Doe v. Miller: No Place to Live

Today a unanimous three-judge panel of the Eighth Circuit Court of Appeals upheld a law that would require people convicted of certain sex offenders to live, if at all, as complete outcasts.  Doe v. Miller, No. 04-1568 (8th Cir. Apr. 29, 2005).  Perhaps people convicted of crimes against minors should be treated as lepers.  Sermon Illustrations, Leprosy ("Almost every age has had its social outcasts, people barred from normal society whether through physical illness or national origin. One person who stepped across these barriers in India was pioneer missionary Mary Reed. Already working in India, Mary visited a leper colony and was deeply moved by the people’s plight.")

How we should treat those convicted of harming the most vulnerable is an interesting question - morally and legally.  But before I go into the law involved in Doe v. Miller, I want to illustrate that Iowa's law would indeed create a new form of leper colonies.

Iowa City, IA adopted an ordinance that prohibited persons convicted of certain crimes against minors from living within 2,000 feet of a school zone.

The problems for sex offenders are three-fold.  First, the law prevents them from living with relatives.  Many convicted criminals - and especially those convicted of sex offenses - are unable to find jobs; as a result, their only viable option is the generosity of friends and family. 

Second, Iowa City's law would mean that some people would have difficulty establishing housing anywhere.  According to the panel, "the district court found that the restricted areas in many cities encompass the majority of the available housing in the city, thus leaving only limited areas within city limits available for sex offenders to establish a residence." Slip op. at 4.  Indeed, "[i]n smaller towns, a single school or child care facility can cause all of the incorporated areas of the town to be off limits to sex offenders."  Id.

Third, when you factor in that a sex offender's registration becomes imperfect unless he immediately updates it upon every change of residence, it's also likely that some sex offenders will be convicted for forgetting to register after every short-term move.  There was a recent case where a person who had not reoffended in almost a decade was convicted of failing to (re)register as a sex offender after he had moved.  Because he did not update his registration within the required two weeks, this man - who by all acounts was rehabilitated - returned to prison.  Imagine the difficulties people who jump from friend's house to friend's house will face, as they now must ensure that they are not within 2,000 feet of a school zone and that they promptly update their registration.

Maybe you think that the law, constitutional issues aside, is just.  Perhaps the need to protect children outweighs and problems Iowa City's law might cause.  Please leave your remarks (anonymously, if you feel uncomfortable discussing this volatile topic using your name) in the comments section.

[Ed's note: In the next installment I'll discuss the legal issues raised in Doe.  My spouse is telecommuting today, and thus will get first dibs on the only computer with a working wireless card, so it might be awhile before I update the post.  Or not.  So stay tuned!]

Comments

[Maren Chaloupka]

As they say, hard cases make bad law. If I had a child, I would not want a paroled recidivist child molester living anywhere near anyplace my child would be. The agony of parents who have lost children in this manner is incomprehensible in its enormity.

Having said that, the precedent set by such a law concerns me. It seems to be a law without boundaries. It also strikes me that the more onerous the law, the more tempting it is for those regulated by the law to violate it out of frustration - - if offenders are penniless but cannot live with relatives and if the local homeless shelter is too close to a school or church, the effect may be to cause the offender to give up.

Like it or not, sex offenders more often than not will be paroled, and once paroled, they have to live somewhere. This law is well-intended but incomplete. It does not offer an alternative to the offender; and if the offender has no alternative, he is going to violate the law in some manner.

As it is written, the law is not making communities safer. It did not prevent the rape and murder of Jessica Lunsford. Its primary effect appears to be to make state senators, city councilmen, etc. feel like they are doing something - - when in fact their incomplete law may if anything place children at more risk, not less.

[Brian]

Perhaps it is my anti-ACLU disposition, but I don't give one damn if sex offenders are forced to live their lives as outcasts.

