Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP

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Locally Regulating Where Sex Offenders Live Is Dangerous and Illegal

August 28, 2015 – Massachusetts municipalities may not regulate where sex offenders live, according the Supreme Judicial Court (SJC). The decision could invalidate local laws in almost 50 Massachusetts municipalities (see complete list).

While officials in Lynn, whose ordinance the case struck down, vowed to lobby Governor Charlie Baker and the Legislature for statewide residency rules, such legislation would face tough battles. According to the SJC, segregating sex offenders raises constitutional concerns, hurts the effectiveness of Massachusetts’ careful regulatory scheme, and likely threatens public safety. For those reasons, state supreme courts have been striking sex offender residency laws, according to a New York Times editorial.

The SJC held that Lynn’s ordinance was inconsistent with Massachusetts law, and thus violated the Home Rule Amendment to the state Constitution. It determined that the Legislature intended its comprehensive statutory scheme governing oversight of convicted sex offenders to preempt local regulation.

By prohibiting Level 2 and Level 3 sex offenders (those with a moderate to high risk of reoffending) from living within 1000 feet of schools or parks, the ordinance effectively made 95% of Lynn off-limits to them.

This draconian restriction could actually backfire, noted the SJC, ironically making sex offenders more likely to reoffend, and thus more likely to harm the children the ordinance sought to protect.

The Court stated that local regulation is likely to interfere with the state’s tracking and monitoring of sex offenders. In addition, a “supervised and stable home situation” is a “factor that minimizes the sex offender’s risk of re-offense,” said the SJC, and by requiring sex offenders to move or else face a $300/day fine, “the ordinance disrupts the stability of the home situations.”

In a footnote, the court acknowledged that a number of associations specializing in the treatment of sexual offenders had filed amicus briefs in support of the sex offenders challenging the ordinance.

The trend across the nation is for states to take over the regulation of sex offenders “because, if left to municipalities, it just becomes a game of one town after another putting up walls in their own jurisdiction,” according to a law professor, as quoted in the Boston Globe.

In addition, the SJC observed that, “[e]xcept for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst.”

The ACLU, which brought this case, argued that Lynn’s restrictions were cruel and unusual, and that they violated the plaintiffs’ rights to travel and to live with their families. The SJC did not reach those constitutional questions, but, according to the Boston Globe, legal experts believe that statewide housing legislation would implicate those concerns. In fact, the California Supreme Court ruled this year that a San Diego residency restriction for sex offenders violated the U.S. Constitution.

The case is Doe v. City of Lynn.

Photo Credit: nasus89

About the Author

Kevin D. Batt – Senior Counsel

Kevin represents public clients in general municipal, land use, environmental, energy and construction matters.

Please contact him at (617) 621-6514 or by emailing kbatt@andersonkreiger.com.


Posted In: Home Rule Amendment

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