Loading...
Ordinance 14-M-23 - Sex OffenderORDINANCE NO. 14 -M -23 AN ORDINANCE AMENDING CHAPTER 75 OF THE CITY OF SCHERTZ CODE OF ORDINANCES MAKING IT UNLAWFUL FOR CERTAIN SEX OFFENDERS TO RESIDE WITHIN 1000 FEET OF A CHILD SAFETY ZONE; MAKING IT ILLEGAL FOR SEX OFFENDERS TO GO IN, ON, OR WITHIN 1000 FEET OF A CHILD SAFETY ZONE; PROVIDING EXCEPTIONS TO THE ORDINANCE; AND PROVIDING PENALTIES FOR VIOLATIONS OF THE ORDINANCE WHEREAS, the City of Schertz, Texas (the "City "), has a compelling interest in protecting the health, safety and welfare of children by reducing opportunities for sexual predators to come in contact with children; and WHEREAS, victims of childhood sexual abuse are known to suffer long - lasting emotional, behavioral, psychological, and other physical and mental health - related trauma; and WHEREAS, studies readily available in the public domain, one of which is attached hereto as Exhibit A, indicate that individuals commonly commit crimes in close proximity to where they reside; and WHEREAS, courts upholding the validity of similar residency restrictions, including the court in Doe v. Miller, 405 F.3d 700, 715 (8th Cir. 2004), cert. denied, Doe v. Miller, 546 U.S. 1034 (2005), attached hereto as Exhibit B, have determined that "when convicted sex offenders reenter society, they are much more likely than any other type of offender to be re- arrested for a new rape or sexual assault "; and WHEREAS, to protect children from sex offenders, the City Council finds it necessary to amend the City's Code of Ordinances, Chapter 75, to create restrictions prohibiting registered sex offenders from residing near or going in, on, or within Child Safety Zones (hereinafter defined); and WHEREAS, the laws of the State of Texas, including those found in Chapter 51 of the Texas Local Government Code and the City's Charter, authorize the City to adopt ordinances for the good government, peace, order, and welfare of the City; and WHEREAS, the Texas Legislature has deemed it appropriate in Article 4212 (13B) of the Texas Code of Criminal Procedure to establish a 1000 -foot safety zone for children as a condition of community supervision for those convicted of certain sexual offenses; and WHEREAS, the City Council of the City hereby finds and determines that sexual offenders who prey on children are a threat to the public health, welfare, and safety of the citizens of the City; and WHEREAS, the City Council hereby finds and determines that prohibiting individuals required to register on the Texas Department of Public Safety's Sex Offender Database from residing near or going in, on, or within a Child Safety Zone (hereinafter defined) will reduce opportunities for sexual offenders to come into contact with children; and WHEREAS, the City Council hereby finds and determines that the City's residency restriction and prohibition on going in, on, or within a Child Safety Zone (hereinafter defined) on sex offenders is consistent with the current child safety zone statutes established by Article 42.12 (1313) of the Texas Code of Criminal Procedure; and WHEREAS, the City finds and determines that rules and regulations adopted herein promote the public health, welfare, and safety of the citizens of the City. NOW THEREFORE; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,TEXAS: SECTION 1. CODE AMENDMENT. That Chapter 75 of the Code of Ordinances is amended by adding a new Chapter 75 to read as follows: CHAPTER 75 SEXUAL OFFENDER RESIDENCY AND CHILD SAFETY ZONE RESTRICTIONS See. 75 -1. Definitions. For purposes of this Section, the following terms, words, and the derivation thereof shall have the meaning given herein. Child means any person under the age of seventeen (17). Gild Safety Zone means any premises that is used as a school, licensed day -care facility, private or public playground, public or private youth center, public swimming pool, video arcade facility, public or private park, or public library. In this section, "playground," "premises," "school," "video arcade facility," and "youth center" have the meanings assigned by Section 481.134 of the Texas Health and Safety Code, as amended. Database means the Texas Department of Public Safety's Sex Offender Database. Day -Care Facility means a facility licensed by the State of Texas, which provides care, training, education, custody, treatment, or supervision for children for less than twenty -four (24) hours a day. Public or Private Park means (i) any land designated for public recreation or any athletic field that is owned, leased, or maintained by the City, including, but not limited to, conservation areas, recreational centers, skate parks, water parks, or public swimming pools or (ii) any private land that is used by the general public as a recreational or park area, including, but not limited to, a park or playground maintained by a community home owners' association. Residence, Permanent means the place within the City that a person registers or verifies under Article 62.152, Texas Code of Criminal Procedure, as the person's residence. Residence, Temporary means a place where a person abides, lodges, or resides for a period of fourteen (14) or more days in the aggregate during any calendar year and which is not the person's permanent address, or a place where a person routinely abides, resides, or lodges for a period of four (4) or more consecutive or nonconsecutive days in any month and which is not the person's permanent residence. Sex Offender means an individual who has been convicted of or placed on deferred adjudication for a sexual offense involving a person under seventeen (17) years of age for which the individual is required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure. Sec. 75 -2. Sexual Offenders Residence Prohibition (a) It is unlawful for a Sex Offender to establish a Permanent Residence or Temporary Residence within 1000 feet of any Child Safety Zone. (b) A Sex Offender shall not on each October 30th and 31st (or any date set by the City for trick -or- treaters) between the hours of 4:00 p.m. and 11:00 p.m. leave an exterior porch light on or otherwise invite trick -or- treaters to solicit the premises. (c) For the purposes of subsection (a), measurement is made in a straight line, without regard to intervening structures or objects, from the nearest portion of the Permanent Residence or Temporary Residence to the nearest property line of the Child Safety Zone. (d) It is a defense to prosecution under this section that a person who has a Permanent Residence or Temporary Residence within 1000 feet of a Child Safety Zone: (1) Is under 18 years of age and: (A) resides with the person's parent or legal guardian; or (B) has not been convicted of an offense after the effective date of this Ordinance that: (i) requires the person to register under Article 62.001(5), Texas Code of Criminal Procedure; and (ii) involves a victim or intended victim under seventeen (17) years of age; (2) Established the Permanent Residence or Temporary Residence and complied with all the sexual offender registration laws of the State of Texas prior to the effective date of this Ordinance, and has not been convicted of an offense after the effective date of this Ordinance that: (A) requires the person to register under Article 62.001(5), Texas Code of Criminal Procedure; and (B) involves a victim or intended victim under seventeen (17) years of age; or (3) Established the Permanent Residence or Temporary Residence and complied with all sexual offender registration laws of the State of Texas prior to the date a new Child Safety Zone is established, and has not been convicted of an offense after the effective date of this Ordinance, or the date the new Child Safety Zone is established, that: (A) requires the person to register under Article 62.001(5), Texas Code of Criminal Procedure; and (B) involves a victim or intended victim under seventeen (17) years of age. (e) For proposes of Subsection (d), a person is considered to have established a residence at a correctional facility, as that term is defined under Section 1.07(14), Texas Penal Code, in which the person is confined for more than seven consecutive days after the effective date of this Ordinance for a conviction of any sexual offense involving a person under seventeen (17) years of age. (f) It is a defense to prosecution under this section that the person required to register on the Database has been exempted by a court order from registration as a Sex Offender under Chapter 62, Texas Code of Criminal Procedure. (g) It is a defense to prosecution under this section that the person required to register on the Database has had the offense for which the Sex Offender registration was required reversed on appeal or pardoned. (h) It is a defense to prosecution under this section that the person's duty to register on the Database has expired. (i) It is a defense to prosecution under this section that the information on the Database is incorrect, and the person listed on the Database can provide evidence to show such error. (j) It is not a defense to prosecution under this section that a person, who is required to register as a Sex Offender under the Texas Code of Criminal Procedure, was allowed by mistake or error of the City to reside in a Permanent Residence or Temporary Residence that is within 1000 feet of any Child Safety Zone. Sec. 75 -3. Sexual Offenders Prohibited from Going In, On, or Within Child Safety Zones. (a) It is unlawful for a Sex Offender to knowingly or intentionally go in, on, or within 1000 feet of a Child Safety Zone. (b) Upon discharge from community supervision or parole, it is a defense to prosecution under this section that, at the time a person prohibited from going in, on, or within a Child Safety Zone pursuant to sub- section (a) went in, on, or within the Child Safety Zone, (1) such person was the parent or legal guardian of a child 18 years of age or younger who resides with the person; and (2) the child was on the premises of the Child Safety Zone. (c) It is a defense to prosecution under this section that the person required to register on the Database has been exempted by a court order from registration as a Sex Offender under Chapter 62, Texas Code of Criminal Procedure. (d) It is a defense to prosecution under this section that the person required to register on the Database has had the offense for which the Sex Offender registration was required reversed on appeal or pardoned. (e) It is a defense to prosecution under this section that the person's duty to register on the Database has expired. (f) It is a defense to prosecution under this section that the information on the Database is incorrect, and the person listed on the Database can provide evidence to show such error. Section 75 -4. Child Safety Zone Map. The Schertz Police Department will maintain a map illustrating the Child Safety Zones in the City. The City shall review the map annually for changes. This map will be available to the public at the Schertz Police Department or available on both the City website and the Schertz Police Department website. Section 75 -5. Penalties. Any person found guilty of violating this Ordinance shall be guilty of a misdemeanor and upon conviction thereof shall be fined an amount not to exceed the maximum amount allowed by law. Each day that a violation exists shall constitute a separate offense. SECTION 2. CUMULATIVE CLAUSE. This Ordinance shall be cumulative of all provisions of the City, except where the provisions of this Ordinance are in direct conflict with the provisions of such Ordinance, in which event the conflicting provisions of such Ordinance are hereby repealed. SECTION 3. SEVERABILITY. It is hereby declared to be the intention of the City Council of the City that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance should be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining pleases, clauses, sentences, paragraphs or sections of the Ordinances, since the same would have been enacted by the City Council without incorporation in this Ordinance of any such unconstitutional phrases, clause, sentence, paragraph, or section. SECTION 4. PROPER NOTICE AND MEETING. It is hereby officially found and determined that the meeting at which this Ordinance was adopted was open to the public and that public notice of the time, place, and purpose of said meeting was given as required by the Open Meetings Act, Chapter 551 of the Texas Government Code, as amended. SECTION 5. EFFECTIVE DATE. This Ordinance shall be effective upon passage and publication as required by State and local law. PASSED and APPROVED on first reading this the 15th day of July, 2014. PASSED, APPROVED and ADOPTED on second reading this the 22 id day of July APPROVED: David Scagli ,Yo fro-Tern ATTEST: Buda, Dennis,-City Secretary Exhibit A © Reprinted with permission from Criminal Justice Press CRIME PLACES IN CRIME THEORY by John E. Eck Crime Control Institute, and the University of Maryland, College Park and David Weisburd Hebrew University Abstract: Criminologists and crime prevention practitioners are increasingly aware of the importance of places of crime. A place is a very small area, usually a street corner, address, building, or street segment. A focus on crime places contrasts with a focus on neighborhoods. Neighborhood theories usually highlight the development of offenders. while place level explana- tions emphasize crime events. Three perspectives suggest the importance of places for understanding crime: rational choice, routine activity theory; and crime pattern theory. Though these perspectives are mutually supportive, routine activity theoryy and crime pattern theory provide different explana- tions for crime occurring at different places. Five areas ofresearch help us understand the importance ofplaces: crime concentration about particular facilities (e.g., bars); the high concentration ofcrime at some addresses and the absence of crime at others; the preventive effects of various place features; the mobility of offenders; and studies of how offenders select targets. Concern has been expressed that efforts to prevent crime at specific locations will only move it to other, unprotected locations. Recent research suggests that these fears may be exaggerated, and that under smile circurn- stances the opposite effect occurs: instead of crime displacing, the benefits of the prevention efforts diffuse to unprotected locations. This paper con- cludes with a review of the 14 original articles in this volume. Following a rape at an Orlando motel, the victim sued the motel owners. She claimed that the crime was foreseeable and that the motel had not taken sufficient precautions to prevent such incidents. Address correspondence to: John Eck, Department of Criminology and Criminal Justice, Suite 2220 LeFrak Hall, University of Maryland, College Park, MD 20742. ohn f Eck nd David Weisb rd A proposal to locate a checkcashing business in a neighborhood drew the ire of a San Francisco neighborhood association. The association. fearing increased sheet muggings, complained to zoning and other city agencies in an attempt to stop this establishment from opening (Bolton, 1993). Police in Oakland, CA developed a drug enforcement program that focused on nuisance addresses rather than problem people. They call it beat health, because they believe that the problem locations are the source of drug and other nuisance problems in Oakland neighborhoods (Green, 1993). A study found that about 15% of Milwaukee's taverns were responsible for over half of tavern crimes in that city (Sherman et al., 1992). These examples provide only a glimpse of the grooving recognition of the role of place in crime and crime control. law suits that hinge on the ability of claimants to show that buildings and parking lots are unneces- sarily dangerous abound in our civil courts (Bates and Dunnell, 1994). Local newspapers are full of community protests against drinking estab- lishments, sex shops, or 24 -hour stores that are seen as magnets for crimes and criminals. Community advocates suggest taking legal action against the owners of places that disrupt neighborhoods (Cadwalder et al., 1993). Police programs that focus on where crimes happen rather than the offenders who commit them are developing in cities and towns throughout the country, at the same time that a series of academic studies show that crime is concentrated at specific places even within neighbor- hoods that have high crime rates. Concern with the relationship between crime and place is not new. As early as the first half of the nineteenth century, French scholars analyzed the distribution of crime across regions with differing ecological and social characteristics (see Guerry, 1833; Quetelet, 1842). in the U.S., advocates of the pioneering "Chicago School" of sociology carefully examined the location of crime in the city of Chicago. They concluded that characteristics of the urban environment are critical to explaining the emergence of crime in specific communities (see Burgess, 1925; Thrasher, 1927; Shaw and McKay, 1942). However. these early attempts to understand the relation- ship between crime and place took a "macro" approach — looking at aggregates of places such as regions, states, cities, communities and neighborhoods — rather than a "micro" approach that examines the places themselves. Recent interest in crime and place has focused on micro -level relation- ships. Such studies began with efforts to identify the relationship between Crime Places in Crime Theory 3 specific aspects of urban design (Jeffrey, 197 1) or urban architecture (Newman, 1972) and crime, but broadened to take into account a much larger set of characteristics of physical space and criminal opportunity (e.g., Brantingham and Brantingham, 1975, 1977, 1981; Mayhew et al., 1976; Duffala, 1976; Rengert, 1980, 1981; Stoks, 1981; Le Beau, 1987; Hunter, 1988). These studies drew distinctions between the site in ques- tion and the larger geographical area (such as neighborhood, community, police beat, or city) that surrounds it. Places in this micro context are specific locations within the larger social environment. They can be as small as the area immediately next to an automatic teller machine or as large as a block face, a strip shopping center, or an apartment building. Often places are thought of as addresses, specific types of businesses, or blockfaces. This volume is dedicated to the micro -level examination of crime and place. Our concern is not with the larger social and ecological units that are often the focus of social programs and crime prevention efforts. Sherman et al. (1989) suggest that this new focus on small discrete areas is radical enough to be properly seen as a distinct new area of study in criminology. Though it is a departure from prior criminological work, as we will show next, the criminology of places fits neatly within several existing theories of crime. In developing this anthology, we sought to bring together major new work about crime and the concept of place. The advent of high- speed, cheap computing, widespread use of computer -aided dispatch systems by the police, and inexpensive but powerful computer mapping has allowed criminologists to examine places in ways that were unavailable just a decade ago. Recent trends in our understanding of the role of opportunity in crime prevention (Clarke, 1993) and the impacts of crime displacement (see Gabor, 1990; Barr and Pease, 1990; Clarke, 1992; Eck, 1993; Clarke and Weisburd, 1994) suggest as well that place should be a central component in crime theory and crime prevention. This introduction begins by reviewing how these recent innovations in crime prevention theory contribute to crime place research and crime prevention efforts. It then turns to the empirical evidence that has been gathered about crime places and their implications for formulating crime prevention policies. In con- cluding, we discuss our choice of papers to include in this collection and 4 John E. Eck and David Weisburd the specific contributions they make to our understanding of crime places and our efforts to control them. CRIME PLACES AND CRIME THEORY Theories of crime can be divided into those that seek to explain the development of criminal offenders, and those that seek to explain the development of criminal events. Theories of and research on offenders have been dominant in the development of criminology (Clarke, 1980). Most research on crime and crime prevention has been focused on why certain types of people commit crime and what we can do about them. It is only recently that serious attention has begun to be paid to explaining crimes rather than the criminality of people involved in crime. Concern with place is very much central to this approach. While theories of crime and criminality are often seen as competing explanations of the crime problem, we think it useful to begin with the idea that offender and event explanations are complements to each other rather than competitors. Offenders may be highly motivated, but unless they create a crime event there is nothing to explain. Similarly, given a criminal act, the full etiology of the event must in some manner include an explanation of the offender. Offender theories should eventually tell us how people come to be criminal offenders, and the circumstances under which they desist from offending. Such theories may suggest crime prevention strategies that are focused on those individuals who are likely to become serious violent offenders, or high -rate offenders committing less serious crimes. However, to date theories about the development of criminality do not provide a solid basis for making such predictions, and there is little consensus as to what such a theory in the future would look like. Consequently, a preventive strategy based on offender theories is not near at hand. But even if we were to understand more about the develop- ment of criminality than we presently do, it is not clear whether all or even most offenders can be prevented from involvement in crime (see Clarke and Weisburd, 1990). So even if we had a good explanation for the development of offenders, we would still need a good explanation for criminal events. Specifically, we would want a theory that could tell us why certain targets are selected by offenders —why some targets are attractive and others are repellent. What are the impediments to offending that are presented to offenders, and how are they overcome? What types of routine activities of offenders, victims and what have sometimes been termed guardians contribute to the likelihood of crime occurring in particular places? Though a com- prehensive crime event theory that would provide unambiguous answers Crime Places in Crime Theory to such questions is decades away, there is considerable consensus among criminologists who study crime events as to what such a theory should look like. Moreover, there is growing evidence that event - prevention strategies can have a dramatic and immediate impact on specific crime problems (see Clarke, 1992). Below we describe how crime and place come together in such theories and how they have been applied to crime prevention. CRIME EVENT THEORY AND CRIME PLACES Three recent theoretical perspectives — rational choice, routine activity theory and crime pattern theory—have influenced our understanding of the importance of place in crime prevention efforts. A rational choice perspective provides the basic rationale for defining place as important, since it suggests that offenders will select targets and define means to achieve their goals in a manner that can be explained (Cornish and Clarke, 1986). Some claim that this perspective is to some degree untestable, as it is almost always possible to interpret behavior as rational from the perspective of the offender (Parsons, 1951). Others have demonstrated that it is possible to test various forms of rational choice (see Hogarth and Reeler, 