I had an argument with a classmate at law school. We were talking about a 52 year old man who just got a hrash sentence for molesting a 9 year old boy. Her argument was, "It was his first offense." I looked at her and said, "Yeah, right. A 52 year old man just up an decided one day he liked little boys. This was his first time being caught."

Most of the limousine liberals who cry the blues for the poor sex offenders don't have kids, or don't live in an area where sex offenders can usually walk out of jail and return to.

You, like everyone else, don't want that type of guy next door to you, whether you have kids or not.

[Maren Chaloupka]

That's right. I don't want that type of guy next door. I have enough friends and clients who were victimized by sexual predators to understand that that sort of attack results in unmeasurable harm to the victims.

But what is the solution? We can't lock up sex offenders forever. And they have to live somewhere. So where do they go, if every town enacts restrictions like Iowa City's?

This isn't merely an idle rhetorical question. I too am interested in finding a way to protect the public from predators who are high risks for reoffending. Knowing that we cannot incarcerate them forever and knowing that civil commitments are limited to only a small class of offenders, and knowing that paroled offenders must live somewhere, what solutions would you offer?

Again, I don't mean the question to be argumentative. The current proposals don't seem to work. Maybe there is a better way.

[Aaron]

These comments remind me of one of the biggest faults of sex offender registration laws - they shift the focus from the principal danger to the child, which remains friends of the family and members of the family. There also seems to be a sense that only the worst sex offenders are registered, or that only those whose attentions turn to children are on the list, which is also not the case.

[Mark Draughn]

How does a police officer prove where someone lives? The officer would have to follow the sex offender to document where he sleeps. And how many times does he have to sleep at a friend's house before he is considered a resident there?

Without a huge investment of time, the only way to prove residency is to either find a document, such as a driver's license, or ask the offender where he lives and see if he gives an incriminating answer.

But what kind of sex offenders put an illegal address on their driver's license or tell a cop about it? Those who don't even know they're doing something wrong.

The predators, they'll know how to establish a legal address that differs from the place where they spend their lives. They won't give the cop the answer he needs to arrest them.

This is security theater.

[Jeff]

Our list are littered with people that people that did in fact have one mistaken offense. I know someone that was with a teen that misrepresented her age. This person was not trying to be with a child nor did this person think it was a child. That person, while guilty of stupidity and deserves some sort of punishment does not need to be "diagnosed" with some repetitive mental illness that people think he cannot be cured of. We need to sift the sheep from the goats. The lesser offenders like this guy perhaps can be on a law enforcement list for law enforcement leads just in case however to ruin this person's life with the scarlet letter is just wrong.

By limiting the publicized list on the internet to the people that have demonstrated illness, repeat criminal behavior both sex and otherwise, and with drug and alchol abuse problems (demonstrating lack of control), the list becomes more useful. Our resources focused on the most likely monsters will increase the likelyhood that they get the watchful eye and scrutiny that is needed instead of having them lost in the vast numbers of low level offenders.

[Deanna]

I've thought quite a lot about this issue, and have been following this case and the complaints that are starting to crop up in other states that have enacted similar legislation.

Look. No one WANTS a sex offender living near them. However, merely casting them out of major cities (and small towns) in a state simply won't work.

As I see it, the main problem here is the lack of any kind of reasonable compromise. If you read the court documents in Doe (which are a great read), you realize that Iowa has failed to consider ANYTHING we know about sex offenders.

For example: most sex offenders who offend against children tend to stay within a particular age group. Someone who offends against small children are unlikely to offend against a teenager. We know this -- we have research and studies upon studies to support this. However, the law fails to take this into account -- a sex offender cannot live near ANY school, regardless of his likelihood to offend against those particular students (the deposition of one of the parole officers stating that he would be willing to allow one of his parolees to live near a high school but not an elementary school is interesting here).

It seems to me, while the intent behind this law is laudable, there must be some kind of flexiability. Moreover, I am going to go out on a limb and say this law probably won't have the stated effect of "protecting children". The Minnesota study examining the impacts of this kind of legislation is enlightening (Minn. decided that the law wouldn't work after the results of the study came out).

