John Doe v. Tom Miller

drug was not manufactured it could not be clearly intent to distribute is obviously possessed. later But we believe that such incorrect. We therefore find that the res- reading “involving” goes too far. titution order in plain this case constitutes When the Second Circuit commented while error. 924(e)(2) §

construing 18 U.S.C. ‘involving’ expansive word has con

“[t]he III. notations,” it interpreting a statute We therefore judgment REVERSE the “involving referenced offenses manu of the district court and VACATE the facturing, distributing, possessing with restitution order. distribute, intent to manufacture or a con King,

trolled substance.” 325 F.3d at 113.

The inclusion of both manufacturing and

possession with intent to distribute in a

statute includes the term “involves” suggests

further possession us that with

intent to distribute does not “involve” man

ufacturing. DOE, I, John on their own behalf and as It strikes us as quite illogical that Con- representatives of the class of all sex gress would have used “involving the term Iowa; offenders in the State of John methamphetamine manufacture” of if Doe, II, on their own behalf and as it intended to authorize restitution to the representatives of the class of all sex any drug United States for crime. An Iowa; offenders in the State of John examination of other restitution schemes Doe, III, on their own behalf and as involving drug offenses confirms that Con- representatives class of all sex gress how to expansive knows create an Iowa, offenders in the Appel State of program. restitution Under 18 U.S.C. lees, 3663(a)(1)(A), § a district court is author- ized to order restitution to the victim of drug most if offenses certain conditions MILLER, Attorney Tom 3663(c)(1) are met. Section allows for the General; Appellant. imposition of restitution when there is no identifiable victim. Had Congress intend- White, representatives J. Patrick as ed to allow restitution to the United States county attorneys class of all drug for cleanup lab when the defendant Iowa; Wolf, representa Michael had been possession convicted of with in- county tives class of all attor distribute, tent it could simply have neys Iowa, Defendants. § referenced 21 U.S.C. which contains No. 04-1568. prohibition on possession both with intent to distribute and manufacturing. United Appeals, States Court of Congress so, did not do but rather limited Eighth Circuit. restitution to offenses “involving” the man- Submitted: Nov. 2004. ufacture of methamphetamine. Filed: April

In light foregoing statutory analy- sis, persuaded we are the district

court’s conclusion that restitution is au-

thorized by 853(q) possession Allen, Eugene

Gordon argued, Des (Thomas Moines, Miller, IA J. on the brief), appellant. for Mears, Philip B. argued, City, Iowa IA (Randall Wilson, brief), on the appellee. RILEY, MELLOY, Before COLLOTON, Circuit Judges. COLLOTON, Circuit Judge. In in an protect effort to children in Iowa from the risk that convicted sex may offenders reoffend locations close residences, to their the Iowa General As- sembly passed, and the Governor of Iowa signed, a bill that prohibits person con- victed of certain sex involving offenses mi- nors from residing within 2000 feet of a school or a registered facility. child care The district court declared the statute un- constitutional on grounds several and en- joined Attorney General of Iowa and ninety-nine county attorneys in Iowa enforcing prohibition. Because we conclude that the Constitu- tion of the prevent United States does not the State of Iowa from regulating the resi- 1, 2002, or child or to July schools prior manner in this dency of sex newly located after safety of that are care facilities health protect order 692A.2A(4)(e). Iowa, judg- § July reverse Id. 2002. citizens of .Viola- hold unani- We punishable ag- court. as of the district statute are ment tions is not mously that Code Iowa gravated misdemeanors. majority A its face. on 692A.2A(3),1 unconstitutional § that the stat- concludes further panel took immediately after the law Almost ex not amount unconstitutional ute does offend- effect, plaintiffs named three —sex com- who persons punishment post facto law’s predate convictions ers with July be- prior to offenses mitted that the asserting suit date—filed effective have established appellees cause face. The on its is unconstitutional statute required proof,” “clearest by the as a their action district court certified puni- precedent, Supreme Court in- action, class that plaintiff with a class overrides of the statute tive effect to whom Iowa Code individuals cludes all intent Assembly’s legitimate General currently living applies § who mea- 692A.2A regulatory civil nonpunitive, enact a Iowa, to move to safety. in Iowa or who wish health protects sure currently is the any person who except for § I. under 692A.2A. subject prosecution aof identified as various plaintiffs, named now codified File Iowa Senate Does,” range had committed “John 692A.2A, July effect on took Code crimes, exposure, including indecent sexual who persons It provides child,” sexual with a liberties “indecent criminal of certain been convicted have minor, intent of a assault exploitation minor, including numer- against a offenses abuse, lascivious acts to commit sexual minor, a shall involving offenses ous sexual child, degree third and second and with a a or 2000 feet of school reside within not abuse, brought them which all sexual .of facility. Code Iowa child care registered residency re- of the provisions within the 692A.2A(l)-(2). apply The law does not § class, including all A striction. defendant a residence persons who established secondary elementary or nonpublic lie or provides as follows: text of the statute 1.The facility does not com- care or a child school Residency restrictions —child .692A.2A any of the if of this section mit á violation schools. care facilities and apply: following section, “person” purposes of this 1. For required a sen- person to serve a. The a crim- person has committed a who means facility, or juvenile jail,, prison, aat tence minor, aggra- against or a an offense inal facility. or correctional institution other offense, offense, or sexually violent vated subject to an order person is b. The a mi- that involved relevant offense other chapter 229A. under commitment nor. a resi- person has established c. The two reside within person 2. A shall July or a school prior to [] dence compris- property the real thousand feet of newly facility located on or child care elementary nonpublic or ing public a or July or [after] facility. secondary a child care school or a ward person is a d. The minor within two person who resides thou- 3. A guardianship. a under comprising a property feet of the real sand "residence” § The term 692A.2A. elementary Code nonpublic or second- public or person a place where as "the is defined school, facility, care commits ary child a than one may more sleeps, include which aggravated an misdemeanor. transitory.” location, may mobile or residing two thousand person within 4. A 692A.1(8). § pub- comprising a Iowa Code property real feet of the county Iowa’s attorneys, also was prior certi- to July lished or because the fied. are homes outside the 2000-foot restricted plaintiffs, however, areas. These testified During two-day trial, bench plaintiffs they would like to be able to move presented concerning evidence the en- into others, a restricted area. Still John 692A.2A, § forcement of including maps II, VI, VIII, IX, XV, XVI, Does by that had produced been several cities living in non-compliant residences identifying and counties schools and child they wish to maintain. care facilities their corresponding re- stricted viewing areas. After maps these Plaintiffs in many testified that cases hearing testimony county from a at- they had a difficult obtaining housing time torney, the district court found that that was not within 2000 feet of a school or many restricted areas in cities encompass child care center. John Doe VII testified majority of the housing available in the that he investigated residences, but was city, leaving only thus limited areas within unable to find housing that would not city limits for sex available offenders to place him in violation of 692A.2A. The towns, establish residence. In smaller showed, however, evidence also that while single school or facility child care can may have exacer- cause all incorporated areas of the a housing problem bated plaintiffs, town to be off limits to sex offenders. The all their difficulty was caused court found unincorporated areas, statute. example, For John II Doe had small towns with no school or child care difficulty finding housing part because facility, and areas rural remained unre- problems. credit his John Doe XIV stricted, but that housing available in these testified that only available compliant necessarily areas is “not readily available.” housing hometown, Waterloo, in his Miller, Doe v. F.Supp.2d 851 too expensive, so he and his wife pur- (S.D.Iowa 2004).2 chased a rural home away. about miles

