After his release from ADTC, Timmendequas did not venture far, moving into a rental home with two other convicted sex offenders in a suburban neighborhood in Hamilton Township, N.J., where his quiet existence went unnoticed until the summer of 1994. On July 29 of that year, Timmendequas lured a 7-year-old girl who lived across the street into his home by promising to show her a new puppy. Once inside, he raped the girl, slammed her skull into a dresser, and then put two plastic bags over her head and strangled her to death with a belt. He assaulted her lifeless body once again before placing her in a wooden box and dumping her in the bushes at a nearby park. Timmendequas would lead police to the body the very next day, and within hours, an entire nation knew the young girl’s name: Megan Kanka.
The sheer brutality and senselessness of Megan’s kidnapping, rape, and murder horrified the American public. Her parents—along with legions of local, state, and federal lawmakers—were quick to point the finger at sex offender registries, which allowed law enforcement to track Timmendequas’ whereabouts but did little to warn the public at large that a twice-convicted sex offender was living amongst them. The result was Megan’s Law, a 1994 amendment to an earlier federal law on sex offender registries that required all 50 states to immediately release relevant sex offender registry information to the public in order to protect them from sexually-violent offenders. [See “What’s in a Name?”]
For many, the declassification of registry information—especially via point-and-click Internet databases—was a systemic shock, particularly in high-density multifamily communities with higher transient populations than single-family neighborhoods. “You look at that map with all the blue dots and realize: They’re here. They’re amongst us,” says Debra Carlton, senior vice president of public affairs for the Sacramento, Calif.-based California Apartment Association. “Of course, they were always amongst us, but when the registries went public, there were news teams using registry data to confront property managers on camera regarding sex offenders living on site. Our office was bombarded with calls on how to handle it all.”
The pandemonium that ensued after the public release of sex offender registries speaks to the special place in hell that the majority of people think should be reserved for sex offenders. More than any other class of criminals, the actions of sex offenders tear communities apart and engender a visceral, often violent reaction. There’s a reason they are the only criminals required to register upon release and are even despised by fellow inmates. They are pariah bogeymen of the first order.
Which is natural, says Dr. Nancy Erwin, a Los Angeles-based psychologist and member of the American Academy for Experts in Traumatic Stress and the California Coalition on Sexual Offending (CCOSO). “By nature, we are socially comparative creatures and pick someone who is at the top and someone who is at the bottom,” says Erwin, who treats sex offenders and victims as part of her practice. “We don’t like the innocent easily manipulated by power, force, and sheer physicality. When our most life-affirming things are coupled with abuse and violence, it goes against our nature, and so we put sex offenders at the bottom of the rung. Even in prison. We ostracize and dump all of our own shame on these persons. We use them as a toilet.”
And in the toilet they should stay, say advocates for even-tighter registry and residency restrictions on sex offenders released from prison. The conception that these criminals are monsters is widespread—it’s based on the assumption that all offenders are incurable predators one temptation away from their next vicious, senseless, deviant attack. But in reality, experts say that what most sex offenders look for upon their release from prison isn’t another innocent, unsuspecting victim at all; it’s an apartment that they can rent.
When it comes to renting apartments to sex offenders, all eyes are on California. There are 88,000 identified sex offenders currently living in the Golden State, of which 10,000 are being actively supervised, including 3,200 that have been designated as “High-Risk Sex Offenders,” according to data from the California State Sex Offender Management Board (CASOMB), a unit within the California Department of Corrections charged with assessing sex offender management practices for the governor’s office and state legislature. There are an additional 22,500 adult sex offenders currently serving time in one of 32 state prisons operated by the state who will eventually cycle out into the public and join their peers on the California sex offender registry.
