Committee nixes residency restrictions. Something worse could replace them
WORK FOR SMARTER CRIMINAL LAWS
Legislative update April 21, 2010
By Chris Dornin
Here’s the good news. The Senate Judiciary Committee voted 5-0 on April 20 in favor of HB 1484 to keep towns from using residency restrictions to banish sex offenders. A dozen policymakers, people on the sex offender registry and other folks working for smarter criminal laws warned that these ordinances are unconstitutional. Worse, they make sex offenders homeless, drive them underground, destabilize them, and, paradoxically, endanger kids. The full Senate may vote on the bill next week. If it passes and the governor signs it, it would repeal the existing housing codes against sex offenders in five Lakes Region communities. Those are modeled on the Dover sex offender ordinance a lower court struck down last August.
The bad news? The same Senate committee may support a dangerous piece of legislation, HB 1628, to actively publicize the arrival of a sex offender in a neighborhood. The unintended, or perhaps intended, result of HB 1628 would be the same as for residency restrictions.
A group of plaintiffs is even now organizing a class action lawsuit against portions of the public sex offender registry. HB 1628 might help to assure it wins. More on the impending lawsuit another time.
Back to HB 1628. The prime mover behind the bill is Sen. David Boutin of Hooksett, who has been stirring up his voters for months against a local registered sex offender, Joel Dutton. Boutin, also a selectman, told the Senate committee his bill emerged from a Hooksett Selectmen’s meeting last fall. Angry citizens were demanding residency restrictions to drive away people like Dutton, who had allegedly committed a new sex crime that month. In response, Boutin filed HB 1628 authorizing the Department of Safety to give local police voluntary guidelines to use in notifying the new neighbors when a sex offender is released from prison. The Hooksett police are already telling the neighbors when any sex offender arrives, whether from prison or Manchester or Pembroke.
“Thousands of kids each year are attacked by sexual predators,” Boutin testified on his bill. “On Sept. 9 a seven-year-old girl was assaulted by a sex offender. The neighborhood was enraged and asked for our help. The key is to notify the neighbors. The bill is not intended to incite people to do illegal things. It’s a measured response to a heinous crime.”
Boutin neglected to mention one thing. The prosecutor has dropped the case against Dutton, removing the immediate excuse for Boutin’s legislation. But the neighbors still run a vigilante website with death threats like the following rants against Dutton and his family:
“Hang’em high and let the sun set on em. Only in a perfect world right? Haha” Josh T
“I hope you guys get rid of the bastard. What a piece of crap.” MTgirl
“This is an incestuous family of whack-jobs and psychopaths, and it makes me feel good to know they are going down.” Steve
“You show true restraint by not beating the tar out of this lowlife.” Chris Johnson
A Hooksett public school was the scene of a similar incident with active community notice. Jennifer Frank, a visiting police detective from Plymouth State University, ran a recent assembly on Internet safety at the Cawley Middle School. She displayed some embarrassing student Facebook pages, including ones belonging to the children of local sex offenders. Then she posted their fathers’ Internet mug shot pages from the State Police registry. The whole school instantly understood what had just happened. Kids are computer savvy.
Two of the parents involved in the outing have told this writer they are considering a lawsuit. The Cawley principal, Steve Harrises, and his superintendent, Charles Littlefield, have both confirmed that youngsters were publically exposed as the children of sex offenders by an officer of the law representing a tax-funded teacher training institution. “They were traumatized,” Littlefield said. Harrises said he was “blindsided” by the assembly.
Active notice can get meaner than that
Something worse happened when Det. Frank gave much the same presentation at Fall Mountain High School. Steve Fortier, a concerned Fall Mountain parent, submitted this written testimony to the Senate Judiciary Committee on HB 1628. Fortier is not a sex offender, by the way. Here is what he told lawmakers.
As with all laws passed by our elected officials at both the state and local levels, sometimes there are unintended negative consequences that are a by-product of good intentions. As it relates to your consideration of HB1628, I have recently experienced a traumatic and troubling by-product of active notification of sex offenders. Officer Jennifer Frank of Plymouth State University recently presented her "Many Faces of Facebook" assembly at my daughter's school, Fall Mountain Regional High School.
During the presentation, Officer Frank showed pictures and biographical information (address, etc.) of all convicted sex offenders in our region. On the surface, this might seem like a reasonable step aimed at keeping kids safe. However, there were a lot of negative by-products below the surface.
First, many of the sex offenders whose information was shown are family members of teens who were sitting in the audience. Second, because most youth sexual abuse is committed by a family member or someone else known by the victim, there was an even more troubling consequence. Many of the victims of the sex offenders were watching the assembly. This retraumatization, including the stigma associated with being a teen sexual abuse victim, was, in my opinion, not worth whatever gains were made through the assembly.
