United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1568
___________
John Doe, I, on their own behalf and as *
representatives of the class of all sex *
offenders in the State of Iowa; John Doe,*
II, on their own behalf and as *
representatives of the class of all sex *
offenders in the State of Iowa; John Doe,*
III, on their own behalf and as *
representatives of the class of all sex *
offenders in the State of Iowa, *
*
Appellees, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Tom Miller, Iowa Attorney General; *
*
Appellant. *
*
J. Patrick White, as representatives *
of the class of all county attorneys in *
Iowa; Michael Wolf, as representatives *
of the class of all county attorneys in *
Iowa, *
*
Defendants. *
___________
Submitted: November 4, 2004
Filed: April 29, 2005
___________
Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
In 2002, in an effort to protect children in Iowa from the risk that convicted sex
offenders may reoffend in locations close to their residences, the Iowa General
Assembly passed, and the Governor of Iowa signed, a bill that prohibits a person
convicted of certain sex offenses involving minors from residing within 2000 feet of
a school or a registered child care facility. The district court declared the statute
unconstitutional on several grounds and enjoined the Attorney General of Iowa and
the ninety-nine county attorneys in Iowa from enforcing the prohibition.
Because we conclude that the Constitution of the United States does not
prevent the State of Iowa from regulating the residency of sex offenders in this
manner in order to protect the health and safety of the citizens of Iowa, we reverse the
judgment of the district court. We hold unanimously that the residency restriction is
not unconstitutional on its face. A majority of the panel further concludes that the
statute does not amount to unconstitutional ex post facto punishment of persons who
committed offenses prior to July 1, 2002, because the appellees have not established
by the “clearest proof,” as required by Supreme Court precedent, that the punitive
effect of the statute overrides the General Assembly’s legitimate intent to enact a
nonpunitive, civil regulatory measure that protects health and safety.
I.
Iowa Senate File 2197, now codified at Iowa Code § 692A.2A, took effect on
July 1, 2002. It provides that persons who have been convicted of certain criminal
offenses against a minor, including numerous sexual offenses involving a minor, shall
not reside within 2000 feet of a school or registered child care facility. Iowa Code
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§ 692A.2A(1)-(2). The law does not apply to persons who established a residence
prior to July 1, 2002, or to schools or child care facilities that are newly located after
July 1, 2002. Id. § 692A.2A(4)(c). Violations of the statute are punishable as
aggravated misdemeanors. Iowa Code § 692A.2A(3).1
1
The text of the statute provides as follows:
692A.2A Residency restrictions – child care facilities and schools.
1. For purposes of this section, “person” means a person who has
committed a criminal offense against a minor, or an aggravated offense,
sexually violent offense, or other relevant offense that involved a minor.
2. A person shall not reside within two thousand feet of the real
property comprising a public or nonpublic elementary or secondary
school or a child care facility.
3. A person who resides within two thousand feet of the real property
comprising a public or nonpublic elementary or secondary school, or a
child care facility, commits an aggravated misdemeanor.
4. A person residing within two thousand feet of the real property
comprising a public or nonpublic elementary or secondary school or a
child care facility does not commit a violation of this section if any of
the following apply:
a. The person is required to serve a sentence at a jail, prison,
juvenile facility, or other correctional institution or facility.
b. The person is subject to an order of commitment under chapter
229A.
c. The person has established a residence prior to [] July 1, 2002,
or a school or child care facility is newly located on or [after] July
1, 2002.
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Almost immediately after the law took effect, three named plaintiffs – sex
offenders with convictions that predate the law’s effective date – filed suit asserting
that the statute is unconstitutional on its face. The district court certified their action
as a class action, with a plaintiff class that includes all individuals to whom Iowa
Code § 692A.2A applies who are currently living in Iowa or who wish to move to
Iowa, except for any person who currently is the subject of a prosecution under
§ 692A.2A. The named plaintiffs, identified as various “John Does,” had committed
a range of sexual crimes, including indecent exposure, “indecent liberties with a
child,” sexual exploitation of a minor, assault with intent to commit sexual abuse,
lascivious acts with a child, and second and third degree sexual abuse, all of which
brought them within the provisions of the residency restriction. A defendant class,
including all of Iowa’s county attorneys, also was certified.
During a two-day bench trial, plaintiffs presented evidence concerning the
enforcement of § 692A.2A, including maps that had been produced by several cities
and counties identifying schools and child care facilities and their corresponding
restricted areas. After viewing these maps and hearing testimony from a county
attorney, the district court found that the restricted areas in many cities encompass the
majority of the available housing in the city, thus leaving only limited areas within
city limits available for sex offenders to establish a residence. In smaller towns, a
single school or child care facility can cause all of the incorporated areas of the town
to be off limits to sex offenders. The court found that unincorporated areas, small
towns with no school or child care facility, and rural areas remained unrestricted, but
d. The person is a minor or a ward under a guardianship.
Iowa Code § 692A.2A. The term “residence” is defined as “the place where a person
sleeps, which may include more than one location, and may be mobile or transitory.”
Iowa Code § 692A.1(8).
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that available housing in these areas is “not necessarily readily available.” Doe v.
Miller, 298 F.Supp.2d 844, 851 (S.D. Iowa 2004).2
Plaintiffs also presented evidence of their individual experiences in seeking to
obtain housing that complies with the 2000-foot restriction. Several of the plaintiffs,
including John Does III, IV, XV, and XVIII, have friends or relatives with whom they
would like to live, but whose homes are within 2000 feet of a school or child care
facility. Many, such as John Does VII, X, XI, XII, XIII, XIV, and XVIII, live in
homes that are currently compliant, either because they were established prior to July
1, 2002, or because the homes are outside the 2000-foot restricted areas. These
plaintiffs, however, testified that they would like to be able to move into a restricted
area. Still others, John Does II, VI, VIII, IX, XV, and XVI, are living in non-
compliant residences that they wish to maintain.
Plaintiffs testified that in many cases they had a difficult time obtaining
housing that was not within 2000 feet of a school or child care center. John Doe VII
testified that he investigated 40 residences, but was unable to find any housing that
would not place him in violation of § 692A.2A. The evidence also showed, however,
that while the residency restriction may have exacerbated a housing problem for the
plaintiffs, not all of their difficulty was caused by the statute. For example, John Doe
II had difficulty finding housing in part because of his credit problems. John Doe
XIV testified that the only available compliant housing in his hometown, Waterloo,
2
The parties presented substantial evidence concerning the effect of the statute
on the availability of housing for sex offenders in Carroll County, Iowa. The district
court found that 2077 of 9019 residential units in the county (23 percent) were not in
restricted areas. The Carroll County Attorney testified that 1694 of the available units
were in unincorporated areas of the county, and were “mainly farmhouses,” but he
noted that the trend toward larger farms has created some vacancies in farmhouses
where the party farming the land does not live in the farmhouse. Of the remaining
383 units available in the county, the district court found that 244 were located in
towns without a school or child care facility. Doe v. Miller, 298 F.Supp.2d at 852.
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was too expensive, so he and his wife purchased a rural home about 45 miles away.
The mother of John Doe IV made efforts to help her son find housing, and she
testified that she was able to find two potential residences for her son, but neither
residence had any vacant units. John Doe VI was renting an apartment in compliance
with § 692A.2A, but had to move out when the landlord decided that he did not want
to rent to a sex offender. Similarly, John Does VIII and XI each found at least one
possible compliant apartment, but their applications were denied because of their
criminal records. In apparent contrast to this testimony from the plaintiffs, Dudley
Allison, a parole and probation officer, testified that while the statute made it more
difficult for sex offenders to find housing, “virtually everyone” among the covered
parolees and probationers whom he supervised between July 2002 and July 2003 was
able to locate housing in compliance with the statute. (T. Tr. at 285).
