Sex Crimes

Top Massachusetts Court Rejects Local Banishment of Sex Offenders

Judges say Lynn ordinance is pre-empted by state law but also note "grave societal and constitutional implications."

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In 2011 the city council of Lynn, Massachusetts, enacted an ordinance than prohibits certain categories of sex offenders from living within 1,000 feet of a school or park—exclusion zones that cover 95 percent of the town's residential property. Under the pretext of "reduc[ing] the potential risk of harm to children of the community," but without regard to whether offenders had actually committed crimes involving children, the ordinance effectively banished Level 2 and Level 3 sex offenders from the city. Last Friday, in response to a class action lawsuit filed on behalf of 212 Lynn residents likely to be affected by the restrictions, the Supreme Judicial Court (SJC) of Massachusetts overturned the ordinance, concluding that it conflicts with the state's scheme for regulating sex offenders after they are released from prison.

The SJC's unanimous decision notes that the 1999 law establishing the state's sex offender registry includes only one residence restriction (later overturned by the court on due process grounds), barring sex offenders from living in long-term care facilities. Hence the legislature "considered and addressed potential risks involved with sex offender residency in relation to a vulnerable population." The court also points out that local residence restrictions can interfere with state monitoring of sex offenders and with rehabilitation. "By requiring level two and level three sex offenders to move from their residences or face a civil penalty of $300 per day," the opinion says, "the ordinance disrupts the stability of the home situations of sex offenders. As a supervised and stable home situation has been recognized as a factor that minimizes the sex offender's risk of reoffense, this disruption is inconsistent with the Legislature's goal of protecting the public." 

The problem is compounded by the proliferation of local residence restrictions, as one town's exclusion ordinance prompts others to follow suit, lest they become magnets for sex offenders. "States have increasingly recognized that this is a problem that can only be solved at the state level," Drexel University law professor Daniel Filler told The Boston Globe, "because, if left to municipalities, it just becomes a game of one town after another putting up walls in their own jurisdiction." 

Although the case was decided based on state pre-emption of local legislation, the plaintiffs also argued that the ordinance violated the constitutional bans on ex post facto laws and cruel and unusual punishment as well as their rights to freedom of movement and freedom of association. The SJC did not directly address those claims, but it noted "the grave societal and constitutional implications of the de jure residential segregation of sex offenders," adding, "Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans, may be lawfully banished from our midst."

That analogy was too much for former Lynn City Council President Timothy Phelan, who sponsored the ordinance that the court overturned. According to the Globe, Phelan "expressed shock that the court would compare historical atrocities against people based on their heritage with laws aimed at sex offenders convicted by courts and then classified by the state as dangerous."

Phelan has a point. A closer analogy would be exile as a sentence (or part of a sentence) for convicted criminals, an old-fashioned, constitutionally dubious practice that is rarely seen in the United States nowadays outside of this context, where it masquerades, along with registration requirements, as regulation rather than punishment. One reason to doubt that description: The public safety benefits of these regulations are hard to identify, while the disadvantages in terms of impeding reintegration and encouraging recidivism are pretty clear.

[Thanks to William Dobbs for the tip.]

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  1. A closer analogy would be exile as a sentence (or part of a sentence) for convicted criminals…

    At the very least the ordinance should have had the social-contract-deal-busters face the wheel first.

    1. +1 Aunty Entity

  2. I remember the 1000′ gun free zone away from a school law passed in the 1990’s. A friend I hunted with live across form a school on a narrow road.Much less the 1000′.So,not only was it ilegal for me to pick him up to bird hunt with my O\U in my truck,but,for him to have his guns in his house.Of course make all these people homeless and jobless after they serve their time will work out just fine.

  3. The registry laws are unconstitutional and immoral. You could never consistent with the 8th Amendment impose mandatory life sentences on every “sex offense”. Yet, that is exactly what these laws do. I am all for law and order and punishment. Some people need to go to prison. But once someone serves their sentence, whatever that is, they should be free. The idea that we take people and tell them they must inform their neighbors of their crimes and are forever barred from in some states amounts to virtually anywhere is barbaric.

