Nassau County Chapter — NYCLU: Nassau County Sex Offender Legislation Badly Misguided

NYCLU: Nassau County Sex Offender Legislation Badly Misguided

Chapter Director Samantha Fredrickson testified before the Nassau County Legislature on Oct. 5 against proposed legislation that would impose new restrictions on registered sex offenders.

The bill would prohibit any registered sex offender from living within 2,000 feet from a victim’s residence or workplace and would require high-level offenders to wear a GPS bracelet that monitors their location at all times, for a period determined by a court.

Fredrickson said the proposed measures would do little to protect residents and their children. To the contrary, the legislation would weaken public safety by diverting resources from more effective measures — such as counseling, treatment and individualized supervision.
 

Testimony of the New York Civil Liberties Union before The Nassau County Legislature regarding Resolution 25-2009

October 13, 2009

My name is Samantha Fredrickson and I am the Director of the Nassau County Chapter of the New York Civil Liberties Union (“NYCLU”). The Nassau Chapter of the NYCLU has nearly 3,000 members. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

I would like to thank the Legislature for allowing me to provide testimony relating to Resolution 25-2009. The New York Civil Liberties Union has been vocal across the state in regards to local legislation that purports to protect the public against sex crimes, but instead imposes elaborate regulatory schemes on persons with a prior offense that are both ineffective and unconstitutional.

We’re all in agreement that the safety of our community, and especially our young people, is a top priority. We’re also probably all in agreement that the treatment of sex offenders is vital in addressing that priority. The New York Civil Liberties Union shares the concern of Legislators Denenberg and Scannell, the sponsors of the bill, that sex crimes pose a danger to our society and to our children. But the question the proposed amendments raise, and the question that I raise to you today, is what is the most appropriate and effective way to achieve those goals? This bill is not the answer.

The bill would amend the current section of the County Code that governs the regulation of sex offenders. Two of these amendments are problematic, I will address each of them in turn. First, the bill would broaden the residency restrictions already imposed by the county code to prohibit any registered sex offender from living within 2,000 feet from the property line of a victim’s residence or workplace. Second, the bill would require level 3 offenders to wear an active GPS bracelet that monitors their location at all times, for a length of time that will be determined by a court.

The proposed changes to the current code are misguided, poorly drafted, and likely counterproductive. I urge that the legislators vote no on these amendments. They will do little to achieve the legislature’s goals of protecting Nassau County residents and their children from sex offenders. To the contrary, these amendments could increase the risk to public safety by diverting resources from more effective measures — such as counseling, treatment and individualized supervision, which can significantly reduce recidivism among individuals who have offended in the past. The proposed legislation would quite likely have the effect of driving registered offenders underground, compelling them to live their lives in a way that evades involvement with treatment providers, probation and parole officers and police.

Additionally, the changes proposed to the current code are preempted by state law, the Sex Offender Registration Act. New York courts have been clear that counties are barred from enacting more restrictive laws. Passing this bill would invite costly litigation against the County.
 

A. The residency requirement

I would first like to address the amendment to Sec. 8-130.6, which broadens the residency restrictions imposed upon registered sex offenders. Currently, this section of the code prohibits offenders from living 1,000 feet from a school and 500 feet from a park. The amendment would further prohibit offenders from living 2,000 feet from the residence or workplace of the offender’s victim. This law is tantamount to banishing former offenders from large geographic areas of the county — and from many residential centers. This forces these individuals to live in areas that may be far removed from residential communities — an almost explicit intent of laws like this. For some, the options will be so limited and restrictive that they will choose to forego registration and go “underground,” living outside of any supervision systems. Both outcomes do more to isolate offenders and fuel their propensity to commit future crime than to safeguard potential victims.(1)  Forcing these individuals out of their communities also keeps them farther away from treatment centers, psychologists, and their own support network of family and friends, making it nearly impossible for them to get the treatment they need.

Forcing sex offenders to live far away from their victims does not protect potential victims. Research has shown that sex offenders often seek out potential victims in areas far away from both their homes and from areas which they may be prohibited from living.(2)  The tightening of the residency restriction in this way is motivated by fear and anxiety, not logic and rationality.
 

B. Location Monitoring

Secondly, the proposed amendment to Sec. 8-130.9 which would require sex offenders to wear a GPS location monitoring bracelet for an undetermined period will not achieve the goal that the legislature intends. From a practical perspective, GPS monitoring systems have a well — documented history of failure. Consider the tragic evidence. By now you’re probably all familiar with Phillip Garrido, the convicted sex offender in California who kept Jaycee Lee Dugard captive in a shed in his backyard for 18 years. He wore a GPS monitoring bracelet. Consider also Darrin Sanford, the convicted sex offender in Washington State who confessed to raping and killing 13-year old Alycia Nipp one afternoon as she walked home from WalMart. Sanford, who was homeless and living in an empty field near an abandoned house, was wearing a GPS monitoring bracelet when he murdered Alycia. What did the GPS bracelets do to help Alycia and Jaycee Lee?

