In the past few years the sex-offender residency restrictions passed by Albany County, Schenectady County, Rensselaer County and Rockland County have all been overturned by courts on the grounds that they infringe on the prerogatives of the state, which is the level of government that properly regulates the lives of sex offenders.
Nevertheless, we now have another lawsuit, this one challenging the very similar residency restrictions of Saratoga County.
Why is this necessary? Why, if virtually the same restrictions have already been found invalid three, four, five times, does someone have to go to the trouble of filing yet another lawsuit?
Because the counties that have lost these cases, despite all their bluster, have prudently refrained from appealing the decisions.
If they did appeal, and if the appeal made its way to the highest court and that court ruled the same way, then the ruling would be binding on the entire state and all of the estimated 80 local laws restricting where sex offenders may live would be invalid in one shot. And do you think any county legislature, any county attorney, any county manager wants to risk such a judicial slap-down?
No, none of them do. They fussed and fumed and carried on like people possessed four or five years ago when they were passing these laws, so you would have thought the very future of civilization depended on keeping sex offenders from living near schools and playgrounds, but when the laws started getting overturned, they forwent the obvious legal recourse.
I’m referring now to laws that bar sex offenders from living within a certain distance, like 1,000 or 2,000 feet, of a school, a day care center, a playground, a public swimming pool, a park.
Albany County’s law was overturned in July of 2009. Rensselaer and Rockland counties’ laws were overturned sometime before that. Schenectady County’s law was overturned in March of last year.
There may have been others also. Those are the ones I’m aware of.
No town or county to my knowledge has appealed, and the time limit for doing so has long since expired.
Schenectady County Attorney Chris Gardner says he didn’t appeal because looking at all the other decisions, “It didn’t appear we would have a reasonable likelihood of success.”
And he says he now believes that electronic monitoring might be preferable to restricting residency. “Ultimately they have to live somewhere,” he says of sex offenders, which is what reasonable people were saying a few years ago when these laws were being passed in an atmosphere of hysteria.
I can’t say that I blame the county governments for not seeking further embarrassment.
But it means that a guy in Clifton Park who had sex with a 15-year-old girl up north in Essex County three years ago (not a forcible rape) and who did 15 months in jail as a result, cannot now move to Ballston Spa, because apparently there is no place in Ballston Spa that is more than 1,000 feet from a school, day care center, park, playground etc., as the Saratoga County law requires.
The guy is classified as a Level 1 sex offender, which means he is at the lowest risk of repeating his offense.
The restriction against him is almost certainly illegal, but it still must be adjudicated.
So the guy, identified in court papers only as John Doe, is suing, with the help of Kathy Manley, the lawyer who successfully sued Schenectady and Albany counties and thus knows how it’s done.
It’s a funny situation, because the rationale for these residency restrictions — that keeping former sex offenders from living close to where children gather will deter further crimes — has not been challenged, even though there is no evidence to support it.
In fact the state’s own law, though less restrictive than the laws passed by localities, is based on the same rationale. It forbids sex offenders to enter the grounds of any school or child-care facility, and it defines grounds as embracing a 1,000-foot radius of the building itself.
It doesn’t say anything about residence, but obviously if you can’t enter, you can’t live there.
The law applies, however, only to the highest level of sex offenders, those considered most likely to offend again; it applies to them only if their crimes were committed against children; and it applies to them only while they are on parole or probation.
The local laws typically apply across the board to everyone ever convicted of a sex offense, regardless of the age of the victim, regardless of the seriousness of the offense, regardless of the likelihood of the offense being repeated, and regardless of the person being or not being on parole.
For the most minor offenders, those labeled Level 1, it applies for 20 years, which is the time required for them to be on the state registry of sex offenders. For those labeled Level 2 or 3, it applies for life.
The only thing the courts have said is that state authority preempts local authority. Localities can’t have these laws, because the state already has one and thus “occupies the field.”
They have not said the laws are irrational, so it’s a limited slap-down.
The Saratoga case will be noteworthy if the law is upheld. Otherwise it will be just more legal tidying up after the delirium of make-believe child-protection that we saw four or five years ago.