judicial and legislative efforts to banish sex offenders to other states may also run afoul of Dormant Commerce Clause principles, which operate to discourage states from such protectionist activities.

Disproportionate siting of sex offenders into poor neighborhoods of color is also problematic and this overconcentration of offenders may result in lowered property values, segregation, and homelessness. The federal government addressed a similar issue when studies in the late 1980's reported that hazardous waste sites were being placed near poor and primarily minority neighborhoods. In addition to the public policy approaches taken to resolve environmental justice concerns, the Fair Housing Act has been considered an important litigation tool to address this indirect racism. This Article examines what methods from the environmental justice movement might be available to deal with this "social justice" issue of sex offenders disproportionately burdening the unwary in poor minority communities.

Banishing sex offenders through residential restrictions, both legislative and private, impacts individual liberty, our national structure, and social policy considerations. Although most sex offenses are committed by relatives or acquaintances of the victims, rather than by strangers, our public policy approach has been to focus on the stranger sex offender. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of the sex offenders and the rights of our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences. Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that state and local legislators should seriously reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism. Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.

Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions

American University - Washington College of Law; American University - NIC/WCL Project on Addressing Prison Rape


The Prison Rape Elimination Act of 2003 (PREA) is the first piece of federal legislation, which expressly and exclusively addresses sexual abuse of persons in custody. Notwithstanding passage of the Act, there is clear belief, echoed by correctional leaders, that prosecutors are reluctant at best, and unwilling at worst, to prosecute cases of sexual violence in correctional settings. In order to gather information on prosecutor interest in and capacity to prosecute these cases, the National Institute of Corrections Project on Addressing Prison Rape at the Washington College of Law the (the NIC/WCL Project) collected data from state and federal prosecutors.

This article draws on that research and data to examine the perception that prosecutors are unwilling to prosecute cases of sexual violence in custody, discusses barriers to prosecution identified by prosecutors regarding investigating and prosecuting allegations of sexual abuse of persons under correctional supervision, and recommends tools to overcome those barriers.

IL - Teen Pregnancy Linked to Watching Sexy TV Shows

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Associated Press

CHICAGO - Groundbreaking research suggests that pregnancy rates are much higher among teens who watch a lot of TV with sexual dialogue and behavior than among those who have tamer viewing tastes.

"Sex and the City," anyone? That was one of the shows used in the research.

The new study is the first to link those viewing habits with teen pregnancy, said lead author Anita Chandra, a Rand Corp. behavioral scientist. Teens who watched the raciest shows were twice as likely to become pregnant over the next three years as those who watched few such programs.

Previous research by some of the same scientists had already found that watching lots of sex on TV can influence teens to have sex at earlier ages.

Shows that highlight only the positive aspects of sexual behavior without the risks can lead teens to have unprotected sex "before they're ready to make responsible and informed decisions," Chandra said.

The study was released Monday in the November issue of Pediatrics. It involved 2,003 12- to 17-year-old girls and boys nationwide questioned by telephone about their TV viewing habits in 2001. Teens were re-interviewed twice, the last time in 2004, and asked about pregnancy. Among girls, 58 became pregnant during the follow-up, and among boys, 33 said they had gotten a girl pregnant.

Participants were asked how often they watched any of more than 20 TV shows popular among teens at the time or which were found to have lots of sexual content. The programs included "Sex and the City," "That '70s Show" and "Friends."

Pregnancies were twice as common among those who said they watched such shows regularly, compared with teens who said they hardly ever saw them. There were more pregnancies among the oldest teens interviewed, but the rate of pregnancy remained consistent across all age groups among those who watched the racy programs.

Chandra said TV-watching was strongly connected with teen pregnancy even when other factors were considered, including grades, family structure and parents' education level.

But the study didn't adequately address other issues, such as self-esteem, family values and income, contends Elizabeth Schroeder, executive director of Answer, a teen sex education program based at Rutgers University.

"The media does have an impact, but we don't know the full extent of it because there are so many other factors," Schroeder said.

But Bill Albert, chief program officer at the nonprofit National Campaign to Prevent Teen Pregnancy, praised the study and said it "catches up with common sense."