Plaintiffs presented also evidence of The mother of John Doe IV made efforts their experiences individual in seeking to to her son help housing, find and she testi- obtain housing complies with the fied that she was able potential to find two 2000-foot restriction. plain- Several of the son, residences for her but neither resi- tiffs, including III, IV, XV, Does John and dence had vacant units. John Doe VI XVIII, have or friends with relatives was renting apartment an in compliance they live, whom like to 692A.2A, would but whose with but had to move out when homes are within 2000 feet of a school or the landlord decided that he did not want child facility. Many, care such John as to rent to a sex offender. Similarly, John VII, X, XI, XII, XIII, Does XIV, and Does VIII and XI each fоund at least one XVIII, live in that currently homes are possible compliant apartment, but ap- their compliant, either they plications because were estab- were because denied of their parties presented farmhouses,” 2. The substantial "mainly evidence but he noted that the concerning the effect of the statute on the larger trend toward has farms created some availability housing for sex offenders in in vacancies party farmhouses where the County, Carroll Iowa. The district farming court found the land does not live in the farm- that 2077 of 9019 residential units in the house. remaining Of the 383 units available (23 county percent) were not in county, restricted in the the district court found that areas. The County Attorney Carroll testified 244 were located in without a towns school or that 1694 of the available units Miller, were in unin- facility. care child Doe corporated county, areas of the and were F.Supp.2d at 852. prac- a chron, general with psychologist a to contrast apparent In criminal records. patients. sex offender that includes tice Dudley plaintiffs, the testimony from Allison, McEchron testified that Dr. officer, Like tes- Allison, probation and parole and that cure for sex offenders there is no more it made the statute while tified that they that any guarantees “there are never housing, find offenders for sex difficult view, “big- In his the not reoffend.” might covered among the everyone” “virtually on inside the going gest risk what’s super- he whom probationers parolees and individual,” opportunity reducing but July 2003 was July 2002 and between vised to reoffend is extreme- temptation and the compliance with housing in to locate able explained He to treatment. ly important 285). (T. Tr. at the statute. “very rates of high because there regarding to evidence In addition of- who had for sex offenders re-offense of- on sex places § 692A.2A burden children,” it he believed against fended defendants fenders, plaintiffs and both places to restrict appropriate would po- testimony about expert presented con- might into offenders come where sex residency restric- aof tential effectiveness thought appro- He tact with children. minors. against offenses in preventing tion “com- a restriction was of such priateness testimony of Mr. presented The State sense,” he said were although there mon officer who Allison, probation and parole to draw to know “where data insufficient supervision. in sex offender specialized testified, also McEchron the marks.” Dr. treating process Allison described view, however, life-long restric- his that in preventing his efforts and sex offenders in § 692A.2A do aid tions like for triggers by identifying recidivism could foster process, and even treatment offense, imposing and then original authority and toward negative attitudes or activities on the residences restrictions law who view depression Allison, re- According to of the offender. unfair. of sex offenders proximity on the strictions testimony of offered the plaintiffs might other facilities to schools or Rosell, expe- with psychologist Dr. Luis way are one temptation reoffend create Dr. Ro- treatment. rience sex offender In the risk of recidivism. minimize the rate the recidivism sell estimated context, also Allison ’ parole probation per- 20 and between offenders is activities offenders’ authority to limit has McEchron, Dr. cent, like' Allison testified ways, and he specific in more reducing key his belief stated by pre- temptation attempts to remove he identifying the risk recidivism jobs working from venting offenders original offender’s to the factors that led poten- they have contact where would helping offense then parks living near tial victims in the factors those with or avoid deal might spend children areas where other reducing that testified Dr. Rosell future. lim- to the In addition unsupervised. time to children access sex offender’s specific under his on imposes offenders its that he you “if remove idea, that good awas that testified Allison also supervision, the likelihood then opportunity, safety con- public legitimate “a there is not be- He did decreased.” is reoffense unsupervised cern” where however, proximity lieve, that “residential view, “a Allison’s reoffense In reside. More- difference.” of a big makes that danger forever.” potential 2000-foot over, thought that a Dr. Rosell McEchron, Dr. Like limit transcript was “extreme.” introduced also The State counter- might law be worried that he Dr. McE- testimony by William hearing productive to the person offender’s treatment covered danger- statute is goals by causing depression potential- ous. This claim relies on what is known as ly removing “support “procedural the offender from his process.” due system.” The Due Process provides Clause hearing testimony After of all three that no deprive State shall any person of experts plaintiffs, and of the individual life, liberty, property pro without due district § court declared that 692A.2Awas cess of requirement law. of “due unconstitutional on grounds, several to wit: process” judicial has led to the doctrine of that it was an unconstitutional post ex vagueness, requires which that a criminal law respect to offenders who statute “define the facto criminal offense with 1, 2002; committed an prior July offense sufficient definiteness that ordinary people that it violated the plaintiffs’ rights to can understand what prohibited conduct is because, avoid self-incrimination coupled and in a manner not encourage with registration requirements elsewhere arbitrary and discriminatory enforce 692A, in Chapter it required offenders to Lawson, ment.” Kolender 461 U.S. report their addresses even if those ad- (1983). 75 L.Ed.2d 903 dresses were not in compliance with There is no argument here that 692A.2A; § it violated procedural due the words of the statute are unconstitu process rights of plaintiffs; and that it tionally vague. Rather, the Does contend violated plaintiffs’ rights under they deprived of notice required doctrine of substantive process, due be- by the Constitution because some cities in cause it infringed rights fundamental Iowa are provide unable to sex offenders travel and to “privately they choose how with information about the loсation of all want to affairs,” conduct their family registered schools and facilities, child care narrowly was not tailored serve a com- and because it is difficult to measure the pelling state Although interest. the dis- areas, restricted which are measured “as trict court believed the law punitive, the crow flies” a school or child care rejected the court plaintiffs’ final argu- facility. disagree We potential these ment that the law imposed cruel and un- problems render the statute unconstitu punishment usual in violation of Eighth tional on its face. A criminal statute is not Amendment. Having found the statute vague on its face unless it “impermissi unconstitutional, the district court issued a bly vague in all of its applications,” Vill. of permanent injunction against enforcement. Flipside, Estates v. Hoffman Miller, Doe v. F.Supp.2d at 880. (1982), L.Ed.2d 362 and the possibility that an individual might

II. prosecuted in a particular case in a We first address the particular contention community despite his best ef 692A.2A violates the rights of the forts to comply with the restriction is not a covered sex process offenders to due sufficient reason to invalidate entire law under the Fourteenth Amendment. statute. A subject sex offender prose (to The appellees whom we will refer as cution under those circumstances may Does”) “the argue that the statute is un seek' to establish violation of process due constitutional because it fails provide through a challenge to enforcement of the adequate notice of what prohib conduct is statute as him applied to in a specific case. ited, and because it does not require an Nor do we believe that potential for individualized determination whether each varied enforcement of restriction,

