Charging a Homeless Person with Failure to Register a Residence
by: Tbetz • May 10, 2011 • no comments
Remember that Nick Hornby novel, High Fidelity? Sappy love story for males. Made into a movie with John Cusack and Jack Black. Well, the main character, Rob (Cusack) is a cooler than everyone else record store owner, vinyl lover, and general pop culture quiz master. He puts most things in life into top 5 categories, like: "top 5 things I miss about Laura," "top 5 break ups," top 5 songs to play on a Monday morning, "top 5 musical crimes committed by Stevie Wonder in the 80?s and 90?s," and my favorite: "top 5 things you'd do if qualifications, time, history and money were no object."
One of the top 5 stupidest prosecutions has to include charging a homeless sex offender with failure to register a "change of residence." It just has to. The statute and its enforcement demonstrate a complete failure to deal with the human condition. We live in a culture obsessed with rights to private property, which homeless folks really have no rights over at all. And then we punish them for it. Mix it all up in a blender and you get prosecutions for moving out of dumpsters. Seriously.
Turns out, I'm not alone in this feeling. The Supreme Courts of Georgia and Michigan have it on their top 5 list also (footnote, I don't think they have top 5 lists). Each has struck down their state's failure to register change of residence prosecutions as violative of Due Process. The primer on Due Process problems of this species is that when terms are undefined, they don't give an average citizen sufficient notice of what behavior will be criminal. An undefined term gives far too much discretion to the ultimate fact finder. The problem in Oregon is that the term "change of residence" is completely undefined. As is "residence." In Portland, the Police Bureau simply decided all on their own that if you are homeless, and within 7-10 blocks of your last registration location, you have not changed residence. However, in Beaverton, every single location change must be registered. So, same exact behavior in two different jurisdictions-one conviction-one acquittal. WTF?! I wish I was making this up, but its right [here in this handout] from the Oregon State Police.
Here's a little clip from a relevant motion in arrest of judgment that can be [found in its entirety here]:
In Santos v. State, 284 Ga. 514 (2008), the Georgia Supreme Court invalidated that State's sex offender registration statute as applied to homeless defendants. That High Court concluded that the statute, OCGA 42-1-12, fails to provide fair notice of how homeless individuals subject to registration requirements can comply with the requirement. Id. at 514. Santos repeats that the due process clause: (1) require an ordinary person to understand what conduct it prohibits or requires, and (2) prohibits arbitrary and discriminatory enforcement. (citing Chicago v. Morales, 527 US 41 (1999)(holding an anti-gang loitering statute as violative of the due process clause because it criminalizes loitering "in any one place with no apparent purpose," a phrase without any guidelines). The Georgia Statute required convicted sexual offenders to notify the Sheriff in their county of a residence address. Within 72 hours before moving, the offender must notify that Sheriff of their new address, and within 72 hours of moving to a new address (if a new county), an offender must notify another Sheriff in their new county of their new residence. OCGA 41-1-12(f)(5). Fatally for the statute, "address" is defined as "the street or route address of the sexual offender's residence" and specifically excludes "homeless" or a "P.O. Box" as constituting an address. OCGA 41-1-12(a)(1). The Defendant in Santos had registered at a homeless shelter, but was asked to leave by the shelter administration. The Defendant remained homeless, and failed to register a new address as required under the statute. The question before the Santos Court is whether the statute provided sufficient notice to the Defendant of what conduct was required when he left his previous address, the shelter, but possessed no new address to provide. The Court simply concluded that the statute contains "no objective standard or guideline that would put homeless sexual offenders without a street or route address on notice of what conduct is required of them, thus leaving them to guess as to how to achieve compliance with the statute's reporting provisions." Id. at 515. Notably, the Court rejected the State's argument that the statute should be interpreted to allow an offender to register a "geographic location." Id. at 516. Such an interpretation would still violate vagueness principles, because it would "fail to provide clear guidelines to authorities charged with its enforcement regarding what specific information the offender is required to report." The Court points out that to allow otherwise would permit criminal sanction to depend upon the subjective interpretations of complaining police and citizens. Similarly, in Michigan v. Dowdy, 484 Mich. 855 (2009), the Michigan Supreme Court struck down their State's homeless sex offender address registration requirements. The Defendant in that case was also asked to leave a VOA homeless shelter, and then failed to register a new address with authorities. The Michigan Sex Offender Registration Act (SORA) requires individuals to register a new residence or domicile within 10 days after a change of address. MCL 28.729. Again, SORA defines residence as "that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging." MCL 28.724(a). The Court holds that the transient nature of homelessness prevents individuals from complying with the registration, as they have no regular place of lodging or habit location of sleep. Id. at 858. Additionally, the statute created a "Catch-22" situation where a sex offender has to register a location, such as a street corner, even though the location does not meet the definition of "residence," with the result being that the offender would nonetheless violate the act.
Importantly, its not just on my top 5 list as a bad prosecution, it really does violate the constitution. And I really do think we will prevail on the issue.
