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Sex Offender Registration Requirement Where Homeless

State v. William Dinkins, Sr., 2010 WI App 163, review granted 3/16/11; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; Dinkins BiC; State Resp.; Reply

A prisoner subject to sex offender registration requirement, § 301.45, isn’t subject to criminal penalty for failing, on impending release, to notify authorities of his intended “residence” where he will be homeless.

¶2        Dinkins’ primary contention, as we construe it, is that he could not be convicted of failing to provide his post-release address as required under Wis. Stat. § 301.45(2)(a)5. because he could not locate post-release housing, and thus did not have an “address at which [he] … w[ould] be residing” that he could provide to the department.  In response, the State argues that Dinkins could have complied with the address reporting requirement by providing the nearest address of any place he planned to sleep, including, for example, a park bench.

¶3        We agree with Dinkins.  Contrary to the State’s position, the term “residing” in the address reporting requirement plainly does not encompass a park bench—or a heating grate, bush, highway underpass, or other similar on-the-street location, for that matter.  Reading the address reporting requirement in conjunction with the requirement that prisoners nearing the expiration of their sentence provide this information prior to their release, we conclude that the statute contemplates the prisoner supplying the address of a location where the prisoner could reasonably predict he would actually be able to “resid[e].”  We reject the State’s argument that a park bench or similar on-the-street location is such a location.  We therefore reverse the judgment of conviction and the order denying postconviction relief.

All the rest is commentary, but no less fascinating for that. First, the rough background. The state publicly brands sex offenders and localities make it all but impossible for them to live anywhere (“hundreds of jurisdictions across the U.S. began initiating housing restrictions with increasingly larger buffer zones, often 2,500 feet, or about one-half mile. These laws have essentially banned sex offenders from living in some cities.”). Then, after essentially consigning this population to homelessness, the state insists that they provide up-to-date information on their non-existent “residence.” Dry understatement by Wikipedia, here (“This notification requirement is problematic in cases where the registered offender is homeless.” No kidding.).

Dinkins found himself caught up in this web. Due to be released from prison, he was required to inform authorities where he “is or will be residing” within 10 days of his impending release. He had no place to live, so he couldn’t very well comply. Outcome: he was convicted for violating the registration act and given probation but with 9 months in jail, ¶8. State beneficence at work. No place to live, no way to register? No problem. We’ll gladly put you up so you don’t have to worry about it for 9 months. Then wash, rinse, repeat. But the court of appeals now ends the cycle. Discerning that “residence” definitionally implies some sort of permanence, the court pragmatically concludes that you can’t be convicted of failing to fulfill a condition that is impossible to satisfy. “Impossibility” isn’t invoked as a defense, counsel for Dinkins instead creatively arguing lack of proof of an element, namely that “§ 301.45(2)(a) requires proof that the defendant had actual knowledge of the information that he was required to provide—knowledge Dinkins lacked because he did not know where he would be living upon his release,” ¶9. The court agrees:

¶18      Assuming without deciding that park benches, and other similar on-the-street locations have an “address” within the meaning of Wis. Stat. § 301.45(2)(a)5., we nonetheless conclude that a park bench or other on-the-street location is not a place where one may “resid[e]” within the meaning of the statute.  Further, reading the address reporting requirement in conjunction with the requirement that prisoners nearing the expiration of their sentence provide this information prior to their release, § 301.45(2)(e)4., we conclude that the address provided must be one at which the soon-to-be-released prisoner can reasonably predict he will actually be able to “resid[e].”

Final points. The precise facts deal with a prisoner about to be released, but the opinion is explicitly farther reaching than that, ¶25 n. 12 (” Under our interpretation of § 301.45(2)(a)5., which is compelled by the statute’s plain language, it would thus appear that any registrant who lacks an ‘address at which [he] is or will be residing’ cannot be prosecuted for failing to comply with the address registration requirement.” Emphasis supplied.) Indeed, the court cites with approval foreign caselaw that broadly exempts the homeless from residential registration, ¶23. To those authorities, add People v. Dowdy, MI App, 2/2/10 (upholding dismissal of registration act charge for homeless person’s failure to register “residence”).

And, what was the State’s defense? “The State counters that Dinkins, like everyone, knows that he must sleep somewhere, and Wis. Stat. § 301.45(2)(a)5. and (e)4. merely requires incarcerated sex offenders to identify and report the address or nearest address of the place where they plan to sleep at least ten days prior to their release—even if the place is a park bench or similar on-the-street location,” ¶17. There’s an Anatole France quality to the argument,  something like: The law in its majestic equality compels the rich to register their gated residence and the poor their grated bed. Assuming the gated community doesn’t bar sex offenders, in which case park benches may get crowded. And as for Aqualung setting up dusk-to-dawn patrol in a park? That should go over pretty well in the community.

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