MARCELLA LEACH
Crime Victims United, Vice Chair
LAWANDA HAWKINS
Justice for Murdered Children, Pres.
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8 comments:
Beware of those who yell the loudest. Mark Foley was one of them while at the same time looking to bugger underage children (pages).
I told a friend of mine today that there is only one vermin I hate more than a cockroach, that's a politician screaming "sex offender law. Get tough, get tough."
Well, all the myths and hysteria has done nothing but increase votes and ratings. They protect no one.
Roger Werholz, Kansas Correctional Secretary, says, "Sex offender Laws DON'T WORK and THEY ACTUALLY MAKE THINGS MORE DANGEROUS"
I totally agree with him as I have studied the issues. He also says, "What we want to do is not so much what makes us FEEL safer but ACTUALLY MAKES US SAFER. It's not what the sex offender deserves, IT'S WHAT WE DESERVE. We deserve to live in a community in a state where we are as safe as possible."
My personal opinion is that John Walsh has done so much damage to the Constitution and Bill of rights that WE ARE ALL IN JEAPORDY.
All I can say is BEWARE of the politicians who get elected by being "Tough" on crime. They have all done enough damage.
Every new law passed, Adam Walsh Act, Jessica's Law, residency restrictions, sets a former offender up for failure. I use the word FORMER offender because when one looks at the FACTS, they will find that approximately 95% of ALL first time offenders never commit another sex crime. In fact, California's recently released recidivist rates, put out by the Department of Corrections, states that LESS than 4% Recidivist rate FOR FIRST TIME OFFENDERS.
I don't like the term registered sex offender or sex offender because it implies they are continuing to offend. THE VAST MAJORITY ARE NOT.
From state to state, you will find recidivism for first time offenders to be in the single digits.
What needs to be done?
Do away with residency restrictions for those who have completed their contracts with the courts. They finish parole without another sex crime, paid their fines. Allow them to have STABILITY. To be able to have a home and job is vital not only to them but to society as well. We deserve that. We'll be safer and the families, wives and children of former offenders can live a normal life. I have no problem with a harsher sentence for a repeat offender, or a violent rapist especially those who did not know their victim. They are the few and the rare. 90plus percent of all new sex crimes are committed by individuals NOT on the registry. They are mostly family members or known to the family. We need to focus on PREVENTION and EDUCATION.
The law makers are NOT doing that because it's an easy issue when your low in the polls and to come out against a polititian who IS trying to make us safer is accused of coddling sex offenders Wake up people.
The Adam Walsh Act needs to be declared unconstitutional and some day will be. It was done behind closed doors as (get this), noncontroversial, thanks to Mark Foley and a few others. Congress never got to to debate one word of it. The AWA is another form of punishment under the guise of regulatory legislation. And it most certainly "Does More Harm than Good."
States are threatened under the federal guidelines of the AWA that if they do not comply they will loose a percentage of their Byrne grant money that goes into law enforcement. A HUGE problem here is it is costing states hundreds of millions , if not billions of dollars to impliment this law in order to save a few million. It makes me wonder where the real money trail leads. Computer tracking systems? I wonder if Bill Oreilly, Mark Foley and law makers across the country port folio is heavy in this type of investments. (Just a thought), but follow the money and I think we could come up with something.
It's a huge mess all the way around. Ohio and other states are spending millions in court cases that are challenging the constitutionally of the AWA and other states are saying No to it's implementation.
Let me recommend, "No Easy Answers" here. http://www.media.sosen.us/index.html I think that is the best place to start.
and here CFCOKLAHOMA.COM for articles relevant to the issues
I pray since Mark Lunsford has mentioned his own son's case is Romeo and Juliet that he and otehrs will see my son's story here: http://www.rickyslife.com and help me work to change laws across this country which criminalizes teens for consensual matters. My boy was sixteen and now due to three year age difference is a aggravated lifetime offender. Please help me save Ricky and thousands of others like Joshua Lunsford. Thanks Mary
The laws as they are written do more harm than good andactually endanger our children. The following is a quote from a concerned individual
"Some very bad people live in this world, police, prosecutors, and judges do their best to protect the rest of us from them. It is not however possible to guarantee safety to anyone. We are a nation of laws, a nation based upon individual liberty. As such we must respect and protect the fundamental rights of everyone, even truly evil people, for if we did not no ones rights or liberty would be safe.
