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Yesterday, CNN’s Erica Hill featured an interview with Terry Kindlon, the much-admired Albany, NY, criminal defense lawyer, who is simultaneously bringing pro bono lawsuits against sex offender residency restrictions in three Capital Region counties (see our prior post). The CNN Prime News interview, which runs over 5 minutes, is called “Registered Sex Offenders Sue: A group of sex offenders wants to change the laws that dictate where they live” (Dec. 5, 2007) If you’re interested in the issues surrounding sex offender residency restrictions [SORRs], you should click on the interview.

As an article in today’s Schenectady Daily Gazette explains, Kindlon represents five sex offenders with charges pending against them for failing to comply with local SORR laws. “One client resides in Albany County, three in Rensselaer County and one in Washington County.” (“Counties sued over sex offender residence laws,” Dec. 6, 2007; and see, “Sex offenders sue over residency laws” (WNYT.com, Dec. 3, 2007)

In the CNN interview, Hill seems amazed that Terry, as the father of seven and grandfather of five, appears willing to have sex offenders live near children and other human beings. Hill starts by saying, “Changing this law would mean that a sex offender could live next to your family. Are you okay with that?” Terry’s response is:

“Our purpose is not to invite sex offenders to move onto Sesame Street. . . Our point is to overcome the destructive effects of too much regulation.”

Kindlon makes some important points that need to be heard by a wide audience:

• There are over 600,000 registered sex offenders in our society. This is “a group of people who admittedly have to be supervised.”
• However, the regulatory scheme has to be rational. “If the laws become too harsh you have driven them out of society” and “begin to create whole cities where they are not allowed to live,” forcing them into places with no public transportation and no jobs.

• More sex offenders would be registering if the housing requirements were not so strict.

Pressed on whether we can “guarantee the safety of residents” without these residency laws, Kindlon says we can’t give any guarantees, but driving people underground is the opposite of what we intended to do with these laws.

Purgatory, USA? When Erica Hill noted that some people would have no sympathy for the sex offenders and say “too bad, they shouldn’t have done this sort of thing in the first place,” Kindlon replied: “I live in a place called America. I don’t live in a place called purgatory.” That’s an interesting comparison, but Purgatory would be preferable to the Limbo where politicians and “concerned” parents seem to want to send sex offenders. With Purgatory, you do your time for your sins, and then you get out and have a crack at Paradise. With Limbo, you are stuck suffering for all eternity.

Although I respect Terry Kindlon’s legal skills and greatly appreciate his pro bono efforts on behalf of sex offender (and in other civil liberties cases), I want to point out a couple of disagreements that I have with his choice of issues to emphasize in recent media interviews.

• Over and over, Terry has stressed that the residency laws will drive sex offenders underground, where they will be unregistered and unmonitorable. (He even claimed on CNN that about half of SOs in Georgia were no longer registering, a number that sounds rather high.) While pushing offenders to choose not to register is clearly one problem with SORRs, I am reluctant to focus so completely on this particular unintended result. First, “these guys won’t obey that law” is seldom an argument that creates sympathy for a group that is already disliked and distrusted (and usually creates the response, “then we’ll damn well make sure they do comply, with harsher penalties and more manpower”).
• More important, there are many other significant undesirable effects that can and should be stressed — especially because they affect the majority of offenders who are willing to comply with the restrictions, and who are unlikely to re-offend. Thus, predictable, inevitable effects such as disrupted family relations, inability to find affordable housing, poorer access to transportation, jobs and counseling services, all reduce the stability that experts believe help to reduce the chances of recidivism. (see our post “Sunday papers question sex offender laws,” Sept. 9, 2007)

More to the point: We should be making sure that the public understands that there is no reason to believe residency restrictions reduce recidivism rates — and many reasons to believe they may matters worse. Where you live has not been shown to relate to whether you are likely to re-offender or who your target is likely to be. See, e.g., Residential Proximity & Sex Offense Recidivism in Minnesota (Minnesota Department of Corrections, April 2007), which we quoted back in August. And, across the nation, law enforcement officials have come out against the use of SORRs, because they are ineffective, costly to enforce and counterproductive. Thus, the five-page statement by Iowa County attorneys explains that their law “does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure.”

