Never going home: does it make us safer? Does it make sense? Sex offenders, residency restrictions, and reforming risk management law.

I. INTRODUCTION: MEET PATRICK LEROY

Patrick Leroy is thirty-seven, and has lived almost all of his life with his mother in East St. Louis, Illinois, (1) one of the state's--and nation's-poorest communities. In 1987, when Leroy was eighteen, he was convicted of an unspecified sexual offense, (2) for which he served six years in prison. (3) As a result of this conviction, Leroy is now considered a sex offender, mandating that he annually register his address with, and pay a registration fee to, the local authorities for the rest of his life, or be sentenced to up to three years in prison for noncompliance. (4) Since being released over a dozen years ago, he has lived in his mother's house and committed no further sexual offenses. (5)

In July 2000, Illinois passed a sex offender residency restriction law. (6) The law forbade anyone convicted of a sex offense from living within five hundred feet of playgrounds, schools, or day care centers. (7) The ban applied prospectively and retrospectively, exempting only those who owned a house within the five hundred foot buffer at the law's inception from having to move. (8) Violation of the residency restriction law in Illinois is a felony, punishable by one to three years in prison. (9) Leroy's mother's house, where Leroy had lived all of his non-incarcerated life, is located within five hundred feet of Miles Davis Elementary School. (10)

Leroy was charged in August 2002 with violating the residency restriction statute. (11) In the ensuing trial and appeal, Leroy argued that these new restrictions violated his substantive and procedural due process rights, his fight to equal protection, his right against self-incrimination, prohibitions against ex post facto laws, and prohibitions against cruel and unusual punishment. (12) The Fifth District of the Illinois Appellate Court rejected all these considerations; (13) the Illinois Supreme Court denied his appeal; (14) and now Patrick Leroy cannot live in his mother's house. (15)

The three-member panel's decision was not unanimous, as Judge Kuehn dissented vigorously to the "expulsion" of Patrick Leroy. (16) Judge Kuehn, in detailing the constitutional infirmities of the residency restriction law, (17) noted that the law's enforcement would result in a lifetime ban against Leroy returning to his longtime home, where he had lived without incident for thirteen years since release from prison. (18)

Patrick Leroy's story is not unique. He is just one of many former sex offenders now caught in an escalating movement to publicly identify and stringently control sex offenders in order to prevent the next graphic sex crime against children. Sex offenders are vilified and feared; their crimes considered our "society's worst nightmare." (19) But while legislators gain notoriety in this "race to the bottom" (20) for passing laws banning sex offenders from living near day care centers, schools, parks, libraries, pools, and recreations trails, larger questions loom: Have these laws made our children safer? More to the point, do these sex offender restrictions make sense? If these "Scarlet Letter" (21) laws are not effective, what system would ensure better sex offender risk management without wasting scarce public funds policing and onerously burdening those low-risk offenders like Leroy, who have lived without trouble down the street from schools, parks, and nurseries for many years?

To answer these questions, the Comment is divided into three main parts, considering residency restrictions as a microcosm of the larger problem of effective and constitutional sex offender risk management. Section II traces the recent development of sex offender laws and the resulting pariah-like status of sex offenders in contemporary America. (22) Sections III and IV specifically focus on residency restrictions, first scrutinizing their scientific, economic, and political problems before analyzing the ex post facto constitutional infirmities with the laws. (23) The conclusion from Sections III and IV is that uniformly applied residency restrictions will probably fail judicial scrutiny, and in any case are ineffective in preventing sex offender recidivism. (24)