Copyright 2008 by Northwestern University School of Law
Northwestern University Law Review

Printed in U.S.A.
Vol. 102, No. 1

Comments
IRREGULAR PASSION: THE
UNCONSTITUTIONALITY AND INEFFICACY OF
SEX OFFENDER RESIDENCY LAWS†
Sarah E. Agudo∗
“[C]ertain duties must be observed even towards those at whose hands you
may have received unjust treatment. There is a limit to revenge and to punishment.”‡
INTRODUCTION............................................................................................................. 308
I.

II.

THE CONSTITUTIONAL LIMITS OF SEX OFFENDER RESIDENCY LAWS..................... 311
A.

Due Process ................................................................................................ 312

B.

Ex Post Facto.............................................................................................. 321

C.

Self-Incrimination ....................................................................................... 326

D.

Right to Inter/Intrastate Travel ................................................................... 329

POLICY CONCERNS AND CONSIDERATIONS ........................................................... 331
A.

As Applied: A Need for Fairness and Line-Drawing................................... 332

B.

Decrying “NIMBY” and a Look at Alternative Approaches ....................... 334

III. STAKEHOLDER INTERESTS AND POLITICAL MOTIVATIONS ..................................... 337
CONCLUSION ................................................................................................................ 338

†

“[T]here are particular moments in public affairs when the people, stimulated by some irregular
passion . . . may call for measures which they themselves will afterwards be the most ready to lament
and condemn. In these critical moments, how salutary will be the interference of some temperate and
respectable body of citizens, in order to . . . suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?” THE FEDERALIST
NO. 63, at 382–83 (James Madison) (Clinton Rossiter ed., 2003) (emphasis added).
∗
J.D. Candidate, Northwestern University School of Law, 2008; M.P.P. Candidate, Harvard University John F. Kennedy School of Government, 2008; B.S., Cornell University, 2004. I am extremely
grateful to Professor Thomas Geraghty, Sarah Geraghty, Ian Papendick, Lucy Stroup, and my family for
their patience and dedication in helping me create and edit this Comment. Additionally, I would like to
thank Professor Ronen Avraham, Alison Buckley, Abby Mollen, Kevin Agnew, and Christine Skoczylas
for their thorough and insightful suggestions. Finally, I am thankful to Stefan for his constant support.
‡
MARCUS TULLIUS CICERO, ON DUTIES I.33 (M.T. Griffin & E.M. Atkins eds., Cambridge Univ.
Press 1991).

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NORTHWESTERN UNIVERSITY LAW REVIEW

INTRODUCTION
Sex offenders are among the most hated members of our society. They
commit heinous crimes, often against our most vulnerable citizens, and
there is a commonly held perception that they are frequent recidivists who
are resistant to rehabilitation. Justified or not, society has developed a
heightened intolerance for sex criminals.1
In recent years, laws protecting society from these offenders have
grown increasingly broad; the restrictions have become more severe and
applicable to more people.2 Residency laws, which dictate where sex offenders can live upon release from prison or while on parole, exemplify this
trend. Twenty-two states in the United States currently have some form of
residency law that restricts where sex offenders can live.3 For example,
many states prohibit sex offenders from living within 1000–2500 feet of
schools, bus stops, or daycare centers.4
Today, public outrage and political risk-aversion have driven these
laws to the outer boundaries of constitutionality. Some states, such as
Georgia, may have already crossed that line.5 With no decisions from the
1

Contrary to sex offenders’ reputation as recidivists, the U.S. Department of Justice has determined
that sex offenders are actually rearrested at a lower rate than other offenders, with rearrest rates of fortythree percent and sixty-eight percent, respectively. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF
JUSTICE, CRIMINAL OFFENDERS STATISTICS: RECIDIVISM, available at http://www.ojp.usdoj.gov/bjs/
crimoff.htm (last visited Sept. 11, 2007) (scroll down to “Recidivism”) [hereinafter CRIMINAL
OFFENDER STATISTICS]. Courts themselves have erroneously stated that sex offenders reoffend at exceptionally high rates. See, e.g., Smith v. Doe, 538 U.S. 84, 103 (2003) (Kennedy, J., concurring) (“The
risk of recidivism posed by sex offenders is ‘frightening and high.’” (quoting McKune v. Lile, 536 U.S.
24, 34 (2002)); Doe v. Miller, 405 F.3d 700, 707–08 (8th Cir. 2005), cert. denied, 546 U.S. 1034 (2005)
(acknowledging the state’s claim that there are “very high rates of re-offense for sex offenders who had
offended against children”). For commentary on the inaccurate public perceptions regarding sex offenders, see Tom Teepen, Making Politics Out of Sex Crimes Helps No One, THE LUFKIN DAILY NEWS,
Nov. 3, 2006, available at http://www.lufkindailynews.com/news/content/shared/news/stories/2006/11/
TEEPEN_COLUMN_1103_COX.html. Nonetheless, sex offenders are about four times more likely
than non-sex offenders to be arrested in the future for committing a sex crime. See CRIMINAL OFFENDER STATISTICS, supra.
2
See, e.g., Sexual Predator Punishment and Control Act: Jessica’s Law, CAL. PENAL CODE
§ 3003.5 (West Supp. 2007) (increasing penalties for sex offenders, for example, by prohibiting them
from living within 2000 feet of a school or park).
3
MARCUS NIETO & DAVID JUNG, THE IMPACT OF RESIDENCY RESTRICTIONS ON SEX OFFENDERS
AND CORRECTIONAL MANAGEMENT PRACTICES: A LITERATURE REVIEW 3 (2006).
4
Doe v. Miller, 298 F. Supp. 2d 844, 848 n.2 (S.D. Iowa 2004), rev’d, 405 F.3d 700 (8th Cir.
2005), cert. denied, 546 U.S. 1034 (2005) (listing varying residency restrictions in twelve states).
5
See GA. CODE ANN. § 42-1-15 (2006) (prohibiting sex offenders from living within 1000 feet of
any childcare facility, church, school, public or private park, recreation facility, playground, skating
rink, neighborhood center, gymnasium, school bus stop, or public or community pool, as defined in GA.
CODE ANN. § 42-1-12, and punishing violations of this law with a minimum of ten years in prison). As
this Comment was being finalized for publication, the Georgia Supreme Court overturned this sex offender law in the context of a takings challenge. The court held that the law constituted an uncompensated taking because the appellant was being forced to move after a childcare facility was built within
1000 feet of his home. The decision hinged on the fact that the childcare facility moved “to the of-

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United States Supreme Court and only two from federal courts of appeals
regarding the constitutionality of these statutes,6 district courts are being
flooded with cases that present questions of first impression.7 These courts
must decide how far the Constitution permits the states to go to separate potential reoffenders from their potential victims.8 Some of the most recent
laws are the harshest,9 and class action lawsuits brought in the name of sex
offenders are springing up throughout the country.10 It is likely that these
recent expansions of sex offender legislation and the ensuing litigation over
their constitutionality will prompt a Supreme Court decision establishing
the limit on states’ control over their released offenders.11
Research on the effectiveness of residency laws is scarce. However, a
few studies suggest that residency restrictions have no impact on sex offense recidivism.12 A study conducted by the Virginia Criminal Sentencing
Commission found that parolee employment was correlated with lower recidivism rates,13 which suggests that residency laws that indirectly diminish
employment opportunities will increase offense rates among paroled sex offender,” as opposed to the offender moving into a restricted area. Mann v. Ga. Dep’t. of Corr., No.
S07A1043, 2007 Ga. Lexis 849 (Ga. Nov. 21, 2007). Although takings claims are not discussed further
in this Comment, their viability as challenges to residency laws is noteworthy.
6
Miller, 405 F.3d 700; Doe v. Lafayette, 377 F.3d 757 (7th Cir. 2004).
7
See, e.g., Doe v. Baker, No. 1:05-CV-2265 TWT, 2006 U.S. Dist. LEXIS 67925 (N.D. Ga. Apr. 5,
2006) (challenging a state statute that prohibits sex offenders from living within 1000 feet of any childcare facility, school, or area where minors congregate); Brown v. Michigan City, No. 3:02 CV 572 RM,
2005 WL 2281502 (N.D. Ind. Sept. 19, 2005) (challenging a city resolution that prohibits sex offenders
from entering public parks); Coston v. Petro, 398 F. Supp. 2d 878, 880 (S.D. Ohio 2005) (challenging a
state statute that prohibits sex offenders from living within 1000 feet of a school).
8
In some cases, courts are granting injunctive relief from removal under the residency laws until a
decision has been made as to their constitutionality. See, e.g., Doe v. Schwarzenegger, No. C-06-6968
JSW (N.D. Cal. Nov. 8, 2006) (granting temporary restraining order against enforcement of Cal. Penal
Code § 3003.5, but later dismissing case for lack of standing); see also Court Stops Forcible Relocation
of 8 Sex Offenders, Class Action Status Requested for More Than 10,000 Felons, ATLANTA J. CONST.,
June 26, 2006, at A1.
9
See generally GA. CODE ANN. § 42-1-15; IOWA CODE §§ 692A.1, 692A.2 (West 2003 & Supp.
2007); OHIO REV. CODE ANN. § 2950.031 (West 2006).
10
Class action suits are brought pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil
Procedure. The classes in residency law challenges are generally defined as all persons who have registered under the state act as sex offenders, or must so register in the future, and who are harmed by the
act’s residency, working, and loitering provisions. See, e.g., Amended Complaint at 30–31, Whitaker v.
Perdue, No. 4:06-CV-140-CC (N.D. Ga. July 7, 2006).
11
A Supreme Court decision is likely due to the number of cases being litigated on numerous constitutional grounds. See supra notes 6–7.
12
See Jill S. Levenson & Leo P. Cotter, The Impact of Sex Offender Residence Restrictions: 1,000
Feet From Danger or One Step From Absurd?, 49 INT’L. J. OFFENDER THERAPY & COMP.
CRIMINOLOGY 168, 168 (2005); see also COLORADO DEP’T OF PUB. SAFETY, REPORT ON SAFETY
ISSUES RAISED BY LIVING ARRANGEMENTS FOR AND LOCATION OF SEX OFFENDERS IN THE
COMMUNITY 4 (2004) [hereinafter COLORADO SAFETY REPORT].
13
VIRGINIA CRIMINAL SENTENCING COMMISSION, ASSESSING RISK AMONG SEX OFFENDERS IN
VIRGINIA 8 (2001), http://www.vcsc.state.va.us/sex_off_report.pdf.

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fenders. Protecting the public from sex offenders is unquestionably important, but states should not sacrifice civil liberties in favor of unproven
methods of control.
Reasonable and constitutionally acceptable residency laws may well
exist.14 The aim of this Comment is not to call for the abolition of all residency laws, but rather to promote a cogent dialogue regarding the upper
bounds of their effectiveness and constitutionality in order to provide a
framework for future legislation. Although, in many areas of law, democratic processes can adequately safeguard those bounds, the public outrage
against sex offenders threatens to chill the usual political protections and
justifies careful judicial oversight.
Part I examines existing and potential constitutional challenges to various state residency laws. Using four different claims as examples, this Part
examines recent decisions from lower federal courts and analyzes their merits. The four constitutional bases for claims are the Due Process Clause, the
Ex Post Facto Clause, the right against self-incrimination, and the individual right to travel.
Part II discusses the policy concerns and considerations of creating or
expanding sex offender residency laws. To illustrate the ineffectiveness of
broad laws, this Part includes a projection of costs incurred by their enactment and enforcement; analogies that illustrate their scope and implications;
and alternative approaches to dealing with the problem of repeat sex offenders. This Part shows that, in addition to being unconstitutional, broad
residency laws are also imprudent policy decisions because they fail to further the goal of preventing sex crimes.
Part III examines the political causes and ramifications of the residency
laws and explains the need for a Supreme Court decision establishing the
constitutional limit of residency laws. It also argues that government entities involved in sex crime prevention actually will favor narrow laws that
allow for more focused, effective, and fair enforcement of the residency restrictions. Lastly, this Part examines the role that the Constitution should
play in controlling politically driven legislation and protecting society from
its own passions.
The Comment concludes that non-tailored residency laws are unconstitutional. These same laws are also unwise and ineffective in terms of their
stated goals, rendering them poor policy decisions. Given their ineffectiveness and the threat they pose to fundamental rights, this Part argues that it is
important that courts assess the laws rigorously and without bias, particularly because the political outlash against sex offenders is immense, irrational, and hard for legislators to reverse. Until courts correctly deem these
14

States with relatively narrow laws that may be both effective and constitutional include Washington, where “high-risk offenders” cannot live within 880 feet of schools or daycare centers, WASH. REV.
CODE § 9.94A.030 (West 2005), and New York, where serious offenders cannot enter school grounds or
facilities caring for children, N.Y. PENAL LAW § 65.10(4-a) (McKinney Supp. 2007).

