Jessica’s Laws Challenged In The Courts

November 4, 2009

The question of sex offender registration has been in the news a lot lately. As a father, I confess that more than once I’ve checked out the websites revealing the locations of sex offenders near our home. I don’t do anything with the information. It just scares the hell out of me.  I know I’m not alone.

The laws that spawned these registries are referred to generically as “Jessica’s Laws”.   The original law was enacted in Florida in 2005. It was named in honor of Jessica Lunsford, a young Florida girl who was raped and murdered by John Couey, a previously convicted sex offender.

The law required mandatory minimum prison sentences, lifetime electronic monitoring, and registration of adults convicted of sexual acts against children, among other provisions.

Since then, many states have enacted similar statutes, and there has even been proposed federal legislation, which has never been passed.

Recently there have been some questions raised as to the constitutionality of these laws, and whether they really do any good.  A 2007 report by Human Rights Watch found no evidence that residency restrictions reduce crimes against children.  A 2003 Department of Justice study found that 5.3 percent of sex offenders were arrested for a new sex crime within three years of leaving prison, a lower recidivism rate than that of car thieves, drug dealers, or burglars. The study also noted that the sex offenders who are most likely to stay out of jail and not re offend are those who are not segregated but have “positive, informed support systems—including stable housing and social networks”.

One of the results of these laws seems to be the creation of small “sex offender ghettos” in communities throughout the country. This is because laws in many states bar sex offenders from living within close proximity of schools, day care centers, playgrounds, or other places where children tend to gather. As a result many of these individuals are isolated from their family and friends. The areas where they can live are often high crime, run down neighborhoods.  One of these areas is not far from where I practice law on Long Island.  In December of 2007 New York Magazine published a feature article about an enclave in Coram, New York.

Meanwhile, courts have begun to rule on the constitutionality of these laws. In 2008 the Supreme Court held in Kennedy v. Louisiana that a death penalty provision in the Louisiana Jessica’s Law Statute was unconstitutional. Justice Kennedy wrote the opinion, stating that  “The death penalty is not a proportional punishment for the rape of a child.”   Kennedy noted that “there has not been an execution in the United States for a crime that did not also involve the death of the victim in 44 years,” and that to permit the death penalty under these circumstances would constitute an Eighth Amendment violation, to wit: a cruel and unusual punishment.

The California Supreme Court heard arguments yesterday on a Jessica’s Law case, and may address the question of whether the residency restrictions contained in Proposition 83 are so broad and intrusive as to violate the constitutional rights of sex offenders.

The more important question seems to be whether keeping these people isolated does more harm than good.

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