NH- N.H. Civil Liberties Union sues Dover over sex offender ordinance

3-27-2008 New Hampshire:

CONCORD — The New Hampshire Civil Liberties Union sued the City of Dover on Wednesday, alleging that its ordinance banning registered sex offenders from living within 2,500 feet of a school or day-care center is unconstitutional, subjecting them to “arbitrary, capricious and unreasonable restrictions” on their movement.

“This is the first case of its kind in the state,” said Barbara Keshen, staff attorney for the New Hampshire Civil Liberties Union.

The suit was filed in Strafford County Superior Court in Dover on behalf of Richard Jennings, 41, who had pleaded guilty to felonious sexual assault in 2000 and received a sentence of two to four years at the New Hampshire State Prison.

At the time of the offense, the victim was 15, and thus Jennings is required to register as a sex offender for life.

In October, Jennings, his girlfriend and her 13-year-old daughter, moved from their apartment in Portsmouth to a more affordable apartment in Dover. When Jennings went to register his new address, as he is required by law to do, he was charged with being in violation of the city code. A hearing on that violation is scheduled for June 3 in Dover District Court.

Phone messages left at home for Dover Mayor Scott Myers and City Attorney Allan Krans were not immediately returned Wednesday night. The City Council was meeting Wednesday night; Keshen said she had not yet heard from anyone representing the city.

The 2,500-foot restricted area “encompasses virtually the entire downtown area of Dover, where all of the affordable housing is located,” the lawsuit says. The enforcement of the code “will serve to effectively banish Richard Jennings from the City of Dover because its geographic restrictions substantially impair his ability to find a residence there.”

As a result, Jennings can no longer live at the Dover address and is now living with his parents. If he were to return, he’s subject to a $500 fine for a first offense, then a $1,000 fine for subsequent offenses.

Keshen said there are six other ordinances in New Hampshire that restrict sex offenders from residing within a 2,500-foot radius of a school or day-care center; there are others with lesser distances.

Jennings, a carpet layer, has suffered, “and will continue to suffer, irreparable injury, in that he has been and will continue to be, deprived of his constitutional rights not to be subject to additional or greater punishment than allowed by law at the time the criminal act was committed,” the lawsuit said.

Jennings served his time and is at a low risk to re-offend, the lawsuit said. He has not been charged with any other sexual offense and he successfully completed an outpatient course of sex-offender counseling, the suit said.

The ordinance applies to all offenders across the board whether they are at high risk or not, Keshen said. Further, she said, the law diverts attention and resources away from those people who are the most likely to offend against a child — a family member or trusted friend of the family.

“If you really wanted to do something that would be effective in controlling sex offenders then you would maybe put them on GPS systems, you’d give them specialized treatment,” Keshen said. “You’d do assessment of future dangerousness upon release from prison; there’d be categories of risk; there’d be pre-release planning relative to housing and employment and all of that involves funding and it involves a development of expertise,” she said.

Keshen said when Dover’s code went into effect in 2005, the city had 45 registered sex offenders. Last year, there were 35, so some of them either no longer live in Dover or have been discouraged from registering, she said.

The suit comes as state lawmakers are working on a bill that would better identify and track those listed in the state’s sex offender registry. ..more.. by Kathy McCormack