Both of these stories illustrate the problem — the combination of overly harsh residency restrictions and location monitoring exasperates the situation. Offenders are banished to live off the grid, like Garrido, or they end up homeless, like Sanford. The GPS bracelets did nothing to stop them from committing their offenses. Further, GPS bracelets can be removed, or the offender can simply just let the battery wear down. And even if the offender is wearing the GPS bracelet — it’s not going to tell the police department what the person is doing. It merely tells them where the person is.

I urge you to consider whether the amendments to our Code proposed in this bill are really the most effective way to reduce our risk — and our children’s risk — of sexual assault at the hands of a registered sex offender. Ask yourselves these questions:

1. Do these changes really make our communities safer or do they instead give people a false sense of security that those subject to registration requirements are being adequately controlled by these measures?
    
2. Will GPS monitoring and stricter residency requirements compensate for the lack of effective monitoring and treatment that sex offenders receive under our current laws? As research has made clear, it is the treatment, effective monitoring, and engagement with community, not banishment, that reduces recidivism and makes our communities safer.(3)  So what will GPS monitoring do to help offenders get the treatment they need? What will adding this requirement — which is costly to say the least — do to strengthen the — ability of our parole and probations systems to dedicate scarce time and resources to effective monitoring?
    
3. Are we correctly identifying the individuals who pose a risk? New York’s Risk Assessment Guidelines, the instrument used to evaluate and assess sex offenders, are seriously flawed.(4)  They were developed prior to scientific research that established clear correlations between particular characteristics and behaviors of an offender and a propensity to re — offend. What’s more, an evaluator is allowed to override the Guidelines’ objective scoring measures based upon “special circumstances,” but the evaluator is not required to elaborate as to what those circumstances are. According to one expert in this area, New York designates approximately twice as many Level 3 offenders as would be expected based upon scientific research and the experience of other states.
    
4. Is stopping “just one” sex offender from re-offending worth the cost? This is a refrain that is often used when discussing harsh new penalties and restrictions: “if it prevents just one more victim, it’s worth it.” But approving ever more dramatic restrictions actually diverts our attention — and our scarce resources — from approaches that could stop many, many more former offenders from victimizing others in our community.

Lastly, and perhaps most importantly, a law that virtually banishes registered offenders from entire communities is simply impermissible under state and federal law. If this law is passed, the county will undoubtedly be subject to litigation because local residency restrictions have been held invalid by several courts, as recently as this year.(5)  It is well-settled law that a local municipality may not adopt a law that is inconsistent with state law.(6)  New York State governs the registration of sex offenders via the New York State Sex Offender Registration Act. In fact, sex offender registry laws in Rensselaer, Rockland, and Albany counties have already been struck down based on the doctrine of preemption.(7) 

This law, if passed, will undoubtedly have an impact on public safety — but not in the way its drafters would anticipate. For the reasons stated above, the overly restrictive residency requirements will likely provoke registered offenders to “go underground” and lose touch with the already tenuous support systems that help to keep them from offending again. The proposed law also raises serious constitutional concerns. Though we commend the sponsors’ motivation for introducing this bill and share their goal of making our community safer, this bill is not the way to do it. I ask you to consider the evidence I’ve presented and the questions that I’ve put before you today, and vote “no” on this bill. Thank you.

Footnotes

(1)  Michael Chajewski & Cynthia Calkins Mercado, “An Evaluation of Sex Offender Residency Restriction Functioning in Town, County, and City — Wide Jurisdictions,” 20 Criminal Justice Policy Review 44 (March 2009); Kristen M. Zgoba et. al., “Examining the Impact of Sex Offender Residence Restrictions on Housing Availability,” 20 Criminal Justice Policy Review 91, 105 — 08 (March 2009).

(2)  Naomi J. Freeman, “The Public Safety Impact of Community Notification Laws,” 2009 Crime & Delinquency 19 “Empirical research has suggested that sex offenders do not always commit crimes within their areas of residence and, thus, the areas in which notification occurs. Indeed, studies in Colorado and Minnesota found that sex offenders are unlikely to offend close to their homes and within the area that notification occurs; rather, sex offenders may travel, on average, 3 to 5 miles to gain access to victims.”

(3)  Colorado Department ofPublic Safety, Report on Safety Issues Raised by Living Arrangements for and Location of Sex Offenders in the Community (March 15, 2004)

(4)  See Laurie Guidry, “Doe v. Pataki: Court Offers 9,000 Sex Offenders Opportunity to Appeal Risk Level, The Alliance [Quarterly Publication of the New York State Alliance of Sex Offender Service Providers], vol. 7, issue 1, Winter 2004/2005.

(5)  See Wray v. County of Albany, No. 2622 — 08, slip op. (N.Y. Sup. Ct., 2009), Doe v. County of Rensselaer, No. 2232 — 40, slip op. (N.Y. Sup. Ct., 2009) People v. Oberlander, No. 02 — 354, slip. op. (N.Y. Sup. Ct., 2009).

(6)  New York State Club Assoc. v. City of New York, 69 N.Y.2d 211 (1987).

(7)  See Wray v. County of Albany, No. 2622 — 08, slip op. (N.Y. Sup. Ct., 2009), Doe v. County of Rensselaer, No. 2232 — 40, slip op. (N.Y. Sup. Ct., 2009) People v. Oberlander, No. 02 — 354, slip. op. (N.Y. Sup. Ct., 2009).