“Why now?” is the question that immediately springs to mind as the Dallas City Council considers residence restrictions for sex offenders. The laws providing for a sex offender registry passed in 1991 and for child safety zones in 1995. These laws apply to both adults and juveniles. In the last 20 years, no study has shown either to be effective in protecting the public. In fact, they conclude just the opposite. In 2003, the Minnesota Department of Corrections six-year study of 329 sex offenders was published. There was a 4 percent recidivism rate. The study concluded that a sex offender’s residential proximity to schools or parks was not a factor in recidivism nor did it impact community safety. The researchers noted what is a glaring flaw in residential restrictions: sex offenders can drive cars to areas where children congregate. In 2004, the Colorado Department of Public Safety published its study of 130 sex offenders tracked for 15 months. It concluded that residence restrictions are unlikely to deter sex offenders from committing new sex crimes and such policies should not be considered viable strategies for protecting communities. In 2010, the Texas Senate Criminal Justice Committee concluded that extensive research has been done on sex offenders and the effects of registration and other sanctions and it is clear registries do not provide the public safety.
It is interesting that two weeks before the city of Dallas took up the issue of the residence restrictions, the U.S. Court of Appeals, Fifth Circuit issued an opinion making this an expensive proposition for Dallas as well. On July 22, 2014, the Fifth Circuit held in a first-of-its-kind ruling that a registered sex offender has standing to sue challenging the constitutionality of residency restrictions and for damages pursuant to Title 42 U.S.C., Section 1983. In the case, Duarte v. City of Lewisville, Duarte prepared and attempted to buy or rent a house in Lewisville, and the ordinance made it more difficult, if not impossible, for him to do so. The ordinance prohibited him from living within 1,500 feet of where children gather. The Fifth Circuit ruled that not only does a sex offender have standing to challenge the Lewisville ordinance, but family members of the sex offender also have standing to sue for damages for enforcement of the ordinance based upon the interference with their constitutional right to live together with the sex offender as a family.
A juvenile under Texas law is a child as young as 10 years old. A juvenile charged with a sex offense has to register for 10 years after he has completed his sentence. In some cases, the registration period for these children can be as long as 50 years. The law does provide that a juvenile can be exempted from registration, have the registration made nonpublic, or the court can defer the decision of registration until the juvenile has the opportunity to successfully complete a sex offender counseling program. Further, juveniles who are currently on the registry may go back to court and seek to be removed from the registry. A juvenile who is made to register must also be removed from the regular classroom and referred to the alternative education program. A juvenile is likely to never return to the regular classroom since the decision has to be approved by a school board and the decision cannot be appealed.
Most ordinances apply to “a person” on the registry. It is not difficult to see the problems associated with a residency restriction, especially as it applies to a juvenile. If an adult has the constitutional right to reside with his family, certainly a child has the same constitutional right. In addition, under federal and state law, a juvenile has the right to a public education. A place where children commonly gather would be a school.
It is not clear how the Dallas ordinance would impact a juvenile’s right to live with his family or attend public school but any interference would certainly be the cause for future litigation. It is ironic that the laws involving sex offenders end up producing the exact opposite results of what was originally intended. The goals of sex offender registries and child safety zones are to track sex offenders once released into the community, assist law enforcement, for the public to be able to protect itself and to reduce recidivism. Numerous studies have shown that lifestyle instability is a risk factor for general and sexual recidivism. Thus, housing instability and subsequent disengagement from family and community appear to increase the risk for recidivism. Publicly branding youth as sexual predators hurts young people by stigmatizing them and alienating them from crime-reducing social networks like families, schools and jobs. The Dallas ordinance would just be one more step in the wrong direction. Laura A. Peterson