Full opinion text
MEMORANDUM OPINION AND ORDER PRATT, District Judge. Writing in dissent from an en banc panel of the Eighth Circuit Court of Appeals more than thirty years ago, former Chief Circuit Judge Donald Lay observed: The denial of due process in parole revocation simply mirrors society’s overall attitude of degradation and defilement of a convicted felon. It is sad 20th Century Commentary that society views the convicted felon as a social outcast. He has done wrong, so we rationalize and condone punishment in various forms. We express a desire for rehabilitation of the individual, while simultaneously we do everything to prevent it. Society cares little for the conditions which a prisoner must suffer while in prison; it cares even less for his future when he is released from prison. He is a marked man. We tell him to return to the norm of behavior, yet we brand him as virtually unemployable; he is required to live with his normal activities severely restricted and we react with sickened wonder and disgust when he returns to a life of crime. Morrissey v. Brewer, 443 F.2d 942, 953 (8th Cir.1971) (en banc) (Lay, J., dissenting), rev’d, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Societal attitudes towards convicted persons have changed little in the three decades since Morrissey. A convict who has served his or her sentence still faces the social stigmas and discrimination that Judge Lay described. Yet, in some instances, the crimes perpetrated by certain classes of offenders are so offensive to human dignity and so atrocious that many would be comfortable using any means necessary to prevent even the possibility of re-offense. The present case asks the Court to examine the limits of this supposition as the class of Plaintiffs represented includes those who society would deem among the most deplorable of offenders, those convicted of committing sexual offenses against minors. To what extent, then, may the State go to protect its children from those whom it suspects might prey upon them? “Sex offenders are a serious threat in this Nation.” Connecticut v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (quoting McKune v. Lile, 536 U.S. 24, 32, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion)). “The victims of sex assault are most often juveniles,” and “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 sex assault.” Id. (quoting McKune, 536 U.S. at 32-33, 122 S.Ct. 2017). In 2002, the State of Iowa responded to this threat by enacting Iowa Code § 692A.2A. The Act prohibits a person who has committed a criminal offense against a minor from residing within two thousand feet of a school or child care facility. Three named Plaintiffs initially brought this action against the Iowa Attorney General and a proposed defendant class consisting of all of Iowa’s County Attorneys (“the State”). Plaintiffs’ Complaint asks the Court to declare § 692A.2A unconstitutional on a number of theories, and Plaintiffs further request that the Court permanently enjoin the State from enforcing the law. By Order dated July 25, 2003, the Court certified this action as a class action. The Plaintiff class includes all individuals defined as a “person” by Iowa Code § 692A.2A(1), currently living in the state of Iowa, or who might wish to live in the state of Iowa, and excluding those individuals currently being prosecuted under Iowa Code § 692A.2A in the Iowa state courts. The Court also certified Plaintiffs’ proposed Defendant class, which includes all ninety nine of Iowa’s County Attorneys, with J. Patrick White, the Johnson County Attorney, serving as class representative. Upon certifying both Plaintiff and Defendant classes, the Court granted Plaintiffs’ motion to temporarily enjoin enforcement of Iowa Code § 692A.2A until the Court ruled on Plaintiffs’ motion for a preliminary injunction. The parties, however, agreed to forego a preliminary injunction hearing and to proceed directly to trial with Defendants consenting to the Court’s injunction remaining in effect throughout the litigation process. Plaintiffs’ challenge to Iowa Code § 692A.2A is that the law infringes upon a number of constitutional rights, including Plaintiffs’ substantive due process rights of family privacy and freedom to travel, the Fifth Amendment right against self-incrimination, the Eighth Amendment’s guarantee against cruel and unusual punishment, and the right to procedural due process. Plaintiffs further contend that Iowa Code § 692A.2A is an unconstitutional ex post facto law when applied to those class members who committed their crimes before July 1, 2002. Defendants counter that the Act is a lawful exercise of the State’s police power and a constitutional effort to protect children from dangerous individuals. The Court heard testimony and received evidence from both sides during a two-day bench trial on December 15 and December 16, 2003. At the Court’s behest, both sides filed post-trial briefs on January 9, 2004, and the matter is now fully submitted. Pursuant to Federal Rule of Civil Procedure 52(a), the Court now sets forth its findings of fact and separate conclusions of law thereon as detailed below. I. FINDINGS OF FACT A. Iowa Code § 692A.2A On May 9, 2002, Iowa Governor Thomas Vilsaek signed Senate File 2197 into law. Effective July 1, 2002, Senate File 2197, now codified at Iowa Code § 692A.2A, states in full: 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. Where applicable, the Act restricts the area in which a person may reside to places that are not within two thousand feet from a school or child care facility. 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). As the restriction is limited to one’s residence, § 692A.2A does not otherwise prohibit an individual's presence within the restricted zone; affected persons are free to travel, work, or generally move about within any area. The Act contains no time frame regarding when a person committed his or her crime, but does include a limited “grandfather clause,” whereby an individual who has established a residence prior to July 1, 2002 is exempted from the area restrictions. See Iowa Code § 692A.2A (4)(c). The text of § 692A.2A also indicates that sex offender who establish legal residences after July, 1 2002 will be exempted from new restricted areas caused by the creation of a new school or child care facility after the effective date. See id. Finally, § 692A.2A gives no indication as to how long the restriction will apply to any given individual. B. Child Care Facility “Child care facility,” as the term is used in § 692A.2A, is defined at Iowa Code § 237A.1. Iowa Code § 692A.1(2). Under § 237A.1, a child care facility is “a child care center, preschool, or a registered child development home.” Iowa Code § 237A.1(5). The same code section defines a “child care center” as “a facility providing child care or preschool services for seven or more children, except when the facility is registered as a child development home,” and “preschool” as “a child care facility which provides to children ages three through five, for periods of time not exceeding three hours per day, programs designed to help the children to develop intellectual skills, social skills, and motor skills, and to extend their interest and