709 to likely offend court, individually dangerous 298 the district by cited was which Un- neighboring schoolchildren. invalidating against 878, justifies F.Supp.2d that the sub- Does can estabhsh process Due less the scheme. regulatory entire by legislative established elect- stantive rule independently require that not does provision conflicts with some each criminal attorneys enforce classification county ed Constitution, require- no there is and the existence of the vigor, equal statute with a to provide process deci- prosecution the State ment that priorities of different legislative violate not from the exemption does an among jurisdictions estabhsh sions 7-8, 123 S.Ct. Id. at classification. the Constitution. Thus, an individualized of the absence argue that also The Does a statute that in connection with hearing an unconstitutionally forecloses § 692A.2A prin- not offend exemptions does offers no because to be heard” “opportunity process. due ciples procedural of individual process provides no statute ar This dangerousness. of determinations III. right proce to misunderstands gument that the resi Does also assert The Supreme Court As the process. due dural under is unconstitutional dency in connection with recently explained process. due of substantive sex the doctrine challenge Connecticut’s comparable Supreme law, assuming, They rely on decisions “even registration liberty interests holding been that certain offender] has Court sex arguendo, [the may interest, process that a State not due liberty are so fundamental of a deprived them, adequate to estab with hearing to a even him interfere not entitle the in unless process, not material under due procedural fact that is lish “narrowly Pub. to serve a Dep’t tailored fringement Conn. statute.” [state] Safe 1160, Flores, 155 Doe, 123 S.Ct. Reno v. state interest.” ty compelling 538 U.S. (2003). 301-02, not barred “are States 113 S.Ct. L.Ed.2d process’ (1993). due argue Does ‘procedural principles L.Ed.2d among infringed are drawing” rights” classifications “fundamental several restriction, including individuals. Id. and other by Iowa’s H. v. Ger family Michael (quoting choice privacy “right D., travel, “the fun 491 U.S. matters,” right ald (1989) (plurality opinion)) you want.” L.Ed.2d right to live where damental original). § 692A.2A (emphasis in agreed court The district consti liberty interests infringed upon that the Iowa conclude We likewise strict rights, applied tute fundamental does not contravene residency restriction classifications, legislative to the scrutiny under process due procedural principles uncon that the statute concluded applies The restriction Constitution. stitutional. been convicted who have all offenders per right “the invoke minors, first The Does regardless against crimes certain family.” They regarding sonal choice dangerousness future what estimates statement Court’s Supreme hearings. cite the individualized proved in might be Jaycees, States v. United has Roberts legislative classification such a Once 617-18, 104 82 L.Ed.2d un drawn, procedures are additional been human rela (1984), intimate that “certain statute does necessary, because against undue secured tionships must be individu exemption for potential provide of the role because by the State intrusion they to prove who seek als D., of such in relationships safeguarding ‍​​​​​​‌​​​‌​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​‌​​​‌‌‌​‌‌​‌‍the H. 6, chael v. Gerald 491 U.S. at 127 n. (1989) Scalia, individual freedom is central to our 109 S.Ct. (opinion J.), of scheme,” the constitutional and the Does’ Court’s characterization of a fundamen tal right “personal privacy” discussion of “marital in choice regarding Griswold the family” Connecticut, 479, general is so 485-86, that it trigger 381 U.S. would (1965). scrutiny strict 1678, of innumerable S.Ct. laws and They L.Ed.2d 510 ordinances “personal influence rely also heavily on the Court’s in decision by choices” made daily families on a Cleveland, basis. City Moore v. East of The Supreme Court’s decision in 494, Griswold 1932, (1977), 97 S.Ct. 52 L.Ed.2d 531 plurality and the in opinion Moore did which held zoning unconstitutional a ordi recognize unenumerated constitutional “family” nance that defined in way such a rights relating personal in choice mat prohibit as to a grandmother and her two ters of marriage family life, they but grandsons living together in an area defined the recognized rights more nar designated “single family” dwellings. rowly, in terms of “intimate relation of A plurality of the in Court Moore reasoned wife,” Griswold, husband and 381 U.S. at personal “freedom of in choice mat regula “intrusive ters marriage family life is one of tion” of “family living arrangements.” protected by liberties the Due Proсess Moore, 431 U.S. at 97 S.Ct. 1932 Amendment,” Clause the Fourteenth (plurality opinion). and concluded that governmental in precedents Does, Unlike the city by terests advanced cited were insuffi the Iowa statute operate cient does not justify directly an ordinance that “slic[ed] on family relationship. deeply Although family into the itself.” Id. at 498- law restricts where a may residence (plurality opinion). S.Ct. 1932 Jus located, nothing the statute limits who tice Stevens judgment concurred on may live with the Does in their residences. grounds. 513-21, other Id. at plurality emphasized Moore this distinction, observing that impact on We do not believe residen family was “no mere incidental result of cy implicates 692A.2A ordinance,” because “[o]n its face [the right fundamental of the Does that would selects categories ordinance] certain of rel- trigger scrutiny strict of the statute. In may atives who together live and declares evaluating argument, it is important to may others 498-99, not.” 431 U.S. at consider the Supreme Court’s admonition 97 S.Ct. 1932 (plurality Thus, opinion). “ ‘[sjubstantive process’ due analysis reasoning plurality Moore must begin with a description careful require scrutiny strict regulation of a right, asserted for ‘[t]he doctrine of that has an incidental or unintended effect judicial requires self-restraint us to exer family, on the v. City Hameetman Chi- cise the utmost care whenever we are cago, (7th Cir.1985) 776 F.2d (up- ” asked to ground break new in this field.’ holding requirement that firemen reside Flores, 507 U.S. at 113 S.Ct. 1439 within city limits), or that “affects or en- (quoting Collins v. Heights, Harker 503 courages family decisions on matters” but 112 117 L.Ed.2d does not force such choices. Gorrie v. (1992)). While the Bowen, Court has not di (8th Cir.1987) 809 F.2d rected that an right asserted be defined at (upholding regulation requiring that appli- specific most level tradition support public cations for dependent assistance for ing or denying the right, asserted Mi children siblings include living in same cf.