1987). Nevertheless, a rational choice perspective can be used to develop testable propositions describing crime events and offender behav- ior. This is particularly true if a rational choice perspective is used in conjunction with routine activity theory (see Clarke and Felson, 1993). Routine activity theory seeks to explain the occurrence of crime events as the confluence of several circumstances (Cohen and Felson, 1979; Felson, 1986, 1994; see also Felson in this volume). First, there must be a motivated offender. The explanation of the development of motivated offenders is the goal of offender theories. Second, there must be a desirable target. Third, the target and the offender must be at the same place at the same time. Finally, three other types of controllers— intimate handlers, guardians and place managers —must be absent or ineffective. Intimate handlers are people who have direct personal influence over an offender (such as parents, teachers, coaches, friends or employers). In the presence of such people, potential offenders do not commit crimes. Most adults are away from intimate handlers for many hours of the day and many offenders, both juvenile and adult, have few or no intimate handlers (Felson, 1986). People who can protect targets are guardians. They too must be missing from the place. Guardians include friends (as when three women decide to run together in a park in order to protect each other), as well as formal authorities such as private security guards and public police. People or 6 Jahn E. Eck and David Weisburd things that are separated from guardians for sustained periods have elevated risks of victimization. People who take care of the places are place managers. Place managers, (such as janitors, apartment managers, and others) regulate behavior at the locations they control. Lifeguards, in addition to preventing drownings, also help assure that people who come to a pool behave themselves out of the water. For a crime to occur, such people must be absent, ineffective or negligent (Eck, 1994). Crime pattern theory is particularly important in developing. an under- standing of crime and place because it combines rational choice and routine activity theory to help explain the distribution of crime across places. The distribution of offenders, targets, handlers, guardians, and managers over time and place will describe crime patterns. Changes in society have increased the number of potential targets while separating them from the people who can protect them (handlers, guardians, and managers). Reasonably rational offenders, while engaging in their routine activities, will note places without guardians and managers and where their handlers are unlikely to show up. Pattern theory explores the interactions of offenders with their physical and social environments that influence offenders' choices of targets. According to crime pattern theory, how targets come to the attention of offenders influences the distribution of crime events over time, space, and among targets (Brantingham and Brantingham, 1993). This occurs because offenders engage in routine activities. Just like other, nonoffend- ing individuals, offenders move among the spheres of horze, school, work, shopping, and recreation. As they conduct their normal legitimate activi- ties, they become aware of criminal opportunities. Thus, criminal oppor- tunities that are not near the areas offenders routinely move through are unlikely to come to their attention. A given offender will be aware of only a subset of the possible targets available. Criminal opportunities found at places that come to the attention of offenders have an increased risk of becoming targets (Brantingham and Brantingham, 1993). While a few offenders may aggressively seek out uncharted areas, most will conduct their searches within the areas they become familiar with through non- criminal activities. The concept of place is essential to crime pattern theory. Not only are places logically required (an offender must be in a place when an offense is committed), their characteristics influence the likelihood of a crime. Place characteristics highlighted by routine activity theory include the presence and effectiveness of managers and the presence of capable guardians. Crime pattern theory links places with desirable targets and Crime Places in Crime Theory 7 the context within which they are found by focusing on how places come to the attention of potential offenders. It is worth noting that although crime pattern theory and routine activity theory are mutually supportive in many respects, they can give rise to differing explanations of crime at specific locations. Given a set of high -crime locations, a crime pattern theorist would focus on how offend- ers discover and gain access to the place. A routine activity theorist would focus instead on the behaviors of the targets and the possible absence of controllers whose presence could have prevented the offenses from taking place — guardians, handlers, and place managers. In other words, for the crime pattern theorist, places are problematic because of their location and relationship to the environment. For the routine activity theorist, places are problematic because of the types of people present and absent from the location. Clearly, both explanations can be valid in different contexts and situations. It is possible that crime - specific explanations may show that for some events crime pattern theory is a particularly useful explanation, for other events routine activity theory offers greater insights, and for still a third group of events some combination of the two theories is needed. CRIME PLACE RESEARCH Recent perspectives in criminological theory provide a basis for con- structing a theory of crime places. However, such a theory must be developed in reference to a growing literature about the relationship between crime and place. Below we summarize recent empirical evidence from five different types of research, each of which sheds light on the role of place in crime events (see Figure 1). Three of these use the place as a unit of analysis, malting crime events problematic at the outset. In these studies researchers have hied to understand how the facilities associated with place influence crime, why crime clusters at places, and finally how the social and physical characteristics of places alter opportunities for crime. Two of the research categories focus on people but nonetheless lead to an understanding of the role of place in crime. In mobility and target studies, we gain insight into how offenders choose crime places and the social factors that inhibit their reach. All of the studies, except those examining target selection, use official crime and arrest records for data. 8 John E. Eck and David Woisburd Offender interviews and observations form the basis of offender decisionmaking research. Figure 1: Studies of Crime and Place OFFENDERS target mobility selection Facilities and Crime PLACES r features clustering facilities Facilities are special - purpose structures operated for specific func- tions. Examples of place facilities include high schools, taverns, conve- nience stores, churches, apartment buildings, and public housing projects. One way places matter is that. different types of facilities increase or decrease crime in their immediate environment. As suggested by offender search theory, this could occur because it draws people, some of whom are offenders, to the area. Or, as routine activity theory suggests, this occurs because of the way the facility is managed, the desirability and Crime Places in Crime Theory 9 accessibility of targets found in the facility, the likelihood of handlers being at the location, and the level of guardianship found at the site. Evidence supporting either theory can be found in studies of crime around facilities (see, for example, Roncek, 1981). Unfortunately, these studies cannot compare the relative evidence supporting the two explanations because the studies do not differentiate between offenses at the facility and those in the surrounding block. Another problem with some of these studies is that they often do not differentiate between crime density (crimes per land area) and victimiza- tion risk (crimes per target) (Wikstrom, 1993). Thirty years ago Boggs (1965) pointed out that most calculations of crime rates are not estimates of crime risk because inappropriate measures of the crime opportunities (targets) are used for the denominator in the calculations. Burglary rates are normally calculated by dividing the number of burglary events by the population of the area being studied. The appropriate denominator for calculating risk is the number of buildings in the area. Burglaries may be concentrated in one area relative to another because there are more places to break into in the first area, or because they differ in some other factor (e.g., the first neighborhood may be populated by childless couples in which both partners work, whereas the second area is populated by retired couples who spend a great deal of time around their homes). Measures of opportunities have been used in some of these studies, but they are often indirect measures of the number of targets at risk. Engstad (1975), for example, used the number of bar seats as an indirect measure of the opportunity for assaults in and around bars. If bar seats are used to capacity, or if the vacancy rate for these spots is constant across bars, then they may be reasonable approximations of the number of targets at risk. If, however, some bars have a greater proportion of their seating empty than other bars, and vacancy rates are related to crime (e.g., bars with many crimes scare off potential customers), the opportunity measures may introduce a confounding influence to the estimated rela- tionship being examined. Roncek and his colleagues have conducted a series of facilities studies in Cleveland and San Diego, and they follow a standard methodology. The number of facilities of interest are counted in each of the city's census blocks using phone directories or other locally available rosters. The crime count by census block is derived from police data, and census Files provide demographic information for control variables. These studies have found that bars and high schools are associated with elevated crime counts in the blocks in which they are located, but have little impact beyond the immediate block (Roncek, 1981; Roncek and Bell, 1981; Roncek and Faggiani, 1985; Roncek and Lobosco, 1983; Roncek and Meier, 1991; JO John E. Eck and David Wnisburd Roncek and Pravatiner, 1989). The research has also found that public housing projects in Cleveland are associated with a small but significant increases in crime on their blocks (Roncek et al., 1981). Because compo- sitional variables have been controlled for, the facility effects are assumed due to the place and not to the people who reside on the block. A number of other studies report similar findings. Frisbie et. at. (1977) reported clustering of crimes within .15 of a mile around bars in Minne- apolis. These counts were not standardized by controlling for the number of criminal opportunities available at different distances from the bars, so it is unclear whether this is due to an opportunity gradient around bars or whether bars enhance the criminal propensity of people who are attracted to bars. Engstad (1975) compared the number of auto crimes and bar crimes (assault, disorderly conduct, and violations of the liquor act) in small areas with hotels to the same crime counts in adjacent areas without hotels. He standardized the crime counts by the number of residents living in the areas and found an association between the presence of hotels and higher rates of crime per thousand people. When Engstad (1975) compared hotel areas and standardized the crime counts by calculating opportunity-based rates for each crime (i.e.. dividing auto crimes in each hotel area by the number of parking places in each area, and dividing the bar crimes in the area by the number of seats in bars), he found that one particular hotel area had higher auto and bar crime rates than the other hotel areas. Engstad (1975) conducted the same types of analysis for shopping centers using auto crimes, thefts, and other property crimes and found that areas with shopping centers had higher rates of crime per thousand population than areas without shopping centers. When he compared the shopping center areas for these crimes standardized by opportunity-based measures (i.e., parking places for auto crime, retail space per 1,000 square feet for thefts, and acres of shopping center for mischief), Engstad (1975) again found variation among the shopping center areas. Because Engstad did not compare crime events in target areas to crime events in their surrounding areas controlling for opportunities, we cannot determine if the associations he found are due to different opportunities available or to the people who use the areas. Even when controls for opportunity were introduced, controls for other structural and compositional variables were not used. Consequently, we have no idea why such variation might exist. Spelman (1992) examined the association between abandoned unse- cured residential homes and crime on the blocks on which these homes were located. He found a positive association, though he did not control for the criminal opportunities on the blocks. He does provide evidence that the only significant difference between the blocks with abandoned homes Crime Places in Crime Theory if and those without such homes was that the former had more owner -oc- cupied buildings. Brantingham and Brantingham (1982) studied the association between commercial burglaries per store on blocks and the presence of five types of "commercial landmarks ": fast food restaurants, traditional restaurants, supermarkets, department stores, and pubs. Though supermarket and department store blocks had commercial burglary rates comparable to blocks without these landmarks, the other three landmarks had commer- cial burglary rates 2 to 2.5 times higher than the nonlandmark average ( Brantingham and Brantingham, 1982). Rengert and Wasilchick (1990) provide evidence from interviews with burglars that drug dealing locations might draw predatory offenders to an area to purchase drugs. These offenders then may commit predatory crimes in the area surrounding the drug places. Providing partial support for the view that places attract offenders for one purpose who then participate in other crimes, Weisburd et al. (1994) found an over- representation of crime calls for a series of crime categories in places that were identified primarily as drug markets. 2 These studies suggest three possible hypotheses: there is something about the place that fosters deviance in the block; the facilities draw people into the block; or both. Unfortunately, these studies cannot test these hypotheses separately. Several studies suggest that the more access people have to an area or place, the more crime in the area or place. Friedman et al. (1989) examined the effects of casino gambling in Atlantic City on crime in the small towns along the main routes to this resort. They found that crime counts increased in these towns relative to towns not located on routes to Atlantic City, controlling for town population, unemployment, value of commercial and residential real estate per square mile, and population density. If we could assume that the small towns on the route did not change in social composition or structure at the same time casino gambling was intro- duced, the increase in crime would be most plausibly explained by the increases in outsiders passing through the towns. Unfortunately, the authors provide no evidence that the social composition and structure were not changed by the growth of Atlantic City. Duffala (1976) and Nasar (1981) examined stores with varying crime counts (convenience store robberies and commercial burglaries, respec- tively) and found that those with the most crime were located on major thoroughfares. Comparisons of high- and low -crime neighborhoods (Greenberg and Rohe, 1984; White, 1990) and street segments (Friable et. al., 1977) show that area accessibility is associated with higher crime rates. The more people who pass a place, the greater the chances that the place will be the scene of a crime. This conclusion is consistent with the tz lohn E. Eck and David Weisburd hypothesis that places that attract large numbers of people will suffer more victimizations (these studies do not rule out the alternative hypothesis, however). This suggests that facilities attract people into the block, some of whom are motivated to commit crimes (Brantingham and Brantingham, 1981). Though facilities may attract offenders onto a block, the variation in crime among blocks with the same facilities suggests that there may be important differences in the social structure of the places that account for differences in crime counts, even when controlling for crime opportunities (see Engstad, 1975). Further, all of the studies to date have been of facilities that may have low guardianship (because they attract large numbers of people with little in common) and /or loco levels of place management (because of inadequate staffing or training). A study of the effects of facilities with high guardianship and place management (e.g., churches) on block crime would be revealing in this respect. Clustering Crime events are not uniformly distributed, a fact known for over a century. At every level of aggregation, some geographic areas have less crime than others (Brantingham and Brantingham, 1982). At the place level, clustering— repeat events at the same place— has been established by Pierce at al. (1986) for Boston and by Sherman et al. (1989; see also Weisburd et al., 1992) for Minneapolis. Such clustering has also been established for specific crimes (e.g., see Weisburd and Green, 1994 for drug offenses), and a number of successful crime prevention efforts have recently taken the approach of targeting small discrete areas defined as crime "hot spots" (e.g., see Sherman and Weisburd, 1995; Weisburd and Green, 1995: Koper, 1995). Forrester et al. (1988) show how a successful crime prevention cam- paign can be built on knowledge of repeat breakins to the same residences. Repeat breakins to the same residences were also found in Saskatoon, Saskatchewan, Canada (Polvi et. al., 1990). Places with repeat offenses may have persistently low guardianship of attractive targets (as well as ineffective place managers). Offenders may select such places either as part of a determined search or as a chance encounter while engaged in non - criminal activities (Brantingham and Brantingham, 1981). If places and crimes are very similar, then solutions may be relatively easy to craft. Faced with a heterogeneous set of hot spots, effective solutions may be more difficult to find (Buerger, 1992; Sherman, 1992a). We have no studies that have systematically examined the social structure and crime levels of a large sample of places to determine the link Crime Places in Crime Theory 13 between crime and the social structure of places. We only have ethno- graphic case studies of social relations at a single place (Liebow. 1967; Anderson, 1978; Anderson, 1990) or at a set of places in the same neighborhood (Suttles, 1968). Therefore, we have limited knowledge of whether the social structure of places influences the offender's decision to go there, or whether the social structure influences behavior once the offender is at the place. We can, however, gain additional understanding of these issues by examining the influence of site -level features on crime occurrence at places. Site Features Studies of crime clusters show offenses occurring at places but provide scant information as to why some places are more crimmogenie than others. Are these places the hangouts of deviants? Is there a failure of social control at these places? Or are there features present at these locations that attract offenders from the surrounding areas? Some insight as to possible answers can be gained by examining studies of place features and crime. The strategy of defensible space entails organizing the physical envi- ronment to enhance peoples' sense of territoriality, make it possible for them to observe their environment, and communicate to would -be offend- ers that they are being watched (Newman, 1972). Newman (1972) pur- ported to find that public housing projects with defensible space features had less crime than projects that did not have these features. Critics have attacked Newman's research and theory. Mawby (1977) suggested that Newman misrepresented his findings, purposely selecting the two principal study sites to bolster his premise and failing to describe the characteristics of the resident populations and offender rates of the two sites. Merry (1981) found that people do not automatically scrutinize their environment even when the physical arrangements make surveil- lance feasible, and that offenders know this. She criticized defensible space theory for neglecting the social dimensions of crime prevention. Mayhew (198 1) concluded that consistent surveillance is unlikely except by employees of organizations who control places; a number of studies sponsored by the U.K. Home Office support this assertion (Poyner, 1988a; Poyner, 1988b; Webb and Laycock, 1992). Other reviews of research on defensible space consistently reported that the theory is vague and omits critical mediating variables ( Mawby, 1977; Mayhew, 1979; Taylor et al., 1984). Research on convenience stores also supports Mayhew's (1981) hy- pothesis that employees can prevent crimes through improved surveil- 14 John E. Eck and David Weisburd lance. Reviews of studies comparing stores with few and many robberies point to such physical features as unobstructed windows, placement of the cash register so that the entrance can be monitored, and lighted parking areas fully visible from inside the store (Hunter and Jeffrey, 1992; LaVigne, 1991). It is unclear whether the number of employees conducting sur'eillance makes a difference. Evaluating the impact of a Gainesville, FL city ordinance that required two clerks to be present in the evening, Clifton (1987) contends that robberies were reduced. This contention'.zas been challenged by Wilson (1990) and by Sherman (1992b), both of whom claim that Clifton failed to rule out several important rival hypotheses. Never- theless, Hunter and Jeffrey (1992) contend that this crime prevention measure had the strongest empirical support of all measures tested. LaVigne (1991), however, could find no such evidence in her study of Austin, TX convenience store crime. Finally, from studies of the deterrent effects of guards, we find addi- tional evidence that offenders avoid places with people trained to watch their environment and to intervene if criminal behavior is suspected. Hannan (1982) used multivariate crosssectional analysis to investigate the deterrent value of bank guards in Philadelphia. He found that the presence of guards was associated with fewer robberies, even when the volume of banking business and the demographics of the surrounding areas were held constant. Landes (1978) demonstrated that the decline in aircraft hijacking in the U.S. was due principally to the installation of metal detectors in airports and secondarily to increased use of armed air marshals on flights. Additional police security in New York City's subway system apparently reduced robberies there for a time, even when problems with police falsification of crime statistics were accounted for (Chaiken et al., 1974, 1978). Book theft from libraries was deterred through the introduction of electronic security systems (Seherdin, 1992), while placing attendants in some parking facilities (Laycock and Austin, 1992) or installing closed circuit television (Poyner, 1988a) reduced auto thefts. In