understanding of the world about them.” Iowa Code § 237A.1(4), (13). A “child development home” is “a person or program registered under section 237A.3A that may provide child care to six or more children at any one time.” Iowa Code § 237A.1(7). Currently, the only available list of child care facilities is a database maintained by the Iowa Department of Human Services (“DHS”). Plaintiffs’ witness Jodi Caswell, a DHS administrator responsible for overseeing the registration of child development homes, explained that the database is maintained at the state central offices and is not published. Plaintiffs’ contend that they received a copy of the list only after filing an open records request and paying a seventy dollar fee. Ms. Caswell testified that the central database is updated daily. Ms. Caswell further explained that the turnover rate for child care facilities is frequent and could be high. Plaintiffs produced database reports from 2002 and the most current 2003 database to show the extent to which the database can change over a given year. (Plaintiffs’ Ex. 60 — 61). The 2002 list contains 7462 daycare locations and is 258 pages long. (Plaintiffs’ Ex. 60). Although the 2003 database lists only 7172 locations, 1921 of these are new from the 2002 database. (Plaintiffs’ Ex. 61). In several instances, the listings contain no physical address or only a post office box number, but Ms. Caswell testified that an applicant is supposed to provide a physical address. As Ms. Caswell testified, registering as a child development home requires an individual to meet certain requirements and to complete a one page application. At the most basic level, an individual can apply to register as a Category A child development home, so long as the applicant is at least eighteen years old, provides three letters of reference, and has a smoke detector and fire extinguisher in the house. See Plaintiffs’ Ex. 48. DHS also conducts criminal background checks on the applicant, employees, and any person over the age of fourteen living in the home. There is no fee for the application and the registration is valid for two years. C. Implementation of Iowa Code § 692A.2A John Werden, the Carroll County, Iowa, county attorney testified for the State on the steps taken to implement § 692A.2A in his county. Werden stated that after reviewing the Act, he contacted the Carroll County information technology department and asked them to produce maps generally locating the county’s schools and child care facilities. To produce the maps, Werden explained that the county utilized a Geographic Information Systems (“GIS”) system, ordinarily used by the county for tax assessment purposes, to input the locations of schools and child care facilities. County officials then manually selected parameters and defined the two thousand foot buffer areas around the locations. The maps are continuously updated-as locations are added or removed from the- database. Werden conceded that the maps produced were not accurate to the foot because of at least two variables. First, Werden explained that the GIS system relies on aerial photographs to establish geographic layers and to pinpoint given locations. Once the locations were established from the GIS system, a question arose regarding where to place the origin of the two thousand foot circles; circles could either be drawn based on the outer perimeter of a school or child care facility’s property boundaries or from the center of the property. Werden testified, however, that the maps his office provided to local law enforcement “were not meant to be to exact scale,” but “a reasonable way to provide general guidance.” In addition to the difficulties with scaling accuracy as described above, the map produced by Carroll County also failed to accurately reflect the locations of all schools and child care facilities in the county. As Werden admitted at trial, a daycare center in the town of Breda was mistakenly omitted from the maps produced for law enforcement and for trial. After correcting the map to reflect the location, the entire town was encompassed by a restricted area. Plaintiffs also presented the Court with maps from numerous jurisdictions throughout Iowa other than Carroll County. Plaintiffs noted, however, that not all counties or jurisdictions have created maps showing restricted areas. Plaintiffs indicate that, among others, no maps exist for the cities of Cedar Rapids, Davenport, Burlington, Newton, or Fort Dodge. In other counties, the responsibility for developing maps has been delegated to the towns and cities within the county. Plaintiffs used as an example, Johnson County, where no countywide map exists. Rather, maps from towns in Johnson County were prepared by the Iowa City and CoraMle police departments. Although the evidence indicates that not all jurisdictions that have created maps did so in the same fashion as Carroll County, the specific processes used to create each map is not clear. Lieutenant Ronald Wenman of the City of Coralville Police Department testified about the process of implementing and enforcing § 692A.2A in that town. Wen-man stated that when the Act was first enacted, he researched it as best he could and attended a training seminar conducted in Des Moines by the Iowa Department of Criminal Investigation. Wenman also assumed the responsibility for attempting to map the city of Coralville to identify restricted areas. In going about the process, Wenman explained that he had personal knowledge of where public schools and commercial daycare centers were located, and that he obtained a list of registered child care facilities from DHS to supplement his knowledge. Wenman provided this information to the city engineering department which then overlaid two thousand foot circles around each of the locations. Notice of the change in law was provided to sex offenders by the Iowa Department of Public Safety, Division of Criminal Investigation. As Defendants’ witness Joanne Tinker, the public service supervisor overseeing the sex offender registry, testified, notices were generated directly from the sex offender registry database and were sent to the registrant’s last home address, regardless of whether the offender’s victim was a minor. The notices included a portion of the text of § 692A.2A, but did not state whether the registrant was subject to the residency restriction described therein. As well, the notice did not include the exemptions to the restriction contained in the Act. D. Effect of Iowa Code § 692A.2A on Housing Both parties presented evidence and testimony to detail the significant effect that Iowa Code § 692A.2A has had on available housing for those offenders covered under the law. Perhaps most compelling are the maps detailing the restricted areas in various jurisdictions. 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. See Plaintiffs’ Ex. 9a, 11a. 