f/k/a . . . the archives

February 2, 2009

don’t let a bad idea go statewide: Sex Offender Residence Restrictions in NYS

Filed under: viewpoint — David Giacalone @ 4:27 pm

.. Only one week after NYS Supreme Court Justice William Kelly struck down Rockland County’s sex offender residency law in the case of Peo. v. Oberlander (see our prior post), and in “direct response” to the decision, Senate Majority Leader Malcolm A. Smith proposed S.01300, calling the bill “Major Statewide Legislation Aimed to Protect Children from Sex Offenders” (press release, Jan. 30, 2009; reprinted at NewsLI.com).   Senator Smith’s legislation would prohibit a registered sex offender from living anywhere in New York State within 1,000 feet of a school building, park, or day care center, for at least ten years after release, and would impose criminal penalties for violations. (The press release was apparently rushed out before the actual bill was ready to post at the Senate website. update [6 PM]: Text of S.01300; bill summary)

Because Oberlander held that State law and policy pre-empted action by local units of government with regard to sex offender residency restrictions [SORR], and about 80 local SORR laws are on the books across New York State, some statewide action is indeed warranted.  What we did not need, however, was a stampede to spread residency bans that are a bad idea on a local level throughout the entire State.  [update: For example, the proposal in Colonie, NY, to ban sex offenders from living within 1500' of eachother.]

It takes no courage at all for a politician to support such residency bans.  It does take courage, and a deep sense of commitment to fair and effective government, to resist the temptation to “do something/anything” and make believe the problem is solved.

update (Feb. 2, 2009, 6 PM): The text of S.01300 has been posted.  It would be an amendment to Section 168-b of the correction law.  Under the new Sec. 168-W (1) “No sex offender shall reside in a residence that is within one thousand feet of any” school, building where day care is provided, or park.

The residency ban will last “for the greater of ten years or the period or term of probation, parole, conditional release or post-release supervision,” and “shall apply to sex offenders convicted or released on or after” the law becomes effective [sixty days after it becomes law].

Sen. Johnson is correct that having scores of local SORR laws has created a “confusing patchwork” that we “need to simply.”  But, he is also right when he says that we need to get our laws right.  Rather than calling for hearings to determine whether current State policy is wise and effective, and whether residency bans actually protect children, Sen. Smith and Sen. Craig Johnson have done the politically expedient thing and immediately moved to impose on the entire state a law that many law enforcement and criminal justice experts have found to be not merely ineffective, but actually counterproductive — and, which will put an expensive and time-consuming burden on law enforcement.

Senator Smith, along with Senator Johnson, has decided to mollify the excessive fears of some members of our community by taking rights away from a disfavored group, even after they have served their time and have met their parole or probation requirements, and with no regard to the actual risk presented by each individual offender.

Incanting “protection of children” and “assurances to parents,” Smith and Johnson are jumping on the residency ban “solution” with “Not a scintilla of evidence that residency restrictions protect children.” (Schenectady Gazette, “Legislators scramble on sex offenders,” by Carl Strock, Aug. 26, 2007, p. B1).  And, they’re acting in the face of analysis and evidence showing that the best way to prevent recidivism is to offer offenders a supportive social, supervisory, and therapeutic network, in a context where they are well-monitored and have relevant services readily available, along with the opportunity for stable employment, and the chance to re-integrate into society.

Forcing sex offenders out of the populated areas (away from family and friends, and with inadequate transportation and services) or into tiny sex-offender ghettos, makes it harder to achieve any of those goals, and therefore increases rather than decreases the chance of re-offending.  It also hurts the families of the offenders, and will surely upset the residents of the “disfavored” areas that fall outside the zones of protection.

Under the current system, local probation and social services officials have the responsibility to find appropriate housing for the most dangerous sex offenders, taking into account each offender’s situation.  That system is working well.  Despite the misinformation that comes from politicians and proponents of harsh treatment for sex offenders after they leave the justice system, the most recent sex offender recidivism study notes that:

“sex offenders are arrested and/or convicted of committing a new sex crime at a lower rate than other offenders who commit other new non-sexual crimes.” (Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment, New York State Division of Probation and Correctional Alternatives, May, 2007)

As I said in one of our first posts on the subject of residency bans, in 2007: 

The policy issues presented by sex offender residence restrictions are important for the integrity of our society. Notwithstanding the example of the current [Bush] 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.

