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Will Federal Court Invalidate Dade’s Sexual Offender Residency Restriction?

Doe v. Miami-Dade County, 15-14336 (11th Cir. Sept. 23, 2016)

“How is it that an army of angry homeless sex offenders who are roaming our streets makes us safer?” –state Sen. David Aronberg

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The U.S. Court of Appeals of the 11th Circuit recently reversed the Southern District of Florida’s dismissal of a claim that Miami-Dade County’s residency restriction for sexual offenders is an unconstitutional ex post facto law. The Dade ordinance prohibits sexual “offenders” and “predators,” convicted of certain enumerated sexual offenses against victims under age 16, from residing within 2,500 feet of any school. The 2,500-foot distance (almost half a mile) is measured in a straight line, or, “as the crow flies,” not by a pedestrian or automobile route.

As it turns out, this ordinance has the unintended consequence of drastically limiting the number of places in Dade County where a sexual offender may reside. Miami-Dade received national publicity in 2009 when homeless sexual offenders could find no place to live except under the Julia Tuttle Causeway, which spans Biscayne Bay. Those who violate the law by living within 2,500 feet of a school are subject to a $1,000 fine and a year in jail.

Two of the plaintiffs in Doe v. Miami-Dade County alleged that they are homeless as a direct result of the County ordinance. One was unable to live with his sister because she lived too near a school, and his probation officer instructed him to live in a homeless encampment (presumably under a bridge). The other plaintiff sleeps in his car because he can’t find available, affordable housing that is not within 2,500 feet of a school.

The plaintiffs in Doe committed their crimes before the Dade ordinance was enacted. Since ex post facto laws (defined as laws that apply to events occurring before their enactment that alter the definition of criminal conduct or increase the punishment) are unconstitutional when they are punitive in nature, the question becomes whether this residency restriction is a civil, nonpunitive regime (constitutional), or whether it imposes punishment (unconstitutional).

The federal appeals court’s analysis in this case was guided by the U.S. Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003), which upheld Alaska’s sex offender registration and notification requirements. But Alaska’s law had no residency restriction and merely required sexual offenders to register certain information, such as address and employer, with the state and to notify the state if the information changed. The information obtained would be publicly available. The Supreme Court held that disseminating truthful information is a reasonable way to achieve the nonpunitive purpose of protecting the public from sexual offenders.

Unlike the Alaska law, the Dade County 2,500-foot restriction makes it close to impossible for sex offenders to find housing. Furthermore, it is imposed on offenders for the rest of their lives, in contrast to Florida state law, which imposes a 1,000-foot restriction that does not necessarily apply for life. The Eleventh Circuit held that the plaintiffs had “alleged sufficient facts to raise plausible claims that the County’s residency restriction is so punitive in effect that it violates the ex post facto clauses of the federal and Florida constitutions.” The case is remanded to the District Court for further proceedings.

My take: The Dade County ordinance, well-intentioned though it may be, has the de facto effect of turning sexual offenders who have served their prison time into homeless people. This is a punitive effect not contemplated by the criminal sex offender laws. As the plaintiffs argued, the only effective means of treating sexual offenders and reducing recidivism are targeted treatments in supporting, stable environments, where the offenders have access to housing, employment, and transportation. And if the County is trying to keep tabs on the whereabouts of sexual offenders, turning them into homeless people who sleep in their cars seems counterproductive to that effort. Sexual offenders who committed their crimes after the Dade ordinance was enacted will not be able to argue that the ordinance is an ex post facto law as applied to them, so even if the federal court agrees with the plaintiffs in this case, that will not prevent later offenders from becoming homeless denizens of park benches. Miami-Dade County should repeal or revise this ill-conceived law.

–Tom Regnier, October 20, 2016

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Tom Regnier Appeals, P.A. | 786-319-4810
1580 Sawgrass Corporate Parkway, Suite 130
Sunrise, FL 33323

Florida Bar Number: 660000

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