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non-tailored residency laws unconstitutional, both the rights of sex offenders and the safety of their potential victims will be at risk due to the crippling political outrage surrounding the issue.
I.

THE CONSTITUTIONAL LIMITS OF SEX OFFENDER RESIDENCY LAWS
Sex offender residency laws restrict where sex offenders can live, usually by prohibiting them from moving within a designated radius of particular areas, for example, schools, churches, or bus stops.15 The relative
strictness of different states’ residency laws can vary along two important
axes: the number of people to whom they apply and the relative restrictiveness of their requirements. The states can tailor the breadth of their residency laws by adjusting various factors, including the offender’s age, type
of offense, number of past offenses, or date of last conviction. The laws
can also be made more restrictive by applying them to more areas, expanding the zones around those areas in which habitation is prohibited, preventing employment in certain types of jobs, and restricting ability to enter—
rather than just the ability to reside in—certain areas. Variations of these
factors make residency laws “broad” or “narrow” in relation to each other.
A hypothetical example of a narrow law is one that applies only to violent sex offenders, such as rapists or child molesters, who have been convicted or released from prison within the last ten years and that prohibits
these offenders from living within one hundred feet of a school.16 A broad
law, by contrast, is one that applies to every person ever convicted of a sexrelated crime, such as underage sex, consensual sodomy, or prostitution, regardless of age or date of conviction, and that prohibits the person from living within 3000 feet of a school, bus stop, religious gathering place, nursing
home, hospital, swimming pool, or beach.17 Certain restrictions embodied
in residency laws may be unconstitutional per se, while others may only become unlawful once they are expanded in one of the ways discussed above.
This Part describes some of the claims that could be, and are being,18 used
to challenge the constitutionality of state and city sex offender residency
laws.19 It analyzes each of these select claims, as a federal court would, and
suggests an appropriate resolution for each one.
15

See GA. CODE ANN. § 42-1-15 (2006).
For examples of narrow laws that have been enacted in various states, see supra note 14.
17
I created these “broad” and “narrow” categorizations to allow for easier discussion and illustration within this Comment. To my knowledge, the terms are not used in sex-offender legislation, litigation, or discourse. However, the ideas that they embody are frequently at issue in those arenas.
18
See supra note 6 (listing federal circuit court cases regarding the constitutionality of residency
laws); see also supra note 7 (listing examples of federal district court cases regarding the constitutionality of residency laws).
19
This list of potential claims to residency laws is not exhaustive. Other possibilities not discussed
here include violations of equal protection, freedom of association, the Takings Clause, the Free Exercise Clause, and the Religious Land Use and Institutionalized Persons Act (42 U.S.C. §§ 2000cc–
2000cc-5 (2000)). Many of these claims have already been brought in federal courts. E.g., Whitaker v.
16

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A. Due Process
The discussion of constitutional challenges to residency law begins
with the Due Process Clause because it provides the strongest challenge in
terms of both the likelihood of success and the number of offenders to
whom it applies.
1. Background of Due Process.—The Fourteenth Amendment of the
Constitution requires that no person shall “be deprived of life, liberty, or
property without due process of law.”20 Despite the unquestioned importance of the due process guarantee, defining due process is notoriously
troublesome.21 The Clause protects individuals from sanctions that are
“downright irrational.”22 In addition to guaranteeing fair procedural process, the Due Process Clause contains a substantive component that protects
certain liberty interests from government deprivation, regardless of the procedures provided.23
2. Analysis of a Procedural Due Process Claim.—In determining
what process the state must provide to deprive an individual of his life, liberty, or property, courts consider three factors: first, the private interest involved; second, the risk of erroneous deprivation of that interest and the
probable value of additional safeguards; and, third, the state’s interest in
maintaining its procedure.24 Most importantly, what process is due is not
absolute; it varies with the severity of the restriction imposed.25
Residency restrictions implicate numerous private liberty interests.
The first is the right to establish a home.26 This interest is all but eviscerated by severe restrictions—a violation that has been depicted vividly in recent news images and stories of sex offenders unable to find housing that
Perdue, No. 4:06-CV-140-CC (N.D. Ga. July 7, 2006) (challenging GA. CODE ANN. § 42-1-15 (2006) as
violative of substantive and procedural due process, the Ex Post Facto Clause, the Religious Land Use
and Institutionalized Persons Act, the Free Exercise Clause and the freedom of association, the Takings
Clause, the right to inter- and intrastate travel, and the Eighth Amendment’s prohibition against cruel
and unusual punishment).
20
U.S. CONST. amend. XIV. The Fifth Amendment places an identical limit on the powers of the
federal government. U.S. CONST. amend. V.
21
The problem of defining due process has been recognized throughout history. See Louisville Gas
& Elec. Co. v. Coleman, 277 U.S. 32, 37 (1928) (“The . . . due process of law clause[] is not susceptible
of exact delimitation. No definite rule in respect of [it], which automatically will solve the question in
specific instances, can be formulated.”); Green v. Frazier, 253 U.S. 233, 238 (1920) (“What is meant by
due process of law this court has had frequent occasion to consider, and has always declined to give a
precise meaning, preferring to leave its scope to judicial decisions when cases from time to time arise.”
(citation omitted)).
22
Hudson v. United States, 522 U.S. 93, 103 (1997).
23
Troxel v. Granville, 530 U.S. 57, 65 (2000); Washington v. Glucksberg, 521 U.S. 702, 719–20
(1997).
24
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
25
Id. at 341.
26
See Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923).

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conforms to states’ residency laws. In Iowa, twenty-six registered sex offenders live in twenty-four rooms at the Ced-Rel Motel, while others are
forced to sleep in the streets or in the cabs of their trucks.27 In Florida, five
sex offenders have been required to live indefinitely under a bridge with no
electricity, heat, or clean water.28 Other liberty interests that broad residency laws impinge upon are the right to privacy,29 the right to travel,30 and
the right to pursue a chosen profession without unreasonable interference
from the government.31 These rights are implicated when the residency
laws are so severe that they force the offender to move to destitute or remote locations. This relocation threatens or eliminates the offender’s ability to maintain a family, uphold a job, and move about the state and
country.
Generally, residency laws have no procedural component that governs
their application.32 The value of additional procedural safeguards, such as
risk-assessment33 or opportunities for appeal, is therefore very high. When
sex offenders submit their information for registration and tracking purposes, they are automatically subjected to residency restrictions.34 There is
no independent residency law process that provides sex offenders with information about the restrictions or an opportunity to challenge the restrictions’ applicability. Therefore, at most, the residency laws piggyback on
the procedural components of registration laws. However, the procedural
components of registration laws are not necessarily sufficient to provide the
constitutionally required process for residency laws. Registration laws,
unlike residency laws, impose minimal liberty restrictions on sex offenders—they only require that the released offender report his or her current
address and notify the local government if he or she moves from that ad27

Monica Davey, Iowa’s Residency Rules Drive Sex Offenders Underground, N.Y. TIMES, Mar. 15,
2006, at A1.
28
John Zarrella & Patrick Oppmann, Florida Housing Sex Offenders Under Bridge, Apr. 6, 2007,
CNN.COM, http://www.cnn.com/2007/LAW/04/05/bridge.sex.offenders/index.html.
29
See Boyd v. United States, 116 U.S. 616, 630 (1886) (establishing that the Fourth and Fifth
Amendments protect against all governmental invasions “of the sanctity of a man’s home and the privacies of life”); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (holding that marriage is a relationship
that lies “within the zone of privacy created by several fundamental constitutional guarantees” and is
thus protected from “unnecessarily broad” governmental invasions).
30
See Attorney Gen. v. Soto-Lopez, 476 U.S. 898, 901–02 (1986) (holding that there is a constitutional freedom to enter and reside in any state). For a discussion of how broad residency laws can violate travel rights, see supra Part I.D.
31
See Greene v. McElroy, 360 U.S. 474, 492 (1959) (“[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within
the ‘liberty’ and ‘property’ concepts of the Fifth Amendment . . . .”).
32
See, e.g., GA. CODE ANN. § 42-1-15 (2006).
33
See infra Part II.B.2.
34
Registration laws (often called “Megan’s Laws”) require sex offenders to report their current addresses to government agencies. See, e.g., CAL. PENAL CODE §§ 290–94 (West 2007); 730 ILL. COMP.
STAT. 150/1–150/12 (West 1997).

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dress.35 Because registration laws do not severely hinder personal liberties,
the Due Process Clause would require far less rigorous procedures than it
would require for laws that greatly restrict liberties, such as residency
laws.36
For example, a state law that prohibited all people who have ever had a
traffic violation from living within 1000 feet of any road would be unconstitutional. The constitutionally required procedure for issuing and recording traffic tickets is minimal because the standard legal consequences
are not highly punitive or restrictive.37 This procedure is sufficient to satisfy due process requirements in the context of traffic violations. However,
if those same individuals—“traffic offenders”—are subjected to the tangentially related but far harsher restriction on where they can live, the minimal
process afforded to them when they received their traffic tickets is no longer
sufficient. Similarly, the process afforded to those individuals before subjecting them to residency laws is negligible and disproportionate relative to
the severe liberty restraints that the laws impose.38
The risk of erroneous deprivation of sex offenders’ liberty interests is
high given the minimal protective procedures in place. Additional procedural safeguards would reduce the risk of erroneous deprivation and, although the state has a high interest in public safety, the fact that broad
residency laws are ineffective at preventing sex crimes renders the state’s
interest in enacting them negligible. Thus, without additional process, residency laws violate the procedural due process guarantees of the Fifth and
Fourteenth Amendments of the Constitution.
3. Analysis of a Substantive Due Process Claim.—In addition to
these procedural violations, broad residency laws violate substantive due
process. The proper test for determining whether a government regulation
offends the Substantive Due Process Clause depends on whether the regulation implicates a fundamental right.39 If so, courts employ a “strict scrutiny” test.40 Under this test, a court determines whether the regulation
advances a compelling state interest and whether the regulation is “narrowly
35

See supra note 34.
See Nebbia v. New York, 291 U.S. 502 (1934).
37
The consequences of receiving a traffic ticket are generally sanctions such as small fines or points
on one’s record. They also normally include an opportunity to contest the ticket in court.
38
See Nebbia, 291 U.S. 502.
39
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (describing fundamental rights as those
that are “deeply rooted in the Nation’s history,” rooted in the “traditions and conscience of our people,”
and “implicit in the concept of ordered liberty” (internal citations omitted)).
40
See Griswold v. Connecticut, 381 U.S. 479, 503–04 (1965) (“The nature of the right invaded is
pertinent, to be sure, for statutes regulating sensitive areas of liberty do . . . require ‘strict scrutiny,’ and
‘must be viewed in the light of less drastic means for achieving the same basic purpose.’” (citations
omitted)); see also Reno v. Flores, 507 U.S. 292, 302 (1993) (applying strict scrutiny to a substantive
due process claim); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (applying strict scrutiny to an equal
protection claim).
36

