A tangle of laws keeps many offenders from finding homes

By Cynthia Calkins, PhD, John Jay College of Criminal Justice, and Robert Beattey, JD, Graduate Center at City University of New York

July/August 2017, Vol 48, No. 7

Print version: page 33

In 2009, Patrick James Werner began preparing for his release after serving 10 years in prison for the sexual assault of a child and attempted child enticement. Because he was designated as a high-risk “Special Bulletin Notification” sex offender in Wisconsin, Werner was subject to numerous ordinances that place severe restrictions on where he could live. He searched for housing for more than a year, receiving help from parole officers and his family. Given that the ordinances did not permit him to be homeless and because no suitable housing was available, Werner was kept in custody at the Brown County Jail as he searched. Corrections staff allowed him to leave for four hours a day as long as he was accompanied by a chaperone.

Then, in 2011 — 378 days beyond his mandatory release date — Werner finally secured an approved residence. Claiming that his continued imprisonment during the period of his housing search was unlawful, Werner filed a prisoner complaint, arguing that his incarceration was a violation of due process protections under the 14th Amendment and a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, and that state corrections officials were at fault. The U.S. Court of Appeals for the Seventh Circuit, in a divided decision, held that the state officials who kept him incarcerated were entitled to immunity given that they did not knowingly violate the law or act in a plainly incompetent manner.

The case is now under petition to the U.S. Supreme Court in Werner v. Wall (2017.)1 Werner’s appeal asks whether state officials are entitled to immunity from suit for keeping sex offenders beyond their release date when no suitable housing is available. Werner argues that his detention should not have been allowed, given that the failure to find housing was through no fault of his own but rather because no housing options existed. Werner further argues that, absent suitable housing, prison officials had other solutions to monitor him, such as requiring weekly check-ins to report homeless status.

Limited housing availability for sex offenders is not a problem unique to Werner or to Wisconsin. Across the United States, residence restrictions and other ordinances have made it exceedingly difficult, and in some cases impossible, for sex offenders to find housing. Research confirms that there are few housing options available for sex offenders subject to residence restrictions. In addition, research shows that sex offender residence restrictions do little, if anything, to prevent sex offender recidivism (Socia, 20122). Indeed, by increasing housing instability and homelessness, such restrictions may inadvertently increase risk of recidivism. Stable housing is a precondition for successful community reintegration, but many laws have made stable housing next to impossible to secure.

Werner v. Wall presents an opportunity for the Supreme Court to address this problem by encouraging states to deal with the complex laws that lead many sex offenders to be homeless. Jailing sex offenders who are homeless — through no fault of their own — is not an appropriate solution. Dissemination of research findings showing little impact of housing restrictions on recidivism may encourage policymakers to search for more effective solutions.

1 Werner v. Wall, (2017) No. 16-898 (S.Ct.)

2 Socia, K.M. (2012). The efficacy of county-level sex offender residence restrictions in New York. Crime & Delinquency, 58(4), 612–642.

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues). For direct links to the research cited in this article, visit our digital edition at www.apa.org/monitor/digital.aspx.

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