I’ve been following the big news about sex offenders lately, it seems that the media does it’s best to whip people into a frenzy, ordinary people want the government to guarantee their safety, and politicians want to create yet more ineffective programs.
Let’s review what has happened recently:
A convicted sex offender was released from prison having served his time. He had nowhere to live, so the Department of Corrections dropped him off under an overpass. His story made the news because he was fitted with a GPS device that he cut off.
People were shocked; politicians were ‘outraged,’ how on earth could the Department of Corrections drop this fellow off under an overpass? How could they have dropped him off within walking distance of a school? How could they have dropped him off so near to his victim?
The shock is misplaced, the ‘outrage’ disingenuous. The fellow had no place to live because citizens pressure local governments into creating ‘zones’ in which no sex offender can live. He had no place to live because landlords are afraid to rent to sex offenders since citizens have burned houses down and even murdered the offenders to keep them out of their neighborhoods. He was dropped off within walking distance of a school simply because that is the nature of a built urban environment. Most every spot is within walking distance of a school. Lastly, he was dropped off so close to his victim because the law forced it. State law says that offenders, having served their time, must be returned to the county where the crime was committed. This law was pushed by Pierce County legislators who were tired of having so many ex-cons living within their county. Of course the ‘outraged’ politicians know all of this, especially the last since they passed that little law just last year.
I am not an apologist for sex offenders. They are the worst kind of criminals and must be punished for their crimes. They must be held accountable.
That said, we as a society must recognize that virtually all of them will get out of prison eventually. They will re-enter society. That is the nature of our judicial system, a system created to protect the rights of us all.
If we are smart, we want them upon re-entry to become law abiding, productive members of society. We want them to lead normal, crime free lives, lives without the horrible deeds they committed in the past.
We are not smart though, for we do not allow them to re-enter society in any normal manner. We virtually force them to turn back to a life of crime; we virtually force them to re-offend.
Upon getting out of prison we force a sex offender to register, and check in with police on an extremely frequent basis. Those check in times make it hard for an offender to maintain employment. Imagine for a moment a registered sex offender trying to live and work in the town of Skykomish within King County. He would have to take off work once a week to register with the Sheriff. The Sheriff located two to three hours away, each way. I doubt if the offender could maintain employment under those conditions. Hence, we, as a society force him to return to a life of crime.
We also take the step of plastering his picture and personal details all over the neighborhood in which he lives. Posters, the internet, public meetings, all to discuss this new menace, all sponsored by the government. We cannot possibly expect anyone to lead a normal, crime free life when we create such an environment around him or her.
We create zones in which sex offenders cannot live, and we intimidate landlords who otherwise could rent to sex offenders into not doing so. As a result we have an extremely large percentage of sex offenders who are homeless. Again, we leave the offender virtually no choice but to return to a life of crime.
All of this is wrong-headed policy. All of this makes society less safe, not more safe. Unfortunately people are clamoring for more of the same, greater restrictions, and politicians will give them what they want. Thus the problem will worsen.
We need new thinking on this subject. We need clear thinking free from panic on this subject. We need to create policies that help sex offenders to lead normal crime free lives instead of policies that make it impossible for them to do so. In such a way we will make society safer. Alas, I don’t think our politicians are up to it. More importantly I don’t think that we are up to it.
t know whether anyone is reading this. They sure don't post much. I like this statement from the article. "The residency restriction was passed on emotion and emotion has no intelligence."
Here is the article:
Fallon Campaign: Sex offender law makes children less safe - Fallon was right!