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tailored” such that it is the least restrictive method available to effectuate
that interest.41 If no fundamental right is involved, courts engage in a “rational basis” analysis.42 In rational basis review, a court determines whether
the state acted in pursuit of a permissible objective and, if so, whether the
means it adopted were reasonably related to accomplishing that objective.43
The next Subpart examines how these tests apply to sex crime laws.
a. Strict scrutiny test.—Broad residency laws implicate fundamental rights, including the right to establish a home, the right to travel, the
right to privacy, and the right to pursue a chosen profession without unreasonable interference from the government.44 There are numerous ways that
these rights may be implicated in individual cases. For example, an offender may be forced to quit his job in order to move hundreds of miles to
the nearest legal residence. Another offender may be forced to choose between uprooting her entire family and separating it. The implication of
these fundamental rights warrants the application of the more rigorous strict
scrutiny test. This test requires a state to prove that imposing residency restrictions furthers a compelling state interest and that the means used to
achieve that interest are narrowly tailored to address only the specific interest at stake.45 Part II shows that broad residency laws would not pass this
test because there are many narrower (and more effective) ways to protect
the public from repeat sex offenders.46 Even though protecting the public is
a compelling state interest,47 overly inclusive or severe residency laws are
not narrowly tailored to achieve that interest. Under this test, they are
therefore unconstitutional. Nonetheless, courts may choose to apply a rational basis rather than a strict scrutiny analysis, discussed below.48
41

Reno, 507 U.S. at 301–02.
Glucksberg, 521 U.S. at 728.
43
Id. at 735 (holding that the state’s interests were important, legitimate, and reasonably promoted
by the challenged law).
44
See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“[T]he liberty . . . guaranteed [by the Fourteenth Amendment] . . . denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of
happiness by free men.” (citations omitted)).
45
See Reno, 507 U.S. at 302; Roe v. Wade, 410 U.S. 113, 155 (1973); Griswold, 381 U.S. at 485.
46
For a discussion of these alternatives, see supra Part II.B.1–2.
47
Schall v. Martin, 467 U.S. 253, 264 (1984) (“The ‘legitimate and compelling state interest’ in
protecting the community from crime cannot be doubted.” (citation omitted)).
48
Higher scrutiny than rational basis may also be justified because, in laws relating to sex offenders, the operation of ordinary political processes is curtailed to the offenders’ detriment. See United
States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (listing cases in which higher scrutiny was
found necessary due to limited access to the political process). Sex offenders, like most felons, are a
minority, are subject to prejudice, and are often permanently stripped of their right to vote. This leaves
them unable to protect themselves through democratic processes. See McLaughlin v. City of Canton,
947 F. Supp. 954, 971 (S.D. Miss. 1995) (“When brought beneath [the] axe [of disenfranchisement], the
42

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b. Rational basis test.—Even if a court decides that the rights
restricted by residency laws are not fundamental, broad residency laws intended to prevent sex crimes would not even pass rational basis scrutiny because the means they adopt are not reasonably related49 to the goals they
pursue. This Comment argues that in order for a law to pass the rational
basis test, it must, at a minimum, promote its goals more than frustrate
them. A law that hurts rather than furthers its own stated goals is fundamentally an irrational one.
There are two possible and related criticisms of the rational basis inquiry set forth here. First, courts’ rational basis analyses tend to be highly
deferential to the state and not as exacting as what is called for here. Thus,
the notion that courts should strike laws that are irrational—or not reasonably related to their stated goals—may in reality be more formalistic than
functional. This Section suggests how courts should apply the rational basis test in this context, not necessarily how courts do or will apply it given
the history of the test’s jurisprudence.
Second, this Section argues that courts should be responsible for
weighing the costs and benefits of residency laws to determine their constitutionality. This may seem improper because the determination of costs
and benefits is historically the province of the democratic branches. However, the argument here is not that a court should engage in its own factgathering and weighing, but rather that it should determine whether the law
enacted by the state, based on the state’s own fact-gathering and weighing,
is rational in terms of the law’s stated goals and results. In simplified
terms, if a state legislature found that a law impaired rather than furthered a
stated goal but enacted or allowed the law to remain on the books nonetheless,50 a court should strike the law as irrational and violative of substantive
due process. This position is further justified when, as with residency laws,
the integrity of the democratic process is weakened.51
Understanding the costs and benefits of a law is crucial to determining
its rationality. The benefits of broad residency laws52 are two-fold. At one
level, the communities benefit from knowing that they do not have sex of-

disenfranchised is severed from the body politic and condemned to the lowest form of citizenship . . .
while others choose the fiscal and governmental policies which will govern him and his family. Such a
shadowy form of citizenship must not be imposed lightly; rather, only when the circumstances and the
law clearly direct.”).
49
Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 461 (2d Cir. 1996) (“Where the claimed right is
not fundamental, the governmental regulation need only be reasonably related to a legitimate state objective.”).
50
This seems to be the case with the enactment of broad, ineffective residency laws. Such seemingly irrational behavior may be explained by political pressures, bureaucratic lag time, and inaccurate
information.
51
See supra note 48; infra notes 82 & 198.
52
Narrow residency laws would likely survive rational basis analysis.

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fenders living within certain protected areas.53 This provides senses of security and agency,54 which are intangible benefits.55 Theoretically, the second benefit of residency laws is that they prevent some sex offenses from
occurring. However, as discussed above, empirical evidence is beginning
to demonstrate that the laws do not in fact prevent sex crimes. These findings not only undermine the stated purpose of these laws to reduce sex
crimes, but also render false the sense of security provided by the laws.
These benefits come with monetary, psychological, and ethical costs.56
The obvious costs include those associated with identifying, monitoring, arresting, prosecuting, and imprisoning sex offenders who violate broad residency laws. There are also other less obvious social costs. Perhaps the
most compelling of these costs is that police resources will be spread thin
by voluminous monitoring obligations, leaving fewer resources to monitor
effectively the truly dangerous sex offenders, such as rapists and child molesters. Other costs include the loss of labor from sex offenders who are
prevented from working and the cost of forcing families to split into separate houses or repeatedly relocate. Additionally, communities incur other
subtle costs by disenfranchising a substantial sector of their population.57
Feelings of disenfranchisement, rejection, hatred, and neglect negatively affect the mental states of those individuals forced to live on the fringes of
society.58 This large-scale rejection often causes the sex offender to harbor
reciprocal feelings towards society, sometimes to the point where the offender’s feelings of civic responsibility—including the duty to follow

53

This assumes that all sex offenders obey the residency law and comply with registration requirements, but that is not necessarily the case. The communities, however, may still benefit from the false
sense of security they receive from thinking that sex offenders no longer live near their children’s
schools, their bus stops, or other protected areas.
54
Both relate to the perception that the community is taking action against sex crimes, regardless of
the actual effectiveness of the action.
55
See, e.g., President William J. Clinton, The President’s Radio Address (Aug. 24, 2006) (transcript
available at http://www.presidency.ucsb.edu/ws/index.php?pid=53230) (referring to community notification laws as a way to “give . . . parents peace of mind”); but see Stuart A. Scheingold et al., Sexual
Violence, Victim Advocacy, and Republican Criminology: Washington State’s Community Protection
Act, 28 L. & SOC’Y REV. 729, 757 (1994) (“The jury is still out on whether community notification gives
us peace of mind and more competent police work or whether it simply leads to vigilante overreaction.”).
56
For a thorough overview of the collateral consequences of sex offender residency laws, see JILL
S. LEVENSON, SEX OFFENDER RESIDENCE RESTRICTIONS: A REPORT TO THE FLORIDA LEGISLATURE
(2005), http://www.nacdl.org/sl_docs.nsf/issues/sexoffender_attachments/$FILE/Levinson_FL.pdf.
57
For a discussion of how disenfranchisement may affect those subject to residency laws, see infra
Part II.A.
58
These and other collateral consequences of reentry are discussed in Michael Pinard & Anthony C.
Thompson, Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. REV. L. & SOC. CHANGE 585 (2006).

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laws—dissipate.59 When people are denied the rights of citizens, some may
feel like they have proportionally fewer duties of citizenship.60
Forcing sex offenders to move to remote areas creates additional social
costs by decreasing access to mental health, behavioral treatment, and educational opportunities. These costs are especially troubling because they
threaten to negate the benefits of forcing them to move in the first place. If
certain sex offenders benefit (i.e., become less likely to recidivate) from
treatment61 and educational opportunities, then denying these sex offenders
such opportunities increases the likelihood of reoffense in the future.62 As
sex offenders are forced farther and farther from densely populated areas,
and are required to find housing from an increasingly small number of options that comply with residency restrictions, they are more likely to become homeless and transient.63 Homelessness and transience increase the
risks of psychological and treatment problems,64 and also increase the costs
of monitoring and tracking the sex offenders.
If imposing residency laws incurred no costs and were effective in preventing crime, then it would be rational for states to enact severe, broad
laws and enforce them against every person who may commit a sex crime
in the future.65 However, significant costs do exist, and therefore zero crime
is not socially ideal.66 In other words, having some crime is not undesirable
59

See generally id.
See generally id.
61
Although there are questions as to the efficacy of treatment for all sex offenders, research suggests that many offenders do significantly improve through treatment. See generally W.L. Marshall &
W.D. Pithers, A Reconsideration of Treatment Outcome with Sex Offenders, 21 CRIM. JUST. & BEHAV.
10 (1994).
62
Imagine a person with a past conviction for pedophilia who lives within 3000 feet of a church,
but who is attending daily therapy sessions at a nearby mental health facility. (Pedophilia is a mental
disorder with specific diagnostic criteria. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS § 302.2 (4th ed.) (2000)). A state enacts a law that makes his proximity to the church illegal,
and he is forced to move far from the urban area in which he now resides. The closest place in which he
can live in conformity with the residency law is three hours from the nearest mental health facility that
could treat his mental illness. If preventing him from accessing his mental health services is more likely
to result in reoffense than permitting him to live within 3000 feet of a church, then the residency law is
actually counterproductive and increases the potential harm to the citizens of the state in which it was
passed. This outcome is supported by empirical data. One Colorado study, for example, found that sex
offenders with “positive support systems” in their lives were significantly less likely to reoffend than
those who did not have those support systems. COLORADO SAFETY REPORT, supra note 12, at 31–32.
Moreover, the same study suggested that enforcing residency restrictions might not deter sex offenders
from reoffending. Id. at 4.
63
See MINN. DEP’T OF CORR., 2003 REPORT TO THE LEGISLATURE, LEVEL THREE SEX OFFENDERS:
RESIDENTIAL PLACEMENT ISSUES 10 (2003).
64
See generally Pinard & Thompson, supra note 58.
65
See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 180–
85 (1968) (describing model for finding an optimal, equilibrium level of punishment in which the optimal quantity of prevention and punishment is inversely correlated to the respective costs).
66
Id.
60

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because the cost to society of preventing all crime is greater than the benefit
of being free from all crime. At some point, the marginal cost of preventing
a crime is greater than the marginal benefit of its prevention;67 thus, it is not
worth attempting to prevent its commission.68 The costs are especially high
when a state enacts very broad residency requirements such that virtually
every sex offender living within that state is in violation of the law.69 For
example, Georgia passed a law that prohibits sex offenders from living
within 1000 feet of any area where children might congregate.70 In the resulting Georgia class action,71 twelve sheriffs or sheriff’s deputies from different counties testified that nearly every single sex offender in their county
would be evicted under the new law and that the offenders had little prospect of finding a new residence in their county.72 A mapmaker testifying as
an expert witness confirmed that the same is true about other counties in
Georgia, suggesting that there is nowhere in the entire state for sex offend-

