Judicial Notebook

Last November, the Supreme Court of Georgia considered the constitutionality of sex offender residency restrictions, one of the more recent policies to gain popularity in the criminal justice arena. Residency restrictions prohibit sex offenders from living or working within a certain distance (typically between 500 and 2,500 feet) of places such as schools, day-care facilities or parks. At least 30 states and many local jurisdictions have residency restrictions in place. Some states, such as Alabama, have exceptions that allow offenders with already established residences to remain when a school or other youth-serving institution later establishes itself in the area. Georgia, however, had no such statutory exception, leaving Anthony Mann in violation of his probation when a child-care facility moved within 1,000 feet of the home that he owned with his wife and a barbeque restaurant he co-owned.

Applying a Fifth Amendment takings analysis, the Georgia Supreme Court noted that "there is no place in Georgia where a registered sex offender can live without being at continual risk of being ejected," (Mann v. Department of Georgia Corrections et al, 282 Ga. 754, 755, 2007). The court found the statute to be unconstitutional with regard to Mann's home, but not his work, given that much of the work in running the restaurant could be done off-site.

Other court rulings

In another case, Keith Seering and his family left their home and moved into a fold-down camper on rural farmland to comply with Iowa's 2,000-foot residency restriction. However, after the farm owner demanded that they leave the property, Seering challenged the statute's constitutionality. In upholding the residency restriction, the Iowa Supreme Court found no deprivation of Seering's substantive or due process rights (State v. Seering, 701 N.W.2d 655, 2005).

Other courts have similarly upheld residency restriction legislation. In 2005, the Eighth Circuit Court of Appeals upheld the same statute at issue in Seering, with the court finding that no fundamental right exists to choose where one lives (Doe v. Miller, 418 F.3d 950, 2005). The Association for the Treatment of Sexual Abusers (ATSA) petitioned for writ of certiorari, noting the national significance of Doe v. Miller and arguing that residency restrictions "actually harm the innocent children they are intended to protect" by increasing offender transience (ATSA, 2005). The U.S. Supreme Court, however, declined to hear the case.

What the research shows

Although many challenges to residency restriction legislation have survived constitutional scrutiny, some argue that residency restrictions lead to housing instability and housing shortages. Research can inform several issues that may be relevant to these cases. For instance, in Orange County, Fla., research shows that more than 95 percent of residential properties are within 1,000 feet of designated child-dense areas, while 2,500-foot restrictions encompass nearly 100 percent of residential space.

To date, there is still little research on the utility of residency restriction statutes. However, a recent study failed to show that sex offenders who re-offend live closer to schools and parks than those who do not re-offend. Further, research has found that "social or relationship proximity" to children, rather than residential proximity, affects sexual recidivism. Notably, after considering studies on the impact of residency restrictions, both the Colorado and Minnesota legislatures opted not to enact such legislation.

Some evidence suggests that offenders (regardless of the crime they have committed) who become more integrated in the community and lead more stable lives are less likely to re-offend than those who experience change and turmoil. Indeed, it is possible that being able to remain in the same house would provide a source of stability that would reduce re-offending, in much the same way that job stability reduces likelihood of recidivism. Though existing research indicates that residency restrictions limit housing options and that geographical proximity to child-dense community structures may have little effect on recidivism generally, further research might address whether residential instability impacts sexual re-offense patterns. Psychologists and other social scientists can contribute valuable data to this policy debate by studying such questions. It is possible that the benefit produced by residency-restriction statutes is offset by the risks they create.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).