Residency Restriction

On February 26, 2009, Presiding Justice Joseph F. Rodgers, Jr. of the Rhode Island Superior Court issued a written decision declaring R.I.G.L. § 11-37.1-10(c) unconstitutional.  The provision, added to the “Penalties” section of the “Sexual Offender Registration and Community Notification” act, R.I.G.L. § 11-37.1-1 et seq., last July, reads as follows:

(c) any person who is required to register or verify his or her address, who knowingly resides within three hundred feet (300’) of any school, public or private, shall be guilty of a felony and upon conviction may be imprisoned not more than five (5) years, or fined not more than five thousand dollars ($5,000) or both.

R.I.G.L. § 11-37.1-10(c).  My former firm’s client was being charged with two counts of third degree sexual assault, and therefore would have been subject to the residency restriction upon release from prison.  In effect, the statute would have prevented him from living in his home of twenty years with his wife and children, and required him to either rent or sell the family home and move to another location (outside the prohibited school zone of 300 feet).

I drafted several pre-trial memoranda, as well as a civil complaint, challenging the residency restriction as being unconstitutionally vague, an ex post facto law, and a violation of the Takings Clause.  The arguments were that the statute contained no grandfather clause exempting those who were already residing within 300′ of a school before the statute was passed, no definition of a “school” (the provision could include karate schools, ballet schools, obedience schools, etc.), and no explanation of how state officials were going to measure the 300 feet (would it be measured door-to-door, driving distance, from the school’s and the home’s closest perimeters, etc.).  The statute would also force sex offenders to sell/rent their home and put them at constant risk of having to move again if a “school” popped up in their neighborhood.

Several courts around the country have addressed this issue with mixed results.

Surprisingly, the Rhode Island Attorney General’s Office conceded that the statute amounted to an unconstitutional Taking as it applied to our client, and agreed to take the matter to the Legislature to have the statute amended.  Ironically, the Legislature did draft an amendment to the statute, but the bill did not fix the constitutional deficiency in the statute.

In June, R.I. Representative Nicholas Mattiello of Cranston sponsored a bill that would make it a felony for a registered sex offender to knowingly enter a playground, day-care center or school.  Representative Mattiello drafted the bill after his Cranston constituents became irate that there were sex offenders staying at a homeless shelter down the street from a playground and school.

It is certainly understandable that Rhode Island residents would be concerned about sex offenders living/hanging out near playgrounds and schools.  However, given the size of Rhode Island, do you think that it is reasonable/logical to banish them from most populated areas of the state?

Update (8/19/09):

A perfect example of the absurdity of preventing sex offenders from being within certain distances of daycare centers and schools comes out of Chatham County, North Carolina.  Last December, North Carolina passed a law that forbids sex offenders from coming within 300′ of a school, children’s museum, daycare center or playground (similar to the proposed law currently pending in Rhode Island).

Unfortunately for 31-year old registered sex offender James Nichols, Moncure Baptist Church, which he has frequented on a regular basis since his release from incarceration last September, has a daycare on its premises.  After six months of meeting with his pastor and often sitting in the front row during church services, Nichols was arrested by the local Sheriff’s Office for being too close to a daycare facility (with no evidence that there were children present in the facility at the time).

Currently, Nichols, along with his attorney and with the help of a local branch of the ACLU, is challenging the law as violating his right to freedom of religion under the United States Constitution.

North Carolina State Senator David Hoyle has responded to news of Nichols’ arrest and impending lawsuit by making the following statement:  “As far as I’m concerned, [sex offenders have] lost all their rights – to go to church…to go to McDonald’s to get a cheeseburger if they’ve got the slides…They have made that choice.  They have imposed that on themselves.  I didn’t.”  Hoyle went on to say: “Find another church that they don’t have a nursery. I’m sure there are a lot of churches that don’t have nurseries.”

Do you think it’s productive to cut off sex offenders’ ability to seek religious counsel?  Or for that matter, to get a cheeseburger at McDonald’s?

Update (10/1/09): Click on the link below to view an interview with Gerry Weber, Senior Staff Counsel for the Southern Center for Human Rights (“SCHR”), about the current status of sex offenders in Georgia.  In the interview, Gerry explains that many sex offenders cannot find a place to live or a job because the State bans them from being within 1,000′ feet of a school, church or playground.  The SCHR is currently filing suit against the State, challenging the statute’s constitutionality.

http://www.cnn.com/video/data/2.0/video/bestoftv/2009/09/29/nr.seg.sex.offenders.cnn.html

Can you think of any solutions for sex offenders who are unable to maintain employment, unable to find shelter, and are being kicked out of State camping grounds?

Update (3/8/10):

Interestingly (and surprisingly), it appears as if California’s current version of the residency restriction, Cal. Penal Code section 3003.5(b), is unenforceable as written.

As Saturday’s New York Times article noted, an upscale neighborhood in Oakland, California has been up in arms about a convicted sex offender moving in right across the street from its elementary school.

Under the current statute, sex offenders are prohibited from living within 2,000′ of “any public or private school, or park where children regularly gather.” However, as the NYT article points out, there is no punishment attached to violating the provision. Therefore, there is no way to charge sex offenders with a violation of the statute.

It’ll be interesting to see how quickly the state legislature takes action on the defunct statute, especially given the recent (alleged) rape and murder of 17-year old Chelsea King in the San Diego area.