In addition to evidence regarding the burden that § 692A.2A places on sex
offenders, both plaintiffs and defendants presented expert testimony about the
potential effectiveness of a residency restriction in preventing offenses against
minors. The State presented the testimony of Mr. Allison, a parole and probation
officer who specialized in sex offender supervision. Allison described the process
of treating sex offenders and his efforts at preventing recidivism by identifying the
triggers for the original offense, and then imposing restrictions on the residences or
activities of the offender. According to Allison, restrictions on the proximity of sex
offenders to schools or other facilities that might create temptation to reoffend are one
way to minimize the risk of recidivism. In the parole and probation context, Allison
also has authority to limit offenders’ activities in more specific ways, and he testified
that he attempts to remove temptation by preventing offenders from working in jobs
where they would have contact with potential victims or from living near parks or
other areas where children might spend time unsupervised. In addition to the limits
that he imposes on offenders under his supervision, Allison also testified that there
is “a legitimate public safety concern” in where unsupervised sex offenders reside.
In Allison’s view, reoffense is “a potential danger forever.”
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The State also introduced the transcript of hearing testimony by Dr. William
McEchron, a psychologist with a general practice that includes sex offender patients.
Like Allison, Dr. McEchron testified that there is no cure for sex offenders and that
“there are never any guarantees that they might not reoffend.” In his view, the
“biggest risk is what’s going on inside the individual,” but reducing the opportunity
and the temptation to reoffend is extremely important to treatment. He explained that
because there are “very high rates of re-offense for sex offenders who had offended
against children,” he believed it would be appropriate to restrict places where sex
offenders might come into contact with children. He thought the appropriateness of
such a restriction was “common sense,” although he said there were insufficient data
to know “where to draw the marks.” Dr. McEchron also testified, however, that in
his view, life-long restrictions like § 692A.2A do not aid in the treatment process, and
could even foster negative attitudes toward authority and depression in offenders who
view the law as unfair.
The plaintiffs offered the testimony of Dr. Luis Rosell, a psychologist with
experience in sex offender treatment. Dr. Rosell estimated that the recidivism rate for
sex offenders is between 20 and 25 percent, and like Allison and Dr. McEchron,
stated his belief that the key to reducing the risk of recidivism is identifying the
factors that led to the offender’s original offense and then helping the offender to deal
with or avoid those factors in the future. Dr. Rosell testified that reducing a specific
sex offender’s access to children was a good idea, and that “if you remove the
opportunity, then the likelihood of reoffense is decreased.” He did not believe,
however, that “residential proximity makes that big of a difference.” Moreover, Dr.
Rosell thought that a 2000-foot limit was “extreme.” Like Dr. McEchron, he worried
that the law might be counterproductive to the offender’s treatment goals by causing
depression and potentially removing the offender from his “support system.”
After hearing the testimony of all three experts and of the individual plaintiffs,
the district court declared that § 692A.2A was unconstitutional on several grounds,
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to wit: that it was an unconstitutional ex post facto law with respect to offenders who
committed an offense prior to July 1, 2002; that it violated the plaintiffs’ rights to
avoid self-incrimination because, coupled with registration requirements elsewhere
in Chapter 692A, it required offenders to report their addresses even if those
addresses were not in compliance with § 692A.2A; that it violated procedural due
process rights of the plaintiffs; and that it violated the plaintiffs’ rights under the
doctrine of substantive due process, because it infringed fundamental rights to travel
and to “privately choose how they want to conduct their family affairs,” and was not
narrowly tailored to serve a compelling state interest. Although the district court
believed the law was punitive, the court rejected the plaintiffs’ final argument that the
law imposed cruel and unusual punishment in violation of the Eighth Amendment.
Having found the statute unconstitutional, the district court issued a permanent
injunction against enforcement. Doe v. Miller, 298 F.Supp.2d at 880.
II.
We first address the contention that § 692A.2A violates the rights of the
covered sex offenders to due process of law under the Fourteenth Amendment. The
appellees (to whom we will refer as “the Does”) argue that the statute is
unconstitutional because it fails to provide adequate notice of what conduct is
prohibited, and because it does not require an individualized determination whether
each person covered by the statute is dangerous. This claim relies on what is known
as “procedural due process.”
The Due Process Clause provides that no State shall deprive any person of life,
liberty, or property without due process of law. The requirement of “due process” has
led to the judicial doctrine of vagueness, which requires that a criminal statute “define
the criminal offense with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983).
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There is no argument here that the words of the statute are unconstitutionally
vague. Rather, the Does contend that they are deprived of notice required by the
Constitution because some cities in Iowa are unable to provide sex offenders with
information about the location of all schools and registered child care facilities, and
because it is difficult to measure the restricted areas, which are measured “as the crow
flies” from a school or child care facility. We disagree that these potential problems
render the statute unconstitutional on its face. A criminal statute is not vague on its
face unless it is “impermissibly vague in all of its applications,” Vill. of Hoffman
Estates v. Flipside, 455 U.S. 489, 497 (1982), and the possibility that an individual
might be prosecuted in a particular case in a particular community despite his best
efforts to comply with the restriction is not a sufficient reason to invalidate the entire
statute. A sex offender subject to prosecution under those circumstances may seek
to establish a violation of due process through a challenge to enforcement of the
statute as applied to him in a specific case. Nor do we believe that the potential for
varied enforcement of the restriction, which was cited by the district court, 298
F.Supp.2d at 878, justifies invalidating the entire regulatory scheme. Due process
does not require that independently elected county attorneys enforce each criminal
statute with equal vigor, and the existence of different priorities or prosecution
decisions among jurisdictions does not violate the Constitution.
The Does also argue that § 692A.2A unconstitutionally forecloses an
“opportunity to be heard” because the statute provides no process for individual
determinations of dangerousness. This argument misunderstands the right to
procedural due process. As the Supreme Court recently explained in connection with
a comparable challenge to Connecticut’s sex offender registration law, “even
assuming, arguendo, that [the sex offender] has been deprived of a liberty interest,
due process does not entitle him to a hearing to establish a fact that is not material
under the [state] statute.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003).
States “are not barred by principles of ‘procedural due process’ from drawing”
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classifications among sex offenders and other individuals. Id. at 8 (quoting Michael
H. v. Gerald D., 491 U.S. 110, 120 (1989) (plurality opinion)) (emphasis in original).
We likewise conclude that the Iowa residency restriction does not contravene
principles of procedural due process under the Constitution. The restriction applies
to all offenders who have been convicted of certain crimes against minors, regardless
of what estimates of future dangerousness might be proved in individualized
hearings. Once such a legislative classification has been drawn, additional
procedures are unnecessary, because the statute does not provide a potential
exemption for individuals who seek to prove that they are not individually dangerous
or likely to offend against neighboring schoolchildren. Unless the Does can establish
that the substantive rule established by the legislative classification conflicts with
some provision of the Constitution, there is no requirement that the State provide a
process to establish an exemption from the legislative classification. Id. at 7-8. Thus,
the absence of an individualized hearing in connection with a statute that offers no
exemptions does not offend principles of procedural due process.
III.
The Does also assert that the residency restriction is unconstitutional under the
doctrine of substantive due process. They rely on decisions of the Supreme Court
holding that certain liberty interests are so fundamental that a State may not interfere
with them, even with adequate procedural due process, unless the infringement is
“narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292,
301-02 (1993). The Does argue that several “fundamental rights” are infringed by
Iowa’s residency restriction, including the “right to privacy and choice in family
matters,” the right to travel, and “the fundamental right to live where you want.” The
district court agreed that § 692A.2A infringed upon liberty interests that constitute
fundamental rights, applied strict scrutiny to the legislative classifications, and
concluded that the statute was unconstitutional.
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The Does first invoke “the right to personal choice regarding the family.” They
cite the Supreme Court’s statement in Roberts v. United States Jaycees, 468 U.S. 609,
617-18 (1984), that “certain intimate human relationships must be secured against
undue intrusion by the State because of the role of such relationships in safeguarding
the individual freedom that is central to our constitutional scheme,” and the Court’s
discussion of “marital privacy” in Griswold v. Connecticut, 381 U.S. 479, 485-86
(1965). They also rely heavily on the Court’s decision in Moore v. City of East
Cleveland, 431 U.S. 494 (1977), which held unconstitutional a zoning ordinance that
defined “family” in such a way as to prohibit a grandmother and her two grandsons
from living together in an area designated for “single family” dwellings. A plurality
of the Court in Moore reasoned that “freedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process Clause
of the Fourteenth Amendment,” and concluded that the governmental interests
advanced by the city were insufficient to justify an ordinance that “slic[ed] deeply
into the family itself.” Id. at 498-99 (plurality opinion). Justice Stevens concurred
in the judgment on other grounds. Id. at 513-21.