67

The marginal value of a good is “what one more unit of a good is worth to you in terms of other
goods.” DAVID D. FRIEDMAN, PRICE THEORY: AN INTERMEDIATE TEXT 86 (2d ed. 1990). In order to
illustrate how this applies to laws, imagine that the laws are made harsher in discrete increments. For
example, Town A wants to pass a residency law. It could choose to prohibit offenders from living
within 500, 1000, or 1500 feet of a church. Also imagine that, aside from sex offenses, there is only one
other type of crime in Town A—robbery. The marginal value of making a residency law harsher would
be how much it is worth to society to increase the radius of the prohibited area from, say, 1000 to 1500
feet in terms of the number of prevented robberies that are foregone because law enforcement efforts are
directed at sex offenses rather than robberies. In reality the dimensions are much more complex because
there are almost infinite types of laws, crimes, and expenditures. This, combined with the fact that laws
are not really discrete (they vary along many different axes), makes exact calculation of marginal value
nearly impossible. However, exact calculation is neither necessary nor desired; the important point is
that for every law imposed there is a marginal value. Further, this marginal value declines as laws become harsher.
68
For an illustration of this point, consider speed limits. Controlling speeds has costs and benefits.
The benefits are fewer accidents. The costs are that it will take longer for people to get where they want
to go. If the goal was to prevent all driving accidents, and the costs of speed limits were ignored, then
the limit would be low, e.g., 10 mph. If costs were completely ignored, driving would be prohibited all
together. This does not occur, which indicates that the costs of speed limits (delays in getting places) are
weighed against the benefits (fewer accidents) until an equilibrium is reached. That equilibrium determines the speed limit, and it lies somewhere between the maximum (no speed limit at all) and the minimum (no driving at all). The same analysis applies to preventing crime.
69
See, e.g., GA. CODE ANN. § 42-1-15 (2006).
70
Id.
71
Amended Complaint, supra note 10, at 30–31.
72
Transcript of Hearing on Plaintiffs’ Motion for Preliminary Injunction at 23, 37–38, 50, 62, 85,
132, 141, 147–48, 159–60, Whitaker v. Perdue, No. 4:06-CV-140-CC (N.D. Ga. July 11, 2006) (the
number of sex offenders required to move in each county were: Forsyth, 60/60; Cobb, 196/200; Bibb,
222/230; Dekalb, 490/490; Gwinnett, 277/278; Cherokee, 88/95; Houston, 132/136; Newton, 125/127);
see also Mann v. Ga. Dep’t. of Corr., No. S07A1043, 2007 Ga. LEXIS 849, at *5 (Ga. Nov. 21, 2007)
(“[S]ex offenders face the possibility of being repeatedly uprooted and forced to abandon homes in order
to comply with the restrictions [of Georgia’s residency law].”).

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ers to live legally.73 Georgia is a good example of a state in which the costs
of residency laws are so high as to outweigh the benefits.
It is irrational to impose a law where the costs outweigh the benefits;
therefore a law cannot survive even the most deferential rational basis
analysis at the point where this disequilibrium occurs.74 Given that the Supreme Court will likely be called on to assess the constitutionality of residency laws in the near future,75 it is imperative that the true costs and
benefits of residency laws, in their various manifestations in different states,
be collected and made available for such analysis.76
To give another illustration of the importance of measuring costs (in
addition to the Georgia law discussed above), consider the consequences of
a hypothetical residency law that applies to anyone who has ever been convicted of a sex-related offense, rather than only to those who have been
convicted of sex crimes that involved violence or minors.77 These laws
could conceivably include not only rapists and child molesters, but also
teenagers who have had underage sex, consensual sodomists, topless female
sunbathers,78 and sex offenders who have become disabled such that they
pose no risk to society.
If any of those persons covered by the expanded law would have been
more likely to reoffend if permitted to live in a restricted area, the prevention of those potential crimes would be a benefit of the expansion. The
glaring question is, however, whether the expansion of the law would actually have that effect, especially when no logical connection exists between
the forbidden areas and the types of crimes previously committed. For example, living near a daycare center will not induce a woman convicted for
topless sunbathing to commit crimes against children, and living near an

73

Transcript of Hearing on Plaintiffs’ Motion for Preliminary Injunction, supra note 72, at 23, 37–
38, 50, 62, 85, 132, 141, 147–48, 159–60.
74
See, e.g., United States v. Leon, 468 U.S. 897 (1984) (permitting extensions of the exclusionary
rule only when the benefits of additional protection outweigh the social costs of having the evidence).
75
It is possible that the Supreme Court would decide to apply a strict scrutiny rather than rational
basis standard. However, because this Comment demonstrates that even the broadest residency laws
would fail a rational basis test, considering the possibility of a higher standard is unnecessary.
76
Exact numbers may be impossible or impractical to obtain, but the implication is not that courts
should arm themselves with calculators and add costs and benefits as lawyers recite numbers to them.
Rather, decisionmakers, courts and legislators alike, must be aware that their decisions should not be
based on solely the magnitude of societal benefit. It is false to assume that increasing benefits is always
better; legislation that produces great benefits may produce even greater costs. Such unbalanced legislation is irrational. Keeping this in mind will lead to more responsible, fair, realistic, and constitutionally
sound decisions.
77
For an example of such a broadly applicable law, see GA. CODE ANN. § 42-1-15 (2006), which
applies to all sexual offenders as defined in GA. CODE ANN. § 42-1-12.
78
Some cities in California, for example, prohibit women from publicly bearing their chests. The
women convicted for violating those laws are listed on sex offender registries. See Robert Salladay,
Woman Promotes the Right to Go Topless, L.A. TIMES, Jan. 22, 2005, at B1.

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elementary school will not induce a convicted rapist to commit crimes
against children when his original offense did not involve minors.
As residency laws expand to cover more people, they become less
logically related to their original purposes. On the cost side, the expansion
of the laws undermines their effectiveness in helping law enforcement detect the people who actually pose a threat by diluting limited police resources within communities.79
The superfluous hardship imposed on thousands of people who pose no
danger to the general public suggests that the broad laws are severely overinclusive80 and are motivated by a desire to exclude sex offenders generally,
rather than to achieve an overall decrease in sex crimes.81 All of these factors suggest that broad residency laws are irrational and, therefore, would
not withstand even the most deferential substantive due process test. Courts
faced with residency law challenges should conduct similar analyses as
those conducted here, and, if they reach the same result, deem the laws to
be in violation of the substantive due process rights found in the Fifth and
Fourteenth Amendments.82
B. Ex Post Facto
If a court is unwilling to confront a due process claim, a sex offender
who was convicted before the residency law in his or her state was passed
may have an ex post facto claim as well.
1. Background of the Ex Post Facto Clause.—Sex offender residency
laws threaten to impose unconstitutional ex post facto punishment.83 The
Ex Post Facto Clause prohibits retroactive application of criminal laws, including an increase in punishment beyond what was prescribed when the
crime was committed.84 This prohibition is absolute.85 Particularly relevant
to sex offender residency laws is the purpose behind the ex post facto protection: to prevent the legislature from abusing its authority by enacting arbitrary or vindictive legislation retroactively applicable to disfavored
79

Alternatively, if police forces were increased, the extra expenditure would be a cost that would
need to be included in the analysis. See Becker, supra note 65, at 180–85.
80
See discussion infra Part II.A.
81
See discussion infra Part II.B.
82
The Supreme Court has historically been reluctant to strike legislation under the rational basis
standard of the Due Process Clause. However, as this Comment suggests throughout, there are many
reasons why sex offenders make good candidates for this seldom used but indispensable protection. See
supra note 48. Also, the unique rapid proliferation and expansion of residency laws across the country
despite such laws’ inefficacy suggest that the political process, for various reasons, is not equipped to
adequately protect the rights of sex offenders. See supra notes 1 & 48 and accompanying text and infra
note 198 and accompanying text.
83
U.S. CONST. art. I, § 9, cl. 3 & § 10, cl. 1.
84
See Note, Ex Post Facto Limitations on Legislative Power, 73 MICH. L. REV. 1491, 1491–92
(1975).
85
Id. at 1501.

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groups.86 When laws are not criminal or penal in character, they generally
fall outside of the scope of ex post facto protection.87 However, even when
a law is not punitive on its face, it may still be so punitive in effect as to
violate the Ex Post Facto Clause.88 In other words, legislatures cannot circumvent the Ex Post Facto Clause by disguising criminal penalties in civil
form.89
In Smith v. Doe, the Supreme Court reviewed an ex post facto challenge to an Alaska sex offender registration statute.90 Smith established
that, in order to determine whether a statute is punitive and therefore exacts
retroactive punishment, courts are to consider four factors: first, whether the
sanctions imposed by the law have been traditionally regarded as punishment; second, whether the statute promotes the traditional aims of punishment; third, whether it imposes an affirmative disability or restraint; and
fourth, whether it has a rational connection to a non-punitive purpose, and
whether it is excessive in relation to that purpose.91 The next Section applies this framework to residency laws, as challenged by sex offenders who
were convicted before the laws’ enactments.
2. Analysis of an Ex Post Facto Claim.—Some laws restricting the
actions of released sex offenders have already survived ex post facto challenges. For example, the Supreme Court has approved the post-release civil
commitment of certain sex offenders over multiple constitutional challenges, including an ex post facto challenge.92 Additionally, sex offender
registration laws, which require offenders to report their addresses and other
information to authorities upon release, have generally withstood ex post
facto challenges,93 though not without significant dissent in other courts.94
86

See State v. Cook, 700 N.E.2d 570, 580 (1998).
See Kansas v. Hendricks, 521 U.S. 346, 368–69 (1997).
88
Id. at 361 (recognizing that “‘a civil label is not always dispositive’” (quoting Allen v. Illinois,
478 U.S. 364, 369 (1986))); see also Smith v. Doe, 538 U.S. 84, 92 (2003) (“If . . . the intention [of the
legislature] was to enact a regulatory scheme that is civil and nonpunitive, we must further examine
whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the state’s] intention’ to deem it ‘civil.’” (citing Hendricks, 521 U.S. at 361) (internal punctuation omitted)).
89
Harisiades v. Shaughnessy, 342 U.S. 580, 595 (1952) (“[Prior] cases [finding a civil law violated
the Ex Post Facto Clause] proceeded from the view that novel disabilities there imposed upon citizens
were really criminal penalties for which civil form was a disguise.” (citation omitted)).
90
Smith, 538 U.S. 84.
91
Id. at 97.
92
Hendricks, 521 U.S. 346.
93
See, e.g., E.B. v. Verniero, 119 F.3d 1077, 1092–1105 (3d Cir. 1997); W.P. v. Poritz, 931 F.
Supp. 1199, 1203–09 (D.N.J. 1996); Doe v. Div. of Prob. & Corr. Alternatives, 654 N.Y.S.2d 268, 270–
71 (N.Y. Sup. Ct. 1997).
94
See, e.g., Doe v. Gregoire, 960 F. Supp. 1478, 1486–87 (W.D. Wash. 1997) (holding that public
notification provisions are punitive and violate the Ex Post Facto Clause when applied to offenders convicted of crimes which predate the Washington Act); State v. Myers, 923 P.2d 1024, 1043 (Kan. 1996),
cert. denied, 521 U.S. 1118 (1997) (holding that a law permitting unrestricted public access to a sex offender registry violated the constitutional prohibition against ex post facto laws because it made “more
87

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Residency laws have also been challenged on ex post facto grounds.95 Remarkably, all federal courts presented with these challenges to date have
held that the punitive effects of residency laws alleged by the plaintiffs did
not violate the Ex Post Facto Clause.96
Because residency laws are among the most invasive restrictions imposed on sex offenders after they have completed their sentences, it is imperative that their constitutionality be carefully scrutinized. A close
examination of the case law, however, reveals that the courts that have already ruled on ex post facto challenges to residency laws did not apply the
Smith factors neutrally in an attempt to discern which way they cut, but
rather applied these factors in a way that stretched their meanings.97 In determining whether the residency laws’ effects were so harmful as to render
them punitive despite contrary intent,98 the courts have shied away from
recognizing the laws’ punitive effects and have failed to apply the Smith
balancing test objectively.
Under Smith, courts must first consider whether the challenged residency law imposes actions or restrictions upon the plaintiff that are traditional forms of punishment.99 There is a strong argument that forbidding
offenders to live within certain areas is banishment, which is a traditional
form of punishment,100 particularly when vast areas, and sometimes virtually an entire state (e.g., Georgia), are rendered off-limits by the law.101
These residency laws aim to remove offenders from communities and therefore exact a traditional form of punishment against them.102
In opposing a challenge to its law, a state may have one colorable argument, but it is not compelling. The state may argue that its residency law
burdensome the punishment for a crime after its commission”). Note, however, that these cases turned
on the release of information to the public, not just to the authorities.
95
See, e.g., Doe v. Miller, 405 F.3d 700, 718–22 (8th Cir. 2005); Doe v. Baker, No. 1:05-CV-2265TWT, 2006 U.S. Dist. LEXIS 67925, at *7–17 (N.D. Ga. Apr. 5, 2006). The remainder of this Part uses
these two decisions to illustrate the ex post facto claim because they are representative of the types of
inquiries conducted by all federal courts presented with this challenge.
96
See, e.g., Baker, 2006 U.S. Dist. LEXIS 67925, at *18.
97
Perhaps this is because courts are subject to some of the same political pressures as legislators.
See infra Part III.
98
See Smith v. Doe, 538 U.S. 84, 97 (2003).
99
Id. at 97–98.
100
Under the Transportation Act of 1718, Great Britain systematically sentenced criminals to banishment to the Colonies. 1717, 4 Geo. 1, c. XI.
101
See supra note 72 and accompanying text. Although not explicitly forbidden from living within
certain states or communities, sex offenders are banned in effect because the radii around the restricted
areas are so big that they overlap and leave no legal place for the offender to live.
102
For a similar argument made by the plaintiff in Baker, see Doe v. Baker, No. 1:05-CV-2265TWT, 2006 U.S. Dist. LEXIS 67925, at *11 (N.D. Ga. Apr. 5, 2006). In fact, the Baker court itself acknowledged that residency restrictions may be analogous to banishment. It noted that “a more restrictive act that would in effect make it impossible for a registered sex offender to live in the community
would in all likelihood constitute banishment which would result in an ex post facto problem . . . .” Id.
at *12.