5/28/2008
Contact: Stacy Brenton
(515) 822-3029
stacy@fallonforcongress.comThis e-mail address is being protected from spambots, you need JavaScript enabled to view it
FOR IMMEDIATE RELEASE
May 28, 2008, (1:30 PM CDT) - Yesterday, The Des Moines Register praised Ed Fallon for his 2002 vote against a bill that prohibited sex offenders from living within 2,000 feet of schools or day care centers. The Register said, "… he was frequently on the right side of issues…. He was the only House member to vote against the 2,000-foot residency restriction for certain sex offenders, a law that virtually banished them from many communities, making them harder to track, while driving up costs for law enforcement."
http://www.iowapolitics.com/index.iml?Article=127252
Coincidentally, voters in the Third District received a mailing yesterday asking them "Why does Ed Fallon think it's ok for sex offenders to live near schools?" As a backdrop, it included a photo of a prisoner in an orange jumpsuit looking though a fence at children in a playground. The mailer was sent by Boswell supporter Richard (Red) Brannan of Ankeny and had no return address.
Fallon said, "This is an example of cynical, negative politics. This mailer was sent out only a week before the election to make it look as if I support sex offenders. I call on Congressman Boswell to reject and renounce this misinformation and ask his supporters to cease their efforts to disparage my character and reputation."
Fallon says he voted against the bill because, "I knew that it would only make matters worse." He has been proven right.
Today, prosecutors, sheriffs, police and those who work with victims of sexual abuse agree that the bill was a mistake. The Iowa County Attorneys Association opposes the bill and acknowledges, "The research shows that there is no correlation between residency restrictions and reducing sex offenses against children or improving the safety of children." Scott County prosecutor Bill Davis put it clearly when he said of the law, "It's the wrong path. It doesn't make anyone safe…." Common sense tells you why. The law doesn't keep sex offenders from visiting schools, as the mailer depicts; it doesn't restrict their movements at all.
In fact, most agree it has actually made children less safe. According to the Iowa Coalition Against Sexual Assault, since the law went into effect, the number of sex offenders that the system has lost track of has more than doubled.
State representative and retired state trooper, Clel Baulder said, "The residency restriction was passed on emotion and emotion has no intelligence."
"I opposed a bill that is now generally agreed to be a mistake - by prosecutors, sheriffs, police, lawmakers who supported it at the time, and those who work with the victims of sexual assault," concluded Fallon.
It's past time these politicians on both sides the Isle start listening to the experts in the field od sex offender laws and issues. The time for cheap shots is over. Voters are becoming aware that they have been lied to and laws which protect no one and based on myths and hysteria need to be rewritten to make sense and get away from this insanity.
Sex Offender Housing Restrictions
Twenty Findings of Research on Residential Restrictions for Sex Offenders and the Iowa Experience with Similar Policies
http://www.dc.state.ks.us/publications/sex-offender-housing-restrictions
1. Housing restrictions appear to be based largely on three myths that are repeatedly propagated by the media: 1) all sex offenders reoffend; 2) treatment does not work; and 3) the concept of “stranger danger.” Research does not support these myths, but there is research to suggest that such policies may ultimately be counterproductive. Sex offender residence restrictions. A Report to the Florida Legislature, October 2005, Jill S. Levinson, Ph.D.