Anyway, those are my thoughts on the matter. It will be interesting to see if other states end up ruling the same way.

[Patricia]

While you are busy casting out all those people termed sex offenders, consider this:

An 18 year old that sleeps with his 17 year old girlfriend and is caught is now considered a sex offender under the law, and is subject to all the punishments proposed for the rest of his/her life (I assume this would go for the girl who has an underaged boyfriend, but the law seems to be more lenient on women).

Now, how many of YOU can HONESTLY claim that you NEVER tried anything like that in your teens? (I don't see anything in the law about both parites being underaged, they are both then sex offenders)

And if someone that fell under that category was caught, sentenced, and served time, is it STILL right to treat them as an outcast for the rest of their lives?

It is one thing to isolate the sexual predator who is intent on harming chldren and keep Jessica's of the world from being harmed and killed. But that is not how the law reads right now. Technically ANYONE who has had sex with someone else legally under age falls into the same category, and the only difference is that they have not been caught.

It's kinda like executing the innocent to get to the guilty.

Think about it.

[Bill]

I agree with Mr. Anti-ACLU. I think actually that the A.C.L.U. is overstepping itself to protect people who threw their rights away as soon as they were convicted or committing such heneous crimes. I think that the A.C.L.U is an important institution no doubt, for example in a country where racism is still a problem, we need to observe the positive things the A.C.L.U fights for. But as I said the A.C.L.U should fight for people who are like minorities, targeted without incidence. The sex offenders should have every right endowed by the constitution and its amendements, right up until the point they are convicted and proven guilty. Would you want a sex offender even living down the street from you? If sex is described as a mental addiction for these people imagine what its like for addicted individuals to drugs. A addicted drug addict not treated stays addicted, like a sex offender keeps fantasizing, but even a treated drug addict may look at drugs and feel a harsh feeling of need for it, so whats to say the sex offenders mind doesn't focus in.

[KnowPlenty]

Misunderstandings begin when we don't all use the same defintions. What is a sex offender? In many states: If you relieve yourself on the side of the road, you are guilty of lewd behaviour; If you are caught skinny dipping in your apartment complex, you are guilty of indecent exposure; If you walk around your OWN HOME in the nude and a neighbor sees you - Well, in all of these examples, you are a sex offender.

Hysteria is a funny thing - easy to start but difficult to quell. A common myth about sex offenders are that all these people commit act against children. Of all sex offenders, pedophiles are statistically a minor group. Another common myth is that of recidivism. A recent national study used by the State of New Jersey Dept. of Corrections quoted the recidivism rate of all sex offenders at 8 - 18%.

By contrast, thieves reoffend at a rate of approximately 40%. Murderers also reoffend at a much higher rate than sex offenders. Rape 'victims' recant at a rate up to 50% (meaning THEY LIED), and those are just the ones that admit they lied. Who wants to do that?

Non violent offenders RARELY reoffend, regardless of their sentence (incarceration versus probation).

Probation? It is an awful thing for a non-violent offender to endure; the person who relieved themself on the side of the road must listen to the pedophile confess to lusting after a 5 yo boy at the park 2x a week in 'therapy' - if he/she complains, they are seen as 'uncooperative' and can be sent directly to prison - even if their sentence was probation.

The 'reliever' must also confess to such sick longings - if they don't, they are branded a liar, and guess what? Sent to prison, even if sentenced to probation. It's called 'admitting your guilt'.

The entire program is akin to a shotgun approach to kill a single nuthatch. If the nuthatch is targeted, it is completely by accident.

How to solve the problem: Focus, focus, focus on the problem makers - not the entire society.

When reckless drivers, drunks (DUIs), wife-beaters, bigots and child abusers are prevented from living near the rest of us, then there will be equity.

But I'm still ok with living next door to the guy who relieved himself on the side of the road. To say this person 'should rot forever in a cell' is ridiculous - no, it's MAD!!!!

