Sex Offender Residency Laws in New York State

Important Court Cases --

Legal challenges have been filed against sex offender residency laws in Albany County, Washington County, and Rensselaer County.. Read the legal complaint and affirmation in the Albany County suit. The NYCLU has indicated that they will file an amicus brief in support of the action. Watch a CNN interview of Terry Kindlon, the lawyer who is bringing these suits.

Legal action has also been taken against the Town of Cicero.

The NYCLU has threatened a legal challenge of the Schenectady County sex offender residency law. View their letter here.

September 4, 2007, a Federal Court found the Ohio sex offender residency law unconstitutional. Read the decision. This decision will likely have national significance.

February 20, 2008, the Ohio Supreme Court found the Ohio sex offender residency law unconstitutional in some respects. Read the decision.

See also this 2007 court decision finding Kentucky's residency restriction law unconstitutional.

November 21, 2007, the Georgia Supreme Court found that state's residency law unconstitutional. Read the decision.

February 19, 2008, the Missouri Supreme Court found that state's sex offender residency law to be unconstitutional in so far as it was applied to those who were convicted before the law was enacted. Read the decision.

July 15, 2008, a New Jersey appeal court found sex offender residency laws unconstitutional. Read the decision.

In 2003, the U.S. Supreme Court upheld Alaska’s version of Megan's Law in Smith V. Doe A lower court had ruled that Alaska's Megan's Law was unconstitutional because registration was another form of probation or parole and thus further punishment which was prohibited under the ex post facto clause of the U.S. Constitution.

Here are a couple of quotations from the U.S. Supreme Court decision:

The record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords...

The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint imposed. 259 F.3d, at 987. This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally Johnson v. United States, 529 U.S. 694 (2000); Griffin v. Wisconsin, 483 U.S. 868 (1987). By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision.

To communities considering the adoption of a sex offender residency law:

1. Think out the practical implications of these laws. On the surface these laws seems to make sense. Some have described them as “no-brainers”, and lawmakers often pass them without really giving them much thought. Communities need to think about the practical implications of this law. If such a law is enacted, where in your community are former offenders going to live? The other residents who live in those areas outside of the buffer zones might be concerned about all the sex offenders who start moving into their neighborhoods. These laws also have a domino effect. If one community enacts a residency law, the surrounding communities are likely to do the same.

The state that has had the most experience with these laws is Iowa. They have a statewide residency law. It has been such a disaster that the Iowa associations of county prosecutors (read their statement) and county sheriffs and half the county legislatures in the state have petitioned the state legislature to repeal the law. Some former offenders are sleeping in their cars and under bridges. (This also has happened in Miami, Florida). This makes no one safer. There was recently a story in the news about one former offender who kisses his wife and kids goodnight and leaves their home because it is in a buffer zone. He goes and sleeps in a motel outside a buffer zone. More former offenders are choosing not to register because they can’t find any place to live. Law enforcement now has no idea where they are. The Iowa prosecutors and sheriffs are telling the legislature that these laws make the community less safe, not more safe.

Studies have been done in Colorado and Minnesota (see below) which found that there is no relation between sex offender recidivism and proximity to schools.

2. Look at the numbers. The common view is that the recidivism rate is high among sex offenders. It is not. New York regularly publishes 3 year follow-ups of all those released from state prisons. Between 1985 and 2002 a total of 12,863 sex offenders were released. Only 272 of these (2.1%) were returned to prison for new sex crimes within three years of their release. (2002 Releases: Three Year Post Release Follow-up, State of New York Department of Correctional Services, p. 16)

A recently published study was done of 19,827 offenders on the New York State Sex Offender Registry on March 31, 2005 (including those sentenced to probation (41%) or local jails. It found that the re-arrest rate for a new sex crime within 8 years of the date of first registration was 8%. The study also found that "sex offenders are arrested and/or convicted of committing a new sex crime at a lower rate than other offenders who commit other new non-sexual crimes." (Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment, New York State Division of Probation and Correctional Alternatives, May, 2007, p. 3-4). (Read a detailed analysis of sex offender recidivism in New York State)

In 2003, The U.S. Department of Justice issued a report, Recidivism of Sex Offenders Released from Prison in 1994. Its findings: “In 1994, prisons in 15 States released 9,691 male sex offenders. The 9,691 men are two-thirds of all the male sex offenders released from State prisons in the United States in 1994. This report summarizes findings from a survey that tracked the 9,691 for 3 full years after their release… Within the first 3 years following their release from prison in 1994, 5.3% (517 of the 9,691) of released sex offenders were rearrested for a sex crime… Of the 9,691 released sex offenders, 3.5% (339 of the 9,691) were reconvicted for a sex crime within the 3-year followup period.