We do not believe that the residency restriction of § 692A.2A implicates any
fundamental right of the Does that would trigger strict scrutiny of the statute. In
evaluating this argument, it is important to consider the Supreme Court’s admonition
that “‘[s]ubstantive due process’ analysis must begin with a careful description of the
asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the
utmost care whenever we are asked to break new ground in this field.’” Flores, 507
U.S. at 302 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). While the
Court has not directed that an asserted right be defined at the most specific level of
tradition supporting or denying the asserted right, cf. Michael H. v. Gerald D., 491
U.S. at 127 n.6 (1989) (opinion of Scalia, J.), the Does’ characterization of a
fundamental right to “personal choice regarding the family” is so general that it would
trigger strict scrutiny of innumerable laws and ordinances that influence “personal
choices” made by families on a daily basis. The Supreme Court’s decision in
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Griswold and the plurality opinion in Moore did recognize unenumerated
constitutional rights relating to personal choice in matters of marriage and family life,
but they defined the recognized rights more narrowly, in terms of “intimate relation
of husband and wife,” Griswold, 381 U.S. at 482, or “intrusive regulation” of “family
living arrangements.” Moore, 431 U.S. at 499 (plurality opinion).
Unlike the precedents cited by the Does, the Iowa statute does not operate
directly on the family relationship. Although the law restricts where a residence may
be located, nothing in the statute limits who may live with the Does in their
residences. The plurality in Moore emphasized this distinction, observing that the
impact on family was “no mere incidental result of the ordinance,” because “[o]n its
face [the ordinance] selects certain categories of relatives who may live together and
declares that others may not.” 431 U.S. at 498-99 (plurality opinion). Thus, the
reasoning of the Moore plurality does not require strict scrutiny of a regulation that
has an incidental or unintended effect on the family, Hameetman v. City of Chicago,
776 F.2d 636, 643 (7th Cir. 1985) (upholding requirement that firemen reside within
city limits), or that “affects or encourages decisions on family matters” but does not
force such choices. Gorrie v. Bowen, 809 F.2d 508, 523 (8th Cir. 1987) (upholding
regulation requiring that applications for public assistance for dependent children
include siblings living in same household). Similarly, the Court in Griswold
disclaimed authority to determine “the wisdom, need, and propriety” of all laws that
touch social conditions, but held unconstitutional a state statute that “operate[d]
directly on an intimate relation of husband and wife.” 381 U.S. at 482.
While there was evidence that one adult sex offender in Iowa would not reside
with his parents as a result of the residency restriction, that another sex offender and
his wife moved 45 miles away from their preferred location due to the statute, and
that a third sex offender could not reside with his adult child in a restricted zone, the
statute does not directly regulate the family relationship or prevent any family
member from residing with a sex offender in a residence that is consistent with the
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statute. We therefore hold that § 692A.2A does not infringe upon a constitutional
liberty interest relating to matters of marriage and family in a fashion that requires
heightened scrutiny.
The Does also assert that the residency restrictions interfere with their
constitutional right to travel. The modern Supreme Court has recognized a right to
interstate travel in several decisions, beginning with United States v. Guest, 383 U.S.
745, 757-58 (1966), and Shapiro v. Thompson, 394 U.S. 618, 629-30 (1969). The
Court subsequently explained that the federal guarantee of interstate travel “protects
interstate travelers against two sets of burdens: ‘the erection of actual barriers to
interstate movement’ and ‘being treated differently’ from intrastate travelers.” Bray
v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277 (1993) (quoting Zobel v.
Williams, 457 U.S. 55, 60 n.6 (1982)). Most recently, the Court summarized that the
right to interstate travel embraces at least three different components: “the right of
a citizen of one State to enter and to leave another State, the right to be treated as a
welcome visitor rather than an unfriendly alien when temporarily present in the
second State, and, for those travelers who elect to become permanent residents, the
right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500
(1999).
Although the district court, like some other courts, considered the first
component of a right to interstate travel under the rubric of “substantive due process,”
the Supreme Court has not identified the textual source of that component. The Court
has observed that the Articles of Confederation provided that “the people of each
State shall have free ingress and regress to and from any other State,” and suggested
that this right “may simply have been ‘conceived from the beginning to be a
necessary concomitant of the stronger Union the Constitution created.’” Id. at 501
& n.3 (quoting Guest, 383 U.S. at 758). The latter two components of the right
identified in Saenz arise from the Privileges and Immunities Clause of Article IV, § 2,
and the Privileges or Immunities Clause of the Fourteenth Amendment. Id.
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The Does argue that § 692A.2A violates this right to interstate travel by
substantially limiting the ability of sex offenders to establish residences in any town
or urban area in Iowa. They contend that the constitutional right to travel is
implicated because the Iowa law deters previously convicted sex offenders from
migrating from other States to Iowa. The district court agreed, reasoning that the
statute “effectively bans sex offenders from residing in large sections of Iowa’s towns
and cities.” 298 F.Supp.2d at 874.
We respectfully disagree with this analysis. The Iowa statute imposes no
obstacle to a sex offender’s entry into Iowa, and it does not erect an “actual barrier
to interstate movement.” Bray, 506 U.S. at 277 (internal quotation omitted). There
is “free ingress and regress to and from” Iowa for sex offenders, and the statute thus
does not “directly impair the exercise of the right to free interstate movement.”
Saenz, 526 U.S. at 501. Nor does the Iowa statute violate principles of equality by
treating nonresidents who visit Iowa any differently than current residents, or by
discriminating against citizens of other States who wish to establish residence in
Iowa. We think that to recognize a fundamental right to interstate travel in a situation
that does not involve any of these circumstances would extend the doctrine beyond
the Supreme Court’s pronouncements in this area. That the statute may deter some
out-of-state residents from traveling to Iowa because the prospects for a convenient
and affordable residence are less promising than elsewhere does not implicate a
fundamental right recognized by the Court’s right to travel jurisprudence.3
3
In its analysis of the right to interstate travel, the district court also expressed
concern that a sex offender might be compelled to avoid Iowa altogether, lest he
establish an unlawful residence by “unwittingly falling asleep” at a location within
2000 feet of a school or child care facility. 298 F.Supp.2d at 875. The court stated
that “[l]iteral application of the Act would result in the great majority of the State’s
hotels and motels being restricted to traveling sex offenders,” and that “community
centers such as homeless shelters and missions will most likely be unavailable to sex
offenders because of location.” Id. This led the court to conclude that “sex offenders
would appear to be able to travel to Iowa freely only so long as they do not stop.” Id.
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The Does also assert that § 692A.2A infringes upon a fundamental
constitutional right to intrastate travel. The Supreme Court has not decided whether
there is a fundamental right to intrastate travel, see Memorial Hosp. v. Maricopa
County, 415 U.S. 250, 255-56 (1974), although it observed long ago that under the
Articles of Confederation, state citizens “possessed the fundamental right, inherent
in citizens of all free governments, peacefully to dwell within the limits of their
respective states, to move at will from place to place therein, and to have free ingress
thereto and egress therefrom.” United States v. Wheeler, 254 U.S. 281, 293 (1920).
During the same era, the Court also commented that “the right of locomotion, the
right to remove from one place to another according to inclination, is an attribute of
personal liberty . . . secured by the 14th Amendment,” Williams v. Fears, 179 U.S.
270, 274 (1900), but as the Third Circuit observed, “[i]t is unclear whether the travel
aspect of cases like Fears can be severed from the general spirit of Lochner v. New
York, 198 U.S. 45 (1905), now thoroughly discredited, that was so prominent in the
substantive due process analysis of that period.” Lutz v. City of York, 899 F.2d 255,
266 (3d Cir. 1990).
Some of our sister circuits have recognized a fundamental right to intrastate
travel in the context of a “drug exclusion zone” that banned persons from an area of
a city for a period of time, Johnson v. City of Cincinnati, 310 F.3d 484, 496-98 (6th
Cir. 2002), an ordinance that outlawed “cruising” and thus limited the ability of
persons to drive on certain major public roads, Lutz, 899 F.2d at 268, and a law that
We question whether these concerns are even applicable to the plaintiffs, given
that the plaintiff class was defined as those sex offenders “currently living” in Iowa
or “might wish to live” in Iowa, not vacationers or cross-country travelers. Id. at 847.