But unlike every other state in the union, California does not allow landlords to use data from its registry to make renting decisions. Properties relying on Section 8 assistance from the U.S. Department of Housing and Urban Development are exempt and must follow federal regulations, according to an opinion letter penned by California Attorney General Jerry Brown. But even that guidance seems ineffectual. According to an audit from the U.S. Office of the Inspector General released this August, there are an estimated 2,094 to 3,046 HUD-subsidized households that include a lifetime-registered sex offender, despite the ineligibility and illegality of sex offenders obtaining federally-subsidized housing. According to the report, HUD largely disagreed with recommendations that the agency seek legislative or regulatory changes to enable the denial of continued occupancy and termination of tenancy of registered sex offenders.
Ultimately, therein lies the rub for owners of rental housing, which attracts a larger number of sex offenders than any other type of housing. “[They] migrate towards rental housing purely because of the economics of it,” says Suzanne Brown-McBride, executive director of CASOMB.
Following the disclosures of registries mandated by Megan’s Law in 1994, apartments across the country began incorporating sex offender registry searches into standard lease applicant screening practices. The industry has largely—though not entirely—embraced the notion that being a registered sex offender is a de facto condition for denying lease applicants. Even major multifamily Internet listing services (ILSs), such as Austin, Texas-based ApartmentRatings.com, advocate the use of Megan’s Law data when making renting decisions.
David Carner, president of LeasingDesk, a subsidiary of Carrollton, Texas-based RealPage, says that more than 90 percent of multifamily firms currently include a sex offender registry search as part of a larger criminal background check when screening new applicants. Exceptions include properties that opt not to search due to cost limits or internal policies, properties that do not perceive a sex offender threat, and of course, every property doing business in the state of California.
“It is only in California where you are obligated to create a safe environment for your residents but simultaneously cannot keep a sex offender from living in your apartment community,” Carner says. “There have been unsuccessful challenges to the law, but I nevertheless think there will eventually be a case that reverses things in California. Something bad is going to happen, and the legislators are going to wake up and realize that for all of the good they are trying to do, we may be posing more harm out there to residents of apartment communities.”
While California theoretically permits landlords to make decisions based on the registry where they feel the decision will protect an at-risk person, legal experts are wary of how courts will apply the law to such decisions. “We don’t know what ‘protect a person at risk’ means when it comes to the day-to-day operations of our industry, but virtually all legal opinions have concluded that a landlord cannot use the database, even if he or she justifies its use to protect someone,” Carlton says. “We have, as an organization, told rental property owners that the safest thing is not to use the database for any purpose, period.”
Keep Your Distance
California voters may have made the point moot for the majority of multifamily operators in the state with the 2006 passage of Proposition 83. Commonly known as Jessica’s Law for the Florida statute it was modeled upon, Prop 83 prohibits registered sex offenders from residing within 2,000 feet (more than one-third of a mile) of any school, park, or place where children congregate. Like the 30 other states that had adopted similar residency restrictions by 2008, the application of Jessica’s Law in California effectively puts the entirety of most metropolitan areas and even suburban and rural neighborhoods off limits to registered sex offenders.
“Jessica’s Law effectively reduces the housing availability for sex offenders to almost nothing,” says Dr. Jill Levenson, an associate professor of human services at Lynn University in Boca Raton, Fla., who is regarded as one of the nation’s authorities on sex offender residency restrictions. “That has created several unintended consequences, including the clustering of high numbers of sex offenders in small areas, and a huge rise in the number of sexual offenders who have become homeless transients. There is a humanistic argument here that a lot of people shake their heads to, but it is: If a society legislates homelessness to some of its population—even a criminal population—do we think that’s OK?”
Of course, sex offenders are thought to have destroyed the ability for others—namely their victims—to live normal, healthy, productive lives, so who cares where they end up as the result of residency restrictions, right? That’s over-simplified thinking, says Jeff Rogo, government affairs director for the Maitland, Fla.-based Florida Apartment Association (FAA). “We have written some of these residency restrictions in such a fashion that there is no place for these folks to live,” Rogo says. “We are making life so miserable for them that there is going to be recidivism. If not a sexual crime, there is going to be some other crime that they commit, because we have put them in such lousy living circumstances.”