Approximately 95% of new sex crimes are committed by people other than registered sex offenders. Out of the first 178 perpetrators who were caught in the Dateline "To Catch a Predator" sting, only 4 were registered sex offenders.

We are most concerned about the horrible crimes that have been committed by strangers against children. These are very rare. According to a report of the U.S. Department of Justice 93% of sex crimes against children are within the family or committed by adults whom the children know well. The proposed law will do nothing to prevent these crimes.

3. Reason it out. The logic of these laws is that we will make our children safer by preventing former sex offenders from sleeping at night near where children spend their days. Does this make sense? Consider too that children are well supervised and guarded in schools. Have you ever heard of a registered sex offender invading a school and victimizing a child? There was the recent horrible case of the man who went into the Amish school and murdered the children. He was not a registered sex offender. He lived more than 1,500 feet from the school. This law prevents no one from hopping in a car and driving to a school.

4. Think about families. All offenders are not single men living alone. Many committed their crimes ten or more years ago and have since rebuilt productive lives. Many have families. These laws also force wives and children to move or force the family to break up. As mentioned above, a good number of these crimes are committed within the family. Sometimes the family chooses to remain together. Often these laws re-victimize the victim. They force the victim to move from the community as well as the offender.

5. Consider the research. The Minnesota Department of Corrections recently examined sex offender recidivism and the effect of residency laws. Between 1990 and 2002, 3,166 sex offenders were released from state prisons. Only 224 of these were returned to prison for a new sex crime through 2006. The report contains the statement, “Not one of the 224 sex offenses would likely have been deterred by a residency restrictions law.”

The report states: “…even when offenders established direct contact with victims, they were unlikely to do so close to where they lived. This may be due mostly to the fact that offenders are more likely to be recognized within their own neighborhoods. As a result, when direct contact offenders look for a victim, they are more likely to go to an area relatively close to home (i.e. within 20 miles of their residence), but still far enough away (i.e. more than one mile) to decrease the chances of being recognized.” (Residential Proximity & Sex Offense Recidivism in Minnesota, April 2007, Minnesota Department of Corrections, p. 2)

Consider also this information from Schenectady County, NY. Carl Strock, a columnist with the Schenectady Gazette did some research with the county district attorney. He writes:

In the past two years the district attorney's office has processed 113 sex-crime defendants, and of those a mere six were registered offenders repeating their crimes. Further, of those six repeaters, only two were charged with offenses against children, and of those two, neither was accused as a stranger. They were both some kind of family members or acquaintances.

In other words in the past two years there has not been a single case of what the legislators (and many others) want us to believe is a tremendous social problem -- serial "predators" skulking around schools and playgrounds waiting to snatch away our innocent children for their perverted gratification. ("Schenectady's Imaginary Predators," August 9, 2007, Schenectady Gazette).

For more info and studies on the effectiveness of these laws (or lack thereof) see "Sex Offender Residency Restrictions" by Jill S. Levenson, Ph. D.

Victims’ Rights and Law Enforcement Groups File Amicus Brief Urging Ohio Supreme Court to Side With Sex Offender Forced to Move From Home Cincinnati, Ohio –

The amicus brief argues three things: (1) that there is no evidence that sex offender residence restrictions protect children from sexual abuse; (2) that such laws are driven by fear, not facts; and (3) that these laws potentially increase the risk of harm to children by giving parents and their children a false sense of security and by driving sex offenders "underground," where they are more difficult to monitor by law enforcement.

The brief is available at http://www.sconet.state.oh.us/temp/596365.pdf

United States District Court finds Ohio residency law unconstitutional. (Sept., 2007) Download the decision.