Five years after he was convicted of sexually assaulting a minor, Brian Cowan, 58, was released from prison onto probation in 2004 and moved into a two-unit apartment building in Kenosha, Wisconsin.
Cowan lived there for years without trouble. Probation officials were satisfied enough with Cowan’s conduct that they placed another offender to live with him, believing Cowan would “be a good influence” on the other sex offender, according to a pending lawsuit in a U.S. District Court in Milwaukee.
But when the woman in the other unit complained about the conduct of Cowan’s roommate, authorities ordered Cowan to move to another location within three days.
Cowan is one of five sex offenders who contend in a lawsuit in Milwaukee federal district court that the town is making it impossible for some offenders to find housing after they have served their sentences and been released to the community.
A few miles away from Kenosha, a group of sex offenders brought their own lawsuit after the village of Pleasant Prairie adopted an ordinance last April that did more than just establish geographic restrictions; it sought to keep sex offenders from outside the village from moving to town. The village has since rewritten its ordinance, and is trying to resolve the lawsuit.
But the efforts of those two Wisconsin towns reflect the ongoing struggle between government authorities trying to keep their communities safe and defendants who find their freedom greatly restricted after they serve their sentences.
In Illinois, an appellate court panel voted 2-1 in February to strike down an Illinois law that prohibited previously-convicted sex offenders from going into public parks. Mark Pepitone was arrested after Bolingbrook police ran his license plate after seeing his car parked illegally and discovered during the time Pepitone was walking his dog in a park the record of his past offense.
Writing for herself and Justice William E. Holdridge, Justice Mary W. McDade wrote that the law was so overbroad it prohibited Pepitone not only from walking his dog but also from attending a Chicago Bears game in Soldier Field, or from entering the Art Institute or the Museum of Science and Industry, all of which are on public park land.
A lawsuit also is pending in Northern District of Illinois federal court on behalf of Illinois sex offenders who are approved for release from prison but remain locked up, potentially for life, because Department of Corrections officials reject potential housing on a variety of reasons, even whether a relative in the same house owns a smartphone.
There is no doubt why communities have passed these restrictions: there is widespread fear that sex offenders are very likely to repeat the offense, and the result to victims – often children or young women – can be horrific and cause permanent damage. In 2003, the U.S. Supreme Court issued a decision by Justice Anthony Kennedy stating that the “risk of recidivism posed by sex offenders” is “frightening and high.”
Researchers have in recent years argued over how great is the danger posed by ex-sex offenders, and conflicting studies depend, in part, over what kind of sex crime the offender had committed; men convicted of pedophilia, for example, are very different from teenagers convicted of sex with underage partners.
Whatever the true impact, an increasing number of court decisions are ruling that communities have gone too far as they develop tight restrictions to effectively bar, or even keep confined, people convicted in the past of sex offenses. “People who have committed grave offenses are still human beings,” said Chicago attorney Mark Weinberg, one of the attorneys on the Kenosha and Pleasant Prairie lawsuits as well as the case challenging Illinois mandatory supervised release practices.
Several research studies have questioned whether laws restricting where ex-offenders can live are even effective. A study by the Colorado Sex Offender Management Board, for example, failed to observe a significant difference in sex crime offenses reported by jurisdictions that imposed residency restrictions over jurisdictions that did not.
“People have very strong beliefs that are not based on facts, not based on data, but their own fears,” said Ira Ellman, a law professor at Arizona State University’s Sandra Day O’Connor School of Law. “The more that you do to burden people on sex offender registries, the more difficult you make it for them to resume a law-abiding life.”
Increasingly, courts are scrutinizing laws that issue blanket restrictions on sex offenders rather than evaluating the risk each individual poses.
Acting in a San Diego County case in 2015, the California Supreme Court struck down the “blanket enforcement” of restrictions imposed on parolees, leaving them hampered in obtaining housing as well as counseling and help. Since then, several municipalities, including the City of Fullerton, have been sued by the Alliance for Constitutional Sex Offense Laws for laws still on their books that appear to conflict with the state Supreme Court ruling.
In Kenosha, the issue is not just the wording of the ordinance, but how it is enforced. The pending lawsuit contends that officials selectively enforce the law, arbitrarily using it to force some convicted offenders from their housing.
