Residency Restrictions for Sex Offenders

Residency restriction laws are a decades-old attempt to curb the actions of sex offenders. Alabama passed the first residency restriction law in 1996 as part of the state's Community Notification Act. It prohibited offenders from living within 1,000 feet of a school.

This article looks at residency restrictions for sex offenders, including the Iowa law that shaped the current state of sex offender punishment and sentencing options.

History of the Iowa Residency Restriction Law

Critics and supporters of residency restriction laws have watched Iowa's law with interest since its passage in 2002. Iowa's statute made it an aggravated misdemeanor for a sex offender convicted of an aggravated offense against a minor to reside within 2,000 feet of a school or child care facility.

The law did not apply if the person established residence before the law took effect, or before there was a school or daycare, or if the offender is a minor or a ward, or resides in a healthcare facility, or is serving a sentence or civil commitment.

Residency Restrictions Challenged in Federal Court

The Iowa law was almost immediately challenged in federal district court by three named sex offenders who claimed the law was unconstitutional on its face. The case was certified as a class action on behalf of other sex offenders to whom the law would apply.

At trial, the plaintiffs presented evidence that in many cities, the law would effectively limit sex offenders to small areas of residency. In small towns, a single school or child care center could mean that the entire town was off-limits. Expert witnesses on both sides testified to their beliefs in the expected effects of the law.

The district court ruled that the law was unconstitutional on several grounds:

• The law was an ex post facto law; that is, it would apply to people who had been convicted before the law went into effect.
• The law violated the plaintiffs' right to avoid self-incrimination because registrants would be required to report their addresses, even if the addresses were not in compliance with the law.
• The law violated the plaintiffs' due process rights.
• The law infringed on fundamental rights to travel.
• The law infringed on how the plaintiff could conduct their family affairs.
• Finally, the law was not tailored narrowly enough to serve a compelling state interest.

Reversal of Federal Court Ruling

In a ruling dated April 29, 2005, three judges from the U.S. Eighth Circuit Court of Appeals unanimously voted to reverse the district court's decision. The appellate court ruled that there exists no constitutional right to "live where you want."

• The Circuit court ruled that the right to avoid self-incrimination was premature, as no criminal prosecution for a violation of the residency rule had yet taken place.
• It found the constitutional right to travel is largely a right to "interstate" travel, which was found not to be impacted by the Iowa law because it did not create barriers to crossing state lines.
• The Circuit court dispensed with the argument regarding family affairs because the statute did not limit who could live in the home with the sex offender.
• The ex post facto issue had been previously addressed by the U.S. Supreme Court in a 2003 decision in Smith v. Doe, a challenge to a similar law in Alaska. Two of the Eighth Circuit court judges agreed that the law didn't amount to an ex post facto punishment.
• What about due process? The Eighth Circuit ruled that the plaintiffs were not deprived of procedural due process because the law was not unconstitutionally vague. Most importantly, the court ruled that the plaintiffs were not entitled to individualized hearings or any opportunity to be heard with regard to whether the restrictions should apply to each of them as individuals

Therefore, the state only needed to show that the statute rationally advanced some legitimate governmental purpose.

Plaintiffs acknowledged that the law was enacted to promote the safety of children and that this was a legitimate legislative goal. Plaintiffs argued, however, that the law was irrational because there was no scientific evidence to support the conclusion that residency restrictions would enhance the safety of children.

The Circuit court rejected this argument, noting that state policymakers are entitled to employ "common sense" when deciding that "limiting the frequency of contact between sex offenders and areas where children are located is likely to reduce the risk of an offense."

The judges ruled that plaintiffs didn't establish by "clearest proof" that the law's punitive effect would override the legislature's "legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety" of the state's citizens.

The Iowa Statute After the Eighth Circuit Court Decision

The U.S. Supreme Court refused to review the case after the Eighth Circuit ruling, leaving it intact as the final decision on this issue. In Des Moines, Iowa's largest city, officials added parks, libraries, swimming pools, and recreational trails to the list of protected buffer zones.

By 2021, more than 30 states had enacted residency restrictions. Moreover, some local governments have implemented their own residency restrictions. These laws have generally been found constitutional when challenged in court.

Some scattered court decisions have struck down laws more restrictive than the Iowa law. Perhaps the best example of this is Hoffman v. Village of Pleasant Prairie. In 2017, a federal court found that the community's residency restrictions excluded sex offenders from over 90% of the neighborhoods in that municipality.

Another successful constitutional challenge found that a municipal ordinance that prohibited sex offenders from entering public libraries was unconstitutional because it violated the First Amendment rights of those affected.

Despite Research Findings, Residency Restrictions Continue

While sex offender residency restrictions laws are currently legal, researchers at the Association for the Treatment of Sexual Abusers concluded that such laws provide a false sense of security for community members. Furthermore, they may be counterproductive to reducing recidivism rates.

By preventing sex offenders from living near family and friends, and social venues and workplaces, they are deprived of support and employment that would allow them to successfully reintegrate into the community.

Learn More About Residency Restrictions for Sex Offenders from a Lawyer

What are the residency restrictions for people on the sex offender registry in your community? Have restrictions made it impossible to find housing and employment? Talk with a criminal defense attorney in your area.

Related Resources

• The American Bar Association Journal article, "Courts are reconsidering residency restrictions for sex offenders"
• Ira and Tara Ellman's constitutional commentary for the University of Minnesota Law School, "'Frightening and High': The Supreme Court's Crucial Mistake About Sex Crime Statistics"
• Ryan Hawkin's article in the University of New Hampshire Law Review, "Human Zoning: The Constitutionality of Sex-Offender Residency Restrictions as Applied to Post-Conviction Offenders Restrictions as Applied to Post-Conviction Offender"