711 travel embraces to interstate right the in household). Gris- Similarly, the Court “the components: different three least authority to determine disclaimed wold and to enter of one State right all of a citizen need, of wisdom, propriety” and “the State, right to be the conditions, another but held to leave social touch laws that than an visitor rather “oper- a welcome that treated as statute a state unconstitutional present temporarily unfriendly of alien intimate relation when an directly on ated 482, State, and, travel 85 those in the second wife.” and husband resi permanent elect to ers who become S.Ct. 1678. like other treated dents, right to be the that one adult was evidence there While Roe, v. 526 that State.” Saenz citizens of with not reside in Iowa would sex offender L.Ed.2d 489, 500, 143 119 S.Ct. U.S. of the a result parents his (1999). 689 and sex offender restriction, another that their away' court, from 45 miles like some his wife moved Although district statute, and compo- to the courts, location due the first preferred considered other not reside could offender travel under a third sex right that to interstate nent of zone, a restricted child in process,” his adult of “substantive the rubric due directly regulate the statute has identified Supreme Court family any prevent or The relatiоnship component. family of source that textual with a sex residing of from that the Articles member has observed Court that, with the consistent people that is “the provided residence Confederation that hold ingress therefore and We free statute. shall have each State a consti- upon other.State,” infringe and any does not § 692A.2A to and from regress relating to matters liberty “may simply interest have right tutional this that suggested in a fashion family to be a marriage beginning ‘conceived from been scrutiny. heightened stronger Un- requires necessary concomitant ” at 501 Id. created.’ ion the Constitution resi also assert that Does The Guest, 383 (quoting S.Ct. 1518 & n. 119 con with their interfere dency restrictions 1170). two The latter 758, 86 S.Ct. U.S. at The modern right to travel. stitutional in Saenz right identified components recognized right has Supreme Court and Immunities Privileges arise from decisions, be travel several interstate IV, Privi- and the Article Clause Guest, 383 v. United States ginning with the Four- Immunities Clause leges 1170, 16 757-58, L.Ed.2d 86 S.Ct. U.S. Id. Amendment. teenth 394 Thompson, (1966), v. Shapiro violates § 692A.2A argue Does 1322, 22 L.Ed.2d 618, 629-30, 89 S.Ct. U.S. by substan- travel to interstate right ex (1969). subsequently The Court offenders ability of sex tially limiting of inter guarantee the federal plained ur- town residences to establish interstate travelers “protects' travel state They contend in Iowa. ban area ‘the erection sets of burdens: against two implicated travel is right to constitutional movement’ to interstate actual barriers previously deters Iowa law intra because from differently’ treated ‘being migrating from sex offenders convicted Bray v. Alexandria state travelers.” district Iowa. The othеr States Clinic, from U.S. Health Women’s statute reasoning that (1993) agreed, court (quot 122 L.Ed.2d resid- “effectively bans Williams, 60 n. v. ing Zobel (1982)). of Iowa’s towns large sections ing in 72 L.Ed.2d at 874. F.Supp.2d cities.” summarized recently, the Court Most respectfully disagree We analy- with this whether there is a right fundamental sis. imposes The Iowa statute no obstacle travel, intrastate see Hosp. Memorial Iowa, entry to a sex offender’s into it and Maricopa County, 250, 255-56, 415 U.S. 94 does not an “actual erect barrier to inter- 1076, (1974), S.Ct. 39 L.Ed.2d 306 although Bray, 277, state movement.” 506 U.S. at it long observed ago that under the Arti- (internal omitted). quotation 113 S.Ct. 753 Confederation, cles of “pos- state citizens ingress There is “free regress to and sessed the fundamental right, inherent offenders, from” Iowa for sex and the stat- citizens of all free governments, peacefully ute thus “directly not impair the ex- to dwell within the limits of their respec- ercise of right to free interstate move- states, tive move at place to will from Saenz, 501, ment.” therein, place and to have free ingress 1518. Nor does the Iowa statute violate egress thereto and therefrom.” United principles equality by of treating nonresi- Wheeler, States v. 254 U.S. dents who any visit Iowa differently than 133, (1920). S.Ct. 65 L.Ed. 270 During the residents, current by discriminating era, same Court also commented that against of citizens other States who wish to right locomotion, “the of right to re- establish residence Iowa. We think that move place from one according another recognize a fundamental right to inter- inclination, an is personal attribute of state travel in a situation that does not liberty ... by secured the 14th Amend- any involve these of circumstances would ment,” Fears, Williams v. 179 U.S. extend the beyond doctrine Supreme (1900), 45 L.Ed. 186 but pronouncements Court’s in this area. as observed, the Third Circuit un- “[i]t is That may the statute deter some out-of- clear whether the travel aspect of cases state from traveling residents to Iowa be- like Fears can be severed general from the cause the prospects for a convenient and spirit York, of Lochner v. New affordable residence are promising less (1905), L.Ed. 937 now than implicate elsewhere does not a funda- thoroughly discredited, that promi- was so right mental recognized by the Court’s nent in the substantive due process analy- right to jurisprudence.3 travel sis of that period.” York, Lutz v. City of The Does also assert (3d Cir.1990). 899 F.2d § 692A.2A infringes upon a fundamental right constitutional to miro state travel. Some of our sister have recog circuits Supreme Court has not decided nized a fundamental right to intrastate analysis 3. right In its to interstate freely trav- only long so they do stop.” not el, the expressed district court also concern Id. that a might sex compelled question We whether these concerns are altogether, avoid Iowa lest he establish an applicable even plaintiffs, given to the unlawful residence "unwittingly falling plaintiff class was defined as sex those offend- asleep” at a location within 2000 feet of a living” ers “currently "might in Iowa or wish school or facility. care F.Supp.2d child Iowa, to live” in not vacationers or cross- at 875. The court stated appli- that "[l]iteral country еvent, Id. at any travelers. In cation of the Act great would result in the rely the Does do majority on these factual asser- of the State’s hotels being and motels defending tions in offenders,” judgment traveling restricted to of the district and that court, "community centers we do not find such as evidence in the homeless shel- ters and likely support missions will record that specific most would finding be unavail- able hotels, to sex motels, offenders proximity of about the because location.” home- shelters, Id. This led the court to conclude that "sex less throughout and missions Iowa to appear would to be able to travel to schools and child care facilities. right assuming such a tution, because “drug exclusion aof context in the travel strict require it would recognized, an area persons that banned zone” court The district City scrutiny of 692A.2A. time, Johnson city period deci- (6th the Sixth Circuit’s cite the Does Cincinnati, 496-98 310 F.3d proposition for the that outlawed Johnson sion Cir.2002), ordinance an to intrastate right ability a fundamental limited there thus “cruising” and purposes major public view for Accepting certain on travel. to drive persons a law fundamen- Lutz, analysis, F.2d believe roads, likely re would travel right a durational to intrastate tal that created for eligibility of to interstate right a condition to the as “correlative” quirement be Johnson, Saenz, Rochelle King v. New 310 see housing. in public discussed travel Auth., 647-48 442 F.2d a of consist Hous. or 497 n. would Mun. F.3d at Circuit, ex for Cir.1971). (2d public The through Second locally to travel “right “mean it would that There- reasoned Id. at 498. ample, roadwаys.” spaces and be to travel right describe the implicate to ingless not fore, would the Iowa statute of precept aas fundamental states same tween for the travel to intrastate right a acknowledge a to not liberty and personal right implicate it not that does reasons to travel right constitutional correlative travel. The interstate to 648; John also see Id. at a state.” within a offender sex prevent not does Lutz, F.2d 4;n. 899 son, at 497 310 F.3d of any part leaving entering or that have held decisions Other at 261. a feet of within 2000 State, including areas intrastate to right is no fundamental there it and facility, child care or school fide residen of bona context in the travel to intrastate barrier any actual erect of a condition imposed requirement cy sense, law the Iowa In this movement. v. Bd. Andre employment. municipal of residency re- municipal to the comparable (7th 48, 52-53 F.2d Maywood, Trs. of impli- to held have been that quirements Educ., 529 v. Bd. Cir.1977); Wardwell of intrastate to right fundamental cate no Cir.1976); Wright v. (6th 625, 627 F.2d and Wright, Andre, and Wardiuell travel in (5th Jackson, 901-02 F.2d City of movement of on freedom less restrictive Lafay City v. Cir.1975); Doe see also of parks public to access ban on than the Cir.2004) (7th 757, 770-71 ette, 377 F.3d in Doe review basis rational under upheld ban of banc) city’s (en that (holding contrast, By Lafayette. City v. im did not parks public from all offender a funda- finding infringement decisions to intrastate right fundamental plicate in- have intrastate travel right to mental in “not limited travel, where pres- concerns trigger laws volved local his place within place to moving from to ingress free with here —interference ent to family, and friends ity to socialize of a State parts certain egress from and go toor employment gainful participate Lutz) of new (Johnson treatment and clothing”); buy food market to the favorably than locality less of a residents Columbia, F.3d District v. Hutchins (King). residents existing (hold (en banc) (D.C.Cir.1999) 531, 538-39 right recog no fundamental we urge that there ing also The Does place without public in a to be live where juveniles “to right a fundamental nize hours). during curfew supervision articulation adult ambitious This you want.” calls right unenumerated proposed case to unnecessary in it findWe that we caution Court’s Supreme mind the fundamental is a there whether decide the area with restraint proceed should the Consti- travel under to intrastate right process, “[b]y because determine whether it meets the standard of substantive due to an protection “rationally advancing legitimate constitutional extending some we, interest, right liberty Flores, to a asserted governmental purpose.” extent, the matter outside the great place acknowl- S.Ct. 1439. The Does legislative ac public arena of debate edge designed pro- that the statute was Washington Glucksberg, tion.” children, safety they mote the con- 138 L.Ed.2d 772 legitimate cede that this is a state interest. (1997). thirty years ago, our court Some They perhaps also allow that “certain iden- agree right cannot said “we right sex offenders not live tifiable should place of choose one’s residence is necessar from a or perhaps across street school ily right,” fundamental Prostrollo v. anywhere where there are children.” else S.D., (8th 507 F.2d Cir. Univ. of 51). contend, (Appellees’ Br. The Does 1974), no see basis conclude however, that the irrational be- statute is gained strength contention has study no sup- cause there is scientific years. Supreme intervening Court ports legislature’s that ex- conclusion recently has restated its to “ex reluctance cluding residing sex offenders from within of pand concept pro substantive due facility 2000 feet of a or child care is school guideposts for responsible cess because to likely safety enhance of children. decisionmaking in this uncharted area are open-ended,” Glucksberg, reject 521 scarce and We this contention because 720, (quoting at 117 U.S. S.Ct. 2258 Col think it authority understates ‍​​​​​​‌​​​‌​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​‌​​​‌‌‌​‌‌​‌‍of a lins, 125, 1061), 503 at 112 S.Ct. and legislature judgments state to make about developed any argu the Does have not protect the best means to the health and right you ment that to “live where welfare of in its citizens an area where “deeply want” is rooted in this Nation’s precise statistical data is and unavailable tradition,” 721, history and id. at necessarily human behavior is unpredict- Moore, 503, (quoting 2258 431 U.S. at 97 Although able. Does introduced one (plurality opinion)) “implicit S.Ct. 1932 or report from the of Department Minnesota concept in the liberty,” of ordered such finding Corrections “no in evidence liberty justice nor that “neither would ex Minnesota residential of proximity if were (quoting ist sacrificed.” Id. [it] sex parks offenders schools or affects Connecticut, Palko v. 302 U.S. reoffense,” solitary study—which this case 326, (1937)). 58 82 L.Ed. S.Ct. 288 only involved thirteen reoffenders released persuaded We are thus not that the Con from prison between 1997 and 1999—does a right stitution establishes to “live where not make irrational the decision of the you scrutiny want” that requires strict of a Assembly Iowa General and the Governor residency State’s restrictions. predictive Iowa to reach a different judgment § 692A.2A not im for Iowa. As the Because district court observed, liberty plicate a constitutional interest that twelve other States have enact- has been residency elevated the status of “funda ed some form of ap- restriction right,” plicable mental we review the statute to to sex offenders.4 There can be ("Unless 15-20-26(a) § 4. See Ala.Code other- shall be unlawful for a offender who is law, exempted by register wise required no adult criminal sex ... and who has been accept establish a shall residence or as a Level 4 assessed 3 or Level offender to 2,000 employment property (2000’) within feet of the reside within two thousand feet any facility property public private on which school or child care any on which ele- or located.”); 5-14-128(a) ("It mentary secondary § Ark.Code Ann. daycare school or fácil- (Iowa 2002)), (as Sess., in at rationality feet legislature’s no doubt Assembly the Iowa General Gover- are a seri- believing “[s]ex eventually sort adopted) nor of task Nation,” in ous threat for which officials policymaking the elected sex offenders reenter convictеd “[w]hen State, courts, of a are federal likely than society, they much more legislature properly suited. The is institu- type of offender to re-arrest- other tionally weigh equipped to the benefits and rape for a new or sexual assault.” ed distances, and to burdens of various recon- Safety, Pub. 538 U.S. Dep’t Conn. in light experi- its initial sider decision (alterations original) ence data accumulated over time. Lile, McKune v. 32- (quoting Alabama, example, origi- The State of (2002) 153 L.Ed.2d 47 nally adopted restriction only question re- (plurality opinion)). feet, but later increased distance whether, rationally of a maining is view feet, 15—20—26(a); § see Ala.Code risk, residency re- perceived the chosen 1;§ Ala. Acts Ala. also 2000 in- rationally advances State’s striction legisla- Acts while the Minnesota protecting children. terest apparently ture the recommenda- followed think the decision whether We Department tion of the of Correc- State’s on of “across the proximity set limit proximity tions that no blanket (as appellees or 500 feet suggest), adopted. (Appellee’s street” App. should be (as 338). consid in a group, or 3000 feet Senate Where individuals such offenders, have rejected, 2d as convicted sex “distin- ered and see S. Journal ( located.”); public elementary 3003(g) any private, § or ity is Cal.Penal Code or second- parole school, for ary facility, playground, inmate who is released on day "[A]n a care any prohibiting center, or of lewd [sections violation public public private youth swim- or acts, of a lascivious or continued sexual abuse ming pool, standing free video arcade facil- or placed not or reside ... within child] shall be 2950.031(A) § ity.”); Ohio Rev.Code Ann. any private one-quarter public of or one mile ("No person ... who has been convicted of school.”); 947.1405(7)(a)(2) § Fla. Stat. Ann. sexually a offense that is not either a oriented (“Any sexual [certain inmate convicted of sexually registration-exempt oriented offense against subject ... to minors] and crimes a shall estab- or child-victim oriented offense prohib- supervision [is ... conditional release occupy premis- a lish residence or residential 1,000 school, living ited within feet of a from] any es one feet of school within thousand center, day park, playground, designated care ("It § premises."); tit. 590 is Old. Stat. stop place public bus or other where school pursuant any registered person for unlawful regularly congregate.”); Ga.Code children Registration to Oklahoma Sex Offenders 42-l-13(b) ("No required §Ann. individual Act to within a two thousand-foot radi- reside 1,000 register to ... reside within feet of shall private any public of or school site or us school, any facility, care or area where child institution.”); Or.Rev.Stat. educational congregate.”); Comp. Stat. minors 720 Ill. 144.642(l)(a) (Rules post-prison super- § 5/ll-9.3(b-5) ("It § for a child sex is unlawful parole general .. .a vision “shall include or knowingly within feet reside allowing prohibition against sex offender ..."); building Ky.Rev.Stat. Ann. school where children are the reside near locations ("No placed § registrant ... who is on 17.495 users.”); occupants рrimary or Tenn.Code probation, parole, supervised or form offender, (“No 40-39-211(a) § Ann. sexual release, shall one thousand reside within offender, ... ... or violent sexual shall know- school, school, (1,000) high feet of a middle ingly within thousand feet reside or work one school, preschool, day elementary or licensed (1,000') any public property on which 14:91.1(A)(2) facility.”); § care La.Rev.Stat. school, school, parochial private licensed ("Unlawful or presence sexually pre- of a violent center, day any other child care facili- residing sexually care physical dator ... of a is located.”). ty predator within one thousand feet of violent guishing charaeteristics relevant to inter- the sex offender registration requirements ests the authority State has to implement, 692A.2, §of unconstitutionally compels sex the courts very reluctant, have been incriminate themselves in vio they should in our system be federal lation of the Fifth and Fourteenth Amend with our respect for the separation pow- ments. The district court concluded that a ers, to closely legislative scrutinize choices sex offender who establishes residence in a whether, how, as to and to what extent prohibited area must register either his those should pursued.” interests City address, current thereby ad “explicitly Cleburne Ctr., v. Living Cleburne mitting] necessary facts to prove the 432, 441-42, U.S. act,” criminal register “refuse to and be (1985). L.Ed.2d 313 similarly prosecuted.” F.Supp.2d The record does not support a conclu 879. The court then § held that 692A.2A sion that the Iowa Assembly Generаl “unconstitutionally requires sex offenders the Governor acted merely based oh nega provide incriminating evidence against tive toward, of, attitudes fear or a bare themselves,” enjoined enforcement of desire to harm a politically unpopular the residency restriction on this basis as Cleburne, group. 473 U.S. at Cf. well. 3249; Dep’t Agric. Moreno, disagree We Self-Incrimination 37 L.Ed.2d (1973). Clause of the Fifth Sex Amendment offenders have renders high rate recidivism, the residency parties and the restriction of presented 692A.2Aun- expert testimony that constitutional. reducing Our reason opportuni is straightfor- ty temptation ward: important to the residency minimiz ing the risk of compel reoffense. Even experts in a sex offender to be a witness the field could predict against confidence himself or a of any witness kind. whether a particular sex offender will reof- The regulates statute only where the sex fend, whether an offender convicted of an offender may reside; it does not require offense against a teenager will be among him provide any information that might those who “cross over” to against offend a be against used him in a criminal case. A child, younger or the to degree which reg separate section of the Code, ular proximity to place a where children 692A.2, § requires a sex offender to regis- are located enhances the risk of reoffense ter his address with the county sheriff. against children. expert One in the dis The Does have not challenged the constitu- trict opined court just it is “common tiоnality of registration the requirement, sense” that limiting the frequency of con or sought injunction an against its enforce- tact between sex offenders and areas ment, and whatever constitutional problem where children are located likely to re may be posed by the registration provision duce the risk of an offense. (Appellant’s does justify not invalidating the residency 165). App. at policymakers The of Iowa restriction. are entitled. to employ- such “common sense,” and we are persuaded not None of the authorities by the cited the means selected pursue to the Does legiti supports State’s invalidation of a substantive mate interest are without rule rational of law basis. a because reporting or registra tion requirement allegedly compels a per