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does not effectively banish the sex offender because the law does not prevent him from “accessing . . . restricted areas at any time of the day for any
purpose other than establishing residence.”103 State legislatures are likely
driven by the belief that, once subjected to residency laws, an offender will
not enter the protected area because he or she lives far away from it. Although the prohibition imposed by residency laws is technically different
from forms of banishment that are absolute bars to entry, the spirit of residency laws is identical to that at the heart of banishment laws: they aim to
remove the subjects of the laws from the areas that the laws have been enacted to protect.104 Thus, expansive residency laws exact the traditional
punishment of banishment on sex offenders and therefore satisfy the first
Smith consideration in determining whether laws are impermissibly punitive in violation of ex post facto guarantees.
Smith also advises courts to consider whether residency laws promote
the traditional aims of punishment.105 These laws are intended to deter, incapacitate, and, less blatantly, to provide retribution, all of which are traditional aims of punishment.106 Although they may have other goals, such as
protecting the public, they nonetheless promote those traditional aims of
punishment.107 Courts that have reviewed the constitutionality of these
laws, however, have myopically focused on the public safety goal and have
failed to recognize that residency laws promote punitive goals as well.
The third Smith factor addresses whether the challenged law causes
“affirmative disability or restraint” on a plaintiff.108 Courts thus far have
103

Id. at *11. The Baker court argued that residency laws do not result in banishment because they
only restrict where an offender can live, but do not affect his or her ability to enter any area at any time.
This is an ironic conclusion for a court to make about a residency law because it suggests that the intent
of the law is undermined. It admits that sex offenders still have virtually unrestricted access to these areas from which, ostensibly, the offenders need to be kept away.
104
The Baker court developed a second, less colorable justification for not analogizing residency
laws to banishment. It held that “the fairly recent origin of these types of sex offender statutes suggests
that they do not involve a traditional means of punishment.” Id. The court provided no further insight,
so it is unclear how the newness of a statute relates to whether or not it involves a recognized form of
punishment. However, if the same civil statute had called for sex offenders to be imprisoned in the interest of public safety, regardless of the final determination as to constitutionality, the court would not
have claimed that the statute did not exact a traditional form of punishment simply because it was a new
statute. Effectively, this already takes place under sexually violent predator civil commitment statutes.
These statutes were ultimately deemed not to violate the Ex Post Facto Clause, but the court did not
claim that the sanctions they imposed were not a traditional form of punishment. See Kansas v.
Hendricks, 521 U.S. 346, 370–71 (1997).
105
Smith v. Doe, 538 U.S. 84, 97–99 (2003).
106
Retribution and deterrence were explicitly listed as traditional aims of punishment in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168 (1963), the case from which Smith derived its framework. Smith,
538 U.S. at 97.
107
The Baker court effectively declined to acknowledge this factor. It held that, regardless of
whether the law acted to deter or exact retribution, which are traditional aims of punishment, it was
nonetheless consistent with a regulatory purpose. Baker, 2006 U.S. Dist. LEXIS 67925, at *13.
108
Smith, 538 U.S. at 99–102.

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failed to apply this factor correctly to residency laws. For example, in their
analyses, both the Miller and Baker courts offered logically suspect reasoning. Both held that, because the affirmative restraint imposed on sex offenders by the residency laws is less than that imposed by civil
commitment,109 the threshold for this factor is not met.110 However, the
Baker court itself acknowledged that courts must assess a statute in relation
to its own purpose.111 What is permissible, in ex post facto terms, to protect
the public from the mentally ill, violent sexual predators who qualify for
civil commitment has no bearing on what is permissible to protect the public from other registered sex offenders (who are presumably less of a danger
to society than those the state chooses to commit).112 In other words, the
danger posed by specific offenders should dictate the proper boundaries of
residency laws.113
As both the Miller and the Baker courts acknowledged, residency laws
undeniably affirmatively disable and restrain those individuals subject to
the laws.114 The only legitimate dispute regards the severity of that disability or restraint, and the value of imposing that restraint compared to the
value of the interests served. For certain non-dangerous offenders or extremely broad laws, or both, the affirmative disability or restraint will be
severe enough to meet this factor.
Finally, courts must evaluate whether residency laws rationally and
reasonably relate to a non-punitive purpose. According to the Smith court,
this is the most significant factor, and one that is highly deferential to the
states.115 Narrowly tailored residency laws may survive scrutiny under this
109

In their references to civil commitment, the Miller and Baker courts rely on Kansas v.
Hendricks, in which the Supreme Court held that civil commitment of mentally ill, violent sex offenders
does not constitute ex post facto punishment. See Hendricks, 521 U.S. at 370–71.
110
Specifically, the Miller court held that the affirmative restraint of the residency law did not meet
the threshold for punitiveness because “[t]he residency restriction is certainly less disabling . . . than the
civil commitment scheme at issue in Hendricks, which permitted complete confinement of affected persons.” Doe v. Miller, 405 F.3d 700, 721 (8th Cir. 2005). The Baker court followed suit, holding that
“this disability is nowhere near as significant as the involuntary commitment approved in Hendricks.”
Baker, 2006 U.S. Dist. LEXIS 67925, at *14.
111
Baker, 2006 U.S. Dist. LEXIS 67925, at *16.
112
This is particularly evident if considered anecdotally: the reasoning of the Miller and Baker
courts would justify subjecting two teenagers who engaged in consensual underage sex to the same disability or restraint as a schizophrenic serial rapist who would be eligible for the civil commitment at issue in Hendricks.
113
The Miller court also held that “this factor ultimately points us to the importance of the next inquiry: whether the law is rationally connected to a non-punitive purpose.” Miller, 405 F.3d at 721. Denying the validity of one factor by saying that another factor has merit is nonsensical and undermines the
purpose of having a multiple-prong test such as that established in Smith.
114
See Miller, 405 F.3d at 720–21; Baker, 2006 U.S. Dist. LEXIS 67925, at *13–14.
115
Smith v. Doe, 538 U.S. 84, 93, 97–99 (2003); Baker, 2006 U.S. Dist. LEXIS 67925, at *15. The
Baker court’s analysis of this fundamental step lacks depth and should not be used as a model for future
cases attempting to assess punitiveness. The court found that “[p]rohibiting a sex offender from living
near a school or daycare center is certainly an appropriate step in achieving the ultimate goal of protect-

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test, but it is questionable whether broad residency laws can ever satisfy a
rational basis requirement.116 Moreover, even if these laws were found to be
rational ways of addressing a legitimate public concern, the means used in
broad laws are excessive in relation to that purpose117 for the reasons discussed throughout this Comment.118 Thus, although narrow residency laws
may satisfy this fourth factor, broad laws would fail the test, weighing
heavily in favor of a finding that an ex post facto violation has occurred.
In sum, three out of the four Smith factors strongly counsel towards a
finding that residency laws, particularly the most restrictive ones, are punitive in effect and, when applied to offenders convicted prior to the residency laws’ enactment, violate the Ex Post Facto Clause of the
Constitution. The fourth “rational connection” factor may be satisfied by
narrowly tailored laws, but, as described above,119 some residency laws are
so expansive that they are irrational and excessive in light of their stated
goals. In those cases, the laws are punitive and, therefore, unconstitutional.
To hold otherwise would allow legislatures to circumvent ex post facto protection for sex offenders by unjustly disguising criminal penalties in civil
form.120
C. Self-Incrimination
As discussed above, residency laws threaten both ex post facto and due
process rights. When residency laws are enforced simultaneously with registration laws, the self-incrimination doctrine of the Fifth Amendment provides additional protection for sex offenders against residency laws.
1. Background of Self-Incrimination.—The Fifth Amendment of the
Constitution provides that no person shall “be compelled in any criminal
case to be a witness against himself.”121 The privilege against selfincrimination applies when a person is confronted with a “substantial and
real hazard of subjecting [oneself] to criminal liability.”122 The privilege
applies only to testimony about crimes that were already committed or are
in the process of being committed at the time the testimony is given.123 The
ing children.” Baker, 2006 U.S. Dist. LEXIS 67925, at *16. This holding is problematic. First, the assumption that keeping all sex offenders, regardless of their past criminal activity, away from children
will protect children is not necessarily true; in fact, tying up so many resources in enforcement of expansive laws may actually decrease states’ ability to protect minors. See discussion infra Part I. Second,
the court’s claim neglects to satisfy the “non-excessive” requirement of the rule.
116
See supra Part I.A.3.b.
117
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963).
118
See supra Part I.A.3.b; infra Part II.
119
See supra Part I.A.
120
See Harisiades v. Shaughnessy, 342 U.S. 580, 595 (1952).
121
U.S. CONST. amend. V.
122
United States v. Apfelbaum, 445 U.S. 115, 127 (1980).
123
United States v. Harvey, 869 F.2d 1439, 1446 (11th Cir. 1989).

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next Subsection shows that some residency laws force sex offenders to incriminate themselves in violation of their constitutional rights.
2. Analysis of a Self-Incrimination Claim.—The residency laws in
isolation—independent of their interaction and combined effect with other
laws—would not violate the constitutional right against selfincrimination.124
However, the residency laws implicate a selfincrimination right when they work in concert with sex offender registration
laws. The otherwise constitutional registration laws require a sex offender
to disclose his address; thus if he lives within an area impermissible under
the residency laws, the state essentially requires him to give incriminating
testimony against himself. The registration laws, then, require him to admit
that he is in violation of the residency laws and thus subject him to the
criminal sanction provided by the residency laws for non-compliant residency—a constitutionally impermissible result.
In United States v. Ansani, the Northern District of Illinois was faced
with an analogous situation in the context of business transactions.125 The
court held that a statute requiring a person to report his past business transactions to the government, and the government’s imposition of criminal
penalties for his failure to do so, violated the Fifth Amendment.126 It found
that when a person is forced to report an unlawful transaction, that person is
forced to incriminate himself.127 Similarly, when residency laws make certain addresses off-limits to sex offenders, compelled address registration
will violate the Fifth Amendment rights of offenders living at those offlimits addresses.128
The Supreme Court has clarified that “the protection of the privilege
reaches an accused’s communications, whatever form they might take, and
the compulsion of responses which are also communications, for example,
compliance with a subpoena to produce one’s papers.”129 Thus, the disclosure of one’s address is a protected communication. Mandatory registration
is a “compulsion of responses which are also communications”;130 when
those communications force sex offenders who are violating the residency

124

First, residency laws are civil, not criminal, and therefore do not invoke Fifth Amendment protection on self-incrimination grounds. See Apfelbaum, 445 U.S. at 125 (“[T]he privilege does not extend
to consequences of a noncriminal nature . . . .”). Second, they do not require the sex offender to incriminate himself or herself in any way.
125
138 F. Supp. 451 (N.D. Ill. 1955).
126
Id. at 454.
127
Id.
128
In states like Georgia, the residency law is so broad that virtually every sex offender who continues to live within the state necessarily violates it. See supra note 72 and accompanying text. Every
registered sex offender is therefore forced to incriminate himself (and be subject to criminal prosecution)
in violation of the Fifth Amendment.
129
Schmerber v. California, 384 U.S. 757, 763–64 (1966) (emphasis added).
130
Id. at 764.