"Media helps shape the social script for teenagers. Most parents know that. This is just good research to confirm that," Albert said.
- No, I don't think parents do know that.  Or they'd not let them watch these shows, listen to the music they do, play the games they do, etc.

Still, U.S. teen pregnancies were on a 15-year decline until a 3 percent rise in 2006, the latest data available. Experts think that could be just be a statistical blip.

And Albert noted that the downward trend occurred as TV shows were becoming more sexualized, confirming that "it's not the only influence."

Psychologist David Walsh, president of the National Institute on Media and the Family, cited data suggesting only about 19 percent of American teens say they can talk openly with a trusted adult about sex. With many schools not offering sex education, that leaves the media to serve as a sex educator, he said.

"For a kid who no one's talking to about sex, and then he watches sitcoms on TV where sex is presented as this is what the cool people do," the outcome is obvious, Walsh said.

He said the message to parents is to talk to their kids about sex long before children are teens. Parents also should be watching what their kids watch and helping filter messages sex-filled shows are sending, he said.

WARNING: Adult material, viewer discretion advised!

Sex and the City

That 70's Show


OH - Waterville may restrict sex offenders' neighborhoods

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Waterville Village Council will consider a proposed ordinance tonight that would restrict where registered sex offenders can live in the village.

The ordinance, if enacted, would bar sex offenders from living in large parts of Waterville within 1,000 feet of day-care centers and parks. It could not be applied retroactively to current residents.

The legislation has been on council's agenda for months, but was tabled in September after residents of neighborhoods not in the restricted areas complained that their streets would become a ghetto for sex offenders, causing property values to drop.

Council sent the issue back to the village's public safety committee for further study. This panel had previously issued a unanimous recommendation that the ordinance be adopted, but last week, after hearing complaints from residents, the public safety committee reversed course and recommended its rejection by council.

Dozens of residents who object to the proposal to turn their neighborhood into a designated-offender area packed council chambers during the committee meeting to voice their concerns.

Mayor Derek Merrin (Email), who has been pushing for adoption of the ordinance, said the measure, which would be stricter than Ohio law, is misunderstood. "People say we are allowing sex offenders to live in certain parts of the village. In fact, we are restricting them from living in parts of the village," he said.

Council member Ann Cherry has opposed the proposed ordinance from the start and said she will vote against it.

"This will do nothing to improve public safety. It can actually give people a false sense of security," she said. "For instance, it doesn't restrict access to parks."

The main residential area where sex offenders could live under the ordinance is in central Waterville and includes all or parts of Freedom Lane, Mattatuck Way, Naugatuck Way, Karis Street, Karyl Court, Cedar Lane, Hickory Lane, Liberty Drive, Cherry Lane, Maple Lane, and Michigan Avenue.

Mike Roetter, a Cedar Lane resident, said the proposed legislation is a solution in search of a problem.

"I guess I really wonder what the motivation is for all of this," he said. "If there's no problem, then why are we doing this. It just doesn't make sense to me."

There is one registered sex offender living in Waterville, according to the Lucas County Sheriff's Office.

He committed his offense many years ago and has not re-offended, according to Waterville police.

Contact Carl Ryan at: or 419-206-0356.

FL - Sex Offenders Still Call Miami Bridge Home

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MIAMI -- Despite being told to leave almost a year ago, several sex offenders are still calling the Julia Tuttle Bridge home.

In March 2007, Local 10 learned that sex offenders were living under the bridge by order of their probation officers.

In late January and early February 2008, more than a dozen sex offenders were told they had to leave, although corrections officials said they were not given a deadline.

A local ordinance in Miami-Dade County requires sex offenders to remain at least 2,500 feet from areas where children are known to congregate. State law requires a 1,000-foot buffer zone.

But sex offenders who have been released from prison said they cannot find a place that is not within the 2,500-foot mandate.

Local 10’s Kellie Butler recently spoke with Darryl Jackson, a sex offender who told her he has been living under the bridge since being released from prison on Dec. 18.

Jackson said the size of the makeshift camp under the bridge has grown in recent months. According to the Department of Corrections, 26 sex offenders are still living there.

A spokeswoman from the Florida Department of Corrections said as long as the sex offenders can show their probation officers they are trying to find another place to live, they will not be in violation.

She added that being homeless is not illegal.

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