Why Residency Restrictions are Counter Productive

Public resistance to wanting sex offenders living in anybody’s neighborhood is understandable, especially from the perspective on non offenders.  H.O.S.T. (http://www.hosttransitionservices.com) is interested in helping offenders successfully transition, but we are also just as interested in educating non offenders.
Most likely, you have one of two opinions on the subject. Either you support the rights of sex offenders or you don’t. That opinion is probably influenced by your personal situation.  Perhaps you know an offender or their family and you are sympathetic of their situation, or perhaps you know a victim or their family and you are sympathetic of them.
Unless you have personal experience with an offender or their family you most likely share the opinion of the general public that all offenders are evil, they gave up their rights when they committed a crime and that they’ll never change.

Whichever side of the fence you are on, you are entitled to your opinion.  Never mind that the opinion that all offenders will never change is an incorrect one based on scientific studies.  It’s certainly possible that at least some will in fact not change.  However,this article is not intended to change your mind if you don’t support offenders and their families, it’s to illustrate why residency restrictions are counterproductive, even if you don’t support the offender.

First of all let’s define what we mean by offenders.  Yes we are talking about sex offenders but we are also talking about exoffenders.  We are talking about offenders that have fulfilled their legal obligation of any court ordered incarceration.  Ex-offender is not a legal term whereas that’s the problem.  There is no way for an offender to be considered an Ex-offender, no matter how law abiding he or she remains.

If your position is that all offenders are dangerous, then you are entitled to your opinion.  Your concern should be focused on why are offenders released from prison rather than what should their restrictions be after they are released.  That’s an issue to take up with your legislator.  The fact of the matter is that the majority of offenders that are sentenced to prison will one day be released.  That’s the way our legal system works.  A life sentence is not always applied which means that not only will many offenders one day be released, but they already are on a regular basis.  Every sex offender makes the news the day they are sentenced to prison, but they never seem to make the news on their release date, even though that’s the day that would put more of society in danger, if their theory that offenders never change were correct.

When offenders are released from prison, they may have supervision, also known as parole or probation.  Whether or not they do was a court ordered decision.  Even if they don’t have court ordered supervision, they may have conditional release which is ordered by the Department of Corrections.  Regardless if there is supervision or not, most sex offenders face two conditions, they must register as a sex offender and they must also reside at a place that meets their sex offender residency restrictions.

It’s these residency restrictions that are the issue.  Supervision and registration are entirely separate matters.  The theory for why residency restrictions exist is that if offenders don’t live next to where children congregate then it will be less likely for them to re-offend.  It’s an incorrect theory and the reasons why will be listed.  It’s not an issue of whether or not offenders can change; it’s an issue of why where they live is irrelevant.
First of all, the number of released sex offenders is not a variable that can be changed without legislators updating sentencing guidelines.  Whatever your stand on that issue, unless and until guidelines are changed, the question is not should offenders be released.  The question is what happens to them after they are released?  This is not about whether or not the current sentencing guidelines are appropriate.  Maybe they are, maybe they aren’t.  Everybody is entitled to their opinion on the matter.  The issue is that without new legislation, that won’t change.  Meanwhile sex offenders are released on a regular basis.

So a sex offender eventually serves his prison time and is released.  Perhaps they have supervision and most likely they are required to register.  Regardless, the issue of residency now comes up.  Laws vary not only by state, but by county and city ordinances within the states.  So while there is no one answer for how it works, if laws do exist in an area that a sex offender wants to move to after incarceration, the offender must abide by them.

So now comes the question that most don’t know the answer to.  When an offender is released, even before residency restriction laws are looked at, what determines where an offender is released to?  There are two scenarios and that is whether or not there is also court ordered supervision.  If there is then the offender remains the responsibility of the Department of Corrections.  Although the offender is released from prison they are put on either probation or parole.  The Department of Corrections sets the rules for where they can or can’t move to.  If there is no court ordered supervision, then the offender is free to go wherever they choose, however, they are still subject to the residency restrictions for the place that they choose.

