Sex Offender Residency Restrictions – Why New Jersey Doesn’t Have Them
Sex offenders are the social pariahs of our era. They are persecuted like witches during the Salem Witch Trials and communists during the McCarthy Era. However, while these periods came to an end as the public discovered the baselessness of their hysteria, retaliation against sex offenders and those on Megan’s Law remains overly harsh and unscientific. However, it is entirely possible that the same trend toward rationality will occur in connection with Megan’s Law vigilantism.
500 Feet From a Park? 1,000 Feet From a School?
A turn-around in perspective and understanding of the true danger posed by sex offender recidivism is becoming apparent. In a recent example, the New York Times published an editorial entitled “The Pointless Banishment of Sex Offenders.” This article explores the injustice of residency ordinances against sex offenders – limiting where they may live. The article specifically addresses the tidal wave of statutes passed by legislatures throughout the country, severely restricting housing options for people with a sex offense conviction on their record. However, some constitutional scholars and judges are fighting back, and states have seen the reversal of such ordinances by courts in California, Massachusetts, and New York.
The Times editorial board aptly identifies the issues that explain why residency ordinances for Megan’s Law sex offenders do not protect the public from sex offense recidivism. Some of the key points include:
- Blanket restrictions drive more sex offenders into homelessness, thus making them harder to monitor, and less likely to have access or utilize rehabilitative services.
- Sex offenders are forced to live apart from their families, thus removing their support structure, which, in many cases, is one of the most stabilizing factors in their lives.
Interestingly, New Jersey courts led this charge, banning municipal sex offender residency ordinances aimed at people subject to Megan’s Law. In New Jersey, G.H. v. Twp. of Galloway, 401 N.J. Super. 392 (2008), the court found that restrictions created by municipalities were unconstitutional as they preempted the application of Megan’s Law. Megan’s Law is a statutory scheme (i.e., a bundle of individual laws) that establishes and regulates the registration and community notification of convicted sex offenders. Before G.H., in both Camden and Atlantic counties, towns passed ordinances limiting the distance that a registrant can live from a school, daycare center, etc. When the county courts struck down the ordinances, the towns appealed.
On appeal, the Court found residency restrictions for Megan’s Law registrants unconstitutional for multiple reasons. Most notably, it is unconstitutional because it attempts to supersede the laws created by the Legislature. The court in Galloway states:
“The far-reaching scope of Megan’s Law and its multilayered enforcement and monitoring mechanisms constitute a comprehensive system chosen by the Legislature to protect society from the risk of re-offense by CSOs [convicted sex offenders] and to provide for their rehabilitation and reintegration into the community. The system is all-encompassing regarding the activities of CSOs living in the community. We conclude that the ordinances conflict with the expressed and implied intent of the Legislature to exclusively regulate this field, as a result of which the ordinances are preempted.”
Furthermore, residency ordinances trespass on the duties and decision-making abilities of parole officers who judge where Megan’s Law registrants, if they are under parole supervision (CSL or PSL), may live. While local governments might think they are making the community safer, they are actually driving many former offenders into poverty and underground, making it harder for parole officers to monitor those who may actually present a threat. This greatly increases the danger to the community and further alienates people on Megan’s Law from society and the ability to reform.
Bearing in mind all of these reasons, courts in New York, Massachusetts, and California have taken a similar position to New Jersey.
The bottom line is that even though there is a great deal of misperception about the dangers posed by “sex offenders” on Megan’s Law, some members of the public are beginning to understand that harsh, draconian laws do nothing but make the community less safe. The hysteria and fear concerning people with a sex offense on their record should eventually reduce as the public is educated on the very low risk that such individuals actually pose to children and the general public.
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