f/k/a . . . the archives

June 13, 2007

Schenectady’s PanderPols vote to evict sex offenders

Filed under: Haiku or Senryu,lawyer news or ethics,Schenectady Synecdoche,viewpoint — David Giacalone @ 8:50 am

follow-up (March 27, 2010): The Schenectady County sex offender residency law was voided yesterday by State Supreme Court Justice Barry Kramer, who held that the law was pre-empted by New York State laws covering restrictions on where sex offenders may live. See “Sex offender law tossed out” (Albany Times Union, March 27, 2010).  The case was brought pro bono by the Albany law firm of [Terence] Kindlon Shanks & Associates, which has successfully challenged similar laws in Albany, Resselaer and Washington Counties.  Attorney Kathy Manley handled the Schenectady County case for the Kindlon law firm.

ExitSignArrow Talk about child abuse. More than a dozen Schenectady County high school students were “shadowing” our county legislators at a public meeting last night, and they got an unsavory and unvarnished civics lesson. Not only were the youth kept in their seats for four hours, but they had to witness both the ugly refusal by the Chair (Susan E. Savage) to permit debate on what is surely the most controversial piece of local legislation this year, and the nasty sight of posturing and pandering politicians, who “did something to protect children” by passing a means-pirited, shoddily-drafted and predictably ineffective set of residency restrictions on sex offenders. (see a FoxNews23 video covering the story) As today’s Albany Times Union explains, in “Law aims to shield kids: Schenectady County passes housing rules for sex convicts (June 13, 2007), under County of Schenectady Local Law No. 03-07 & 04-07, no matter what their risk level, the age of their victims, or the nature of their crimes, sex offenders may no longer reside near places where children congregate (that is, any elementary, middle or high school, child care facility, public park, playground or swimming pool, or youth center). Not only are they prohibited from moving to a residence within 2000 feet of such places, but:

“The change requires sex offenders — at every level — to leave their homes starting Oct. 1, should they reside within 2,000 feet of public parks, pools and playgrounds, as well as schools, day care and youth facilities.” (emphasis added)

Indeed, if any of those facilities are built, relocated, or licensed within 2000 feet of the residence of a sex offender at any future time, he or she must move within ninety days. These draconian restrictions were passed yesterday by an 11 to 3 vote of the county legislature, with only former judge Michael Eidens, former Schenectady mayor Karen B. Johnson, and Carolina M. Lazzari voting “no.” The legislators who voted “yes” knew two things: (1) many aroused voter-citizens, who are fearful for their children and angry over having sex offenders live near them, want the County to do something; and (2) there is absolutely no evidence that proximity restrictions in any way reduce recidivism, and much research and expert advice that says they are likely to make things worse (by destabilizing the offenders, removing social networks, and making it harder to locate them). Despite the latter fact, the politicians decided to bow to the politically-urgent former one.

SchdyCountySeal In case you’re thinking “they surely aren’t doing this for political advantage,” let me point out that the nine co-sponsors are all Democrats, who would not permit any Republicans to co-sponsor the bill — not even Joseph Suhrada, who had first proposed the restrictions two years ago. (The procedural bullying done by my party, now that they have local and federal legislative majorities, often embarrasses me). The Democratic legislators only became aware of the importance and urgency of the problem when a sex offender moved on the block of one of them, and the folk in one town got very loud in their demands for action. Frank Quinn, a town supervisor (who spoke for four others whose towns would likely be the destination of many offenders displaced from the more populous parts of the County) complained they were never consulted, and said last night: “There’s no reason to do this tonight. . . The problem of how to effectively manage sex offenders has been around for thousands of years.” As the TU reported, he added, “This legislation is really designed to influence upcoming county elections by pandering to selected voters and their fears.” [also see CapitalNews9, "Schenectady County legislature considers sex offender legislation," June 12, 2007]

eviction notice —
a moth ricochets
in the lampshade

. . . by Alice FramptonThe Heron’s Nest (March 2004)