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laws to incriminate themselves, the mandatory registration consequently
violates of the Fifth Amendment privilege against self-incrimination.
A defendant-state may rely on Fisher v. United States to argue that requiring offenders to register, even when doing so requires them to incriminate themselves under residency laws, does not violate the privilege against
self-incrimination.131 Fisher presented the question whether the Internal
Revenue Service’s summons to an attorney to produce tax documents with
the potential to incriminate his client violated the client’s Fifth Amendment
privilege.132 The similarity to residency law claims, a defendant may argue,
is that registration requires the offender to produce information that is incriminatory. In Fisher, however, the Court found that attorney compliance
with the summons did not violate the privilege against self-incrimination
because a third party (the attorney), not the client, caused the incrimination.133 Put simply, the client was not incriminating himself; therefore there
could be no self-incrimination claim. In residency law cases, offenders living in prohibited areas are forced to incriminate themselves by registering;
thus Fisher-like defenses are not applicable.
The privilege against self-incrimination can be waived,134 but only if
done voluntarily, knowingly, intelligently, and with a full understanding of
the potential consequences of waiving the right.135 Thus, curing the Fifth
Amendment problem resulting from combined residency and registration
requirements for sex offenders would require either repealing one law or including a provision in the registration law that permits opting out of the registration.136 The second option would result in all rational sex offenders
opting out of the registration program and becoming largely untraceable,
which is undesirable and contrary to goals of public safety.
If a court finds that the combination of the registration and residency
laws in a state violates the privilege against self-incrimination, it may be
that the state cannot simply narrow the scope of the residency law as a cure.
The only constitutional solution in light of the privilege against selfincrimination may be for the state to repeal either the residency or the regis-

131

425 U.S. 391 (1976).
Id. at 393.
133
Id. at 397 (“The taxpayer’s privilege under [the Fifth Amendment] is not violated by enforcement of the summonses . . . because enforcement against a taxpayer’s lawyer would not ‘compel’ the
taxpayer to do anything—and certainly would not compel him to be a ‘witness’ against himself.”). See
also Couch v. United States, 409 U.S. 322, 329 (1973) (failing to find a Fifth Amendment violation because “the ingredient of personal compulsion against the accused [was] lacking”).
134
See Smith v. State, 337 U.S. 137, 150 (1949).
135
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
136
The act of opting out could not later be used by the government as an inference of guilt. See
generally Griffin v. California, 380 U.S. 609, 615 (1965) (“We . . . hold that the Fifth Amendment . . .
forbids . . . comment by the prosecution on the accused’s silence . . . that such silence is evidence of
guilt.”).
132

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tration law137 and seek an alternative and constitutional way to deal with sex
offenders.138 In fact, given the ineffectiveness of residency laws, keeping
the registration law—perhaps combined with risk-assessment and enhanced
monitoring—and repealing the residency law may cure the constitutional
tension and provide a more effective means of sex crime control.
D. Right to Inter/Intrastate Travel
1. Background of Inter/Intrastate Travel.—The Constitution guarantees a right to interstate travel,139 specifically, the right to travel from one
state to any other state for the purpose of engaging in “lawful commerce,
trade, or business without molestation.”140 This right is fundamental and
subject to strict scrutiny.141 Numerous state and federal courts have considered, and disagreed upon, whether the Constitution also guarantees a right
to intrastate travel.142 The Supreme Court has not yet spoken on the issue.
A reasonable reading of the Constitution and an in-depth analysis of case
law, however, suggest that the Supreme Court will inevitably recognize the
intrastate right as a logical extension of the right to interstate travel.143 If an
intrastate travel right does exist, the following analysis demonstrates how
residency laws infringe upon it. If not, the reasoning can still apply to interstate travel restrictions, albeit to a lesser extent simply because interstate
travel is less common.
Numerous circuit courts have already found that a right to intrastate
travel exists.144 For example, in King v. New Rochelle Municipal Housing

137

This Comment argues generally that tailoring broad residency laws would cure most of the constitutional problems inherent in them. However, in light of this potential constitutional challenge, where
the right is inviolable, “minimizing” unconstitutionality is not an option. If this is the grounds upon
which residency laws are found unconstitutional, states would be forced to repeal one or both of the
residency or registration laws.
138
See infra Part II.B.
139
Ward v. Maryland, 79 U.S. (12 Wall.) 418, 430 (1871); see also Attorney Gen. v. Soto-Lopez,
476 U.S. 898, 901–02 (1986); Jones v. Helms, 452 U.S. 412, 417–18 (1981).
140
See Soto-Lopez, 476 U.S. at 901–02 (holding that there is a constitutional freedom to enter and
reside in any state).
141
See In re United States ex rel. Mo. State High Sch. Activities Ass’n, 682 F.2d 147, 151 (8th Cir.
1982).
142
See, e.g., Townes v. City of St. Louis, 949 F. Supp. 731, 734–35 (E.D. Mo. 1996), aff’d per curiam, 112 F.3d 514 (8th Cir. 1997) (not finding a right to intrastate travel and recognizing a split between the First, Second, and Third Circuits (which found such a right) and the Fifth, Sixth, and Seventh
Circuits (which did not find such a right)).
143
See generally Andrew C. Porter, Comment, Towards a Constitutional Analysis of the Right to
Intrastate Travel, 86 NW. U. L. REV. 820 (1992) (providing a thorough analysis of the interstate travel
doctrine and concluding that the right to intrastate travel must also exist).
144
See, e.g., Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990); King v. New Rochelle Mun. Hous.
Auth., 442 F.2d 646 (2d Cir. 1971); Cole v. Hous. Auth., 435 F.2d 807 (1st Cir. 1970). But see Wardwell v. Bd. of Educ., 529 F.2d 625 (6th Cir. 1976) (finding no right to intrastate travel); Ahern v. Mur-

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Authority, the Second Circuit held that “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal
liberty and not to acknowledge a correlative constitutional right to travel
within a state.”145 Similarly, in Lutz v. City of York, the Third Circuit held
that an unenumerated right to intrastate travel emanated from the substantive due process guarantee.146
2. Analysis of an Inter/Intrastate Travel Claim.—In Doe v. Miller,
the Eighth Circuit held that the Constitution does not provide for a right to
“live where you want.”147 In that case, the plaintiffs challenged an Iowa
statute that prohibited sex offenders from living within 2000 feet of areas
where children congregate.148 Recognizing the well-established right to interstate travel, the court found that restricting the ability to reside in a particular place is distinct from restricting the right to interstate travel.149
Because, in general, the residency law prohibited only living in, not entering, certain areas, the court explained, the right to travel was not implicated
by the residency law.150
The Miller decision needs to be reexamined. Restricting where a person may live, especially in an expansive manner that virtually forbids residence in all urban areas,151 inhibits travel significantly. The place where
one resides directly affects how easily, and in what manner, one can travel.
Assume, for example, that a state passed a law prohibiting sex offenders
from living within 1000 feet of a bus stop.152 Bus stops are placed along
roads frequently enough that, if a sex offender were to comply with the
residency law, the only place where he or she could legally live is 400 miles
from the nearest airport, public transportation stop, or car rental agency.
Although perhaps still possible, travel would become significantly harder
for the affected citizen than for others, to the extent that the resulting hardship on his liberty to travel freely would be so great as to render exercise of
that constitutional right infeasible and null.
A state does have the power to restrict rights in ways that are necessary
and proper for the protection of its people.153 Thus a colorable response by
phy, 457 F.2d 363 (7th Cir. 1972) (holding that the Supreme Court’s denial of certiorari “for want of a
substantial federal question” in a similar case implied that there is no right to intrastate travel).
145
442 F.2d at 648.
146
899 F.2d at 256.
147
405 F.3d 700, 714 (8th Cir. 2005).
148
Id. at 715.
149
Id. at 712–13.
150
Id.
151
In some states, literally the entire state is restricted for sex offenders. See Transcript of Hearing
on Plaintiffs’ Motion for Preliminary Injunction, supra note 72, at 23, 37–38, 50, 62, 85, 132, 141, 147–
48, 159–60.
152
See, e.g., GA. CODE ANN. § 42-1-15(a) (2006).
153
Lochner v. New York, 198 U.S. 45, 53 (1905) (“There are, however, certain powers, existing in
the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact descrip-

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a state to an inter- or intrastate travel claim brought by a sex offender would
be to recognize that the residency law restricts travel, but nonetheless justify
the restriction in the name of police power. Although denying that a residency law restricts the right to travel simply because it does not prohibit the
right to travel is unpersuasive, a state may still argue that restricting travel
through a residency law is constitutionally permissible in the name of public safety. However, a determination by the legislature “as to what is a
proper exercise of its police powers is not final or conclusive, but is subject
to the supervision of the courts.”154 In the case of a broad residency law that
severely restricts the ability to travel, the state’s interest in public safety—
especially in light of evidence that residency laws do not prevent sex
crimes—is not great enough to justify infringing upon the right to travel.
These constitutional analyses suggest that residency laws, especially in
their broadest forms, are unconstitutional on numerous grounds. The next
Part investigates what effects invalidating these laws would have on public
safety and determines that, not only are they unconstitutional, but they are
also ineffective. This determination provides additional justification for
their modification or removal.
II. POLICY CONCERNS AND CONSIDERATIONS
Public fear and outrage dominate the politics of residency law decisionmaking.155 Because of these forces, and the laws’ relative recency, governments and courts have not yet thoroughly analyzed the effects of
residency laws. States have moved residency legislation forward without
the statistical foundation that is commonplace in the lawmaking process for
less inflammatory issues.156 Some communities, however, sensibly have
chosen to consult statistical information before enacting residency laws.157
These communities have rejected proposed residency legislation based on
the results of such statistical studies.158 For example, one town in Kentucky,
which had been considering a residency law, consulted studies conducted in

tion and limitation of which have not been attempted by the courts. Those powers, broadly stated and
without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be
imposed by the governing power of the State in the exercise of those powers, and with such conditions
the Fourteenth Amendment was not designed to interfere.”), overruled on other grounds by Ferguson v.
Skrupa, 372 U.S. 726, 729–31 (1963).
154
Lawton v. Steele, 152 U.S. 133, 137 (1894).
155
A recent Gallup poll found that 66% of people surveyed were “very concerned” about sex offenders, whereas only 52% were as concerned about violent crime, and 32% about terrorism. The
Greatest Fear: The JonBenet Ramsey Case, ECONOMIST, Aug. 26, 2006, at 25.
156
For instance, in some situations, cost-benefit analyses must be done in order to receive funding
or approval. See Unfunded Mandates Reform Act of 1995, 2 U.S.C. § 1501 (2000).
157
NIETO & JUNG, supra note 3, at 18.
158
Id. at 25.