In any event, the Does do not rely on these factual assertions in defending the
judgment of the district court, and we do not find evidence in the record that would
support a specific finding about the proximity of hotels, motels, homeless shelters,
and missions throughout Iowa to schools and child care facilities.
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created a durational residency requirement as a condition of eligibility for public
housing. King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 647-48 (2d Cir.
1971). The Second Circuit, for example, reasoned that it would be “meaningless to
describe the right to travel between states as a fundamental precept of personal liberty
and not to acknowledge a correlative constitutional right to travel within a state.” Id.
at 648; see also Johnson, 310 F.3d at 497 n.4; Lutz, 899 F.2d at 261. Other decisions
have held that there is no fundamental right to intrastate travel in the context of a
bona fide residency requirement imposed as a condition of municipal employment.
Andre v. Bd. of Trs. of Maywood, 561 F.2d 48, 52-53 (7th Cir. 1977); Wardwell v. Bd.
of Educ., 529 F.2d 625, 627 (6th Cir. 1976); Wright v. City of Jackson, 506 F.2d 900,
901-02 (5th Cir. 1975); see also Doe v. City of Lafayette, 377 F.3d 757, 770-71 (7th
Cir. 2004) (en banc) (holding that city’s ban of sex offender from all public parks did
not implicate fundamental right to intrastate travel, where offender was “not limited
in moving from place to place within his locality to socialize with friends and family,
to participate in gainful employment or to go to the market to buy food and
clothing”); Hutchins v. District of Columbia, 188 F.3d 531, 538-39 (D.C. Cir. 1999)
(en banc) (holding that there is no fundamental right for juveniles to be in a public
place without adult supervision during curfew hours).
We find it unnecessary in this case to decide whether there is a fundamental
right to intrastate travel under the Constitution, because assuming such a right is
recognized, it would not require strict scrutiny of § 692A.2A. The district court and
the Does cite the Sixth Circuit’s decision in Johnson for the proposition that there is
a fundamental right to intrastate travel. Accepting that view for purposes of analysis,
we believe that any fundamental right to intrastate travel would likely be “correlative”
to the right to interstate travel discussed in Saenz, see Johnson, 310 F.3d at 497 n.4,
or would consist of a “right to travel locally through public spaces and roadways.”
Id. at 498. Therefore, the Iowa statute would not implicate a right to intrastate travel
for the same reasons that it does not implicate the right to interstate travel. The Iowa
residency restriction does not prevent a sex offender from entering or leaving any part
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of the State, including areas within 2000 feet of a school or child care facility, and it
does not erect any actual barrier to intrastate movement. In this sense, the Iowa law
is comparable to the municipal residency requirements that have been held to
implicate no fundamental right to intrastate travel in Andre, Wardwell and Wright,
and less restrictive on freedom of movement than the ban on access to public parks
upheld under rational basis review in Doe v. City of Lafayette. By contrast, the
decisions finding infringement of a fundamental right to intrastate travel have
involved laws that trigger concerns not present here – interference with free ingress
to and egress from certain parts of a State (Johnson and Lutz) or treatment of new
residents of a locality less favorably than existing residents (King).
The Does also urge that we recognize a fundamental right “to live where you
want.” This ambitious articulation of a proposed unenumerated right calls to mind
the Supreme Court’s caution that we should proceed with restraint in the area of
substantive due process, because “[b]y extending constitutional protection to an
asserted right or liberty interest, we, to a great extent, place the matter outside the
arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S.
702, 720 (1997). Some thirty years ago, our court said “we cannot agree that the right
to choose one’s place of residence is necessarily a fundamental right,” Prostrollo v.
Univ. of S.D., 507 F.2d 775, 781 (8th Cir. 1974), and we see no basis to conclude that
the contention has gained strength in the intervening years. The Supreme Court
recently has restated its reluctance to “expand the concept of substantive due process
because guideposts for responsible decisionmaking in this uncharted area are scarce
and open-ended,” Glucksberg, 521 U.S. at 720 (quoting Collins, 503 U.S. at 125), and
the Does have not developed any argument that the right to “live where you want” is
“deeply rooted in this Nation’s history and tradition,” id. at 721 (quoting Moore, 431
U.S. at 503 (plurality opinion)) or “implicit in the concept of ordered liberty,” such
that “neither liberty nor justice would exist if [it] were sacrificed.” Id. (quoting Palko
v. Connecticut, 302 U.S. 319, 325, 326 (1937)). We are thus not persuaded that the
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Constitution establishes a right to “live where you want” that requires strict scrutiny
of a State’s residency restrictions.
Because § 692A.2A does not implicate a constitutional liberty interest that has
been elevated to the status of “fundamental right,” we review the statute to determine
whether it meets the standard of “rationally advancing some legitimate governmental
purpose.” Flores, 507 U.S. at 306. The Does acknowledge that the statute was
designed to promote the safety of children, and they concede that this is a legitimate
state interest. They also allow that perhaps “certain identifiable sex offenders should
not live right across the street from a school or perhaps anywhere else where there are
children.” (Appellees’ Br. at 51). The Does contend, however, that the statute is
irrational because there is no scientific study that supports the legislature’s conclusion
that excluding sex offenders from residing within 2000 feet of a school or child care
facility is likely to enhance the safety of children.
We reject this contention because we think it understates the authority of a state
legislature to make judgments about the best means to protect the health and welfare
of its citizens in an area where precise statistical data is unavailable and human
behavior is necessarily unpredictable. Although the Does introduced one report from
the Minnesota Department of Corrections finding “no evidence in Minnesota that
residential proximity of sex offenders to schools or parks affects reoffense,” this
solitary case study – which involved only thirteen reoffenders released from prison
between 1997 and 1999 – does not make irrational the decision of the Iowa General
Assembly and the Governor of Iowa to reach a different predictive judgment for
Iowa. As the district court observed, twelve other States have enacted some form of
residency restriction applicable to sex offenders.4 There can be no doubt of a
4
See Ala. Code § 15-20-26(a) (“Unless otherwise exempted by law, no adult
criminal sex offender shall establish a residence or accept employment within 2,000
feet of the property on which any school or child care facility is located.”); Ark. Code
Ann. § 5-14-128(a) (“It shall be unlawful for a sex offender who is required to
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legislature’s rationality in believing that “[s]ex offenders are a serious threat in this
Nation,” and that “[w]hen convicted sex offenders reenter society, they are much
register . . . and who has been assessed as a Level 3 or Level 4 offender to reside
within two thousand feet (2000') of the property on which any public or private
elementary or secondary school or daycare facility is located.” ); Cal. Penal Code
§ 3003(g) ([A]n inmate who is released on parole for any violation of [sections
prohibiting lewd or lascivious acts, or continued sexual abuse of a child] shall not be
placed or reside . . . within one one-quarter mile of any public or private school.”);
Fla. Stat. Ann. § 947.1405(7)(a)(2) (“Any inmate convicted of [certain sexual crimes
against minors] and . . . subject to conditional release supervision . . . [is prohibited
from] living within 1,000 feet of a school, day care center, park, playground,
designated public school bus stop or other place where children regularly
congregate.”); Ga. Code Ann. § 42-1-13(b) (“No individual required to register . . .
shall reside within 1,000 feet of any child care facility, school, or area where minors
congregate.”); 720 Ill. Comp. Stat. § 5/11-9.3(b-5) (“It is unlawful for a child sex
offender to knowingly reside within 500 feet of a school building . . .”); Ky. Rev.
Stat. Ann. § 17.495 (“No registrant . . . who is placed on probation, parole, or any
form of supervised release, shall reside within one thousand (1,000) feet of a high
school, middle school, elementary school, preschool, or licensed day care facility.”);
La. Rev. Stat. § 14:91.1(A)(2) (“Unlawful presence of a sexually violent predator is
. . . the physical residing of a sexually violent predator within one thousand feet of
any public or private, elementary or secondary school, a day care facility, playground,
public or private youth center, public swimming pool, or free standing video arcade
facility.”); Ohio Rev. Code Ann. § 2950.031(A) (“No person who has been convicted
of . . . either a sexually oriented offense that is not a registration-exempt sexually
oriented offense or a child-victim oriented offense shall establish a residence or
occupy residential premises within one thousand feet of any school premises.”); Okl.
