Doing Time as a Sex Offender: Residency Restrictions for Sex Offenders

Numerous studies show that laws restricting where sex offenders may live have done nothing to make children safer, and experts say these proximity laws, as they`re called, have actually increased the chances a sex offender will reoffend. Here we take a look at the current status of sex offender residency restrictions.

Laws Restricting Where a Sex Offender Can Live

Many states have laws restricting where a sex offender may live, often being some arbitrary distance from places where children gather. See United States v. Rudd, 662 F.3d 1257 (9th Cir. 2011) (reviewing some of these laws). Probably the most notorious state for its sex offender laws is Florida, where a qualifying sex offender cannot live within 1,000 feet of any child care facility, park, playground, or school. Fla. Stat. sec 775.215(1). This distance is measured in a straight line from the person`s property line to the property line of those locations. New York`s law is similar but says that a sex offender may not “enter” school grounds, which it defines as 1,000 feet around the school`s property line. N.Y. Exec. Law sec 259(c)(14).

Some states, like FL, have a statewide sex offender residency restriction, but also allow local municipalities to create their own restrictions that exceed state law. For example, Florida has numerous counties where the residency restriction is 2,500 feet, or half a mile. See Pasco Co. Ords. 66-67, et seq.

Even where there is no statewide restriction, local ordinances might still limit where a sex offender may live. See, e.g., Doe v. County of L.A., 2015 U.S. Dist. LEXIS 200109 (C.D. Cal. Mar. 13, 2015) (L.A. County`s 300-foot ordinance), Valenti v. Hartford City, 225 F. Supp. 3d 770 (N.D. Ind. 2016) (explaining an Indiana city`s 300-foot ordinance).

The be clear, there is no federal 1,000-foot rule for sex offenders. With that said, federal judges may restrict where a person may (or may not) live while on supervised release. 18 U.S.C. sec 3563(b)(13). But this restriction must “further the purpose of the defendant`s supervised release” and be “no greater than necessary” in doing so. United States v. Hernandez, 510 Fed. Appx. 591 (9th Cir. 2013). Even if a federal judge imposes the same residency restriction of the state where the person will live, this is not a valid reason for supervised release purposes. The person might move to another state without a residency restriction, and that would make the judge-imposed restriction unreasonable. See United States v. Collins, 684 F.3d 873 (9th Cir. 2012).

Not Every Sex Offender Qualifies Under the Residency Restrictions

In New York, only level three sex offenders have the statewide 1,000-foot rule. N.Y. Exec. Law sec 259(c)(14). And in Florida, not every sex offense qualifies: The victim must be younger than 16, and the offense (even if out of state) must match those listed in the statute. Fla. Stat. sec 775.215(3).

Most states also limit the restriction to offenses that occur after the date the restriction is enacted to avoid an ex post facto violation, the part of the U.S. Constitution that forbids retroactive punitive laws. See, e.g., Does 1-5 v. Snyder, 834 F.3d 696 (2016) (declaring Michigan`s retroactive sex offender residency restriction unconstitutional).

Some states, but not all, also “grandfather” in sex offenders who were living in an area before the restriction was created, and some also don`t require a sex offender to move if a forbidden location pops up by their house. See, e.g., Fla. Stat. sec 775.215(2).

Being Homeless as a Sex Offender

Supreme Court Justice Sotomayor has voiced her concerns that residency restrictions on sex offenders can lead to homelessness, saying New York`s “within-1,000-feet-of-a-school ban makes residency for [sex offenders] practically impossible in New York City.” Ortiz v. Breslin, 142 S. Ct. 914 (2022) (statement of Sotomayor, J., respecting denial of certiorari). The Rudd court also had the same concerns about residency restrictions:

Research suggests that residency restrictions decrease employment opportunities for offenders and increase transience and homelessness.

To deal with homeless sex offenders because of residency restrictions, some state have turned to keeping them in prison until they can find suitable housing. Thankfully, courts have struck down such laws. See Ortiz (collecting cases). In states where sex offenders are allowed to be homeless, they are closely monitored. Fla. Stat. sec 1943.0435(b)1, 2 (requiring registry updates every 30 days for homeless sex offenders).