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 child care facility, the entire town is often engulfed by an excluded area. See Plaintiffs’ Ex. 12b-12h. In Johnson County alone, the towns of Lone Tree, North Liberty, Oxford, Shueyville, Solon, Swisher, and Tiffen are wholly restricted to sex offenders under § 692A.2A. Unincorporated areas and towns too small to have a school or child care facility remain available, as does the country, but available housing in these areas is not necessarily readily available. Carroll County Attorney John Werden testified about the effect that § 692A.2A has had on housing in his county. As Werden explained, and a map of Carroll County shows, the majority of Carroll County remains available for sex offenders. The large majority of this area, however, is unincorporated farmland. Cities and towns in Carroll County follow the same pattern as those in the rest of the state. The City of Carroll, with a population of just over ten thousand, is all but completely blocked off. There are small areas around the edge of town that are not restricted, but Werden testified that only the areas to the north and south of town have residences. Certain small towns such as Halbur and Breda are completely restricted while other small towns without schools or child care facilities are completely available; the difference typically being the presence of one restricted location. The town of Breda appears completely available on the map, but Werden explained that this was a mistake. The town, in fact, has a registered private daycare center. With the error corrected, the town of Breda is entirely restricted from persons covered under § 692A.2A. Werden also provided actual numbers of housing that remains available in Carroll County for affected sex offenders. The housing statistics provided do not indicate whether units are rental properties or owner occupied, nor do they state the number of vacancies. In defining a residential unit, Werden explained that any dwelling was included, such that an apartment complex with four apartments would be counted as four units. Defendants’ Exhibit WC shows that of 9019 residential units in Carroll County, 6942 units are inside restricted zones and 2077, or twenty three percent, of housing units are not in restricted areas. Of the 2077, however, all but 383 residential units are in unincorporated areas. Werden conceded that the units in the unincorporated areas are mainly farmhouses, but noted that the trend towards larger farms has created some vacancies where the one who lives in the farmhouse no longer farms the land. Of the remaining 383 units, 244 are located in towns without a school or child care facility, leaving 139 possible housing units for sex offenders who want neither to live in a town so small that it has no services, nor in an unincorporated area. As a result, in towns and cities in Carroll County that are not completely available or completely restricted, barely two percent of housing is available to persons to § 692A.2A. E. Sex Offenders As of December 1, 2003 there were approximately 5674 sex offenders registered in the state of Iowa. (Defendants’ Ex. WA). Of the victims attributed to these offenders, 5073, or eighty three percent, were under the age of eighteen. Id. By far, the largest percentage of victims are females ages eleven to seventeen, with 2812, or 45.9 percent of total victims. Six to ten year old females rank as a distant, but disturbing, second with 1065 victims or 17.4 percent of all victims. Id. The statistics show that anyone of almost any age could be either the victim of a sex offender or the perpetrator of a sex offense. The average age for offenders is twenty three years old; female victims average thirteen and male victims average a mere eleven years old. Id. The youngest victims in Iowa have not even reached their first birthdays. Plaintiffs presented testimony and affidavits at trial from sixteen sex offenders, the wife of one of the sixteen, and the mother of a seventeenth offender. As in the Court’s previous Order, the Court shall refer to the Plaintiff class members using the John Doe pseudonyms assigned by Plaintiffs’ counsel. 1. John Doe I successfully completed probation after being convicted of second degree sexual assault under Wisconsin law in 1994 for having consensual sex with a girl who was fourteen years eleven months old when he was eighteen years and two months old. Under Iowa law, John Doe I’s actions would not constitute a crime, but he was nonetheless required to register as a sex offender when he moved to Iowa to attend the University of Iowa. He is not listed on the online Iowa Sex Offender Registry (“ISOR”). John Doe I currently resides in Johnson County, Iowa, in an apartment that is within the restricted zone under § 692A.2A. John Doe I originally signed a lease for an apartment prior to July, 1, 2002 and was exempted under § 692A.2A (c)(4). On August 1, 2003, John Doe I moved into a new apartment in the same apartment complex. Upon so doing, he was initially told that the move might be considered a change of address that would require him to re-register and lose his exempt status. In September 2003, however, the Johnson County Attorney informed him that the new apartment would also be exempted under the grandfather clause. 2. John Doe II pleaded guilty to third degree sexual abuse in August 2002 for having consensual sex with a fifteen year old girl when he was twenty years old. During the fall of 2002, John Doe II lived in a halfway house in Johnson County, Iowa. To be released from the halfway house, John Doe II was required to secure a residence that was acceptable to his counselor and parole officer. John Doe II had difficulty finding housing that complied with § 692A.2A, and he remained in the halfway house for longer than otherwise necessary until he found suitable housing in November 2002. John Doe II was evicted from this apartment in April 2003 because of problems with rent. He began looking for another residence, but had difficulty finding housing that was both within his budget and in compliance with the two thousand foot restriction. In searching for housing, John Doe II was assisted by Margie Stanton of the Johnson County Sheriffs Department, who would advise him on whether a given location was outside of a restricted area. Even with this assistance, John Doe II was unable to find legal housing in part because of the two thousand foot restriction and in part because of his own credit problems. John Doe II currently resides in Johnson County, Iowa at a location that would be in violation of § 692A.2A but for the Court’s injunction. He remains on probation, and his probation officer is aware of his current living situation. The online ISOR lists John Doe II as a moderate risk for re-offense. 