IV. son in violation of that substantive rule to The Does next argue that the resi incriminate himself. The Supreme Court restriction, dency “in combination with” held in States, Marchetti v. United 390

717 the had asserted petitioners the where 889 697, 19 L.Ed.2d 39, 88 S.Ct. U.S. on mul- against self-incrimination States, privilege (1968), United and Grosso General occasions, Attorney the tiple 709, 19 L.Ed.2d 62, 88 S.Ct. U.S. rejected their had States the United un privileged (1968), gambler a requiring the claims, orders specific register to Fifth Amendment der the issued, 382 had been register to petitioners the business as one in occupation his process with 86 S.Ct. U.S. required pay not to wagers, accepting Iowa sex of the enforcement respect to wager tax, pay a and not occupational conjunction stаtute registration offender submissions tax, these because ing excise far less residency restriction with hazard appreciable real create a would not show The record developed. gambler. for the of self-incrimination regis- has plaintiffs any of the however, whether that the suggested, never Court an address county sheriff tered with prevented Clause Self-Incrimination 692A.2A, whether prohibited that is wagering criminalizing government attorneys or the Attor- county any of the Leary v. Unit Similarly, gambling. registration seek to use would ney General States, 89 S.Ct. ed prosecu- a criminal to further information holding that (1969),the Court’s L.Ed.2d residency restric- for tion violation complete awas of self-incrimination plea a (rather regulatory a merely as than tion non-compli for prosecution in a defense into bring sex offenders mechanism payment requiring provisions with ance statute),5 or whether with the compliance Unit into the marijuana imported a tax on recog- would authorities prosecuting laws that state imply did States ed valid asser- as a register marijuana nize refusal possession prohibiting self-incrimina- against privilege tion of the Id. unconstitutional. somehow were a sex (and prosecute thus decline tion v. Subver inAnd Albertson prohibited register failing to Board, 382 U.S. Control Activities sive residence). (1965),where 194, L.Ed.2d under unconstitutional held the Court circum- under these We think requirement Amendment Fifth challenge stances, a self-incrimination file a Party Communist members prema- would statute registration Attorney statement registration Party v. Subversive Communist ture. See intimаted General, never it was 106-10, Bd., 367 U.S. Control Activities uncon rendered requirement registration (1961); 1357, 6 L.Ed.2d 625 cf 4(a) Subversive Section stitutional Pub. Interest Minn. Sys. v. Serv. Selective Albert- Act, which under Control Activities 841, 858, 104 468 U.S. Group, Research result as a prosecuted have been might son (1984). If and 632 3348, L.Ed.2d 82 registration. violation for a prosecution is there when pros- the in which residency restriction the sex challenged the Does had Even the reg- a sex offender’s use makes moreover, ecution statute, we registration offender regis- for failure istration, prosecution a challenge self-incrimination that a believe address, other or some prohibited a ter requirements would registration to the say in Albertson Albertson, such as basis Unlike decision. ripe for be sought charges while the withheld that some record in the evidence is 5. There (T. Tr. authorities, area. an unrestricted housing than rather enforcement law 229). against an offender charges immediately file zone, have residing a restricted to be found 718