2. Research shows that there is no correlation between residency restrictions and reducing sex offenses against children or improving the safety of children. Iowa County Attorneys Association
3. The resulting damage to the reliability of the sex offender registry does not serve the interests of public safety. Iowa County Attorneys Association
4. There is no demonstrated protective effect of the residency requirement that justifies the huge draining of scarce law enforcement resources in the effort to enforce the restriction. Iowa County Attorneys Association
5. Many prosecutors have observed that the numerous negative consequences of the lifetime residency restriction has caused a reduction in the number of confessions made by offenders in cases where defendants usually confess after disclosure of the offense by the child. In addition, there are more refusals by defendants charged with sex offenses to enter plea agreements. Plea agreements are necessary in many cases involving child victims in order to protect the children from trauma of the trial process. Iowa County Attorneys Association
6. Recommendation 1: Shared Living Arrangements appear to be a frequently successful mode of containment and treatment for higher risk sex offenders and should be considered a viable living situation for higher risk sex offenders in the community…. Recommendation 2: Placing restrictions on the location of correctionally supervised sex offender residences may not deter the sex offender from re-offending and should not be considered as a method to control sexual offending recidivism. Report on Safety Issues Raised by Living Arrangements for and Location of Sex Offenders in the Community; Colorado Department of Public Safety, Division of Criminal justice, Sex Offender Management Board
7. ....the number of sex offenders who are unaccounted for has doubled since the law went into effect. Iowa Coalition Against Sexual Assault
8. There is no accommodation in the current statute for persons on parole or probation supervision. These offenders are already monitored and their living arrangements approved. Iowa County Attorneys Association
9. [This policy] is contrary to well-established principles of treatment and rehabilitation of sex offenders….These goals are severely impaired by the residency restriction, compromising the safety of children by obstructing the use of the best known corrections practice. Iowa County Attorneys Association
10. The sex offender residency restriction was a very well intentioned effort to keep the children of our communities safe from sex offenders. It has, however, had unintended consequences that effectively decrease community safety. Iowa Coalition Against Sexual Assault
11. ….some offenders are attempting to comply by providing descriptions of where they are actually living….”under the 7th street bridge,” “truck near river,” “rest area mile marker 149,” “Flying J, in truck,” “in tent, S side of I-80,” “RV in old K-Mart parking lot,” “I-35 rest area,”….Two listed Quick Trips…. For the first time, sex offender treatment providers tell us, sex offenders are absconding in larger numbers. Iowa Coalition Against Sexual Assault
12. When a brutal sexually violent crime occurs, such as the one that occurred in Iowa last year, our societal tendency is to focus all our resources and energy on stopping offenders. The long-term solutions to eradicating sexual violence from our society, however, do not lie in measures taken to stop re-offense, but rather in preventing sexual violence from happening in the first place. Iowa Coalition Against Sexual Assault
13. … the Board of the Iowa Coalition Against Sexual Assault joined the Iowa County Attorneys Association in stating that these unintended consequences warrant replacing the residency restriction with more effective measures. Iowa Coalition Against Sexual Assault
14. Housing restrictions have passed in most localities with little resistance. Child safety is rightly the primary concern when sex offender restrictions are imposed. It seems to make sense that decreasing access to potential victims would be a feasible strategy to preventing sex crimes. There is no evidence, however, that such laws are effective in reducing recidivistic sexual violence. On the other hand, such laws aggravate the scarcity of housing options for sex offenders, forcing them out of metropolitan areas and farther away from the social support, employment opportunities and social services that are known to aid offenders in successful community re-entry. Sex offender residence restrictions. A Report to the Florida Legislature, October 2005, Jill S. Levinson, Ph.D.
15. Despite overwhelming public and political support, there is no evidence that proximity to schools increases recidivism, or, conversely, that housing restrictions reduce reoffending or increase community safety. Sex offender residence restrictions. A Report to the Florida Legislature, October 2005, Jill S. Levinson, Ph.D.
16. Based on the examination of level three re-offenders, there were no examples that residential proximity to a park or school was a contributing factor in any of the sexual re-offenses noted… Enhanced safety due to proximity restrictions may be a comfort factor for the general public, but it does not have any basis in fact…it appears that a sex offender attracted to such locations for purposes of committing a crime is more likely to travel to another neighborhood on order to in secret rather than in a neighborhood where his or her picture is well known. Level Three Sex Offenders Residential Placement Issues, 2003 Report to the Legislature, Minnesota Department of Corrections