3. John Doe III was released from prison in July 2000 after serving nearly half of a ten-year sentence for third-degree sexual assault. He is listed on the ISOR as a moderate risk to re-offend. John Doe III owns a home in Davenport, Iowa but he has had a difficult time making' his mortgage payments in large part because employers have been unwilling to retain him upon learning of his criminal history. John Doe III is engaged to a woman who owns a home in Clinton County, Iowa where she lives with her two minor children. John Doe III would like to live with his fiancee in her home, but would be unable to do so under § 692A.2A because the house is within a restricted area. 4. John Doe TV’s mother testified about her efforts to find her son legally acceptable housing after he received parole on June 10, 2003. John Doe IV was in prison because of multiple drunk driving offenses. He is subject to the restrictions of § 692A.2A because of a 1992 offense against a minor that was adjudicated in juvenile court because John Doe IV was fourteen years old at the time. When her son received parole, John Doe TV’s mother had intended that he come live with her in Mason City, Iowa. Before he could leave prison, however, John Doe IV had to have an approved place to live, and his mother’s house was within a restricted area. John Doe IV’s mother worked with his parole officer to find him a place to live, but learned that most of Mason City was restricted. She did try to find him a place at two locations that she was told about, but was unable to find any vacancies. John Doe IV was paroled to his mother’s house after the Court entered its injunction. John Doe IV has since absconded. 5. John Doe VI pleaded guilty to the charge of sexual abuse in the second degree in 1993 and was sentenced to twenty-five years in prison. While in prison, John Doe VI completed the sex offender treatment program and was paroled to Polk County, Iowa in February 2002. John Doe VI remains on supervised parole until 2005, and he currently participates in after care sex offender treatment. His risk status on the ISOF is high. John Doe VI began looking for a house to purchase for himself and his elderly and infirm mother in January 2003. He found a home within the city limits and measured the distance from the house to the two nearest schools with his car odometer. Believing that the house was not within a restricted area, he checked with the Des Moines Police Department and was told that the address complied with § 692A.2A. About six weeks after John Doe VI and his mother moved into the house on April 1, 2003, his mother received a call from the Des Moines Police Department Sex Offender Division stating that John Doe VI would have to move out as the house was actually within two thousand feet of a school. John Doe VI found and moved to a legally acceptable apartment in a Des Moines suburb, but was unable to maintain payments on both the apartment and the house. After being forced to move from his house, John Doe VI suffered a heart attack and incurred substantial medical bills in addition to the two housing payments. Shortly before the Court enjoined enforcement of § 692A.2A, John Doe VI was told to move out of the apartment as the owner did not want to rent to a sex offender. Upon issuance of the injunction, John Doe VI moved back into the house he had purchased with his mother. He states that if § 692A.2A is allowed to stand, he will have to sell the house as he can not afford two housing payments. 6. John Doe VII lives with his wife, their two children, and his mother-in-law in a two bedroom apartment in rural Linn County, Iowa. He must register as a sex offender in Iowa because he was convicted of the crime of indecent liberties with a child under Kansas law. As with John Doe I, John Doe VII’s actions would not have been criminal under Iowa law. The ISOR lists John Doe VII as a moderate risk to re-offend. John Doe VIPs wife gave birth to their second child in early December 2003. Shortly before the new arrival, his wife’s mother also moved into their apartment for financial reasons. The apartment is too small for the family and John Doe VII wishes to move to make room for everyone. John Doe VII states that he has investigated as many as forty locations in Cedar Rapids, Iowa, but none are beyond two-thousand feet from a school or child care facility. The Linn County Sheriff’s Department will not provide John Doe VII with a list of places to live in Cedar Rapids, but claim that they know of a few places on one side of town. The Sheriffs Department will not tell John Doe VII where these places are, and he has been unable to find a legally acceptable residence. Because of his crime, John Doe VII’s probation officer does not want him living next to a high school, but has no problem with John Doe VII living near a daycare center. 7. John Doe VIII was convicted of the aggravated misdemeanor of sexual exploitation of a minor under Iowa Code § 728.12(3) for possessing improper pictures from the internet. Because his crime involved an offense against a minor, John Doe VIII is subject to the residency restriction of § 692A.2A. John Doe VIII is classified as a high risk to re-offend. John Doe VIII attempted to find legal housing in the Iowa City area, but was unable to find anything that he could afford. He did find one possible location, but his application was denied because of his criminal record. After unsuccessfully searching for housing, John Doe VIII moved into his parents’ home with the consent of his probation officer though the home was in a restricted area. He lived with his parents in Iowa City until his recent move to another city with his girlfriend. This new residence is also within two thousand feet of a school or child care facility. John Doe VIII was charged with assault and driving under the influence in fall of 2003, and he expects that he will be sent to prison once he is sentenced for these crimes. 8. John Doe IX was also convicted under Iowa Code § 728.12(3) for downloading inappropriate material from the internet that involved minors. After being placed on probation for two years in June 2003, John Doe IX registered with the Johnson County Sheriffs Department and was given a list of four apartments that would be legally acceptable. John Doe IX looked into each of the four apartments, but learned that none of the listings had any current openings. He is currently living with his wife in an apartment that would be in violation of § 692A.2A but for the Court’s injunction, and he states that he does not know where he would find a place to live if the law were upheld. John Doe IX is not listed on the online ISOR. 9. John Doe X was convicted of a serious misdemeanor for violating Iowa Code § 709.14, lascivious conduct with a minor. John Doe X has been discharged from probation and is not included on the published list of sex offenders because he is classified as a low risk to re-offend. John Doe X and his wife both receive Social Security disability payments because of mental retardation and mental illness. John Doe X has no regular employment, but he occasionally finds work through government-sponsored work groups. As John Werden, the Carroll County Attorney, confirmed at the July 14 hearing, John Doe X cannot live anywhere in the City of Carroll because of the 2000 feet restriction. To comply with the two thousand foot restriction then, John Doe X moved to an apartment complex outside of Carroll, Iowa that is substantially more expensive than any apartment he could have obtained in town. Since moving, his mental and physical health have deteriorated. Because of the restriction, John Doe X was unable to obtain some subsidized housing otherwise available for mentally disabled individuals. 