Sex Crimes

NY Bill Would Prevent Sex Offenders From Managing Buildings

Sex offenders face many restrictions in their daily life, but now some New York legislators are hoping to add another one: prohibiting sex offenders from holding positions such as building manager or superintendent where they would have keys to many different apartments. The Epoch Times has more:

In light of the recent reports about William Barnarson, Assemblyman Kellner has introduced legislation to prevent this in New York, and Sen. Schumer plans to stop sex offenders, who often cross state lines to avoid detection, from holding keys to multifamily apartments across the country.

“Unfortunately it’s completely legal for a convicted sex offender to become the superintendant or a building manager in any multifamily apartment building in New York, and the jobs almost always provide the offender with keys to the renters’ apartments in the buildings. Given the large number of sexual offenders in New York—there are 6,000—this is an issue that has to be dealt with immediately.”

Barnason had served over 10 years in jail for sexually assaulting and raping girls as young as 5 years old, and while working as a superintendent of three multifamily apartment buildings, had propositioned female tenants for sexual favors in return for help with their rent.

Assemblyman Kellner added that sex offenders have been banned from other professions and building managers should be added to the list.

NY AG Gets Social Networking Sites To Ban More Sex Offenders

New York Attorney General Andrew Cuomo has a press release touting how 13 new social networking sites have agreed to remove NY sex offenders from their sites. From the press release:

As of today, 15 major social networking companies have agreed to use New York’s Electronic Securing and Targeting of Online Predators Act (e-STOP), authored by Cuomo, to purge registered sex offenders from their sites. The law requires all registered sex offenders to register their email accounts, screen names and any other Internet identifiers with the state Division of Criminal Justice Services (DCJS). That information is then made available to social networking sites. Several other companies continue to ignore this critical measure to make the Internet safer.

“It is no secret that sexual predators abuse social networking Web sites to find and manipulate victims and to insinuate themselves into their victims’ lives,” said Attorney General Cuomo. “e-STOP allows social networking Web sites to identify these sex predators and help prevent them from harming again. The country’s most popular social networking sites have taken an important step in making the Internet safer by using e-STOP to purge sex offenders from their sites. That some companies are continuing to ignore the e-STOP database is not only inexcusable, it is potentially dangerous.”

On December 1, Cuomo issued letters to 17 social networking Web sites urging them to take this important step towards protecting their users from sexual predators. To date, twelve of these Web sites; AOL’s Bebo.com. Google’s Orkut.com, Yahoo!’s Flickr.com, BlackPlanet.com, Classmates.com, Flixster.com, Fotolog.com, hi5.com, MyLife.com, Stickam.com, and Tagged.com, have agreed to use e-STOP data from the state to find and disable accounts linked to registered sex offenders. Imeem.com was recently bought by MySpace and will also purge its network of New York Sex Offenders. Multiply.com, which did not receive a letter, has also requested the e-STOP data. 

Halloween Sex Offender Crackdown '10

The approach of Halloween brings with it lots of interesting sex offender issues, which we have frequently blogged about. Recently, the Tennessee Board of Probation and Parole has notified sex offenders on supervised release that they cannot participate in Halloween activities involving children. You may view the complete list of restrictions here. Officials in Albany, New York have done the same. From the article:

The Tennessee Board of Probation and Parole is notifying sex offenders that it supervises that they cannot take part in most Halloween and similar fall festival activities involving children, including trick-or-treating with their own children and allowing anyone in their households to pass out candy where they live.

The restrictions do not apply to sex offenders who are no longer under the supervision of the agency, which generally extends through their time on probation or parole. Thus they do not apply to those on the state's sex offender registry who are no longer under Board of Probation and Parole supervision, nor those who have met the criteria and been removed from the registry, the agency's communications director, Melissa McDonald, said today.

The restrictions are not new and have been enforced in recent years, although they have not been broadly publicized as the board is doing this year. "Our goal is to protect the safety of the public, especially children, throughout the Halloween season," the board's executive director, Bo Irvin, said in a press release issued today. "By reminding offenders of the restrictions upon them, and the consequences of non-compliance, we make the harvest season safer for Tennessee families."

Every state-supervised sex offender in Tennessee has received, through their probation or parole officer, a document detailing the restrictions and the consequences of non-compliance for their signature. Officers are also making announced and unannounced visits to verify that offenders are abiding by restrictions and the terms of their curfews.

