finding it "difficult to conclude that the restrictions are excessive considering the special needs of children in this particular aspect of our society and the imprecise nature of protecting children from the risk that convicted sex offenders might reoffend”
How later courts described this case
- finding it "difficult to conclude that the restrictions are excessive considering the special needs of children in this particular aspect of our society and the imprecise nature of protecting children from the risk that convicted sex offenders might reoffend”
- holding that appellee waived issues on appeal even though issues were raised in and decided by district court because appellee failed to present arguments in appellate brief
- holding that Iowa's statutory residence restriction does not violate substantive due process, the Ex Post Facto Clause, or the right against self-incrimination, and did not constitute unconstitutionally cruel and unusual punishment
- concluding that the same statute at issue in Miller is “far removed from the traditional concept of banishment” because “[ojffend-ers are not banished from communities and are free to engage in most community activities”
Written by the judges who cited it.
The opinion
WIGGINS, Justice
(concurring in part and dissenting in part).
I agree with the majority’s conclusions regarding the issues Seering preserved for appeal, except I would find Iowa Code section 692A.2A (2003) violates the Ex Post Facto clauses of the United States and Iowa Constitutions.
In order to determine whether section 692A.2A violates the Ex Post Facto clauses, we must first ascertain the intent of the legislature when it enacted the law. Smith v. Doe, 588 U.S. 84 , 92, 123 S.Ct. 1140, 1146-47 , 155 L.Ed.2d 164, 176 (2003). If the legislature intended to establish a statutory scheme that is civil and non-punitive, the statute is not subject to the Ex Post Facto clauses. Id. I agree with the majority the intent of the legislature in enacting section 692A.2A was to create a civil, non-punitive statutory scheme for the protection of the public. Our inquiry, however, does not end with this finding.
If we find the purpose of the statute is non-punitive, we must then determine whether the statutory scheme either in purpose or effect is so punitive that it negates the State’s objective to be considered as a civil limitation. Id. As the majority notes, we are required to analyze the five factors annunciated by the Supreme Court in Smith to make that determination. I dissent because my analysis of the five factors leads me to conclude section 692A.2A in purpose and effect is so punitive that it negates the State’s objective to be considered as a civil limitation.
1. Has a law that restricts a person’s residency been historically and traditionally considered to be punishment?
The majority concedes our society has historically considered banishment as punishment. Yet, it concludes individuals subject to section 692A.2A’s residency requirements are not banished from a community but only restricted from residing in a particular area.
In discussing this factor in connection with an Alaskan sex offender law that required only registration, the Supreme Court stated:
Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required “to stand in public with signs cataloging their offenses.” At times the labeling would be permanent: A murderer might be branded with a “M,” and a thief with a “T.” The aim was to make these offenders suffer “permanent stigmas, which in effect cast the person out of the community.” The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one.
Id. at 97-98, 123 S.Ct. at 1150 , 155 L.Ed.2d at 180 (citations omitted). Smith went on to hold registration in and of itself is not banishment. Id. at 99, 123 S.Ct. at 1150-51 , 155 L.Ed.2d at 181 .
Section 692A.2A goes further than just requiring a sex offender to register. It prevents an individual from living within two-thousand feet of an elementary or secondary school or childcare center. Iowa Code § 692A.2A(2) (2003). The residency restriction imposes an onerous and intrusive obligation on a convicted sex offender, *672 results in community ostracism, and marks the offender as a person who should be shunned by society. Accordingly, I would hold section 692A.2A effectively banishes an offender from a community. Therefore, this factor weighs in favor of finding section 692A.2A as being punitive.
2. Does section 692A.2A promote the traditional goals of punishment?
The residency restrictions of section 692A.2A are comparable to conditions of supervised release or parole. The dual purpose of a supervised release or parole is to (1) restrict and monitor the freedom of the offender and (2) act as a deterrent. The majority labels the deterrent and retribution effects as secondary and consistent with the regulatory objective of the residency requirement. Even if these effects are secondary and consistent with the regulatory objective, it still amounts to deterrence and retribution promoting the traditional aims of punishment. For this reason, I would find this factor weighs in favor of finding section 692A.2A promotes the traditional goals of punishment.
3. Does section 692A.2A impose an affirmative disability or restraint?
The majority acknowledges that section 692A.2A imposes an affirmative disability or restraint. Yet, it minimizes this factor because “the disabling nature of the statute is not absolute.” When a residency restriction does not allow a family to live within walking distance of its local school, I would find the restriction imposes an affirmative disability or restraint.
A Does section 692A.2A have a rational connection to a non-punitive purpose?
I agree with the majority the residency requirement has a rational connection to the purpose of protecting the public.
5. Is section 692A.2A excessive with respect to the non-punitive purpose?
Although there is a rational connection to a non-punitive purpose, I do believe it is excessive. Section 692A.2A limits the residency of “a person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor.” Iowa Code § 692A.2A(1). It applies equally to a person convicted of admitting a minor to a premise where obscene material is exhibited in violation of section 728.3 and to a person convicted of first degree sexual abuse in violation of section 709.2. Id. §§ 692A.l(l)(a), 692A.l(5)(fc). Section 692A.2A fails to consider the seriousness of the crime, the relationship between the victim and the offender, or the risk of re-offending. By punishing all these offenders with a residency requirement without considering whether a particular offender is a danger to the general public, exceeds the non-punitive purpose of the statute. This is especially true because a sex offender is subject to the residency restrictions for the rest of the sex offender’s life.
Consequently, my analysis of four of the five factors requires me to find the purpose and effect of section 692A.2A is so punitive that it negates the legislature’s objective to be considered as a civil limitation. Therefore, I would affirm the district court’s ruling.
LAVORATO, C.J., joins this special concurrence in part and dissent in part.