10. John Doe XI has lived at his parents’ house in Cedar Rapids, Iowa since before July 1, 2002, and is exempted from § 692A.2A so long as he remains there. In addition to their adult son, however, John Doe XI’s wife and John Doe XI and his wife’s fifteen month old daughter and six month old son also live in his parents’ house. As might be expected, the stress on all parties has been great. John Doe XI and his wife have searched for a new residence but were unable to find an apartment that was either not in a restricted area or that would accept John Doe XI given his criminal history. John Doe XI and his wife eventually purchased a house that is within two thousand feet of an elementary school. John Doe XI’s probation officer has no objection to him living in the house save for § 692A.2A. John Doe XI was convicted of committing lascivious acts with a thirteen year old girl in August 2000. He is classified as a. high risk to re-offend. 11.John Doe XII pleaded guilty to an aggravated misdemeanor charge of assault with intent to commit sexual abuse in Johnson County, Iowa in 2001. At the time of the offense, both John Doe XII and his victim were seventeen years old. He successfully completed two years of probation in August 2003 and is classified as a low risk to re-offend. He is not listed on the online ISOR. John Doe XII is a student at a college in Iowa. During his freshman year in 2001 and 2002, he lived in the school dormitories with the consent of his probation officer as § 692A.2A had not yet gone into effect. He relied on grant money to cover the cost of his room and board while at school. John Doe XII returned to his parents’ house the following summer and was living there when § 692A.2A went into effect. When he returned to school in August 2002, he was told that he could- no longer live in the dorms because of a nearby child care facility. Unlike John Doe I, the fact that John Doe XII had signed a housing contract prior to July 1, 2002 was of no consequence. John Doe XII was also told that living in the dorms during his freshman year did not qualify him for exempt status under § 692A.2A(4)(e). When he was told that he could not live on campus, John Doe XII returned to his parents’ home, but continued to attend school full time. As he was not living in the school dorms, he was no longer eligible for grant or scholarship money to cover his room and board. Instead, John Doe XII made a two hour daily commute to attend classes, yet was still able to maintain over a 3.5 grade point average. Once the Court enjoined enforcement of § 692A.2A, John Doe XII moved back into the school dormitories and his housing scholarship was reinstated. 12. John Doe XIII pleaded guilty to the class D felony of lascivious acts with a child in 2000 for offenses against his six year old stepdaughter. He completed two different sex.offender programs, was released from probation in August 2002, and is classified as a low risk to re-offend. John Doe XIII was living in Black Hawk County, Iowa when § 692A.2A went into effect. Although he was exempt from the residency restriction at the time under the grandfather clause, he was not able to afford the rent at that location and moved out. John Doe XIII looked for a more affordable residence in Black Hawk County but was unable to find anything that complied with the two thousand foot restriction. He, therefore, moved out of Iowa to his parents’ home in Indiana, where he has lived since. His parents have now moved to Missouri, and John Doe XIII would like to return to Iowa, but is unable to find a place in Black Hawk County that would comply with § 692A.2A. 13. John Doe XTV pleaded guilty to a serious misdemeanor charge in 1995 when he was nineteen after exposing himself at a party where a thirteen year old girl was present. Because of his crime, he was required to register as a sex offender for ten years. After successfully completing two years of probation and a sex offender class, John Doe XIV is not considered a risk to re-offend, and he is not listed on the online ISOR. John Doe XIV is now married and has two children, the second of which was born in September 2002. In the summer of 2002, John Doe XIV and his wife began looking for a larger place in Waterloo, Iowa in anticipation of the new baby. Although John Doe XIV had received a notice regarding the two thousand foot residency restriction, he mistakenly disregarded it because he did not think that it pertained to him. Instead, he and his wife found a house with shade trees on the street that they thought their daughter would love because of the elementary school playground around the corner. After moving into the new house on August 1, 2002, John Doe XIV registered the new address at the local sheriffs office as required by law. Upon so doing, he was told that he could not live in the house because of § 692A.2A’s residency restriction and that he would be arrested if he did not move. John Doe XIV returned to the sheriffs office the next day to consult a map and learned that the only locations not restricted by § 692A.2A were in a very exclusive and high priced neighborhood. He then spent the next two months looking for a place in or around the Waterloo area. When nothing was found, John Doe XIV and his wife ended up financing one hundred percent of the cost of a house in a rural area about forty five miles from Waterloo. Because of the move, John Doe XIV now commutes an hour each way to work every day, and the family rarely sees their friends and family from the Waterloo area. John Doe XIV explained that the move was particularly hard on his four year old daughter, and that she often asks about moving back. 14. John Doe XIV’s wife also testified about the effect of § 692A.2A on her and her family. Because of the residency restriction that her husband must abide by, she was forced to quit her job in Waterloo. She now works two jobs, but makes less than she did with her previous job. As there are no child care facilities near their home, John Doe XIV’s wife must drive sixteen miles each way to take their two young children to a daycare center so that she can work to afford the housing payments. To remain with her husband and family she had to leave her own family and friends in the town she had lived her entire life. She explained that the stress caused by looking for a new place and abiding by the residency restriction while in the final months of her second pregnancy was immense and sometimes made her depressed and hysterical. 15. John Doe XV was serving a twenty five year sentence for the second degree sexual abuse of his former girlfriend’s then ten year old daughter until he received a work release in May 2003. After completing the work release program, he was paroled in October 2003 to his mother’s house. As his mother’s house is within two thousand feet of a school, he would not have received the parole but for the Court’s injunction. John Doe XV has purchased a trailer of his own and wishes to move there, but will be unable to under § 692A.2A because the trailer court where the trailer is located is within a restricted area. John Doe XV is considered a moderate risk to re-offend. 16. John Doe XVI appears on the sex offender registry because he had consensual sex with a thirteen year old girl when he was eighteen. He is classified as a high risk to re-offend. When § 692A.2A went into effect, John Doe XVI was living in a small one bedroom apartment with his pregnant girlfriend. When the child was born in August, 2002, John Doe XVI’s father helped him purchase a condominium on the outskirts of Coralville, Iowa. After the Court entered its injunction, John Doe XVI and his family moved from the condominium into his childhood home. As the house is within a restricted area, he would not be able to remain there if the injunction is lifted. 