So let’s revisit the released offender with supervision scenario.  The released offender without supervision is a little less complicated since they have more freedom to pick where they go.  Now we get into those areas that the average person knows little about.  When an offender serves their prison term, they will most likely transfer between more than one prison.  The longer the prison sentence, the higher the likelihood that they have been transferred to more than one.  Eventually they will end up at the prison that will release them based on their release date.  That prison’s location is probably not anywhere that the offender lived prior to his incarceration, and also probably not where the offender wants to live.

If an offender is being released under supervision, then the offender will be assigned to the probation office based upon the county that convicted him.  In other words, what the average person is not aware of is that regardless of where an inmate is located while incarcerated, when released they will be returning to the county that originally charged them.  It is absolutely possible to request a different county within the same state be considered for the release, and those details will be outlined in a bit but the automatic default rule is that offenders on supervision are released back to the county that charged them.  If no request is made for anything different that’s where they are going.

This gives supporters of sex offender residency restrictions something to think about.  While the motive for most supporters of residency restrictions is NIMBY (not in my backyard) many are probably unaware that offenders on supervision go back to the county charged, regardless of the residency restrictions.  So while you can decrease the number of requests for released offenders on supervision to ask permission to relocate to another county, you cannot eliminate that offenders are returning to each and every county no matter how harsh the residency restrictions are, because each and every county prosecutes sex offenders.  That’s something to think about the next time you hear about your county’s successful prosecution rate.  Someday, each and every one of them could be back in your county.  It may not be for years, but today all of those prosecutions from years ago are resulting in released offenders now returning to the county that originally charged them.

Now let’s get back to those offenders that are requesting to go to a different county other than the one that charged them.  Sure it’s possible to request any county and the residency restrictions for the area being requested are a huge factor.  The eligibility of the residence based upon these restrictions is a key factor as to whether the request is approved or not but just as important as the location is other factors such as financial ability to pay rent.  No county wants to add homeless sex offenders to their population, so unless the Department of Corrections is convinced that the offender is going to be able to pay their rent, they aren’t going to approve that an offender come to their county even if they do provide an eligible address for their residence.

That request asking permission to go to a different county is called a release plan.  Sometimes an offender requests an entirely different state than the one they were charged in.  These requests are called an interstate compact and are even more difficult to be approved because now they are asking one state to have their supervision administered by another state that had nothing to do with their conviction in the first place.  Although it’s similar to the idea of asking one county within a state to take over, those still fall under the same state.  The Department of Corrections is run by state and although it has branches in every county of their state, those counties still operate under the same state department.  Not so when an interstate compact is being requested.

So the bottom line is that some offenders will return to each and every county based on the mere fact that while on supervision you must return to the county that charged you, unless you are granted permission by the Department of Corrections to relocate to another county.  Other offenders might submit a release plan request to transfer to a county even though that’s not the county that convicted them.  Either way, offenders return to each and every county.  Offenders who are not under any supervision don’t need the permission of the Department of Corrections but all offenders must abide by the residency restrictions and their purpose, which contrary to popular belief, is to discourage released offenders from requesting their county.  That part is understandable, but what’s usually not well understood is that even by reducing these requests every county still has to deal with the offenders that will be forced to return to their county based upon where they were convicted.

That’s what creates the NIMBY (not in my backyard) approach.  Few understand the details that sex offenders are going to return to every county regardless of the residency restrictions implemented, but it is understandable that they still want to improve a process even if they can’t fully eliminate the problem.  The problem with the NIMBY approach is that it doesn’t solve the problem; it just starts the battle between counties and cities saying, not in my backyard either.  It doesn’t resolve the issue that today’s released offenders are going back to some county based on laws that mandate where they go.

