A Stitch in Haste

Even if you believe that sex offender registry laws are constitutional...

...and even if you believe they are not only constitutional but also a good idea...

...and even if you believe that a law banning registered sex offenders from living, say, within 2,500 feet of a school or day care facility is both legal and wise...

...still, how can you possibly believe that using such restrictions to ban sex offenders from an entire city can be either moral or legal?

[Miami Beach, Florida] Mayor David Dermer wants to prevent sex offenders from living within 2,500 feet, or a half-mile, of any school, school bus stop, day care center, park or playground on the 7.5-mile-long barrier island. Currently, sex offenders must stay 1,000 feet from those areas.
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The City Commission unanimously passed the measure in a preliminary vote last week; the panel will consider it again May 18.
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But Tulane University constitutional law professor M. David Gelfand said similar attempts to keep felons or others out of certain communities have run afoul of the Constitution's dormant Commerce Clause, regulating the free movement of goods and people.

The unusual geography of Miami Beach, coupled with the wide variety and distribution of the relevant "hotspots," would actually redline the entire city; there would be nowhere that a registered sex offender could live.

Now I dislike sex offenders as much as the next non-pervert, but I simply do not not recognize the perogative of a local government to ban people from residing in their town.

With all due respect to Professor Gelfand, I don't think one needs the Dormant Commerce Clause to resolve this question. (SIDEBAR: The reason the Commerce Clause might be at issue is because whenever a lawyer hears "Within XX feet of a school," they leap to the famous case U.S. v. Lopez, 514 U.S. 549 (1995), which held the federal Gun-Free School Zones Act unconstitutional under the limits of the Commerce Clause.)

The right to live where one chooses should be deemed a fundamental right under the Fourteenth Amendment, similar to the right to travel freely within the country. That would mean that any law attempting to infringe freedom of residency would be subject to strict scrutiny (i.e., "narrowly tailored to a compelling government interest"). Such a broad residency ban as the Miami Beach redlining scheme would never survive a strict scrutiny challenge.

Prohibiting sex offenders from working near children seems reasonable, as does prohibiting them from caring for other people's children. But to erect a wall around an entire town with a giant "Keep Out" sign goes too far. Just because we want to protect our children doesn't mean we can stop protecting basic American freedoms in the process.

There are similar developments in Iowa City, Iowa. Crime & Federalism has three...good...posts on the subject. Read them all.

An update about a dubious maneuver by the mayor of Miami Beach, Florida:

The city on Wednesday all but banned child molesters from moving to Miami Beach, adopting an ordinance barring them from living within 2,500 feet of schools, school bus stops, day care centers, parks or playgrounds.
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But it is expected to keep any new offenders from moving here because the city — a long, narrow, 7.1-square-mile island — has 21 parks and six public schools, meaning almost any home falls within the restricted area.
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Fourteen states, including Florida, have buffer zones that prohibit sex offenders from living near where children congregate. Most of these set the boundary at 1,000 to 2,000 feet. The mayor of Miami Beach decided to press for a stricter ordinance after realizing that Florida law imposed only a 1,000-foot limit.

As I blogged previously on the redlining tactic:

The right to live where one chooses should be deemed a fundamental right under the Fourteenth Amendment, similar to the right to travel freely within the country. That would mean that any law attempting to infringe freedom of residency would be subject to strict scrutiny (i.e., "narrowly tailored to a compelling government interest"). Such a broad residency ban as the Miami Beach redlining scheme would never survive a strict scrutiny challenge.

Prohibiting sex offenders from working near children seems reasonable, as does prohibiting them from caring for other people's children. But to erect a wall around an entire town with a giant "Keep Out" sign goes too far. Just because we want to protect our children doesn't mean we can stop protecting basic American freedoms in the process.

It seems to me that although the concept of redlining child molesters might be facially valid, a scheme that is so expansive as to effectively exclude the entire locality is almost certainly unconstitutional as applied.

We'll have to see whether there are any lawsuits challenging the ordinance.

UPDATE: New York State --

Global positioning systems would track sex offenders around the clock, under a measure approved yesterday by Senate Republicans.

Sen. John Bonacic (R-Orange County) said it doesn't make sense that Martha Stewart -- who doesn't pose a public safety threat -- is subjected to electronic monitoring while perverts roam free near schools and daycare centers.

"They're dangerous with a high rate of recidivism," Bonacic said. "They commit assault, rapes and murder of children and mainly women."
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"This is life and it's death," said [State Senate majority leader Joseph] Bruno, referring to sexual predators as "psychos."

Sex offenders are being tracked in at least 33 states, experts said.

Some hasty stitches:

--Martha Stewart wears an electronic bracelet because she is still serving part of her sentence. For sex offenders, the monitoring lasts long after they've "done their time" and can last their whole lives.

--If sex offenders are "dangerous with a high rate of recidivism" and commit "assault, rapes and murder of children and mainly women," then why let them out of prison in the first place? After all, one of the main purposes of criminal law is to "protect society," no?

--By the same token, if sex offenders are "psychos," then why aren't they in mental hospitals rather than in the criminal justice system?

--Finally, if the threat is to "mainly women," does that mean that sex offenders are overwhelmingly heterosexual? Go figure.

A while back I blogged, twice, about cities establishing "no residency zones" where sex offenders, particularly child molesters, could not live (e.g., within 1,000 feet of a school or day care center). The example that had particularly caught my eye was Miami Beach's 2,500-foot ban that, given the municipality's narrow geography, effectively redlined the entire town.

