Continued Incarceration for Sex Offenders without Approved Homes – Constitutional Concerns?

By Reddin & Singer


In recent years, corrections officials have become convinced, despite conflicting studies, that sex offenders are prone to particularly high rates of recidivism. In an effort to address concerns that certain circumstances, such as homelessness, accelerate recidivism, many counties have enacted regulations and administrative ordinances imposing various requirements on sex offenders upon their release from prison. For instance, sex offenders may be required to return to their county of residence rather than allowed to move to a new location after prison, and they may be prevented from residing near schools or daycare facilities. In Brown County, Wisconsin, local officials enacted an ordinance providing that sex offenders who cannot find an approved home that meets these various types of requirements must continue to remain in jail, or prison, during the evenings until a suitable home is located.

While such restrictions are a result of justifiable concerns, they also raise important questions for due process and the liberty rights of offenders. In Werner v. Wall, Mr. Werner raised a constitutional challenge to Brown County’s ordinance, arguing that incarcerating him after his mandatory release date, and until he found a proper home, was a violation of his Eighth Amendment and Fourteenth Amendment rights. At trial, the individual defendants that he sued, including various correctional officials, moved for summary judgment against his claims, holding that they were barred by qualified immunity. The district court agreed. Mr. Werner appealed.

Mr. Werner was convicted of second-degree sexual assault of a child and sentenced to 10 years in prison. In 2010, Mr. Werner came up for mandatory release. Since he had several prior sex offense convictions, he was labeled as a Special Bullet Notification (SBN) offender, which imposed additional restrictions on his movement and living situation in public. Under Broward County’s Standard Sex Offender Rules, Mr. Werner was permitted only to reside or stay overnight at pre-approved residences. Furthermore, since an approved residence was required, if an approved residence could not initially be found, an SBN offender would be allowed to leave a correction facility to seek an approved residence during the workday but would be detained in jail during the evenings. Mr. Werner was detained for many months before ultimately securing a pre-approved residence.

On appeal, the Seventh Circuit considered whether the district court’s grant of summary judgment to the defendants based on qualified immunity was correct. It noted that, under Supreme Court precedent, a determination of whether qualified immunity applies requires the resolution of two questions: (1) whether the plaintiff’s allegations make out a deprivation of a constitutional right; and (2) whether the right was clearly established at the time of the defendant’s alleged misconduct. Noting that these questions could be addressed in either order, the Seventh Circuit deferred on answering the first question, finding that the laws surrounding the constitutional rights of sex offenders held after their mandatory release date are very murky. Instead, it decided to look first at the clearly established issue.

The Seventh Circuit noted that a “clearly established right” is one that is “sufficiently clear” for reasonable officials to understand that their actions violate the right. It then turned to the existing case law in Wisconsin to determine whether laws such as the Brown County ordinance had ever previously been held to violate constitutional rights. It noted that several cases had held that continued incarceration past a statutorily mandated release date was an unlawful restraint on personal liberty, but also a recent Wisconsin Supreme Court case had held that the determination was not so clear. In Reisch v. Schwarz, the court held that while inmates searching for housing cannot be held indefinitely, the department of corrections also has substantial discretionary authority to develop rules for release. On this basis, the Seventh Circuit determined that the rights of inmates not to be held during a search for housing was not “beyond debate,” and officials would not necessarily be aware that so holding them was a violation of a clearly established right. Accordingly, it affirmed the district court.

Local governments may be justified in imposing certain restrictions on the movements of registered sex offenders, but they cannot entirely restrict their right to liberty and free movement after a period of incarceration has been completed. Defendants facing the possibility of rules and limitations after their release from prison should carefully evaluate whether they may have a right to challenge such restrictions in court. If you need to speak with an experienced sex crimes attorney in Milwaukee, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400.