The Halloween panic is always predictable, but I'm still waiting for any evidence that children are at greater risk on Halloween than any other day of the year. While kids are out and about, they are often among other children and/or supervised by adults. Further, the kids whereabouts are pretty well known to the parents (at least within a certain radius). If a child is victimized or disappears on Halloween, I'm sure the police will go right to the area sex offenders. That seems like a pretty good deterrent for crimes on that particular day.

Op-Ed: Residency Restrictions Don't Help

Newsday has an interesting new editorial explaining the obvious: sex offender residency restrictions don't make kids safer. From the editorial:

Conventional wisdom is a powerful force that often leads the well-intentioned astray. For example, there's the widespread belief that we can make children safer by restricting where known sex offenders are allowed to live. The notion is enticing in its simplicity. Make sure offenders don't lay their heads near schools or parks or other places where children congregate, and kids will be safely ensconced in a predator-free bubble. Unfortunately, it isn't that easy.

Residency restrictions don't make children safer. In fact, they may make communities more dangerous by pushing offenders underground. No one wants a sex offender living nearby. And the effort to protect kids is important and heartfelt. But the public, and elected officials, shouldn't waste their time and energy on ever more exclusionary residency laws.

Having a kid snatched by a stranger skulking around a school yard is a nightmarish prospect. But that's not how it usually happens. Nine out of 10 children who are sexually abused know and trust their abusers. They aren't strangers. They're a relative or babysitter, a coach or Mom's boyfriend. It's proximity through those and other relationships that puts children in harm's way.

Even when the attacker is a stranger, victims are increasingly likely to have met them on the Internet. Besides, residency restrictions limit where offenders sleep, but not where they go. So they provide a false sense of security, while doing nothing to prevent most dangerous encounters.

What these restrictions do instead is cluster offenders in fewer and fewer places - too often in poor, politically powerless communities. And as it becomes harder for offenders to find legal housing, more will drop off the grid. They'll report false addresses, or stop reporting any address at all. Some will become homeless and virtually impossible to monitor. And when the restrictions force offenders away from the support of relatives and counselors, or make it difficult for them to work, those laws increase the likelihood that they will reoffend.

Justice Department's SMART Case Law Update #24

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #24:

People v. Blair, 2009 N.Y.S.2d 890 (CCNY Albany, Feb. 18, 2009); People v. Oberlander, 2009 N.Y. Misc. LEXIS 325 (Rockland Cty., Jan. 22, 2009)
 
Citing the decision in G.H. v. Township of Galloway, 951 A.2d 221 (N.J. App. 2008), held local residency restrictions invalid because they are preempted by the comprehensive and detailed State-level regulatory scheme regarding the registration of sex offenders.
 
People v. Knox, 2009 N.Y. LEXIS 16 (Ct. App. Feb. 17, 2009)

Knox and her co-petitioners had all been convicted of non-parental kidnapping of a minor.  Their due process challenge to being listed on the New York Sex Offender Registry was rejected.
 
U.S. v. Rose, 2009 CCA LEXIS 56 (Feb. 12, 2009)
 
Because the court concluded that Rose’s counsel “affirmatively misrepresented” that he would not have to register as a sex offender, and he pled guilty at least in part because of that misrepresentation, it constitutes ineffective assistance of counsel, and the findings of guilt were set aside.
 
Burchette v. Sex Offender Screening and Risk Assessment Cmte., 2008 Ark. LEXIS 551 (Oct. 23, 2008)
 
Arkansas’ sex offender registry scheme calls for a risk assessment to determine what level of community notification is required for an offender.  Burchette wanted to have a hearing (where he could testify, in person) before that determination was made.  The court concluded that because Burchette was interviewed as part of the assessment process, and could submit a written statement to the appellate committee, there was no due process violation.

The decision in Rose should be noted by criminal defense attorneys as plea deals in sex offense cases often revolve around whether the defendant will be required to register as a sex offender. Under the AWA, avoiding registration is increasingly hard to accomplish since courts seem to be taking a non-categorical view of what constitutes a "sex offense" under SORNA.