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Minnesota and Colorado, where such restrictions were already in place.159
Upon finding that the laws in those two states led to an increase in the number of sex offenders who failed to register, the Kentucky town decided not
to enact the law.160 A similar sentiment was expressed in a newspaper article from Denver, Colorado, describing the city’s reasoning for rejecting a
residency law:
We do not become a safer society by adopting a one-size-fits-all strategy toward sex offenders. We vary the treatment, the levels of supervision and the
length of sentences because we recognize that different types of sex offenses
and different psychological profiles of offenders justify different levels of supervision, treatment or incarceration.161

This type of critical examination and refusal to employ an ineffective response, despite popular pressure to respond to social fear, should serve as a
model for communities faced with residency law proposals in the future.
Once statistics relating to sex offenses are gathered and trends identified, economic and social models can assist in understanding the interplay
between them.162 In turn, a more realistic look at the efficacy of residency
laws may promote the development of alternative, more appropriate approaches to the problem of sex offender recidivism. Examples of broad
residency laws are discussed below to demonstrate the potential manifestations of non-rational laws and their consequences.
A. As Applied: A Need for Fairness and Line-Drawing
Examples abound of excessive and counterproductive applications of
broad state residency laws.163 Such laws impose enormous burdens upon
people who pose little to no danger to society.164 These laws have been applied to aged, immobile nursing home patients who were convicted of
crimes decades earlier.165 They have even been applied to the mother of a
fifteen-year-old daughter after the daughter, unbeknownst to the mother,
had sex in the mother’s house with her like-aged boyfriend.166 On a caseby-case level, these applications are frightening, unfair, and unjustifiable.
Their wide breadth provides insufficient notice to people who never could
have contemplated such measures being taken against them.167 These con159

Id.
Id.
161
Id. (quoting Larry Pozner, Colorado Voices, Denver Restrictions Unfair to Sex Offenders,
DENVER POST, Feb. 12, 2006).
162
See supra Part I.A.3.
163
See, e.g., GA. CODE ANN. § 42-1-15 (2006); IOWA CODE §§ 692A.1, 692A.2 (West 2003 &
Supp. 2007); OHIO REV. CODE ANN. § 2950.031 (West 2006).
164
See Amended Complaint, supra note 10, at 2.
165
Id. at 25–26.
166
Id. at 10.
167
See discussion of due process claims supra Part I.A.
160

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sequences beg an examination of the fairness of passing such overinclusive
laws.
Leaving aside these anecdotal instances of unfairness, the possibility of
expanding the use of residency laws into other contexts raises line-drawing
concerns. Most significantly, given the unrestrained expansion of sex offender laws in recent years, there is a danger that any precedent set in upholding them could be used to justify the creation of similar laws for other
crimes and disfavored behavior. In fact, proposals to enact residency laws
for non-sexual offenses may be looming in the legal horizon.168 If federal
courts continue to approve residency laws uncritically, then the language
within those decisions could be used to defend the expansion of residency
laws to other offenses, like murder.169
One rationale behind residency laws is to distance sex offenders from
their potential victims in the name of public safety. Without any modification, this same rationale opens the door to the enactment of laws subjecting
all people convicted of violent crimes to residency restrictions. The only
difference is one of degree, in that far more people commit non-sex-related
violent crimes than sex-related ones.170 Thus, the danger of extending residency laws to cover millions of people becomes imminent. This highlights
the urgent need for a Supreme Court decision regarding the constitutionality
of residency laws. It also provides further incentive to investigate alternative approaches to minimizing recidivism of sex offenders.

168

Some states have already begun to expand what were traditionally sex offender restrictions to
include other crimes. For example, Illinois has enacted the Child Murderer and Violent Offender
Against Youth Registration Act (Child Murder Act), which requires persons previously convicted of
crimes against youth to make their addresses and personal data publicly available. 730 ILL. COMP.
STAT. 154/1–154/10 (2006). Illinois also has a Methamphetamine Manufacturer Registry Act, 730 ILL.
COMP. STAT. 180/1–180/10 (2006), and an Arsonist Registration Act, 730 ILL. COMP. STAT. 148/1–
148/10 (2006).
169
For example, in Doe v. Miller, the court discussed the plaintiff’s procedural due process claim
against a residency law. 405 F.3d. 700, 708 (8th Cir. 2005). When the plaintiff claimed that the statute
was impermissibly vague because, in certain circumstances, sex offenders could be prosecuted despite
their best efforts to comply, the court rejected the claim because “[a] sex offender subject to prosecution
under those circumstances may seek to establish a violation of due process through a challenge to enforcement of the statute as applied to [his] specific case.” Id. at 708. However, only a few sentences
later in the opinion, the plaintiff claimed that the lack of individualized hearings violated procedural due
process. Id. at 709. The court responded that “the absence of an individualized hearing in connection
with a statute that offers no exemptions does not offend principles of procedural due process.” Id.
Thus, the court acknowledged that the law may have been unconstitutional as applied to certain offenders, yet it upheld the statute even though it offered no opportunity for those individuals to avoid prosecution. This type of tenuous reasoning and broad language does not provide enough protection against
blanket approval of residency law challenges in other courts.
170
CRIMINAL OFFENDER STATISTICS, supra note 1.

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B. Decrying “NIMBY” and a Look at Alternative Approaches171
Relocating sex offenders within a state does not protect society from
sex crimes. Communities without children or other vulnerable individuals
simply do not exist, and any place to which sex offenders are moved will
have “potential victims.” As a result, residency laws are more like a game
of hot potato than a sustainable approach to decreasing sex crimes. The
laws are a legislative form of “not in my backyard” that shifts the problem,
but does not eradicate it.172 As one Florida city council member said, “[i]f
we can get these people out of our community, it’s not that these crimes
won’t happen . . . . It’s just that they won’t happen in my community.”173
Alternative ways to address recidivism by sex offenders are more appropriate. The alternatives may be qualitatively different—for example,
new sentencing schemes or rehabilitation—or quantitatively different—for
example, more focused applications of residency restrictions. The development of residency laws has exposed some important information that aids
in assessing these alternatives: first, our society demands harsh treatment of
sex offenders, and second, as a group, sex offenders do not pose the threat
of reoffense that their reputation suggests.174
1. Punitive and Judicial Alternatives.—One solution that responds to
both of these points is to increase the criminal punishment for the worst sex
offenses by, for example, requiring longer prison terms. This solution addresses the problem of public safety and retribution in a more straightforward and, therefore, precise way. It also decreases the rate of release of sex
offenders back into the community, which should mute the NIMBY reflex
and lessen the force of public fears caused by the perception that sex offenders are on the loose. Although not the focus of this Comment, increasing criminal punishments is often ineffective in reducing recidivism, and
states should only do so after prudent and critical deliberation.175 However,
this alternative method of addressing the problem provides a useful contrast
against which to analyze residency laws, and thus warrants a brief discussion.

171

Someone motivated by “NIMBY” rationale is defined as “someone who objects to siting something in their own neighborhood but does not object to it being sited elsewhere; an acronym for not in
my backyard.” Dictionary.com, http://dictionary.reference.com/browse/NIMBY (last visited Oct. 6,
2007).
172
“Happy will it be if our choice should be directed by a judicious estimate of our true interests,
unperplexed and unbiased by considerations not connected with the public good.” THE FEDERALIST NO.
1, at 27 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
173
John-Thor Dahlburg, Limits on Sex Offenders Spread in Florida, L.A. TIMES, July 5, 2005, at
A13 (quoting Christopher J. Shipley).
174
See Teepen, supra note 1; see also CRIMINAL OFFENDER STATISTICS, supra note 1.
175
See, e.g., John M. Darley, On the Unlikely Prospect of Reducing Crime Rates by Increasing the
Severity of Prison Sentences, 13 J.L. & POL’Y 189 (2005).

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Society’s conception of the egregiousness of a crime should be one determinant of the severity of penalties for that crime.176 The current illogical
and somewhat desperate attempts to purge sex offenders from our communities might be the result of a disparity between current criminal penalties
for sex crimes and those that the public would like to see.177 If a public desire for greater punishment is the real impetus behind the residency laws,
then the solution does not appropriately address the problem. Cloaking the
punitive nature of residency laws in formalistic interpretations of the terms
“civil” and “public safety” may succeed in upholding the laws in court, but
it will not result in fewer sex crimes.178 Because the focus of this Comment
is curing the constitutional problems that sex offender residency laws present, replacing them with increased criminal penalties is one possible solution. However, whether that is a wise policy decision is unclear and, many
say, doubtful.179
Another suggested alternative is the creation of specialized treatment
courts for sex offenders.180 These courts would introduce an alternative to
the existing dichotomous choices of holding sex offenders in prison or releasing them into the community.181 Although there are currently no reentry
courts for sex offenders, the reentry model has been used with success for
other types of offenders.182 Drug courts are one common example of the re176

This theory is often referred to as “retributivist” or “just deserts.” See, e.g., Paul H. Robinson &
John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 454 (1997) (discussing the role of criminal laws in fulfilling deontological moral mandates as well as utilitarian needs).
177
“[E]very deviation from a desert distribution can incrementally undercut the criminal law’s
moral credibility, which in turn can undercut its ability to help in the creation and internalization of
norms . . . .” Id. at 478. This discrepancy and resulting desire to impose punishment outside of the penal system is comparable to the theoretical underpinnings of vigilante, or private, justice. See William
M. Landes & Richard A. Posner, The Private Enforcement of Law, 4. J. LEGAL STUD. 1 (1975) (using an
economic model to explain the existence of extra-governmental systems of punishment).
178
In Kansas v. Hendricks, the Supreme Court considered the constitutionality of a sex offender
civil commitment law. 521 U.S. 346 (1997). In its determination of whether the statute was civil or punitive in nature, it held that “[w]here the State has ‘disavowed any punitive intent’ [and provided other
procedural safeguards], we cannot say that it acted with punitive intent. . . . Our conclusion that the Act
is nonpunitive thus removes an essential prerequisite for both Hendricks’ double jeopardy and ex post
facto claims.” Id. at 368–69 (citation omitted). Disavowing punitive intent is not sufficient when the
state’s actions speak louder than its words.
179
See, e.g., Darley, supra note 175; Jeffrey Fagan et al., Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods, 30 FORDHAM URB. L.J. 1551, 1589–97 (2003).
180
See John Q. La Fond & Bruce J. Winick, Sex Offender Reentry Courts: A Proposal for Managing the Risk of Returning Sex Offenders to the Community, 34 SETON HALL L. REV. 1173 (2004).
181
Id. at 1187.
182
For more information on other types of reentry courts, see OFFICE OF JUSTICE PROGRAMS, U.S.
DEP’T OF JUSTICE, REENTRY COURTS: MANAGING THE TRANSITION FROM PRISON TO COMMUNITY
(1999), available at http://www.ncjrs.gov/pdffiles1/ojp/sl000389.pdf; BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE, STRATEGIES FOR COURT COLLABORATION WITH SERVICE COMMUNITIES
(2002), available at http://www.ncjrs.gov/pdffiles1/bja/196945.pdf; Arthur J. Lurigio et al., Therapeutic
Jurisprudence in Action: Specialized Courts for the Mentally Ill, 84 JUDICATURE 184 (2001).

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entry model.183 The courts take a “collaborative, interdisciplinary approach
to rehabilitation and problem solving in which the judge plays a leading
role” by creating treatment plans and monitoring compliance.184 This model
should be implemented immediately as an attempt to remedy the constitutional problems of the current residency laws.
2. Risk-Assessment.—Another alternative to broad residency laws is
to narrow the laws through comprehensive risk-assessment coupled with a
more focused application of the laws.185 Sex offenders, as a group, are not
homogenous, and researchers have isolated certain factors associated with
recidivism that can be used to distinguish offenders.186 For instance, studies
have identified the most frequent recidivists as people who molest young
boys or rape adult women.187 These findings can be used to predict the likelihood that specific offenders will commit other sexual offenses.188 Thus,
sex offenders could be classified by their potential for dangerousness and
subjected to appropriately restrictive residency laws. The most restrictive
laws could then be enforced against the most dangerous offenders; this
would free up more resources to provide a more comprehensive prevention
plan that would include monitoring, tracking, treatment, and enforcement.
Some states require that the state correctional commissioner assign risk
designations to all sex offenders.189 The designations are based on factors
such as the offender’s age, relationship to the victim, prior history and prior
offenses, access to treatment, and level of social support.190 The nature of
the crime and characteristics of the victim (e.g., age) are also considered.191
Classifying sex offenders according to their probability of reoffense renders
residency laws more narrowly tailored to the goal of preventing reoffense.
If offenders are ranked into three tiers, a lower tier might include teenagers
183

See generally JAMES L. NOLAN JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT
MOVEMENT (2001).
184
La Fond & Winick, supra note 180, at 1193.
185
See NIETO & JUNG, supra note 3, at 27, for a detailed explanation of the various approaches to
and results of comprehensive risk assessment of the sex offender population.
186
R. Karl Hanson, What Do We Know About Sex Offender Risk Assessment?, 4 PSYCHOL. PUB.
POL’Y & L. 50, 67–68 (1998) (noting the growing use of actuarial scales to evaluate sex offenders’ risk
of recidivism).
187
See, e.g., CRIMINAL OFFENDER STATISTICS, supra note 1 (indicating that sex offenders are rearrested at a lower rate than other offenders, with rearrest rates of 43% and 68%, respectively); Robert A.
Prentky et al., Recidivism Rates Among Child Molesters and Rapists: A Methodological Analysis, 21
LAW & HUM. BEHAV. 635, 650–54 (1997) (noting heightened rates of recidivism over time for child
molesters and rapists); David Van Biema, A Cheap Shot at Pedophilia? California Mandates Chemical
Castration for Repeat Child Molesters, TIME, Sept. 9, 1996, at 60 (noting that experts believe child molesters have recidivism rate as high as 65%).
188
Hanson, supra note 186, at 67–68.
189
See, e.g., MINN. STAT. ANN. § 244.052 (West 2003).
190
NIETO & JUNG, supra note 3, at 27.
191
Id.