Well, recently a federal circuit court upheld a similar ban against a "fundamental rights challenge" (i.e., if a law infringes a "fundamental right" then it is subject to heightened scrutiny and almost certainly unconstitutional). It seems obvious to me that choosing where to live is a fundamental right, but the court in Doe v. Miller disagrees (PDF - 36 pages):

The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement. In this sense, the Iowa law is comparable to the municipal residency requirements that have been held to implicate no fundamental right to intrastate travel, and less restrictive on freedom of movement than the ban on access to public parks upheld under rational basis review. By contrast, the decisions finding infringement of a fundamental right to intrastate travel have involved laws that trigger concerns not present here — interference with free ingress to and egress from certain parts of a State or treatment of new residents of a locality less favorably than existing residents.

You read that right — the government can't stop you from coming and going, but they can stop you from staying. And there's no real difference, according to this court, between choosing a home and entering a public park. Nope, nothing arbitrary or outcome-determinative in that reasoning, is there?

A guest blawger at Prawfsblawg responds with a refreshing dose of common sense:

I can think of little historical precedent for states preventing citizens from living in homes they can afford to buy, let alone rendering entire cities off limits to undesirables. And it's not far fetched to say that the right to live where one pleases (again, if one can afford to do so) is implicit in the concept of a free society, whatever that means.

"Whatever that means," indeed. One can almost see cities next using eminent domain to drive out sex offenders.

Gideon's Trumpet, guest blawging at Objective Justice, also weighs in and discusses a related case in the Iowa Supreme Court.

I still wonder whether it is relevant — or fair — to distinguish between "reasonable" protection zones, especially around schools and day care centers, and more burdensome restrictions such as Miami Beach's that are, as applied, a de facto banishment from the entire city. The current blawg debate doesn't seem to be addressing that potential compromise position.

So, open thread: is there, or should there be, a fundamental right to live where one chooses, even for convicted child molesters?

POST SCRIPT: For the current jurisprudence on whether something is a "fundamental right" for constitutional law purposes, see Washington v. Glucksberg, 521 US 702 (1997) or this summary.

It was only a matter of time:

A 35-year-old Washington state man was charged with double murder on Thursday after telling police that he had decided to hunt down and kill two sex offenders listed in an online sex offender registry.

Michael Mullen told police that he decided to find and murder sex offenders in Bellingham, Washington, 90 miles (140 km) north of Seattle, after the high-profile arrest of a sex offender in Idaho in July.
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Sex offenders in most U.S. jurisdictions are required by law to register with local police when they take up residence, and such information is often provided on a Web site for community residents.

I understand and appreciate that child molesters (who, incidentally, are only a subset of "sex offenders") have an extremely high recidivism rate. And perhaps there is some vague, open-ended "right to know" the criminal past of your neighbors (I'm skeptical).

But the apparent quest to have, in an increasingly gay-accepting society, a class of "new perverts" to loath and be threatened by clearly has at least a hint of bloodlust behind it. It's obviously not "all about the children."

And as cities take the next step of banning sex offenders altogether, this heinous act might be a good time to reflect on what exactly sex offender registries are meant to accomplish.

Surely wholesale slaughter isn't on the list.

New York Governor George Pataki has ordered that convicted sex offenders not be freed even after their sentences have been served:

The order extends the state's involuntary commitment law, normally used for the mentally ill, to sexual predators. It requires offenders nearing the end of their sentences undergo an evaluation to determine if they are a public safety risk.

"The governor can't wait any longer for the Assembly leadership to pass his proposal," Pataki spokesman Kevin Quinn said. He acknowledged that "this aggressive interpretation might open us up to lawsuits."
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The New York Civil Liberties Union said it was monitoring the policy and had not decided whether to sue. Executive Director Donna Lieberman said Pataki had assumed the role of both judge and legislature with the order.

You read that right: "The governor can't wait any longer for the Assembly leadership to pass his proposal." In other words, if a governor wants a law passed, and the legislature doesn't do so, then he can simply order whatever he wants anyway? It's now the role of a legislature to veto the executive rather than vice versa?

And of course there are some not-so-subtle due process issues here. A person simply cannot be denied their liberty interest (i.e., detained, whether in a prison or a mental institution), without due process of law. Duly-enacted civil confinement laws may be constitutional, but that does not mean that those potentially confined have no rights before their confinement. The fact that they are already confined as convicted sex offenders is irrelevant.

Sex offender penalties are harsh and prison sentences lengthy. You would think that the criminal justice system would have plenty of time to evaluate the mental health generally and recidivism potential specifically of convicted sex offenders sometime before their sentences are up.

Governor Pataki's order is a flagrant abuse of executive power that usurps the basic legislative process as well as the due process process rights of those confined. It must be revoked, either by the legislature or the courts.

UPDATE: Twelve "civilly confined" sex offenders are now suing to have the law invalidated.

I've blogged several times about the increasingly manic denial of basic liberties to convicted sex offenders, including the constitutionally suspect practice by some cities of banning them outright from residing there.

And while I remain a "law and order" kind of person and acknowledge the empirical evidence that recidivism rates are much higher for sex offenders and especially child molesters than they are for other categories of criminals, I am increasingly convinced that we are approaching an unfair -- and ineffective -- mob mentality toward perpretrators of sex crimes.

And what better time to lose all sense of reason than Halloween?

