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August 7, 2007

NYCLU Letter threatens lawsuit over Schenectady County sex offender law

Filed under: lawyer news or ethics — David Giacalone @ 6:14 pm

erasingS   update (Aug. 14, 2007):  See our posting “new Schenectady sex offender proposal,” for a description of the bills proposed for a public hearing on Aug. 22, 2007.  Click SchdyCountyProposedSOLawAug07, 9-pp pdf., to see the proposed legislation.

update (Aug. 11, 2007): Jim Murphy has an excellent letter to the editor in the Daily Gazette today, “County should look at Iowa’s model for help with sex offender law. update (Aug. 10, 2007): According to an article in today’s Schenectady Daily Gazette, “Towns mull initiative on offender issues,” a majority of town supervisors oppose proposed changes” to the County’s SORR and are “considering their own initiatives.” It quotes Glenville Supervisor Frank Quinn saying the five supervisors are “gagging on” the proposals, which are “[not] really getting at the issue and managing it better.” Quinn argues that the “real answer is to get people who do this for a living to come up with recommendations on how to deal with all the issues.” Niskayuna Supervisor Luke Smith wants a comprehensive approach and says “Don’t put nine politicians in a room to find answers.” Rotterdam Supervisor Steven Tommasone said “Drawing circles on the map does not help anyone.” He wants the state to do more, with stricter laws, better enforcement. [Ed. note: It appears that the town supervisors have learned from the mistakes made at the County level — wanting effective answers to the concerns of parents and politicians, not symbolic, “feel-good” laws that bash “predators” without making children safer or respecting the Constitution.] The article has a Sidebar comparing sex offender laws in Schenectady, Saratoga, Albany and Rensselaer Counties.

update (Aug. 9, 2007): See “Dems to alter offender laws: Legislators cite concerns of town supervisors,” Daily Gazette, Aug. 9, 2007, which reports that likely changes would be repealing the law requiring relocation, exempting Level 1 offenders from the SORR, and “allowing towns to adopt more restrictive provisions if they choose” [Ed note: town laws would raise serious state pre-emption issues]; “Residency law faces possible challenge,” Albany Times Union (Aug. 9, 2007; reprinted); and also Carl Strock, “Schenectady’s imaginary predators,” Schenectady Daily Gazette, Aug. 9, 2007, which is covered this morning in a separate posting.

update (6 PM): WTEN.com News just told viewers about the NYCLU’s Letter, and quotes Legislative Chair Susan Savage saying that the Legislature is considering making major changes to its sex offender residency restriction [SORR] laws. Savage insists the changes have been under consideration and are in no way a reaction to the NYCLU lawsuit threat. Note, however, that Savage is quoted in yesterday’s Schenectady Daily Gazette (Aug. 7, 2007) insisting that “There is no change in the law that I anticipate.” Channel 10 was not able to get any other County legislator to discuss SORR on camera. [WNYT, Channel 13, had a similar story on its 6 o’clock news; at 10PM, FoxNews23, ran “NYCLU Threatens Legal Action against Schenectady County” (Aug. 8, 2007); and CapitalNews9 updated its story “Lawsuit could be filed over sex offender laws,” to discuss possible changes in the law.] I’d bet that a combination of Ed Kosiur’s stunning SORR-related political defeat and the looming reality of incurring large legal expenses in a losing cause made Ms. Savage and her Posse see the light.

11 PM update: WNYT13 reported that the Legislature is considering removing Level One offenders from the law, and grandfathering-in those living within the no-reside zones at the time the law was passed. That confirms my own information. I’m not sure this will satisfy the outlying Towns or remove the pre-emption issue, but it would eliminate two of the most troublesome aspects of the Schenectady County SORR.

In a four-page letter joined by three area lawyers, the Capital Region Chapter of the New York Civil Liberties Union advises each member of Schenectady County‘s Democratic-controlled Legislature that the sex offender residency restrictions [SORR] enacted by the County on June 12, 2007 are unconstitutional and will be challenged in a lawsuit, if not immediately rescinded or drastically revised. (see Agenda, at pp 68 – 74, for text of the law) The Letter declares: “it should be clear to all that this legislation was passed in haste, without careful attention either to New York state law or to constitutional protections.”

Dated and mailed Aug. 7, 2007, the Letter is signed by Melanie Trimble, Executive Director of the Capital Region Chapter, and by Albany lawyers Terry Kindlon and Kathy Manley, of Kindlon Shanks & Associates, and myself, David Giacalone, of Schenectady. Kindlon is a well-known criminal defense lawyer and Manley is experienced in appellate and civil liberty litigation.

In his recent unsuccessful special election campaign for State Assembly, County Legislator Edward Kosiur, primary sponsor of the County’s sex offender residency law, proudly boasted that it is the “toughest sex predator law in New York State” (see our July 30 posting “stop Kosiur“). In a detailed discussion at the time it was passed, we described the most outrageous features of the new law:

It requires sex offenders — at every level — to leave their homes starting Oct. 1, should they reside within 2,000 feet of public parks, pools and playgrounds, as well as schools, day care and youth facilities. In addition, should such facilities at any time in the future by located within 2000 feet of a sex offender’s residence, he or she has 90 days to relocate outside of the forbidden zone. The restrictions effectively ban sex offenders from living in the city of Schenectady and its close-in suburbs, and are therefor likely to cause relocation and future location of sex offender residences in more rural parts of Schenectady County and into Montgomery County.