Given my experience with this assembly, I urge you to consider other ways a community member can learn of valid safety risks posed by sexual offenders. Given the wide-range of crimes that fall under the banner of sexual abuse, the research that suggests that most sex abuse is committed not by a stranger but by a family member or someone else known by the victim, and what I understand to be ever-increasing success rates in the treatment of sex offenders, I am concerned that active notification will produce more negative consequences for all involved while doing little to improve public safety.
Thanks for your thoughtful consideration,
Steven J Fortier
76 River Street
Alstead, NH 03602
835-2808
Some Fall Mountain parents are considering a class action lawsuit unrelated to the two mentioned above. People have also complained to the president of Plymouth State and to an investigator at the attorney general’s office. Both state officials have acknowledged receiving that information.
The incurable flaw in HB 1628
Philip Horner, a former New Hampshire paroled to Vermont, submitted written testimony urging senators to base public notification on a rigorous risk assessment of each sex offender. Only the most dangerous people should undergo the extreme measure of active publicity, he suggested. Here is an excerpt from his testimony.
In its current form, the registry makes no attempt to evaluate risk of recidivism. The registry's three "tier" system (required for compliance with the federal Adam Walsh Act) is unhelpful, being based solely upon the RSA under which an offender is convicted.
Plea bargains often reduce, and overzealous prosecutors frequently inflate any correspondence between the actual criminal act and the RSA under which an offender is ultimately convicted. The RSA's do not correlate with risk of re-offense or recognize any rehabilitative efforts made by the offender since his/her conviction. Any true evaluation of individual risk would involve establishing a means to evaluate offenders on a case-by-case basis, as other States have done.
HB 1628's reliance on the Department of Safety is misguided. The Department of Safety is ill-equipped to evaluate offender risk, having no expertise in this area. The Department will undoubtedly feel obligated to treat all registrants equally (or to rely on the registry's flawed three tier system) and, I fear, recommend community notification for all. This will unnecessarily raise public fears for those registrants unlikely to re-offend and bring public humiliation down on their families. New Hampshire should have as a goal the successful reintegration of ex-offenders as law-abiding citizens. Across the board public notification will make that nearly impossible.
What HB 1628 will do is encourage vigilantism. Former sex offenders will be pressured to move out of their homes, and their supportive families will be vilified along with them. The recent hoopla in Hooksett will be repeated over and over again across the state. I do not think that the State of New Hampshire wants to be characterized by such behavior. Please do not recommend HB 1628 for passage.
Horner addressed the core issue with HB 1628.It has the wrong state agency deciding who deserves a highly punitive welcome to a community. Since all the faces on the registry look the same, all will get equal harsh treatment. That’s human nature. Voluntary guidelines will do nothing to restrain it.
A proposed amendment below calls for an assessment of each sex offender by the department of corrections. But Jeff Lyons, a spokesman for the agency, said it lacks the resources to do proper evaluations with so much at stake.
Senate Judiciary Committee chairperson Deb Reynolds cut all the testimony short on HB 1628. She also prevented half a dozen opponents from speaking, including several sex offenders who had summoned the courage to take a high profile. She ended this writer’s statement before he could submit the amendment. Here it is in full.
Dornin Amendment to HB 1628
To Be Presented April 20 to the Senate Judiciary Committee
Please replace House Bill 1628 in its entirety with the following amendment:
Respectfully,
Chris Dornin 228-9610, cldornin@aol.com
………………………………………………………………………………….……
HOUSE BILL1628
AN ACT establishing procedures for neighborhood notification upon release of a sexual offender.
ANALYSIS
This bill requires the commissioner of the department of corrections to develop rules governing the decision to use active notification of the immediate neighbors when an unusually dangerous sex offender is to be released into a community. The bill also requires the commissioner of the department of safety to develop rules to govern the implementation of that active notice process. Finally, the bill creates the new felony crime category of vigilantism against a sex offender or his or her immediate family members.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraph; Neighborhood Notification of sex offenders released from incarceration. Amend RSA 651-B:7 by inserting after paragraph VI the following new sections:
VII. The commissioner of the department of corrections, no later than 6 months after the effective date of this paragraph, shall develop rules for deciding which sex offenders in prison are so highly dangerous that their future neighborhoods might need special notification that those inmates will be released.
Communities shall use the extreme measure of active community notice only on sex offenders found to be highly dangerous by the department of corrections, using clinical criteria. These shall include consideration of the inmate’s criminal record, treatment record, assessments, evaluations, educational and vocational record, disciplinary reports and rehabilitation progress.
The department of corrections shall inform the offender at least one year prior to his or her expected release date of the intention to recommend active community notice of the offender’s release into a neighborhood. The department of corrections shall give the offender a statement of the reasons for using active notice, including all risk factors that make it necessary. The offender may appeal that decision within prison channels. If dissatisfied with the result, the offender may appeal to a Superior Court.