dispute challenge then the self-incrimination to an ripe, requiring Alaska statute joined. will It would be register. issue be then sex offenders to Under questions appropriate to such as framework, consider we must first “ascertain registration requirement as whether the legislature whether the meant statute applied falls under the rule of cases such (inter- proceedings.” to establish ‘civil’ Id. Albertson, and where the omitted). Marchetti quotation nal If legislature in- prohibit Fifth Amendment was held to punishment, intended criminal then registration criminating reporting re- legislative intent controls the inquiry and pеrsons “inherently quirements directed at necessarily If, punitive. the law is Id. Albertson, activities,” suspect of criminal however, legislature intended its law 194, or 382 U.S. at 86 S.Ct. whether civil nonpunitive, then must need for about public information con- determine whether law nonetheless victed the noncriminal punitive purpose “so either in or effect as regulatory purpose securing for the infor- negate” the nonpunitive State’s intent. might permit mation enforcement of (internal quotations Id. omit- citations requirement consistent with the Fifth ted). “[OJnly proof’ the clearest will City Amendment. Dep’t Baltimore Cf. legislature transform what the has denom- Bouknight, Soc. Servs. v. 493 U.S. regulatory inated a civil into measure a 557-59, 110 S.Ct. 107 L.Ed.2d 992 penalty. criminal Id. (1990); Byers, v. 402 U.S. California district court found that 431-34, (1971) L.Ed.2d passing residency id,, 457-58, (plurality opinion); 692A.2A, § Assembly the Iowa in General J., (Harlan, concurring judg- in the civil, non-punitive tended to create “a stat ment). point, At this we conclude that the utory to protect public.” scheme Does’ self-incrimination claim is both mis- F.Supp.2d at 868. The Does do not dis premature. directed and

pute this conclusion on appeal, and we V. agree that legislature’s intent punitive. § Although Iowa Code 692A.2A final, narrower, A chal does not contain clear statement of lenge advanced the Does is that purpose, restriction is codi an 692A.2A is post unconstitutional ex part 692A, fied as of Chapter together with law imposes because it retroactive facto registration system a the Supreme punishment on those who committed a sex Court of Iowa has declared to have prior July 1, offense 2002. The Post Ex purpose “protect[ing] society” I, and to be Facto Clause of Article Section 10 of the nonpunitive, regulatory law. In Interest prohibits Constitution the States from en S.M.M., (Iowa 558 N.W.2d acting punishment laws increase 1997); Pickens, criminal State they acts after N.W.2d have been commit (Iowa 1997). Bull, generally legislative “[W]here ted. See Calder v. (1798) restriction is an 3 Dall. incident of L.Ed. 648 the State’s (Chase, seriatim). J., power protect safety to determining In the health and of citizens, a it whether state statute its will violates the Ex be considered as evi an by dencing Post Facto Clause such intent to imposing pun regulato exercise that ishment, apply ry we power, the outlined and not purpose framework a to add the to Doe, 84, 92, in v. Doe, Smith 538 punishment.” U.S. 123 v. S.Ct. Smith 538 at U.S. 1140, (2003), 93-94, 155 L.Ed.2d 164 (quoting where the 123 S.Ct. 1140 Flemming Supreme Nestor, Court post considered an ex 1367, v. 363 U.S. facto

719 is the effective § 692A.2A argue that (internal (1960)) marks 4 L.Ed.2d banishment, been has which of equivalent evi available omitted). the believe We punishment. historically as a regarded to the inference naturally leads most dence Doe, at S.Ct. 538 U.S. v. Smith See in §in 692A.2A restrictions as defined has been 1140. Banishment elsewhere restrictions tended, like the “ by criminals on inflicted ‘punishment health protect the to chapter, the same or city, place, quit a them to compelling Therefore, we citizens. safety of Iowa time, or of period specified a country for the purpose the that conclude ” Toy, 198 life,’ v. Ju States United for was law this passing Assembly General 644, 49 L.Ed. 253, 269-70, 25 S.Ct. non-punitive. regulatory (1905) (Brewer, J., dissenting) (quot the whether consider must next We “expul Dictionary), or Law Black’s ing the law have established Does Law Dictio country.” Black’s a sion ne- to effect as punitive so nonetheless ed.2004). (8th Supreme 154, 614 nary a to create intent legislature’s gate that ban recently explained most Court In scheme. regulatory civil, non-punitive “re historically could not offenders ished Supreme to refer what we inquiry, community,” and original to their turn “useful Doe v. as in Smith described Court “expelled of an the banishment a law determining whether for guideposts” Doe, v. community.” Smith from the him analyzing In effect. punitive has a 1140; see also 98, 123 S.Ct. 538 U.S. registra- sex offender Alaska effect States, 149 U.S. Ting v. United Fong Yue five to pointed law, in Smith the Court tion (1893) L.Ed. 730, 13 S.Ct. Kennedy v. Mendoza- drawn from factors a “not deportation order (holding that 168-69, Martinez, 372 U.S. in which banishment, sense in the (1963), particularly as L.Ed.2d of a expulsion to the applied often word is re- has the law been whether relevant: way punish country his citizen from as traditions history and in our garded ment”). tra- it promotes whether punishment, an involves of course banishment While it whether punishment, aims of ditional restriction, we residency form extreme disability or re- an affirmative imposes analogy be accept do not ultimately connec- rational straint, it has a whether punishment means of traditional tween the and whether purpose, nonpunitive tion to banishment, Unlike Iowa statute. purpose. to that respect excessive with it is offenders only where restricts § 692A.2A Doe, Smith of “expel” It does may reside. exhaus- “neither factors are 1140. These prohibit or communities from their fenders omit- (quotation id. dispositive,” tive nor schools areas near accessing them from an aid them as consider ted), and while con to employment, care facilities child in mind that we bear analysis, our to transactions, any or for commercial duct whether always remains question ultimate establishing a resi than other purpose so se- law are effects punitive offenders, many respect With dence. proof’ the “clearest to constitute vere change require even the statute legislature by the intended a statute Assembly Iowa General of residence: should regulatory nonpunitive to be per provision grandfather included post impose ex deemed nonetheless a residence maintain mits sex punishment. July prior facto established that was 2000 feet is within residence if that even tradition historical Turning first facility. Iowa Code care child restrictions, a school Does regarding 692A.2A(4)(c). court, The district requirements more corresponded to the degree over, found restrictions for of wrongdoing rather than the extent of sex offenders “are relatively new and the risk imposed, Otte, Doe I v. 259 F.3d unique,” somewhat 298 F.Supp.2d 979, (9th at 849 n. Cir.2001), rev’d sub nom. 4, as with sex offender registration Doe, Smith laws, which were also of “fairly' recent 155 L.Ed.2d (2003), Supreme Doe, ‍​​​​​​‌​​​‌​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​‌​​​‌‌‌​‌‌​‌‍origin,” Smith v. 538 U.S. at disagreed, Court and instead emphasized (internal S.Ct. 1140 quotation omitted), requirements reporting were “rea- novelty “suggests that the statute was sonably related to the danger of recidi- not meant as punitive measure, or, at vism” way in a that was “consistent with least, that it did not involve traditional the regulatory objective.” Doe, Smith v. of punishing.” means Id. We thus con 538 U.S. at 123 S.Ct. 1140. While clude that this law is unlike banishment in restraint or requirement imposed on those important respects, and we do not believe who commit crimes is at least potentially it is type of a that is traditionally punitive. effect, retributive believe § 692A.2A, like registration require-

The second factor that we consider is ment Doe, in Smith v. is consistent with whether promotes the law the traditional the legislature’s regulatory objective of punishment aims of and retri- —-deterrence protecting the health and safety of chil- Doe, bution. Smith v. 538 U.S. at dren. S.Ct. 1140. The district court found that the law was both and retributive, deterrent The next factor we consider is whether and thus weighed this factor favor of its the law “imposes an affirmative disability finding that the law punitive. We or restraint.” Imprisonment “para- is the agree with the district court that the law digmatic” affirmative disability or re- could effect, have a deterrent but we do straint, Doe, Smith v. 538 U.S. at not agree that pro- deterrent effect but restraints, other such as vides a strong inference that the restric- probation or occupational debarment, also tion is punishment. primary purpose impose can some restriction on a person’s of the law is not to alter the offender’s 100-01, Id. activities. 123 S.Ct. 1140. incentive by structure demonstrating the While restrictive laws are not necessarily negative consequences that will flow from punitive, they are more likely so; to be by committing a sex offense. The Iowa stat- contrast, “[i]f the disаbility or restraint ute is designed to reduce the likelihood of minor indirect, its effects unlikely are reoffense limiting the offender’s temp- punitive.” Id. at 123 S.Ct. 1140. tation and reducing the opportunity to For example, sex offender registration commit a new crime. observe, We more- laws, requiring only periodic reporting and over, that Supreme Court has cau- updating personal information, do tioned that this factor not be over-empha- have a punitive restraining effect. Id. at sized, for it “prove[] can much,” too 102, 123 S.Ct. 1140. At the time, same “[a]ny number governmental programs civil commitment of ill, the mentally might deter crime imposing pun- without though extremely restrictive and disabling ishment.” Id. to those who committed, does not nec-

