Number
151657
Version
SUBSTITUTE 2
Reference
Sponsor
ALD. MURPHY AND WITKOWSKI
Title
A substitute ordinance relating to residency restrictions for sex offenders.
Sections
106-51 rc
Analysis
This ordinance:
1. Updates the city’s residency restrictions for sex offenders and makes other changes to coordinate with state law.
2. Narrows the city’s residency restrictions so that they apply only to sex offenders required to register under state law for offenses against children.
3. Narrows the city’s residency restrictions so that they apply only to sex offenders who were not domiciled in the city at the time of the offense resulting in the person's most recent conviction for committing the offense that is within the definition of a designated offender.
4. Repeals the residency buffer around protected land uses.
5. Repeals the requirement that a family member with whom the sex offender resides must have established a residence in the prohibited area at least 2 years prior to the sex offender establishing a residence at the location.
6. Creates an exception to residency restrictions for sexually violent offenders on supervised release due to the passage of 2015 Wisconsin Act 156, which establishes a 1,500-foot residency restriction under state law for persons on supervised release and makes other changes to the procedure for releasing certain violent sex offenders into the community.
7. Creates an exception to residency restrictions so that residency restrictions do not apply if the person’s most recent offense occurred more than 10 years ago and it has been at least 10 years since the person was incarcerated for the most recent offense that is within the definition of a designated offender.
8. Requires the Common Council to evaluate the effects of the ordinance one year after the ordinances takes effect.
Body
Whereas, A study by the U.S. Department of Justice has shown that when convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault; and
Whereas, Studies of the effects of criminal offenders' residential situations on their rates of recidivism have shown that offenders that reside with spouses, parents, other relatives or in residential programs are less likely to be rearrested; and
Whereas, Restrictions on where individuals who have committed sex offenses, particularly against children, may reside have been enacted by municipalities throughout Wisconsin and the United States; and
Whereas, Judicial review of sex offender residency restrictions have generally upheld a municipality’s broad authority through its police powers to protect vulnerable residents like children by forbidding sex offenders from residing near schools, playgrounds and other places where children tend to congregate; and
Whereas, In 2013, the Wisconsin Court of Appeals upheld the City of South Milwaukee’s ordinance preventing a child sex offender from residing within 1,000 feet of a school, stating that the purpose of the city’s residency restrictions, to “reduce the risk of reoffense by child sex offenders”, advances “the reassimilation of sex offenders into the larger community and the protection of the public” (City of South Milwaukee v. Kester, 2013 WI App 50, 347 Wis.2d 334, 830 N.W.2d 710); and
Whereas, State and federal courts have likewise upheld the constitutionality of municipal sex offender residency restrictions in other jurisdictions; and
Whereas, A recent judicial review of the sex offender residency restrictions enacted by the Village of Pleasant Prairie indicates that municipal sex offender residency restrictions may violate an individual’s constitutional rights if the residency restrictions so limit the housing choices of a sex offender that the residency restrictions have the effect of banishing the individual from that municipality; and
Whereas, 2015 Wisconsin Act 156 requires the State of Wisconsin Department of Health Services (DHS), when placing a sexually violent person under supervised release, to consult with a local law enforcement agency that has jurisdiction over any prospective residential option identified by DHS or the county and to request the law enforcement agency to submit a written report that provides information on the prospective residential option; and
Whereas, Under Wisconsin Act 156, no sexually violent person may be placed in a residence within 1,500 feet of any school, child care facility, youth center, place of worship, or public park, and if the person committed a sexually violent offense against a child, he or she may not be placed in a residence in a property adjacent to a property where a child resides, and further, if the person committed a sexually violent offense against an elderly or disabled person, he or she may not be placed in a residence within 1,500 feet of a nursing home or other assisted living facility; and
Whereas, Wisconsin Act 156 prohibits a local sex offender residency restriction ordinance from being enforced against a sexually violent person on supervised release or against a person who provides housing to the sexually violent person, provided that the sexually violent person is residing in the location ordered by the court and is in compliance with the court’s orders; and