In Westchester County, high-risk sex offenders on probation will be required to attend a four-hour educational program on Halloween night. In New Jersey, state officials are instructing paroled sex criminals not to answer their doors if trick-or-treaters come knocking. And in counties throughout Texas, parolees with child contact restrictions are being told to stay away from Halloween activities, even family gatherings.
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In effectively detaining sex offenders on Halloween, most officials say they are not responding to any attacks known to have occurred on past holidays but are concerned that the occasion presents a tantalizing opportunity for offenders to have unsupervised contact with children.

Wouldn't a better approach simply be to have the children supervised while they trick-or-treat? Don't parents do that anyway these days?

More:

But yesterday, civil libertarians and advocates for victims criticized the new measures as incomplete solutions and, in some cases, politically timed. Carolyn Atwell-Davis, the director of legislative affairs for the National Center for Missing and Exploited Children, applauded the efforts but pointed out that most children are victimized by people they know, not by strangers. And by focusing on one night of the year, the restrictions will have limited value, she said.

Ah yes, the Politics of the Warm Fuzzy Feeling, just in time for Election Day. And what generates a warmer, fuzzier feeling than "protecting children"?

But remember: "sex offender" includes those who target adults (i.e., rapists) and not just child molesters. And while I'm no expert, might it not be therapeutic and rehabilitative to have sex offenders experience "normal" (and safe) interaction with children via an activity such as handing out Halloween candy?

And what about the kids? Is there no negative effect from teaching them that it's okay to treat some people -- even very very bad people who do very very bad things -- as outcasts who are beyond all redemption and must be avoided forever? Is it wise to tell children that there really are monsters, and that they live right down the street, and that they are so horrible that you can't even ring their doorbell with Dad by your side?

At what point does "protection of society" and "retributive justice" morph into bloodlust?

There is a bit of a legal kerfuffle in Missouri over whether one must actually be a sex offender before one is placed on a sex offender registry:

A judge declared Missouri's child abuse registry unconstitutional Thursday, ruling that suspected offenders deserved a court-like hearing before being listed.

The registry is kept secret from the general public, but is used by child care providers and others to screen current and potential employees.

Circuit Judge Richard Callahan concluded that people's reputations and professional careers were damaged when their names were placed in the child abuse registry before a due-process hearing.
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He also said the hearings must use a tougher-to-prove criterion of "preponderance of the evidence" instead of "probable cause" — a change already made by a 2004 law.

The ruling is stayed pending an appeal.

In my opinion the judge's ruling doesn't go far enough. It seems to me that a sex offender registry should be limited to convicted sex offenders. Allowing for a separate hearing, even one that follows traditional standards of procedural due process, tiptoes dangerously close to double jeopardy.

I have no problem with the idea that a person can be acquitted of a crime but found liable in a civil lawsuit, based on differing burdens of proof. And I also have no problem with the abstract concept of sex offender registries (based mainly on the theory that sex offenders have notoriously high rates of recidivism).

But implementing a dual-hearing system, namely a criminal trial based on "beyond a reasonable doubt" and a second registry hearing based on the lower "preponderance of the evidence" standard means that an acquitted defendant can still be placed on a registry. Innocent can still mean guilty.

If the criminal justice system is going to have a "two bites at the apple" regime for sex offender registries, then at the very least the standard for the registry hearing should be elevated to "clear and convincing evidence" and not the lower "preponderance of the evidence" standard used in civil actions.

Still, at least this Missouri judge properly smacked down the unconscionable practice of informal hearings based only on probable cause. His ruling should clearly be upheld on appeal and hopefully extended with an even higher burden of proof requirement.

To review: certain localities, in an effort to protect children from convicted sex offenders, have established zones in which such offenders may not reside, and in some instances may not even enter.

At first, such zones were limited to the immediate proximity of schools and day care centers. Over time, however, cities have realized that, if you define the zone broadly enough, you can in fact render an entire town off limits.

But why stop there?

In the past month, nearly two dozen [Iowa] cities and counties, from Des Moines to the little town of Garrison, have approved or considered restrictions on where convicted sex offenders may live.

The rush came after a federal appeals court, in the first such ruling in the nation, upheld a 2002 Iowa state law that bars sex offenders from living within 2,000 feet of a school or day care center. Emboldened by the ruling, Iowa cities and towns are drawing their own buffer zones around parks, playgrounds, trails, swimming pools, libraries and school bus stops.
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Last month, Ely, a town of 1,500 without a single school or day care center, became the first Iowa city to pass tougher new rules. It banned sex offenders from living near the city park, playground and library — in effect, making nearly the entire town a sex-offender-free zone.
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Garrison, a town of just 413 people about 20 miles northeast of Cedar Rapids, made it illegal for sex offenders to live within 2,000 feet of the city's only park and playground, library and two school bus stops. Des Moines, the state's biggest city, drew a line around parks, swimming pools and recreational trails.

Think what you will of convicted sex offenders, the simple truth is they have to live somewhere, and they have a right not to be burdened with a new form of NIMBY gerrymandering that ceases to be rationally related to the legitimate government interest of protecting children.

A safety zone around schools might — might — be an acceptable restriction on the post-incarceration liberties of convicted sex offenders. But if 2,000 feet suddenly becomes 5,000 feet or 50,000 feet, and when the list of off-limits points is redefined to include pools, bus stops and recreational trails (next will likely be video arcades and movie theaters), then "reasonable precaution" devolves into "vindictive spite." Which, as anti-gay bigots are learning, is not a valid excuse to pass whatever laws you like in an attempt to keep "them" away from you (or, supposedly, from your families).

The more flagrant these red-lining abuses become, the more legal challenges, on "as applied" bases, will be filed (complete with the inevitable subsequent laments of "activist judges" overriding "the will of the people," and perhaps with state constitutional amendment proposals sent to voters as ballot initiatives, and so on).