17. Having such restrictions in the cities of Minneapolis and St. Paul would likely force level three offenders to move to more rural areas that would not contain nearby schools and parks but would pose other problems, such as high concentration of offenders with no ties to the community; isolation; lack of work, education and treatment options; and an increase in the distance traveled by agents who supervise offenders. Again, no evidence points to any effect on offense rates of school proximity residential restrictions. Level Three Sex Offenders Residential Placement Issues, 2003 Report to the Legislature, Minnesota Department of Corrections
18. Since blanket proximity restrictions on residential locations of level three offenders do not enhance community safety, the current offender-by-offender restrictions should be retained. Proximity restrictions, based on circumstances on an individual offender, serve as a valuable supervision tool…Most of these supervision proximity restrictions address the issue of the offender associating or interacting with children or minors, rather than where the offender resides. Level Three Sex Offenders Residential Placement Issues, 2003 Report to the Legislature, Minnesota Department of Corrections
19. A significant number of offenders have married or have been reunited with their victims; and, in those cases, the residency restriction is imposed on the victims as well as the offenders. Iowa County Attorneys Association…
20. A tight web of supervision, treatment and surveillance may be more important in maintaining community safety than where a sex offender resides. Report on Safety Issues Raised by Living Arrangements for and Location of Sex Offenders in the Community; Colorado Department of Public Safety, Division of Criminal justice, Sex Offender Management Board
BANISHMENT BY A THOUSAND LAWS: RESIDENCY
RESTRICTIONS ON SEX OFFENDERS
Corey Rayburn Yung*
INTRODUCTION
We all carry within us our places of exile, our crimes and our ravages. But
our task is not to unleash them on the world; it is to fight them in ourselves
and in others. – Albert Camus1
http://www.ccoso.org/library%20articles/Banishment%20by%201000%20laws.pdf
In 1932, the Soviet Union instituted the policy of propiska to control the
internal movements of its population.2 As a component of the propiska
system, people without an “acceptable occupation” were exiled from major
cities.3 The exiles were instructed not to live within 100 kilometers of
designated cities within the Soviet Union.4 The practice of banishing people
to the 101st kilometer was later expanded to include criminals, homeless
persons, prostitutes, and political dissidents.5 One of the last great purges to
the 101st kilometer accompanied the 1980 Moscow Olympic Games as the
Soviet Union sought to project a positive image of its capital city to the
world community.6 The practice gave rise to the expression “taken to the
101st kilometer” which is still a storied and harrowing phrase in Russia and
other former Soviet states.7
Members of exile communities lived in a social “abyss” where people
were separated from their families, friends, and the only places they had
ever known.8 Even after the collapse of the Soviet Union, and the resultant
* Assistant Professor of Law, John Marshall Law School; Author of the Sex Crimes
Blog (http://sexcrimes.typepad.com).
1 ALBERT CAMUS, THE REBEL 15 (1951).
2 Tova Höjdestrand, The Soviet-Russian Production of Homelessness, ANTHROBASE
2003, available at: http://www.anthrobase.org/Txt/H/Hoejdestrand_T_01.htm (last visited
Feb. 3, 2007) (noting that, a]t this period of British penological
history, the prison was thought of as being barbaric and outmoded. As a result, the British
could not countenance sending their fellow citizens to extended periods of penal
servitude”).
56 Bleichmar, supra note 46, at 123-24.
57 Id. at 116.
58 Id. at 123-24.
59 TRANSPORTATION ACT OF 1718, 4 Geo. I, ch. 11; Bleichmar, supra note 46, at 116.
60 Bleichmar, supra note 46, at 129.
61 Id. at 126.
62 ROGER EKIRCH, BOUND FOR AMERICA: THE TRANSPORTATION OF BRITISH CONVICTS
TO THE COLONIES 1718-1775 26-27 (1987); Bleichmar, supra note 46, at 116.
Banishment by a Thousand Laws 9
the colonies of Virginia and Maryland.63 The typical term of banishment
was seven years although most of the exiles never returned to the British
Isles.64
Transportation was an important part of the punishment structure in
England because the other available sentences were viewed as too harsh or
too lenient for certain crimes.65 Ireland and Scotland also joined the
formalized transportation practices and saw their citizens sent to the
Americas.66 The practice was still extremely common until the signing of
the Declaration of Independence67 which effectively blocked English ships
from delivering criminals to the Americas.68
As with unguided banishment, prison colonies served functions similar
to capital punishment without the blood:
[E]xecution is a simple punishment, quick, effective, economical, but not
merciful. Hence perhaps the resort to what seemed to many to be the next best
thing – banishment. This at least satisfied the society from which the criminals
were expelled, if no one else. There was no need to worry about their behavior
in the future; the process was cheap; [and] the receiving society could usually
be ignored…69
While the effects on receiving societies were usually ignored, the use of
prison colonies marked the first significant time when the destination
nations for convicts came to resist the importation of criminals.70 This trend
is significant because it recurs with more recent forms of banishment, as
noted below.
