Banishment of sex offenders: Individual liberties, national rights and the dormant commerce clause, environmental justice, and alternatives
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jonathan Jenkins Ichikawa
Jack Alan Reynolds
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Sex offender residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities because we fear that they may reoffend in our neighborhoods. The practical effect of banishment through residency restrictions must be understood in the context that there are few places in modern day America to which a sex offender may be banished that is isolated from the rest of society. Rather than being excluded and thrust into some undeveloped wilderness, sex offenders are banished through residency restrictions to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders. Federalism concerns arise when states or municipalities attempt to exclude hazardous waste disposal from within the state, and judicial and legislative efforts to banish sex offenders to other states may also run afoul of Dormant Commerce Clause principles, which operate to discourage states from such protectionist activities. Disproportionate siting of sex offenders into poor neighborhoods of color is also problematic and this overconcentration of offenders may result in lowered property values, segregation, and homelessness. The federal government addressed a similar issue when studies in the late 1980's reported that hazardous waste sites were being placed near poor and primarily minority neighborhoods. In addition to the public policy approaches taken to resolve environmental justice concerns, the Fair Housing Act has been considered an important litigation tool to address this indirect racism. This Article examines what methods from the environmental justice movement might be available to deal with this "social justice" issue of sex offenders disproportionately burdening the unwary in poor minority communities.Banishing sex offenders through residential restrictions, both legislative and private, impacts individual liberty, our national structure, and social policy considerations. Although most sex offenses are committed by relatives or acquaintances of the victims, rather than by strangers, our public policy approach has been to focus on the stranger sex offender. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of the sex offenders and the rights of our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences. Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that state and local legislators should seriously reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism. Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.
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