summary, offenders avoid targets with evidence of high guardianship. But note that effective guardianship is linked to place management. In each of the studies just cited, the additional security was put in place by the owner or manager of the place, not by the users of the place. Site features are not only useful for enhancing surveillance, they can also control access to places. Studies in the security literature highlight the effectiveness of physical barriers that prevent access to targets. Grandjean (1990) reported that Swiss banks with security screens have fewer robberies than those without such barriers. The installation of security screens in British post offices resulted in fewer robberies of these Crime Places in Crime Theory 15 places (Ekblom, 1987). The value of access control features for controlling crime depends on the crime. Eck (1994) found evidence that crack and powder cocaine dealers may prefer apartment buildings with physical features that control access. Thus the features that may prevent burglary may attract drug dealing. A third way in which site features may influence offender decisions about places involves making the targets at the place less desirable or hard to attack. Protecting targets at places can be accomplished, by such tactics as securing targets, removing targets from places, or making them appear to be less attractive. Property marking can sometimes reduce burglaries by reducing the value of the stolen goods (Laycock, 1985). Exact fares on buses were found to reduce robberies by securing the target to the floor of the bus (Chaiken, Lawless et al., 1974). Cash control methods (introducing tiinelock cash boxes, setting cash limits on draws at each teller, installing safes with adjustable time locks) have been reported to reduce robberies in betting shops (Clarke and McGrath, 1990). The removal of pre - payment gas meters from residences in a housing complex in Britain was partially responsible for reducing burglaries there (Forrester et. al., 1990). Finally, how places are managed may have an effect on the risks of crime at a location, The ways in which bartenders and bouncers regulate drinking, for example, seems to have an effect on violence in drinking establishments (Homel and Clark, 1995). Offenders may select sites for criminal activity based on the level of control owners (or their hired surrogates) exercise over behavior at the location. Evidence for offender site selection based on place management can be gleaned from systematic comparison of crime and nonerime places. By examining the characteris- tics of drug dealing places and nondrug dealing places in the same area of San Diego, Eck (1994) found that crack and powder cocaine dealers seem to prefer small apartment buildings. Smaller apartment buildings appear to be owned by people who are not professional landlords and who do not have great financial assets. The majority of the apartment buildings that contain drug dealing are encumbered with debt, have lost value, and are eitherjust breaking even or losing money for the owner. Thus, place management may be weaker at these locations; the landlords either do not know how to control the behavior of their residents or they cannot afford to do much about drug dealing. Drug dealers may select places with weak management, either because they are kept out of strong manage- ment places or they prefer weak management places, or both (see Eck in this volume). In summary, there are a variety of physical and social features of places that enhance their attractiveness to offenders. These features include an 16 John E. Eck and David Weisburd obvious lack of guardianship, easy access to the site, and the presence of readily attainable valuables. Sites without these features have been shown to have fewer crimes committed than similar sites with them. Additionally, evaluations of crime prevention programs demonstrate that removal of these attractive features reduces crime. Finally, how places are managed may influence the crime at sites. These studies demonstrate that cffenders make choices about places based on site -level social and physical features. Offender Mobility The fact that criminals are mobile reinforces the importance of places for criminologists. Since offenders move about and crimes occur in a variety of settings, place and movement matter. Studies of offender mobility are based on official arrest and incident data from police and prosecutors' files. Reliance on crimes resulting in an arrest creates a potential source of bias in the results of these studies, given the low clearance rates of the crimes studied. Mobility studies may underestimate the distances offenders travel, if people who offend near their homes are more likely to be caught than people who commit their crimes further away. Two aspects of mobility— distance and direction —have teen examined in this literature. Distance and direction have been measured in a variety of ways, but for the most part they are calculated by connecting the address of a crime to the address of the offender's home. Distances traveled by offenders from homes to crime sites usually appear to be short, with the number of offenses declining rapidly as one moves further from the offender's home (Capone and Nichols. 1976; Phillips, 1980: Rhodes and Conley, 1981). At the same time, Brantingham and Bran fingham (1981) hypothesize that offenders may avoid targets immediately adjacent to their homes to avoid being recognized. Mobility may also be constrained between crime sites. Weisburd and Green (1994) argue that drug markets within close proximity to each other have clear and defined boundaries, often circumscribed by the nature of drug activities found in a specific place. Examining offenders who were arrested more than once for narcotics sales in Jersey City, they found it was very unlikely for an offender to be arrested in drug markets adjacent to each other. Indeed, suggesting a high degree of territoriality among offenders, it was more likely for a repeat arrestee to be arrested in a different district in the city than in a drug market a block or two away. Evidence suggests that there may also be substantial variation by age, race, sex and crime type in offender mobility. Young offenders appear not Crime Places in Crime Theory 17 to travel as far from home as older offenders (Phillips, 1980; Nichols, 1980). African-American offenders may not travel as far to commit crimes as whites (Phillips, 1980; Nichols, 1980). Women may travel further than men to commit crimes (Phillips, 1980), but may not travel as far from home to engage in robberies (Nichols, 1980). Expressive crimes —e.g., rapes and assaults —are usually committed closer to home than instrumental crimes — burglary and robbery— (Phillips, 1980; Rhodes and Conley, 1981). For robberies, offenders attacking commercial targets seem to travel further than offenders attacking individuals (Capone and Nichols, 1976). Drug dealers may have the shortest travel distances of offenders studied, since a large proportion are arrested at their home address (Eck, 1992). Offender mobility studies investigating direction consistently demonstrate that offenders move from residential areas with fewer targets to areas with more targets (Boggs, 1965; Phillips, 1980; Costanzo et al., 1986). If the residential areas of offenders are target -rich, taen travel distances are shorter than when the offenders' residential areas are target -poor (Rhodes and Conley, 1981). Property offenders avoid targets close to home where they might be recognized (Suttles, 1968). Rand (1986) compared offense place addresses to offender and victim home addresses and found that the most common pattern was that of each address located in a different census tract. Further, as the distribution of targets in a metropolitan area changes over time, offenders' direction and travel distance follow the targets (Lenz, 1986). Though the search area of offenders may be limited, it does not seem to be random. Offenders appear to search for targets, though age, race and possibly gender may affect search strategy. Carter and Hill (1976) suggest that black and white offenders have different cognitive maps (i.e., mental images of their environments), and these may influence target search patterns,. The preceding studies have often been interpreted as evidence of rational and deliberative target- searching behavior, and the influence of personal characteristics and the distribution of crime targets on this behavior. These studies, however, are consistent with two different target - search hypotheses: that offenders actively seek out attractive targets with low guardianship, and that they chance upon such opportunities while engaged in routine non - criminal activities. For example, Rhodes and Conley (1981) puzzle over an anomalous finding: that offenders seem to skip over areas of small businesses close to their home neighborhoods but prey on small businesses further away. Presumably, if offenders were aggressively seeking targets, then closer opportunities would be victimized more frequently than those further away. However, if offenders are finding 18 John E. Eck and David Weisburd opportunities while going to and from work, school, stores, recreation facilities and other sites for common activities, and these places are located at some distance from offenders' places of residence, then this skip pattern may be more explicable. Offenders' cognitive maps may not include much information about areas they pass through, but may be rich in detail about places where they go for legitimate purposes (Brantingham and Brantingharr.., 1981). An example of this can be found in a study of crime in Stockholm. Wikstrom (1995) describes how youths living outside the center city use public transportation to go to the center city for entertainment and shopping. The concentration of legitimate activities that are attractive to youths also creates an environment rich in targets. As a consequence, center -city Stockholm has more crimes per land area than other parts of the city ( Wikstrom, 1995). Offender Target Selection Offenders themselves should be able to describe their decis'on- making processes, and a number of studies have examined crime site selection from their point of view. Most of these studies involve interviewing either a sample of subjects in custody or several offenders freely plying their craft. Most of the studies are of persistent adult offenders, so the conclu- sions one draws from them are unlikely to match the conclusions one would draw from a representative sample of offenders. Further compro- mising the conclusions we can draw from this approach is the fact that offenders do not always provide accurate accounts of their own decision making (Carroll and Weaver, 1986; Cromwell et al., 1991). These studies consistently conclude that offenders are rational, even though their rationality is bounded (Rengert and Wasilchick, 1990; Feeney, 1986; Kobe, 1988; Maguire, 1988; Biron and Ladouceur, 1991; Cromwell et al., 1991). Burglars report looking for cues that suggest a place is likely to yield acceptable gains with manageab',e risks, though among burglars there is variation in the salience of specific cues (Rengert and Wasilchick, 1990; Cromwell et al., 1991). Planning is limited, and the more experienced the offender, the less planning that takes place (Feeney, 1986; Cromwell et al., 1991). Offenders find targets by chancing upon them during routine, non - criminal activities, and through intentional searches (Rengert and Wasilchick, 1990; Cromwell et al., 1991). Thus, interviews of offenders confirm many of the studies that rely on official data: offenders make choices about places based on cues at the sites; and their discovery of places is in large part reliant on routine activities that are unrelated to crimes. This suggests that places with Crime Places in Crime Theory 19 disproportionately high predatory crime levels are likely to be easily accessible (i.e., on major thoroughfares), have things of value that can be taken, and emit cues that risks are low for committing crimes. DISPLACEMENT OF CRIME AND DIFFUSION OF BENEFITS As our review suggests, the basic principles of rational choice and routine activities apply fairly consistently across a series of crime place studies. Nonetheless, the application of these principals to crime preven- tion has often been hindered by the threat of spatial displacement (see Reppetto, 1976). If it is the case that crime events can easily shift from one place to another, then the collective benefits of crime prevention at places as we have defined them become doubtful. While Sherman and Weisburd (1995) argue that it is theoretically important to show that crime can be discouraged at hot spots irrespective of the phenomenon of displacement, it is surely difficult to encourage crime prevention efforts if such displacement is complete. One difficulty in defining the extent of displacement in place studies is that displacement is often a secondary issue for investigators. It only becomes important once the primary impacts of a treatment have been established, and it seldom receives the kind of methodological concern or focus that is accorded to the intended effects of treatment see Weisburd and Green chapter in this volume.) Moreover, there are a myriad of forms that displacement can take. Thus, a finding of little displacement in regard to the movement of offenders to areas near a crime place after the introduction of crime prevention initiatives does not mean that such displacement has not occurred in other areas of a city, or indeed in regard to other types of offending behavior. If displacement is spread broadly enough, it could easily become indistinguishable from normal changes in crime patterns (Pease, 1993). Several authors have argued that the presumed threat of displacement resulting from focused crime prevention efforts develops from the "dispo- sitional" bias of traditional criminological theory (Barr and Pease, 1990; Clarke and Weisburd, 1994; Eck, 1993; Barnes, in this volume). According to this argument, the use of rational choice and routine activities as a basis for the prediction of displacement effects would result in a low rate of displacement. These authors contend that "the volume of crime is dependent as much on the numbers of suitable targets and capable guardians as of likely offenders. Thus, if targets decline and guardianship 20 John E. Eck and David Weisburd increases, reductions in crime would be expected to follow without any threat of displacement" (Clarke and Weisburd, 1994:167). There is a growing body of evidence that suggests that displacement is seldom total and often inconsequential or absent (Gabor, 1990; Barr and Pease, 1990; Clarke, 1992; Eck, 1993; Hesseling, 1995). Though it is impossible to completely reject displacement, the absence of consistent findings of large displacement effects implies that traditional dispositional theories may be invalid. Proponents of dispositional theories can justifi- ably claim that most studies did not look for displacement, and when they did their methods may have been to weak to find it (Eck, 1993). Neverthe- less, the preponderance of evidence —both weak and strong -- presents difficulties for many standard theories of criminality. A number of recent studies suggest that scholars and crime prevention experts may have to take into account a phenomenon that is the complete opposite of displacement in assessing place -based crime prevention ef- forts. In this sense, not only is the threat. of displacement likely to be less than ordinarily assumed, but the crime prevention benefits of interven- tions may be greater than anticipated. Whether termed a "multiplier effect" (Chaiken et al., 1974), a "halo" effect (Scherdin, 1992), a "free rider" effect (Mie'he, 1991), or a "free bonus" effect, there is growing evidence that crime prevention efforts may actually diffuse their benefits beyond the targets that were initially the focus of intervention. Clarke and Weisburd (1994) coin the term "diffusion of benefits" for this phenomenon, which they describe in part as the "spread of the beneficial influences of intervention beyond the places which are directly targeted" (p. 169). While spatial diffusion effects have only recently become a concern in place - based studies, initial evidence points to the salience of this concept for crime prevention programs that focus on place. For example, Green (1995) finds improvement not only in the "nuisance" addresses that were targeted by the Oakland Beat Health Unit, but also in the surrcunding housing units. This improvement was found both in observations of the physical characteristics of the property and in measures of official contacts with police (see Green, in this volume). Weisburd and Green (1995) also find evidence of diffusion in the Jersey City Drug Market Analysis Experiment. In this case, calls for service for drug- related offenses in the experimental areas decline in relation to control locations, not only in the hot spots targeted but also in the two -block buffer zones surrounding them. STAKING OUT NEW GROUND Crime places are beginning to emerge as a central concern among both criminologists and laypeople. While the larger worlds of community and Crime Places in Crime Theory 21 neighborhood have been the primary focus of crime prevention theory and research in the past, there is a growing recognition of the importance of shifting that focus to the small worlds in which the attributes of place and its routine activities combine to develop crime events. In this volume we seek to advance knowledge about crime places in terms of theory, empir- ical study, practical application and research method. The contributions that are included provide insight not only into how crime and place interact, but also as to how such knowledge may be translated into concrete crime prevention efforts. The first section provides four papers that focus on theoretical prob- lems. In the first, Lawrence W. Sherman presents a broad outline of how the study of crime at places can be developed and how it might influence public policy. He begins by noting that such study demands a reorienta- tion relative to the units of analysis used in research and theory. From the individuals and communities that have preoccupied criminological study we must move to more defined and discrete units of place. But in taking such an approach, Sherman suggests that we should not abandon the insights of traditional criminological approaches. Drawing from the notion of criminal careers, he illustrates the salience of concepts such as onset, specialization and desistance for understanding the development of crime at places. Marcus Felson examines the motivation to intervene and prevent crimes of people at places. He focuses on the responsibility felt by three crime controllers: capable guardians (Cohen and Felson, 1979); intimate handlers ( Felson, 1986); and effective managers (Eck, 1994). The effec- tiveness of each of these discouragers of crime is very much dependent on the extent of responsibility they feel to the place that is the potential target of crime. When people have direct and personal responsibility for a place (for example, through ownership or assigned employment responsibility) they are much more likely to invest efforts to prevent crime than when they have little personal or professional interest. Unfortunately, modern society has chosen to emphasize the latter forms of responsibility at the expense of the former. Drawing from the broad theoretical perspectives that inform study of crime at place, John E. Eck develops a general model of the geography of illicit retail marketplaces. He begins with the essential dilemma of partic- ipants in any illicit retail market: how to make contact with a buyer or seller and still protect oneself from the police and other offenders. He shows that there are two distinct marketing strategies for reconciling this dilemma. In the first, sellers and buyers use social networks to screen potential partners and to identify new ones. In the second, the routine activities of the area and place are used to identify illicit market areas and 22 John E, Eck and David Weisburd places that provide both security and access in the context of everyday social activities. Eck contrasts the operating strategies of two San Diego drug markets and provides evidence suggesting the plausibility of his model. He argues that the study of illicit retail marketplaces will be much enriched if crime place researchers subject his model to repeated testing in diverse illicit retail markets. Because of the centrality of the threat of displacement to er.'