That may provide some details that perhaps were unknown before but regardless it is important to understand that the sex offender residency restrictions are continually made harsher due to an unproductive NIMBY approach.  The official explanation for why residency restrictions are put into place are to keep the community safe but here’s why that’s not true.

Registration requirements preceded residency restrictions.  The problem in the community’s perception was that while registration reported where offenders lived; it didn’t prevent them from living there.  The more information the public had access to as to where offenders live, the more it gave the perception that they shouldn’t be allowed to live anywhere.  Thus the idea of residency restrictions was conceived.  The problem is that it doesn’t matter where offenders live, it matters how they behave,and that is what determines whether or not a community is safe.

Registration required offenders to report where they live.  Residency restrictions then began to prevent where they could live.  What it never did prevent, and still doesn’t prevent, is what offenders do.  Residency restrictions eliminate many possible locations for an offender to live, but it has no influence on their behavior.  If an offender is on supervision, then they probably have a curfew and are therefore mandated to be at their residence between the hours of their curfew.  The most common curfew for sex offenders is between 10PM and 6AM, although some on conditional release have a curfew from 7PM to 7AM.  Either way the hours that should be of concern are not even covered by curfew.  Offenders on probation are free to leave their homes once their curfew is over for the evening.  So by 6AM or 7AM, when kids are just leaving their houses offenders are free to leave as well, at least for another day.  Like prison, for most offenders even probation ends eventually and whether it’s successfully completed or it was never ordered in the first place, it doesn’t matter where offenders can or can’t live, if they are free to leave their homes.

There are some cases of probation known as community control.  The slang name usually used for this type of probation is house arrest and it’s the one and only type of probation that might be more relevant to residency restrictions because they are not allowed to leave their homes ever without the pre-approval of probation.  But for the average offender on probation, not to mention the large number of offenders that aren’t on any type of supervision, what does it matter where they sleep at night, if there is no restriction from them leaving their homes during the hours the community is most concerned for their children, the daytime hours that the children would be out?

None of this is intended to terrify you about all these “dangerous offenders” that are free to harm children.  On the contrary it’s to educate you that even with all these residency restrictions no protection has been added.  Of course there still are crimes, but residency restrictions aren’t preventing any of them.  The crimes are far more often first offenses not re-offenses.
The idea of residency restrictions is a simple one.  They came up with a formula, and every state, county and city fills in the variables they want for themselves.  Not all areas have these restrictions but for those that do it is usually worded something like this:

Sex offenders may not live within X feet of such and such.

Simply fill in X and define such and such.  First this requires legislation, and as complicated as that piece is, it’s really the simple part.  Anybody can fill in the blanks.  A normal example is where x=1000 feet and “such and such” is defined as schools, parks and daycare’s.  As much arguing as will happen in a legislative session to determine the pros and cons, it’s a fairly simple process to eventually come to a mutual decision, fill in the variables, and amend the code.  The hard part comes next as the legislatures wipe their hands of the completed legislature.  Now it’s up to law enforcement to figure out how to enforce the law.

So law enforcement scratches their head and has to come up with a way to do what the legislators said they must do.  The public is happy because the new law passed.  The public is totally unaware of what law enforcement will do to make sure this new law happens.  It was easy to write the paragraph.  Now comes the hard part.  How to determine on a case by case basis for your entire jurisdiction which houses meet the criteria and which houses don’t meet the criteria.

Suddenly what seemed very clear to legislators now seems very vague to law enforcement.  First of all what defines something as a school, park or daycare?  What about establishments that you think they probably meant, but aren’t clear on like churches, community centers, playgrounds, hospitals, etc.  More importantly, how do you determine on a house by house level for an entire city which houses are within 1000 feet and which ones aren’t.  Somebody’s going to have to draw up a map and populate it correctly, and that’s the problem, nobody ever has.