While Rogo is sympathetic to the challenges created by residency restrictions, he doesn’t support California’s position on the non-use of sex offender registries by multifamily property owners and managers—and he’s not worried about it, either. “There are many industry trends that seem to start in California and migrate eastward,” he says. “This doesn’t seem to be one of them. We have seen no indication that any other state is going to consider implementing similar legislation now or in the future.”
Sex Offenders Underground
One primary criticism of residency restrictions is that they lump all offenders into one category and do not account for the larger majority of non-violent, lower-risk persons on the registry who either have not committed crimes against children or may have been children themselves when they landed on the registry. [See “Minor Offenses” on page 43.] More critical, however, has been an explosion in the number of sex offenders who—without any reasonable place to legally reside—have become homeless transients or are not reporting their whereabouts to law enforcement whatsoever.
A collection of facts and figures related to the ongoing challenge of managing sex offenders in the United States.
No. of registered convicted sex offenders in the United States
Source: U.S. Department of Justice’s 2005 report citing Bureau of Justice stats
No. of states required to maintain a publicly accessible Internet database of registered sex offenders
Source: Megan’s Law
States that have adopted residency restrictions for sex offenders by the conclusion of 2008 legislative sessions
Source: Lynn University
Common delineation of restricted residency distance from a school, park, playground, or place where children congregate
Source: Jessica’s Law
6 to 3
Majority decision by the U.S. Supreme Court in 2003’s Smith v. Doe, which found sex offender registries not to be unconstitutionally punitive
Source: U.S. Supreme Court
The share of sex offenders who once registered with the state of California whose current whereabouts are unknown to law enforcement
Source: California Coalition on Sexual Offending
Approximate no. of multifamily rental property owners and on-site management firms that do not screen for sex offenders
Source: RealPage, Florida Apartment Association
10% - 15%
The generally accepted rate of recidivism among sex offenders, lower than those convicted of armed robbery, though recidivism is higher among high-risk, violent offenders and those made homeless due to residency restrictions
Source: California Sex Offender Management Board
No. of sex offenders in California who consider themselves transient, up more than 3,000% from three years earlier
Source: November 2008 study by California Sex Offender Management Board
No. of records in the California sex offender registry that have not been updated for more than five years
Source: 2003 examination by the California State Auditor’s office
In Miami, Jessica’s Law residency restrictions have forced a growing number of sex offenders to set up camp underneath the JuliaTuttle Causeway. Profiled in a July 2009 issue of Newsweek magazine, the Tuttle encampment now has more than 70 registered sex offenders who are mandated by law to be under the bridge between the hours of 10:00 p.m. and 6:00 a.m. Meanwhile, a November 2008 study by the California State Sex Offender Management Board found that since the implementation of Jessica’s Law restrictions, the number of sex offenders in the state who report themselves as transient increased from just under 100 in 2006 to 2,050 in 2007 and then again to 3,267 by August 2008—a more than 3,000 percent increase in just a three-year period.
“When people can’t find a place to live, it undermines the whole purpose of sex offender registration in the first place,” says professor Levenson. “Homelessness increases the risk for recidivism for all criminal offenders, not merely sex offenders. When you put people in a position where they have nothing to lose, they don’t really have a stake in conforming.”
Furthermore, there is little empirical evidence to suggest that residency restrictions make communities any safer. A 2007 Harvard University study, “Public Perceptions About Sex Offenders and Community Protection Policies,” found that residency restrictions have not “established their effectiveness in preventing sexual violence or decreasing sex offense recidivism” in those states where restrictions are enforced.
Despite the concerns of her members at CAA, Carlton understands the contradictory results of residency restrictions and offender registries—whether apartment operators in California can use them or not. “If you make the laws so stringent and interfere with these guys’ attempts to find a place to live, they won’t register,” she says. “Then you’ve really hurt the database, in as much as you believe in it.”