When I first wrote about sex offender residency limits in April 2005 (and the related Halloween Political Tricks), I had no idea that my little County would be passing the most restrictive laws of any of the jurisdictions in our region. In 2005, there was a spurt of activity by politicians in many states and localities rushing to out-do each other in being tough on sexual predators — by pretending to do something that would actually make a difference and protect children. One spur was the Doe V. Miller decision by the 8th Circuit federal appellate court, which upheld the residency restrictions in Iowa against constitutional challenges. Since then other states have upheld similar laws, but not laws that failed to grandfather in current residences or forced offenders to move if a children’s facility moved near them. The restrictions (with or without grandfather clauses) have not been tested in New York Courts. I believe they should be struck down as violations of important civil liberties. As the Associated Press reported on May 30, 2007, a Missouri circuit court judge has struck down the retroactivity feature of a Missouri residency law [in the case rel L. v. Dept. of Corrections]. “Missouri judge tosses part of law keeping sex offenders away from schools, ” KansasCity.com/AP (via the Sex Crimes weblog)

moving day– exitSign
warm rain
on cardboard

………………….. by Alice Frampton – New Resonance 3 & The Heron’s Nest (2002)

Many viewpoints were expressed at least night’s public meeting. Having represented many children in abuse cases, I believe sex abuse is a serious and terrible crime. I told the County Legislature, however, that they ordinance was not a serious attempt to solve the problem and was terrible policy. I’m sympathetic with the fear of so many parents, but I believe they must be told that there are better alternatives for dealing with this problem and residency restrictions will only produce a false sense of protection. The TU article describes the message of “David Hess, a registered Level 1, or ‘low-risk,’ sex offender — and now a minister from Henrietta in Monroe County.” Hess warned that the changes would cause sex offenders to move underground and commit more offenses. The TU continued:

He noted nothing keeps them from visiting locations they will no longer be permitted to live. “This law says sex offenders cannot spend their nights where children spend their days,” he said.

now with homeless eyes
I see it…
blossoming spring

…. by Issa, translated by David G. Lanoue

You can find a very good discussion of issues presented by the residency restrictions on sex offenders by Lior Strahilevitz and many commentors at PrawfsBlawg‘s “Sex Offender Residency Restrictions and the Right to Live Where You Want,” Aug. 3, 2005, and Michael Cernovich reviews many of the relevant legal issues at Crime & Federalsim, in his posting Doe v. Miller: The Legal Theories. Residency restrictions have been in the news a lot recently, and have been covered well by Corey Rayburn Yung at Sex Crimes (e.g., here), and by Prof. Douglas A. Berman, at Sentencing Law and Policy weblog. Last year, Prof. Berman pointed to “A potent and important prosecutorial statement against sex offender residency restrictions” (Feb. 9, 2006). The document was released by the Iowa County Attorneys Association, an organization of county prosecutors seeking “to promote the uniform and efficient administration of the criminal justice system.” In its five-page statement ICAA explains that Iowa’s broad sex offender residency restriction “does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure.”

deep
in the scent of summer
a homeless man

autumn wind—
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta
“deep” – Roadrunner (Winter 2005)

WrongWayN For further reading on this topic, I suggest:

  1. An important amicus brief to the Ohio Supreme Court, which is quoted at length in the Sex Crimes posting “Amicus Brief in Challenge to Ohio Residency Restrictions” (June 5, 2007). Among many cogent points, the brief argues that “the Ohio statute may increase the risk of recidivism by forcing many sex offenders to move from supportive environments that reduce the offenders’ risk of re-offending. See, e.g., JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY (2003) (concluding that positive social support is critical to the success of released offenders.).”
  2. The Sun Sentinel article “Offender fights Palm Beach County ordinance: Tough laws limit where they can live, but critics doubt their effectiveness (June 3, 2007).
  3. The Newsday story, “Residency laws for sex offenders under microscope:
    Restrictions aim to prevent repeat crimes, but critics say all laws do is prevent offenders from rebuilding lives,” Dec. 2, 2006.
  4. More limits on sex offenders won’t help, advocate tells board,” St. Louis Post-Dispatch, June 7, 2007, covering the consideration of residency restrictions in Wentzville, MO.
  5. [update: June 14, 2007] “Patchwork of sex offender laws leads to confusion,” CapitalNews 9 [Albany, NY], June 13, 2007.
  6. Montgomery County reacting to Schenectady sex offender restrictions,” WNYT.com, June 14, 2007. ["We'll take a look at what we have here on the books already, do an assessment in order to keep them from making a mass exodus from Schenectady County or any other county into our county," said Tom DiMezza, chairman of the Board of Supervisors.] And, “Sex offender says he has no place left to go,” WNYT.com, June 14, 2007 (focus on Richard Matthews, a registered sex offender living in Scotia, NY).

I believe the policy issues presented by sex offender residence restrictions are important for the integrity of our society. Notwithstanding the example of the current Administration in Washington, we cannot react to fear (especially exaggerated fear) by unduly restricting the civil liberties of an undesirable or unpopular class of people. The issues are important enough, that I told the County Legislature last night that I would come out of retirement to help bring a declaratory judgment suit or other challenge to their actions (that really brought them to their senses). Since I’m a bit rusty (as well as under the weather a lot), I would appreciate any volunteer assistance in this battle. If you don’t know how to contact me, just leave a Comment below.

StrockCarl Carl Strock

update (June 14, 2007): Columnist Carl Strock, of the Schenectady Gazette (which is only available online by subscription), continued his excellent coverage of sex-offender issues today — attempting to focus on facts and reason in the face of hysteria and political pandering. We’ve mentioned Carl at f/k/a before (e.g., here, there). In my own quixotic role of self-appointed Ethics Advisor to the legal profession, I often feel kinship with Carl. As a journalist with an opinion and sharp pen, he must enjoy having targets like our local politicians, who are so often engaged in easy-to-lampoon behavior. As a citizen, however, Carl must feel very frustrated by the futility of his mission. In a column titled “Sch’dy law speaks to primal fears” (June 14, 2007), Carl exercises his “customary restraint” and calls Tuesday’s meeting of the Schenectady County Legislature “one of the most shameful displays of pandering that I have ever seen in a lawmaking body.” Carl asks “Pandering to what?” and replies:

“To the deep primal fear that your child or mine might be raped and murdered by some slavering, out-of-control, subhuman monster. . . . “

Noting that sex offenders are officially called “predators” and “have become in the popular imagination a separate category of human beings,” Strock shows that the idea of a lurking bogeyman has captured the public and left our Legislature beyond caring about facts and reason. They have passed a law that is very likely to make things worse but don’t care. “They have spit in the eye of the bogeyman, and that’s enough.” On the Gazette‘s opinion page today, the lead editorial, “Lousy laws on sex offenders,” also gets it right, saying that the new legislation “not only plays to public hysteria, but promotes it.”

What makes this law so despicable to me is the fact that our legislators do know better. They’re not overwhelmed by the fear of the bogeyman. They are instead willing to exploit those fears for political advantage.

Personally, I have no problem having a sex offender who is struggling to straighten out his life living on my block. Right now, I’m more worried about the power and bad example of our pandering politicians. I’m relieved that I don’t live within 2000 feet of Ed Kosiur, Bob Farley, Sue Savage, Tony Jasenski, Vince DiCerbo, Mike Petta, Gary Hughes, Philip Fields, Brian Gordon, and Judy Dagostino. Please warn me if any of them move to my neighborhood. [Update: July 18, 2007: For a recent, well-written, 36-page opinion, from the Kenton District Court, refusing to enforce Kentucky’s SORR (which also has no grandfather clause) and declaring it to be unconstitutional ex-post facto punishment, read Kentucky v. Baker, Case Number, 07-M-00604, etc., Martin J. Sheehan, District Judge (via David Hess at The Parson.net).]