17. John Doe XVII is not a member of the Plaintiff class as he is currently being criminally prosecuted for a violation of § 692A.2A. See July 25, 2003 Order § 11(A)(5). John Doe XVII pleaded guilty to two counts of sexual abuse in the third degree in 1994 and was sentenced to twenty years in prison. He is classified as a high risk to re-offend. John Doe XVII was released from prison in June 2003. The prison notified the Webster County Sheriffs Department of John Doe XVII’s intended address forty five days prior to his release, and the Sheriffs office raised no concerns at that time. After he was discharged from prison, John Doe XVII registered his new address with the Webster County Sheriff, but states that he was not told that the residence was within a restricted area though a daycare center was located in a nearby church. Within two weeks after registering his new address, John Doe XVII was arrested for violating the two thousand foot residency restriction of § 692A.2A. He is currently awaiting trial on the charge. 18. John Doe XVIII was convicted of lascivious acts against a minor for offenses against his stepdaughter. He completed the sex offender treatment program at Mt. Pleasant, Iowa and was given a work release by the board of parole in January 2003. He is classified as a high risk to re-offend. John Doe XVIII desired to live with his adult son upon his release from prison, but was unable to because his son lives -within two thousand feet of a school. After completing the work release program, John Doe XVIII moved to the country to comply with § 692A.2A. He believes that he would have received a parole rather than work release had he been able to live with his son. John Doe XVIII suffers from a number of serious medical problems, and he is concerned about living in the country where he does not have convenient access to a hospital and medical treatment. F. Expert Witness Testimony on Treatment, Restriction, and Supervision of Sex Offenders 1. Dudley Allison Dudley Allison, an Iowa Department of Corrections parole and probation officer in Johnson County who specializes in the supervision of sex offenders, testified for the State. Mr. Allison holds a bachelor’s degree in psychology and has been involved in training sessions for sex offender treatment. He does not consider himself a scientist, and he has done no clinical research on the treatment of sex offenders. From 1984 until the fall of 1996, Allison was a sex offender treatment manager at the Mount Pleasant Correctional Facility in Mount Pleasant, Iowa. During this time, he helped to develop and supervise the prison’s sex offender treatment program. As a treatment manager, Allison facilitated group therapy and other treatment sessions for sex offenders. Mr. Allison explained that when he worked at Mount Pleasant, treatment for sex offenders focused first on the individual offender acknowledging his or her past behavior and fighting through the minimizing, rationalizing, and excuses the offender relied on to justify the behaviors. Once the offender could acknowledge that his or her behavior was inappropriate, a relapse prevention plan was established to identify dangerous situations so the offender could, in the future, avoid the circumstances that led to the original offense. Both while offenders are incarcerated and once they are released, they participate in group and individual therapy sessions. As Allison explained, “sometimes an offense may be more of a situational thing, other times it may be almost a life long pattern of behavior; we have to consider that individually.” In his position as a parole and probation officer, Allison testified that he prepares risk assessments for the Department of Corrections. In so doing, he ranks individuals as a low, moderate, or high risk for re-offense based on a number of factors. Polygraph and plethysmograph tests are also used in the assessment process. As noted above, low risk individuals are subject to fewer community notification requirements and do not appear on the ISOR website. Allison testified that, as a parole and probation officer, he has the ability to place restrictions and limitations on the activities of the offenders he supervises. When crafting restrictions, Allison explained that he tries to have offenders avoid “dangerous situations,” which depend on several variables defined by the individual offender such as the type of offense, the risk assessment, victim choice, and others. Allison noted that just as the variables differ based on the individual offender, restrictions and limitations would also be individualized to address the specific needs of a given offender. He provided the example of twenty year olds with fourteen and fifteen year old girlfriends. These men have committed sexual offenses against minors, but Allison stated that he did not find these people to be specifically dangerous to young minors. For other offenders, Allison testified that he might not want an offender working in a toy shop or spending his days staring at a playground or school across the street. Mr. Allison opined that, based on his training and experience, he believes that there is a legitimate public safety concern regarding where sex offenders live. He testified, however, that as a parole and probation officer, he was able to deal with dangerous situations without § 692A.2A. As well, Allison admitted that placing sex offenders into residences designed to implement a particular offender’s parole or probation plan would be easier without the Act. Allison explained that, when considering restrictions for an offender, he was more concerned with the circumstances and situation into which the individual was being placed than he was with a specific distance. When asked about any concerns he had about potential problems that could arise if a number of sex offenders begin living in the same apartment complex or residence, Allison replied, “if you put individuals together with like interests, and those interests are negative or deviant, then potentially they could be negative influences on each other.” 