While the nations of the British Isles had to curtail transportation
because of the independence of the United States, the practice continued to
other destinations until the middle of the nineteenth century.71 Australia was
a popular destination and almost 40,000 people were transported there from
Ireland alone.72
63 Id.
64 Snider, supra note 31, at 462.
65 Bleichmar, supra note 46, at 122 (noting that �
* n January 11, 1776 newspaper accounts reported that
transportation was effectively suspended whilst the country [referring to the Colonies]
remains unsettled” (internal quotation omitted)).
69 Id. at 123 (quoting A.G.I. SHAW, CONVICTS AND THE COLONIES: A STUDY OF PENAL
TRANSPORTATION FROM GREAT BRITAIN AND IRELAND TO AUSTRALIA AND OTHER PARTS
OF THE BRITISH EMPIRE 24-25 (1966)).
70 Bleichmar, supra note 46, at 128 (noting that �n the Middle Ages, with travel
being cumbersome and difficult, banishment from the village or county was sufficient. As
travel became easier and more efficient, it became necessary to banish beyond the seas”).
With the ease of travel today, true banishment without an expectation of return is an
impossibility short of sending someone to Antarctica or the Moon.
77 Snider, supra note 31, at 464-65.
78 Id.
Banishment by a Thousand Laws 11
For an internal exile system to be effective, a person’s living and travel
arrangements had to be tightly controlled. Thus, the propiska system was a
necessary supplement to Soviet attempts to exile people to the 101st
kilometer because it increased compliance and largely prevented the
banished from entering restricted areas.
However, internal exile has not been practiced on a systemic level in the
Western nations that previously used prison colony systems. Instead, with
the death of prison colonies, prisons once again became the dominant
method of punishing criminals. Prisons offered Western societies the
benefits of banishment without the necessity of frontiers. Prisoners are
forced to exist in separate societies and they are not free to act with the
general population. Just as those sent to Australia in eras past were
forgotten by the society that had cast them out, modern prisons keep the
inmates out-of-sight and out-of-mind.
As a result, the transition from prison colonies to internal exile is an
aborted revolution. While prison colonies are an impossibility in the modern
era, prisons have filled the gap rather than internal exile systems. However,
as noted below, there are persuasive reasons to believe that the transition to
internal exile systems is gaining new momentum.
D. Banishment in the United States
Perhaps because the founding of the United States was responsible for
the end of banishment as punishment among several Western European
countries, it should not be surprising that America has rarely used exile in
its criminal justice system. While banishment was common in the American
colonies, banishment fell into strong disfavor as a means of punishment in
the United States in relation to the strong Anglo-Saxon tradition supporting
exile punishments.79 Currently, only six states specifically allow
banishment as a condition of probation or replacement for imprisonment.80
The primary reasons for the limited use of banishment in the United States
are amorphous public policy objections81 and some ambiguity about the
constitutionality of the practice.82
79 Alloy, supra note 36, at 1087.
80 Matthew D. Borrelli, Banishment: The Constitutional and Policy Arguments Against
this Revived Ancient Punishment, 36 SUFFOLK U. L. REV. 469, 469 (2003) (noting that
“only six states implore [banishment] as part of probationary sentences or as an alternative
to jail time”).
81 Snider, supra note 31, at 466 (noting that, �n the nineteenth century, Massachusetts courts
recognized the state’s power to banish individuals. In 1818 Georgia allowed interstate
banishment, but in 1877 the Georgia legislature amended the state constitution to prohibit
banishment beyond the limits of the state. In 1893, the New York legislature enacted laws
permitting a judge to impose a discretionary sentence that included the option for
banishment. Since that this time, a minority of courts sporadically has used their power to
banish the accused from counties, states, and activities”).
84 Snider, supra note 31, at 456.
85 Borrelli, supra note 90, at 477; Alloy, supra note 36, at 1089.
86 Borrelli, supra note 90, at 473.
87 Id. at 473-74 (noting that, “in 2000 Kentucky banished a man from the state for one
year when a state court found him guilty of domestic abuse”).
