VT- Offender restrictions likely face challenges

7-24-2008 Vermont:

BARRE — A pending city ordinance that would severely restrict where in Barre sex offenders could live and may become a model for other municipalities will almost certainly face a legal challenge.

The ordinance, expected to go into effect 20 days after its adoption, was proposed because of concerns about the number of sex offenders that are living in the city. It would prohibit those convicted of most sex crimes from moving to within 1,000 feet of schools, parks and playgrounds. That would effectively restrict those convicted of such crimes from living in most of the city.

Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said Wednesday the city will likely be forced to defend the ordinance in court.

"It will definitely be challenged," Gilbert said of the ordinance, which, due to a procedural misstep, will have to be re-adopted by the council following a second public hearing Tuesday.

Gilbert said he is in the process of acquainting himself with the Barre ordinance, but given his research on the subject it was "a virtual certainty" the law would be challenged.

The only questions are when, by whom, over what, and how many times?

"There have been hundreds of challenges in state and federal courts around the country over similar laws," Gilbert said. "I sincerely doubt this one will be any different.

"This is a very serious action that the city has taken and one hopes that serious attention was paid to the legal ramifications of what the city was doing," he said. "This could have huge effects on individuals and could result in a lot of litigation that could be both time-consuming and expensive."

Gilbert said he is not convinced the ordinance will do anything more than give some local residents a "false sense of security."

"There's absolutely no evidence that these residency laws work," he said. "Most crimes against children are based on relationship, not geography, and most offenders are family members not strangers."

According to Gilbert, the proposed ordinance raises a host of thorny issues, ranging from the city's ability to ban sex offenders from public parks, playgrounds and recreational facilities to its authority to determine where they can live.

"It's going to raise all kinds of questions," he said.

Barre Mayor Thomas Lauzon expects the ordinance will be readopted by the council next week, while at the same time dismissing concerns raised by Gilbert.

"We're not breaking new ground here," he said, noting that while the ordinance is the first of its kind in Vermont there are others like it in some 400 municipalities in 23 other states.

Lauzon said the council is well aware of legal challenges involving some of those ordinances and noted Barre's version was specifically crafted to avoid problems encountered elsewhere.

"We're not telling people: 'You can't live anywhere in Barre City,' and as far as the constitutional ramifications, I don't think there are going to be any," he said.

According to Lauzon, the proposed ordinance would impose reasonable restrictions on sex offenders in an effort to protect Barre's youngest residents.

"At what point do the rights of a convicted sex offender trump the rights of parents to keep children safe?" he asked.

Matthew Valerio, the state's defender general, said his office will likely challenge the ordinance once someone his office represents is effectively blocked from living in Barre because of it.

"We represent all of the people who are in the custody of the Commission of Corrections," Valerio said. "At some point, probably soon, there will be a client who is aggrieved by this ordinance. They will essentially be prevented from living in Barre as a result of the ordinance."

Under Vermont law, cities and towns have broad powers when writing their own ordinances about public health and safety.

However one issue may be that the ordinance is not legal because there may not be a clear connection between a sex offender attending a public event, for instance, and an increased risk to public safety.

Under the ordinance sex offenders could face a fine of $500 by attending civic events.

Other municipalities may follow suit, and Rutland is already considering a similar ordinance.

Rutland Mayor Christopher Louras called the Barre council's willingness to adopt the ordinance encouraging.

"There appears to be the desire of the Board of Aldermen for Rutland City to pass this in a timely manner as well," he said.

Louras said he and Lauzon have talked about the subject a couple of times.

"We've both had issues over the past year with the number of Department of Corrections clients — not just sex offenders — being placed into our neighborhoods," he said. "Both cities are the recipients of an inordinately high ratio of Corrections clients."

Louras said that while the proposal is not intended to push sex offenders into surrounding communities, he said such a trend could be a byproduct of the policy. He said this would not concern him.

"Our concern is to protect the residents here," he said.

Nor was Louras concerned with the potential for sex offenders to react by not registering, in effect going underground because of a lack of places in the city they would be allowed to live.

Louras said the registration system now does not require offenders to have a specific residence and allows them to be classified as "homeless." He also said he believes the Department of Corrections will keep proper track of offenders.

Lauzon acknowledged conversations with Louras on the subject and said he had spoken to leaders in perhaps a half-dozen other Vermont communities who are seriously thinking about adopting a Barre-style ordinance.

If the Barre ordinance is challenged, Lauzon said he might "reach out to those communities" to help defend it.

"I don't see the City of Barre being alone on this one," he said. "If the ACLU or anyone else wants to challenge this (ordinance) I wouldn't be surprised to see other communities jump in (on Barre's behalf)."

Even though Lauzon is intent on passing the ordinance as soon as possible, he said Wednesday it was still "a work in progress."

"I've never said this ordinance is perfect (and) I've never said it's the final answer," he said. "It's just the first part of a much bigger discussion."

According to Lauzon, that discussion will include talks with legislative leaders and corrections officials.

Sen. Richard Sears, D-Bennington, chairman of the judiciary committee, said there are now Department of Corrections guidelines but not statutes about where sex offenders should live.

"I imagine it will have a major impact on Corrections and how they proceed," Sears said of the ordinance.

Commissioner of Corrections Rob Hofmann said the ordinance "will inevitably complicate the successful reintegration of offenders back into our communities."

"I understand the concern of the residents of Barre," he said. "Naturally we will work to honor and comply with any laws both at a state level and at a local municipal level.

"Offenders come from our communities, they return to our communities. In the case of sex offenders in almost all cases they are acquainted with their victim before they conduct these despicable acts," he said. ..News Source.. by DAVID DELCORE Times Argus Staff and Louis Porter Vermont Press Bureau