Do Residency Bans Drive Sex Offenders Underground?

by Steven Yoder

Early last year, Los Angeles set aside a sliver of land in its Harbor Gateway neighborhood for the city’s newest and smallest park: two jungle gyms on a fifth of an acre.

The project was more than just an effort to increase the city’s green space. City Council members made clear that one of the park’s principal reasons for existence was to force 33 people on the California sex offender registry who were living in a nearby apartment building to move out. State law bars those on its registry from living within 2,000 feet of a park or school.

“We came together, working with the police department, to problem-solve, to send a message that Harbor Gateway cannot be dumped upon with a high number of registered sex offenders,” councilman Joe Buscaino said at the park’s opening.

But the state ban itself already clusters registrants into a limited number of areas, according to a September 2011 report by the California Sex Offender Management Board, which was created by the state legislature to advise it on sex offender policies.

California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose no danger after they are released. As part of a wave of new sex offender laws starting in the mid-1990s, about 30 states and thousands of cities and towns passed such residency restrictions – prompting in turn a pushback from civil liberties advocates, state legislators and registrants themselves who argued the restrictions were not only unduly harsh but counterproductive.

But a court decision in Colorado last year could mark a shift in momentum.

In the Colorado case, Stephen Ryals, a high school soccer coach convicted in 2001 for a consensual sexual relationship with a 17-year-old student, was sentenced to seven years’ probation and put on the state sex offender registry.

Eleven years later, in 2012, he and his wife bought a house in the city of Englewood. But the police department told him he couldn’t live there because of a city ordinance prohibiting sex offenders from living within 2,000 feet of schools, parks and playgrounds – a law that effectively made 99 percent of its homes and rentals off limits to offenders.

Englewood police also warned offenders that even in the open one percent, if they contacted a homeowner whose property wasn’t for rent or for sale, they could be charged with trespassing.

Ryals sued, and last August a federal court concluded that the city’s ban went too far. [See: Ryals v. City of Englewood, 962 F.Supp.2d 1236 (D. Colo. 2013)].

The judge ruled that it conflicted with the state’s existing system for managing and reintegrating sex offenders and could encourage other towns and cities to do the same, effectively barring offenders from the entire state. Englewood has appealed, but two of the state’s five other cities that have residence bans have softened their restrictions since the decision.

The other three are awaiting the outcome of the appeal, according to John Krieger of the American Civil Liberties Union (ACLU) of Colorado, which represented Ryals. 

Rolling Back Restrictions

In California, scores of cities are rolling back their restrictions after an Orange County court ruled in favor of registrant Hugo Godinez, who challenged the county over its ordinance barring sex offenders from entering parks.

Godinez, convicted for a misdemeanor sex offense in 2010, was arrested the following year for what he said was mandatory attendance at a company picnic in a county park. In that case too, a state appeals court decided that the county’s ordinance usurped the state’s authority. The appeals court ruling was upheld by the state’s highest court in April 2014. [See: People v. Godinez, 2014 Cal. App. Unpub. LEXIS 159, review denied].

Since the Godinez decision, 28 California cities that have similar “presence” restrictions, which ban offenders from entering places like libraries and parks, have repealed those rules. Another 24 say they are revising their ordinances, according to Janice Bellucci, a California attorney.

Since the April decision, Bellucci, who represents the advocacy group California Reform Sex Offender Laws, has sent letters demanding repeal to cities with presence restrictions. She also has sued a dozen other cities that haven’t changed their rules since the decision.

And this year, California’s Supreme Court could make an even bigger ruling – whether to toss the state’s 2,000-foot law itself.

A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed. The judge cited an increase in homelessness among registrants as a key reason. Statewide, the number of homeless registrants has doubled since the law passed in 2006, according to the 2011 Sex Offender Management Board report.

At least two other states – Rhode Island and New York – have been sued since 2012 over their own residency laws.

One finding in the Ryals’ case in Colorado could resonate in other states.

The judge found compelling a 2009 white paper by Colorado’s Sex Offender Management Board that concluded residency bans don’t lower recidivism and could actually increase the risk to the public. According to the paper, that’s because they drive offenders underground or toward homelessness, making them harder for police and probation officers to track.

Often the most stable place for an offender to live is with family members. But if they have homes in prohibited areas, the offender might instead try to drop off the registry by failing to report their permanent address, says Sara Neel of the Colorado ACLU. The problem, which isn’t specific to Colorado, could strengthen court challenges in other states, she says.

Those 2009 findings led the Colorado board to go further in a report this January, which recommended that state lawmakers consider legislation prohibiting cities and towns from enacting their own offender residency rules.

Two other states have moved in that direction. The Kansas legislature banned local residency restrictions in 2010. And in New Hampshire, the state House of Representatives has twice approved a bill that would bar local ordinances, though it’s died both times in the state Senate.

Bellucci argues that there’s more to come in other states. The “pendulum of punishment,” she claims, is starting to swing the other way.

“For a long time, ever-harsher sex offender laws were being passed and there was no one opposing them,” she told The Crime Report. “After more than a few lawsuits, elected officials are realizing that there’s a downside to this.” (A spokesperson for the National Center for Missing & Exploited Children, which has supported stronger sex offender laws like the federal Adam Walsh Act, said it had no one available to comment on the center’s position on residency restrictions).

Sponsors of the New Hampshire bill say they’ll keep trying, and it’s gained some unlikely allies.

“My first term, I was pretty much a hard-liner,” said Republican representative Larry Gagne during a January committee hearing.

“I said, ‘Put [sex offenders] in outer space; put them all on an island.’ But I changed my mind after a [police] sergeant came in and said, ‘If they go underground, we can’t find them.’”

Steven Yoder writes about criminal justice, immigration and other domestic policy issues. His work has appeared in Salon, The Fiscal Times, The American Prospect and elsewhere, and he’s working on a book about the impact of sex offender registries on registrants’ families.

This article was first published by The Crime Report (www.thecrimereport.org) on July 7, 2014; it is reprinted with permission.

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