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August 13, 2007

new Schenectady sex offender law proposal

Filed under: lawyer news or ethics — David Giacalone @ 10:47 pm

     update (Aug. 15, 2007): As expected, the Schenectady County Legislature voted last night to hold a public hearing on Wednesday Aug. 22 on a resolution to rescind the law that would require forced relocation of sex offenders from “exclusions zones” as of October 1st, and to amend the main sex offender residency restriction [SORR] law by removing Level One offenders and “permitting” other local governments to impose greater restrictions. They also agreed to vote the very next day (Aug. 23) on the measures. Except for getting the important date of the public hearing wrong, today’s Daily Gazette does a good job covering last night’s action. See Changes looming for sex offender laws,” and “Town awaits action on offender law“; click for related video from FoxNews 23.

Dem. Mike Eidens and Rep. Carolina Lazzari, who both voted against the two original sex offender laws, stated that they would prefer to repeal both of them and not merely the forced relocation law. Lazzari lamented the fact that there was no practical way for her to get the option to repeal both SORR laws before the Legislature (other than the good will of the majority). The very popular option of wiping the books clean and starting over will, therefore, not be on the table when the Legislature votes next Thursday night, despite the fact that they will surely hear calls for total repeal from Town Supervisors, and many citizens and experts at the public hearing.

  The Legislature’s Chair, Dem. Susan Savage, proclaims “We think we’re meeting the majority of the concerns” and we’re “meeting them half way,” but it is very discouraging that she has presented amendments that specifically encourage the City of Schenectady, the towns and the villages of the County to consider passing laws more restrictive than the revised laws. When the problem with the SORR law is that it does not serve its intended purpose and is very likely to be held unconstitutional, “half way” is an asinine, hypocritical position to take. And, inserting “permission” for more restrictive laws by the smaller governmental units is gallingly politcial, when they already have that power. [See the discussion of preemption by the County below.] Having Rep. Minority Leader Robert Farley braying on in support of increasing the exclusion zones underscores their pandering to those who irrationally believe banishing sex offenders is an effective solution. Farley and other legislators also stressed the importance of listening to the public. But, I must wonder just when these leaders will start to take seriously their own responsibility to tell the public the truth about the efficacy and wisdom of residency restrictions. Leaders can have empathy for the fears of their constituencies without enacting worthless and counter-productive laws.

For drama and substance, the presentation of Duanesburg Supervisor Rene Merrihew was the highlight of last night’s legislative meeting. The Albany Times Union captured it in today’s article “Lawmakers re-think sex offender bill: Schenectady County Democrats lead move to tone down legislation” (Aug. 15, 2007; reprinted):

The lone person to address the county panel Tuesday during its regular meeting was Duanesburg Supervisor Rene Merrihew. She repeatedly called the measure ill-conceived and thoughtless.

Merrihew also came armed with petitions from “750 angry people in District 4” and said she received 60 more letters from Princetown residents.

“We’re angry at the total disregard for us and our children,” said Merrihew, who punctuated her comments by saying she and fellow supervisors remained committed to having both laws rescinded.

p.s. To Susan Savage: When your honesty and political savvy are already in question, you really should refrain from remarks such as those reported in the TU article, concerning whether your sex offender laws brought out the many voters who caused Ed Kosiur’s defeat in the Aug. 31 special election for the Assembly:

“Savage has insisted the turnout wasn’t a sign that the legislation was a political miscalculation. ‘There were really other (things) that were (to blame) such as the misrepresentation of (Kosiur’s) tax record,’ she said earlier in the day.”

update (1 PM Aug. 14, 2007): Earlier today, I suggested below that Schenectady County should explicitly inform the local units within its borders (the City, town, and villages) that it would consider any sex offender law that fails to grandfather in existing residences or that covers Level One offenders to be inconsistent with the proposed County Law. It appears, however, that declaring such inconsistency would not mean that the County has pre-empted those issues and could therefore stop the local units from passing more restrictive SORR provisions. See County Preemption of Local Laws in NYS, where I have compiled (with the help of attorney Arthur J. Giacalone of East Aurora, NY) what I believe to be the most relevant portions of the state constitution and municipal law. Note, for instance, that NYS Const., Art. IX, § 2(d) includes a provision that states: “A local government shall not have power to adopt local laws which impair the powers of any other local government.”