The residents of these localities should bear in mind that are other threats to their communities besides sex offenders. Foremost among them is the threat of oppressive law — it can end up harming more children in worse ways than any molester ever could.

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Just a quick addendum — Switzerland has banned the practice of children sitting on Santa's lap. After all, Santa could be a pedophile. Like I said, there are other ways to harm children besides molesting them...

I blogged back in October against New York Governor George Pataki's executive order confining, without due process, convicted sex offenders to mental hospitals after their prison sentences have ended. Pataki described this maneuver (i.e., circumventing the Fourteenth Amendment) as "pushing the envelope." Others might call it being an "activist" politician. Still others might call it unconstitutional.

Like a judge, for instance:

Justice Jacqueline W. Silbermann of State Supreme Court in Manhattan, found that the 12 men had been denied their right to an independent hearing and an examination by court-appointed doctors to determine whether they suffered from mental illness to the degree that they needed to be involuntarily confined to an institution.

She also said there had been no finding by court-appointed doctors that they posed a substantial risk to themselves or others.

Justice Silbermann did not order the men released immediately. But she directed ... them to be examined by two court-appointed physicians as soon as possible. The offenders would be confined if both physicians found that they required involuntary hospitalization, she said; otherwise, they would be released.

People who are found, via an independent and objective process, to be dangerously mentally ill are confined. Those who aren't, aren't. Is this such a difficult concept for Governor Pataki?

Remember, these are ex-convicts who are in the state's penal custody up until the point where Pataki wants to move them to a mental hospital. How can the state claim not to have ample opportunity to determine their mental competence and risk to society while they're in prison?

Patkai's policy has no basis in the law or common sense and is mere political grandstanding. There is a clear, well-established process for confining the dangerously disturbed. And there is no reason for New York not to follow that process. (Which, of course, is not stopping Pataki from appealing the ruling.)

I've blogged previously in opposition to the practice of allowing politicians and penal system bureaucrats excessive discretion in committing sex offenders to mental institutions after their prison sentences end. A sex offender (or any other criminal for that matter) is either dangerously deranged or he isn't. If so, then he doesn't belong in prison in the first place; if not, then he doesn't belong in an insane asylum merely to "protect society" (i.e., allow a hack politician an opportunity to grandstand and pander to his unreasonably panicked constituents).

The latest debate is in Rhode Island, where the doctors running the mental institutions are pushing back against the politicians' and bureaucrats' warm-fuzzy-feeling maneuvering:

When a repeat sex offender neared parole after serving 16 years for raping a boy, Rhode Island's governor directed state officials to put the man in a different institution: the state mental hospital.

Dr. Brandon Krupp, who ran the hospital's psychiatric services, opposed the decision, saying it would not protect the public and could put other patients at risk. Other doctors backed him up, arguing the plan would be expensive and likely ineffective.

When Krupp's protest went unheeded, he quit.

"Doctors aren't jailers," Krupp said in an interview shortly after leaving last month. "Hospitals aren't prisons."

Indeed.

The article also cites a Department of Justice statistic that the three-year recidivism rate for sex offenders (I presume meaning both rapists of adults and molesters of children) is about 5%. I'm not a criminology expert, but I find that number shockingly low considering all the histrionics about "repeat offenders." And it's certainly too low to justify summarily committing all post-incarcertation offenders to mental wards.

Ex-convicts do not shed all their rights at the prison gate, especially after their sentences are up. There is a well-established legal framework for committing the mentally ill against their will. The politicians and criminology bureaucrats should respect it.

To review: the original justification for sex offender registries and "redlining" zones prohibiting convicted sex offenders from, say, living or working within 500 of a school, was the assertion (not fact, but assertion) than sex offenders have an unusually high recidivism rate (i.e., once a sexual predator, always a sexual predator).

So much for original justifications:

Just before year's end, the Tennessee Bureau of Investigation (TBI) got a new, online Meth Offender Registry up and running that will enable anyone anywhere to quickly and easily look for persons convicted of methamphetamine offenses in Tennessee.
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The TBI describes the registry as "another tool to help fight the war on meth."

People beat meth addictions (or stop dealing drugs) all the time, so the "recidivism argument" is no longer available. I'm also not aware of a widespread problem of meth dealers trying to hook innocent young schoolchildren -- it's really an adult drug.

So what is the justification for a "meth registry"?

Clearly, this home-made drug is destroying Tennessee families, contaminating our environment and creating a type of violent and erratic criminal rarely seen by law enforcement. Meth is an epidemic Tennesseans can’t afford to ignore.

So if you don't have a registry, then that means you're "ignoring" the problem?

And what crime isn't "destroying families, contaminating our environment and creating a type of violent and erratic criminal rarely seen by law enforcement"? Why not just cut to the chase and have a "felon registry"? Maybe I don't want to live next door to an embezzler any more than I want to live next door to a child molester or former meth lab operator.

A "meth registry" does absolutely nothing to help wage the "War on Meth" except add a (weak) deterrent factor (the threat of jail time won't stop you from opening a meth lab, but the fear of being on a registry will?). If that is the sole excuse for having a registry -- if registries are recast as "just another tool" in law enforcement -- then we can expect ever more expansive registries in ever more states until we indeed end up with one giant national "crime registry."

The slippery slope at its most frictionless.

Hat tip to To The People; see also Stop the Drug War, Hit & Run.

