High court weighs sex offenders’ rights

6-25-2010 New Hampshire:

Man wants to attend church where children are present

CONCORD — The state Supreme Court took up a case Wednesday that could determine how and where sex offenders worship after they’re released from prison.

The justices’ questions were many, but they boiled down to how to balance an offender’s fundamental right to practice religion with the state’s duty to protect the public.

At the center of the case is 36-year-old Jonathan Perfetto of Manchester, who served about seven years in prison after pleading guilty to possessing 61 items of child pornography.

Since shortly after his 2008 release, when he briefly lived in a Concord parking garage, Perfetto has wanted to worship with a Manchester congregation of Jehovah’s Witnesses. But he says he can’t, because his supervised release prohibits him from having contact with anyone under 17.

If he has such contact or reoffends or uses the internet, he could go back to prison to serve up to 28 years of his remaining suspended sentence.

Perfetto, initially representing himself, thought he had a solution a year ago when he asked the Hillsborough County Superior Court to let him attend church meetings under the close watch of a church elder. Perfetto said he hoped a chaperone would satisfy concerns of prosecutors.

The Hillsborough County Attorney’s Office objected, saying the church is a family-oriented congregation that requires members to attend frequent meetings.

“The likelihood that (Perfetto) will be supervised every minute, of every meeting, every week is not high,” wrote Assistant County Attorney Maureen O’Neil.

Four days later, Judge Larry Smukler denied Perfetto’s request without a hearing.

Perfetto’s appeal went before the state Supreme Court Wednesday, with legal representation by Barbara Keshen, staff attorney for the N.H. Civil Liberties Union.

Keshen didn’t disagree that Perfetto’s activities could be restricted while he’s on supervised release. The problem, she said, is that Smukler decided the matter without hearing from Perfetto or delving into the facts of his particular situation.

That sort of analysis is required, Keshen said, when the state wants to restrict a fundamental right that is protected in the U.S. and state constitutions.

“Here there probably can be limitations on Mr. Perfetto’s right to worship, but they have to be narrowly tailored,” she said.

She added, “The court needed a lot more facts than it had when it decided this case. What is his risk to offend now? What is the ratio of children to adults in the congregation? Are (children) always supervised in the sanctuary?”

Justice Carol Ann Conboy noted the state’s arguments that Perfetto could worship at home or through a Bible study with other elders from the church. “I’m struggling, frankly, with your contention that this is a restriction on his right to practice his religion,” Conboy said.

Chief Justice John Broderick asked how Keshen would handle a client who wasn’t allowed to use the internet but claimed he could under his right to free speech. Would a chaperone satisfy the state’s concerns and protect the public’s safety?

Keshen said she couldn’t say without more specifics about such a case.

“I would support the balancing (of interests) that would be involved,” she said.

Conboy asked, “Is it reasonable that someone convicted of (61 counts) of child pornography be prohibited from unsupervised contact with kids?”

Yes, Keshen said, “but then the question is how do you craft something that balances his fundamental rights to worship and public safety?”

The justices were equally curious about the state’s position.

Conboy and Justice James Duggan wanted to know why Smukler didn’t learn the details of Perfetto’s situation before denying his request to attend church with a chaperone.

Chief Justice John Broderick asked what should be done if children attend every service at the church. How, Broderick asked, can the state balance Perfetto’s right to worship and the public’s right to safety?

Nick Cort, who handled the appeal for the state Attorney General’s Office, said the test is reasonableness. Cort said the state is not obligated to set the least restrictive conditions possible when it comes to fundamental rights.

“There is a reasonable relationship between these restrictions and the goals of the corrections system,” he said. ..Source.. Annmarie Timmins, Concord Monitor