Sure maps exist, but few contain all the information legislators meant when they said schools, parks or daycare’s.  So since the project seems unable to be fully automated, it’s thrown down to the local level of law enforcement.  Mapping programs don’t define what is meant by places where children congregate, because even legislators don’t know what they meant so they instead list it as schools, parks and daycare’s.  Some local mapping program is passed down to be the official method used even though the population of data (adding new and deleting old schools parks and daycare’s) is never officially assigned to anybody.   Never mind who’s going to keep track of all the school bus stop routes in a state to determine which house is and which house isn’t too close to a school bus route.

Even once you have made some sort of agreement on what qualifies as a school, park or daycare, you now have to apply a mathematical formula to something pretty vague.  1000 feet (or whatever specific distance applies) is a very specific value to a very vague idea of how far point A is from point B.  Do you measure as the crow flies?  Do you measure from the front door of point A to the front door of point B?  At what point do you say this is where the school, park or daycare property begins when their entrance is not clearly defined?  Some distances are going to be black and white as easily more than 1000 feet.  Some are going to be just as black and white the other direction as easily less than 1000 feet.  What about all the grey areas?

After all the arguing for how to determine any of this is over the next argument becomes who, which agency will enforce this at the local level?  You have to keep in mind that offenders always come with two possible scenarios.  Some are on probation, others are not.  When they are on probation, the Department of Corrections claims them as their responsibility.  However, when they are not on probation (because they either completed it or never had it ordered) it’s not the Department of Correction’s responsibility, so it becomes the responsibility of the local sheriff or police department.  That part makes sense; after all they enforce all laws for the entire community. Offenders being on probation or not; has nothing to do with enforcing all laws.  The controversy comes with those who are on probation.  When the Department of Corrections and the local Sheriff  or police departments disagree it becomes a power struggle and conflict of interest that the offender gets wrapped into.  Since they don’t use the exact same methods there are disagreements.  Each thinks their opinion is more important than the other’s.

All politics aside, nobody probably cares about the differences between probation and the sheriff or the quibbles over if something is actually 999 feet or 1001 feet away.  Certainly nobody cares about the inconveniences to the offender.  The concern should simply be do residency restrictions accomplish any additional significant safety for children living in the community?

The reality is not only are residency restrictions ineffective but now we can bring up how they don’t even always apply.  Every law has an effective date.  When these residency restrictions are enacted it seldom if ever applies to those who already established residency prior to the new law’s enactment.  For new cases, depending upon the wordage of the legislation, it may not always apply.  Every offender being released from prison has an offense date.  Many times if this date is before the enactment of the new law, the new restrictions still won’t apply.  Offenders spend years in prison until their release, so the adjudication dates are usually years before the current year.  So it will take years for offenders being released to be subject to the new rule, because at least from the start all new offenders have an adjudication date prior to the new law’s enactment.  This often surprises a neighborhood because they pass a new law making restrictions tougher, then they are shocked that not only do none of the offenders already living there go away, but new offenders come in perfectly legally.  It takes years after the new law passes for it to start applying to the majority of new offenders.  That’s something the public is seldom aware of.
Residency restrictions don’t work, but even if they did, there are so many loopholes into how it’s administered that nobody can figure out why the sex offender count in a neighborhood never goes down.  You can possibly make more offenders homeless, but that’s not eliminating them and making somebody homeless is less protection not more protection for the community.  It’s not about compassion for offenders; it’s about common sense which is something residency restrictions lack for all these reasons.

1 comment for “Why Residency Restrictions are Counter Productive

  1. Scott Delaney
    August 24, 2014 at 2:41 am

    It,s been said that NY has just included the 1000 feet from a School to be included for those who use homeless shelters as well. I don,t know what people are thinking this is going to do, except cause them to be so depressed that they could potentially harm another child and reoffend.
    It,s pretty sad when someone serves their sentence and yet society still makes them serve a life sentence when they are released. What makes it even sadder is when local ,state or federal government don,t even have any rehabilitation or support groups to use as a safe person or someone who can vouch for them on the outside.

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