.ticism of place -based crime prevention, we include Geoffrey C. Barnes' fresh ap- proach to displacement in our discussion of theoretical problems. Barnes begins by bringing into context the sometimes polemical tone of debates on crime displacement, suggesting the need to focus more carefully on how we define both displacement and the types of evidence used to establish or refute its presence. But Barnes goes beyond the traditional debate by suggesting that displacement, whatever its extent, may in itself be a potent tool in crime prevention. He suggests that we can optimize displacement in crime prevention by better identifying its form and timing. Even if displacement is inevitable in certain circumstances, crime preven- tion experts can channel it in directions that are likely to lead over time to an overall reduction in the frequency and seriousness of crime. We shift from theory to empirical study by providing three examples of research on how place and crime interact. William Spelman begins by examining the "criminal careers" of public places. Are some places more crime -prone than others? Are some places particularly crime resistant compared to others? Is "crime proneness" or crime resistance stable over time? Spelman provides answers to these questions in the context of an analysis of calls for service at high schools, housing projects, subway stations and parks in Boston. His analyses provide a substantial caution to those that have simply examined the cross - sectional concentration of crime at places. Examining the distribution of crime events over time, Spelman concludes that a substantial proportion of the statistical concen- tration of crime at places is due to random and often temporary fluctua- tions in crime events. Nonetheless, even after correcting for such fluctuations, Spelman finds that the worst 10% of locations account for some 30% of crime calls. Taking the case of a specific type of location — liquor establishments — and crime, Richard L. and Carolyn R. Block provide a careful analysis of crime and place in Chicago. Using computer mapping as a means of identifying liquor crime hot spots, they find surprisingly little relationship between the density of liquor establishments and liquor - related crime. Their work suggests the importance of going beyond the type of facility found at a place to the routine activities that surround it. Liquor is sold at private clubs and restaurants, as well as nightclubs and dance halls. Crime Places in Crime Theory 23 It is available in neighborhood bars and carry-out stores. Each of these types of locations suggests a different context of routine activities of potential offenders, victims and guardians, leading to different rates of crime. Nadera S. Kevorkian also finds strong support for taking into account the specific characteristics of places in understanding crime. In focusing on fear of crime among the elderly in the Armenian Quarter of Jerusalem, she provides an important crosscultural example of the importance of understanding the crime /place connection. Comparing experiences and attitudes of the elderly who live within the enclosed areas of the Armenian quarter with those who live in less controlled social space, Kevorkian finds significantly lower levels of fear and victimization. The importance of place in crime is as important in this relatively low -crime area of Jerusalem as it is in high -crime urban centers in the U.S. In Section III, we shift focus from understanding the relationship between crime and place to how knowledge of places can be applied to crime prevention and control. Lorraine Green's article on drug abatement in Oakland, CA provides evidence that crime prevention programs that take a specific and place -based approach can have a significant impact on crime. In her evaluation of project Beat Health, Green finds that official measures of narcotics activity declined significantly as a result of the intervention. As important, she shows that there was substantial improve- ment in the physical characteristics of Beat Health sites. This finding suggests that places can be substantially rehabilitated by putting pressure on place managers. Green's paper is notable also because she uses the movement patterns of offenders to show that diffusion of benefits and displacement may not be mutually exclusive. D. Kim Rossmo provides a guide for using crime place theory and research in practical crime investigation. He focuses upon the problem of serial violent criminals to illustrate the ways in which offender search theory can be used in combination with computer mapping capabilities to identify the probable home locations of violent offenders. Of particular interest is that Rossmo begins with the spatial pattern of the crime sites of a single offender and uses this information to locate a small area in which the offender is likely to live or work. His use of offender search theory and computerized mapping demonstrates the utility of environmental criminology for very practical purposes. His work provides a solid example of the potential ways in which crime place theory and method drawn from the best of academic criminology can be brought to the grassroots level of crime prevention activities. In the final section of our volume, we include five papers on place research methods. Our choice here was not accidental. We believe that 24 John E: Eck and David Weisburd important advances in our understanding of crime places and improve- ment in crime prevention efforts cannot be attained without careful attention to the methods used to define and assess the relationship between crime and place. Too little attention has been given to place methods. We sought at the outset to offset this omission in crime place studies. The section begins with two papers that address the complex issue of translating concepts about place to its reality. Drawing from their experi- ences in defining high -crime places in the Minneapolis Hot Spots Patrol Experiment (Sherman and Weisburd, 1995), Michael E. Buerger, Ellen G. Cohn and Anthony J. Petrosino illustrate the many problems that re- searchers and practitioners are likely to face in trying to clearly define the boundaries of crime places. What criteria should be used? What should be done when different data about place seem to provide contradictory images about its definition? What are the limits of present technologies for defining crime places, and how do these limits impact upon practi- tioner /researcher cooperation? Also drawing on data from the Minneapolis Hot Spots Experiment, David Weisburd and Lorraine Green illustrate the difficulties of measuring displacement in place studies. Pointing to problems of overlap of "displace- ment areas" and the wash -out effect of trying to track crime changes in high -crime neighborhoods, they suggest that hot -spot studies may often be biased toward a finding of no displacement effects. They conclude that real progress in the study of spatial displacement and the related phenom- enon of diffusion cannot be made until such phenomena are made central rather than secondary issues of study. Dennis P. Rosenbaum and Paul J. Lavrakas also point to the weaknesses of present data in fully conceptualizing the nature of place and its importance in the crime equation. They suggest that survey methods can provide an important tool for expanding present knowledge and improving evaluation efforts. But traditional survey techniques are not well- adapted to small -scale concepts of place, and traditional concerns about sampling error have inhibited the use of surveys, for very small geographic units. Rosenbaum and Lavrakas argue that new methods can be developed that are consistent with surveying places, and that problems of sampling error at places must be balanced against. the amount of "nonsampling" error in crime place studies. The final two chapters examine the role of information technologies and computer mapping in advancing research and crime prevention efforts in crime places. Maps play a critical role in understanding crime places and in developing policies to prevent crime at places. J. Thomas McEwen and Faye S. Taxman review the ways in which computer mapping Crime Places in Crime Theory 25 of crime places has been applied by police agencies as a crime analysis and prevention tool. Their paper illustrates the potential for improving crime prevention efforts through basic research on places, as wel, as the developing sophistication of criminal justice agencies in their approach to crime places. Michael D. Maltz brings the discussion full circle. We began this chapter by distinguishing between theories of crime events and theories of criminality. Maltz shows how new methods of organizing data can link the development of criminals to the places with which they came into contact. He brings together a concern with understanding the broad social and environmental components of crime at place with the developing potential of computer mapping and information technologies. Maltz notes that criminologists and crime prevention experts can now lock across broad arrays of data in ways that were virtually impossible just a few years ago. Maltz calls for the integration of data that would provide a more qualitative and developed view of places and crime, one that would allow researchers and practitioners to identify the full social, economic , physical and criminal characteristics of crime places. We believe this understand- ing is crucial if we are to fully integrate the study of place into crime prevention efforts. These 15 path- breaking papers demonstrate the variety of contribu- tions that an understanding of places can make to criminology and crime prevention. While these papers provide new insights into crime patterns, they intentionally raise many questions that we cannot yet answer. Continuing the many lines of research suggested should produce useful results far into the future. NOTES 1. This summary is based on a lawsuit brought before the Florida courts in which the Crime Control Research Corporation was asked to serve as an expert on behalf of the defendant. 2. Eck's model of illicit retail market places, in this volume suggests an alternative explanation: that the association between crime and drug places is less causal than spurious. The deteriorated economic conditions of an area, combined with the presence of numerous targets arrayed along arterial streets, give rise to both, but for different reasons. In other words, the same conditions (though not the processes) that give rise to many forms of crime give rise to retail drug places. 26 John E. Eck and David Woisburd Anderson, E. (1978). A Place on the Comer: Chicago, IL: University of Chicago Press. (1990). Streetwise: Race, Class, and Change in an Urban Community. Chicago, IL: University of Chicago Press. Barr, R. and K. Pease (1990). "Crime Placement, Displacement, and Deflec- tion." In: M. Tonry and N. Morris (eds.), Crime and Justice: A Review of Research, Vol. 12, Chicago, IL: University of Chicago Press. Bates, N.D. and S.J. Dunnell (1994). Major Developments in Premises Security Liability. New York, NY: American Insurance Services Group, Inc. Biron, L.L. and C. Ladouceur (1991). "The Boy Next Door: Local Teen -age Burglars in Montreal." Security Journal 2:200 -204. Boggs, S. L. (1965). "Urban Crime Patterns." American Sociological Review 30:899 -908. Bolton, C. (1993). Personal communication with John Eck by the president of the Northwest Bernal Block Club. Brantingham, P.L. and P.J. Brantingham (1975). 'Residential Burglary and Urban Form." Urban Studies 2:273 -84. (1977). "Housing Patterns and Burglary in a Medium Size American City." In: J.E. Scott and S. Dinitz (eds.), Criminal Justice Planning. New York, NY: Praeger. (1981). "Notes on the Geometry of Crime." In: P.J. Brantingham and P.L. Brantingham (eds.), Environmental Criminology. Beverly Hills, CA: Sage. - -A 1982). "Mobility, Notoriety and Crime: A Study of Crime Patterns in Urban Nodal Points." Journal of Environmental System 11:89 -99. -- (1993). "Environment, Routine, and Situation: Toward a Pattern Theory of Crime." In: R.V. Clarke and M. Felson (eds.), Routine Activity and Rational Choice. Advances in Criminological Theory, Vol. 5. New Brunswick, NJ: Transaction Publications. Buerger, M. (ed.) (1992). The Crime Prevention Casebook: Securing High Crime Locations. Washington, DC: Crime Control Institute. Burgess, E.W. (1925). "The Growth of the City." In: R.E. Park, E.W. Burgess and R.D. MacKenzie (eds.), The City. Chicago, IL: University of Chicago Press, Cadwalder, Wickersham and Taft, Attorneys at Law (1993). A Civil War: A Community Legal Guide to Fighting Street Drug Markets. New York, NY: Author. Capone, D.L. and W.W. Nichols, Jr. (1976). "Urban Structure and Criminal Mobility." American Behavioral Scientist 20:199 -213. Crime Places in Crime Theory 27 Carroll, J. and F. Weaver (1986). "Shoplifters' Perceptions of Crime Oppor- tunities: A Process- tracing Study." In: D. Cornish and R.V. Clarke (eds.), The Reasoning Criminal: Rational Choice Perspectives on Offend- ing. New York, NY: Springer - Verlag. Carter, R.L. and K.Q. Hill (1976). 'The Criminal's Image of the City and Urban Crime Patterns." Social Science Quarterly 57:597 -607. Chaiken, J.M., M.W. Lawless and K.A. Stevenson (1974). Impact of Police on Crime: Robberies on the New York City Subway System R -1424- NYC. New York, NY: New York City Rand Institute. X1978). "What is Known About Deterrent Effects of Police Activities." In: J.A. Cramer (eds.), Preventing Crime. Beverly Hills, CA: Sage. Clarke, R.V. (1980). "Situational Crime Prevention: Theory and Practice." British Journal of Criminology 20:136 -147. (1992). Situational Crime Prevention: Successful Case Studies. Albany, NY: Harrow and Heston. X1993). "Fare Evasion and Automatic Ticket Collection in the London Underground." In: R.V. Clarke (ed.), Crime Prevention Studies Vol. 1. Mousey, NY: Criminal Justice Press. and M. Felson (1993). "Introduction: Criminology, Routine Activity and Rational Choice." In: R.V. Clarke and M. Felson (ed.), Routine Activity and Rational Choice. Advances in Criminological Theory, Vol. 5. New Brunswick, NJ: Transaction Publications. and G. McGrath (1990). "Cash Reduction and Robbery Prevention in Australian Betting Shops." Security Journal 1:160 -63. end D. Weisburd (1990). "On the Distribution of Deviance." In: D. M. Gottfredson and R.V. Clarke (eds.), Policy and Theory iln Criminal Justice. Aldershot, UK: Avebury. and D. Weisburd (1994). "Diffusion of Crime Control Benefits: Obser- vations on the Reverse of Displacement." In: R.V. Clarke (ed.), Crime Prevention Studies, Vol. 2. Monsey, NY: Criminal Justice Press. Clifton, W., Jr. (1987). Convenience Store Robberies in Gainesville, Florida: An Intervention Strategy by the Gainesville Police Department. Gaines- ville, FL: Gainesville Police Department. Photocopy. Cohen, L.E. and M. Felson (1979). "Social Change and Crime Rate Trends: A Routine Activity Approach." American Sociological Review 44:588- 605. Cornish, D. and R.V. Clarke, eds. (1986). The Reasoning Criminal: Rational Choice Perspectives on Offending. New York, NY: Springer - Verlag. Costanzo, C.M., W.C. Halperin and N. Gale (1986). "Crime Mobility and the Directional Component in Journeys to Crime." In: R.M. Figlio, S. Hakim, and G.F. Rengert (eds.), Metropolitan Crime Patterns. Monsey, NY: Criminal Justice Press. 28 John E. Eck and David Weisburd Cromwell, P.F., J.N. Olson and D.W. Avary (1991). Breaking and Entering: An Ethnographic Analysis of Burglary. Newbury Park, CA: Sage. Duffala, D.C. (1976). "Convenience Stores, Armed Robbery, and Physical Environmental Features." American Behavioral Scientist 20:227 -46. Eck, J.E. (1992). "Drug Trips: Drug Offender Mobility." Paper presented at the annual meeting of the American Society of Criminology, New Orleans, November. (1993). "The Threat of Crime Displacement." Criminal Justice A bstracts 25:527 -46. .__(1994). "Drug Markets and Drug Places: A Case - Control Study of the Spatial Structure of Illicit Drug Dealing." Doctoral dissertation, Uni- versity of Maryland, College Park. Ekblom, P. (1987). Preventing Robberies at Sub -post Offices: An Evaluation of a Security Initiative. Home Office Crime Prevention Unit Paper No. 9. London, UK: Her Majesty's Stationery Office. Engstad, P.A. (1975). "Environmental Opportunities and the Ecology of Crime." In: R.A. Silverman and J.J. Teevan (eds.), Crime in Canadian Society. Toronto, CAN: Butterworths. Feeney, F. (1986). "Robbers as Decision - makers." In: D. Cornish and R.V. Clarke (eds.), The Reasoning Criminal: Rational Choice Perspectives on Offending. New York, NY: Springer - Verlag. Felson, M. (1986). "Linking Criminal Choices, Routine Activities, Informal Control, and Criminal Outcomes." In: D. Cornish and R.V. Clarke (eds.), The Reasoning Criminal: Rational Choice Perspectives on Offend- ing. New York, NY: Springer- Verlag, X1994). Crime and Everyday Life: Insight and Implications jor Society. Thousand Oaks, CA: Pine Forge Press. Forrester, D.H., M.R. Chatterton and K. Pease (1988). The Kirkhc It Burglary Prevention Demonstration Project. Home Office Crime Prevention Unit Paper No. 13. London, UK: Her Majesty's Stationery Office. Forrester, D.H., S. Frenz, M. O'Connell and K. Pease (1990). The Kirkholt Burglary Prevention Project: Phase II. Home Office Crime Prevention Unit Paper No. 23. London, UK: Her Majesty's Stationery Office. Friedman, J., S. Hakim, and J. Weinblatt (1989). "Casino Gambling as a 'Growth Pole' Strategy and its Effects on Crime." Journal of Regional Science 29:615 -23. Frisbie, D., G. Fishbine, R. Hintz, M. Joelsons and J.B. Nutter (1977). Crime in Minneapolis: Proposals for Prevention. St. Paul, MN: Governor's Commission on Crime Prevention and Control. Gabor, T. (1990). "Crime Prevention and Situational Crime Prevention: Toward the Development of Some Principles." Canadian Journal of Criminology. 32:41 -74. Crime Places in Crime Theory 29 Grandjean, C. (1990). "Bank Robberies and Physical Security in Switzer- land: A Case Study of the Escalation and Displacement Phenomena." Security Journal 1:155 -59. Green, L. (1995). "Cleaning Up Drug Hotspots in Oakland, California: The Displacement and Diffusion Effects." Justice Quarterly (forthcoming). (1993). 'Treating Deviant Places: A Case Study Examination of the Beat Health Program in Oakland, California." Doctoral dissertation, Rutgers, The State University of New Jersey. Greenberg, S.W. and W.M. Rohe (1984). "Neighborhood Design and Crime: A Test of Two Perspectives." Journal oftheAmerican Planning Associ- ation 49:48 -61. Guerry, A. (1833). Essai sur Is Statistique Morale de Is France. Paris, FR: Crochard. Hannan, T.H. (1982). "Bank Robberies and Bank Security Precautions." Journal ofLegal Studies 11:83 -92. Hesseling, R.B.P. (1995). "Displacement: A Review of the Empirical Litera- ture." In: R. V. Clarke (ed.), Crime Prevention Studies, Vol. 3. Mousey, NY: Criminal Justice Press. Hogarth, R.M. and M.W. Reder (eds.) (1981). Rational Choice: The Contrast Between Economics and Psychology. Chicago, IL: University of Chicago Press. Homel, R. and J. Clark (1995). "The Prediction and Prevention of Violence in Pubs and Clubs." In: R.V. Clarke (ed.), Crime Prevention Studies, Vol. 3. Mousey, NY: Criminal Justice Press. Hunter, R.D. (1988). "Environmental Characteristics of Convenience Store Robberies in the State of Florida." Paper presented at the annual meeting of the American Society of Criminology. Chicago, IL. and C.R. Jeffrey (1992). "Preventing Convenience Store Robbery Through Environmental Design." In: R.V. Clarke (ed.). Situational Crime Prevention: Successful Case Studies. Albany, NY: Harrow and Heston. Jeffrey, C.R. (1971). Crime Prevention Through Environmental Design. Bev- erly Hills, CA: Sage. Koper, C. (1995). "Just Enough Police Presence: Reducing Crime and Disorderly Behavior by Optimizing Patrol Time in Crime Hotspots." Justice Quarterly (forthcoming). Kube, E. (1988). "Preventing Bank Robbery: Lessons from Interviewing Robbers." Journal ofSecurity Administration. 11:78 -83. Landes, W.M. (1978). "An Economic Study of U.S. Aircraft Hijacking, 1961- 1976." Journal of Law and Economics 21:1 -32. LaVigne, N.G. (1991). "Crimes of Convenience: An Analysis of Criminal Decision - making and Convenience Store Crime in Austin, Texas." Master's thesis, University of Texas at Austin. 30 John E. Eck and David Weisburd Laycock, G. (1985). Property Marking: A Deterrent to Domestic Burglary? Crime Prevention Unit Paper No. 3. London, UK: Home Office. and C. Austin (1992). "Crime Prevention in Parking Facilities." Security Journal3:154 -60. Le Beau, J.L. (1987). "The Methods and Measures of Centrography, and the Spatial Dynamics of Rape." Journal ofQuantitative Criminology 3:125- 141. Lenz, R. (1986). "Geographical and Temporal Changes Among Robberies in Milwaukee." In: R.M. Figho, S. Hakim and G.F. Rengert (eds), Metro- politan Crime Patterns. Mousey, NY: Criminal Justice Press. Liebow, E. (1967) . Tally's Corner: A Study ofNegro Streetconner Meri. Boston, MA: Little, Brown. Maguire, M. (1988). "Searchers and Opportunists: Offender Behavior and Burglary Prevention." Journal of Security Administration 11:70 -77. Mawby, R.I. (1977). "Defensible Space: A Theoretical and Empirical Ap- praisal." Urban Studies 14:169 -79. Mayhew, P. (1979). "Defensible Space: The Current Status of a Crime Prevention Theory." Howard Journal ofPenotogy and Crime Prevention 18:150 -59. (1981). "Crime in Public View: Surveillance and Crime Prevention." In: P.J. Brantingham and P.L. Brantingham (eds.), Environmental Crimi- nology. Beverly Hills, CA: Sage. Mayhew, P., R.V. Clarke, A. Sturman and J.M. Hough (1976). Crime As Opportunity. Home Office Research Study No. 34. London, UK: Her Majesty's Stationary Office. Merry, S.F. (1981). "Defensible Space Undefended: Social Factors in Crime Prevention Through Environmental Design." Urban Affairs Quarterly 16:397 -422. Miethe, T. (1991). "Citizen -Based Crime Control Activity and Victimization Risks: An Examination of Displacement and Free -Rider Effects." Crim- inology 29:419 -441. Nasar, J.L. (1981). "Environmental Factors and Commercial Burglary." Journal ofEnvironmental Systems 11:49 -56. Newman, O. (1972). Defensible Space. New York, NY: Macmillan. Nichols, W.W., Jr. (1980). "Mental Maps, Social Characteristics, and Crim- inal Mobility." In: D.E. Georges - Abeyie and K. Harries (eds.), Crime: A Spatial. Perspective. New York, NY: Columbia University Press. Parsons, T. (1951). The Social System. Toronto, CAN: Collier - MacMillan. Pease, K. (1993). "Crime Prevention." In: R. Morgan, R. Reiner and M. Maguire (eds.), Oxford Handbook ofCriminology. Oxford, UK: Oxford University Press. Crime Places in Crime Theory 31 Phillips, P.D. (1980). "Characteristics and Typology of the Journey to Crime." In: D.E. Georges - Abeyie and K. Harries (eds.), Crime: A Spatial Perspective. New York, NY: Columbia University Press. Pierce, G.L., S. Spear and L.R. Briggs (1986). The Character of Police Work: Strategic and Tactical Implications. Boston, MA: Center for Applied Social Research, Northeastern University. Photocopy. Polvi, N., T. Looman, C. Humphries and K. Pease (1990). "Repeat Break - and -Enter Victimizations: Time - Course and Crime Prevention Oppor- tunity." Journal of Police Science and Administration 17:8 -11. Poyner, B. (1988a). "Situational Crime Prevention in Two Parking Facili- ties." Security Journal 2:96 -101. �1988b). "Video Cameras and Bus Vandalism." Journal ofSecurity Administration 11:44 -51. Quetelet, A.J. (1842). A Treatise on Man. Gainesville, FL: Scholar's Facsim- iles and Reprints (1969 ed.) Rand, A. (1986). "Mobility Triangles." In: R.M. Figlio, S. Hakim and G.F. Rengert (eds.), Metropolitan Crime Patterns. Mousey, NY: Criminal Justice Press. Rengert, G. (1980). 'Theory and Practice in Urban Police Response." In: D.E. Georges - Abeyie and K. Harries (eds.), Crime: A Spatial Perspective. New York, NY: Columbia University Press. j1981). "Burglary in Philadelphia: A Critique of an Opportunity Struc- ture Model." In: P.J. Brantingham and P.L. Brantingham (eds.), Envi- ronmental Criminology. Beverly Hills, CA: Sage. and J. Wasilchick (1990). Space, Time, and Crime: Ethnographic Insights into Residential Burglary. Washington, DC: Office of Justice Programs, National Institute of Justice, U.S. Department of Justice. Reppetto, T. (1976). "Crime Prevention and the Displacement Phenome- non." Crime & Delinquency 22:166 -177. Rhodes, W. and C. Conley (1981). "Crime and Mobility: An Empirical Study." In: P.J. Brantingham and P.L. Brantingham (eds.), Environ- mental Criminology. Beverly Hills, CA: Sage. Roneek, D.W. (1981). "Dangerous Places: Crime and Residential Environ- ment." Social Forces 60:74 -96. and R. Bell (1981). "Bars, Blocks and Crime." Journal ofEnuironmental Systems 11:35 -47. and J.M.A. Francik (1981). "Housing Projects and Crime: Testing a Proximity Hypothesis." Social Problems 29:151 -66. and D. Faggiani (1985). "High Schools and Crime." Sociological Quar- terly 26:491 -505. and A. Lobosco (1983). "The Effect of High Schools on Crime in Their Neighborhoods." Social Science Quarterly 64:598 -613. 32 Jahn E. Eck and David Weisburd and P.A. Meier (1991). "Bars Blocks and Crimes Revisited: Linking the Theory of Routine Activities to the Empiricism of'Hot Spots.- Crimi- nology 29:725 -55. —and M.A. Pravatiner (1989). "Additional Evidence that Taverns En- hance Nearby Crime." Sociology and Social Research 73:185 -188. Scherdin, M.J. (1992). 'The Halo Effect: Psychological Deterrence of Elec- tronic Security Systems." In: R.V. Clarke (ed.), Situational Crime Prevention: Successful Case Studies. Albany, NY: Harrow and Heston. Shaw, C.R. and H.D. McKay (1942). Juvenile Delinquency and Urban Areas. Chicago, IL: University of Chicago. (Reprinted., 1969.) Sherman, L.W. (1992a). "Attacking Crime: Policing and Crime Control." In: M. Tomy and N. Morris (eds.), Modern Policing. Crime and Justice, Vol. 15. Chicago, IL: University of Chicago Press. �1992b). "Review of 'Problem-oriented Policing,' by Herman Goldstein." Journal of Criminal Law and Criminology 82:690 -707. P.R. Gartin and M.E. Buerger (1989). "Hot Spots of Predatory Crime: Routine Activities and the Criminology of Place." Criminology 27:27- 55. J.D. Schmidt and R.J. Velke (1992). "High Crime Taverns' A RECAP Project in Problem- Oriented Policing." Final report to the U.S. National Institute of Justice. Washington, DC: Crime Control Institute. and D. Weisburd (1995). "General Deterrent Effects of Police Patrol in Crime'Hot Spots': A Randomized, Controlled Trial." Journal ofCriminal Justice (forthcoming). Spelman, W. (1992). Abandoned Buildings: Magnets for Crime? Austin, TX: Lyndon Johnson School of Public Affairs (March). Photocopy. Stoks, F.G. (1981). "Assessing Urban Public Space Environments for Danger of Violent Crime." Doctoral dissertation, University of Wash- ington, Seattle. Suttles. G.D. (1968). The Social Order of the Slum: Ethnicity and Territory in the Inner City. Chicago, IL: University of Chicago Press. Taylor, R.B., S.D. Gottfredson and S. Brower (1984). "Block Crime and Fear: Defensible Space, Local Social Ties, and Territorial Functioning." Journal ofResearch in Crime and Delinquency 21:303 -31. Thrasher, F.M. (1927). The Gang: A Study of 1,313 Gangs in Chicago. Chicago, IL: Phoenix Books. (Abridged ed., 1963). Webb, B. and G. Laycock (1992). Reducing Crime on the London Under ground: An Evaluation of Three Pilot Projects. London, UK Home Office. Weisburd, D. and L. Green (1994). "Defining the Street Level Drug Market." In: Doris Layton MacKenzie and Craig Uchida (eds.), Drugs and Crime: Evaluating Public Policy Initiatives. Newbury Park, CA: Sage. i 1995). "Policing Drug Hotspots: The New Jersey City DMA Experi- ment." Justice Quarterly (forthcoming). Crime Places in Crime Theory 33 end D. Ross (1994). "Crime in Street Level Drug Markets: A Spatial Analysis." Criminologie 27:49 -67. L. Maher and L.W. Sherman (1992). "Contrasting Crime General and Crime Specific Theory: The Case of Hot Spots of Crime." In: F Adler and W.S. Laufer (eds.), Advances in Criminological TheonJ, Vol. 4. New Brunswick, NJ: Transaction Publishers. White, G.F. (1990). "Neighborhood Permeability and Burglary Rates." Jus- tice Quarterly 7:57 -67. Wikstrom, P.H. (1995). 