• Terry also continues to place major emphasis on the recent Georgia Supreme Court decision in Mann v. Dept. of Corrections (which we discuss here). Thus, his first point for Erica Hall in Atlanta was that Georgia “struck down a state law that is quite similar to laws we are seeking to have declared unconstitutional in New York State.” And, the Gazette article today notes “[Kindlon] said he’s even more confident in his argument now that the Georgia Supreme Court unanimously overturned the state’s restrictions on where sex offenders may live after they’re released from prison.” The problem, of course, is that the Mann case is totally based on the statute’s failure to contain a grandfather clause, and on the property right of a homeowner not to be unreasonably forced to move. Even the Court’s general statements about the unseemly effects of the law fit that narrow context. In Mann, the plaintiff and other sex offenders “face the possibility of being repeatedly uprooted and forced to abandon homes.” As far as I know, none of the laws challenged by Kindlon share this feature. Indeed, he told the Gazette that Schenectady County’s SORR is not being challenged, because

“that county acted wisely and exercised some restraint on its sex offender law when it rescinded the more restrictive parts of it.”

Of course, what Schenectady County did was to insert a grandfather clause by voiding the section that would have evicted a sex offender already living in an exclusion zone when the law went into effect, or when a school or day care center moved nearby.  As I said on Nov. 29th, there are some other very good constitutional reasons for striking down the local SORRs (which are briefly summarized below the fold), but the differences between them and the Georgia statute and decision make pointing to Mann without any disclaimers unnecessarily misleading and unhelpful for any members of the public who would actually like to understand the legal principles being defended.

See Prof. Doug Berman’s post, “A turning point on sex offender residency restrictions?” (Nov. 29, 2007; via Corey Yung at Sex Crimes weblog) Some higher courts go out of their way to signal a willingness to reach a broader constitutional issue, if given the right facts. I have scoured the Georgia Mann decision for such signals, but found none — no good dictum that could be quoted by other courts in reaching other SORR laws.

Terry Kindlon told the Gazette: “We are confident if we get a ruling in a Supreme Court case it will demonstrate the law is not constitutional. Once that’s been demonstrated, everyone out there will fold their tents.” I think he’s correct, thank him for his efforts, and wish him and his client’s speedy justice. Then, perhaps, politicians who have been pandering to and whipping up sex offender fears will be able to come up with meaningful (and constitutional) solutions. SORR laws already on the books could then be rescinded, and those still inexplicably under consideration (as in Schuyler County, NY) tabled forever.

Christmas blizzard—
everything white
except his cheeks

Christmas pageant—
the one who had to get married
plays virgin Mary

another Christmas . . .
my parents visit
the son in prison

……………………….. by Lee Gurga from Fresh Scent (1998)

…………… Don’t forget our Holiday Season Haiku page, where we just added three new poems by Laryalee Fraser. Meanwhile, after reading SHLEP‘s tips for avoiding gifting headaches, you might save a marriage and maybe avoid a frown from a child, by checking out Madeleine Begun Kane’s “Mad Gift Giving Guide.”

As we noted, at the time, an article in the Albany Times Union summarized the SORR laws in local counties, last September (“Efforts to protect kids often carry own risks: Regional laws restricting residency for paroled sex offenders can be counterproductive, some officials say,” Sept. 9, 2007). Here is what it said about the Counties involved in Kindlon’s lawsuits:

Albany County: Levels 2 and 3 can not reside within 1,000 feet of a school or child-care facility.

Rensselaer County: Levels 2 and 3 cannot reside within 2,000 feet of a school or child-care facility.

Washington County: All levels cannot reside or work within 1,000 feet of schools, child-care facilities, parks, playgrounds, youth centers, public swimming areas, libraries, the state Office of Mental Retardation and Developmental Disabilities and the Warren-Washington County ARC. Offenders must remain at least 150 feet from school bus stops.