"Sex offender residency laws are ineffective"

Syracuse.com is running an interesting editorial of the ineffectiveness of the state's sex offender residency laws:

In Iowa, prosecutors are now calling for a repeal of a state residency restriction law. They criticize such laws because, among other things, "research shows that there is no correlation between residency restrictions and reducing sex offenses against children or improving the safety of children." The Iowa prosecutors also note that "law enforcement has observed that the residency restriction is causing offenders to become homeless, to change residences without notifying authorities of their new locations, to register false addresses or to simply disappear."

When offenders fail to maintain proper registration as a direct or indirect result of residency restrictions laws, such as those recently passed in Tully and previously enacted in Jordan, Cicero, Cayuga County and Auburn, no one is truly safer. Before spending the taxpayers' time and money on ineffective measures such as these residency laws, our local elected officials should first educate themselves on the facts and not just react to undifferentiated, hysterical fear that does not in fact protect our children.

NY Town May Ban Sex Offenders From Living Together

Town officials in Colonie, New York are considering a new law which seeks to prohibit certain sex offenders from living within 1,500 feet of each other or where children typically congregate. David Giacalone over at the f/k/a blog has an excellent response. From the Albany Times-Union:

Colonie Town officials, calling a stretch of Central Avenue motels a dumping ground for sex offenders, may pass a law sharply restricting where some of them can sleep.
     
Enacted as is, the bill could again stir up an issue that has had officials facing off to keep the convicts out of their own town, city or county.

But before having the Colonie Town Board vote on the new regulations, Supervisor Paula Mahan wants to assemble a task force to examine the issue and work off of her proposal.

The panel would include county legislators Christine Benedict and Tim Nichols, as well as the supervisor and two Town Board members.

"Rather than a Band-Aid for the issue, we'd like to come up with something that's more permanent," Mahan said Tuesday.

The legislation she's proposed seeks to bar adult Level 2 and 3 sex offenders whose victims were younger than 17 from living or staying within 1,500 feet of each other, or the same distance from places where children congregate.

Those are defined specifically in a long list that includes 15 types of buildings and spaces. Because of how broad the proposal is, it could keep the offenders out of large swaths of the town. Offenders who already have a permanent home would be exempt.

Albany County has a residency law that prohibits those top-level offenders from living within 1,000 feet of schools and day-care centers.

The less restrictive regulation has allowed social service programs in area counties to place homeless sex offenders in a group of motels on the town's west end.

Benedict, who represents the area where those businesses are found, calls it "motel row." Included are the Skylane, Best Value Inn and Bluebell Motor Inn, a group of motels in the 1900 block of Central Avenue. The Tompkins Motel across the street has become another haven for sex offenders placed in the low-cost housing by counties, the Republican said.

"Colonie cannot be the fallback," she said. "They've driven them out of the city and into the suburbs."

A north-end region of the town represented by Nichols, who sponsored Albany County's residency law, has also had an influx of sex offenders, the Democrat said.

Benedict, who in 2007 led a campaign to keep social service officers from placing families in these same motels, is calling for state or federal officials to weigh in.

"It's outrageous and what's happening is no one's taking the lead on this," she said, adding that "they're pitting counties against counties and town against towns."

Coupled with a normal, state-wide residency restrictions, this provision would lead to some really odd scenarios. Offenders would have to traingulate their positions based upon schools, playgrounds, churches, and other offenders. The few habitable places for sex offenders would diminish even further.

Sex Offender Laws in New Jersey & New York Both Ineffective

A recent study (which I cite in my new article) published in Psychology, Public Policy, and Law claims that New York's Sex Offender Registration act had no effect. According to the study, over 95% of all sex offenses (as determined by arrests) are committed by first time sex offenders. From the abstract:

Despite the fact that the federal and many state governments have enacted registration and community notification laws as a means to better protect communities from sexual offending, limited empirical research has been conducted to examine the impact of such legislation on public safety. Therefore, utilizing time-series analyses, this study examined differences in sexual offense arrest rates before and after the enactment of New York State's Sex Offender Registration Act. Results provide no support for the effectiveness of registration and community notification laws in reducing sexual offending by: (a) rapists, (b) child molesters, (c) sexual recidivists, or (d) first-time sex offenders. Analyses also showed that over 95% of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending.