update (July 30, 2007) See stop kosiur: my first single-issue election (July 31, 2007)

update (Aug. 8, 2007): See our post “NYCLU Letter threatens lawsuit over Schenectady County sex offender law” (Aug. 7, 2007)

update (Aug. 9, 2007): see “not one repeat child-molesting stranger: Strock,” covering Carl Strock’s findings about child molestation cases in Schenectady County over the past two years.

update (Aug. 23, 2007): “Schenectady’s (d)evolving sex offender laws“. And see

Sex Offenders: A Flawed Law: from Gatehouse News Service.

Overview: Here’s a list of major f/k/a postings on residency restrictions and other exclusionary laws relating to sex offenders:

nothing else blooming
but rape…
my hut

for this homeless body
of mine, spring’s
first day

exitSignN …………… by Issa, translated by David G. Lanoue

7 Comments

  1. Thank you for your blogging about this issue. This is an interesting topic to me, as I’m a level two sex offender facing nearly the same dilemma in Oneida county, which is about an hour and a half away from you. Their proposed law is found at the bottom of this PDF, http://www.oneidacounty.org/oneidacty/gov/leg/Communications07/Communications053007new.pdf . It’ll probably pass in about two weeks. It too is retroactive, but does not effect level ones, so I suppose it is not as bad as what is in your county, but it will still effect at my best estimation about 200 offenders (even though newspaper articles say it will only effect about 50). Either way, personally, I’m a step away from a nervous break down, as no matter how I read the law, I’ll be forced to move and there really is no place to go other than to the next county, as it’ll blanket most of the towns and cities around, and country space is either just too expensive to live at or simply not available.

    But then again, this situation is the same just about everywhere that passes a zone. If you read Putnam County’s laws, you’ll see that they are probably worse than Schenectady’s, as it’s 2500 feet and bans incredibly insane things, like 2 family homes, trailer parks, school bus stops, etc. Here is the county map of laws if you want to review what’s out there. http://theparson.net/so/residency.htm It was not until this year when suddenly everyone went retroactive crazy. I’m not entirely certain why, but I think there was some cases in other states had judged that you have the right to own property, but not the right to stay there, which is how they can justify going retroactive, in addition that these requirements are not ‘punishments’, but regulations done in the best interest of public safety. I’m no lawyer, but that’s how it reads to me and probably how people would loose these cases in NY when sued up to the highest courts. I’m personally still trying to work out how we lost the Doe V. Pataki case where 4400 SOs had a tight contract with the state which said that we had only 10 years on the registry, but now we must now be on the registry for life (for level 2s that is) regardless of that contract. It seems that anything goes with bending and twisting the legal system around to take away our rights at the highest appeal court and it’ll take a Supreme Court ruling to settle anything.

    Anyway, the sad fact is that the laws will get passed, as it looks good for votes, even when they know better. I’ve read this over and over and it won’t change. It’s come to the point that we need to put some lawsuits out there to slow things down. In my particular situation, one of the people on this board that will vote for this law is the same lawyer that had defended me some 9 years ago! It’ll be a kick in the gut to me and all the sex offenders which he defended if he votes for this one.

    Anyway, the pastor/minister you had mentioned, David Hess, is a vocal leader in the efforts of SO rights and probably the one you really want to be in actual contact with. You can probably get some legal things going as he knows other legal people you can probably talk to and so on with the networking. He had tried in several areas to prevent the passing of these laws, yet only once managed to get an area to change their minds. Talking is probably not going to change minds, but lawsuits will.

