Recognizing that these laws should first be challenged on substantive before procedural grounds, we present this for consideration on procedural grounds.
The Principle Behind these Laws:
Apparently in some states, the majority of their legislators feel, that all registered sex offenders, if they reside within xx feet of a school, day care, or other place where children congregate will abduct a child and take them to their home to commit a sex crime. Although we have never heard of such a crime, these laws have been enacted based upon this hypothetical (more likely political) basis.
The Problems:
The laws establish a child safety zone boundary, the outer boundary limits between 1,000 to 2,000 feet from the school, etc.; each state law being different. A penalty is also prescribed for violations. So, depending on an offender's circumstance, it may mean the difference between, moving or being allowed to remain where they live, and/or facing a criminal charge.
Excepting one, these laws are silent about whether an offender should be allowed to stay because she or he lived there prior to the effective date of the law. These laws apparently criminalize what was not criminal when it was done. I.e., renting an apartment or buying a home or simply living with a family member. Clearly an ex post facto question..
None of the laws explain, how a registered sex offender is supposed to know:
1) precisely where schools, day cares, and other places where children congregate, are? Not all are clearly designated in society.
2) precisely where the outer boundary limits are? To prevent moving into a proscribed area, then finding out after-the-fact and being then forced to move and all the related expenses, and/or being charged with a crime.
3) Who is the agency that makes the determinations that a sex offender is living in a proscribed area, and what the appeal processes are? The laws affect families with juvenile sex offenders, and families living with a sex offender, and their family rights are also affected.
4) How to measure the related distances? And also other issues...
Accordingly "How to measure the distance set forth by these legislatures?" We have found that the laws are either, silent on how to measure the distance, or say measure "in a straight line," and sometimes add, from the nearest point of the offender's property to the nearest point of the school property (clearly an intent on precision).
Laws with "in a straight line" provision ("as the crow flies"):
As ridiculous as this sounds, it was probably suggested to overcome the fact that the earth is round, and the shortest distance between two points is, a straight line. I.e., as the crow flies. However, it is impossible to get around the fact that, even in a straight line, the topography of the earth rises and falls.
Further, in a straight line, how to handle trees, buildings or other structures that are encountered. If precision is called for then one should measure, the rise on one side of a structure, and the same on the other side, before moving forward toward the proscribed property. A human cannot walk through buildings, unless there are doors to permit that, and maybe that should be considered.
Should one encounter a lake, then I guess -straight line- would have to assume that a boat is used to cross the lake, in a straight line. If there is a canyon, then an airplane must be considered. Precision is the key in the legislative intent, when they say "in a straight line."
Points such as these, need to be made in a court of law. When the legislature says "in a straight line," merely saying it that doesn't automatically define it. If the principle behind these laws is hypothetical, then an undefined term can also be hypothetical. The constitutionality of the law is at question.
However, we believe the most likely reason for legislatures to choose "in a straight line" is, it permits those who must enforce the law, a method of determining where the outer boundary of a circle is. For example, law enforcement can use a map of the city -or other area- and they can, using the maps' legend and a compass, draw a CIRCLE or CIRCLES (if law also says, from nearest points of both properties), and any residences (or properties) within the circles/s are prohibited residences for registered sex offenders.
Yet, even that method may cut a residence in two parts, allowing an offender to live in one part and not the other, assuming the buildings are directly on the property lines.
In addition, in the case of say, a public housing apartment building/s, or an apartment complex of many different buildings each with a few apartments in them, the restriction of measuring, property lines to property lines, may prohibit a sex offender from living in one of the buildings that actually measures outside of the 1,000 foot (or other measurement) restriction.
Further, in the case of multiple schools, day care centers, or other places where children congregate, the number of circles could be astronomical, leaving small places where sex offenders could live. This could further dissect properties at points where circles crossover each other.
Laws without the "in a straight line" provision:
At first glance it appears these laws are more reasonable. It appears that, exceptions to the rule, if any, may be decided by local law enforcement or other governing agency. However, as experience teaches us, that can be both good and bad, because it allows prejudices and biases to enter the decision of whether a residence is, outside or within the boundary limit.
Again, we assume that, local law enforcement would use, a map of the city -or other area- and they can, using the maps' legend and a compass, draw a CIRCLE or CIRCLES (for multiple schools, day cares, etc.), and any residences within the circles/s are prohibited residences for registered sex offenders.
