I want to highlight the discussion in Wilkes-Barre about sex offender residency restrictions not because it is unusual, but because it is very typical of the various debates about the laws going on around the country:
A proposed city ordinance which will be voted on next week would ban sexual offenders from living in about 90 percent of the city, council said Thursday.
“I’d hate to live in that 10 percent,” resident Sam Troy, a staunch opponent of the plan said during Thursday’s council meeting.
After the meeting, Councilman Jim McCarthy, the architect of the plan, showed reporters the map and explained that the approximate 10 percent where sexual offenders would be able to live is scattered throughout the city.
That 10 percent will be reduced even further when council votes on the issue during a special meeting on Wednesday at 4:30 p.m., because McCarthy has been informed of two parks that weren’t included in the map.
....The ordinance would prevent registered sexual offenders from living within 1,500 feet of any school, child-care building, park or recreational facility.
All council members have said they support the plan, although they have delayed it for months while attempting to get it as flawless and lawsuit-proof as possible.
City attorney Bill Vinsko said if it banned sexual offenders from living in 100 percent of the city, it could be deemed unconstitutional. Council President Tony Thomas Jr. said residents will have the chance to view the map. One copy is currently at City Hall.
The only objector has been Troy, who has argued against it during two council meetings.
Troy said he’s not condoning pedophilia, but said “None of us have flawless moral character” and asked council to “empathize” with sexual offenders who might be trying to turn their lives around.
“If you want to protect our children, there’s a lot more things they need to be protected from,” Troy said, suggesting council create an ordinance banning guns.
I think the claim that if a town banishes sex offenders entirely, then the ordinance would be held unconstitutional is probably not the case given that the highest courts that have reviewed these ordinances have upheld them even with complete banishment being a result. However, as the challenges change from facial challenges to as-applied challenges, I wouldn't be surprised for at least a few courts to take that position.
The larger issue I see exemplified by the Wilkes-Barre case is that the political forces are strong behind those laws are strong and opposition is struggling to make headway against those forces. The result is that even when there is some dissent, adopting sex offender restrictions is just too easy for towns and cities.
The problem with all the court decisions has been they have merely upheld the legislative body's right to make a law/ordinance which is perceived to have merit.
I have yet to see a court delve into the issue with any depth, even the one decision in Iowa which went to a higher court, the court did not get into the issue and issued no opinion. Likely because they had no other references from other courts to compare to. Other than that one decision, not on the merits of the case, no other case has gone that far up.
The issue of "complete banishment" has not reached any higher court (Iowa was not complete banishment) and when it does will very likely be declared an ex post facto violation AS APPLIED to folks who have completed their sentences simply because "banishment" has always been declared a "punishment."
For some reason lawyers are not testing other collateral issues such as jurisdictional ones, etc.. Do local cities have jurisdiction to make such laws...
While it is true that politics is the driving force behind these laws I wonder if it could be claimed, that politicians are abusing their powers by enacting such laws?
After all they are not protecting all those who live within their jurisdiction and are in fact discriminating as to who may live within a jurisdiction. i.e., an abuse of process claim which could leave them facing damages.
Further, those who do oppose these laws are slowly beginning to stand up at local council hearings and are slowly beginning to change some minds on the issue.
For example, today I posted an article out of Massachusetts which indicates another councilman in Marlboro has changed her mind about the ordinance and will likely vote against it next time it is up for vote:
http://www.boston.com/news/local/articles/2006/12/17/a_veto_spurs_2d_thoughts/
I also know, having gathered info for folks to take to their local meetings, that others have changed minds and ordinances have not been passed. Likewise their have been other news articles showing that some places have decided not to pass such laws.
The fight against such laws is going to be a long road if offenders and families do not take a stance at these meetings.
Finally, as I read many articles daily I do see more and more folks in communities questioning the value of such laws. There are some smart folks out there they need to be more vocal after all, the costs of local enforcement come directly out of their pocketbooks.
Some costs are not directly seen such as in Florida the local school purchased a system to scan driver's licenses of anyone who comes to the school. Local taxpayers pay for such equipment, but do they recognize the relationship to the laws enacted? I doubt it.
Posted by: eAdvocate | December 18, 2006 at 12:48 PM
THE DEAFENING ROAR OF SILENCE
Yesterday I mentioned what was happening in Marlboro Mass. and today there is a new article on the council meeting where they were to vote on the Mayor's veto of the sex offender ordinance.
Instead, the ordinance was sent back to the committee for further study. http://www.metrowestdailynews.com/homepage/8999345615847552799
This quote from the article is most interesting, "Most vocal was Ward 2 Councilor Paul Ferro, who castigated council members for supporting the ordinance last month, but refusing to back a veto override last night."
The deafening roar of silence.....
Posted by: eAdvocate | December 19, 2006 at 02:06 PM
MASSACHUSETTS: Today in the following article the actual vote from the Marlboro case above was reported to be "8-2" to send the proposed ordinance back to the legal division for further work:
http://www.telegram.com/apps/pbcs.dll/article?AID=/20061219/NEWS/612190726/1008/NEWS02
Also in that article are the provisions of the ordinance, verbatim "The ordinance would have prohibited adult Levels 2 and 3 sex offenders whose victims were minors from entering or loitering within 500 feet and from living within 2,500 feet of “any school, school bus stop, day care center, park, playground, or other private or public recreational facility where children regularly congregate.” Homeowners would be exempt from having to move, and tenants would be exempt until their written lease expired."
No wonder they want to look at it further, just exempting "homeowners" sets up a discrimination claim that could very well win in court.
There are a few other claims that could be made as well.
TEXAS: Then comes this article from Texas: http://news.galvestondailynews.com/story.lasso?ewcd=dcf87e187bcd4b97
Apparently a few new bills have been presented which are in the vein of residency laws.
That article shows the media is not behind such laws, and that is one of the main papers in Texas.
Posted by: eAdvocate | December 20, 2006 at 02:31 AM