88 Snider, supra note 31, at 471.
89 Searching the Lexis-Nexis “U.S. Supreme Court Cases, Lawyer’s Edition” database
for “banish! or exile!” yielded 209 cases on October 28, 2006. However, most of those
cases mention banishment or exile in a context other than punishment or only in passing.
Only a small handful of cases actually address banishment or exile as punishment.
90 See, e.g., Kungys v. United States, 485 U.S. 759 (1987).
Banishment by a Thousand Laws 13
Chase of banishment in the over 200-year-old case which stills controls Ex
Post Facto Clause cases, Calder v. Bull.91 As a result of Justice Chase’s
thorough examination of British banishment practices in Calder, future
Courts have often rehashed that part of the opinion analogizing exile to
whatever matter is before them.92
Interestingly, one of the most recent Supreme Court opinions featuring
references to exile as punishment, was Smith v. Doe,93 which addressed the
constitutionality of Alaska’s sex offender registry law. In Smith, the Court
noted that any resemblance between registry requirements and banishment
was “misleading.”94 Further the court referred to banishment as when a
criminal was “expelled [] from the community.”95 Ultimately, the court
found the registration requirements to be constitutional because they were
simply regulatory, and thus, not banishment.96
Generally, the immigration cases do not offer much insight into how the
Court will address an actual claim that banishment is unconstitutional
because citizens are afforded greater protection against exile. However,
there is a small set of immigration cases related to the refusal of officials to
allow reentry of Chinese laborer citizens that have some bearing on the
topic of this article.
In United States v. Sing Tuck,97 the Supreme Court upheld a statute that
required that a person of Chinese ethnicity seeking admission into the
United States must submit his or her claim to an immigration officer.98 The
decision of the immigration officer was final and even claims of actual
citizenship were not subject to appellate review or habeas relief unless a
person could show actual abuse of authority by the government.99
Applying the precedent in Sing Tuck, the Court, in United States v. Ju
Toy,100 upheld a denial of habeas relief to a Chinese laborer seeking reentry
to the United States as a citizen who had been barred entry by a government
official without a hearing. The court upheld the appellate court’s denial of
habeas relief despite a clear factual finding by the district court that Ju Toy
was, in fact, a citizen. The majority opinion, by Justice Holmes, made no
mention of exile or banishment. However, Justice Brewer in his dissent
91 3 U.S. 386 (1798).
92 See, e.g., Stogner v. California, 539 U.S. 607 (2003).
93 538 U.S. 84 (2003).
94 538 U.S. at 98.
95 Id.
96 Id.
97 194 U.S. 161 (1903).
98 United States v. Ju Toy, 198 U.S. 253, 261 (1905).
99 194 U.S. at 163.
100 198 U.S. at 253.
14 Banishment by a Thousand Laws
engaged in an elaborate discussion of banishment, deportation, and the
refusal to allow entry.101
Justice Brewer attempted to distinguish the case before him with the
decision in Fong Yue Ting v. United States102 when the court had held that
banishment through deportation of an alien was not punishment. Justice
Brewer argued that, “it was not suggested, and indeed could not be, that the
deportation and exile of a citizen was not punishment.”103 The dissent went
on to discuss various definitions of banishment and some history of exile as
punishment. Justice Brewer’s conclusion was that, “umming this up,
banishment is a punishment and of the severest sort.”104
Justice Brewer’s dissent has no value as precedent and is distinguishable
from residency restrictions because he was considering banishment from the
entire United States. Nonetheless, his writings are the most significant from
the Supreme Court on the issue of banishment as punishment. The fact that
the majority opinions in the Chinese laborer cases, while still “good” law,
are not remembered well105 could lend some authority to Justice Brewer’s
thorough analysis of the issue.