'Preventing City Center Street Crimes." In: M. Tomy and D. P. Farrington (eds.), Building a Safer Society: Strategic Ap- proaches to Crime Prevention. Crime and Justice Annual, Vol. 19. Chicago, IL: University of Chicago Press. Wilson, J.V. (1990). Gainesville Convenience Store Ordinance: Fndings of Fact. Conclusions and Recommendations. Washington, DC: Crime Control. Research Corporation. (Photocopy.) Exhibit B Doe v. Miller, 405 F.3d 700 (2005) 405 F.3d boo United States Court of Appeals, Eighth Circuit. John DOE, I, on their own behalf and as representatives of the class of all sex offenders in the State of Iowa; John Doe, II, on their own behalf and as representatives of the class of all sex offenders in the State of Iowa; John Doe, III, on their own behalf and as representatives of the class of all sex offenders in the State of Iowa, Appellees, V. Toni MILLER, Iowa Attorney General; Appellant. J. Patrick White, as representatives of the class of all county, attorneys in Iowa; Michael Wolf, as representatives of the class of all county attorneys in Iowa, Defendants. No. 04 -1568. Submitted: Nov. 4, 2004. 1 Filed: April 29, 2005. Rehearing and Rehearing En Banc Denied June 30, 2005. Synopsis Background: Sex offenders brought class action challenging constitutionality of Iowa statute that prohibited person who had committed criminal sex offense against minor from residing within two thousand feet of school or child care facility. The United States District Court for the Southern District of Iowa, Robert W. Pratt, J., granted judgment for sex offenders, 298 F.Supp.2d 844. State appealed. Holdings: The Covet of Appeals, Colloton, Circuit Judge, held that: Dl statute did not violate due process clause of Fourteenth Amendment on its face for lack of notice; t �1 statute did not foreclose opportunity to be heard; (31 statute did not contravene principles of procedural due process; [6] statute did not implicate alleged right to intrastate travel; f1 prohibition was rational way of promoting safety of children; and 181 statute was not retroactive criminal punishment in violation of ex post facto clause. Reversed and remanded. Melloy, Circuit Judge, filed opinion concurring and dissenting. West Headnotes (22) t�1 Constitutional Law ,Classification and Registration; Restrictions and Obligations Mental Health Sex Offenders Iowa statute, that prohibited persons who had committed criminal sex offense against minor from residing within two thousand feet of school or child care facility, did not violate due process clause of Fourteenth Amendment on its face for lack of notice, although some cities were unable to provide sex offenders with information about location of all schools and registered child care facilities and it was difficult to measure restricted areas, which were measured "as the crow flies" from school or child care facility. U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A. 5 Cases that cite this headnote t41 statute did not infringe upon constitutional liberty 1a1 ; Constitutional Law Vagueness interest relating to matters of marriage and family in fashion that required heightened scrutiny; The judicial doctrine of vagueness under the due ts1 process clause requires that a criminal statute statute did not interfere with constitutional right to define the criminal offense with sufficient travel; definiteness that ordinary people can understand tl v.,Next © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 Doe v. Miller, 405 F.3d 700 (2005) what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. U.S.C.A. Const.Anrend 14. 131 Criminal Law ;Certainty and Definiteness A criminal statute is not vague on its face unless it is impermissibly vague in all of its applications; the possibility that an individual might be prosecuted in a particular case in a particular community despite his best efforts to comply with the restriction is not a sufficient reason to invalidate the entire statute. U.S.C.A. Const.Amend 14. I Cases that cite this headnote 1 �1 Constitutional Law °5 Conduct of Police and Prosecutors in General Due process does not require that independently elected county attorneys enforce each criminal statute with equal vigor, and the existence of different priorities or prosecution decisions among jurisdictions does not violate the Constitution. U.S.C.A. Const.Amend 14. 151 Constitutional Law :Classification and Registration; Restrictions and Obligations Mental Health Sex Offenders Iowa statute, that prohibited persons who had committed criminal sex offense against minor from residing within two thousand feet of school or child care facility, did not foreclose opportunity to be heard under due process clause of Fourteenth Amendment, although statute did not provide process for individual determinations of dangerousness; due process did not entitle any person legislatively classified as sex offender to hearing to establish fact that was not material under the state statute. U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A. 2 Cases that cite this headnote 161 Constitutional Law z Classification and Registration; Restrictions and Obligations States are not barred by principles of procedural due process from drawing classifications among sex offenders and other individuals. U.S.C.A. Const.Amend 14. I Cases that cite this headnote lrl Constitutional Law *Classification and Registration; Restrictions and Obligations Mental Health yo —Sex Offenders Iowa statute, that prohibited persons who had committed criminal sex offense against minor from residing within two thousand feet of school or child care facility, did not contravene principles of procedural due process under Fourteenth Amendment, since restriction applied to all offenders who had been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might have been proved in individualized hearings. U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A. 12 Cases that cite this headnote 181 Constitutional Law ,Classification and Registration; Restrictions and Obligations Iowa statute, that prohibited persons who had dar.Next © 2014 Thomson Reuters. No claim to original U.S. Government Works. Doe v. Miller, 405 F.3d 700 (2005) 25 AI R.6lh 695 committed criminal sex offense against minor fiom residing within two thousand feet of school or child care facility, did not infringe upon constitutional liberty interest relating to matters of marriage and family in fashion that required heightened scrutiny; although statute restricted location of sex offender's residence, statute did not directly regulate family relationship or prevent any family member from resid'ung with sex offender in residence in manner consistent with statute. U.S.C.A. Const.Annend 14; I.C.A. § 692A.2A. 10 Cases that cite this headnote 191 Constitutional Law Rights and Interests Protected; Fundamental Rights Substantive due process analysis must begin with a careful description of the asserted right, for the doctrine of judicial self - restraint requires a court to exercise the utmost care whenever it is asked to break new ground in that field. U.S.C.A. Const.Amend 14. 3 Cases that cite this headnote Dol Constitutional Law Criminal Law Constitutional Law =.Criminal Law Constitutional Law =�= Classification and Registration; Restrictions and Obligations Mental Health Sex Offenders Iowa statute, that prohibited persons who had committed criminal sex offense against minor from residing within two thousand feet of school or child care facility, did not interfere with right of sex offenders to travel under substantive due process, Privileges and Immunities Clause of Article IV and Privileges or Immunities Clause of Fourteenth Amendment, since statute did not impose any obstacle to sex offender's entry into Iowa, it did not erect actual barrier to interstate movement, and it did not treat nonresidents who visited Iowa any differently than current residents or discrhninate against citizens of other states who wished to establish residence in Iowa. U.S.C.A. Coast. Art. 4, § 2, cl. 2; U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A. 6 Cases that cite this headnote III Constitutional Law ,L-Sex Offenders Mental Health w -Sex Offenders Iowa statute, that prohibited persons who had committed criminal sex offense against minor from residing within two thousand feet of school or child care facility, did not implicate alleged right to intrastate travel, since statute did not prevent sex offender from entering or leaving any part of state, including areas within 2000 feet of a school or child care facility, and it did not erect any actual barrier to intrastate movement. I.C.A. § 692A.2A. 15 Cases that cite this headnote 1121 Constitutional Law Personal Liberty Mental Health �;— Sex Offenders Sex offenders, who were subject to Iowa statute that prohibited persons who had connnitted criminal sex offense against minor from residing within two thousand feet of school or child care facility, did not show that United States Constitution established right to "live where you want" that would have required strict scrutiny of state's residency restrictions, where sex offenders did not develop any argument that right to "live where you want" was deeply rooted hn nation's history and tradition or that "living where you want" was implicit in concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. I.C.A. § %'v stl, =.raNexf © 2014 Thomson Reuters. No claim to original U.S. Government Works. Doe v. Miller, 405 F.3d 700 (2005) __ _ _. , _ 25 A.L.R.6th 695 692A.2A. 1151 Criminal Law 6 Cases that cite this headnote ,:Compelling Self - Incrimination Iowa statute, that prohibited persons who had II +I Iowa statute, that prohibited persons who had Mental Health committed criminal sex offense against minor pal from residing within two thousand feet of school Mental Health or child care facility, did not violate right against V=Sex Offenders self - incrimination under Fifth Amendment, Iowa statute, that prohibited persons who had since statute did not require any offender to from residing within two thousand feet of school provide any information that might have been committed criminal sex offense against minor used in criminal case; although separate section from residing within two thousand feet of school of Iowa Code required sex offender to register or child care facility, was rational way of his address with county sheriff, offenders did promoting safety of children; although no not challenge constitutionality of registration scientific study supported legislature's requirement or seek injunction against its conclusion that excluding sex offenders from enforcement. U.S.C.A. Const.Amends. 5, 14; residing within 2000 feet of school or child care I.C.A. § 692A.2A. facility was likely to enhance safety of children, I.C.A. § 692A.2A. state legislature had authority to make judgments about best means to protect health 3 Cases that cite this headnote and welfare of its citizens in area where precise 16 Cases that cite this headnote statistical data was unavailable and human behavior was necessarily unpredictable. I.C.A. § 692A.2A. 1171 Constitutional Law [161 Constitutional Law -- '--Sex Offenders 5 Cases that cite this headnote Mental Health Sex Offenders Iowa statute, that prohibited persons who had II +I committed criminal sex offense against minor Mental Health from residing within two thousand feet of school Sex Offenders or child care facility, was not retroactive criminal punishment in violation of ex post facto Iowa statute, that prohibited persons who had clause, since statute was designed be committed criminal sex offense against minor and regulatory, and sex offenders e from residing within two thousand feet of school could not could not establish by clearest proof' that or child care facility, rationally advanced Iowa's choice was excessive in relation to its legitimate govemmnental purpose of promoting legitimate regulatory purpose given challenge in safety of children, since convicted sex offenders determining precisely what distance was best had distinguishing characteristics relevant to suited to minimize risk to children without interests that state had authority to implement, unnecessarily restricting sex offenders and Iowa General Assembly and Governor did not difficult policy judgments inherent in that act based merely on negative attitudes toward, choice. U.S.C.A. Const. Art. 1, § 10, cl. 1; fear of, or bare desire to harm politically I.C.A. § 692A.2A. unpopular group, and policymakers of Iowa were institutionally equipped to set such parameters and were entitled to employ 16 Cases that cite this headnote "common sense." I.C.A. § 692A.2A. 1 Cases that cite this headnote 1171 Constitutional Law r� >tt::�.eNexC © 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 Doe v. Miller, 405 F.3d 700 (2005) __.. 25 A.L.R.6th 695 Punishment in General States are prohibited by the ex post facto clause from enacting laws that increase punishment for criminal acts after they have been committed. U.S.C.A. Const. Art. 1, § 10, cl. 1. 3 Cases that cite this headnote 118] Constitutional Law Penal Laws in General When determining whether a state statute violates the Ex Post Facto Clause, a law is necessarily punitive if the legislature intended criminal punishment; however, if the legislature intended its law to be civil and non- punitive, only the clearest proof that the law is nonetheless so punitive either in purpose or effect as to negate the state's nonpunitive intent will transform a civil regulatory measure into a criminal penalty. U.S.C.A. Const. Art. 1, § 10, cl. 1. 8 Cases that cite this headnote 1191 Constitutional Law r— Constitutional Prohibitions in General On an Ex Post Facto Clause claim, where a legislative restriction is an incident of the state's power to protect the health and safety of its citizens, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment. U.S.C.A. Const. Art. 1, § 10, cl. 1. 2 Cases that cite this headnote 1201 Constitutional Law v—Purpose significant factor in the ex post facto analysis; a statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. U.S.C.A. Const. Art. 1, § 10, cl. 1. 8 Cases that cite this headnote 1211 Constitutional Law = -Power to Enact The Ex Post Facto Clause does not preclude a state from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences, and, therefore, the absence of a particularized risk assessment does not necessarily convert a regulatory law into a punitive measure. U.S.C.A. Const. Ail. 1, § 10, cl. 1. 1 � �1 Constitutional Law - Constitutional Prohibitions in General The excessiveness inquiry of ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy, but rather an inquiry into whether the regulatory means chosen are reasonable in light of the nonpunitive objective. U.S.C.A. Const. Art. 1, § 10, cl. 1. 2 Cases that cite this headnote West Codenotes Negative Treatment Reconsidered I.C.A. § 692A.2A. Attorneys and Law Firms Whether the regulatory scheme has a rational connection to a nonpunitive purpose is the most 104 Gordon Eugene Allen, argued, Des Moines, IA Y © 2014 Thomson Reuters. No claim to original U.S Government Works. 5 Doe v. Miller, 405 F.3d 700 (2005) 25 A.LR.6th 895 (Thomas J. Miller, on the brief), for appellant. Philip B. Mears, argued, Iowa City, IA (Randall Wilson, on the brief), for appellee. Before RILEY, MELLOY, and COLLOTON, Circuit Judges. Opinion COLLOTON, Circuit Judge. In 2002, in an effort to protect children in Iowa from the risk that convicted sex offenders may reoffend in locations close to their residences, the Iowa General Assembly passed, and the Governor of Iowa signed, a bill that prohibits a person convicted of certain sex offenses involving minors from residing withiri 2000 feet of a school or a registered child care facility. The district court declared the statute unconstitutional on several grounds and enjoined the Attorney General of Iowa and the ninety-nine county attorneys in Iowa from enforcing the prohibition. Because we conclude that the Constitution of the United States does not prevent the State of Iowa from regulating the residency *705 of sex offenders in this manner in order to protect the health and safety of the citizens of Iowa, we reverse the judgment of the district court. We hold unanimously that the residency restriction is not unconstitutional on its face. A majority of the panel further concludes that the statute does not amount to unconstitutional ex post facto punishment of persons who committed offenses prior to July I, 2002, because the appellees have not established by the "clearest proof," as required by Supreme Court precedent, that the punitive effect of the statute overrides the General Assembly's legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety. Iowa Senate File 2197, now codified at Iowa Code § 692A.2A, took effect on July 1, 2002. It provides that persons who have been convicted of certain criminal offenses against a minor, including numerous sexual offenses involving a minor, shall not reside within 2000 feet of a school or registered child care facility. Iowa Code § 692A.2A(1) -(2). The law does not apply to persons who established a residence prior to July 1, 2002, or to schools or child care facilities that are newly located after July 1, 2002. Id. § 692A.2A(4)(c). Violations of the statute are punishable as aggravated misdemeanors. Iowa Code § 692A.2A(3).' Almost immediately after the law took effect, three named plaintiffs -sex offenders with convictions that predate the law's effective date -filed suit asserting that the statute is unconstitutional on its face. The district court certified their action as a class action, with a plaintiff class that includes all individuals to whom Iowa Code § 692A.2A applies who are currently living in Iowa or who wish to move to Iowa, except for any person who currently is the subject of a prosecution under § 692A.2A. The named plaintiffs, identified as various "John Does," had committed a range of sexual crimes, including indecent exposure, "indecent liberties with a child," sexual exploitation of a minor, assault with intent to commit sexual abuse, lascivious acts with a child, and second and third degree sexual abuse, all of which brought them within the provisions of the residency restriction. A defendant class, including all *706 of Iowa's county attorneys, also was certified. During a two -day bench trial, plaintiffs presented evidence concerning the enforcement of § 692A.2A, including maps that had been produced by several cities and counties identifying schools and child care facilities and their corresponding restricted areas. After viewing these maps and hearing testimony from a county attorney, the district court found that the restricted areas in many cities encompass the majority of the available housing in the city, thus leaving only limited areas within city limits available for sex offenders to establish a residence. In smaller towns, a single school or child care facility can cause all of the incorporated areas of the town to be off limits to sex offenders. The court found that unincorporated areas, small towns with no school or child care facility, and rural areas remained unrestricted, but that available housing in these areas is "not necessarily readily available." Doe v. Hiller, 298 F.Supp.2d 844, 851 (S.D.Iowa 2004)' Plaintiffs also presented evidence of their individual experiences in seeking to obtain housing that complies with the 2000 -foot restriction. Several of the plaintiffs, including John Does III, IV, XV, and XVIII, have friends or relatives with whom they would like to live, but whose homes are within 2000 feet of a school or child care facility. Many, such as John Does VII, X, XI, XII, XIII, XIV, and XVIII, live in homes that are currently compliant, either because they were established prior to July 1, 2002, or because the homes are outside the 2000 -foot restricted areas. These plaintiffs, however, testified that they would like to be able to move into a restricted area. Still others, John Does II, VI, VIII, IX, IPV= l�.­ Aext © 2014 Thomson Reuters. No claim to original U.S. Government Works. Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.6lh 695 XV, and XVI, are living in non - compliant residences that they wish to maintain. Plaintiffs testified that in many cases they had a difficult time obtaining housing that was not within 2000 feet of a school or child care center. John Doe VII testified that he investigated 40 residences, but was unable to find any housing that would not place him in violation of § 692A.2A. The evidence also showed, however, that while the residency restriction may have exacerbated a housing problem for the plaintiffs, not all of their difficulty was caused by the statute. For example, John Doe II had difficulty finding housing in part because of his credit problems. John Doe XIV testified that the only available compliant housing in his hometown, Waterloo, was too expensive, so he and his wife purchased a rural home about 45 miles away. The mother of John Doe IV made efforts to help her son find housing, and she testified that she was able to find two potential residences for her son, but neither residence had any vacant units. John Doe VI was renting an apartment in compliance with § 692A.2A, but had to move out when the landlord decided that he did not want to rent to a sex offender. Similarly, John Does VIII and XI each found at least one possible compliant apartment, but their applications were denied because of their x707 criminal records. In apparent contrast to this testimony from the plaintiffs, Dudley Allison, a parole and probation officer, testified that while the statute made it more difficult for sex offenders to find housing, "virtually everyone" among the covered parolees and probationers whom he supervised between July 2002 and July 2003 was able to locate housing in compliance with the statute. (T. Tr. at 285). In addition to evidence regarding the burden that § 692A.2A places on sex offenders, both plaintiffs and defendants presented expert testimony about the potential effectiveness of a residency restriction in preventing offenses against minors. The State presented the testimony of Mr. Allison, a parole and probation officer who specialized in sex offender supervision. Allison described the process of treating sex offenders and his efforts at preventing recidivism by identifying the triggers for the original offense, and then imposing restrictions on the residences or activities of the offender. According to Allison, restrictions on the proximity of sex offenders to schools or other facilities that might create temptation to reoffend are one way to minimize the risk of recidivism. In the parole and probation context, Allison also has authority to limit offenders' activities in more specific ways, and he testified that he attempts to remove temptation by preventing offenders from working in jobs where they would have contact with potential victims or from living near parks or other areas where children might spend time unsupervised. In addition to the limits that he imposes on offenders under his supervision, Allison also testified that there is "a legitimate public safety concern" in where unsupervised sex offenders reside. In Allison's view, reoffense is "a potential danger forever." The State also introduced the transcript of hearing testimony by Dr. William McEchron, a psychologist with a general practice that includes sex offender patients. Like Allison, Dr. McEchron testified that there is no cure for sex offenders and that "there are never any guarantees that they might not reoffend." In his view, the "biggest risk is what's going on inside the individual," but reducing the opportunity and the temptation to reoffend is extremely important to treatment. He explained that because there are "very high rates of re- offense for sex offenders who had offended against children," he believed it would be appropriate to restrict places where sex offenders might come into contact with children. He thought the appropriateness of such a restriction was "common sense," although he said there were insufficient data to know "where to draw the marks." Dr. McEchron also testified, however, that in his view, life -long restrictions like § 692A.2A do not aid in the treatment process, and could even foster negative attitudes toward authority and depression in offenders who view the law as unfair. The plaintiffs offered the testimony of Dr. Luis Resell, a psychologist with experience in sex offender treatment. Dr. Resell estimated that the recidivism rate for sex offenders is between 20 and 25 percent, and like Allison and Dr. McEchron, stated his belief that the key to reducing the risk of recidivism is identifying the factors that led to the offender's original offense and then helping the offender to deal with or avoid those factors in the future. Dr. Resell testified that reducing a specific sex offender's access to children was a good idea, and that "if you remove the opportunity, then the likelihood of reoffense is decreased." He did not believe, however, that "residential proximity makes that big of a difference." Moreover, Dr. Resell thought that a 2000 -foot limit was "extreme." Like Dr. McEchron, he worried that the law might be counterproductive *708 to the offender's treatment goals by causing depression and potentially removing the offender from his "support system." After hearing the testimony of all three experts and of the individual plaintiffs, the district court declared that § 692A.2A was unconstitutional on several grounds, to wit: that it was an unconstitutional ex post facto law with respect to offenders who committed an offense prior to July 1, 2002; that it violated the plaintiffs' rights to avoid t :'rsala,.aNexf © 2014 Thomson Reuters. No claim to original U.S. Government Works. Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.6th 695 self - incrimination because, coupled with registration requirements elsewhere in Chapter 692A, it required offenders to report their addresses even if those addresses were not in compliance with § 692A.2A; that it violated procedural due process rights of the plaintiffs; and that it violated the plaintiffs' rights under the doctrine of substantive due process, because it infringed fundamental rights to travel and to "privately choose how they want to conduct their family affairs," and was not narrowly tailored to serve a compelling state interest. Although the district court believed the law was punitive, the court rejected the plaintiffs' final argument that the law imposed cruel and unusual punislnnent in violation of the Eighth Amendment. Having found the statute unconstitutional, the district court issued a permanent injunction against enforcement. Doe v. lblillcr, 298 F.Supp.2d at 880. it. PI We first address the contention that § 692A.2A violates the rights of the covered sex offenders to due process of law under the Fourteenth Amendment. The appellees (to whom we will refer as "the Does ") argue that the statute is unconstitutional because it fails to provide adequate notice of what conduct is prohibited, and because it does not require an individualized determination whether each person covered by the statute is dangerous. This claim relies on what is known as "procedural due process." I'l The Due Process Clause provides that no State shall deprive any person of life, liberty, or property without due process of law. The requirement of "due process" has led to the judicial doctrine of vagueness, which requires that a criminal statute "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). I'l I'l There is no argument here that the words of the statute are unconstitutionally vague. Rather, the Does contend that they are deprived of notice required by the Constitution because some cities in Iowa are unable to provide sex offenders with information about the location of all schools and registered child care facilities, and because it is difficult to measure the restricted areas, which are measured "as the crow flies" from a school or child care facility. We disagree that these potential problems render the statute unconstitutional on its face. A criminal statute is not vague on its face unless it is "impermissibly vague in all of its applications," Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), and the possibility that an individual might be prosecuted in a particular case in a particular community despite his best efforts to comply with the restriction is not a sufficient reason to invalidate the entire statute. A sex offender subject to prosecution under those circumstances may seek to establish a violation of due process through a challenge to enforcement of the statute as applied to him in a specific case. Nor do we believe that the potential for varied enforcement of the restriction, x709 which was cited by the district court, 298 F.Supp.2d at 878, justifies invalidating the entire regulatory scheme. Due process does not require that independently elected county attorneys enforce each criminal statute with equal vigor, and the existence of different priorities or prosecution decisions among jurisdictions does not violate the Constitution. I'l I'[ The Does also argue that § 692A.2A unconstitutionally forecloses an `opportunity to be heard" because the statute provides no process for individual determinations of dangerousness. This argument misunderstands the right to procedural due process. As the Supreme Court recently explained in connection with a comparable challenge to Connecticut's sex offender registration law, "even assuming, arguendo, that [the sex offender] has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the [state] statute." Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). States "are not barred by principles of `procedural due process' from drawing" classifications among sex offenders and other individuals. Id. at 8, 123 S.Ct. 1160 (quoting ibliehael H. v. Gerald D., 491 U.S. 110, 120, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion)) (emphasis in original). I'l We likewise conclude that the Iowa residency restriction does not contravene principles of procedural due process under the Constitution. The restriction applies to all offenders who have been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might be proved in individualized hearings. Once such a legislative classification has been drawn, additional procedures are unnecessary, because the statute does not provide a potential exemption for individuals who seek to prove that they are not individually dangerous or likely to offend against neighboring schoolchildren. Unless the Does can establish that the substantive rule established by the legislative classification conflicts with some provision of the Constitution, there is no requirement that the State - MrivJNexf © 2014 Thomson Reuters. No claim to original U.S. Government Works. Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.6lh 695 provide a process to establish an exemption from the legislative classification. /d at 7 -8, 123 S.Ct. 1160. Thus, the absence of an individualized hearing in connection with a statute that offers no exemptions does not offend principles of procedural due process. III. 181 The Does also assert that the residency restriction is unconstitutional under the doctrine of substantive due process. They rely on decisions of the Supreme Coat holding that certain liberty interests are so fundamental that a State may not interfere with them, even with adequate procedural due process, unless the infringement is "narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301 -02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The Does argue that several "fundamental rights" are infringed by Iowa's residency restriction, including tine "right to privacy and choice in family matters," the right to travel, and "the fundamental right to live where you want." The district court agreed that § 692A.2A infringed upon liberty interests that constitute fundamental rights, applied strict scrutiny to the legislative classifications, and concluded that the statute was unconstitutional. The Does first invoke "the right to personal choice regarding the family." They cite the Supreme Court's statement in Roherts v. United States Jaycees, 468 U.S. 609, 617 -18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), that "certain intimate human relationships must be secured against undue intrusion by the State because of the role x710 of such relationships in safeguarding the individual freedom that is central to our constitutional scheme," and the Court's discussion of "marital privacy" in Griswold v. Connecticut, 381 U.S. 479, 485 -86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). They also rely heavily on the Court's decision in Hoore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), which held unconstitutional a zoning ordinance that defined "family" in such a way as to prohibit a grandmother and her two grandsons from living together in an area designated for "single family" dwellings. A plurality of the Court in Moore reasoned that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment," and concluded that the governmental interests advanced by the city were insufficient to justify an ordinance that "slic[ed] deeply into the family itself." Id. at 498 -99, 97 S.Ct. 1932 (plurality opinion). Justice Stevens concurred in the judgment on other grounds. Id at 513 -21, 97 S.Ct. 1932. 191 We do not believe that the residency restriction of § 692A.2A implicates any fundamental right of the Does that would trigger strict scrutiny of the statute. In evaluating this argument, it is important to consider the Supreme Court's admonition that " `[s]ubstantive due process' analysis must begin with a careful description of the asserted right, for `[t]he doctrine of judicial self - restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.' " Flares, 507 U.S, at 302, 113 S.Ct. 1439 (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). While the Court has not directed that an asserted right be defined at the most specific level of tradition supporting or denying the asserted right, cf. =1lichael H v. Gerald D., 491 U.S. at 127 n. 6, 109 S.Ct. 2333 (1989) (opinion of Scalia, J.), the Does' characterization of a fundamental right to "personal choice regarding the family" is so general that it would trigger strict scrutiny of innumerable laws and ordinances that influence "personal choices" made by families on a daily basis. The Supreme Court's decision in Griswold and the plurality opinion in Moore did recognize unenumerated constitutional rights relating to personal choice in matters of marriage and family life, but they defined the recognized rights more narrowly, in terms of "intimate relation of husband and wife," Griswold, 381 U.S. at 482, 85 S.Ct. 1678, or "intrusive regulation" of "family living arrangements." Hoore, 431 U.S. at 499, 97 S.Ct. 1932 (plurality opinion). Unlike the precedents cited by the Does, the Iowa statute does not operate directly on the family relationship. Although the law restricts where a residence may be located, nothing in the statute limits who may live with the Does in their residences. The plurality in Moore emphasized this distinction, observing that tine impact on family was "no mere incidental result of the ordinance," because "[o]n its face [the ordinance] selects certain categories of relatives who may live together and declares that others may not" 431 U.S. at 498 -99, 97 S.Ct. 1932 (plurality opinion). Thus, the reasoning of the Moore plurality does not require strict scrutiny of a regulation that has an incidental or unintended effect on the family, Hameetnran v. City of Chicago, 776 F.2d 636, 643 (7th Cir.1985) (upholding requirement that firemen reside within city limits), or that "affects or encourages decisions on family matters" but does not force such choices. Gorrie v. Bowen, 809 F.2d 508, 523 (8th Cir.1987) (upholding regulation requiring that applications for public assistance for dependent children include siblings living in sane *711 household). Similarly, the Court in Griswold disclaimed authority to determine "the wisdom, need, and propriety" of all laws b`d sxl:rr, =NexC © 2014 Thomson Reuters. No claim to original U.S. Government Works. 9 Doe v. Miller, 405 F.3d 700 (2005) that touch social conditions, but held unconstitutional a state statute that "operate[d] directly on an intimate relation of husband and wife." 381 U.S, at 482, 85 S.Ct. 1678. While there was evidence that one adult sex offender in Iowa would not reside with his parents as a result of the residency restriction, that another sex offender and his wife moved 45 miles away from their preferred location due to the statute, and that a third sex offender could not reside with his adult child in a restricted zone, the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute. We therefore hold that § 692A.2A does not infringe upon a constitutional liberty interest relating to matters of marriage and family in a fashion that requires heightened scrutiny. 1101 The Does also assert that the residency restrictions interfere with their constitutional right to travel. The modern Supreme Court has recognized a right to interstate travel in several decisions, beginning with United States v. Guest, 383 U.S. 745, 757 -58, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and Shapiro v. Thompson, 394 U.S. 618, 629 -30, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The Court subsequently explained that the federal guarantee of interstate travel "protects interstate travelers against two sets of burdens: `the erection of actual barriers to interstate movement' and `being treated differently' from intrastate travelers." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 277, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (quoting Zabel v. Williams, 457 U.S. 55, 60 n. 6, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982)). Most recently, the Court summarized that the right to interstate travel embraces at least three different components: "the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). Although the district court, like some other courts, considered the first component of a right to interstate travel under the rubric of "substantive due process," the Supreme Court has not identified the textual source of that component. The Court has observed that the Articles of Confederation provided that "the people of each State shall have free ingress and regress to and from any other State," and suggested that this right "may simply have been `conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.' " Id. at 501 & n. 3, 119 S.Ct. 1518 (quoting Guest, 383 U.S. at 758, 86 S.Ct. 1170). The latter two components of the right identified in Saenz arise from the Privileges and Immunities Clause of Article IV, § 2, and the Privileges or Immunities Clause of the Fourteenth Amendment. Id. The Does argue that § 692A.2A violates this right to interstate travel by substantially limiting the ability of sex offenders to establish residences in any town or urban area in Iowa. They contend that the constitutional right to travel is implicated because the Iowa law deters previously convicted sex offenders from migrating from other States to Iowa. The district court agreed, reasoning that the statute "effectively bans sex offenders from residing in large sections of Iowa's towns and cities" 298 F.Supp.2d at 874. *712 We respectfully disagree with this analysis. The Iowa statute imposes no obstacle to a sex offender's entry into Iowa, and it does not erect an "actual barrier to interstate movement" Bray, 506 U.S. at 277, 113 S.Ct. 753 (internal quotation omitted). There is "free ingress and regress to and from" Iowa for sex offenders, and the statute thus does not "directly impair the exercise of the right to free interstate movement." Saenz, 526 U.S. at 501, 119 S.Ct. 1518. Nor does the Iowa statute violate principles of equality by treating nonresidents who visit Iowa any differently than current residents, or by discriminating against citizens of other States who wish to establish residence in Iowa. We think that to recognize a fundamental right to interstate travel in a situation that does not involve any of these circumstances would extend the doctrine beyond the Supreme Court's pronouncements in this area. That the statute may deter some out -of -state residents from traveling to Iowa because the prospects for a convenient and affordable residence are less promising than elsewhere does not implicate a fundamental right recognized by the Court's right to travel jurisprudence.' 1rr1 The Does also assert that § 692A.2A infringes upon a fundamental constitutional right to infra state travel. The Supreme Court has not decided whether there is a fundamental right to intrastate travel, see Memorial Hosp. v. 11aricopa County, 415 U.S. 250, 255 -56, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), although it observed long ago that under the Articles of Confederation, state citizens "possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom." United States v. Wheeler, 254 U.S. 281, 293, 41 S.Ct. 133, 65 L.Ed. 270 (1920). During the same era, the Court also cormnented that "the right of locomotion, =s,tir rdNexf 0 2014 Thomson Reuters. No claim to original U.S. Government Works. 10 Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.6th 6- 95 the right to remove from one place to another according to inclination, is an attribute of personal liberty ... secured by the 14th Amendment," Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186 (1900), but as the Third Circuit observed, "[i]t is unclear whether the travel aspect of cases like Fears can be severed from the general spirit of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), now thoroughly discredited, that was so prominent in the substantive due process analysis of that period." Lutz v. City of York, 899 F.2d 255, 266 (3d Ch.1990). Some of our sister circuits have recognized a fundamental right to intrastate *713 travel in the context of a "drug exclusion zone" that banned persons from an area of a city for a period of time, Johnson v. City of Cincinnati, 310 F.3d 484, 496 -98 (6th Cir.2002), an ordinance that outlawed `bruising" and thus limited the ability of persons to drive on certain major public roads, Lutz, 899 F.2d at 268, and a law that created a durational residency requirement as a condition of eligibility for public housing. King v. Nest, Rochelle rt/un. Hous. Auth., 442 F.2d 646, 647 -48 (2d Cir.1971). The Second Circuit, for example, reasoned that it would be "meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state." Id at 648; see also Johnson, 310 F.3d at 497 n. 4; Lutz, 899 F.2d at 261. Other decisions have held that there is no fundamental right to intrastate travel in the context of a bona fide residency requirement imposed as a condition of municipal employment. Andre v. Bd. of Trs. of rb /aywood, 561 F.2d 48, 52 -53 (7th Cir.1977); Wardwell v. Bd. of Edue., 529 F.2d 625, 627 (6th Cir.1976); Wright v. City of Jackson, 506 F.2d 900, 901 -02 (5th Cir.1975); see also Doe v. City of Lafayette, 377 F.3d 757, 770 -71 (7th Cir.2004) (en banc) (holding that city's ban of sex offender from all public parks did not implicate fundamental right to intrastate travel, where offender was "not limited in moving from place to place within his locality to socialize with friends and family, to participate in gainful employment or to go to the market to buy food and clothing "); Hutchins v. District of Columbia, 188 F.3d 531, 538 -39 (D.C.Cir.1999) (en banc) (holding that there is no fundamental right for juveniles to be in a public place without adult supervision during curfew hours). We find it unnecessary in this case to decide whether there is a fundamental right to intrastate travel under the Constitution, because assuming such a right is recognized, it would not require strict scrutiny of ys 692A.2A. The district court and the Does cite the Sixth Circuit's decision in Johnson for the proposition that there is a fundamental right to intrastate travel. Accepting that view for purposes of analysis, we believe that any fundamental right to intrastate travel would likely be "correlative" to the right to interstate travel discussed in Saenz, see Johnson, 310 F.3d at 497 n. 4, or would consist of a "right to travel locally through public spaces and roadways." Id at 498. Therefore, the Iowa statute would not implicate a right to intrastate travel for the same reasons that it does not implicate the right to interstate travel. The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement. In this sense, the Iowa law is comparable to the municipal residency requirements that have been held to implicate no f ndamental right to intrastate travel in Andre, Wardwell and Wright, and less restrictive on freedom of movement than the ban on access to public parks upheld under rational basis review in Doe v. City of Lafayette. By contrast, the decisions finding infringement of a fundamental right to intrastate travel have involved laws that trigger concerns not present here- interference with free ingress to and egress from certain parts of a State (Johnson and Lutz ) or treatment of new residents of a locality less favorably than existing residents (King ). I"I The Does also urge that we recognize a fundamental right "to live where you want." This ambitious articulation of a proposed unenumerated right calls to mind the Supreme Court's caution that we should proceed with restraint in the area *714 of substantive due process, because "[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action." Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Some thirty years ago, our court said "we cannot agree that the right to choose one's place of residence is necessarily a fundamental right," Prostrollo v. Univ. of S.D., 507 F.2d 775, 781 (8th Cir.1974), and we see no basis to conclude that the contention has gained strength in the intervening years. The Supreme Court recently has restated its reluctance to "expand the concept of substantive due process because guideposts for responsible decisiomnaking in this uncharted area are scarce and open- ended," Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061), and the Does have not developed any argument that the right to "live where you want" is "deeply rooted in this Nation's history and tradition," id. at 721, 117 S.Ct. 2258 (quoting rbloore, 431 U.S. at 503, 97 S.Ct. 1932 (plurality opinion)) or "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if [it] were sacrificed." Id. (quoting Palko v. Connecticut, 302 '.'Ae tlwdNexf © 2014 Thomson Reuters. No claim to original U.S. Government Works. 