STOP THE MADNESS!!!!

By the way - it shouldn't matter - but I happen to be a woman. I don't happen to be an idiot.

[David]

During my incarceration for 8-years for exposing myself to children and possessing child pornography downloaded from AOL, I heard all I wanted from other offenders with regard to living within a certain distance of schools and such. What I heard you may want to skip, but here is one opinion that I heard...

"If I were essentially ousted from all communities and couldn't find a job or a place to live, I would just commit another offense and live the rest of my life in prison. At least I wouldn't have to worry about registering, and the state would have to pay for my entire life."

To hear that, and understand that it is the laws that may drive a person to violate the law, really makes me wonder how many other men or women offenders are thinking the same thing. My personal opinion is that lawmakers are enacting unconstitutional laws that are not applied equally to similarly situated (convicted criminals of any sort). I think that if sex offenders can't live within 1000 or 2500 feet of a school, then a thief who stole from a Wal-Mart should not be allowed to live within a certain distance of any store. That includes gas stations.

Then you may say, why keep them from going to a gas station if they stole from Wal-Mart? I say, that is the same way I would question why keep a sex offender from living within 1000 feet of a school if he was downloading child porn off of the internet?

Does the public not recognize that most sex offenses involving children occur at home, either the victim's or the perpetrator?

Maybe laws should be enacted that prohibit an offender from living in any future home if his offense occured in a home.

These distance restrictive laws do nothing to curb offending. I challenge anyone to show me proof that it has made a difference in your community. Show me numbers.

These laws will only give released offenders a reason to give up on their lives. They will feel backed into a corner, then begin to fight back in the only way they know how. They will begin the, "how do you like that" approach to causing harm. They won't have much to lose except the bridge over their heads and the dirty clothes in their shopping cart.

Lawmakers have LOST IT.

[FF]

I would like to say that I did 15 years for a crime that i commited, this was back in 1991 and i got released in 1998 and have not been in trouble with the law since, So all sex offenders are not once a sex offender always a sex offender as most ppl say.

[ZMan]

Look people, we are all for punishing violent sex offenders, pedophiles, etc, but, look at the law, replace sex offender with anything, like drug dealer, DUI offender, gang member, thief, etc, then read the law. It violates many rights of the American people. If this keeps going, eventually we'll be a communist country, will you be for that as well? The laws are wrong, and need to be changed to be fair. Banishment is not the answer and will solve nothing. These laws are all a false sense of security, and stunts for politicians to get votes, they do NOT protect anyone.

[MOLINA]

Clear...are we clear ? Restrictions are pusnishment therefore unConstitutional. This can be proven and presented for anyone now. C'mon get on board to home-run these restriction codes/laws outta here. Public officials using presenting instructing serious major fraudulent false evidence to jury is tampering with evidence and obstructing justice. Help me to help you. send donation MOLINA 927 south Bruce- # 5 Anaheim, Ca. 92804

[adam smith]

Wow. Some of the comments on here are pretty harsh toward sex offenders. If these guys are not getting life sentences in prison, or the death penalty, as 7 states still allow (http://www.deathpenaltyinfo.org/article.php?&did=2347), then they need to be housed somewhere. Telling them they can't live within 2,000 feet of these places, then telling them they can't live near other sex-offenders, then not allowing them to leave the city limits is pretty stupid. Maybe the states need to fund housing centers for various ex-cons so they have someplace to live and can become productive members of society. I'm also concerned that sex-offenders seem to be lumped together. The flasher, or the guy who takes a leak behind a store, or hooker, or john should not be lumped into the same category as the pedophile or rapist. That's just stupid. I mean it's amazing that the way the law works for guns is if you get convicted for tampering with the mail, a felony, you lose the right to ever own a gun, but if you beat up your wife and set fire to the family dog and it dies, all misdemeanors, you can still get a gun. The laws are bass ackwards.