The only other Supreme Court opinion of relevance to this article was in
the 1800 case of Cooper v. Telfair.106 The plaintiff in Cooper argued that
the acts of the state of Georgia were unconstitutional when the state
confiscated the plaintiff’s property because the plaintiff had joined British
forces against the United States. In Justice Cushings’s opinion, he wrote
that, t]here are no restaurants, hotels or
banks and only four thousand residents in the county.”132 Since Collett, a
single prosecutor in DeKalb County has had over 200 defendants banished
to Echols County.133 The majority opinion in Collett did not address the fact
that none of the defendants sentenced to 158-county banishment would
likely choose to live in Ware or Echols County. The result of the
banishment sentences, while not technically ordering the defendants to
leave the state, was surely to cause such an exodus to occur.
In states where the practice is of questionable legality, the trend among
courts that have allowed banishment has been to call the punishment
something other than banishment.134 This judicial sleight-of-hand is usually
accomplished by the court adopting a very narrow definition of what
constitutes banishment.135 This feat is performed with relative ease because
of the lack of a developed case law defining the specific parameters of what
constitutes “banishment” or “exile.” This ambiguity in the definition of
banishment becomes prominent in reviewing the case law related to sex
offender exclusion zones.
II. CONTROLLING AND PUNISHING SEX OFFENDERS
That is why some think that legislators ought to stimulate men to virtue and
urge them forward by the motive of the noble, on the assumption that those
who have been well advanced by the formation of habits will attend to such
influences; and that punishments and penalties should be imposed on those
who disobey and are of inferior nature, while the incurably bad should be
completely banished. – Aristotle136
129 208 S.E.2d 472 (Ga. 1974).
130 Id. at 474.
131 Snider, supra note 31, at 455.
132 Alloy, supra note 36, at 1099.
133 Id.
134 Borrelli, supra note 90, at 481.
135 Id.
136 THE COMPLETE WORKS OF ARISTOTLE 1180a5-10 (W.D. Ross and J.O. Urmson,
trans., 1984).
18 Banishment by a Thousand Laws
Pedophiles are easy targets for politicians seeking to look tough on
crime.137 Their crimes make front page headlines and are morally
incomprehensible to the general population. When a child is involved, the
perpetrator is thought to be of the vilest sort.138 The media coverage of the
crimes leaves little of the heinous details to the reader’s imagination. Bill
O’Reilly has been one of the most vocal media members attacking
legislators who are “weak” on sex offender issues. In admonishing those
who oppose a crackdown on sex offenders, he recently said, �
Advocate says sex offender law won't work
August 3, 2008
RUTLAND, Vt.—An advocate for victims of domestic and sexual violence says an ordinance being considered by the city that would require sex offenders to live far from schools, playgrounds and day care centers won't work.
http://www.boston.com/news/local/vermont/articles/2008/08/03/advocate_says_sex_offender_law_wont_work/
Karen Tronsgard-Scott, the director of the Vermont Network Against Domestic and Sexual Violence who oversees 16 domestic and sexual violence shelters, hot lines and support groups, said such strategies have been shown to create more problems than they cure.
Moving sex offenders away from probation officers and community support can lead to isolation and a higher risk of re-offense.
"Sex offenders who don't re-offend are stable ones," said Tronsgard-Scott. "As options for housing becomes more limited, it drives up the likelihood of re-offending and it drives people to fall off the registry and go underground."
She said laws such as those being considered in Rutland can have unintended consequences. "Decisions made to strengthen public safety have in fact worked in opposition to the goals to keep kids safer," she said.
On Monday, the Board of Aldermen will decide whether to adopt a so-called "Child Safety Ordinance" establishing 1,000-foot buffer zones around every school, park and registered daycare in the city. The overlapping zones would make it illegal for sex offenders charged with sex crimes involving a minor to live in most areas of the city.
The idea being considered, which was based on an ordinance recently adopted in Barre, is being supported by the city's administration, aldermen and police.
Tronsgard-Scott said she was glad to see Rutland discussing the issue of sexual violence.
She said there have been studies across the country that show there's no link between recidivism and where offenders spend time.
Instead of buffer zones, Tronsgard-Scott said she would like to see communities and the state to support educational programs.
But Rutland Mayor Christopher Louras said hadn't done any research into whether the proposed ordinance would work.
"I would argue that if this protects just one child, it's worth it," he said. "No one has ever contended that this is perfect legislation that will protect all children but it's more than we have now."
Go to cfcoklahoma.com for more info.
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