    People have gone insane in this country. I know otherwise sane people who seem to have this bizarre fixation on child sex. They post memes on facebook like “instead of using animals for medical research, why not use sex offenders?” It has gotten so bad that even stating the obvious fact that child molestation is not the worst crime ever, murder is, causes people to be outraged. I wouldn’t want to be molested as a kid, but I would take it over being murdered. Yet, no one ever posts memes about using murderers or people who murder old ladies for medical research, just “sex offenders”.

    The ironic thing is that we sexualize kids in this society more than probably any society since Rome. The same people who post memes about doing medical experiments on “child molesters”, let their 8 year old daughters dress like strippers. How someone could have that kind of cognitive dissonance is completely incomprehensible to me.

    1. Why do you hate the chidren and Miley Cyrus?

      1. Miley Cyrus really is almost the perfect train wreck of modern pop culture. She hits every note. She has virtually no musical talent and furthers the devolution of popular music. Sans the Motown stars, the pop divas of the 60s and 70s were inferior talents to the divas of the 40s and 50s, but were vastly superior to Madonna and what came in the 80s. Cyrus continues this devolution by making Madonna seem like Peggy Lee or Aretha Franklin in comparison. And whatever you think of Madonna, she was at least good looking when she was young. Cyrus has no body and not a single pretty feature. Who wants to see a skinny homely girl trying to be sexy? Sure Katie Perry has a three note range and couldn’t sing in a local church choir without autotune, but at least she has an epic rack. Cyrus has nothing; no talent, no physical attractiveness, nothing. There really is no there there.

        1. I’m sorry the way that young woman conducts herself doesn’t meet with your requirements of attractiveness, John, but she is actually a pretty talented singer.

          1. I am not hearing it. She sounds like a child. Her voice has no depth and no maturity to it, though I admit that is better than anything else I have heard from her.

            She is at best a fair to midland cover band singer.

          2. She’s no Taylor Swift, that’s for sure.

    2. That’s not really cognitive dissonance. They believe that slut shaming is wrong and the way you are dressed isn’t “asking for it”.

      The reason they hate child molesters is because they think their snowflakes should be able to dress however they like without fear of being attacked by some old man. Yes, it’s stupid. But it’s not cognitive dissonance.

      1. I see what you mean. They never ask themselves one thing. If the creepy old man who is lusting after their children is like the worst person ever, then why is it okay for them to let their kids be sexualized? If the entire goal is to protect your kids from sex, then why the hell don’t you protect your kids from sex? You know by letting them be innocent for as long as possible and not start dealing with sexuality until they are mature enough to handle it?

        1. As we’ve seen, most of these people would have women be able to walk naked down the sidewalk without a man so much as glancing at them never mind making a comment. I think the long term goal is actually to desexualize everything. If sex becomes just another thing that people do, most of the excitement goes out of it. And if it’s not exciting, people will stop doing whatever they can to get it.

          Of course, my guess it the opposite will end up happening. Every crazy fetish that anyone could ever possibly think of will become mainstream as people try to still enjoy sex.

          1. And if sex is just another thing that people do, why is doing it with children so horrible? The only reason we think of sex with children being so immoral and wrong is because sex isn’t just something you do. The whole thing is insane.

            1. Because sex is just a thing adults do. Children are incapable of making decisions of any kind. That’s why having sex with a child is automatically rape.

              Children dress like sluts because they just don’t know any better and it’s wrong for adults to take advantage of that.

              It’s a bit crazy, but these people are building the world they think they want. I think they’re heading for an epic backfire, but that probably won’t happen until long after we’re dead.

