Tuesday, July 10, 2012

Avvo - Find, Research, Ask Questions and Rate Attorneys

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MA - Sex offenders challenge Lynn's residency ban as unconstitutional

Original Article


By Christina Prignano

A court challenge to a Lynn ordinance that bans Level 2 and 3 sex offenders from living within 1,000 feet of a school or park could impact 43 other cities and towns across the state that limit where sex offenders can live or go.

The suit in Essex Superior Court by the American Civil Liberties Union of Massachusetts alleges that Lynn’s residency ordinance violates both the state and federal constitutions because it unlawfully restricts offenders’ freedom. The complaint also claims that Lynn’s ordinance violates the Massachusetts home rule amendment, which forbids municipal laws from interfering with state policy.

John Reinstein, one of the Massachusetts ACLU lawyers representing the offenders, says they chose to bring the suit in Lynn because of the city’s size, the large number of offenders living there, and the scope of the restrictions. The suit alleges that about 95 percent of residential properties in the city are covered by the ordinance’s regulations prohibiting offenders from living in proximity to the city’s many parks and schools.

There’s really nothing left after you get through drawing the circles around the facilities,” says Reinstein.

State law regarding sex offender management currently bans Level 3 offenders from living in nursing homes, rest homes, or intermediate care facilities for the mentally disabled. These restrictions are in addition to the state’s role in registering sex offenders and publishing Level 3 offenders’ information online. The Sex Offender Registry was the focus of a feature in CommonWealth’s spring issue.

A growing number of municipalities are taking the additional step of placing restrictions on where sex offenders can live, travel, or both. In cities such as Revere, Fitchburg, and Everett, sex offender residency ordinances typically prevent an offender from establishing a residence within a certain distance of a location frequented by children, such as a school or park.

Other restrictions involve banning offenders from visiting places where children may be present, like the public library. These restrictions are often deemed “child safety zones” and are found in communities such as Lowell, Fall River, and New Bedford. Some municipalities, such as Lynn and Spring­field, combine the two and ban offenders from both setting up a residence near child safety zones and visiting them. The ordinances have so far been untested by Massachusetts courts, and a decision on Lynn’s rule could open the door for challenges in other places or reinforce the restrictions communities have passed, according to legal experts.

The Lynn ordinance has already had an impact on at least one individual not involved in the lawsuit. Late last year, [name withheld], a Level 3 sex offender, moved into a house on Daytona Road in Lynn near Shoemaker Elem­en­tary School, a move that represented the first cited violation of Lynn’s amended ordinance. [name withheld] had been convicted in 2008 enticing a child under 16, according to the Sex Offender Registry Board’s website.

In early January, amid public outrage, the city started fining [name withheld] $300 per day until he moved out later that month, according to news reports. The Sex Offender Registry Board’s website indicates [name withheld] now lives in Peabody, which does not have a residency ordinance.
- If he was legally allowed to be there, then this is harassment and extortion, IMO!

Lynn City Council President Timothy Phelan defends the ordinance and says he’s not concerned about how much space remains available to Level 2 and 3 sex offenders. “Not only do I think it’s a good ordinance but I think I have a responsibility and obligation to protect” children and the community, says Phelan.

Phelan says he will abide by the law if the judge strikes down the ordinance, but argues the community should have a say in where sex offenders can live. “I don’t need a judge to tell me what’s right and what’s wrong,” he says. “I think that every mother and father should be the judge in rendering this decision.”
- Come on, if we allowed the public to decide on everything, people would be living on an island out in the middle of the ocean somewhere, or worse.

Reinstein says no matter which way the court rules residential bans on sex offenders in any community could be affected. More specifically, if the court decides that Lynn’s ordinance indeed interferes with state policy, that finding would have larger implications for other communities than if the judge strikes it down on grounds specific to Lynn, says Rein­stein. Lynn city officials have agreed to refrain from enforcing the ordinance until a hearing occurs. A hearing has not yet been scheduled.

Fitchburg City Councilor Dean Tran played a key role in passing Fitchburg’s sex offender residency regulation, which restricts Level 2 and 3 offenders from living within 1,000 feet of any school, park, or child care facility. Tran says the Massachusetts ACLU made similar threats to sue when he worked on Fitchburg’s ordinance, and he pointed to a federal case in which a statewide sex offender residency restriction in Iowa was upheld.

The organization never goes through with the threat simply because the circuit courts have already rendered favorable decisions for the ordinances. So a precedent has already been set at the federal level,” says Tran. “It would be a monumental task for the ACLU to try to overturn the ordinances that the cities and towns across the Common­wealth have enacted.”

Dr. Laurie Guidry, a clinical and forensic psychologist and the president of the Massachusetts Association for the Treatment of Sexual Abusers (MATSA), argues that residency restrictions have not been proven effective at keeping communities safe.

We don’t want to keep [engaging in] practices and policies that don’t work. I certainly concur with the public’s concerns about being safe—it’s a priority,” says Guidry. “And if this measure actually kept communities safer, we, MATSA, would support it.”