It is at the outer boundary where the discretion comes into play, because residences may be cut into two permitting residence in one half and not the other half. These circumstances and some previously mentioned may cause further action in the courts, through the appellate process, if there is one. Given, in some cases, it may mean forcing someone out of their home, or breaking up a family, courts must get involved to decide constitutional issues.
Further, while for this article we assumed the legislature meant for local police to use maps to set outer boundaries, that doesn't mean that was the legislative intent. Since no legislature set forth a precise way of setting an outer boundary, it cannot be assumed that maps are the only way. The absence of legislative directions means it is a contestable point for a court of law.
Accordingly, we must discuss other logical ways to determine if a residence is within the proscribed area. For example, the actual footage between the sex offender's residence and the proscribed building (school, day care, etc.,) could be measured by walking or pacing the distance, or driving the distance using roadways. I guess it is possible to walk or drive across a field, and maybe that needs to be considered also? Suffice to say, it opens points of discussion and ways to contest the measurement of the outer boundary.
As to the two buildings in question, measure from the front door, or back door, it must be by way of a door because the sex offender must get into and out of a building via the doors, or maybe windows, and maybe that needs to be considered too.
Now what about high rise apartments, if a sex offender must walk out of the apartment, down the hall, into an elevator which drops xx floors, then walk out of building's main entrance, obviously all those distances should be considered? Again, suffice to say, it opens points of discussion and ways to contest the measurement of the outer boundary.
The Systems Of Measurement:
A) Pacing: Measuring by steps taken (i.e., walking from point a to point b): It is clear to see that such a system contains room for error without explanation. No two people have the same stride and it is based more on how long a person's legs are.
A) Driving: Measuring by driving from point a to point b: Oddometers do not measure in feet, but do measure in tenths of a mile. What is unknown about oddometers is, how many feet are in a car's oddometer mile? Further, since legislatures call for precision it cannot be achieved using oddometers.
C) Surveyor's Chains or Tapes: A surveyor's chain is 66 feet or 100 links (each link being 6.6 inches). Either of these systems have faults as well, to hold a chain or tape that is 66 feet long, requires that it be stretched to be level, otherwise you can loose inches in the bends of the chain or tape. Additionally, one cannot lay the chain on the ground because then one is measuring the rises and dips in the earth's surface. Further, when you replicate a distance, you must be careful of marking where the prior one ended and the new one begins.
D) Line of Sight surveying: These too have their difficulties, as if each end of the line of sight is not perpendicular to each other and at the same height, then one is looking up or down hill, which changes the measurement. Then there is the problem of intervening structures or trees, etc., this is why this method will not yield a reliable measurement.
E) Global Positioning Satellites, GPS Surveying: This is the most accurate system, but still not without its errors due to atmospheric water vapors.
Some "Rights" to Consider:
Sex offenders, like anyone else in society, has a right to have a home, a place of safety, a place not to be invaded by the government without probable cause, nor to be seized (or seized by eviction, in many cases), the fourth amendment should be asserted as a substantive claim before any procedural claims. Further, due process requires a court hearing before being deprived of property (liberty interest in one's residence). Learn how to properly assert these rights in defense of your circumstances.
Consider this:
Megan's law is a "positive notification law," meaning it is a law whereby the government must first tell you what is required (first principle of due process -notice-), and to prove you have been notified they must get your signature. Yes, this will be contested, but study every state version of their actual registration law, every one of them requires that a sex offender sign the first registration form, and/or any form that informs of a change in the law, and usually address verifications as well. Study it very carefully, the government wants your signature to prove you have been notified, they keep these forms. I.e., a Positive Notification Law.
On these forms, the law as it is at that moment, is clearly laid out although not verbatim, but the registrant is told what he or she must do to comply with the law. The registrant then signs the form, and bingo, she or he has been told. We stress that, so that registrants know what a "Positive Notification Law" is. The registrant, if she or he is smart, will keep these forms, as they are proof too. They will prove what she or he, has been told, and what she or he has not been told.