Stat. tit. 57, § 590 (“It is unlawful for any person registered pursuant to the Oklahoma
Sex Offenders Registration Act to reside within a two thousand-foot radius of any
public or private school site or educational institution.”); Or. Rev. Stat.
§ 144.642(1)(a) (Rules for post-prison supervision or parole “shall include . . .a
general prohibition against allowing a sex offender to reside near locations where
children are the primary occupants or users.”); Tenn. Code Ann. § 40-39-211(a) (“No
sexual offender, . . . or violent sexual offender, . . . shall knowingly reside or work
within one thousand feet (1,000') of the property on which any public school, private
or parochial school, licensed day care center, or any other child care facility is
located.”).
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more likely than any other type of offender to be re-arrested for a new rape or sexual
assault.” Conn. Dep’t of Pub. Safety, 538 U.S. at 4 (alterations in original) (quoting
McKune v. Lile, 536 U.S. 24, 32-33 (2002) (plurality opinion)). The only question
remaining is whether, in view of a rationally perceived risk, the chosen residency
restriction rationally advances the State’s interest in protecting children.
We think the decision whether to set a limit on proximity of “across the street”
(as appellees suggest), or 500 feet or 3000 feet (as the Iowa Senate considered and
rejected, see S. Journal 79, 2d Sess., at 521 (Iowa 2002)), or 2000 feet (as the Iowa
General Assembly and the Governor eventually adopted) is the sort of task for which
the elected policymaking officials of a State, and not the federal courts, are properly
suited. The legislature is institutionally equipped to weigh the benefits and burdens
of various distances, and to reconsider its initial decision in light of experience and
data accumulated over time. The State of Alabama, for example, originally adopted
a residency restriction of 1000 feet, but later increased the distance to 2000 feet, Ala.
Code § 15-20-26(a); see also 2000 Ala. Acts 728, §1; 1999 Ala. Acts 572, § 3, while
the Minnesota legislature apparently followed the recommendation of the State’s
Department of Corrections that no blanket proximity restriction should be adopted.
(Appellee’s App. at 338). Where individuals in a group, such as convicted sex
offenders, have “distinguishing characteristics relevant to interests the State has
authority to implement, the courts have been very reluctant, as they should be in our
federal system and with our respect for the separation of powers, to closely scrutinize
legislative choices as to whether, how, and to what extent those interests should be
pursued.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
The record does not support a conclusion that the Iowa General Assembly and
the Governor acted based merely on negative attitudes toward, fear of, or a bare desire
to harm a politically unpopular group. Cf. Cleburne, 473 U.S. at 448; Dep’t of Agric.
v. Moreno, 413 U.S. 528, 534 (1973). Sex offenders have a high rate of recidivism,
and the parties presented expert testimony that reducing opportunity and temptation
is important to minimizing the risk of reoffense. Even experts in the field could not
predict with confidence whether a particular sex offender will reoffend, whether an
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offender convicted of an offense against a teenager will be among those who “cross
over” to offend against a younger child, or the degree to which regular proximity to
a place where children are located enhances the risk of reoffense against children.
One expert in the district court opined that it is just “common sense” that limiting the
frequency of contact between sex offenders and areas where children are located is
likely to reduce the risk of an offense. (Appellant’s App. at 165). The policymakers
of Iowa are entitled to employ such “common sense,” and we are not persuaded that
the means selected to pursue the State’s legitimate interest are without rational basis.
IV.
The Does next argue that the residency restriction, “in combination with” the
sex offender registration requirements of § 692A.2, unconstitutionally compels sex
offenders to incriminate themselves in violation of the Fifth and Fourteenth
Amendments. The district court concluded that a sex offender who establishes
residence in a prohibited area must either register his current address, thereby
“explicitly admit[ting] the facts necessary to prove the criminal act,” or “refuse to
register and be similarly prosecuted.” 298 F.Supp.2d at 879. The court then held that
§ 692A.2A “unconstitutionally requires sex offenders to provide incriminating
evidence against themselves,” and enjoined enforcement of the residency restriction
on this basis as well.
We disagree that the Self-Incrimination Clause of the Fifth Amendment renders
the residency restriction of § 692A.2A unconstitutional. Our reason is
straightforward: the residency restriction does not compel a sex offender to be a
witness against himself or a witness of any kind. The statute regulates only where the
sex offender may reside; it does not require him to provide any information that might
be used against him in a criminal case. A separate section of the Iowa Code,
§ 692A.2, requires a sex offender to register his address with the county sheriff. The
Does have not challenged the constitutionality of the registration requirement, or
sought an injunction against its enforcement, and whatever constitutional problem
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may be posed by the registration provision does not justify invalidating the residency
restriction.
None of the authorities cited by the Does supports invalidation of a substantive
rule of law because a reporting or registration requirement allegedly compels a person
in violation of that substantive rule to incriminate himself. The Supreme Court held
in Marchetti v. United States, 390 U.S. 39 (1968), and Grosso v. United States, 390
U.S. 62 (1968), that a gambler was privileged under the Fifth Amendment not to
register his occupation as one in the business of accepting wagers, not to pay the
required occupational tax, and not to pay a wagering excise tax, because these
submissions would create a real and appreciable hazard of self-incrimination for the
gambler. The Court never suggested, however, that the Self-Incrimination Clause
prevented the government from criminalizing wagering or gambling. Similarly, in
Leary v. United States, 395 U.S. 6 (1969), the Court’s holding that a plea of self-
incrimination was a complete defense in a prosecution for non-compliance with
provisions requiring payment of a tax on marijuana imported into the United States
did not imply that state laws prohibiting the possession of marijuana were somehow
unconstitutional. Id. at 29. And in Albertson v. Subversive Activities Control Board,
382 U.S. 70 (1965), where the Court held unconstitutional under the Fifth
Amendment a requirement that members of the Communist Party file a registration
statement with the Attorney General, it was never intimated that the registration
requirement rendered unconstitutional Section 4(a) of the Subversive Activities
Control Act, under which Albertson might have been prosecuted as a result of the
registration.
Even had the Does challenged the sex offender registration statute, moreover,
we believe that a self-incrimination challenge to the registration requirements would
not be ripe for decision. Unlike Albertson, where the petitioners had asserted the
privilege against self-incrimination on multiple occasions, the Attorney General of
the United States had rejected their claims, and specific orders requiring the
petitioners to register had been issued, 382 U.S. at 75, the process with respect to
enforcement of the Iowa sex offender registration statute in conjunction with the
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residency restriction is far less developed. The record does not show whether any of
the plaintiffs has registered with the county sheriff an address that is prohibited by
§ 692A.2A, whether any of the county attorneys or the Attorney General would seek
to use registration information to further a criminal prosecution for violation of the
residency restriction (rather than merely as a regulatory mechanism to bring sex
offenders into compliance with the statute),5 or whether the prosecuting authorities
would recognize a refusal to register as a valid assertion of the privilege against self-
incrimination (and thus decline to prosecute a sex offender for failing to register a
prohibited residence).
We think that under these circumstances, a self-incrimination challenge to the
registration statute would be premature. See Communist Party v. Subversive
Activities Control Bd., 367 U.S. 1, 106-10 (1961); cf. Selective Serv. Sys. v. Minn.
Pub. Interest Research Group, 468 U.S. 841, 858 (1984). If and when there is a
prosecution for violation of the residency restriction in which the prosecution makes
use of a sex offender’s registration, a prosecution for failure to register a prohibited
address, or some other basis such as in Albertson to say that the dispute is ripe, then
the self-incrimination issue will be joined. It would then be appropriate to consider
such questions as whether the registration requirement as applied falls under the rule
of cases such as Marchetti and Albertson, where the Fifth Amendment was held to
prohibit incriminating registration or reporting requirements directed at persons
“inherently suspect of criminal activities,” Albertson, 382 U.S. at 79, or whether the
public need for information about convicted sex offenders and the noncriminal
regulatory purpose for securing the information might permit enforcement of the
requirement consistent with the Fifth Amendment. Cf. Baltimore City Dep’t of Soc.