11 Doe v. Miller, 405 F.3d 700 (2005) 25 A. L. R.6th 695 U.S. 319, 325, 326, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). We are thus not persuaded that the Constitution establishes a right to "live where you want" that requires strict scrutiny of a State's residency restrictions. 1 °I Because. § 692A.2A does not implicate a constitutional liberty interest that has been elevated to the status of "fundamental right," we review the statute to determine whether it meets the standard of "rationally advancing some legitimate governmental purpose." Flores, 507 U.S. at 306, 113 S.Ct. 1439. The Does acknowledge that the statute was designed to promote the safety of children, and they concede that this is a legitimate state interest. They also allow that perhaps "certain identifiable sex offenders should not live right across the street from a school or perhaps anywhere else where there are children." (Appellees' Br. at 51). The Does contend, however, that the statute is irrational because there is no scientific study that supports the legislature's conclusion that excluding sex offenders from residing within 2000 feet of a school or child care facility is likely to enhance the safety of children. We reject this contention because we think it understates the authority of a state legislature to make judgments about the best means to protect the health and welfare of its citizens in an area where precise statistical data is unavailable and human behavior is necessarily unpredictable. Although the Does introduced one report from the Minnesota Department of Corrections finding "no evidence in Minnesota that residential proximity of sex offenders to schools or parks affects reoffense," this solitary case study -which involved only thirteen reoffenders released from prison between 1997 and 1999 -does not make irrational the decision of the Iowa General Assembly and the Governor of Iowa to reach a different predictive judgment for Iowa. As the district court observed, twelve other States have enacted some form of residency restriction applicable to sex offenders' There can be *715 no doubt of a legislature's rationality in believing that "[sjex offenders are a serious threat in this Nation," and that "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re- arrested for a new rape or sexual assault" Conn. Dep't of Pub. Safety, 538 U.S. at 4, 123 S.Ct. 1160 (alterations in original) (quoting 11cKune v. Lile, 536 U.S. 24, 32 -33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion)). The only question remaining is whether, in view of a rationally perceived risk, the chosen residency restriction rationally advances the State's interest in protecting children. 11 +1 We think the decision whether to set a limit on proximity of "across the street' (as appellees suggest), or 500 feet or 3000 feet (as the Iowa Senate considered and rejected, see S. Journal 79, 2d Sess., at 521 (Iowa 2002)), or 2000 feet (as the Iowa General Assembly and the Governor eventually adopted) is the sort of task for which the elected policymaking officials of a State, and not the federal courts, are properly suited. The legislature is institutionally equipped to weigh the benefits and burdens of various distances, and to reconsider its initial decision in light of experience and data accumulated over time. The State of Alabama, for example, originally adopted a residency restriction of 1000 feet, but later increased the distance to 2000 feet, Ala.Code § 15- 20- 26(a); see also 2000 Ala. Acts 728, § 1; 1999 Ala. Acts 572, § 3, while the Minnesota legislature apparently followed the recommendation of the State's Department of Corrections that no blanket proximity restriction should be adopted. (Appellee's App. at 338). Where individuals in a group, such as convicted sex offenders, have "distinguishing *716 characteristics relevant to interests the State has authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 -42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The record does not support a conclusion that the Iowa General Assembly and the Governor acted based merely on negative attitudes toward, fear of, or a bare desire to harm a politically unpopular group. Cf. Cleburne, 473 U.S. at 448, 105 S.Ct. 3249; Dep't ofAgric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Sex offenders have a high rate of recidivism, and the parties presented expert testimony that reducing opportunity and temptation is important to minimizing the risk of reoffense. Even experts in the field could not predict with confidence whether a particular sex offender will reoffend, whether an offender convicted of an offense against a teenager will be among those who "cross over" to offend against a younger child, or the degree to which regular proximity to a place where children are located enhances the risk of reoffense against children. One expert in the district court opined that it is just `common sense" that limiting the frequency of contact between sex offenders and areas where children are located is likely to reduce the risk of an offense. (Appellant's App, at 165). The policynrakers of Iowa are entitled to employ such "common sense," and we are not persuaded that the means selected to pursue the State's legitimate interest are without rational basis. �,Vd 1(;;wNexl © 2014 Thomson Reuters. No claim to original U.S. Government Works. 12 Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.6th 695 IV. n" The Does next argue that the residency restriction, "in combination with" the sex offender registration requirements of § 692A.2, unconstitutionally compels sex offenders to incriminate themselves in violation of the Fifth and Fourteenth Amendments. The district court concluded that a sex offender who establishes residence in a prohibited area must either register his cunent address, thereby "explicitly admitting] the facts necessary to prove the criminal act," or "refuse to register and be similarly prosecuted." 298 F.Supp.2d at 879. The court then held that § 692A.2A "unconstitutionally requires sex offenders to provide incriminating evidence against themselves," and enjoined enforcement of the residency restriction on this basis as well. We disagree that the Self- Incrimination Clause of the Fifth Amendment renders the residency restriction of § 692A.2A unconstitutional. Our reason is straightforward: the residency restriction does not compel a sex offender to be a witness against himself or a witness of any kind. The statute regulates only where the sex offender may reside; it does not require him to provide any information that might be used against him in a criminal case. A separate section of the Iowa Code, § 692A.2, requires a sex offender to register his address with the county sheriff. The Does have not challenged the constitutionality of the registration requirement, or sought an injunction against its enforcement, and whatever constitutional problem may be posed by the registration provision does not justify invalidating the residency restriction. None of the authorities cited by the Does supports invalidation of a substantive rule of law because a reporting or registration requirement allegedly compels a person in violation of that substantive rule to incriminate hhnself. The Supreme Court held in x717 ,Yrchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), that a gambler was privileged under the Fifth Amendment not to register his occupation as one in the business of accepting wagers, not to pay the required occupational tax, and not to pay a wagering excise tax, because these submissions would create a real and appreciable hazard of self - incrimination for the gambler. The Court never suggested, however, that the Self - Incrimination Clause prevented the government from criminalizing wagering or gambling. Similarly, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court's holding that a plea of self - incrimination was a complete defense in a prosecution for non - compliance with provisions requiring payment of a tax on marijuana imported into the United States did not imply that state laws prohibiting the possession of marijuana were somehow unconstitutional. Id. at 29, 89 S.Ct. 1532. And in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), where the Court held unconstitutional under the Fifth Amendment a requirement that members of the Communist Party file a registration statement with the Attorney General, it was never intimated that the registration requirement rendered unconstitutional Section 4(a) of the Subversive Activities Control Act, under which Albertson might have been prosecuted as a result of the registration. Even had the Does challenged the sex offender registration statute, moreover, we believe that a self - incrimination challenge to the registration requirements would not be ripe for decision. Unlike Albertson, where the petitioners had asserted the privilege against self - incrimination on multiple occasions, the Attorney General of the United States had rejected their claims, and specific orders requiring the petitioners to register had been issued, 382 U.S. at 75, 86 S.Ct. 194, the process with respect to enforcement of the Iowa sex offender registration statute in conjunction with the residency restriction is far less developed. The record does not show whether any of the plaintiffs has registered with the county sheriff an address that is prohibited by § 692A.2A, whether any of the county attorneys or the Attorney General would seek to use registration information to further a criminal prosecution for violation of the residency restriction (rather than merely as a regulatory mechanism to bring sex offenders into compliance with the statute),' or whether the prosecuting authorities would recognize a refusal to register as a valid assertion of the privilege against self - incrimination (and thus decline to prosecute a sex offender for failing to register a prohibited residence). We think that under these circumstances, a self - incrimination challenge to the registration statute would be premature. See Communist Party v. Subversive Activities Control Bd, 367 U.S. 1, 106 -10, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); cf Selective Sere. Sys. v. rblinn. Pub. Interest Research Group, 468 U.S. 841, 858, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). If and when there is a prosecution for violation of the residency restriction in which the prosecution makes use of a sex offender's registration, a prosecution for failure to register a prohibited address, or some other basis such as in Albertson to say that the x718 dispute is ripe, then the self - incrimination issue will be joined. It would then be appropriate to consider such questions as whether the registration requirement as applied falls under the rule of cases such as Marchetti and Albertson, where the Fifth Amendment was held to prohibit incriminating 0 2014 Thomson Reuters. No claim to original U.S. Government Works. 13 Doe v. Miller, 405 F.3d 700 (2005) 25 A.LR.6lh 695 registration or reporting requirements duetted at persons "inherently suspect of criminal activities," Albertson, 382 U.S. at 79, 86 S.Ct. 194, or whether the public need for information about convicted sex offenders and the noncriminal regulatory purpose for securing the information might pennit enforcement of the requirement consistent with the Fifth Amendment. Cf. Baltimore City Dep't ofSoc. Sells. v. Bottknight, 493 U.S. 549, 557 -59, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990); California v. Byers, 402 U.S. 424, 431 -34, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971) (plurality opinion); id. at 457 -58, 91 S.Ct. 1535 (Harlan, J., concurring in the judgment). At this point, we conclude that the Does' self - incrimination claim is both misdirected and premature. M 1161 1171 1181 A final, and narrower, challenge advanced by the Does is that § 692A.2A is an unconstitutional ex post facto law because it imposes retroactive punishment on those who committed a sex offense prior to July 1, 2002. The Er Post Facto Clause of Article I, Section 10 of the Constitution prohibits the States from enacting laws that increase punishment for criminal acts after they have been committed. See generally Calder v. Brill, 3 U.S. 386, 390, 3 Dail. 386, t L.Ed. 648 (1798) (Chase, J., seriatim). In determining whether a state statute violates the Er Post Facto Clause by imposing such punishment, we apply.the framework outlined in Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), where the Supreme Court considered an ex post facto challenge to an Alaska statute requiring sex offenders to register. Under that framework, we must first "ascertain whether the legislature meant the statute to establish `civil' proceedings." Id (internal quotation omitted). If the legislature intended criminal punishment, then the legislative intent controls the inquiry and the law is necessarily punitive. Id. If, however, the legislature intended its law to be civil and nonpunitive, then we must determine whether the law is nonetheless "so punitive either in purpose or effect as to negate" the State's nonpunitive intent. Id (internal quotations and citations omitted). "[Olnly the clearest proof' will transform what the legislature has denominated a civil regulatory measure into a criminal penalty. Id. 1191 The district court found that in passing the residency restriction of § 692A.2A, the Iowa General Assembly intended to create "a civil, non- punitive statutory scheme to protect the public." 298 F.Supp.2d at 868. The Does do not dispute this conclusion on appeal, and we agree that the legislature's intent was not punitive. Although Iowa Code § 692A.2A does not contain any clear statement of purpose, the residency restriction is codified as part of Chapter 692A, together with a registration system that the Supreme Court of Iowa has declared to have a purpose of "protect[ing] society" and to be a nonpunitive, regulatory law. In Interest of &UXI., 558 N.W.2d 405, 408 (Iowa 1997); State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997). "[W]here a legislative restriction is an incident of the State's power to protect the health and safety of its citizens, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment." Smith v. Doe, 538 U.S. at 93 -94, 123 S.Ct. 1140 (quoting *719 Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)) (internal marks omitted). We believe the available evidence leads most naturally to the inference that the restrictions in § 692A.2A are intended, like the restrictions elsewhere in the same chapter, to protect the health and safety of Iowa citizens. Therefore, we conclude that the purpose of the Iowa General Assembly in passing this law was regulatory and non - punitive. We must next consider whether the Does have established that the law was nonetheless so punitive in effect as to negate the legislature's intent to create a civil, non - punitive regulatory scheme. In this inquiry, we refer to what the Supreme Court described in Smith v. Doe as "useful guideposts" for determining whether a law has a punitive effect. In analyzing the effect of the Alaska sex offender registration law, the Court in Smith pointed to five factors drawn from Kennedy v. Mendoza - Martinez, 372 U.S. 144, 168 -69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as particularly relevant: whether the law has been regarded in our history and traditions as punishment, whether it promotes the traditional aims of punishment, whether it imposes an affirmative disability or restraint, whether it has a rational connection to a nonpunitive purpose, and whether it is excessive with respect to that purpose. Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140. These factors are "neither exhaustive nor dispositive," rd (quotation omitted), and while we consider them as an aid to our analysis, we bear in mind that the ultimate question always remains whether the punitive effects of the law are so severe as to constitute the "clearest proof' that a statute intended by the legislature to be nonpunitive and regulatory should nonetheless be deemed to impose es post facto punishment. Turning first to any historical tradition regarding residency restrictions, the Does argue that § 692A.2A is the effective equivalent of banishment, which has been regarded historically as a punishment. See Smith v. Doe, 538 U.S. at 98, 123 S.CL 1140. Banishment has been defined as " `punishment inflicted on criminals by e ° ° -.tt ;dNexC © 2014 Thomson Reuters. No claim to original U.S. Government Works. 14 Doe v. Miller, 405 F.3d 700 (2005) 2 6A - .L. R 6th 695 compelling them to quit a city, place, or country for a specified period of time, or for life,' " United States v. Ju Toy, 198 U.S. 253, 269 -70, 25 S.Ct. 644, 49 L.Ed. 1040 (1905) (Brewer, J., dissenting) (quoting Black's Lan, Dictionary ), or "expulsion from a country." Black's Lou, Dictionary 154, 614 (8th ed.2004). The Supreme Corot most recently explained that banished offenders historically could not `return to their original community," and that the banishment of an offender "expelled him from the community." Smith v. Doe, 538 U.S. at 98, 123 S.Ct. 1140; see also Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016,37 L.Ed. 905 (1893) (holding that order of deportation is "not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment "). While banishment of course involves an extreme form of residency restriction, we ultimately do not accept the analogy between the traditional means of punishment and the Iowa statute. Unlike banishment, § 692A.2A restricts only where offenders may reside. It does not "expel" the offenders from their communities or prohibit them from accessing areas near schools or child care facilities for employment, to conduct commercial transactions, or for any purpose other than establishing a residence. With respect to many offenders, the statute does not even require a change of residence: the Iowa General Assembly included a grandfather provision that permits sex offenders to maintain a residence that was established prior to July 1, 2002, even if that residence is within 2000 feet of a school or child care facility. *720 Iowa Code § 692A.2A(4)(c). The district court, moreover, found that residency restrictions for sex offenders "are relatively new and somewhat unique," 298 F.Supp.2d at 849 n. 4, and as with sex offender registration laws, which also were of "fairly recent origin," Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140 (internal quotation omitted), this novelty "suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing." Id. We thus conclude that this law is unlike banishment in important respects, and we do not believe it is of a type that is traditionally punitive. The second factor that we consider is whether the law promotes the traditional aims of punishment- deterrence and retribution. Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. The district court found that the law was both deterrent and retributive, and thus weighed this factor in favr of its fording that the law was punitive. We agree with the district court that the law could have a deterrent effect, but we do not agree that the deterrent effect provides a strong inference that the restriction is punishment. The primary propose of the law is not to alter the offender's incentive structure by demonstrating the negative consequences that will flow from committing a sex offense. The Iowa statute is designed to reduce the likelihood of reoffense by limiting the offender's temptation and reducing the opportunity to commit a new crime. We observe, moreover, that the Supreme Corot has cautioned that this factor not be over - emphasized, for it can "prove[ ] too much," as "[a]ny number of governmental programs might deter crhne without imposing punishment." Id The statute's "retributive" effect is similarly difficult to evaluate. For example, while the Ninth Circuit found punishment where the length of sex offender reporting requirements corresponded to the degree of wrongdoing rather than the extent of the risk imposed, Doe I v. Otte, 259 F.3d 979, 990 (9th Cir.2001), rev'd sub nom. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court disagreed, and instead emphasized that the reporting requirements were "reasonably related to the danger of recidivism" in a way that was "consistent with the regulatory objective." Surith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. While any restraint or requirement imposed on those who commit crimes is at least potentially retributive in effect, we believe that § 692A.2A, like the registration requirement in Smith v. Doe, is consistent with the legislature's regulatory objective of protecting the health and safety of children. The next factor we consider is whether the law "imposes an affinnative disability or restraint." hnprisonment is the "paradigmatic" affirmative disability or restraint, Smith v. Doe, 538 U.S. at 100, 123 S.Ct. 1140, but other restraints, such as probation or occupational debarment, also can impose some restriction on a person's activities. Id at 100 -01, 123 S.Ct. 1140. While restrictive laws are not necessarily punitive, they are more likely to be so; by contrast, "[i]f the disability or restraint is minor and indirect, its effects are unlikely to be punitive." Id. at 100, 123 S.Ct. 1140. For example, sex offender registration laws, requiring only periodic reporting and updating of personal information, do not have a punitive restraining effect. Id. at 102, 123 S.Ct. 1140. At the same time, civil commitment of the mentally ill, though extremely restrictive and disabling to those who are committed, does not necessarily impose punishment because it bears a reasonable relationship to a "legitimate nonpunitive objective," namely protecting the public from mentally unstable *721 individuals. Hendricks, 521 U.S. at 363, 117 S.Ct. 2072. Iowa Code § 692A.2A is more disabling than the sex 1i`,4- tl:wAexf © 2014 Thomson Reuters. No claim to original U.S. Government Works. 15 Doe v. Miller, 405 F.3d 700 (2005) offender registration law at issue in Smith v. Doe, which had not "led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords." 538 U.S. at 100, 123 S.Ct. 1140. Although the Does did not present much evidence about housing within restricted areas that would have been available to them absent the statute, they did show that some sex offenders would have lived with spouses or parents who owned property in the restricted zones, and some sex offenders were living in residences within restricted areas that were permitted under the statute's "grandfather" provision. The residency restriction is certainly less disabling, however, than the civil commitment scheme at issue in Hendricks, which permitted complete confinement of affected persons. In both Smith and Hendricks, the Court considered the degree of the restraint involved in light of the legislature's countervailing nonpunitive purpose, and the Count ht Hendricks emphasized that the imposition of an affirmative restraint "does not inexorably lead to the conclusion that the government has imposed punishment." 521 U.S. at 363, 117 S.Ct. 2072 (internal quotation omitted). Likewise here, while we agree with the Does that § 692A.2A does impose an element of affirmative disability or restraint, we believe this factor ultimately points us to the importance of the next inquiry: whether the law is rationally connected to a nonpunitive purpose, and whether it is excessive in relation to that purpose. "01 This final factor - whether the regulatory scheme has a "rational connection to a nonpunitive purpose " -is the "most significant factor" in the ex post facto analysis. Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. The requirement of a "rational connection" is not demanding: A "statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance." !d at 103, 123 S.Ct. 1140. The district court found "no doubt" that § 692A.2A has a purpose other than punishing sex offenders, 298 F.Supp.2d at 870, and we agree. In light of the high risk of recidivism posed by sex offenders, see Smith v. Doe, 538 U.S. at 103, 123 S.Ct. 1140, the legislature reasonably could conclude that § 692A.2A would protect society by minimizing the risk of repeated sex offenses against minors. "'i The district court nonetheless concluded that the statute is excessive in relation to this purpose, because the law applies "regardless of whether a particular offender is a danger to the public." 