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The Unconstitutionality and Inefficacy of Sex Offender Residency Laws

May 24, 2010

Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws
by Sarah E. Agudo: Northwestern University – School of Law; Harvard University – John F. Kennedy School of Government

Northwestern University Law Review, Vol. 102, No. 307, 2008
(download paper here)

Abstract:
Sex offenders are among the most hated members of our society. In recent years, laws protecting society from these offenders have grown increasingly broad; the restrictions have become more severe and applicable to more people. Residency laws, which dictate where sex offenders can live upon release from prison or while on parole, exemplify this trend. Twenty-two states in the United States currently have some form of residency law that restricts where sex offenders can live. For example, many states prohibit sex offenders from living within 1000-2500 feet of schools, bus stops, or daycare centers. Today, public outrage and political risk-aversion have driven these laws to the outer boundaries of constitutionality. It is likely that these recent expansions of sex offender legislation and the ensuing litigation over their constitutionality will prompt a Supreme Court decision establishing the limit on states’ control over their released offenders. Reasonable and constitutionally acceptable residency laws may well exist. The aim of this Comment is not to call for the abolition of all residency laws, but rather to promote a cogent dialogue regarding the upper bounds of their effectiveness and constitutionality in order to provide a framework for future legislation. Although, in many areas of law, democratic processes can adequately safeguard those bounds, the public outrage against sex offenders threatens to chill the usual political protections and justifies careful judicial oversight.

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