After Cowan was ordered to move from the house once a neighbor complained, the new place he found is itself out of compliance with Kenosha’s ordinance, since there is both a church and a school nearby, according to the lawsuit.
The lawsuit contends that Cowan’s experience is “typical” of Kenosha’s enforcement practices, where the ordinance is “haphazardly and randomly” enforced, leaving offenders “subject the whim of authorities’ arbitrary enforcement practices and in a constant state of fear that they will be forced to move at a moment’s notice and/or returned to prison for violating the Ordinance’s residency restrictions.”
Issiah Lairds, now 61, was freed on intensive supervision in 2008 after he spent four years in prison, having plead guilty to assaulting a 14-year old. But because of the strict law limiting where sex offenders can live, Lairds lived for months in his car, parked in the lot of his parole office in downtown Kenosha.
Over and over, Lairds was turned down by authorities when he found possible housing, running afoul of one another of the many restrictions written into Kenosha’s ordinance, according to the lawsuit. He cannot live too close to a school or church or playground. He cannot live within six blocks of any other sex offender in the city’s limits.
In October, Lairds was arrested again by police for violating his parole by breaking his rules of supervision.
“It’s a huge problem,” Adele Nicholas, the other attorney representing the Kenosha and Pleasant Prairie plaintiffs, said of the inconsistent enforcement of residency restrictions. “It’s unclear to our clients about whether they’re in violation of the law. There are already severe restrictions on where they can live, not just in Kenosha but across Wisconsin.”
Kenosha officials failed to return telephone calls from Injustice Watch. But the city’s response in court states the city lacked enough information to know the truth or not of what the lawsuit contends, both about Cowan’s experience and about arbitrary enforcement. The city said it would leave it to the offenders to prove their allegations in court.
Wendel Hruska, executive director of Project RETURN, a Milwaukee-based organization that helps former convicts resettle after incarceration, said that too many communities focus on restricting former offenders rather than ensuring they succeed upon release. “We need to have more programs to help sex offenders get into the workforce and have a stable lifestyle so they don’t have time to reoffend and end up back in prison.”
Over in Pleasant Prairie, the ordinance first passed by the village prohibited offenders from living within 3000 feet of schools, parks, places of worship, or daycare centers, or nearby other offenders. That made 90 percent of the village, maps reveal, including almost all residential lands, off limits to offenders. The village also voted to prohibit offenders who did not live in Pleasant Prairie at the time of their offense from establishing a residence anywhere in town.
Franklyn Hoffman, now 38, had been convicted of assaulting a minor in 2001; after serving his sentence, Hoffman moved into his mother’s home in Pleasant Prairie in 2011. After the village passed the ordinance, the police chief wrote his mother stating that if she ever moved, Hoffman would have to leave town.
At the time, according to the lawsuit filed by Hoffman and eight other offenders, Hoffman’s mother was planning to move into a retirement center; and in June, 2016, she sold her home.
Hoffman could not find another place to live, according to the lawsuit, though faced arrest if he did not have a fixed address. Hoffman ended up moving to Racine, where he lives with friends.
Michael O’Connell, 29, was convicted in 2007 in Illinois of one count of possessing child pornography.
O’Connell works as a technical systems specialist, and has lived for four years with his girlfriend in a house she owns. But days after the ordinance passed, his girlfriend also received a letter from the Pleasant Prairie Chief of Police, warning that O’Connell had to move out by October, 2016.
After O’Connell, Hoffman and others went to court, the village agreed not to force them out of their homes. In September, the village rescinded its ordinance and adopted a new one, reducing the restriction from 3,000 feet to 1,500 feet.
The village reiterated its concern about sex offenders, and the need to protect juveniles from harm. But the new ordinance stated: it is not the intent of this ordinance to banish sex offenders from residing within the Village of Pleasant Prairie, and careful attention has been given to ensure that there are ample locations for sex offenders to reside within the Village of Pleasant Prairie in compliance with the requirements of this ordinance.
The village and attorneys for the offenders are disputing in court whether the village owes the offenders money for the harm its ordinance caused.