298 F.Supp.2d at 871. The absence of a particularized risk assessment, however, does not necessarily convert a regulatory law into a punitive measure, for "[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences." Smith v. Doe, 538 U.S. at 103, 123 S.Ct. 1140. The Supreme Court over the years has held that restrictions on several classes of offenders are nonpunitive, despite the absence of particularized determinations, including laws prohibiting the practice of medicine by convicted felons, Hmvker v. New York, 170 U.S. 189, 197, 18 S.Ct. 573, 42 L.Ed. 1002 (1898), laws prohibiting convicted felons font serving as officers or agents of a union, De Vcau v. Braistert 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (plurality opinion); id. at 160 -61, 80 S.Ct. 1146 (opinion of Brennan, L), and of course laws "722 requiring the registration of sex offenders. Smith v. Doe, 538 U.S. at 106, 123 S.Ct. 1140. In this case, we conclude that a categorical rule is consistent with the legislature's regulatory purpose and not "excessive" within the meaning of the Supreme Court's decisions. While the Does argue that the legislature must tailor restrictions to the individual circumstances of different sex offenders, we view this position as inconsistent with the Supreme Court's direction that the "excessiveness" prong of the ex post facto analysis does not require a "close or perfect fit" between the legislature's nonpunitive purpose and the corresponding regulation. The evidence presented at ]rial suggested that convicted sex offenders as a class were more likely to commit sex offenses against minors than the general population. Dr. McEchron indicated that "there are never any guarantees that [sex offenders] won't reoffend," (Appellant's App, at 162), and Mr. Allison testified that "any sex offender is always going to be of some concern forever." (T. Tr. at 279). More specifically, in Allison's view, even an offender who committed a crime involving an older victim, such as statutory rape, would be of concern around a day care or elementary school, although the concern may be reduced, (T. Tr. at 278), and Dr. Resell testified that while he believed that a sex offender who committed an offense with a 14 or 15- year -old victim was likely to stay in that age range, there also was no way to predict whether a sex offender would "cross over" in selecting victims from adults to children or males to females. (Appellee's App, at 149, 184). Dr. Resell was less than definitive about the degree to which sex offenders' future behavior was predictable and avoidable; while he personally did not believe residential proximity made "that big of a difference," he agreed that "what works in criminal justice is imprecise at best," and testified that "[t]here is always a risk" of reoffense. (Appellee's App. at 193, 195, 190). In view of the higher- than - average risk of reoffense 1eV,e ,.tla =uNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 16 Doe v. Miller, 405 F.3d 700 (2005) posed by convicted sex offenders, and the imprecision involved in predicting what measures will best prevent recidivism, we do not believe the Does have established that Iowa's decision to restrict all such offenders from residhng near schools and child care facilities constitutes punislunent despite the legislature's regulatory propose. I"I The Does also urge that the law is excessive in relation to its regulatory purpose because there is no scientific evidence that a 2000 -foot residency restriction is effective at preventing sex offender recidivism. "The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy," but rather an inquiry into "whether the regulatory means chosen are reasonable in light of the nonpunitive objective." Smith v. Doe, 538 U.S. at 105, 123 S.Ct. 1 140. In this case, there was expert testimony that reducing the frequency of contact between sex offenders and children is likely to reduce temptation and opportunity, which in turn is important to reducing the risk of reoffense. None of the witnesses was able to articulate a precise distance that optimally balanced the benefit of reducing risk to children with the burden of the residency restrictions on sex offenders, and the Does' expert acknowledged that "[t]here is nothing in the literature that has addressed proximity." (Appellee's App. 198; accord id. at 41, 47 -48 (testimony of Dr. McEchron)). As even Dr. Resell admitted, we just "don't know" that the Iowa Legislature "isn't ahead of the curve." (Id. at 198). *723 We believe the legislature's decision to select a 2000 -foot restriction, as opposed to the other distances that were considered and rejected, is reasonably related to its regulatory purpose. Given the challenge in determining precisely what distance is best suited to minimize risk to children without unnecessarily restricting sex offenders, and the difficult policy judgments inherent in that choice, we conclude that the Does have not established the "clearest proof' that Iowa's choice is excessive in relation to its legitimate regulatory purpose, such that a statute designed to be nonpunitive and regulatory should be considered retroactive criminal punishment The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in favor of the defendants. MELLOY, Circuit Judge, concurring and dissenting. I join in the majority's opinion, sections I through IV. However, I dissent as to section V because I believe section 692A.2A is an unconstitutional ex post facto law. The U.S. Constitution prohibits states from passing ex post facto laws. U.S. Coast. art. I, § 10, cl. L " `Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,' " is an ex post facto law. Stogner v. California, 539 U.S. 607, 612, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (quoting Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)). As set out by the majority, the fundamental question the Corot must decide is whether the residency requirement amounts to punishment. We do so by first asking whether the legislature intended the statute to be punitive. If the answer is in the affirmative, that ends our inquiry, and we find the legislation to be an ex post facto law. However, if the legislature intended the statute to be nonpunitive, "we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil." Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (internal quotations and citation omitted). I agree with the majority that the purpose of section 692A.2A is to protect the public. This purpose is nonpunitive, so we must determine if the statute "is so punitive either in purpose or effect as to negate the State's intention to deem it civil." Id. I also agree with the majority that the factors outlined in Sinith should guide our analysis. However, I part ways with the majority as to how some of the individual factors should be examined and as to the final outcome of the multi - factor analysis. 1. Have measures like the residency restriction historically been regarded as punishment? The majority concedes that banishment has historically been regarded as punishment, *724 but points out how the residency restriction differs from banishment. The majority concludes that section 692A.2A is not the type of law that has historically been regarded as punishment. I would find that, although section 692A.2A does not amount to full banishment, it sufficiently resembles banishment to make this factor weigh towards finding the law punitive. The district court made the following factual findings on the availability of housing: [S]ex offenders are completely banned from living in a number of Iowa's small towns and cities. In the state's major communities, offenders are relegated to living in industrial areas, in some of the cities' most expensive P1 =al rdNexf © 2014 Thomson Reuters. No claim to original U.S. Government Works. 17 Doe v. Miller, 405 F.3d 700 (2005) developments, or on the very outskirts of town where available housing is limited. Although some areas are completely unrestricted, these are either very small towns without any services, or farmland. In larger cities such as Des Moines and Iowa City, the maps show that the two thousand foot circles cover virtually the entire city area. The few areas in Des Moines, for instance, which are not restricted, include only industrial areas or some of the city's newest and most expensive neighborhoods. In smaller towns that have a school or childcare facility, the entire town is often engulfed by the excluded area. In Johnson County alone, the towns of Lone Tree, North Liberty, Oxford, Shueyville, Solon, Swisher and Tiffin are wholly restricted to sex offenders under § 692A.2A. Unincorporated areas and towns too small to have a school or childcare facility remain available, as does the country, but available housing in those areas is not necessarily readily available. These findings are not clearly erroneous and should therefore be upheld. See Fed.R.Civ.P. 52(a). In its findings, the district court demonstrated how difficult it is for sex offenders to find legal housing in many communities in Iowa due to the housing restriction. It is common that offenders may not return to live in the community they lived in before incarceration, the place where their families live, and/or the place they find work. There are so few legal housing options that many offenders face the choice of living in rural areas or leaving the state. The difficulty in finding proper housing effectively prevents offenders from living in many Iowa communities. This effectively results in banishment from virtually all of Iowa's cities and larger towns. In Snrith, the Supreme Court drew a distinction between Alaska's sex offender registry and colonial punishments such as shaming, branding, and banishment. The Court found that the registry merely involved "dissemination of information," whereas the colonial punishments "either held the person up before his fellow citizens for face -to -face shaming or expelled hhn from the community." Smith, 538 U.S, at 98, 123 S.Ct. 1140 (emphasis added). It described the aim of these colonial punishments as making "offenders suffer permanent stigmas, which in effect cast the person out of the community." II (internal quotation and citation omitted). The residency requirement is a permanent stigma as well as a law that effectively casts the person out of the community. Further, Smith also described as banishment situations in which individuals "could neither return to their original community nor, reputation tarnished, be admitted easily into a new one" Id Under this phrasing, section 692A.2A fits the description of banishment. *725 Of course, the residency restriction does not prevent offenders from living in every conummity, nor from visiting communities in which they are not allowed to live. In this way, the law differs from complete banishment. However, preventing offenders from making a home in many Iowa communities after they have served their sentence does have substantial similarity to banishment. To the extent that offenders are effectively banished from their desired places of residence, I would find this factor weighs in favor of finding section 692A.2A punitive. 2. Does the residency restriction promote traditional aims of punishment? The residency restriction serves a traditional aim of punishment: deterrence. The majority attempts to minimize the deterrent effect of the statute by arguing that the statute does not increase the negative consequences for an action, but merely reduces the opportunity for that action to occur. In my view, this distinction is not important. One major reason we use the punishments we do, such as imprisonment, is to reduce the likelihood of future crimes by depriving the offender of the opportunity to commit those crimes. There is clearly a deterrent propose at work in section 692A.2A, thus the measure promotes a traditional aim of punishment. 3. Does the residency restriction impose an affirmative disability or restraint? The majority acknowledges that the residency requirement imposes an affirmative disability or restraint, and I agree. It restricts offenders from living in certain areas. Offenders that live within the restricted areas face criminal penalties. In this way, the restraint differs greatly from the sex offender registry in Smith. The Court in that case pointed out that offenders were "fi-ee to change ... residences." Smith, 538 U.S, at 100, 123 S.Ct. 1140. The Court also noted that there was no evidence that the measure disadvantaged the offenders in finding housing. Id. I would find that the affirmative disability or restraint intrinsic in the residence requirement distinguishes it from the sex offender registry in Smith and weighs in favor of finding the law punitive. 4` e-- A,iwNexf @2014 Thomson Reuters. No claim to original U.S. Government Works. 18 Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.-6th 695 4. Does the residency restriction have a rational connection to a nonpunitive purpose? I agree with the majority that section 692A.2A has a rational connection to the nonpunitive purpose of protecting the public. See In Interest of S.11.11., 558 N.W.2d 405, 408 (Iowa 1997). 5. Is the residency restriction excessive? Though I believe a rational connection exists between the residency restriction and a nonpunitive purpose, I would find that the restriction is excessive in relation to that purpose. The statute limits the housing choices of all offenders identically, regardless of their type of crime, type of victim, or risk of re-offending. The effect of the requirement is quite dramatic: many offenders cannot live with their families and/or cannot live in their home communities because the whole community is a restricted area. This leaves offenders to live in the country or in small, prescribed areas of towns and cities that might offer no appropriate, available housing. In addition, there is no time limit to the restrictions. Also, the residency restriction applies to plaintiffs who are not the most serious sex offenders. There is no doubt a class of offenders that is at risk to re- offend and for whom such a restriction is reasonable. x726 However, the restriction also applies to John Doe II, who pleaded guilty to third degree sexual abuse for having consensual sex with a fifteen- year -old girl when he was twenty years old. The restriction applies to John Doe VII, who was Footnotes convicted of statutory rape under Kansas law. His actions which gave rise to this conviction would not have been criminal in Iowa. The restriction applies also to John Doe XIV, who pleaded guilty to a serious misdemeanor charge in 1995 after he exposed himself at a party at which a thirteen-year-old girl was present. John Doe XIV was nineteen at the time of his offense. The actions of these and other plaintiffs are serious, and, at least in most cases, illegal in this state. However, the severity of residency restriction, the fact that it is applied to all offenders identically, and the fact that it will be enforced for the rest of the offenders' lives, makes the residency restriction excessive. In my view, four factors weigh in favor of finding the statute punitive, while only one weighs in favor of finding the statute nonpunitive. The analysis leads me to the conclusion that the residency restriction is punitive. Because the imposition of the residency requirement " `changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,' " Stogner, 539 U.S. at 612, 123 S.Ct. 2446 (quoting Calder, 3 U.S. at 390, 3 Dail. 386, 1 L.Ed. 648), I would find Section 692A.2A is an unconstitutional ex post facto law that cannot be applied to persons who committed their offenses before the law was enacted. Parallel Citations 25 A.L.R.6th 695 Judge Morris Sheppard Arnold, Judge Murphy, Judge Bye, Judge Melloy, and Judge Smith would grant the petition for rehearing en bane. The text of the statute provides as follows: 692A.2A Residency restrictions -child care facilities and schools. 1. For purposes of this section, "person" means 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. 2. A person shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility. 3. A person who resides within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school, or a child care facility, commits an aggravated misdemeanor. 4. A person residing within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility does not commit a violation of this section if any of the following apply: a. The person is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility. b. The person is subject to an order of commitment under chapter 229A. c. The person has established a residence prior to [) July 1, 2002, or a school or child care facility is newly located on or [after] July 1, 2002. d. The person is a minor or a ward under a guardianship. Iowa Code § 692A.2A. The term "residence" is defined as "the place where a person sleeps, which may include more than one location, and may be mobile or transitory." Iowa Code § 692A.1(8). ;'! -d. ivAext" © 2014 Thomson Reuters. No claim to original U.S. Government Works. 19 Doe v. Miller, 405 F.3d 700 (2005) 25 A.L.R.6t4 695 The parties presented substantial evidence concerning the effect of the statute on the availability of housing for sex offenders in Carroll County, Iowa. Tire district court found that 2077 of 9019 residential units in the county (23 percent) were not in restricted areas. The Carroll County Attorney testified that 1694 of the available units were in unincorporated areas of the county, and were "mainly farmhouses," but he noted that the trend toward larger farms has created some vacancies in farmhouses where the party fanning the land does not live in the farnrlrouse. Of the remaining 383 units available in the county, the district court found that 244 were located in towns without a school or child care facility. Doe v. ,11iller, 298 F.Supp.2d at 852. In its analysis of the right to interstate travel, the district court also expressed concern that a sex offender might be compelled to avoid Iowa altogether, test he establish an unlawful residence by "unwittingly falling asleep" at a location within 2000 feet of a school or child care facility. 298 F.Supp.2d at 875. The court stated that "tl]iteral application of the Act would result in the great majority of the State's hotels and motels being restricted to traveling sex offenders," and that "community centers such as homeless shelters and missions will most likely be unavailable to sex offenders because of location." Id. This led the court to conclude that "sex offenders would appear to be able to travel to Iowa freely only so long as they do not stop." Id. We question whether these concerns are even applicable to the plaintiffs, given that the plaintiff class was defined as those sex offenders "currently living" in Iowa or "might wish to live" in Iowa, not vacationers or cross - country travelers. Id. at 847. In any event, the Does do not rely on these factual assertions in defending the judgment of the district court, and we do not find evidence in the record that would support a specific finding about the proximity of hotels, motels, homeless shelters, and missions throughout Iowa to schools and child care facilities. See Ala.Code § 15- 20 -26(a) ( "Unless otherwise exempted by law, no adult criminal sex offender shall establish a residence or accept employment within 2,000 feet of the property on which any school or child care facility is located. "); Ark.Code Ann. § 5- 14- 128(a) (`9t shall be unlawful for a sex offender who is required to register ... and who has been assessed as a Level 3 or Level 4 offender to reside within two thousand feet (2000') of the property on which any public or private elementary or secondary school or daycare facility is located. "); Cal.Penal Code § 3003(g) ( "[A]n inmate who is released on parole for any violation of [sections prohibiting lewd or lascivious acts, or continued sexual abuse of a child] shall not be placed or reside ... within one one - quarter mile of any public or private school. "); Fla. Stat. Ann. § 947.I405(7)(a)(2) ( "Any inmate convicted of [certain sexual crimes against minors] and ... subject to conditional release supervision ... [is prohibited from] living within 1,000 feet of a school, day care center, park, playground, designated public school bus stop or other place where children regularly congregate. "); Ga.Code Ann. § 42- 1 -13(b) ( "No individual required to register ... shall reside within 1,000 feet of any child care facility, school, or area where minors congregate. "); 720 Ill. Comp. Stat. § 5/11- 9.3(b -5) ( "It is unlawful for a child sex offender to knowingly reside within 500 feet of a school building ... "); Ky.Rev.SmL Ann. § 17.495 ( "No registrant ... who is placed on probation, parole, or any form of supervised release, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, or licensed day care facility. "); La.Rev.Stat. § 14:91.1(A)(2) ("Unlawful presence of a sexually violent predator is ... the physical residing of a sexually violent predator within one thousand feet of any public or private, elementary or secondary school, a day care facility, playground, public or private youth center, public swimming pool, or free standing video arcade facility. "); Ohio Rev.Code Ann. § 2950.031(A) ( "No person who has been convicted of ... either a sexually oriented offense that is not a registration - exempt sexually oriented offense or a child- victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises. "); Oki. Stat. tit. 57, § 590 ( "It is unlawful for any person registered pursuant to the Oklahoma Sex Offenders Registration Act to reside within a two thousand -foot radius of any public or private school site or educational institution. "); Or.Rev.Stat. § 144.642(I)(a) (Rules for post - prison supervision or parole "shall include ...a general prohibition against allowing a sex offender to reside near locations where children are the primary occupants or users. "); Tenn.Code Ann. § 40 -39 -21 I(a) ( "No sexual offender, ... or violent sexual offender, ... shall knowingly reside or work within one thousand feet (1,000') of the property on which any public school, private or parochial school, licensed day care center, or any other child care facility is located. "). There is evidence in the record that some Iowa law enforcement authorities, rather than immediately file charges against an offender found to be residing in a restricted zone, have withheld charges while the offender sought housing in an unrestricted area. (T. Tr. at 229). In view of our conclusion that the statute is not punitive, it follows that the law is not a "cruel and unusual punishment" in violation of the Eighth Amendment. See Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140 (explaining that factors used in determining whether law is punishment for ex post facto purposes "have their earlier origins in cases under the Sixth and Eighth Amendments "); Trop v. Dulles, 356 U.S. 86, 94 -99, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion). Even assuming that § 692A.2A were punitive, we would agree with the district court that the law is neither barbaric nor grossly disproportionate to the offenses committed by the Does. We therefore reject the Eighth Amendment argument urged by the appellees as an alternative ground for affirming the district court. =.r.NexC © 2014 Thomson Reuters. No claim to original U.S. Government Works. 20 Doe v. Miller, 405 F.3d 700 (2005) End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works. IiV =.Ik Aext @2014 Thomson Reuters. No claim to original U.S. Government Works. 21