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Meanwhile, St. Paul, Minnesota, is also a contender in the Registry Race to the Bottom, albeit via another path:

St. Paul wants to be the first city in Minnesota to use satellite tracking to monitor Level 3 sex offenders long after they're released from custody.
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Losing track of one dangerous predator is enough to panic a community. But according to state records, there are three homeless sex offenders sleeping on St. Paul streets at any given time. And only one has regular contact with police. The St. Paul Police Department says two probably have moved out of the area. And officers have an arrest warrant for another predator who isn't living where he said he was. The department also is concerned about tracking offenders who might become homeless in the future.

So in order to accommodate (not stop, but accommodate) the "panic" that has resulted from "at most three but probably one and perhaps even zero" unaccounted for sex offenders dangerous predators, a major city is going to start tagging people like zoo animals. That's sure to help catalyze their rehabilitation.

This is becoming akin to the War on Terror, with people tripping over themselves to justify increasingly draconian policies that increasingly erode liberty while increasingly defying all common sense -- all for the amorphous reason that "there's so much at stake."

Indeed there is.

The Missouri Supreme Court will hear a multiple-party challenge to the state's Sex Offender Registry Act ("SORA"):

Now a mother of five in her 30s, [Jane Doe 1] was 20 when she had consensual sex with a 15-year-old boy she thought was 18. She pleaded guilty in 1992 but received a suspended imposition of sentence and thus has no criminal conviction. Another client, John Doe 1, made the list for improperly touching his 15-year-old girlfriend when he was 17.

Then there is John Doe 7. The 46-year-old resident of eastern Jackson County made the list for child abuse, one of several non-sexual offenses that require the same lifetime registration. He was accused of bruising his son by spanking with a belt. The allegation was raised two years later during a divorce dispute, and he pleaded guilty on the advice of his lawyer with the promise of probation, a suspended sentence and no criminal history. It was before Missouri passed SORA, and it could very well have altered his decision to plea.

That last point is very interesting, and one that I had not previously considered. Adding earlier offenders to a newly-crafted registry may not constitute double jeopardy or an ex post facto law, but it still may qualify as a due process violation, especially for those who pleaded guilty rather than having been convicted by a jury. If they would not have pleaded guilty knowing that it would get them on the registry, then their plea was not fully informed and is arguably tainted. Furthermore, I wonder to what extent sex offender registries are having this unintended consequence going forward (i.e., "As your lawyer, I am advising you to go to trial, Client, because if you plead guilty then you're on the registry. That's a lifetime sentence anyway, so we may as well take our chances with the jury.")

In any case, if the rationalization for registries is the assertion that sex offenders have a high recidivism rate, then would it be unreasonable to require the state to provide some evidence that a person does in fact pose a "repeat offender" risk before he or she goes on the registry? Not necessarily "beyond a reasonable doubt" or even "by a preponderance of the evidence." Perhaps an analogy to mere "probable cause" (whatever that means anymore). Just something above and beyond the conviction or guilty plea itself. Something to demonstrate not just guilt, but some demonstrable and individualized probability of a repeat offense.

Just as we don't tolerate idiocies such as "all Irish are predisposed to drinking" or "all blacks are predisposed to crime" or "all gays are promiscuous," why should we tolerate the stereotype that "once a sex offender, always a sex offender"? These John and Jane Does certainly serve as counterexamples. And they deserve not to be persecuted on top of being prosecuted.

To review: The original justification for sex offender registries was the (unsubstantiated) assertion that sex offenders have an extremely high recidivism rate and therefore posed an abnormally high risk to residents in communities where such ex-convicts live and work.

That argument is increasingly giving way to an alternative justification: brazen vigilantism. New York State, for example, is being surprisingly honest about it:

Gov. Pataki yesterday signed into law a bill that will keep thousands of sex offenders from disappearing off a state monitoring list.
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"This new legislation will ensure that all sex offenders remain on the registry, most for life, and continue to give every parent and family the right to know exactly where sex offenders live," Pataki said.

[T]he new law will require offenders who are deemed at moderate risk of committing another sex crime to register for life.

There you have it -- "moderate" risk. Not high risk, not even serious risk, but "moderate" risk.

Of course, what constitutes "moderate" is unclear. But it certainly doesn't sound like a high hurdle.

Meanwhile, this reasoning opens the door for other ex-convict registries. Don't violent criminals in general have a "moderate" risk of repeat offenses? Drunk drivers? Drug dealers? Check kiters? Tax cheats? The unemployed twenty-something who misses a student loan payment?

If the standard is a mere "moderate" risk of repeat offenses, then any and every kind of ex-convict registry is permissible. And inevitable.

The argument that "it's all about the children" should not trump the argument that "it's all about common sense."

To review: The purported justification for sex offender registries is that sex offenders, and especially child molesters, have very high, or at least relatively high, recidivism rates that make them perpetual threats to the community and especially to children.

Perhaps, but what does that have to do with weatherstripping?

Raymond Houston, 45, of Cocoa, [a convicted sex offender] who is disabled and living on a fixed income, meets all of the requirements for [Brevard County, Florida's] Weatherization Program, a federally funded energy-conservation effort.

But Brevard officials added a prerequisite that prohibits Houston and other felons from participating. Attorneys for the American Civil Liberties Union, which filed the suit in Orlando, say that policy violates federal law.

Brevard leaders, however, refused to back down.

"We only have so much money to go around, maybe $10,000 or $20,000," Brevard County Commission Chairman Ron Pritchard said. "The list of applicants far exceeds the amount of money, and I'm not about to use scarce resources on somebody who was convicted of such a heinous crime.''