              1. Wow. I think you are correct in how these people think but wow is that irrational and crazy. The heart of it is that adults don’t want to be adults and take responsibility either. Yes, children don’t know any better and can easily be taken advantage of. That is why parents have to step in and take responsibility and not let children do whatever they want and make some decisions for them until they are old enough to understand how to make them. The people you are talking about don’t want to be responsible either. They don’t want to step in and make decisions and take responsibility for anything much less their kids. They couldn’t tell one of their little snowflakes “no”, that might hurt their kids’ self esteem or cause their kids to not like them.

                Basically, these “adults” just want to be children with sex privileges.

              2. And speaking of responsibility Sparky, I prosecuted several child sex cases back in the day. There is one question no one ever asks in those cases that ought to be asked; where the hell was the kid’s parents? Well over ninety percent of child sex cases fall into one of two groups; either the kid was molested by a step parent or significant other of one of their biological parents or the kid was molested by a coach, teacher or some other person who had a lot of access to them. Cases where kids are molested by their biological parents or by total strangers happen but are very rare.

                In the vast majority of cases, the kid gets molested because his biological parents are negligent and don’t pay enough attention to their kids. The thing about most pedophiles is that they are very good at ingratiating themselves to kids and look for the kids who are the most lonely and vulnerable. Unless your kid is the victim of some kind of Poly Klass type kidnapping and murder by a real monster, if they get molested it is because you were not paying enough attention and let it happened. That is a truth that no one seems to want to face. So instead, they pretend that pedophiles are these monsters with super powers that can’t be stopped.

                1. Indeed, I’m sure there are many parents out there who are completely unfit to have children. But unless you’re willing to start sterilizing people, and nobody should want that ever, it’s going to happen. It would be a good idea to stop incentivizing people to have throwaway children though.

                  1. Sparky,

                    I remember having a conversation with a very conservative college who had two teenage daughters about this issue. I basically told him that the age of consent was too high and if I had a 16 year old daughter and she had an affair with her teacher or some old guy, I would hold her responsible for not keeping her legs closed not the guy. That 16 is not 10 and someone that age was old enough to know better and be responsible for their choices. Oh my fucking God did that guy have a stroke. Apparently, I just couldn’t understand just how fragile such little snowflakes are.

                    1. Imagine a state legislator proposing lowering the age of consent to 13.

                      The remainer of his political career could be measured in nanoseconds.

                    2. You are right Micheal, but that doesn’t make the refusal too any less crazy.

    3. Aren’t pedophiles generally into outfits that make children look like children? A pink frilly dress with pigtails and bows are more what they are after than the mini-skirt and tube top?

      1. I don’t know to be honest. Even if they are, my point still stands. It is not like these people are dressing their kids that way in some weird effort to run pedophiles off.

        1. Honestly, I just don’t care what a kid wears until they hit or are about to hit puberty. When I was little I loved belly shirts and majorly oversized t-shirts that were big enough to hide that I was wearing shorts (I thought adults reactions were funny and they were comfortable). I’ll occasionally wear similar styles now that I’m older (the whole fact that my college friends thought I’d actually go outside without shorts was just as funny), but it really didn’t have an effect on my modesty. The modesty level I’m comfortable with developed in my after puberty but before college years.

          1. I largely agree with you. But I also don’t spent my life obsessed with the threat of pedophiles and wouldn’t even if someday I hopefully have children. If I did, however, I can’t imagine how I wouldn’t feel differently.

      2. Can we get Old Man With Candy to give us a ruling??

        1. Oh that is bad. I mean really bad. Maybe Postrel is right to hate us.

  4. The only political exile in U.S. history that I’ve ever heard of is Clement C. Vallandingham, a Congressman from Ohio whom Lincoln exiled from the U.S. because of his anti-war, pro-South views. Under a flag of truce, they marched him over to the Confederate lines & the Confederates were uncertain what to do, so they sent him back shortly thereafter.

    He lived the rest of his life as an attorney…but that’s another story.

    So, in theory, there’s precedent for exiling Americans from America for their political views.

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