Servs. v. Bouknight, 493 U.S. 549, 557-59 (1990); California v. Byers, 402 U.S. 424,
431-34 (1971) (plurality opinion); id. at 457-58 (Harlan, J., concurring in the
5
There is evidence in the record that some Iowa law enforcement authorities,
rather than immediately file charges against an offender found to be residing in a
restricted zone, have withheld charges while the offender sought housing in an
unrestricted area. (T. Tr. at 229).
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judgment). At this point, we conclude that the Does’ self-incrimination claim is both
misdirected and premature.
V.
A final, and narrower, challenge advanced by the Does is that § 692A.2A is an
unconstitutional ex post facto law because it imposes retroactive punishment on those
who committed a sex offense prior to July 1, 2002. The Ex Post Facto Clause of
Article I, Section 10 of the Constitution prohibits the States from enacting laws that
increase punishment for criminal acts after they have been committed. See generally
Calder v. Bull, 3 U.S. 386, 390 (1798) (Chase, J., seriatim). In determining whether
a state statute violates the Ex Post Facto Clause by imposing such punishment, we
apply the framework outlined in Smith v. Doe, 538 U.S. 84, 92 (2003), where the
Supreme Court considered an ex post facto challenge to an Alaska statute requiring
sex offenders to register. Under that framework, we must first “ascertain whether the
legislature meant the statute to establish ‘civil’ proceedings.” Id. (internal quotation
omitted). If the legislature intended criminal punishment, then the legislative intent
controls the inquiry and the law is necessarily punitive. Id. If, however, the
legislature intended its law to be civil and nonpunitive, then we must determine
whether the law is nonetheless “so punitive either in purpose or effect as to negate”
the State’s nonpunitive intent. Id. (internal quotations and citations omitted). “[O]nly
the clearest proof” will transform what the legislature has denominated a civil
regulatory measure into a criminal penalty. Id.
The district court found that in passing the residency restriction of § 692A.2A,
the Iowa General Assembly intended to create “a civil, non-punitive statutory scheme
to protect the public.” 298 F.Supp.2d at 868. The Does do not dispute this
conclusion on appeal, and we agree that the legislature’s intent was not punitive.
Although Iowa Code § 692A.2A does not contain any clear statement of purpose, the
residency restriction is codified as part of Chapter 692A, together with a registration
system that the Supreme Court of Iowa has declared to have a purpose of
“protect[ing] society” and to be a nonpunitive, regulatory law. In Interest of S.M.M.,
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558 N.W.2d 405, 408 (Iowa 1997); State v. Pickens, 558 N.W.2d 396, 400 (Iowa
1997). “[W]here a legislative restriction is an incident of the State’s power to protect
the health and safety of its citizens, it will be considered as evidencing an intent to
exercise that regulatory power, and not a purpose to add to the punishment.” Smith
v. Doe, 538 U.S. at 93-94 (quoting Flemming v. Nestor, 363 U.S. 603, 616 (1960))
(internal marks omitted). We believe the available evidence leads most naturally to
the inference that the restrictions in § 692A.2A are intended, like the restrictions
elsewhere in the same chapter, to protect the health and safety of Iowa citizens.
Therefore, we conclude that the purpose of the Iowa General Assembly in passing
this law was regulatory and non-punitive.
We must next consider whether the Does have established that the law was
nonetheless so punitive in effect as to negate the legislature’s intent to create a civil,
non-punitive regulatory scheme. In this inquiry, we refer to what the Supreme Court
described in Smith v. Doe as “useful guideposts” for determining whether a law has
a punitive effect. In analyzing the effect of the Alaska sex offender registration law,
the Court in Smith pointed to five factors drawn from Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963), as particularly relevant: whether the law has been
regarded in our history and traditions as punishment, whether it promotes the
traditional aims of punishment, whether it imposes an affirmative disability or
restraint, whether it has a rational connection to a nonpunitive purpose, and whether
it is excessive with respect to that purpose. Smith v. Doe, 538 U.S. at 97. These
factors are “neither exhaustive nor dispositive,” id. (quotation omitted), and while we
consider them as an aid to our analysis, we bear in mind that the ultimate question
always remains whether the punitive effects of the law are so severe as to constitute
the “clearest proof” that a statute intended by the legislature to be nonpunitive and
regulatory should nonetheless be deemed to impose ex post facto punishment.
Turning first to any historical tradition regarding residency restrictions, the
Does argue that § 692A.2A is the effective equivalent of banishment, which has been
regarded historically as a punishment. See Smith v. Doe, 538 U.S. at 98. Banishment
has been defined as “‘punishment inflicted on criminals by compelling them to quit
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a city, place, or country for a specified period of time, or for life,’” United States v.
Ju Toy, 198 U.S. 253, 269-70 (1905) (Brewer, J., dissenting) (quoting Black’s Law
Dictionary), or “expulsion from a country.” Black’s Law Dictionary 154, 614 (8th
ed. 2004). The Supreme Court most recently explained that banished offenders
historically could not “return to their original community,” and that the banishment
of an offender “expelled him from the community.” Smith v. Doe, 538 U.S. at 98; see
also Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) (holding that order of
deportation is “not a banishment, in the sense in which that word is often applied to
the expulsion of a citizen from his country by way of punishment”).
While banishment of course involves an extreme form of residency restriction,
we ultimately do not accept the analogy between the traditional means of punishment
and the Iowa statute. Unlike banishment, § 692A.2A restricts only where offenders
may reside. It does not “expel” the offenders from their communities or prohibit them
from accessing areas near schools or child care facilities for employment, to conduct
commercial transactions, or for any purpose other than establishing a residence. With
respect to many offenders, the statute does not even require a change of residence:
the Iowa General Assembly included a grandfather provision that permits sex
offenders to maintain a residence that was established prior to July 1, 2002, even if
that residence is within 2000 feet of a school or child care facility. Iowa Code
§ 692A.2A(4)(c). The district court, moreover, found that residency restrictions for
sex offenders “are relatively new and somewhat unique,” 298 F. Supp. 2d at 849 n.4,
and as with sex offender registration laws, which also were of “fairly recent origin,”
Smith v. Doe, 538 U.S. at 97 (internal quotation omitted), this novelty “suggests that
the statute was not meant as a punitive measure, or, at least, that it did not involve a
traditional means of punishing.” Id. We thus conclude that this law is unlike
banishment in important respects, and we do not believe it is of a type that is
traditionally punitive.
The second factor that we consider is whether the law promotes the traditional
aims of punishment – deterrence and retribution. Smith v. Doe, 538 U.S. at 102. The
district court found that the law was both deterrent and retributive, and thus weighed
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this factor in favor of its finding that the law was punitive. We agree with the district
court that the law could have a deterrent effect, but we do not agree that the deterrent
effect provides a strong inference that the restriction is punishment. The primary
purpose of the law is not to alter the offender’s incentive structure by demonstrating
the negative consequences that will flow from committing a sex offense. The Iowa
statute is designed to reduce the likelihood of reoffense by limiting the offender’s
temptation and reducing the opportunity to commit a new crime. We observe,
moreover, that the Supreme Court has cautioned that this factor not be over-
emphasized, for it can “prove[] too much,” as “[a]ny number of governmental
programs might deter crime without imposing punishment.” Id.
The statute’s “retributive” effect is similarly difficult to evaluate. For example,
while the Ninth Circuit found punishment where the length of sex offender reporting
requirements corresponded to the degree of wrongdoing rather than the extent of the
risk imposed, Doe I v. Otte, 259 F.3d 979, 990 (9th Cir. 2001), rev’d sub nom. Smith
v. Doe, 538 U.S. 84 (2003), the Supreme Court disagreed, and instead emphasized
that the reporting requirements were “reasonably related to the danger of recidivism”
in a way that was “consistent with the regulatory objective.” Smith v. Doe, 538 U.S.
at 102. While any restraint or requirement imposed on those who commit crimes is
at least potentially retributive in effect, we believe that § 692A.2A, like the
registration requirement in Smith v. Doe, is consistent with the legislature’s regulatory
objective of protecting the health and safety of children.