First, a required disclaimer. Of course a libertarian would oppose any program that subsidize weatherstripping, which is not a public good, generates no legitimate externalities and can therefore be a strictly private market. This is the Politics of the Warm Fuzzy Feeling with "Warm" in bold italic.

Having said that, given that the government is going to subsidize weatherstripping for the poor, what does ex-convict status have to do with it, even for sex offenses? How does singling out these economically disadvantaged individuals dovetail with the recidivism argument that started the whole sex offender mania?

Or is it not about recidivism at all, but just another opportunity to degrade the New Others? Because in factional politics, there must always be Others, preferably Others who can be easily marginalized and -- if possible -- demonized (see, e.g., gays).

And by the way, I have no doubt that Brevard County has no qualm about collecting taxes from heinous Mr. Houston. Just about handing it back to him when he qualifies.

Remind me again who's being heinous?

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As for the legality, it's a simple question with a not so simple answer. This policy is "discrimination" in the strictly neutral, clinical denotation of the word. Similarly situated people are being treated dissimilarly. However, since "convicted sex offender" is not a "suspect classification" within the meaning of the Fourteenth Amendment (even gays are not afforded that luxury), such discrimination is permissible if the government can show that the discrimination is "rationally related to a legitimate government interest." Usually rational basis review means an automatic win for the government, but I wonder if this policy is so unapologetic in its animus toward a disfavored group that a court would strike it down. I of course would strike it down.

That's my ruling -- any dissents?

(Via CrimProf Blog.)

Four very different developments in the ongoing hysteria against sex offenders:

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STEP FORWARD: A New York judge has reiterated her view that Governor George Pataki broke the law by denying due process to several convicted sex offenders whom he ordered confined to mental hospitals after their sentences were up --

[Justice Jacqueline] Silbermann ordered hearings within 20 days on whether the offenders need continued confinement. She said that unless Kirby [Forensic Psychiatric Center] produces the inmates, they will be "discharged from the custody of (Kirby) and from further detention."

The judge in November found that 12 sex offenders — known as "John Does" — were held illegally after their sentences ended for crimes including sodomizing and raping children. To date, none has been released because a judge stayed the order after Pataki objected.

MY TAKE: I have no problem with confining the criminally insane — for their protection as well as for ours. But even the most dangerous or deranged convicts are still entitled to due process. These people are locked up for years, so you would think that the state can find the time to evaluate them and initiate the mandatory — and humane — process to continue their confinement where necessary. Merely blathering "It's always necessary..." is not an option.

---

STEP BACK: One of the municipalities that started it all, Miami Beach, Florida, decided that it likes its own version of redlining better than the surrounding county's law, because — of course — the city law is harsher:

"It's ironic that when we started, we thought other municipalities would say this ordinance is too strong," [Mayor David] Dermer said.

Still, Dermer said, the law is working. Since the inception of the ordinance, he said, the number of sexual predators living in the city has gone down from 33 to 23.

Note that the mayor did not say that the number of sexual offenses has gone down, only the number of sexual "predators" (is that the official, legal term?). Well, at least he's honest about his real motives.

Meanwhile, another Miami Beach hack politician is crafting a new city ordinance to cherry-pick the elements of the county law that are more harsh than the city law. Because, of course, the law can never be too harsh.

---

STEP FORWARD: Iowa prosecutors are inching back from the precipice, denouncing that state's 2002 redlining law, issuing a five-page document calling for alternative approaches. Perhaps the most damning point made by the prosecutors is that 80-90% of child molesters preyed on their own children or other relatives. Redlining is utterly useless against these predators. The letter has much, much more. You know a law is bad when even prosecutors want it changed. (Via Sentencing Law and Policy; see also Concurring Opinions.)

---

STEP BACK: Camden, New Jersey is borrowing a page from the Miami Beach playbook --

Despite warnings from critics that the law might be unconstitutional and unenforceable, City Council yesterday adopted an ordinance to limit where convicted sex offenders can live in Camden.
...
The ordinance bars convicted sex offenders from living within 2,500 feet of any public or private school, park, playground, public library or day-care center in Camden's eight square miles.
...
Just the overlapping circles around the more than 30 public schools would bar Megan's Law registrants from living anywhere in the city, [an opponent of the law] said.
...
Council President Angel Fuentes said the ordinance was worth the risk of a legal challenge.

MY TAKE: Note that last line. This is increasingly becoming the new statecraft — pass whatever law feels good and worry about legal challenges (and "activist judges") later. Whatever happened to the idea that hack politicians — who tend to be lawyers — asking their hack counsels --who are always lawyers — to review, a priori, the constitutionality of a bill before it is passed into law? Since when is passing constitutionally suspect laws "all about the children"?

One of the last potent tools available to combat expansive and oppressive government is the "vagueness doctrine," the rule that, in order to satisfy due process, a reasonable person must be able to understand what a law actually means. If "X" is illegal, then a reasonable person must be able to determine what constitutes "X." See, e.g., Coates v. Cincinnati, 402 U.S. 611 (1971) (law against "annoying" behavior on sidewalks unconstitutionally vague, among other defects).

So here's a question: can reasonable people understand what "criminal dating" means?

An appeals court on Tuesday ordered a teenage sex offender to warn the parents of anyone he dates about his conviction until he turns 18.
...
The defendant in Tuesday's case pleaded guilty in 2004 to committing a sex act against his 6-year-old half-sister when he was 14.
...
As a condition of probation, the judge in the case mandated the boy to notify the parents of anyone he dates about his conviction until he is no longer a juvenile.