Stuck in the Middle
Current solutions seem problematic and viable alternatives on where to house registered sex offenders are non-existent. The U.S. Supreme Court has upheld the constitutionality of sex offender registries; legal challenges to residency restrictions have been summarily rejected in favor of protecting the public at large; and little is anticipated to change legislatively in California or elsewhere.
Still, nothing is preventing wave after wave of sex offenders from cycling out of prison and back into communities across the country. “I don’t think any of us have any fantastic solutions,” Brown-McBride says. “California has tens of thousands of registered sex offenders living in the state, and there are another 23,000 in prison right now that will be cycling out in the next 3 to 5 years.”
Whether those individuals find adequate housing with access to support services or just fall off the grid to subsist on the fringes of society seems a question that will be left unaddressed by most stakeholders, including the mid- to lower-income rental housing operators that see sex offenders naturally inclined to their product offering. “It’s not a tenable solution to say that we simply cannot or will not rent to them,” Brown-McBride continues. “How we rent to them is going to make a lot of difference, including our ability to monitor them effectively, and I really think that landlords and rental property owners are necessary participants in that conversation.”
Certainly, the CAA has attempted to make itself heard on the issue. Between 2005 and 2007, the association has five times sponsored legislation to clarify sex offender status in rental housing decisions, particularly as to whether or not property owners have the express authority to refuse housing to high-risk offenders over lower-risk offenders, as well as a bill seeking to define whether sex offenders were considered a protected class in terms of state and federal Fair Housing rules. All of the association’s legislative attempts were either rejected by the Assembly Public Safety Committee or otherwise failed passage in the State legislature.
“We need, as a society, to understand what it means to have sex offenders among us, and to understand that it is not necessarily the worst case scenario,” says Carlton, who, like many experts weighing in on the issue, contends that knowing where sex offenders are via well-reported registries is a safer alternative to residency restrictions that drive them underground. Although extremely high-risk and violent sexual predators that have been convicted are a fractionally small subset of the total sex offender population, they are the one demographic that sex offender registries and residency restrictions have zero impact on. “The worst of the worst are still in prison,” Carner says. “The guy that has raped and killed six children? He’s not coming back.” Jesse Timmendequas, for one, remains incarcerated at New Jersey State Prison in Trenton, where his death sentence was commuted when New Jersey abolished capital punishment.
Irregardless of high-risk lockdowns, an endless stream of individuals identified as sex offenders continues to flow out of correctional facilities in every state and gravitates towards low-cost rental housing. While no one seeks to excuse transgressors of their past actions, there is a growing chorus seeking progressive solutions for a better future, and that collective voice is calling for assistance from the multifamily housing community. “There are things in the environment that will reduce or increase the potential for re-offense, and we have found that housing is one of those very big factors,” sums up Brown-McBride. “We know that about criminals broadly, and we know that about sex offenders, specifically. Here’s the truth: Offenders are going to come back to your community, no matter what. Even if we started locking them all up for life, we’d still have 20 years worth of offenders cycling back into our communities. We need some discussion and longer-term planning of where these guys are going to go.” [M]
Critics of sex offender registries and residency restrictions point to a majority of relatively innocuous offenders who are nonetheless subjected to stringent—perhaps even unconstitutional—conditions of release from prison.
They call them Romeo and Juliet cases—those instances where an 18-year-old boy or girl is caught having sex with an underage lover and livid parents decide to press charges. Although the sex was consensual, and the ages might have been only weeks apart, the result is a statutory rape conviction, which most often requires sex offender database registry for life. Plenty of other non-violent, non-predatory convictions (experts often site public indecency charges resulting from drunken urination in a parking lot) likewise fall under the auspices of sex offender registries mandated by state and federal law, eclipsing both the need for and the effectiveness of registry systems and residency restrictions placed on registered sex offenders.