We certainly should not be reacting to such fear with measures that are likely to make things worse. [See The Parson.net for a full discussion of why such bans are ineffective and counter-productive; and see the resources at the end of this posting.]  In response to the Oberlander case, the State Legislature should act responsibly and thoughtfully.  It should clarify that local government units do not have the authority to place residency restrictions on sex offenders beyond those already mandated by State law.  In order to best protect our children, the State should continue close monitoring and individualized housing decisions for dangerous sex offenders, while aiming as the long-term goal to reintegrate sex offenders into the community, as they show they are ready to accept the responsibility.

afterwords (Feb. 3, 2009):  In his coverage of the new bill last night, Prof. Corey Rayburn Yung at the Sex Crimes weblog has this interesting observation:

“The response provides an interesting contrast with New Jersey. In that state, several courts struck down residency restrictions on preemption grounds. However, as far as I know the state legislature didn’t make a political issue out of it. In New York, it seems like the legislature has taken a different approach. The state has been free to pass residency restrictions all along – so this seems like a basic attempt to politicize a court decision. I wonder if the bill will gain traction.”

It is very difficult to believe that Sen. Johnson is not already aware of the arguments against residency bans that keep a sex offender from re-integrating into society.  Should he or other legislators and policy-makers, or members of the public, want to learn more, they can go “below the fold”, where I’ve listed informative resources, along with excerpts and links from prior discussion at this weblog.

afterwords (Feb. 20, 2009): See our post on Peo. v. James Blair, in which an Albany City Court judge follows the Oberlander precedent.

Here are resources for understanding the issues raised by attempts to create permanent or long-term residency bans for broad categories of sex offenders around locations, like schools and parks, where many children congregate.

TheParson.net has compiled and produced a lot of information about Sex Offender Residency Laws.   Here is Rev. David Hess’s summary of the current State law on that topic:

New York State law  mandates as a condition of parole that Level 3 (high risk) sex offenders or those offenders with victims under the age of 18 may not reside within 1,000 feet of a school. The State also mandates as a condition of probation that Level 3 sex offenders whose victims were under 18 may not reside within 1,000 feet of a school.  These are the only state laws regulating where sex offenders may live.  [see text of the laws here]

And see his “Why additonal Residency Bans are ineffective and counter-productive.”

.. .. The 146-page Human Rights Watch Report “No Easy Answers: Sex offender Laws in the United Sates” (September 2007) includes a detailed discussion of Residency Restrictions on Sex Offenders, describing reasons for and experience with current laws, and the many issues raised by such restrictions.  In its Recommendations section, the Report states:

Residency Restrictions
Neither states nor localities should have residency restriction laws that apply to entire classes of former offenders. Authorized residency restrictions should be limited to individually tailored restrictions for certain offenders as a condition of the terms of his or her probation, parole, or other mandated supervision.

Also see: “How far can  – or should – communities go to restrict sex offenders?” (LOHud.com, by Nancy Cutler, Feb. 2, 2009)

We’ve discussed the issues often here at f/k/a, since the Schenectady County Legislature passed its sex offender residency restrictions [SORR] in 2007.  Click for a list of our major SORR postings.  Here are excerpts from a few of the relevant posts at f/k/a:

.from June 13, 2007:

. . . . 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.”

. . A valuable amicus brief to the Ohio Supreme Court is quoted 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).”

. . from our post of Aug. 9, 2007:

..  In his Schenectady Gazette column called “Schenectady’s imaginary predators” Carl Strock wrote:

“. . . [H]ere’s what I learned from no less an authority than Schenectady County District Attorney Robert Carney … In the past two years the district attorney’s office has processed 113 sex crime defendants and of those a mere six were registered sex offenders repeating their crimes. Further, of those six repeaters, only two were charged with offenses against children, and of those two, neither was accused as a stranger. They were both some kind of family members or acquaintances.”

“In other words in the past two years there has not been a single case of what the legislators (and many others) want us to believe is a tremendous social problem — serial ‘predators’ skulking around schools and playgrounds waiting to snatch away our innocent children for their perverted gratification.”

“Not a single case. So the panic is even more crackpot than I thought, or more cynical.” Carl Strock, Daily Gazette, Aug. 9, 2007.

. .  from our post of Aug. 23, 2007: (re: amendments to the Schenectady County SORR)

When I had my chance to speak, I hoped to reassure worried parents like Marincic and Legislators who felt they were letting such constituents down, by reading a few sentences from Residential Proximity & Sex Offense Recidivism in Minnesota (Minnesota Department of Corrections, April 2007):

“even when offenders established direct contact with victims, they were unlikely to do so close to where they lived. This may be due mostly to the fact that offenders are more likely to be recognized within their own neighborhoods. As a result, when direct contact offenders look for a victim, they are more likely to go to an area relatively close to home (i.e. within 20 miles of their residence), but still far enough away (i.e., more than one mile) to decrease the chances of being recognized.”