Several lawyers questioned how probation officers could enforce the restriction, because by doing so, they would have to define "dating."

Count me among those "several lawyers."

Given the current sex offender mania, one also wonders what restrictions this young man faces after he turns 18. Because he'll still be an incurable monster who poses a never-ending threat to the community, right? Once a sex fiend, always a sex fiend -- isn't that the current thinking?

More thoughts at Sentencing Law and Policy.

---

Speaking of the "current thinking" --

Much of the concern over sex offenders stems from the perception that if they have committed one sex offense, they are almost certain to commit more. This is the reason given for why sex offenders (instead of, say, murderers or armed robbers) should be monitored and separated from the public once released from prison.
...
In the largest and most comprehensive study ever done of prison recidivism, the Justice Department found that sex offenders were in fact less likely to reoffend than other criminals.

Read the whole thing.

Without the recidivism argument, the complementary sex offender policies of community notification and red-lining completely implode, and the whole "war on molesters" reduces to nothing more than a particularly virulent strain of the Politics of the Warm Fuzzy Feeling. Hardly a solid foundation for such an extremist public policy.

Huh?

A judge said a 5-foot-1 man convicted of sexually assaulting a child was too small to survive in prison, and gave him 10 years of probation instead.

His crimes deserved a long sentence, District Judge Kristine Cecava said, but she worried that Richard W. Thompson, 50, would be especially imperiled by prison dangers.
...
Thompson will be electronically monitored the first four months of his probation, and he was told to never be alone with someone under age 18 or date or live with a woman whose children were under 18. Cecava also ordered Thompson to get rid of his pornography.

For once, the outrage that will inevitably follow from the "failure to protect society from a sex offender" will be well-founded.

You can spin this several ways, take your pick:

Perfectly reasonable response #1: If the convict can't survive in prison, then too bad so sad. See you in hell.

Perfectly reasonable response #2: The government has an obligation to run its prisons in such a way as to reasonably ensure the safety of the prisoners. How can a judge simply shrug it off and say, "Prison's too icky for you, you get house arrest..."?

Perfectly reasonable response #3: Slippery slope: Should the wheelchair guy from "Oz" get house arrest? Automatic house arrest for anyone over 60? What about gays? The possibilities for arbitrary and nonsensical determinations of "prison unsuitability" are, unfortunately, endless.

I have blogged relentlessly against the sex offender mania gripping the country. But that doesn't mean I don't think child molesters shouldn't serve prison sentences — lengthy prison sentences.

Maybe it's not a question of whether this convict belongs in prison but rather whether this judge belongs in a courtroom.

More thoughts at Crime & Federalism, Sentencing Law & Policy, Pam's House Blend, CrimProf Blawg.

UPDATE: Backlash.

"Of course it was horrible...violence is a very horrible thing. That's what you're learning now. Your body is learning it."
--A Clockwork Orange

In a civilized century?

Phases Two through Five of the treatment plan involve "cognitive" treatment. This treatment includes viewing videos that depict violent or other inappropriate sexual activities while a repugnant odor or other unpleasant sensation is applied to elicit a negative association.

This "treatment plan" is for "sexually violent predators" -- in this instance in California, where "SVP's" are routinely subjected to indefinite "civil confinement" (a/k/a an insane asylum) after their prison sentences are up. A class action is working its way through the federal courts challenging various aspects of California's "Sexually Violent Predators Act."

I'm not passing judgment on the California SVP Act generally or the most recent court decision specifically, except to note that the convicts' Eighth Amendment claims were summarily dismissed, since apparently "treatment" is never to be considered "punishment," and can therefore never be unconstitutionally "cruel and unusual."

Not even the Clockwork Orange torture chair? In a civilized century? If that is the law, then the law is a ass.

It's a little-known fact nowadays that the term "clockwork orange" was originally a derogatory slang expression in British English for not just "queer," but "very very very queer" -- the original expression was "queer as a clockwork orange." Also forgotten is that "aversion therapy" of the kind portrayed in the story was primarily -- and commonly -- used to "treat" homosexuality (with gay porn on the screen rather than war crime footage and heterosexual rape scenes).

I would of course be the last person to analogize gays with child molesters. But then again I'm not the one making the comparison, am I? California is.

In a civilized century...

The case is Hydrick v. Hunter, 03-56712 (9th Cir., June 1, 2006).

Some items from the sex offender mania front:

ITEM: In Virginia, a new law requires colleges and universities to turn over the names and Social Security numbers of every applicant accepted for admission, even if the individual never actually enrolls or even sets foot in the state. The purpose of this privacy invasion? To catch sex offenders, of course. Because the best way for perverts to find potential rape victims is to take organic chemistry with them. And the best way to help rehabilitate convicted sex offenders is by making sure they don't get to go to college. And how this helps prevent child molestation is anybody's guess. (Via UnCivil Defense.)

---

ITEM: A challenge to Georgia's draconian sex offender redlining law has been initiated in federal court. The law "sets 1,000-foot buffers for convicted child sex offenders around all school bus stops, churches, schools, child-care centers and other places where children congregate." Perhaps the most intriguing challenge is to the "church" provision, which seems a pretty clear violation of the First Amendment's free exercise clause. As for redlining in general, the relationship between the proscription and the goal seems far too weak in most instances to withstand scrutiny. Saying that a convicted child molester can't work in a day care center is one thing; saying he can't live down the street from one is another matter altogether.