The next factor we consider is whether the law “imposes an affirmative
disability or restraint.” Imprisonment is the “paradigmatic” affirmative disability or
restraint, Smith v. Doe, 538 U.S. at 100, but other restraints, such as probation or
occupational debarment, also can impose some restriction on a person’s activities.
Id. at 100-01. While restrictive laws are not necessarily punitive, they are more likely
to be so; by contrast, “[i]f the disability or restraint is minor and indirect, its effects
are unlikely to be punitive.” Id. at 100. For example, sex offender registration laws,
requiring only periodic reporting and updating of personal information, do not have
a punitive restraining effect. Id. at 102. At the same time, civil commitment of the
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mentally ill, though extremely restrictive and disabling to those who are committed,
does not necessarily impose punishment because it bears a reasonable relationship to
a “legitimate nonpunitive objective,” namely protecting the public from mentally
unstable individuals. Hendricks, 521 U.S. at 363.
Iowa Code § 692A.2A is more disabling than the sex offender registration law
at issue in Smith v. Doe, which had not “led to substantial occupational or housing
disadvantages for former sex offenders that would not have otherwise occurred
through the use of routine background checks by employers and landlords.” 538 U.S.
at 100. Although the Does did not present much evidence about housing within
restricted areas that would have been available to them absent the statute, they did
show that some sex offenders would have lived with spouses or parents who owned
property in the restricted zones, and some sex offenders were living in residences
within restricted areas that were permitted under the statute’s “grandfather” provision.
The residency restriction is certainly less disabling, however, than the civil
commitment scheme at issue in Hendricks, which permitted complete confinement
of affected persons. In both Smith and Hendricks, the Court considered the degree
of the restraint involved in light of the legislature’s countervailing nonpunitive
purpose, and the Court in Hendricks emphasized that the imposition of an affirmative
restraint “does not inexorably lead to the conclusion that the government has imposed
punishment.” 521 U.S. at 363 (internal quotation omitted). Likewise here, while we
agree with the Does that § 692A.2A does impose an element of affirmative disability
or restraint, we believe this factor ultimately points us to the importance of the next
inquiry: whether the law is rationally connected to a nonpunitive purpose, and
whether it is excessive in relation to that purpose.
This final factor – whether the regulatory scheme has a “rational connection to
a nonpunitive purpose” – is the “most significant factor” in the ex post facto analysis.
Smith v. Doe, 538 U.S. at 102. The requirement of a “rational connection” is not
demanding: A “statute is not deemed punitive simply because it lacks a close or
perfect fit with the nonpunitive aims it seeks to advance.” Id. at 103. The district
court found “no doubt” that § 692A.2A has a purpose other than punishing sex
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offenders, 298 F.Supp.2d at 870, and we agree. In light of the high risk of recidivism
posed by sex offenders, see Smith v. Doe, 538 U.S. at 103, the legislature reasonably
could conclude that § 692A.2A would protect society by minimizing the risk of
repeated sex offenses against minors.
The district court nonetheless concluded that the statute is excessive in relation
to this purpose, because the law applies “regardless of whether a particular offender
is a danger to the public.” 298 F.Supp.2d at 871. The absence of a particularized risk
assessment, however, does not necessarily convert a regulatory law into a punitive
measure, for “[t]he Ex Post Facto Clause does not preclude a State from making
reasonable categorical judgments that conviction of specified crimes should entail
particular regulatory consequences.” Smith v. Doe, 538 U.S. at 103. The Supreme
Court over the years has held that restrictions on several classes of offenders are
nonpunitive, despite the absence of particularized determinations, including laws
prohibiting the practice of medicine by convicted felons, Hawker v. New York, 170
U.S. 189, 197 (1898), laws prohibiting convicted felons from serving as officers or
agents of a union, De Veau v. Braisted, 363 U.S. 144, 160 (1960) (plurality opinion);
id. at 160-61 (opinion of Brennan, J.), and of course laws requiring the registration
of sex offenders. Smith v. Doe, 538 U.S. at 106.
In this case, we conclude that a categorical rule is consistent with the
legislature’s regulatory purpose and not “excessive” within the meaning of the
Supreme Court’s decisions. While the Does argue that the legislature must tailor
restrictions to the individual circumstances of different sex offenders, we view this
position as inconsistent with the Supreme Court’s direction that the “excessiveness”
prong of the ex post facto analysis does not require a “close or perfect fit” between
the legislature’s nonpunitive purpose and the corresponding regulation. The evidence
presented at trial suggested that convicted sex offenders as a class were more likely
to commit sex offenses against minors than the general population. Dr. McEchron
indicated that “there are never any guarantees that [sex offenders] won’t reoffend,”
(Appellant’s App. at 162), and Mr. Allison testified that “any sex offender is always
going to be of some concern forever.” (T. Tr. at 279).
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More specifically, in Allison’s view, even an offender who committed a crime
involving an older victim, such as statutory rape, would be of concern around a day
care or elementary school, although the concern may be reduced, (T. Tr. at 278), and
Dr. Rosell testified that while he believed that a sex offender who committed an
offense with a 14 or 15-year-old victim was likely to stay in that age range, there also
was no way to predict whether a sex offender would “cross over” in selecting victims
from adults to children or males to females. (Appellee’s App. at 149, 184). Dr.
Rosell was less than definitive about the degree to which sex offenders’ future
behavior was predictable and avoidable; while he personally did not believe
residential proximity made “that big of a difference,” he agreed that “what works in
criminal justice is imprecise at best,” and testified that “[t]here is always a risk” of
reoffense. (Appellee’s App. at 193, 195, 190). In view of the higher-than-average
risk of reoffense posed by convicted sex offenders, and the imprecision involved in
predicting what measures will best prevent recidivism, we do not believe the Does
have established that Iowa’s decision to restrict all such offenders from residing near
schools and child care facilities constitutes punishment despite the legislature’s
regulatory purpose.
The Does also urge that the law is excessive in relation to its regulatory
purpose because there is no scientific evidence that a 2000-foot residency restriction
is effective at preventing sex offender recidivism. “The excessiveness inquiry of our
ex post facto jurisprudence is not an exercise in determining whether the legislature
has made the best choice possible to address the problem it seeks to remedy,” but
rather an inquiry into “whether the regulatory means chosen are reasonable in light
of the nonpunitive objective.” Smith v. Doe, 538 U.S. at 105. In this case, there was
expert testimony that reducing the frequency of contact between sex offenders and
children is likely to reduce temptation and opportunity, which in turn is important to
reducing the risk of reoffense. None of the witnesses was able to articulate a precise
distance that optimally balanced the benefit of reducing risk to children with the
burden of the residency restrictions on sex offenders, and the Does’ expert
acknowledged that “[t]here is nothing in the literature that has addressed proximity.”
(Appellee’s App. 198; accord id. at 41, 47-48 (testimony of Dr. McEchron)). As
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even Dr. Rosell admitted, we just “don’t know” that the Iowa Legislature “isn’t ahead
of the curve.” (Id. at 198).
We believe the legislature’s decision to select a 2000-foot restriction, as
opposed to the other distances that were considered and rejected, is reasonably related
to its regulatory purpose. Given the challenge in determining precisely what distance
is best suited to minimize risk to children without unnecessarily restricting sex
offenders, and the difficult policy judgments inherent in that choice, we conclude that
the Does have not established the “clearest proof” that Iowa’s choice is excessive in
relation to its legitimate regulatory purpose, such that a statute designed to be
nonpunitive and regulatory should be considered retroactive criminal punishment.6
* * *
The judgment of the district court is reversed, and the case is remanded with
directions to enter judgment in favor of the defendants.
MELLOY, Circuit Judge, concurring and dissenting.
I join in the majority’s opinion, sections I through IV. However, I dissent as
to section V because I believe section 692A.2A is an unconstitutional ex post facto
law.
6
In view of our conclusion that the statute is not punitive, it follows that the law
is not a “cruel and unusual punishment” in violation of the Eighth Amendment. See
Smith v. Doe, 538 U.S. at 97 (explaining that factors used in determining whether law
is punishment for ex post facto purposes “have their earlier origins in cases under the
Sixth and Eighth Amendments”); Trop v. Dulles, 356 U.S. 86, 94-99 (1958) (plurality
opinion). Even assuming that § 692A.2A were punitive, we would agree with the
district court that the law is neither barbaric nor grossly disproportionate to the
offenses committed by the Does. We therefore reject the Eighth Amendment
argument urged by the appellees as an alternative ground for affirming the district
court.
