Coping With the Paroled Sex Offender Next Door
by Patrick Whitnell
Patrick Whitnell is assistant general counsel for the League.
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
Dr. McEchron testified that there is no cure for sex offenders and that “there are never any guarantees that they might not reoffend.”
— Seventh Circuit Court of Appeal in Doe v. Miller1
Cities are coming under increasing pressure from residents to do something more to protect children from sex offenders. A series of high profile child murders by convicted sex offenders out on parole has highlighted the anxiety many communities feel toward sex offenders, and residents can now search online to locate registered sex offenders near their homes.2
California law currently provides that parolees who have been convicted of certain sexual crimes against children may not reside within ¼ mile of any public or private school.3 But for many residents, this law does not go far enough. California cities are just now beginning to consider adopting ordinances that either restrict sex offenders from being near areas where children congregate, or restrict where a paroled sex offender may live.
These ordinances present thorny legal and policy questions, including whether these laws are pre-empted by state parole and probation laws. From a policy standpoint, some commentators have not only questioned the effectiveness of these ordinances in protecting children but whether these ordinances may inadvertently exacerbate the problem as well. Therefore, cities need to tread very carefully in drafting and adopting ordinances that place restrictions on sex offenders.
Child Safety Zone Legislation and Distance Marker Legislation
Sex offender legislation tends to fall into two different categories: Child Safety Zone legislation and Distance Marker legislation.4 Child safety zones involve identifying areas where children congregate, such as schools, childcare centers, playgrounds, school bus stops, video arcades and amusement parks, and imposing a distance requirement — typically 300 feet — in which a sex offenders may not loiter.5
The more common legislative restriction is Distance Marker legislation. Distance Marker ordinances restrict sex offenders from permanently residing within a certain distance of designated places where children congregate. This restriction typically will range from 1,000 to 2,500 feet.6 The legislation may contain certain exceptions to the residency restriction where, for example: 1) the sex offender had established a permanent residence prior to the legislation being enacted; 2) the person was a minor when the offense was committed; 3) the person is currently a minor; 4) the designated place was built or established after the sex offender had established the permanent residence; or 5) the sex offender is required to live in the residence as a condition of parole. This model has been enacted by 14 states, including California, as well as many cities and counties throughout the country. Most legislation declares a violation to be an infraction or misdemeanor.7
The Courts Are Beginning to Weigh In
Although California courts have not yet considered the constitutionality of either Child Safety Zone legislation or Distance Marker legislation, other courts throughout the country have weighed in. In Doe v. Miller, the 8th U.S. Circuit Court of Appeals upheld Iowa’s Distance Marker legislation against a plethora of constitutional challenges.8 A federal district court has also upheld Ohio’s Distance Marker legislation.9 And while no reported court decision has reviewed Child Safety Zone legislation, two reported federal court decisions have upheld city actions to ban an individual sex offender from public parks.10
Do These Ordinances Work to Protect Children From Sex Offenders?
While sex offender restrictions have so far survived legal challenge, their effectiveness is unclear. Some experts argue that placing restrictions on a sex offender’s proximity to children will reduce the temptation to reoffend. This argument has a common sense appeal. Other experts contend that residency restrictions may just serve to move the sex offender away from family and other support that helps the sex offender avoid reoffending. By isolating the sex offender from his support network, the argument goes, the possibility that the sex offender will reoffend is increased.11
One recent study from Florida may support this latter concern. The study surveyed sex offender counseling clinic patients who were subject to residency restrictions imposed by local cities and counties.12 Nearly all the patients had been convicted of child molestation crimes. The survey’s purpose was to determine how sex offenders view the effectiveness of residency restrictions. The offenders “indicated that housing restrictions increased isolation, created financial and emotional hardships, and led to decreased stability.”13 Further, the study concluded that the offenders did not perceive the residence restrictions as being helpful in risk management, and that the restrictions would have no effect on their risk of reoffense.14 Offenders pointed out that if a person wants to reoffend, it doesn’t matter how close he is to a convenient place to find children.15 Further, some offenders pointed out the irony of having been forced to move from a residence near a school or park, only to find themselves lawfully living in a new residence next door to families with children. The study concludes that a more individualized approach to sex offender management may be a better solution rather than the sweeping restrictions that states and municipalities are adopting.16
So What Should Cities Do?