The statute’s “retributive” effect is simi- essarily impose punishment because it larly difficult to evaluate. For example, bears reasonable relationship to a “legiti- while the- Ninth Circuit punishment found mate nonpunitive objective,” namely pro- where the length of sex offender reporting tecting public from mentally unstable

721 post in the factor” ex 363, significant “most Hendricks, at U.S. individuals. Doe, at 538 U.S. v. Smith analysis. 2072. 117 S.Ct. facto aof requirement 102, 1140. 123 S.Ct. disabling is more § 692A.2A Iowa Code A demanding: is not connection” “rational at law registration offender the sex than simply be- punitive is not deemed “statute not “led Doe, had which v. in issue Smith the fit perfect or with it lacks close a cause housing or dis- occupational to substantial Id. advance.” it seeks to aims nonpunitive that sex for former advantages court district 103, 1140. The 123 S.Ct. at occurred have otherwise not would a has 692A.2A § that “no doubt” found background routine use the of through offend- sex punishing than other purpose landlords.” 538 employers by checks agree. and we ers, at F.Supp.2d Although the 1140. 123 S.Ct. at U.S. of recidivism high risk light In about much evidence present not Does did Doe, offenders, v. Smith sex see posed would that areas restricted housing within legisla- the at 538 U.S. absent the to them available have been that conclude reasonably could ture of- that some statute, they did show society by mini- protect § would 692A.2A spouses lived with have fenders would sex offenses repeated of the risk mizing in the re- property owned parents who minors. against sex offenders zones, some stricted restricted within living residences were con nonetheless The district court the stat- under permitted were areas in rela is excessive statute cluded The resi- provision. “grandfather” ute’s ap the law because purpose, to this tion disabling, certainly less dency restriction particular of whether “regardless plies civil commitment however, than the public.” the danger to is a Hendricks, per- which issue at scheme par aof The absence at F.Supp.2d affected of confinement complete mitted however, assessment, does risk ticularized Hendricks, In both Smith persons. law regulatory convert necessarily not degree considered the Court measure, Ex Post “[t]he punitive into a legisla- light involved restraint a State preclude does Clause Facto purpose, nonpunitive countervailing ture’s judg categorical making reasonable from emphasized in Hendricks the Court crimes specified conviction ments re- an affirmative imposition conse regulatory particular entail should inexorably lead “does straint Doe, at 538 U.S. v. Smith quences.” im- has government conclusion over Court Supreme 1140. The 363, 117 punishment.” posed on restrictions held that years has omitted). (internal quotation nonpuni of offenders classes several here, agree while Likewise particularized tive, the absence despite an ele- impose 692A.2A Does that prohibiting determinations, laws including restraint, disability or affirmative ment of felons, by convicted of medicine practice us ultimately points factor we believe York, New wker v. Ha inquiry: of the next importance (1898), 42 L.Ed. 197, 18 S.Ct. connected rationally law is whether felons convicted prohibiting laws it and whether purpose, nonpunitive union, De a agents serving as officers purpose. in relation excessive 144, 160, 80 Braisted, 363 U.S. Veau (1960) (plurality 4 L.Ed.2d the S.Ct. factor —whether final This (opin 160-61, S.Ct. 1146 id. opinion); connec has a “rational scheme regulatory laws Brennan, J.), course and of ion of purpose” nonpunitive to a tion —is requiring registration the ference,” of sex offenders. agreed he that “what works Doe, Smith v. at justice criminal imprecise best,” is at testified that always “[t]here is a risk” of (Appellee’s reoffense. App. at case, In this we conclude that a categori- 190). In view of the higher-than-average cal rule is legislature’s consistent risk of posed by reoffense convicted sex regulatory purpose and not “excessive” offenders, and imprecision involved within meaning Supreme Court’s predicting what measures will prevent best decisions. While the argue Does that the recidivism, we do believe the Does legislature must tailor restrictions to the have established that Iowa’s decision to individual circumstances of different sex restrict all such offenders residing offenders, we position view this as incon- near schools and child care facilities consti- sistent Supreme with' the Court’s direction punishment tutes despite legislature’s prong “excessiveness” of the ex regulatory purpose. post analysis require does not facto perfect “close or fit” legisla- between the The Does also urge that the law is ture’s nonpunitive purpose and the corre- excessive relation to its regulatory pur regulation. sponding pre- evidence pose because there is no scientific evidence sented at trial suggested that convicted that a 2000-foot restriction is sex offenders as a class were likely more effective at preventing sex offender recidi to commit sex offenses against minors than vism. “The inquiry excessiveness of our general population. Dr. McEchron in- post ex jurisprudence is an exer facto dicated that “there are never guaran- cise in determining whether legislature tees [sex reoffend,” won’t offenders] has made the best choice possible to ad (Appellant’s 162), App. at Mr. Allison problem dress the it seeks remedy,” but “any testified that sex offender is always inquiry rather an into “whether regula going tо be (T. of some concern forever.” tory means chosen are in light reasonable 279). Tr. at nonpunitive objective.” Smith v. More specifically, in view, Doe, Allison’s even 538 U.S. at 123 S.Ct. 1140. In an who committed a case, crime involv- there expert was testimony that an ing victim, older such as statutory rape, reducing frequency of contact between would be concern day around a care or sex offenders and children is likely to re elementary school, although the temptation concern duce and opportunity, which in (T. may reduced, 278), Tr. at and Dr. turn is important to reducing the risk of Rosell testified that while he believed reoffense. None of the witnesses was able a sex offender who an committed offense to articulate a precise distance opti with a 14 or 15-year-old victim was likely mally balanced the benefit of reducing risk stay age in that range, there also was no to children with the burden of the residen way to predict whether a sex offender cy restrictions on offenders, and the would “cross over” in selecting victims Does’ expert acknowledged that is “[t]here from adults to children males to fe- nothing in the literature that has ad (Appellee’s males. 149, 184). App. Dr. proximity.” dressed (Appellee’s App. 198; Rosell was less than definitive about the accord id. at (testimony 47-48 of Dr. degree to which sex McEchron)). offenders’ future be- As even Dr. admitted, Rosell n havior predictable avoidable; just “don’t know” that the Legis while he personally did not believe resi- (Id. lature “isn’t ahead of the curve.” dential proximity 198). “that big mаde of a dif- Bull, (2003) Calder (quoting decision legislature’s We believe (1798)). 1 L.Ed. 648 Dall. restriction, opposed 2000-foot

select its lenge ered tance tory purpose, that ments inherent children “clearest to be ment.6 reversed, cessive considered the defendants. directions The regulatory offenders, ^[*] the nonpunitive in is best judgment other distances without rejected, determining precisely proof’ Does have relation to and the ^[*] retroactive such enter and the suited purpose. in that that ^[*] unnecessarily of the that case is remanded judgment reasonably related to its to minimize regulatory Iowa’s choice not established difficult choice, legitimate criminal district Given statute were we policy v restricting what the should be designed conclude favor court risk punish- consid- regula- is ex- judg- ^[*] chal- with dis- the to is whether in mental the statute asking whether tended the statute facto must amounts and we find ry to deem or effect as the tect (2003) (internal omitted). tive, As set the scheme purpose the so further law. affirmative, question 123 S.Ct. we must to public. it civil.” Smith out to be I is the punishment. However, the to agree of section examine so by the negate the State’s legislation punitive punitive. the Court the residency This quotations determine 1140, that to with majority, the funda- if the legislature intended whether purpose 692A.2A is ends our the We do so either nonpunitive, v. to If must decide legislature Doe, 538 U.S. majority that if be the answer L.Ed.2d 164 and citation requirement the statuto- is the in purpose an ex intention nonpuni- inquiry, by first to pro- statute post “we in- is or effect purpose punitive either “is so concurring MELLOY, Judge, Circuit deеm intention to the State’s negate as to dissenting. it civil.” Id. sections majority’s opinion, in the join I the majority that with the I agree also However, as to I dissent IV. through I guide our should in Smith outlined factors section I believe V because section the ways However, I part analysis. fac- post ex unconstitutional is an 692A.2A individual of the to how some majority as law. the and as examined should be factors states prohibits Constitution The U.S. analysis. the multi-factor final outcome facto U.S. post laws. ex passing from “ Const, ‘Every law I, 1. § cl. art. like the measures 1. Have inflicts a punishment, the changes historically re- been restriction annexed than law punishment, greater punishment? garded as ” committed,’ is an ex crime, when that banishment concedes majority California, v. Stogner law. post facto punish- as regarded historically been has L.Ed.2d U.S. 86, 94-99, Dulles, is statute of our conclusion In view (1958) opinion). Even (plurality L.Ed.2d is not law punitive, it follows not punitive, were assuming that 692A.2A punishment” in violation unusual "cruel and Doe, court agree with the district would See Eighth Smith Amendment. dispropor- grossly nor barbaric (explaining law neither S.Ct. 1140 by Does. committed to the offenses tionate determining law whether used in that factors Eighth reject Amendment We purposes therefore post for ex punishment facto an alter- appellees as urged argument under origins in cases earlier "have their court. affirming the district Amendments"); ground for Trop v. native Eighth Sixth ment, but out points how the residency These findings clearly erroneous differs banishment. The and should upheld. therefore be See Fed. majority concludes section 692A.2Ais 52(a). R.Civ.P. In its findings, the district type not the of law historically that has court demonstrated how difficult it is for regarded punishment. been I would sex offenders to legal housing find in many that, find although section 692A.2A does communities in Iowa due housing to the banishment, amount to full it suffi- restriction. It is common that offenders ciently resembles banishment make this may not return to live in community factor weigh towards finding puni- the law they incarceration, lived in before tive. place' live, where their families and/or The district court made the following place they find work. There are so few findings factual on availability ‍​​​​​​‌​​​‌​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​‌​​​‌‌‌​‌‌​‌‍the of hous- legal housing options that many offenders ing: face the of living choice in rural areas or