2. Dr. William McEchron The State introduced the transcript of Dr. William McEchron’s expert witness testimony from a hearing on criminal defendant Keith Secring’s motion to dismiss for failure to state a constitutional claim, in the Iowa District Court for Washington County. Defendants’ Ex. MB. Dr. McEchron holds a Ph.D. in educational psychology from the University of Iowa, and maintains an office in Davenport, Iowa. His general practice includes seeing a variety of clients, including adults, children, and families, as well as doing work for custody evaluations. According to Dr. McEchron, “the majority of the practice is with people who have ... life’s problems, depression, anxiety, that sort of thing.” Defendant’s Ex. MB at 27. He also testified that he sees “a lot of sex offenders” and that his work in this area includes group therapy, evaluations for private attorneys, and occasional Court evaluations for sentencing and risk assessment purposes. According to Dr. McEchron, sexual offender behavior is not classified as a mental illness, but rather as a disruptive behavior. As did Mr. Allison, Dr. McEchron testified that a common element in the treatment of sex offenders is to first make them aware that they have done something wrong. Once this step is accomplished, treatment begins to focus on relapse prevention. The process of relapse prevention, Dr. McEchron explained, involves getting sex offenders to understand why they committed the offense. The process “varies from person to person,” and “there are probably very few common elements.” Id. at 37. He also identified “opportunity, knowing what the issues were in the person’s life” as another component of relapse prevention, noting, for example, that re-offense can happen “during a particularly stressful time in their lives.” Id. at 38. When asked if there is a cure for sex offenders, Dr. McEchron answered “no,” and went on to explain that, although there are some types of individuals with which they have had “a great deal of success” and “some that we feel very positive about”, “there are never any guarantees that they might not re-offend.” Id. at 29. Other individuals cause a much greater level of anxiety because they are prone to “a lot higher degree of re-offending.” Id. Dr. McEchron testified that he believed it is appropriate to place restrictions on sex offenders who are in his treatment and also under the supervision of the Department of Corrections. He explained that such restrictions are a “combined effort” that consists of a therapeutic component for which he is responsible, and issues of supervision and accountability in terms of following Court orders, for which the Department of Corrections is responsible. Finally, this combined effort also includes “what we feel is best for that individual— to be successful in the future and to not re-offend.” Id. at 30. Reasonable restrictions might include restricting a sex offender’s access to children, “particularly if that’s an issue,” but Dr. McEchron went on to explain that “we can’t say that all sex offenders offend against children, but certainly we’re very concerned about their welfare, and you also have to define, you know, the age of the children, the relationship to the offender and so on.” Id. at 31. Because there “were very high rates of re-offense for sex offenders who had offended against children,” Dr. McEchron testified that he believed it would be appropriate to restrict places where sex offenders might come into contact with children if their victims were children. Dr. McEchron stated that the appropriateness of such a restriction is “common sense,” although there is not sufficient data to allow them to know “where to draw the marks.” Id. at 32. “Ideally, you would want to have most, if not all, the restrictions, lifted from a person before they’re off of parole or probation to see how the offender does while there are still people involved in his life to keep an eye on him and see how he does in the real world.” Id. at 39. According to Dr. McEchron, removing restrictions would require “some judgment,” and that “there’s experience on the part of, particularly, the parole officers who use some judgment in terms of how can they let go of some of those restrictions.” Id. He stated that the goal is to have the person be self-restrictive, which involves starting off with appropriate restrictions and then educating the individual on how to avoid high-risk situations. He identified “opportunity” and “temptation” as the main elements that create a serious risk of re-offense when an offender finds himself around children, but Dr. McE-chron identified the biggest risk as “what’s going on inside the individual.” Id. at 33-34. He explained that, “we have a real hard time controlling what’s in a person’s head and in their heart. That has to be their responsibility in the end.” Id. at 34. Dr. McEchron agreed that controlling the opportunity and temptation to re-offend is the probable aim of restrictions that limit an offenders access to children and that reducing opportunity and temptation is extremely important to treatment. When questioned about the factors that go into assessing the dangerousness of sex offenders or the likelihood of their re-offense, Dr. McEchron said such factors would include prior history, prior criminal history, the number of offenses, the number of sexual offenses, the victim’s age, the victim’s sex, the relationship to the victim, whether alcohol was involved, and whether mental illness was involved. He testified that he had not seen a variable that consists of the distance that one resides from a school or day care, nor was he aware of any studies that have presented evidence of recidivism rates that specifically look at the distance sex offenders live from a school or child care facility. Dr. McEchron testified that a restriction that applies for the remainder of an individual’s life, regardless of progress made in treatment, does not aid in the treatment process because such a restriction does nothing to help motivate the offender. Rather, Dr. McEchron admitted that such restrictions could actually be a problem for treatment because the restriction seems unfair to the individual offender. He agreed that the residency restriction might be a setback for a person who is doing well in treatment, stating that it, “might not always be the case, but it certainly isn’t going to help him therapeutically. It’s not going to help them towards a good attitude towards authority and society, and it may spiral them into depression.” Id. at 51-52. Dr. McEchron further agreed that a law that would prevent a patient from living with, or being a part of, his or her family would be detrimental to the progress in treatment. Sex offenders, Dr. McEchron explained, attempt to avoid the restrictions that have been placed on them in order to create the opportunity or temptation to re-offend. As such, Dr. McEchron stated that there are “a number of issues that we try to deal with in treatment that are probably more powerful” than restrictions might be for eliminating re-offense because of opportunity and temptation. Id. at 36. He listed victim identification, victim insight, relapse prevention, and any possible mental health and substance abuse issues as controls to identify and treat to avoid later temptations and opportunities. Dr. McEchron testified that, “if there are those controls, you have isolated the problem and made it more manageable for the offender.” Id. at 36. Dr. McEchron stated that he knew of no particularly safe distance for those offenders who have not demonstrated self-control or adopted tools of relapse prevention. “There isn’t any good, hard data on what the minimum or maximum is ... I think it’s what’s inside the person’s mind.” Id. at 41. 