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who were convicted for having consensual underage sex, and the highest
tier would be reserved for repeat violent offenders.192
This classification system has many benefits. First, sex offenders who
are unlikely to reoffend would not suffer unnecessary embarrassment or
hardship. Second, police could more effectively focus their limited resources on monitoring high-risk offenders thoroughly, rather than diluting
those resources across a broad and heterogeneous population. Third, the
overall costs, discussed above,193 would be lower because there would be far
fewer offenders subject to monitoring and a more streamlined monitoring
process for those who are.
The next Part dissects the political and criminal processes leading up to
residency law enactment and enforcement. Given the disconnect between
political pressure to amplify residency laws and the ineffectiveness and unconstitutionality of doing so, the legislative branch may be unable to protect
the threatened rights without the mandates of federal courts.
III. STAKEHOLDER INTERESTS AND POLITICAL MOTIVATIONS
Sex offenders are only one group of many who hold a stake in the creation of residency laws. Apart from the offenders and their (potential) victims, the existence of these laws—and especially, the broadness of their
reach—significantly affects politicians, police officers, and prosecutors.194
While the constitutionality of these laws is unsettled,195 these anti-crime
groups likely will favor a clear limit from the Supreme Court that allows
them to enforce and prosecute legislation in a way that feasibly and realistically manages the problem. Given that each of these anti-crime groups
tends to be on the prosecuting side of the law, intuition suggests that they
will favor the broadest laws possible because such laws provide for harsh
punishment to offenders. However, if free from political and specialinterest pressure, most anti-crime groups would actually prefer that the laws
be narrowed. A Seattle police detective, for example, once stated that residency laws chase sex offenders “from one jurisdiction to another. [They
create] a lot more homeless sex offenders, which makes it a lot harder for us
to keep track of them. [The laws] do not work, in fact, [they] exacerbate[]
the problem.”196 An Iowa sheriff described the difficulty of keeping track of
sex offenders who are forced to move, saying, “[w]e went from knowing
where about 90[%] of them were. . . . [to] know[ing] where 50 to 55[%] of

192

See, e.g., MINN. STAT. ANN. § 244.052.
See supra Part I.A.
194
These various groups will be collectively referred to as “anti-crime groups” in this Comment.
195
See discussion of recent constitutional challenges supra notes 6–7 and accompanying text.
196
NIETO & JUNG, supra note 3, at 24 (citing Sex Offender Task Force Wants Tougher Registration
Laws, CHANNEL 4 KOMO STAFF & NEWS SERVICE, Dec. 27, 2005, http://www.komotv.com).
193

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them are now . . . [T]he law created an atmosphere [where] these individuals can’t find a place to live.”197
If the Supreme Court were to determine the point past which residency
laws become unconstitutional, anti-crime groups could no longer be held
responsible in the eyes of the public for failing to make the laws increasingly harsh, thus allowing them to engage in more rational prevention of
sex crimes. In other words, they would have a “hands tied” response that
could protect them from experiencing political backlash for not bowing to
what has become irrational public passion.
The public would benefit from this protection against its own passions
as well.198 Indeed, protection against irrational passions is one of the most
valuable roles that our Constitution can play.199 A clear, unambiguous Supreme Court decision would remove the political incentive to race to the
bottom;200 that is, it would eliminate the need for lawmakers to support irrationally harsh legislation against sex offenders in order to curry favor with
voters.201 Legislators could then focus on improving the efficacy of the
laws within constitutional boundaries, and law enforcement officers could
focus on the people who are legitimate threats to society rather than those
who pose no danger.
CONCLUSION
This Comment illustrates the difficult social tension between the need
to secure rights for people who society despises and the need to protect society from those despised members’ potentially dangerous behavior.

197

Id. (citing Sea Stachura, The Consequences of Zoning Sex Offenders, MINN. PUB. RADIO, Apr.
25, 2006, http://www.minnesota.publicradio.org) (some alterations in original).
198
See THE FEDERALIST NO. 49, at 314 (James Madison) (Clinton Rossiter ed., 2003). Regulating
the passions of the people improves, not hinders, their ability to govern themselves. See id. (“The passions, . . . not the reason, of the public would sit in judgment. But it is the reason, alone, of the public,
that ought to control and regulate the government. The passions ought to be controlled and regulated by
the government.”).
199
James Madison warned of “factions,” which he defined as “a number of citizens . . . united and
actuated by some common impulse of passion . . . adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” THE FEDERALIST NO. 10, at 72 (James Madison)
(Clinton Rossiter ed., 2003). The Federalists recognized that “[t]o secure the public good and private
rights against the danger of such a faction . . . is then the great object [of the Constitution].” Id. at 75.
200
The concept of racing to the bottom was first introduced into legal thought by Justice Brandeis
in Ligget Co. v. Lee, where he described the phenomenon of states competing for corporations by liberalizing their restrictive laws. 288 U.S. 517, 558–59 (1933). Here it refers to legislators competing for
votes by promising to be the harshest on sex offenders.
201
See, e.g., Michelle P. Jerusalem, A Framework for Post-Sentence Sex Offender Legislation: Perspectives on Prevention, Registration, and the Public’s “Right” to Know, 48 VAND. L. REV. 219, 246
(1995) (“People want to know if a released sex offender is moving into their community; they have let
legislators know that this is what they want with loud voices. Legislators, in turn, give them what they
want. However, in doing so, an analysis of appropriate policy goals seems to have been forgotten.”).

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The U.S. Department of Justice estimates that there were 92,455 forcible rapes in the United States in 2006.202 One of every seven victims of reported sexual assault is under the age of six.203 These large numbers
indicate equally large problems. In juxtaposition, the same report estimates
that only seven percent of sexual assaults on children were committed by
strangers to the victim.204 Residency laws, even in their most effective and
reasonable manifestations, only target a miniscule segment of the sex offender population. The effect of residency laws on overall crime, including
non-sexual offenses, is even smaller. Extending residency laws to apply to
offenders who do not commit the most heinous sex crimes undermines the
efficacy of the laws against those offenders who do. There are 614,006 registered sex offenders in the United States,205 and, as the classification broadens, that number will only grow. Exaggerating the necessary bounds of the
laws beyond any reasonable safety rationale wastes resources that could be
better used in a more targeted manner. States need to differentiate between
offender risk levels. They should also tailor laws with respect to the type of
places restricted and the distances that residences must be located away
from those places. Outrageously broad laws provide nothing but a false
sense of safety.
Residency laws that are too broad defeat their own purpose of protecting the public. They waste police resources and marginalize individuals
convicted of even minor offenses, subjecting them to laws aimed at preventing them from committing acts that they are unlikely to commit. Residency laws also become prohibitively costly.206 Thus, at a certain point,
residency laws are irrational and violate numerous constitutional guarantees. These constitutional questions and challenges are multiplying
throughout district and circuit courts,207 and the Supreme Court will likely
affirm or dispel the predictions asserted here within a relatively short time.
When registration laws are already in place, passing a residency law is
repugnant to the right against self-incrimination.208 If courts find that this
tension cannot be remedied by narrowing the residency laws because of the
202

See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE, CRIME IN THE UNITED
STATES, 2006: FORCIBLE RAPE 1 (Sept. 2007), available at http://www.fbi.gov/ucr/cius2006/documents/
forciblerapemain.pdf.
203
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SEXUAL ASSAULT OF YOUNG
CHILDREN AS REPORTED TO LAW ENFORCEMENT: VICTIM, INCIDENT, AND OFFENDER
CHARACTERISTICS 2 & t.1 (July 2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/saycrle.pdf.
204
Id. at 10 & t.6.
205
Parents for Megan’s Law: Nationwide Registries & Links, http://www.parentsformeganslaw.
com/html/links.lasso (last visited Oct. 6, 2007).
206
See supra Part I.A.3.b.
207
See, e.g., Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (holding that a residency law does not violate the Ex Post Facto Clause of the Constitution); see also Doe v. Baker, No. 1:05-CV-2265 TWT,
2006 U.S. Dist. LEXIS 67925 (N.D. Ga. Apr. 5, 2006); Coston v. Petro, 398 F. Supp. 2d 878 (S.D. Ohio
2005).
208
See U.S. CONST. amend. V (no person can be “compelled . . . to be a witness against himself”).

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inviolability of the privilege,209 a good solution would be to repeal the residency laws and enhance the registration laws through monitoring and riskassessment.
Although ex post facto challenges brought to date have failed in lower
federal courts, a critical analysis by the Supreme Court will produce a different result. Under the Smith factors used to assess punitiveness,210 it
seems that broad residency laws that inflict significant hardship on sex offenders amount to a second and unconstitutional criminal punishment despite their facially civil nature.211
Broad residency laws also violate the right to inter- and intrastate
travel.212 Although no right to reside wherever one chooses has ever been
declared, restrictions on where a person may live unquestionably affect that
person’s ability to travel. Because the right to travel is subject to strict scrutiny,213 residency laws that oppress that right must be narrowly tailored to
achieve their intended goals.
Finally, broad residency laws violate both procedural and substantive
due process rights. Current residency laws do not have procedural components that put sex offenders on notice or afford them an opportunity to be
heard. Further, the laws do not pass even the most deferential substantive
due process test because, as discussed throughout this Comment, the broad
imposition of the laws is irrational in a number of ways.214
Although analysis of relevant constitutional precedent is important to
predictions of how the Supreme Court will eventually decide, the central
premise of this Comment should not be lost. States must protect all citizens’ rights to the greatest extent possible, especially—not except—the
rights of minorities or those otherwise marginalized by society. Placing
limits on laws that aim to punish sex offenders in no way condones sex offenses or ignores the problem. Rather, it imparts constitutionality, and
thereby rationality, to an issue that has become a political and media runaway.
The hope is that the Supreme Court will recognize that, at some point,
residency laws can become so expansive as to offend the Constitution in
numerous ways. A precise and critical decision is particularly necessary
because residency laws express moral, value-laden beliefs on sensitive, personal issues that are difficult for the political system to approach objec209

Many of the other rights discussed in this Comment, for example, the right to due process, are
violable in that they may be impinged if the state has sufficient interest in doing so. For those rights,
narrowing the laws is a legitimate method of curing their unconstitutionality.
210
See Smith v. Doe, 538 U.S. 84 (2003).
211
See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997) (describing how some civil statutes may be
so punitive as to render them equivalent to criminal punishment); see also Smith, 538 U.S. 84.
212
See Attorney Gen. v. Soto-Lopez, 476 U.S. 898, 901–02 (1986) (holding that there is a constitutional freedom to enter and reside in any state).
213
In re United States ex rel. Mo. State High Sch. Activities Ass’n, 682 F.2d 147 (8th Cir. 1982).
214
See supra Part I.A.

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tively. This is not an argument for circumventing the democratic process; it
is an argument for requiring states to adhere to the Constitution despite motivations to do otherwise.

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