[S]ex offenders are completely banned leaving the state. The difficulty in finding from in a living number of Iowa’s small proper housing effectively prevents offend- towns and cities. In the major state’s ers from in living many Iowa communities. communities, offenders are relegated to effectively This results in banishment from living areas, in industrial in some of the virtually all of Iowa’s and larger cities cities’ expensive developments, most or towns. on very the outskirts of town where Smith, In Supreme drew a Court housing available Although limited. distinction between Alaska’s sex offender some unrestricted, areas are completely registry and punishments colonial such as these are either very small towns with- shaming, branding, and banishment. The any services, out or farmland. towns that have a facility, the entire town by the excluded area. pensive neighborhoods. some of the stricted, Moines, thousand foоt circles cover virtually the entire In larger cities such as Des Moines and ^[*] City, city include ^[*] area. The instance, city’s maps ^[*] only newest and most ex- school industrial areas or show that the two which are not re- few areas Des ^[*] is often In Johnson In smaller v childcare engulfed in ^[*] permanent stigmas, which in effect cast the person out of punishments as making “offenders suffer (internal quotation him zens for face-to-face shaming It described the aim of ed). these colonial U.S. at whereas the colonial punishments “either volved held the Court found from “dissemination of person 123 S.Ct. 1140 (emphasis add- that the registry merely community.” up before his fellow citi- and citation community.” information,” Smith, omitted). expelled Id. in- requirement residency permanent is a alone, County Tree, towns of Lone stigma as well as a law that effectively Oxford, North Liberty, Shueyville, So- casts the person out lon, community. Swisher and Tiffin wholly are re- Further, Smith also stricted as to described banish- offenders under ment in situations which 692A.2A. Unincorporated individuals “could areas and neither towns too small original return their community have school or nor, facility reputation childcare available, tarnished, remain admitted eas- does the country, ily but into a housing available new one.” Id. phras- this Under in those areas is necessarily readily ing, section 692A.2Afits the descriptiqn available. banishment. that offend- pointed in that case out does Court residency course, restriction

Of ... residences.” change every were ers “free living from offenders prevent Smith, visiting communities from community, nor that there was no In also noted live. The Court nоt allowed they are

in which disadvantaged the measure complete from evidence differs the law way, this Id. I finding housing. However, offend- preventing banishment. disability or affirmative find many Iowa would a home in making ers require- in the residence their restraint intrinsic they have served after communities it from the sex similarity distinguishes ment have substantial sentence in favor of weighs Smith registry that offend- To the extent to banishment. finding punitive. their de- law banished from effectively ers residence, I find would places sired 4. Does finding section in favor of weighs factor a rational connection have punitive. 692A.2A nonpunitive purpose? pro- residency restriction 2. Does the majority that section agree I punish- aims mote traditional to the a rational connection has 692A.2A ment? pub protecting of purpose nonpunitive of S.M.M., 558 N.W.2d In Interest lic. See tradi- a restriction residency serves The 1997). (Iowa 405, 408 deterrence. punishment: tional aim the de- to minimize attempts majority The residency exces- restriction 5. Is the by arguing of the statute effect terrent sive? neg- not increase the statute connection I a rational action, Though mere- believe but for an consequences ative residency restriction between exists for action opportunity ly reduces I would find purpose, nonpunitive view, is this distinction my In to occur. in relation is excessive use that the restriction major we One reason important. limits The statute purpose. do, imprison- such punishments identically, all offenders housing choices of future ment, likelihood is to reduce crime, type of type of of their regardless of the the offender by depriving crimes The effect victim, re-offending. or risk crimes. those commit opportunity dramatic: quite is requirement purpose clearly a deterrent is There fami- their cannot live with many offenders 692A.2A, the measure thus in section work com- home live in their lies cannot punishment. aim of and/or promotes traditional community is whole munities because offenders residency im- This restriction leaves restricted area. Does the 3. small, disability prescribed in country in the pose affirmative live an offer might and cities of towns areas restraint? In ad- housing. available appropriate, no res- acknowledges majority The the restric- dition, limit to is no time there affirmative imposes an idency requirement tions. restraint, It agree. I disability or applies Also, residency restriction in certain living restricts serious are not the most who plaintiffs re- that live within areas. Offenders a class no doubt There In offenders. penalties. criminal areas face stricted re-offend risk to is at from offenders greatly differs way, the restraint reasonable. a restriction for whom such Smith. registry the sex offender However, the restriction also applies to II,

John Doe who pleaded guilty to third America, UNITED STATES degree having sexual abuse consensual Plaintiff-Appellee, sex with a fifteen-year-old girl when he twenty years was old. The restriction ap- VII, plies to John Doe who was convicted Timothy SMITH, Dean Defendant- of statutory rape under Kansas law. His Appellant. gave actions which- risе to this conviction No. 03-30533.

would not have been criminal Iowa. The applies XIV, to' also John Doe United States Appeals, Court of pleaded who to a guilty serious misde- Ninth Circuit.

meanor charge exposed after he Argued Sept. Submitted 2004. party himself at a thirteen-year- which a girl present. old John Doe Filed XIV was Dec. 2004. nineteen at the time of his offense. The Amended April actions of these plaintiffs and other Craig Weinerman, E. Assistant Federal serious, and, cases, at. least in illegal most Defender, Public Oregon, Eugene, for the However, in this state. severity defendant-appellant. restriction, residency the fact that it is applied all offenders identically, and the Jr., Frank R. Papagni, Assistant United fact that it will be enforced for the rest of Attorney, States Eugene, Oregon, for the lives, the offenders’ makes the plaintiff-appellee. restriction excessive. view,

In my four factors weigh in favor

of finding punitive, the statute only while

one weighs in favor finding the statute

nonpunitive. analysis leads me to the conclusion restriction is WALLACE, Before: BEA, GOULD and punitive. imposition Because the of the Circuit Judges. “ residency requirement ‘changes pun ishment, and inflicts a greater punishment, ORDER than crime, the law annexed to the when ” The court’s opinion filed December committed,’ Stogner, 539 U.S. at 2004, slip op. appearing at 390 Colder, S.Ct. 2446 (quoting 3 U.S. at (9th Cir.2004), F.3d 661 hereby amended 648), Dall. 1 L.Ed. I would find Sec as follows: tion 692A.2Ais an unconstitutional post ex 1. Line seven on slip op. after facto law that applied persons cannot citation Bonat, F.3d who committed their offenses before the insert: “The Supreme Court has re law was enacted.

cently approved plea the use of a col loquy transcript. See Shepard v. States, United -, 161 L.Ed.2d 205 (2005).” Line slip op. five of after ‍​​​​​​‌​​​‌​​​‌​‌‌​‌‌​​​‌​‌‌‌‌‌‌​​​​‌​​​‌‌‌​‌‌​‌‍“of mandate,” insert: “The Supreme

Case Details

Case Name: John Doe v. Tom Miller

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 29, 2005

Citation: 405 F.3d 700

Docket Number: 04-1568

Court Abbreviation: 8th Cir.