    The sad fact here is that we are all hoping for legal action to happen, but absolutely nothing is happening. I think it’s mostly because SOs are poor and cannot afford to take this to the highest court in the land. Not to mention the public humiliation and hatred we face if we do try to fight. Even those brave enough to fight, They’ve tried to get help and was turned down by legal aid, civil liberties unions, and the like as well.

    I see you’re pleading for help, as well as we are, so perhaps we can join up to combine our efforts to somehow restore liberties that we are loosing. Many SOs and their families, are joined together at a website at http://www.sohopeful.org and I’m certain you are welcomed to join if you wish to keep abreast on things. Also, http://theparson.net/ is the website for David Hess and it is a wealth of additional knowledge and the man to contact to get things going.

    Thanks for reading and I hope we can see justice happen together.

    Comment by RW — June 17, 2007 @ 4:34 pm

  2. Thanks for your commentary on the Schenectady situation. I am the minister who spoke at the hearing.

    As you rightly point out, there has been no court ruling yet on a New York residency law; however there was a ruling in a Rochester court a couple of weeks ago which has some relevance. The decision dealt with a Level 2 offender on probation:

    http://www.whec.com/article/stories/S99401.shtml?cat=565

    “The probation department made a request to limit where he can go in this community, asking that he not be allowed to go within 1,000 feet of a school or facility where there are children under the age of 18. The judge denied the request because it comes out of a law enacted in September of 2005, Farchione was sentenced three months before the law went into effect.”

    If this court denied this limitation being placed on someone on probation, it hardly seems likely that the court would allow a residency limitation to be placed on an offender no longer on probation and to do it retroactively.

    There is also a well written decision in a recent Kentucky case – http://theparson.net/so/residencyrestrictions.source.prod_affiliate.79.pdf

    I have put up a page dealing with “Facts about Megan’s Law and Sex Offenders In New York State” – http://theparson.net/so

    Comment by David Hess — June 18, 2007 @ 6:52 am

  3. RW and David, thank you for the information and your thoughtful comments, and for staying on top of this important and complicated issue.

    Comment by David Giacalone — June 18, 2007 @ 8:33 am

  4. David,

    I was contacted by a Schenectady family (includes school age children) who is being forced to move by this law. I gave them your name and phone number If you are serious about coming out of retirement to fight this, I’m sure they would willing to be your client. They are a low income family and cannot afford legal representation. So if you are interested in taking it on pro bono…. :-)

    Comment by David Hess — June 20, 2007 @ 4:38 pm

  5. David,

    Thank you for being focused on this very serious issue.

    If you believe that I could be of help please feel free to contact me at the e-mail address that I provided.

    My skills are primarily statistic/probability theory.

    Comment by Mike Boyer — July 9, 2007 @ 10:28 am

  6. Yes, thank you for your web site. Let the public know that the scales of justice can be rigged for anyone to fail and be convicted. When public officials knowingly present and instruct a jury to serious major fraudulent false evidence then anyone can be convicted. Tampering with evidence is not public policy nor a state interest. I have proof of the fraud by public officials to a jury. Hiding stated evidence to innocence by prosecution witness is further proof of obstructing justice. Public officials here manufacture evidence to deceive a jury…this manufactures more prisons that takes and deceives the public. The real name to these laws should be Stalin Law. You will be oppressed punished restricted for a crime that another person is responsible for in another state or location that you had nothing to do with but that doesn’t matter; Stalin Law. They put someone elses name on this law but they really should name it what it really is; Stalin Law= communist law. Help me with a donation so the truth can be exposed and also prove these restrictions are punishment=unconstitutional. I can help . Lets go ! MOLINA 927 south Bruce-# 5 Anaheim, Ca. 92804

    Comment by MOLINA — August 30, 2007 @ 4:05 am

  7. [...] f/k/a from Harvard blogs about controversial laws restricting where sex offenders can live. [...]

    Comment by Thanks to Schenectady’s Kosiur’s Law, Sex Offender Moves to Amsterdam. « Upstream — April 6, 2008 @ 8:28 am

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