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The U.S. Constitution prohibits states from passing ex post facto laws. U.S.
Const. art. I, § 10, cl. 1. “‘Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed,’” is an ex
post facto law. Stogner v. California, 539 U.S. 607, 612 (2003) (quoting Calder v.
Bull, 3 U.S. 386, 390 (1798)).
As set out by the majority, the fundamental question the Court must decide is
whether the residency requirement amounts to punishment. We do so by first asking
whether the legislature intended the statute to be punitive. If the answer is in the
affirmative, that ends our inquiry, and we find the legislation to be an ex post facto
law. However, if the legislature intended the statute to be nonpunitive, “we must
further examine whether the statutory scheme is so punitive either in purpose or effect
as to negate the State’s intention to deem it civil.” Smith v. Doe, 538 U.S. 84, 92
(2003) (internal quotations and citation omitted). I agree with the majority that the
purpose of section 692A.2A is to protect the public. This purpose is nonpunitive, so
we must determine if the statute “is so punitive either in purpose or effect as to negate
the State’s intention to deem it civil.” Id.
I also agree with the majority that the factors outlined in Smith should guide
our analysis. However, I part ways with the majority as to how some of the
individual factors should be examined and as to the final outcome of the multi-factor
analysis.
1. Have measures like the residency restriction historically been
regarded as punishment?
The majority concedes that banishment has historically been regarded as
punishment, but points out how the residency restriction differs from banishment.
The majority concludes that section 692A.2A is not the type of law that has
historically been regarded as punishment. I would find that, although
section 692A.2A does not amount to full banishment, it sufficiently resembles
banishment to make this factor weigh towards finding the law punitive.
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The district court made the following factual findings on the availability of
housing:
[S]ex offenders are completely banned from living in a number of
Iowa’s small towns and cities. In the state’s major communities,
offenders are relegated to living in industrial areas, in some of the cities’
most expensive developments, or on the very outskirts of town where
available housing is limited. Although some areas are completely
unrestricted, these are either very small towns without any services, or
farmland.
* * *
In larger cities such as Des Moines and Iowa City, the maps show that
the two thousand foot circles cover virtually the entire city area. The
few areas in Des Moines, for instance, which are not restricted, include
only industrial areas or some of the city’s newest and most expensive
neighborhoods. In smaller towns that have a school or childcare facility,
the entire town is often engulfed by the excluded area. In Johnson
County alone, the towns of Lone Tree, North Liberty, Oxford,
Shueyville, Solon, Swisher and Tiffin are wholly restricted to sex
offenders under § 692A.2A. Unincorporated areas and towns too small
to have a school or childcare facility remain available, as does the
country, but available housing in those areas is not necessarily readily
available.
These findings are not clearly erroneous and should therefore be upheld. See Fed. R.
Civ. P. 52(a). In its findings, the district court demonstrated how difficult it is for sex
offenders to find legal housing in many communities in Iowa due to the housing
restriction. It is common that offenders may not return to live in the community they
lived in before incarceration, the place where their families live, and/or the place they
find work. There are so few legal housing options that many offenders face the
choice of living in rural areas or leaving the state. The difficulty in finding proper
housing effectively prevents offenders from living in many Iowa communities. This
effectively results in banishment from virtually all of Iowa’s cities and larger towns.
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In Smith, the Supreme Court drew a distinction between Alaska’s sex offender
registry and colonial punishments such as shaming, branding, and banishment. The
Court found that the registry merely involved “dissemination of information,”
whereas the colonial punishments “either held the person up before his fellow citizens
for face-to-face shaming or expelled him from the community.” Smith, 538 U.S. at
98 (emphasis added). It described the aim of these colonial punishments as making
“offenders suffer permanent stigmas, which in effect cast the person out of the
community.” Id. (internal quotation and citation omitted). The residency requirement
is a permanent stigma as well as a law that effectively casts the person out of the
community. Further, Smith also described as banishment situations in which
individuals “could neither return to their original community nor, reputation
tarnished, be admitted easily into a new one.” Id. Under this phrasing,
section 692A.2A fits the description of banishment.
Of course, the residency restriction does not prevent offenders from living in
every community, nor from visiting communities in which they are not allowed to
live. In this way, the law differs from complete banishment. However, preventing
offenders from making a home in many Iowa communities after they have served
their sentence does have substantial similarity to banishment. To the extent that
offenders are effectively banished from their desired places of residence, I would find
this factor weighs in favor of finding section 692A.2A punitive.
2. Does the residency restriction promote traditional aims of
punishment?
The residency restriction serves a traditional aim of punishment: deterrence.
The majority attempts to minimize the deterrent effect of the statute by arguing that
the statute does not increase the negative consequences for an action, but merely
reduces the opportunity for that action to occur. In my view, this distinction is not
important. One major reason we use the punishments we do, such as imprisonment,
is to reduce the likelihood of future crimes by depriving the offender of the
opportunity to commit those crimes. There is clearly a deterrent purpose at work in
section 692A.2A, thus the measure promotes a traditional aim of punishment.
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3. Does the residency restriction impose an affirmative disability or
restraint?
The majority acknowledges that the residency requirement imposes an
affirmative disability or restraint, and I agree. It restricts offenders from living in
certain areas. Offenders that live within the restricted areas face criminal penalties.
In this way, the restraint differs greatly from the sex offender registry in Smith. The
Court in that case pointed out that offenders were “free to change . . . residences.”
Smith, 538 U.S. at 100. The Court also noted that there was no evidence that the
measure disadvantaged the offenders in finding housing. Id. I would find that the
affirmative disability or restraint intrinsic in the residence requirement distinguishes
it from the sex offender registry in Smith and weighs in favor of finding the law
punitive.
4. Does the residency restriction have a rational connection to a
nonpunitive purpose?
I agree with the majority that section 692A.2A has a rational connection to the
nonpunitive purpose of protecting the public. See In Interest of S.M.M., 558 N.W.2d
405, 408 (Iowa 1997).
v. Is the residency restriction excessive?
Though I believe a rational connection exists between the residency restriction
and a nonpunitive purpose, I would find that the restriction is excessive in relation to
that purpose. The statute limits the housing choices of all offenders identically,
regardless of their type of crime, type of victim, or risk of re-offending. The effect
of the requirement is quite dramatic: many offenders cannot live with their families
and/or cannot live in their home communities because the whole community is a
restricted area. This leaves offenders to live in the country or in small, prescribed
areas of towns and cities that might offer no appropriate, available housing. In
addition, there is no time limit to the restrictions.
Also, the residency restriction applies to plaintiffs who are not the most serious
sex offenders. There is no doubt a class of offenders that is at risk to re-offend and
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for whom such a restriction is reasonable. However, the restriction also applies to
John Doe II, who pleaded guilty to third degree sexual abuse for having consensual
sex with a fifteen-year-old girl when he was twenty years old. The restriction applies
to John Doe VII, who was convicted of statutory rape under Kansas law. His actions
which gave rise to this conviction would not have been criminal in Iowa. The
restriction applies also to John Doe XIV, who pleaded guilty to a serious
misdemeanor charge in 1995 after he exposed himself at a party at which a thirteen-
year-old girl was present. John Doe XIV was nineteen at the time of his offense. The
actions of these and other plaintiffs are serious, and, at least in most cases, illegal in
this state. However, the severity of residency restriction, the fact that it is applied to
all offenders identically, and the fact that it will be enforced for the rest of the
offenders’ lives, makes the residency restriction excessive.
In my view, four factors weigh in favor of finding the statute punitive, while
only one weighs in favor of finding the statute nonpunitive. The analysis leads me
to the conclusion that the residency restriction is punitive. Because the imposition
of the residency requirement “‘changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed,’” Stogner, 539 U.S.
at 612 (quoting Calder, 3 U.S. at 390), I would find Section 692A.2A is an
unconstitutional ex post facto law that cannot be applied to persons who committed
their offenses before the law was enacted.
______________________________
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