We can ask the County to urge restraint on the part of the other local units, but each can decide for itself how it wants to manage sex offenders within its borders, subject only to state law (and the federal constitution). Should the proposed bill pass the County Legislature next week, lobbying efforts will thereafter need to be focused on the City of Schenectady, the towns and the villages.

At tomorrow’s monthly meeting (7 PM, Aug. 14, 2007), the Schenectady County Legislature will call for a special public hearing to be held on Aug. 22nd, with a vote to be taken on Aug. 23, in order to consider major amendments to its Sex Offender Residency Restrictions. (prior posting here, here and there) Click SchdyCountyProposedSOLawAug07, 9-pp pdf., to see a draft of the proposed legislation as of Aug. 13, 2007.

erasingS One new bill would repeal Local Law 04-07, which currently requires sex offenders to relocate if they reside within 2000 feet of a school, playground or day care facility on or after October 1, 2007. Thus, the bill would effectively “grandfather in” the current residences of sex offenders, removing a major complaint about the current law.

In addition, proposed Local Law 07-07 would remove Level One offenders (those considered by a court to be the least at risk to re-offend) from Local Law 03-07, and add a new section Section 4, explicitly granting town, village or city government the right to pass more restrictive residency laws for sex offenders (i.e., no-reside zones greater than 2000 feet):

Section 4. This local law permits a town, village or city located within Schenectady County, in order to provide further protection and safety for its residents, to enact local legislation that is more restrictive in nature and that meets the specific needs of a locality, including, but not limited to, local legislation that increases the measurement of the residency restriction beyond two thousand feet or that prohibits loitering for the purposes of engaging in illegal conduct.

Also, a proposed RESOLUTION declares, among other things:

WHEREAS, this Governing Body finds that the New York State Legislature should introduce and approve legislation that would: (i) develop comprehensive statewide management policies for persons who have been convicted of certain sex-related offenses; (ii) increase sentences and sanctions for convicted sex offenders; and (iii) implement a statewide program for the monitoring of convicted sex offenders using GPS technology; and

WHEREAS, this Governing Body encourages all county governments to consider enacting residency restrictions for persons who have been convicted of certain sex-related offenses;

The Resolution also directs the County Manager to do a Report on improved monitoring of sex offenders, and designate a person to help local communities by providing random residency checks of sex offenders. In addition, the Sheriff is to assign a person to develop methods of “intercepting and catching online sexual predators.”

umpireS Susan Savage, Chair of the County Legislature, issued a statement saying: “”[T]he laws adopted in June were intended to protect children throughout Schenectady County and to place our community on a level playing field. Some concerns were raised. We listened to those concerns and think this proposal addresses many of them while providing a level of protection to our community.” As reported by CapitalNews9, “County will revise sex offender law” (Aug. 13, 2007), “With tighter restrictions in Saratoga, Albany and now Schenectady county, many think sex offenders will have to move west. That has some in neighboring Montgomery County worried.” You can find comments from the Schenectady internet community by scrolling down the page at The Unadulterated Schenectady.

update & afterthoughts (9 AM Aug. 14, 2007): I believe, at a minimum, that the County should make it clear that any law by the smaller units of government that includes Level Ones or requires relocation (failing to include a grandfather clause) would be inconsistent with the intended scope of the County law. By “encouraging” balkanization and having towns, villages and the City play Whack-the-SO and Up-the-Ante over distances, the County is encouraging preemption litigation (and making the preemption case significantly stronger), and just pushing all of the Constitutional issues downstream, to governments that will surely have to hire expensive outside counsel to defend themselves. Making clear what kinds of laws are inconsistent will take weapons out of the hands of the SOBashers and the PanderPols and help wiser minds to prevail, while reasonable comprehensive plans at the County, regional or state level are developed, enacted and implemented. .

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