Whereas, An analysis of the placement of sex offenders by the State of Wisconsin Department of Corrections has shown that after many of the neighboring Milwaukee County municipalities enacted sex offender residency restrictions, and before the City of Milwaukee enacted its own residency restrictions for sex offenders (s. 106-51, Code of Ordinances), a disproportionate number of sex offenders were being placed upon release into residential situations within the City of Milwaukee, leading to a 44% increase in the number of sex offenders residing in two Milwaukee ZIP codes between 2007 and 2014; now, therefore
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 106-51 of the code is repealed and recreated to read:
106-51. Residency Restrictions for Sex Offenders. 1. FINDINGS AND INTENT. The common council finds that sex offenders who prey on children are sex predators who present an extreme threat to the public safety. Many sex offenders commit numerous offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sex offender victimization to society, while incalculable, clearly exorbitant. The common council finds the risk of recidivism increases if the sex offender recently offended and if the sex offender does not have a strong social network, including community and familial ties. The common council is aware of many studies and reports concerning recidivism of sex offenders and the effectiveness of sex offender residency restrictions. The common council acknowledges that literature on the subject includes some studies that support the practice of sex offender residency restrictions and others that are critical of the practice. The common council is also aware that absent a domicile clause, the city would have open doors for non-resident sex offender residency when other communities have closed doors, inviting a substantial increase in child sex offender placements, with the related adverse impacts on the health, safety and welfare of the city and its residents. It is the intent of this section to enact a regulatory scheme that is civil and non-punitive in order to serve the city’s compelling interest to promote, protect, and improve the health, safety and welfare of the citizens of the city.
2. DEFINITIONS. For the purposes of this section:
a. “Child” means a person under the age of 16 years.
b. “Designated offender” means any person who is required to register under s. 301.45, Wis. Stats., for any offense against a child. This definition does not include a person who is released under s. 980.08, Wis. Stats., so long as the person is subject to supervised release under ch. 980, Wis. Stats., the person is residing where he or she is ordered to reside under s. 980.08, Wis. Stats., and the individual is in compliance with all court orders issued under ch. 980, Wis. Stats.
c. “Hospital” has the meaning given in s. 50.33(2)(a), Wis. Stats.
d. “Residence” (“Reside”) means the place where a person sleeps, which may include more than one location, and may be mobile or transitory.
e. “Treatment facility” has the meaning given in s. 51.01(19), Wis. Stats.
3. ORIGINAL DOMICILE RESIDENCY RESTRICTION. A designated offender shall not establish a residence within the city, unless the person was domiciled in the city at the time of the offense resulting in the person's most recent conviction for committing the offense that is within the definition of a designated offender.
4. RESIDENCY RESTRICTION EXCEPTIONS. A designated offender prohibited from establishing a residence within the city as specified in sub. 3 does not commit a violation of this section if the designated offender demonstrates any of the following:
a. The person established a residence and reported and registered the residence as provided in s. 301.45, Wis. Stats., before the effective date of this ordinance [9/23/17].
b. The person was under the age of 18 years at the time of the offense or is a ward under guardianship.
c. The residence is also the primary residence of the person’s child, grandparent, guardian, parent, sibling or spouse.
d. The residence is a mental health facility or a jail, juvenile facility, prison or other correctional institution where the person is required to serve a sentence.
e. The residence is a hospital or treatment facility.
f. The person’s most recent offense that is within the definition of a designated offender occurred more than 10 years ago and it has been at least 10 years since the person was incarcerated for the most recent offense that is within the definition of a designated offender.
5. PENALTY. A designated offender who violates sub. 3 shall be subject to a forfeiture of not less than $1,000 nor more than $2,500 for each violation, and in default of payment may be imprisoned as provided by law. Each day a violation continues shall constitute a separate offense. The city may also seek equitable relief.
6. EVALUATION. The common council shall evaluate the effect of this ordinance one year after the effective date of this ordinance [9/23/17].
LRB
APPROVED AS TO FORM
________________________
Legislative Reference Bureau
Date: ______________________
Attorney
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
_____________________________
Office of the City Attorney
Date: ________________________
Requestor
Drafter
LRB163076-3
Dana J. Zelazny
September 6, 2017