Sex Offender Residency Restriction Laws, Ripe for Attack...in Supreme Court?

California's Proposition 83, or "Jessica's Law," is like other sex offender restriction laws.  It includes stiffer punishment, longer parole terms and tighter monitoring for future sex criminals, and a controversial residency restriction, prohibiting anyone required to register as a sex offender from "living within 2,000 feet of any public or private school or park where children regularly gather."  If California voters pass Jessica's Law this November, California will be the 18th state to pass residency restrictions on sex offenders.  Lessons learned from the previous 17 states have shed light on the legislation's key causes for concern among legal scholars and critics, including:

• Whether Prop. 83 would apply to already convicted sex offenders -- the thousands now behind bars, on probation or parole, or even the tens of thousands who have been free of the criminal justice system for years, living in the community, some of them homeowners.

• That it would too broadly restrict where all registered offenders can live, including those whose convictions were for sex crimes against adults.

• That it would cross a constitutional line into public banishment if registered offenders could find nowhere to live in most of the state's population centers -- as maps produced by the state Senate suggest.

Sex offenders could argue that Jessica's Law would strip them of protected liberties.  But a challenge of that nature to overturn the Iowa law restricting sex offenders from living within 2,000 feet of schools and day care centers, failed.  The Eighth Circuit ruled that there is no right to live where you want to live if the state has compelling reasons otherwise.

Several scholars have said the strongest legal attack is the "ex post facto" angle.  If a city tried to apply Jessica's Law to sex offendes who were convicted before the law took effect, the sex offender could challenge the eviction on the basis of the constitutional ban on ex post facto laws.  That's what has happened in Ohio.  The Ohio Justice & Policiy Center, under David Singleton, has about a dozen cases pending, but they're yet to stop an eviction. 

That probably has something to do with the fact that the constitutional ban on "ex post facto" laws only applies to punitive laws, not civil regulations with a clear public policy rationale.  As UCLA CrimProf Eugene Volokh points out, a government takings claim probably won't work either.  "If the person is a tenant, there's no property being taken...Even if he owns the property, it's not that the person is being barred from or denied the right to own the property. He can resell it, rent it out. He could make money off it." 

As more and more states pass these laws, the key question is whether the courts view the 2,000 foot rule (or in the case of Ohio, 1,000) as punishment for past crimes, rather than a civil law intended to protect the public.  That's the only way the ex post facto attack could work, but the Supreme Court has set a high bar for proving that a civil law has crossed the line to punishment, insisting on "only the clearest proof."

While some legal scholars say the residency restrictions will invariably pass constitutional muster, other say the 2003 SCOTUS case challenging Meghan's law left the door open for a successful challenge to Jessica's law and others like it.  But through all the debate, the concensus is, as more of these laws pass, the stronger the likelihood that the Supreme Court will have to step in and give an opinion on the constitutionality of these state laws.

Read the full story from ContraCostaTimes.com with opinions from several legal scholars including William & Mary CrimProf Wayne Logan; UC Hastings LawProf and director of the Center for State and Local Government David Jung, Stanford LawProf and executive director of the Stanford Constitutional Law Center Derek Shaffer, David Singleton of the Ohio Justice and Policy Center, and UCLA CrimProf Eugene Volokh.  [Michele Berry]