The 9th Circuit Opines on Limitations of Residency Restriction as Condition fo Supervised Release

December 3rd, 2011

US v. Rudd, No. 10-50254 (9th Cir. Nov. 23, 2011) (available here) begins:

William Newton Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct.  The special condition prohibits Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.”  We have jurisdiction pursuant to 18 U.S.C. § 3742.  Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error.  Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction.

And this:

It is unclear, at least from this record, what residency restriction would be sufficient but “involve no greater depri- vation of liberty than is reasonably necessary for the purposes of supervised release.” Daniels, 541 F.3d at 924; United States v. Rearden, 349 F.3d 608, 618 (9th Cir. 2003). Would a residency restriction of 1,000, 3,000, or even 5,000 feet each be appropriate without any further explanation solely because of the nature and circumstances of Rudd’s conviction? In the absence of any explanation of how the chosen distance fur- thers the purposes of Rudd’s supervised release, the choice of 2,000 feet appears arbitrary. We thus conclude that the district court was required to provide an explanation for choosing the 2,000 foot residency restriction.4

4We reject Rudd’s argument that a heightened procedural requirement should apply because the condition of supervised release restricts his fun- damental rights. “We have carved out an exception to this general rule for conditions of supervised release that implicate a particularly significant liberty interest.” United States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008). When such an interest is at stake, “the district court must follow additional procedures and make special findings.” Id. But we have only applied this heightened procedural requirement in rare cases, each involv- ing the “constitutional interest inherent in avoiding unwanted bodily intru- sions or manipulations.” Id.; see United States v. Cope, 527 F.3d 944, 955 n.5 (9th Cir. 2008) (chemical castration); United States v. Weber, 451 F.3d 552, 560-62 (9th Cir. 2006) (penile plethysmograph testing); United States v. Williams, 356 F.3d 1045, 1056-57 (9th Cir. 2004) (mandatory use of antipsychotic medication). The residency restriction here does not impli- cate such a significant liberty interest. Regardless, the district court’s explanation fails to satisfy even the usual standard.

And this on substantive reasonableness:

We do not reach the question of the substantive reason- ableness of the 2,000 foot residency restriction because we conclude the district court erred procedurally. However, the district court should address the 18 U.S.C. § 3553 factors in reconsidering the residency restriction, particularly whether it is “a greater deprivation of liberty than is reasonably neces- sary,” Daniels, 541 F.3d at 924. This question is of particular concern should the authorities release Rudd in an urban neighborhood, where “places primarily used by persons under the age of 18” are both ubiquitous and transient.5 The Supreme Court and several other courts have expressed con- cerns about the burdens imposed by similar geographical or sex offender residency restrictions. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 562 (2001) (noting that a Massachusetts regulation prohibiting outdoor advertising within 1,000 feet of schools or playgrounds would “[i]n some geographical areas . . . constitute nearly a complete ban . . . [and] prevent advertising in 87%-91% of Boston, Worchester, and Springfield, Massachusetts”); Pollard, 908 N.E.2d at 1150 (finding a 1,000 foot residency restriction to create a “substantial housing disadvantage” that “affect[ed] one’s free- dom to live on one’s own property”); Baker, 295 S.W.3d at 444 (finding a 1,000 foot residency restriction would “prevent the registrant from residing in large areas of the community”); Galloway, 951 A.2d at 236 (finding a 2,500 foot residency restriction to result in “total exclusion” or “near-total exclu- sion” because “the majority of the overall land area (including uninhabitable portions such as the [airport], marshlands, etc.) of cities and other densely populated areas fall within the pro- hibited zones”); Fross, 20 A.3d at 1199 (noting that a 2,500 foot residency restriction “essentially prohibit[ed] any sex offender from living throughout most of Allegheny County”).6

Several courts have also found that similar residency restrictions subject defendants to a state of “constant evic- tion,” because the prohibited locations could potentially move or open in new places. See Mikaloff, 2007 WL 2572268, at *9 (finding that residency restriction subjected sex offenders to “constant eviction” because “there are no guarantees a school or daycare will not open up within 1,000 feet of anywhere”); Pollard, 908 N.E.2d at 1150 (finding that residency restriction subjected the offender “to constant eviction because there is no way for him or her to find a permanent home in that there are no guarantees a school or youth program center will not open within 1,000 feet of any given location”); Baker, 295 S.W.3d at 444 (finding a 1,000 foot residency restriction to risk “expel[ling] registrants from their own homes, even if their residency predated the statute or arrival of the school, daycare, or playground”). And, given the condition here, there is similarly no guarantee that teens will not decide to start reg- ularly hanging out at a new spot within 2,000 feet of Rudd’s residence.

18 U.S.C. § 3583(d)(2) requires district courts to con- sider the liberty interests at stake in fashioning an appropriate sentence. After all, the scope of a residency requirement will determine whether the releasee, as well as his children and family members, if any, can meaningfully participate in a community and have adequate access to schools, public trans- portation, rehabilitation programs, and medical care. There remain significant questions regarding the substantive reason- ableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism, see In re Moreland, No. PV 000527, at *7-8 (L.A. Super. Ct. Nov. 1, 2010) (order discussing adverse public safety effects of residency restrictions); Cal. Dep’t of Corr. and Rehab., “Sex Offender Supervision and GPS Monitoring Task Force Report, at 17 (2010),” available at News/docs/Sex_Offender_and_GPS_Task_Force_Report.pdf (concluding that effect of residency restrictions is to put sex offenders in a position where they “are at increased risk to re- offend”); Grant Duwe, Residency Restrictions and Sex Offender Recidivism: Implications for Public Safety, 2 Geography & Pub. Safety 6, 6 (2009), available at gps.pdf (“Other research suggests that residency restrictions decrease employment opportunities for offenders and increase transience and homelessness.”); Ron Wilson, Geographic Research Suggests Sex Offender Residency Laws May Not Work, 2 Geography & Pub. Safety 11, 12 (2009), available at (“Residency restriction laws . . . may endanger communities because they make offenders more difficult to monitor.”). The district court should give some consideration as to whether the 2,000 foot residency restriction imposes any deprivation of liberty greater than what is necessary for the purposes of Rudd’s supervised release.

5We note that by comparison to the legislatively enacted restrictions dis- cussed above, which prohibit residence near specific locations, such as schools, public parks, playgrounds, and childcare facilities, the condition here not only specifies such places, but tags on the vague reference to “places primarily used by persons under the age of 18.” This provision could refer to anything from malls and hamburger or pizza joints to movie theaters, bowling alleys and skating rinks.

6This consideration is particularly relevant in Rudd’s case because he will be between seventy-three and eighty-three years old during his period of supervised release. At that age, depending on his health needs, his resi- dential options may be limited, especially if he must live in close proxim- ity to medical or other care facilities.

H/T Sentencing Blog