Moving or Traveling as a Sex Offender

The Supreme Court has held that moving to a location that`s not covered by the Sex Offender Registration and Notification Act (SORNA) is not a violation of federal law. Nichols v. United States, 578 U.S. 104 (2016). In that case, a sex offender moved from Kansas to the Philippines and the government charged him with failure to register under SORNA. The court, however, overturned the conviction because the Philippines wasn`t a “jurisdiction” under SORNA. Had he moved to another state and not registered, that would have been a SORNA violation.

But that`s federal law. Going back to Florida, the most restrictive state, the sex offender registry requires a 48-hour notice when someone intends to move to another state or country. If they change their mind, they must let the state know within 48 hours or it`s a second-degree felony (up to 15 years in prison). Fla. Stat. sec 1943.0435(7), (8).

A sex offender in Florida who wants to travel outside the country for more than 4 days, must let the state know “at least 21 days before” the date of travel, or “as soon as possible” if it`s sudden. They must provide departure dates and times, and flight or cruise information, plus the state notifies local authorities at the destination. Id. This means it may not be a violation of federal law to leave a state, like Florida, but it`s surely a violation of state law.

Sex Offenders Living with Others

People, even sex offenders, have a “fundamental right to familial association.” United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012). In that case, the court held that a sex offender could live with his children, even though he wasn`t married to their mother.

But there are exceptions to the rule. In McClamma v. Remon, 561 Fed. Appx. 787 (11th Cir. 2014), the federal court of appeals held that the right to be with family is not an “absolute” right. The probation officer in that case had applied a no-contact rule for all children, including the sex offender`s own children. The court held that this didn`t violate any “clearly established” rule by the Supreme Court. However, in Doe v. Lima, 270 S. Supp. 3d 684 (S.D.N.Y. 2017), a federal court held in a similar case that a complete ban on a sex offender`s children, without less-restrictive alternatives, violated “well-established” law. Both of these cases are instructive on how to challenge such a restriction.

Residency Restrictions Increase the Risk of Re-Offense by Sex Offenders

It`s one thing to say that residency restrictions have proven to do nothing to protect children from sex crimes, but it`s quite another to say that these restrictions have been shown to increase the risk of a sex offender reoffending against a child. Justice Sotomayor cited some studies in her statement in Ortiz and made this point:

Scholars have explained that by banishing returning individuals to the margins of society, residency restrictions may lead to homelessness, unemployment, isolation, and other conditions associated with an increased risk of recidivism.

Citing even more studies, the court in Rudd extensively criticized the negative effect of residency restrictions on sex offenders:

There remains significant questions regarding the substantive reasonableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism.

More specifically, the Minnesota Dept. of Corrections looked at 224 sex offenses committed by sex offenders and found that not one of them would have been deterred by a residency restriction. [1] And when Jacksonville, FL, increased its residency restriction to 2,500 feet, a study showed it did absolutely nothing to curb sex offenses against children there. [2]

Public Support for Residency Restrictions on Sex Offenders

The public overwhelmingly supports residency restrictions on sex offenders, despite the mountain of evidence showing that they don`t do anything to protect children from sex offenses. In her book Sex Crime, Offenders, and Society, Professor Christina Mancini cites several studies she conducted with other scholars that showed 82% of Florida residents supported residency restrictions, and over 80% of Michigan residents supported them.

IN CONCLUSION, despite the fact that residency restrictions on sex offenders do more harm than good, the public embraces them and sex offenders must be aware of them. It`s critical that sex offenders understand these laws, lest they end up in prison.

Footnotes:

[1] G. Duwe, Residency Restrictions and Sex Offender Recidivism: Implications for Public Safety, 2 Geography & Pub. Safety 6, 7 (May 2009).
[2] Nobles, M.R., et. al, Effectiveness of Residency Restrictions in Preventing Sex Offense Recidivism, Crime and Delinquency, 58, 491-513 (2012).