I also opined that (when concerned parents voiced their fears about living near sex offenders and insisted they be removed from their neighborhoods), the Legislators should have showed sympathy for the fears, but insisted that the laws they wanted would be “ineffective, counterproductive, and unAmerican.” I thanked the County Legislature for teaching me to pay attention to what is happening here locally and to be diligent in preserving our civil liberties, and the proper relationship of the government to the people — no matter which party is in control (I remain embarrassed that Democrats spawned this legislation and are still playing politics).

. . from our post of September 9, 2007:

Sunday newspapers across the nation have major articles today (Sept. 9, 2007) questioning the efficacy, enforceability and negative unintended consequences of residency restrictions on sex offenders. An Associated Press story out of California, by Catherine Saillant for the Los Angeles Times, is appearing in media markets big and small, from the Seattle Times in Washington State ["Strict laws may foil sex-offender tracking"] to the Concord Monitor in Massachusetts . . .

A social agency has tried for 17 months to find a place for Ross Wollschlager to live. The article continues with a quote from Margaret Coyle, a county prosecutor who opposed Wollschlager’s release:

“It’s harder to protect the public when he is homeless. Were he in a condo or an apartment, we could supervise him more effectively.”

In addition, a Wilkes-Barre, PA, councilman insists that he will continue to press for residency restrictions, despite the fact that “Mayor, residents voice doubt over councilman’s sex offender ordinance” (Zwire.com. Sept. 8, 2007). According to CitizensVoice.com:

“Mayor Tom Leighton gave [Councilman Jim] McCarthy a letter at a work session Tuesday from Lauren Taylor, executive director of the sexual offenders assessment board of the Pennsylvania Board of Probation and Parole, which cites research showing there is no correlation between residency restrictions and reducing sex offenses against children. In fact, ordinances may make children more vulnerable to sexual predators, the letter stated.

“According to the letter, 93 percent of sexual abuse victims know their abuser; 34 percent are family members and 59 percent are acquaintances. Forty percent of sexual assaults take place in the victim’s own home and 20 percent take place in the home of a friend, neighbor or relative.

“Residency restrictions may have the unintended effect of increasing risk and may make supervision and management more difficult, the letter stated.”

The lawmaker, Councilman Jim McCarthy, sounds a lot like politicians in Schenectady County, e.g. Legislature Chair Susan Savage, when he replies to such arguments by stating: “We are an island amidst all of these people protecting these children.”

. . . In addition, here in the New York Capital Region, the Albany Times Union published a major original piece of journalism about sex offender residency laws today: “Efforts to protect kids often carry own risks: Regional laws restricting residency for paroled sex offenders can be counterproductive, some officials say” (Sept. 9, 2007; article goes into for-pay archive in two weeks). Veteran reporter Carol DeMare notes:

“Parole officers understand the obstacles, but they have to work within the laws. ‘We think these laws are counterproductive to the rehabilitation of sex offenders and can put communities at risk by, in some cases, driving sex offenders underground,’ said Mark Johnson, spokesman for the state Division of Parole.”

In August, 2007, the Gatehouse News Service issued a report and series called “Sex Offenders: A Flawed Law.”  Although the multi-part series is no longer available at the Gatehouse website, you can find it a the Patriot Ledger (Quincy, MA), where it ran on August 25 and 27, 2007: see Part One and Part Two; below are links to eight articles within the series; click the following link and scroll to the end of the article for a 4-minute video that accompanies the series.

SEX OFFENDERS: A FLAWED LAW – RIGHT NEXT DOOR: Unlike many states, Massachusetts does not legislate where sex offenders can live
First in a two-part series – Aug. 25, 2007

SEX OFFENDERS: A FLAWED LAW – BACK ON THE STREET: Mom of three molested children pushes for stricter sex offender sentencing (video in story)
First in a two-part series  – Aug. 25, 2007

SEX OFFENDERS: A FLAWED LAW – Violent crime drives U.S. offender laws
First in a two-part series -  Aug. 25, 2007

SEX OFFENDERS: A FLAWED LAW – Not all equal: State sex registries can be unforgiving; Some will pay the rest of their lives for mistakes in youth
Second in a two-part series – Aug. 27, 2007; scored 147.0

SEX OFFENDERS: A FLAWED LAW – Experts: Education best defense against predators
First in a two-part series – Aug. 25, 2007

SEX OFFENDERS: A FLAWED LAW – State struggles with registry
Second in a two-part series – Aug. 27, 2007

SEX OFFENDERS: A FLAWED LAW – Right cop helps sex offender registry work; Police choose their officers carefully
Second in a two-part series – Aug. 27, 2007

SEX OFFENDERS: A FLAWED LAW – It’s easy, but does it work? Banishing sex offenders gets a second look
Second in a two-part series – Aug. 27, 2007

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