3. Dr. Luis Rosell Dr. Luis Rosell, a clinical and forensic psychologist in Mount Pleasant, Iowa, testified as an expert witness for Plaintiffs. Dr. Rosell has testified in five different states on behalf of convicted sex offenders in proceedings for the post-incarceration civil commitment of sexually violent predators. After receiving his master’s degree in 1988, Dr. Rosell worked as a master’s level psychologist at the Reception Center in Baltimore, Maryland, a state run sex offender treatment program. Dr. Rosell received a doctorate in psychology in 1998. He has given numerous presentations on the topic of sex offender treatment. Dr. Rosell is also a member of the Association for the Treatment of Sexual Abusers (ATSA). From October 1998 until April 2002, Dr. Rosell served as the program director of the sex offender treatment program in Mount Pleasant, Iowa. In this capacity, his duties included supervising the twelve to thirteen correctional counselors who provided the majority of the treatment, as well as the master’s-level psychologists, who helped with evaluations. In preparation for his testimony in this case, Dr. Rosell sent a mass email to his colleagues in the ATSA, asking for any research on residency restrictions for sexual offenders. Although the email was sent to the more than one thousand members, the only response came from Stephen J. Hout, director of the sexual offender treatment program for the Minnesota Department of Corrections. Hout referred Dr. Rosell to his study, based on the State of Minnesota’s inquiry into residency restrictions, entitled Level Three Sex Offenders Residential Placement Issues. See Plaintiffs’ Ex. 41. Dr. Rosell testified that, to his knowledge, this study is the only professional writing that has in some way attempted to address residential placement issues as they pertain to sexual offenders. a. Categorization of Sex Offenders Dr. Rosell testified that it can be helpful to break sex offenders into different categories, “especially when it comes to determining risk.” Categorization of offenders is based first on a victim type, such as pedophilia. From this initial determination, there are different subcategories within pedophilia. The first subcategory depends on the sex of the victim, and the second subcategory delineates between in-cestual and non-incestual offenses. Dr. Rosell stated that the most common type of victim is one who has a familial relationship to their offender. While acting as program director in Mt. Pleasant, he observed that, at one time, of the 300 sexual offenders that were being treated, about forty nine percent had some form of relationship to their victim, and another twenty five to thirty percent knew their victims, either as friends, neighbors, or in a similar capacity. Dr. Rosell remarked that, in his experience, “stranger relationships,” where the offender does not know his or her victim, “have always been the least common type of relationships.” The final descriptor used to categorize offenders is “exclusive versus nonexclusive type,” where exclusive type means that the offenders are only attracted to children and have no interest in adults. Nonexclusive type sex offenders are individuals who have adult relationships most of the time, but who have also committed offenses against children and meet the criteria for pedophilia. A Swedish study which categorized sexual offenders by the modus operandi of the individual offenders has indicated that there can be stability in the offender’s choice of victim. Dr. Rosell explained that the study, which looked at 1,400 subjects, found that seventy five of them re-offended. These seventy five were then broken down to examine the type of offense in which they had engaged. The study showed significant stability in regards to the offenders’ choice of victims such that individuals that offended against males continued to offend against males, and so on. Offenders’ choice of victim by age groups also remained stable. Dr. Rosell opined that, “if an individual offends against 14 or 15 year old girls, they’re most likely going to stay in that range.” b. Recidivism Rates In discussing recidivism rates, Dr. Ro-sell referred to a 1998 study conducted by Dr. R. Karl Hanson and Monique Bussière, entitled, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies. See Plaintiffs’ Ex. 50. Dr. Hanson’s study involved a large “meta-analysis,” or a statistical study of other studies, that looked at sixty one studies with up to 28,000 subjects. They found that in a four-to five-year follow-up, 13.4 percent of child molesters re-offended and about 18.9 percent of adult rapists re-offended. Dr. Ro-sell also discussed a 2002 meta-analysis conducted by Dr. Hanson that examined the treatment outcome of 9,000 subjects. In that study, Dr. Hanson reported that among individuals that did not complete treatment, seventeen percent re-offended. Among those who did complete treatment, ten percent re-offended. When asked to provide an opinion based on all studies that examine recidivism rates for sex offenders, Dr. Rosell placed the recidivism rate over twenty years for sex offenders as a whole around twenty to twenty five percent, but qualified his answer by saying, “a lot depends on the individual.” As an example, he cited one study that found the recidivism rate to be about ten percent for incest offenders and twenty five percent for extra-familial offenders. Dr. Rosell agreed, however, that many, but not all, sex offenders will have to deal with their behaviors for the remainder of their lives. Over time though, Dr. Rosell stated, Dr. Hanson’s study makes clear that recidivism rates will decrease. He explained, “it’s believed that if an individual hasn’t recidivated after 10 or 15 years, obviously they have learned the right way to go and that likelihood is decreased.” c. Treatment and Restrictions As a general method for treating sex offenders, Dr. Rosell explained that “each person is going to have a different factor that led them to engage in this inappropriate act or acts.” As such, “the main thing about treatment is to identify all of those, then later assist ... the individual with [creating] coping mechanisms that can be implemented so that in the future, when they are confronted with similar situations, they don’t act in the same way.” Treatment restrictions are then considered based on the factors that led to the offending behavior to ensure that these elements are not duplicated when the individual is released from prison. Dr. Rosell explained that he would be concerned about whether the person had any substance abuse history and whether that was related to his offending behavior. Restrictions, he stated, “are going to be based on what type of victim they have.” Dr. Rosell agreed that specifically restricting a sex offender’s access to children was a good idea, and explained that the children he would be concerned about restricting the offender from would depend on the type of offending behavior in which that individual had engaged. For example, this would involve distinguishing an extra-familial offender from an intra-famil-ial offender, as “there are some offenders that offend only in the home, children, stepchildren, nieces, and cousins.” Dr. Rosell challenged the societal belief that sex offenders are the “ones we read about who kidnap kids and then there is a big search for them,” noting, “those are the exceptions, not the rules.” According to Dr. Rosell, “we need to be more aware of the ones who we actually know who they are and we may even be related to them.” Dr. Rosell was also asked - whether he believes it would be appropriate, in restricting a