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."

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.]