The chief of the Piedmont police, Chief John Hunt, was quoted as having the following reaction about the statute’s flaw: “I was amazed. You have this law that was overwhelmingly voted in and determined to be constitutional, and then you find out there’s no bite to it. It’s all bark and no bite.”

Professor Franklin Zimring of U. Cal. Berkeley stated his belief that the law was never meant to be enforced. In fact, he said the law was enacted “for political gain”; “The California Constitution is clogged with this stuff.”

What do you think about California having an unenforceable criminal law? What do you think about residency restrictions in general?

Have you seen many other political “tough-on-crime” laws passed that don’t actually impose a punishment for the crime?

Another “NIMBY” Syndrome Discovered? (posted 8/13/10):

This June, a Cleveland news site reported that approximately 67% of registered sex offenders in Ohio who list their residence as a homeless shelter have either never been there or never spent a single night there.  Instead, many of these “homeless” offenders are staying with friends or family in the suburbs.

Specialists have opined that most of these sex offenders are lying about their residence because of the increasingly stringent residency restrictions.  Currently, Ohio state law prevents sex offenders from living within 1,000 feet of a daycare center or school.  Additionally, many local ordinances ban offenders from living near parks, libraries and or churches.

Apparently, homeless sex offenders in Ohio are not required to register more frequently than those with stable living conditions.  Instead, according to the article, all sex offenders in Ohio (who are required to register) are required to register every 90 days for 10 years.

In contrast, sex offenders in Massachusetts with stable living conditions are required to register once every year, while homeless sex offenders are required to register every 45 days while homeless.

Instead of increasing the frequency of the registration of homeless sex offenders in Ohio, Ohio lawmakers are proposing to require all homeless offenders to wear GPS monitoring until the offender finds a permanent residence.

These increasing restrictions are not just limited to homeless offenders either.  Ohio HB 11, introduced in February of 2009, would ban every sex offender in the state from living within 1000 feet of a recreation center, playground, or “other place where it is reasonable to expect children to frequent or linger.”

Ohio officials are noticing that the effect of these restrictions are to drive sex offenders underground, which in turn makes it harder to monitor them.

This “phenomenon” is strikingly similar to the “NIMBY” syndrome many communities in the United States “suffered from” in the 1950s and 1960s when neighborhoods of white suburbanites tried to ban developers from building low-income housing for minorities.

Unfortunately, one can find countless “NIMBY” examples involving communities trying to shut out sex offenders.  Yet what is hard to find is a strong and honest message from law enforcement condemning the harm caused by the “NIMBY” syndrome.

How far would you go to ban sex offenders from your neighborhood?  Can you think of a place where it isn’t “reasonable to expect children to frequent or linger”?  Do you think the solution is more residency restrictions?  Better registration requirements?  Harsher punishments for registration violations?

Local Residency Restriction Ordinance Declared Unconstitutional (posted 6/7/11):

Last month, the Supreme Court of Pennsylvania decided Fross v. County of Allegheny, 2011 WL 2039074, in which it struck down an Allegheny County ordinance that banned sex offenders from living within 2,500 feet of a school, day care center, community center, park or recreational facility.

In the Fross decision, the Supreme Court noted that the ordinance effectively isolated offenders into “localized penal colonies of sort,” which far exceeded the County’s authority and actually encroached on the Commonwealth’s interests in balancing public safety with rehabilitating offenders.  Therefore, the Court reasoned, the ordinance was preempted by state law, and was found unconstitutional.

I’m very impressed by the Court’s decision, yet somewhat surprised in its rationale.  Do local cities and towns have the right to regulate where its residents live?  Or is there a point where this NIMBY syndrome (see above post) effectively creates “penal colonies” that would be impossible/impractical to allow in society today?

LA residents construct “pocket parks” to drive away sex offenders (posted on 5/6/13):

As in many cities, towns and states, California law prohibits registered sex offenders from living within a certain distance of a school or park.  According to a recent New York Times article, residents of Los Angeles’ Harbor Gateway neighborhood have found a way to manipulate the law and drive out current residents of the neighborhood – open a tiny park.

According to the article, other cities and towns all over the country are joining in this scheme, building “pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders.”

While the neighborhood residents may feel more comfortable driving out these men (and occasionally, women) from their streets, as I have discussed in previous NIMBY and residency restriction blog posts, and as experts and researchers have repeatedly stated, when you severely limit where sex offenders can live, the effect is oftentimes having sex offenders lie about their actual address, becoming homeless and/or going underground.

What do you think about creating “pocket parks,” which are essentially nonfunctional as actual parks or play areas, in order to drive sex offenders out of certain neighborhoods?  How would you feel if the pocket parks drove sex offenders into your neighborhood?

For more information about legal representation of those charged with sex crimes, please visit: http://katherinegodinlaw.com/areas-of-law/sex-crimes/

or

http://www.masexcrimesdefense.com

Katherine E. Godin, Esq.

The Law Office of Katherine Godin, Inc.

615 Jefferson Blvd.

Warwick, RI 02886

Phone: (401) 274-2423

Fax: (401) 489-7580

Email: kg@katherinegodinlaw.com

Website: http://www.katherinegodinlaw.com

Comments
  1. [...] Many are claiming that the new law is unconstitutional as it applies to homeless sex offenders and plan to litigate the matter in court.  Unfortunately, Massachusetts is not the first to propose that all homeless sex offenders wear GPS monitoring until they find permanent residences.  See the 8/13/10 post in “Residency Restriction” concerning pending Ohio legislation. [...]

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