A Department of Justice funded study came to a similar conclusion about New Jersey's Megan's Law. That study is entitled Megan's Law: Assessing the Practical and Monetary Efficacy and may be viewed here. The Associated Press has more. From the Summary:

The research that follows concerns the various impacts of community notification and registration laws (Megan's Law) in New Jersey. Although this report includes a variety of interesting findings and many ideas that will be explored upon post grant period, this research was embarked upon, in general, to investigate: 1) the effect of Megan's Law on the overall rate of sexual offending over time; 2) its specific deterrence effect on re-offending, including the level of general and sexual offense recidivism, the nature of sexual re-offenses, and time to first re-arrest for sexual and non-sexual re-offenses (i.e., community tenure); and 3) the costs of implementation and annual expenditures of Megan's Law. These three primary foci were investigated using three different methodologies and samples. Phase One was a 21-year (10 years prior and 10 years after implementation, and the year of implementation) trend study of sex offenses in each of New Jersey's counties and of the state as a whole. In Phase Two, data on 550 sexual offenders released during the years 1990 to 2000 were collected, and outcomes of interest were analyzed. Finally, Phase Three collected implementation and ongoing costs of administering Megan's Law.

New York State Senator Proposes Residency Restrictions

One week after a New York court struck down Rockland County's sex offender banishment law (opinion available here), State Senate Majority Leader Malcolm A. Smith has proposed a new bill entitled “Major Statewide Legislation Aimed to Protect Children from Sex Offenders,” (available here) which prohibits a sex offender from living anywhere in New York within 1,000 feet of any park, daycare center or school building for at least ten years after release.  From f/k/a:

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, 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”.   Senator Johnson’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.

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.

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.

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 right that the many local laws have created a “confusing patchwork” that we “need to simply.”  But, he is also right 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.

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.

New York Court Invalidates Residency Restrictions

Thanks to the many helpful readers who forwarded me the news about this case. Following the lead of its neighbor, New Jersey, a New York has ruled, in State v. Oberlander, that a local residency restriction ordinance is inconsistent with the state's registration scheme. From the opinion: 

“Under [the preemption] doctrine, even in the absence of an express conflict, a local law which regulates subject matter in a field which has been preempted by State legislation is deemed inconsistent with the ‘State's transcendent interest.’” Ba Mar, Inc. v. County of Rockland, 164 A.D.2d 605 (2nd Dep’t 1991)(quoting Albany Area Builder’s Assoc. v. Town of Guilderland, 74 N.Y.2d 372 (1989)). “On the other hand, the mere fact that both the State and local governments seek to regulate the same subject matter does not, in and of itself, render the local legislation invalid on preemption grounds.... In nearly factually identical circumstances, a New Jersey Appellate Court struck down local legislation imposing housing restrictions of sex offenders holding that State law preempted local legislation (preempting more than 100 local sex offender ordinances). G.H. v. Township of Galloway, 401 N.J. Super. 392 (App. Div. 2008). In doing so, that Court held that New Jersey’s version of Megan’s Law constituted a comprehensive legislative scheme enacted to protect citizens from sex offenders.... As the State has expressed its intention to preempt the area, and, the ordinance conflicts with State law, Local Law No. 1 of 2007 is invalid. A Violation of Probation based upon such law cannot be maintained.

As was the case in New Jersey, the state could cure the conflict by either expressly allowing localties to implement residency restrictions or by adopting a statewide residency restriction law. f/k/a has more on the decision: 

There are 80 similar laws across the state that could be affected if challenged under the preemption doctrine. (See our prior post from October 2007, discussing a lawsuit challenging the Albany County sex offender law under preemption doctrine). Rules passed by counties and towns often cause ripple effects. Ulster County is currently considering its own ex offender residence restrictions, after a sex offender moved there from Rockland County (see, Sex Offender Issues weblog, Jan. 15, 2009). Ulster County Legislator Glenn Noonan told the The Daily Freeman that: “I’m trying to get Ulster County on board with several other counties who have passed similar legislation. Then it forces the (state) Assembly to get off their butts and do something about this on a state level.” More thoughtful minds will hopefully remind our state leaders that our current State laws and policy work well, and that there is no reason to believe banning offenders from particular zones protects our children. (see, e.g., our post “Sunday papers question sex offender laws“)

It will be interested to see if the domino effect of court rulings that occurred in New Jersey also happens in New York.