Cities are often pressured by their citizens to react to the problem of sex offenders living in the community. The city council’s legitimate desire to address its citizens’ concerns imparts an urgency to “do something and do it now.” But it is often better to take a more cautious approach to ensure that the action taken is legally defensible. It is important for the council to identify what it wants to accomplish with legislation. “Protecting children” is the obvious goal, but it is too vague. What is the actual threat to the city’s children, and how can that threat be reduced? Experts can help with this process. The city should seek out testimony from law enforcement and district attorney personnel that specialize in investigating and prosecuting sex offenders. Other valuable sources are Department of Justice agents, parole agents that monitor sex offenders, and psychiatrists that specialize in treating sex offenders. And, of course, it’s important to have the city attorney involved at an early stage to address any potential state pre-emption issues and help ensure that any ordinance that is adopted will survive a constitutional challenge.
Finally, the council should consider adopting findings, supported by the record before the council, laying out the concerns driving the council’s action, and the reasons why the council has chosen the particular course of action.
Cities need to acknowledge that their ability to address sex offenders is limited, and the state and federal government have important roles to play in regulating sex offenders. Cities that adopt sex offender restrictions should not be lulled into thinking that these restrictions are all that may be needed to address the sex offender problem. Therefore, public officials may want to consider a more comprehensive approach that involves monitoring state and federal legislation, and lobbying state and congressional representatives.
 Doe v. Miller 405 F.3d 700, 707, (8th Circuit 2005), cert. denied 2005 WL 3144173.
 Cal. Penal Code sec. 3003(g). This section only applies to persons convicted under Cal. Penal Code section 288 (lewd and lascivious conduct with a child under age 14) and section 288.5 (continuous sexual abuse of a child under age 14). 14 other states have adopted similar restrictions.
 A third type is Zoning Dispersal legislation. This legislation attempts to address the problem of large numbers of paroled sex offenders living in the same residential dwelling, often in what are claimed to be sober-living-environment facilities. These ordinances seek to limit the number of offenders that can live in a single facility and require a conditional use permit where more than one offender will be living in a residence. See, Pomona, CA Municipal Code ch. 50, and Pomona, CA Zoning Code. But see also, Cal. Penal Code sec. 3003.5, which prohibits more than one paroled registered sex offender from living in any single family dwelling unless legally related by blood, marriage or adoption. This statute provides an exception to this prohibition where the sex offenders are living in a residential facility serving six or less people.
 See National City, Calif., Municipal Code ch. 10, and Laredo, Texas, Municipal Code sec. 23.8.
 See Miami Beach, Fla., Municipal Code ch. 70, and City of Dover, N.H., Municipal Code Ch. 131.
 Ohio’s Distance Marker statute only allows for the local agency to obtain an injunction from a court to require the sex offender to vacate the property, Ohio Rev. Code sec. 2950.031; see Coston v. Petro, No. 1:05-CV-125,2005 WL 2994721 (S.D. Ohio Nov. 7, 2005).
 See Footnote 1. See also, State v. Seering 701 N.W.2d 655 (Iowa 2005) (Iowa Supreme Court decision upholding same law).
 Doe v. Lafayette, Ind. 377 F.3d 757 (11th Cir. 2004); Brown v. Michigan City, Ind., No. 3:02 CV 572 RM, 2005 WL 2281502 (N.D. Ind. Sept. 19, 2005). Sex offenders are continuing to challenge restrictive ordinances. A group of sex offenders are challenging a Binghamton, N.Y. ordinance that prohibits sex offenders from living within a quarter-mile radius of any public or private school, daycare center, playground or park. The offenders allege that this restriction effectively bans them from living in the city. A Mt. Dora, Fla., sex offender is challenging the city’s ordinance that prohibits sex offenders from living within 2,500 feet of a school bus stop. In Lower Township, N.J., a sex offender is challenging the city’s child safety zone ordinance.
 One additional criticism of Distance Marker legislation is that it may inadvertently cluster sex offenders into a compact area or limit them to a particular corridor, thus creating a residential concentration.
 Jill S. Levenson and Leo P. Cotter, The Impact of Sex Offender Residence Restrictions: 1,000 Feet From Danger or One Step From Absurd, International Journal of Offender Therapy and Comparative Criminology, 168-178 (2005).
 As noted above, 14 states have adopted Distance Marker statutes. But Colorado and Minnesota declined to do so after studies concluded that a statute might not be effective. In Colorado, the study found that reoffenders did not seem to live closer to schools and childcare centers than other sex offenders. Rather they appeared to be randomly scattered throughout the study area. (Colorado Department of Public Safety Report on safety issues raised by living arrangements for and location of sex offenders in the community. (2004)). In Minnesota, the study concluded that a sex offender’s proximity to schools or parks was not a factor in either reoffending or community safety. (Minnesota Department of Corrections Level three sex offenders residential placement issues. (2003).)