NY - Walden mayor Brian Maher exploiting fear to get elected to the Assembly?

Brian Maher
Original Article


By Pauline Liu

WALDEN — News that a sex offender lives directly across the street from Walden Elementary School has struck a nerve among both residents and village officials.

"It's completely disgusting," said Lori Chapman, whose 7-year-old daughter attends the school.

The village will have a meeting at 6:30 p.m. Tuesday at Village Hall to consider a proposed law. A public hearing on the proposed legislation is scheduled for 6:30 p.m. July 24.

The proposal would be aimed at preventing Level 2 and Level 3 sex offenders — those with a high risk of repeat offenses — from living within 500 feet of a school or day care center.

Mayor Brian Maher considers the plan a no-brainer.

"We are making every effort to ensure our children are protected and we hope to pass this law as soon as possible," he said.
- Well, when most people are abused by their own parents, this law, and all the others, will do nothing to prevent sexual crimes.

If the village board passes the law, it won't be the first in the area. The Town of Wallkill has had a sex offender residency law since 2007. Middletown has had a similar law on the books since 2008.

However, some laws that restrict where sex offenders can live have been struck down by the courts.

Walden is modeling its law after Otsego County's, which has been in place for several years. Though state lawmakers have been working on their own sex offender residency legislation, they have yet to pass a law.

"The state has not done enough on this matter," said Maher, who is running for Assembly.
- Well there you go!  He's running for a better position, so of course he's going to bust out the sex offender issues!

Village officials also want to make the new law retroactive, so it can apply to 38-year-old [name withheld]. The Level 3 sex offender moved into a house at 90 Orchard St. about a month ago.
- Any retroactive law is an ex post facto law, which is unconstitutional!

The home's property line is about 50 feet from the school playground. [name withheld] served five years in prison for sexually abusing a 5-year-old girl in Sullivan County in 2002. He also served three years probation.

[name withheld] registered with the Walden Police Department , as required, when he moved into the village. Then the police notified the community.

"There's grounds to make it (the law) retroactive," said Village Attorney Austin DuBois. "It's up to the board to decide if they want to take a more or less aggressive approach."

According to Village Manager John Revella, [name withheld] is renting a room in the house and has no lease. That would make the arrangement an illegal boarding house.

[name withheld], who works for a local medical transport company, said it won't be an issue because he's going to be moving out of Walden in September, before school starts.
- So, school is not even in session, but hey, no reason we can't take advantage of this situation to help ourselves out, right?

"If I'd known it was going to be this much of a problem, I would have stayed in Liberty," he said. "This is all because I live near a school."

Revella, who has two children of his own at the school, said the village will move ahead with the passage of the law even if [name withheld] moves out.

[name withheld]'s roommate, Jason Ralston, said [name withheld] has been fully rehabilitated.

"If he's served his time in jail, who am I to say there's anything wrong?" said Ralston. "I think people should mind their own business."

Most Politicians Exploit Children For Votes!

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PA - Penn State scandal shows sex-abuse laws can backfire

Original Article


By Daniel Filler

The trial of Jerry Sandusky is over, but the crisis over sexual abuse at Penn State is not. CNN recently reported on a trove of e-mails among university officials showing the extent to which they weighed and debated how to handle reports that the former assistant coach was sexually abusing children.

So the story continues, but are we learning the right lessons from it? A common refrain has been that university administrators are so keen to protect their schools' reputations and maintain winning programs that they have lost sight of their social and legal responsibilities. Lawmakers in many states, meanwhile, have decided that the Penn State scandal shows a need for stricter laws requiring sexual abuse to be reported — though Pennsylvania's existing laws would have been adequate if officials had lived up to their obligations.

But there is another lesson to be learned from this horrible story, and it's time we acknowledged it. Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it. Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime.

Penn State's former athletic director, Tim Curley, reportedly sent an e-mail to peers recommending that they respond to reports of Sandusky's crimes by telling him that his misconduct had been discovered, urging him to get treatment, notifying his charity, and prohibiting him from bringing his "guests" on campus. Former Penn State president Graham B. Spanier reportedly conceded the dangers of evading Pennsylvania's mandatory reporting requirements but agreed to the strategy as a "humane and reasonable way to proceed."

Curley and former Penn State vice president Gary Schultz face charges that they covered up the abuse allegations. (They have pleaded not guilty.) These prosecutions seem entirely appropriate, and the e-mails suggest more could be coming. But they also point to a larger problem in our approach to sexual abuse.

Raising stakes

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit. They have, however, dramatically raised the stakes of reporting and charging such crimes.

There's no doubt that Penn State administrators were trying to protect the university and its football program. But they were also trying to protect Sandusky and themselves from the tsunami that would follow. I take Spanier at his alleged word that he feared an inhumane result. He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.

Unbridled anger

And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives. There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.

There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective.

Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.

The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.

Daniel Filler is a professor at Drexel University's Earle Mack School of Law.
He can be reached at daniel.m.filler@drexel.edu.