Saturday, March 28, 2009

MA - OUR OPINION: City wrong to use schools as zoning weapon

View the article here

03/28/2009

QUINCY- It’s one thing to create zoning laws to protect school children from lawbreakers.

But municipalities cross the line when they use schools as a zoning weapon to fight legitimate businesses because someone doesn’t like the look of their customers.

A college-educated artist attempting to open a tattoo studio in Quincy is getting a taste of the latter, and it’s wrong.

Nancy Mathieu, of Rockland, hopes next month to open her business on West Squantum Street.

But the city council has an ordinance prohibiting such businesses within 1,000 feet of a school. Mathieu’s is near Montclair Elementary School.

What gives Mathieu some legal footing is that the ordinance was passed one day after she received a building permit for her shop and 10 days after she signed a lease.

She filed suit in Norfolk Superior Court and won. But she isn’t celebrating for fear the city will appeal.

In his ruling, Superior Court Judge John P. Connor determined Mathieu’s First Amendment rights were at stake, so the city needed to prove that the new ordinance would substantially improve the government’s ability to protect children.

The defendants enacted the amendment based on mere speculation that a body art establishment’s operation could somehow harm children attending a nearby school,” he said.

City Councilor Kevin Coughlin said he proposed the tattoo ordinance after receiving complaints from residents about unsavory characters loitering in front of existing tattoo parlors.

But passing laws based on the way people look or the speculation that because they patronize certain businesses they are likely to commit a crime is a slippery slope. This issue may come up again soon.

One of the first complaints from those opposed to a proposal that would bring a Boston burlesque troupe to Quincy was that it would be near a Catholic school.

We do need to protect children from many threats to health and safety.

It makes sense to increase penalties for drug dealing around schools. It makes sense not to allow smoking around schools. And it makes sense to lower speed limits around schools.

Even zoning that keeps fast food restaurants away from schools might be justified.

(Recent studies have found obesity among children increases when there were fast food restaurants within a block of their schools.)

But it gets shaky when you try to use school-based zoning to penalize people based on notions of what they might do.

That’s why some educators and city officials are justifiably uncomfortable with a recent proposal to restrict sex offenders from living within 1,500 feet of schools.
- Study after study shows that where a sex offender lives or sleeps, has nothing to do with if they will reoffender.  It's just more puritans trying to legislate morality, and not listening to experts or studies that prove this is a waste of time, and nothing but ignorant "feel good" legislation that is nothing more than a placebo to make you "feel" safe.

“This is not a benign ordinance,” said Councilor Joseph Finn. “It is contrary to good public safety policy to create sex offender ghettos.”

It's also bad policy to attempt to create a giant cocoon around our children.

And while every parent and guardian should be highly sensitive to the slightest hint of danger, legislating such protective intuition through school-based zoning creates a false sense of security and is unfair.


WI - Appleton attorney fights "Jessica's Law" on mandatory sex offender sentencing

View the article here

03/21/2009

By Dan Wilson - Post-Crescent staff writer

Automatic sentence called unconstitutional

"Jessica's Law," a new state law requiring a minimum mandatory sentence of 25 years in prison for child sex offenders, is coming under a legal challenge from an Appleton attorney.

Leonard Kachinsky represents _____, a 21-year-old Milwaukee man who was convicted in a Feb. 24 jury trial of first-degree sexual assault of a child under the age of 12.

_____ is facing an April 24 sentencing under "Jessica's Law."

The June 2006 law is named after Jessica Lunsford, a 9-year-old Florida girl who was abducted, raped and murdered by a repeat sex offender.

Kachinsky argues the law is unconstitutional because it qualifies as cruel and unusual punishment.

"This extremely high mandatory minimum puts everyone into the same category," Kachinsky said. "There may be some who can be returned to society at some point, but this will cost us all $25,000 to $35,000 a year to keep them incarcerated."

Kachinsky admits it is hard to gin up sympathy for an offender like his client.

_____ assaulted a 5-year-old girl in Appleton while he was babysitting her and her brothers in June.

Moreover, _____ has a juvenile adjudication for sexual assault of a child.

Kachinsky's motion comes at a time when Gov. Jim Doyle (Contact) is raising the possibility of early release of nonviolent offenders to pare the prison population.

Ralph Uttke, president of the Wisconsin District Attorneys Association, said his organization has not taken a stand on the issue of mandatory minimum sentences.

"I can't speak for anyone other than myself, but I think it is important that the court and prosecutors have some discretion because we know more about the case," said Uttke, the district attorney in Langlade County. "We should be able to look at these on a case-by-case basis."

"Then, I can't think of a case of a sexual assault of a child where 25 years would not be appropriate," Uttke said.

Wisconsin has a "two-strikes" law that mandates life in prison without parole for those convicted of second offense of child sexual assault.

That law has been challenged on constitutional grounds and upheld by the state Supreme Court.

"This is far more stringent than most persons would have received under the old sentencing guidelines," Kachinsky said. "I know it is a long shot when you challenge the constitutionality of a law but this is the only reasonable hope this 21-year-old has."

Kachinsky will argue his motion in front of Outagamie County Judge Mark McGinnis at _____'s sentencing on April 24.