The NYCLU Press Release (Aug. 7, 2007) describes the Letter, which:

  • details the deficiencies in the county’s sex-offender laws, threatening legal action if the laws are not repealed or drastically revised to conform with state standards.
  • lays out the overwhelming legal case against the laws and marshals the large body of social science evidence which shows how such laws are more likely to cause problems than to solve them.
  • notes that, in the recent 105th Assembly District special election, voters “have sent a strong message that these laws, in their current form, are invidious.” And “The Schenectady County Legislature should listen to the voices of its constituents.” [see the update to “stop Kosiur“]
  • states that “New York state law already puts severe but carefully-thought-out restrictions on those who have been convicted of sexual offenses,” and explains how the Schenectady laws violate state pre-emption principles that prohibit local governments from exercising authority in a manner inconsistent with state law and policy; and
  • ExitSignArrow shows how the residency restrictions — which amount to banishment and require the eviction of law-abiding citizens — also run afoul of the prohibition on ex-post facto laws by increasing punishment for a crime after it has been committed. Noting that no case has been found upholding an SORR imposed without “grandfathering” current residents to allow them to stay, the Letter stresses: “It is shocking to think that the County Legislature would force people who already have paid for any crime they may have committed to uproot or abandon their families, to break leases with landlords, and to forsake communities where they may have lived in peace for decades.”

The Letter also points out that the laws place an undue burden on surrounding communities to which sex offenders might be forced to migrate. Recent studies indicate that such laws may actually correlate with increased recidivism and cause former offenders to stop registering with law-enforcement authorities and to abandon the community support services that may actually inhibit them from re-offending. “There is no evidence,” Trimble observes, “that invoking residency restrictions around schools has any effect at all on rates of sexual offense.” (for example, see Statement on Sex Offender Residency Restrictions in Iowa, by the Iowa County Attorney Association, Feb. 2006)

The Letter concludes with a plea and a warning:

“We strongly urge the Schenectady County Legislature to reconsider its actions and rescind these onerous, unjust and unconstitutional laws. If you should persist in enforcing these laws, we would be left with no other option but to pursue litigation with all the attendant legal costs to the county which that implies. “

SchdyCountySeal p.s. I have no idea whether our Letter will help Susan Savage, Chair of the County Legislature (who hand-picked Ed Kosiur to run for the 105th District Assembly seat and foolishly rushed through the SORR to aid his campaign and advance her personal crusade against “sexual predators”), and County Attorney Chris Gardner (who apparently believes the law is unconstitutional as written) to come to their senses. They should know that a lawsuit challenging this unwise and unconstitutional law is a certainty, should they fail to void or totally revamp the SORR in the next week or so. Wasting tax dollars on an expensive defense of a fatally deficient law is intolerable, as is leaving the families of sex offenders in an anxious limbo with the October 1 relocation date a mere 7 weeks away. As a lawyer, I am aghast at their embracing a law that has no redeeming value. As a registered Democrat, I can assure Ms. Savage and other Party leaders that their actions have made myself and many fellow Democrats in this County angry and ashamed — and in no mood to permit our Party to be destroyed by arrogant and foolish leaders, either now or in future elections.

eviction notice —
a moth ricochets
in the lampshade

. ……………. by Alice FramptonThe Heron’s Nest (March 2004)

autumn wind —
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta exitSignN

4 Comments

  1. I love the ACLU! People ALWAYS forget that if a tyranny (like these set of regulations) can be imposed against one group of people, they can (and will) be imposed against another group of people. Americans seem to be enthralled with the perception that the U.S. is exceptional and that we would never act unjustly like other countries have. But that is not the case.

    Comment by Mica — August 7, 2007 @ 10:29 pm

  2. […] registry into, one presumes, moving away from their neighborhood. David Giacalone writes about another sex offender law at his blog […]

    Comment by Blawg Review #121 | The Inspired Solo — August 13, 2007 @ 7:18 am

  3. I believe it it extremely important to change the sex offenders law. Where are sex offenders supposed to live? What happens to those who are happily married and the offender has to move? Isn’t the law being retroactive double jeopardy? I think your representing the offender is a honest thing to do and says a lot about your caring for others rights. Can you tell me of any outfit here in Maine that will halp support financially an upcoming court case/

    Comment by Charles A. Reitze Sr. — November 7, 2007 @ 5:05 pm

  4. I read the 4 page letter by the lawyers about the local offender law and have this problem in Otsego county regarding their new local law as to where an offender may live, which seems to be nowhere. Do you know of any legal aid attorney who would handle a case like this in Otsego County. Contact me if you do, 607-286-9281 or email

    Comment by Laurel Wahl — January 4, 2008 @ 6:23 pm

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