---

ITEM: This is the one that has gotten all the headlines --

Penile plethysmograph testing is a procedure that “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.” Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testing has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release.

So begins a circuit court case, U.S. v. Weber, 05-50191 (9th Cir., June 20, 2006), considering the constitutionality of the procedure. First of all, I think Anthony Burgess is a better author to invoke than George Orwell. In any event, contrary to many of the reports and blogposts out there, the court did not rule the test unconstitutional on its face, but simply found insufficient facts to warrant its use on this particular convict. The case was sent back to the lower court for further hearings on the matter.

Let's assume the plethysmograph is even a reliable test (not a universal view). So what? A person may enjoy horror films, even snuff films. That doesn't make him a murderer. Enjoying images of burning buildings does not make you an arsonist. And getting an erection over naughty pictures does not make a sex offender a guaranteed recidivist. Expect more challenges, and more findings of impropriety, in the future. (Via Decision of the Day. More thoughts at ThePhalanx.)

I told you this was going to happen:

Fresh out of prison, Kerry Skora would much rather be known as a murderer than a sex offender. The law said otherwise.

Skora ... found out that because the victim was 16, he would have to register as a sex offender -- even though the crime didn't involve sex.
...
[Illinois] lawmakers in the mid-1990s added a host of crimes against minors to the sex offender registry requirements, including first-degree murder, kidnapping and child abduction -- regardless of whether the crime involved a sex offense.

People on the state's sex offender registry can't live within 500 feet of schools and other public places where children are found. The public can look up their names, pictures and addresses on the state's Web site, which makes no distinction between people who committed sex crimes and people who committed violent crimes involving minors.

The Illinois Legislature has passed a bill to make two distinct registries; the governor has yet to sign it. Montana and Indiana also have single registries that fail to distinguish sex offenders from other ex-convicts.

The dual canards: that "sex offenders have greater recidivism rates" (the Department of Justice says the opposite is true), and that "child molesters prey on the community" (they overwhelmingly tend, in fact, to prey on children they have proximate access to, such as stepchildren), have both been discredited. There is therefore no clear logic for singling out sex offenders for a registry.

Which can lead you down either of two mutually exclusive paths: either scrap the sex offender registry or insist on "registries for everything." It is increasingly clear that public figures, chasing the Politics of the Warm Fuzzy Feeling, are sprinting down the latter path.

Some previous examples here.

Ever since I started blogging about sex offender registries and redlining programs, I've gotten several emails and comments that generally go something like this:

I was young. The "victim" was young. We did what young people do. I am not a threat to anyone. And now I'm cursed for life. It's not fair.

The libertarian response is, "No it probably isn't fair."

The cynical libertarian response is "Get used to it."

Amie Zyla, 18, of Waukesha, Wis., has successfully promoted the idea that the public's right to know of a sex offender living nearby trumps a juvenile's right to keep court records secret. Last year, she persuaded her state's legislators to let police notify neighbors about the presence of a juvenile sex offender they consider a public risk.

This year, she went national. Congress is finishing work on a bill she promoted that could include juveniles on a federal registry being created. It would make failure to register a felony.
...
The rate at which juveniles repeat sex offenses ranges from 5% to 15%, compared with 20% to 25% for adult sex offenders, he says.

Seems to me that "5% to 15%" recidivism rate is not exactly a crisis demanding the kind of manic response we are seeing across the country and now in Congress.

But it also seems to me that sex offenders are even more easily classified as The Others Who Are Ruining America™ than are, say, gays or illegal immigrants. Who doesn't hate perverts, right? Unlike homophobia, damning child molesters never goes out of fashion, even when they're not really child molesters.

I certainly feel bad for people who are wrongly included in such registries and redlinings. But I see no reason not to expect the situation to get worse before it gets better. It's just too enticing a temptation for hack politicians.

(Via CrimProf Blog.)

I previously warned:

Meanwhile, this reasoning opens the door for other ex-convict registries. Don't violent criminals in general have a "moderate" risk of repeat offenses? Drunk drivers? Drug dealers? Check kiters? Tax cheats? The unemployed twenty-something who misses a student loan payment? If the standard is a mere "moderate" risk of repeat offenses, then any and every kind of ex-convict registry is permissible. And inevitable.

Exhibit A:

Crooks convicted of committing crimes with guns will have to report to the NYPD every six months, under groundbreaking legislation signed into law yesterday by Mayor Bloomberg.

"This is the first legislation of its kind in the nation," Bloomberg declared at City Hall.

My guess is that it won't be the last.

More:

Peter Vallone Jr. (D-Queens), chairman of the council's Public Safety Committee, said the registration law will send an unmistakable message to repeat offenders: "We are watching you. We will keep watching you. If you screw up, you're going right back to jail."

Well, no, actually the registry says the exact opposite: We can't be bothered to watch you, so instead we're going to force you to watch us.

And besides, don't we have probation and parole officers who are supposed to do the watching? And double-besides, is "screwing up" now the moral equivalent of the violent crimes that landed these ex-convicts in prison in the first place? When I walk down the street, I worry about murderers and robbers and gay-bashers -- not "screw-ups."

The real intent of this registry, besides the Politics of the Warm Fuzzy feeling, is to drive released convicts out of the city altogether. Which might be a good thing for law-abiding New Yorkers, but I wonder how people in Hoboken, Jersey City or Yonkers will feel about it.

In any case, registries used to be about the threat of recidivism. Are armed criminals likely to be recidivists? Who knows -- the City didn't bother to ask.

And the criminal justice system used to be about, um, justice, not persecution.

Once upon a time.