These can be presented in court along with the defense of a "Positive Notification Law," yes courts may call this something different, but the principle comes from auditing systems. In auditing systems, the auditing company sends out a form to the customer, separate from the company they are auditing, and asks the customer questions (like is this your balance on 1-1-2003), and the customer responds to the auditor, yes or no. Then the auditor has positively proven the accuracy of the balance on 1-1-2003, in our example.
Prosecutors will argue that, the law has held that folks in society are presumed to know the law, and that has some truth to it. But, it is not applicable to laws that are written requiring signatures upon notification, because the requirement of the signature is proof that the law is a "Positive Notification Law." Read Megan's Laws, they will not use the term "PNL" but the wording of the law will prove "signatures" are required. For registrants that are on probation, parole or other form of state jurisdiction, these folks must be careful. Often the (probation-parole-etc.,) officer will claim, the registrant was verbally told and swear to that fact, and that is a problem, but remember, the law requires a signature and they must get it.
All registrants must resort to reviewing these forms, first to stay in compliance with the law, and to make sure if arrested for something related to Megan's law, that they were told about it, and signed for that notice. Courts will require that for proof of a violation.
Accordingly, the forms used by local authorities had better be up to date with the law as it is at the time of use of the form!
Ruling: Sex offender may live near school by Andy Hall,
Palatka Daily News 5-31-2002 (Florida)
--- In Conclusion ---
The laws governing sex offenders have been built on many a hypothetical circumstance, and they are going to backfire on society, if the government can hypothesize, so can the sex offender, especially when she or he is about to be evicted from their home and/or convicted of a crime which requires proof beyond a reasonable doubt!
Copyright ©2003 LAMP.
"There are a thousand hacking at the branches of evil to one striking at the root." - Henry David Thoreau -
| » 6-26-03 Iowa:ICLU Challenges Sex Offender Banishment Law With Class Action Lawsuit!
The Iowa Civil Liberties Union has filed a federal lawsuit on behalf of several "John Doe" plaintiffs challenging the constitutionality of Iowa's law banning former sex offenders from living within 2,000 feet of a school or day care facility. (Iowa ACLU News Release)
» 6-26-03 Iowa: Iowa `safety zone' law leaves sex offenders with few places to live!
A man with an ugly past recently moved out of his yellow house on Bel-Aire Road, banished by the reach of a new state law. Convicted in 1993 of "enticing away a child" and sexual abuse, the 46-year-old man and his mother bought the yellow house in February, after his release from prison.
But the law prohibits anyone convicted of a sexual offense involving a minor from living on that stretch of Bel-Aire, or virtually anywhere else in Des Moines, including all of downtown, plus the suburbs. Authorities say Iowa's largest city has fewer than a half-dozen residential pockets where convicted child molesters may legally take up residence after serving their time.
"Every city in Iowa has the same dilemma," said Des Moines Police Sgt. Barry Arnold. The dilemma is about distance -- precisely, 2,000 feet. That is the minimum distance convicted sex offenders can sleep from a school or a licensed day care center, provided the offender had not lived there before the law took effect last July. .(By Rick Montgomery, The Kansas City Star)
» 6-26-03 Iowa:Sex Offenders in Q-C have few places to live!
In a three-month investigation, the Quad-City Times tested the law by mapping schools, child daycare facilities and the addresses of known registered sex offenders in the Quad-City area. It revealed some consequences that supporters of the Iowa residency restriction say they never considered. The investigation shows:
-- Davenport and Bettendorf virtually are blocked off to sex offenders by 344 child daycare facilities and 34 schools, leaving a golf course, a mall and some affluent neighborhoods in Bettendorf as the only areas where sex offenders can legally establish residence.
-- Only one of 77 offenders in Davenport wwho victimized children and are deemed by the state as "at risk" to commit future sex offenses lives outside of the 2,000-foot safety zones surrounding schools and daycare facilities.
-- All seven of the offenders who live in Bettendorf and the 17 who live in Clinton, Iowa, reside within safety zones.
-- Throughout Iowa, urban areas are all buut off-limits to sex offenders whose victims were children -- even to those not deemed by the state as "at risk" to re-offend.
"We have to tell them they can't live here," Danielson said. "Even if the proposed place of residence is with a parent or family member who can best monitor an offender's behavior and help that offender transition into society, it's off-limits if it's within 2,000 feet of a school or daycare."
(by Marc Chase, Quad-City Times)
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