“We tend to see sex offenders only in one light: There is no tiered public approach to the demographic,” says Debra Carlton, senior vice president of public affairs for the Sacramento, Calif.-based California Apartment Association. “When the registries went public as a result of Megan’s Law, we asked the legislature to clean up the database in terms of who should really be on there and perhaps include some sort of wash-out period, but politically that was a non-starter.”
The chair of the California State Sex Offender Management Board recognizes the inclusion of non-violent, low-risk offenders on registries as a critical issue, particularly for states that mandate residency restrictions on sex offender populations. “The sad thing is that the 18- and 17-year-old story is much more common than the story of the sex predator monster,” says Suzanne Brown-McBride, who also serves as executive director for the California Coalition Against Sexual Assault. “The data out there is not good enough to say if non-violent offenders comprise 10 percent of the population or 40 percent. But what we are trying to get at is that different sex offenders pose different risks, and some pose an entirely negligible risk.”
The problem is magnified by residency restrictions mandating that sex offenders not live within certain distances of schools or other places where children congregate. “That assumes all offenders prey on kids, which isn’t true,” Brown-McBride says. “There are plenty of folks where being near a school is not as much of an issue as having them near a nursing home.”
Recent state initiatives and amendments to federal law, including the passage of the Adam Walsh Child Protection and Safety Act, seek to reclassify sex offenders with tiered systems based on both the type of offense and the risk of re-offense, but experts still think a sizeable population of non-violent offenders will always be subjected to harsher restrictions in the name of public safety.
For many multifamily operators, that’s not a problem. “There has been discussion recently about whether or not that is the right thing and whether or not the government may step in if they perceive our industry is not taking a responsible approach to allowing certain low-risk felons from getting housing in conventional apartment communities,” says David Carner, president of Carrollton, Texas-based RealPage’s LeasingDesk division. “But in user groups, we ask all the time if managers would be willing to accept certain types of non-violent felons—the Martha Stewarts of the world—and [every single manager] says, ‘No, we like it the way it is,’ and they feel the same way about sex offenders.”
Unfortunately, most sex offender laws are the result of horrific acts committed against children, including the three major pieces of federal law governing sex offender treatment and Jessica’s Law, a common name given to residency restrictions enacted by state and local governments.
In 1990, an armed gunman abducted 11-year-old Jacob Wetterling, whose fate remains unknown to this day. The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, more commonly known as the Jacob Wetterling Act, was passed by Congress in 1994, and requires sex offenders to register with law enforcement. The Act provides financial incentives for states to establish registration systems and reduces federal funding for those states that do not. The Jacob Wetterling Act permitted disclosure of registries to the public but did not require such disclosure.
In 1994, Jesse Timmendequas, a twice-convicted sex offender, lured 7-year-old Megan Kanka into his home and subsequently raped and then murdered the young girl, prompting the New Jersey legislature and later the federal government to pass Megan’s Law in 1996. An amendment to the Jacob Wetterling Act, Megan’s Law requires the release of relevant sex offender information (typically registry information) to the public —rather than leaving disclosure to state discretion—with the intent of protecting potential victims from sexually violent offenders.
In February 2005, 9-year-old Jessica Lunsford was abducted from her bedroom and held captive for two days, during which time she was raped and then murdered by a previously-convicted sex offender living nearby. Jessica’s Law is an informal name given to the 2005 Florida law and similar state laws that mandate residency restrictions upon release (typically 1,000 to 2,000 feet from a school, day care center, or other places where children congregate), and often include lifetime electronic location monitoring via Global Positioning System (GPS) devices worn on the ankle.
The Adam Walsh Child Protection and Safety Act, commonly referred to as the Adam Walsh Act, establishes a national database combining DNA registry with the tracking of convicted sex offenders via GPS technology. The law defines and requires a three-tier classification system for sex offenders based on offenses committed and replaces older systems based on the risk of re-offense, providing the judiciary system with the right to commit individuals deemed a risk. The Act was signed by George W. Bush on July 27, 2006, on the 25th anniversary of Walsh’s abduction from a shopping mall. He was found murdered 16 days later.