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Sex Offenders Win Shot At Release From Indefinite Prison

By RJ Vogt | April 14, 2019, 8:02 PM EDT

If you’re a convicted child sex offender in America, your state or local government probably restricts the places where you can live. But dealing with the ensuing lack of housing by keeping sex offenders in prison indefinitely, according to a recent federal court ruling, is an “unconstitutional” solution.

The March 31 decision by U.S. District Judge Virginia Kendall came after a class of sex offenders sued the Illinois Department of Corrections for trapping them behind bars for months and even years beyond their sentenced release dates.

In that state, it is illegal for child sex offenders to “knowingly reside” within 500 feet of a school, playground, child care institution, day care center or the victim of the original offense. Other states and municipalities extend such buffers to 1,000 and even 2,500 feet.

More Illinois rules apply to sex offenders set to leave prison and begin a probation-like phase called “mandatory supervised release,” or MSR. One law bars them from living near parks, swimming pools or any other places “where minor children congregate,” while another gives the DOC discretion to impose its own restrictions regarding access to the internet.

As a result, plaintiff J.D. Lindenmeier still lives in a prison cell, nearly eight years after he was approved for release by the Prisoner Review Board, because he can’t find an approvable place to live.

Convicted of predatory criminal assault of a child in 2006, Lindenmeier has been blocked from moving out of the Taylorville Correctional Center because his father lives too close to a playground, his mother has a computer with internet access, his sister has children in the house and a friend’s place is too close to a day care.

In her March opinion, Judge Kendall noted Lindenmeier has no money to look for or pay for housing on his own.

“In this case,” she wrote, “application of the laws to keep indigent and homeless sex offenders locked up (while nonindigent sex offenders roam free) has no reasonable relation to public protection.”

The judge added that the DOC’s decision to block inmates like Lindenmeier from release “unconstitutionally subjects indigent, homeless sex offenders to a loss of liberty for the solitary reason that they cannot afford rent,” violating the Eighth Amendment’s equal protection clause.

Adele Nicholas, who represented Lindenmeier and the other inmates in the suit, told Law360 that the ruling could be a light at the end of the tunnel for approximately 250 inmates who’ve been stuck in “this infinite loop of their release time never starting.”

“It’s a huge relief to everyone,” she said. “People are on the edge of their seat, waiting to see what this actually means. Of course the state could still appeal, we hope they won’t ... but people in general are very hopeful for the first time in a long time.”

During the litigation, DOC contended it was just following laws that “are rationally related to the state’s legitimate interest in protecting children from abuse.” It declined comment on the ruling but is expected at an April 22 hearing to discuss how to adjust its handling of indigent sex offenders seeking release.

In her opinion, Judge Kendall observed that Illinois law authorizes the use of electronic monitoring devices for sex offenders who are homeless, hinting at a possible solution for those with unapprovable host sites.

Nicholas, however, said that leaving jail with a GPS bracelet on and heading straight for a homeless shelter is not an ideal situation.

“I mean at least somebody who’s out has the opportunity to get work and start saving money to have a place to live,” she said. “But what would really make sense is that, for people who can’t afford somewhere to live, there would be properly funded transitional housing.”

She added that there’s currently not a single shelter or halfway house in Illinois that will accept a person on parole or MSR for a sex offense.

“That needs to be fixed,” she said.

According to Guy Hamilton-Smith, legal fellow at Mitchell Hamline School of Law’s Sex Offense Litigation and Policy Resource Center, the case shined a light on how difficult it can be to comply with residency restrictions. He would know, having been convicted for possession of child pornography in 2006 as a 22-year-old.

“I was made homeless for a time,” he told Law360, remembering how his childhood home was too close to a park and an elementary school. “The first few places I tried to find housing, I was rejected because I was on the registry.”

But unlike Lindenmeier and the other plaintiffs in the Illinois case, Hamilton-Smith had a strong support network: his parents helped him find a motel on the county line that met local residency restrictions, and he eventually found a landlord who would rent to him while he served a five-year suspended sentence.

Hamilton-Smith went on to graduate University of Kentucky law school, but was denied a chance to sit for the bar exam until he gets off the registry at age 49. Now a married writer and advocate for more sensible sex offender policies, he said he believes people should be held accountable for the crimes they commit.

“But this is also supposed to be about public safety and ensuring people don’t commit additional offenses,” Hamilton-Smith added. “What’s known in criminology writ large is that if people have stable housing or employment, those are reasons to stay out of prison. To the extent we make it essentially impossible for people to have those things, then what are we doing?”

His position is not unique: multiple studies on laws in California, Minnesota and Florida have shown that residency restrictions can actually endanger public safety by undermining offenders’ stability. Even the U.S. Department of Justice has stated “the evidence is fairly clear that residence restrictions are not effective” and do not decrease or deter sexual recidivism.

Still, towns, counties and states across the country continue to implement residency restrictions.

In January, Hawaii state Rep. Scott Nishimoto introduced a bill to prohibit sex offenders from living within 1,000 feet of a school, child care facility, playground or park.

He told a local news outlet that the move would help Hawaii, one of 20 states that don’t restrict where a sex offender can live, catch up to “what other states are doing.”

Meanwhile, the Indiana House unanimously passed a bill in late March that included an amendment by state Rep. Carolyn B. Jackson to ban sex offenders from living within 1,000 feet of a day care center.

Jackson, a former probation officer supervisor, told Law360 that her experience with sex offenders taught her that treatment and therapy “is not very effective.” Though she acknowledged residency restrictions aren’t proven to improve safety — even noting that most victims know their predators personally — Jackson said there’s still some instances in which roaming sex offenders “just can’t help themselves.”

“If they’re living a close distance from a daycare, you don’t know if they’re not preying around between the cars or in the alleys, waiting for these children,” she said. "If you protect that area, it might protect the children. If you can just save one kid, it matters.”

But according to leading victims’ rights advocate Patricia Wetterling, whose son, Jacob Wetterling, was abducted, sexually assaulted and murdered in 1989 in Minnesota, reliance on residency restrictions to ensure safety is counterproductive.

Even though her family’s tragedy spawned the first state sex offender registry, Wetterling recently spoke out against residency restrictions at a Mitchell-Hamline symposium. She said the “sex offender” label is too broadly applied and that blanket restrictions are “not what we intended with any of this.”

In her own case, she pointed out that her son’s killer lived 30 miles away from where the kidnapping took place.

“We’ve learned a lot about sex offender management: We know that zoning restrictions don’t work,” Wetterling said.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.