The department of corrections must show by clear and convincing evidence that the sex offender is highly prone to commit a new sex offense in the community. As a group, sex offenders have extremely low recidivism rates, and the strong presumption is that active notice will be rare because it has such adverse consequences to the offender and his or her family.
VIII. The commissioner of the department of safety, no later than 6 months after the effective date of this paragraph, shall develop rules to govern the active neighborhood notification of the impending release from prison of a highly dangerous sex offender. Local police and officials shall not use active notification on any sex offender unless the department of corrections has determined that person is highly dangerous. Otherwise, the passive internet public registry shall be the only notification to citizens. Local police may never use active notification on a sex offender being released from a sentence that did not require incarceration in the prison system.
If local police choose to use active notification of neighbors, the method they employ shall be the most humane, least intrusive and least injurious possible. Active notification shall never include the following and similar cruel and unusual means of alerting the public:
- Meetings of groups of public or private school students or their parents to discuss specific highly dangerous sex offenders.
- Wanted-style posters on telephone poles.
- Community access television shows about an individual sex offender.
IX. To protect against citizen abuses of privilege of active notice, it shall be a Class B felony for any citizen to engage in vigilante activities against sex offenders, including harassment, stalking, threatening or bullying the sex offender or his or her family members because of the sex offense.
2 Effective Date. This act shall take effect 60 days after its passage.
A competing and maybe better amendment
Attorney Mike Iacopino, a lobbyist for the Association of Criminal Defense Lawyers, submitted a similar, but more rigorous, amendment.
Iacopino Amendment to HB 1628:
HOUSE BILL 1628
AN ACT establishing regulations for neighborhood notification upon release of a sexual offender or offender against children.
ANALYSIS
This bill requires the commissioner of the department of corrections to develop rules pursuant to RSA 541-A, governing notification of the public pursuant to RSA 651-B:7, IV (c) sex offender or offender against children is released into a community. The bill creates an extended term of imprisonment for offenses against sexual offenders or offenders against children where the offense was committed because of hostility towards a sexual offender or offender against children because of that status.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraph: Neighborhood Notification of sex offenders released from incarceration. Amend RSA 651-B: 7 by inserting, after paragraph VI, the following new sections:
VII. The commissioner of the department of corrections, no later than 6 months after the effective date of this paragraph shall, pursuant to RSA 541-A, develop rules for determining when and under what circumstances public notification pursuant to RSA 651-B:7, IV (c) shall occur.
(a) The rules shall include consideration of the inmate’s crime of conviction, criminal record, treatment record, assessments, evaluations, educational and vocational record, disciplinary reports and rehabilitation progress.
(b) The rules shall require that the department of corrections shall inform the offender at least three months prior to his or her expected release date of the intention to recommend public notification of the offender’s release. The rules shall require that the department of corrections give the offender a statement of the reasons for recommending public notification, including all risk factors relied upon. The rules shall allow the offender to appeal the decision to the commissioner. If dissatisfied with the result, the offender may appeal to the Supreme Court pursuant to RSA 541.
(c) In order to allow public notification the rules shall require clear and convincing evidence that the sex offender is at high risk to re-offend in the community.
(d) The rules shall also include provisions to provide for the safety of a sexual offender or offender against children who is released subject to public notification. The rules shall include, at a minimum:
(d) The rules shall also include provisions to provide for the safety of a sexual offender or offender against children who is released subject to public notification. The rules shall include, at a minimum:
(1) A prohibition on the use of leaflets and posters;
(2) A prohibition on community meetings called for the purpose of identifying an individual sex offender or offender against children subject to public notification
VIII. Law enforcement officials and all public officials may employ public notification pursuant to RSA 651-B:7, IV, (c) only with respect to sex offenders or offenders against children that the department has found, consistent with its rules, to be at high risk to re-offend.
2. Amend RSA 651:6, I (f) to read as follows (added language in italics):
f) Was substantially motivated to commit the crime because of hostility towards the victim's religion, race, creed, sexual orientation as defined in RSA 21:49, national origin or sex, or because the victim was a registered sex offender or offender against children.
3. Effective Date. This act shall take effect 60 days after its passage.
Absent an amendment, lawmakers are asked to approve a still-secret plan to notify neighborhoods when a sex offender arrives. The bill does not even call for review of those undisclosed guidelines by the Joint Legislative Rules Committee. Lawmakers would enact policy in private, but they would deny basic privacy to the traumatized children of people who wear scarlet letters. At least those letters are not yellow yet and stitched to sleeves.
What you can do about HB 1628
The Senate Judiciary Committee will vote soon on HB 1628. You should immediately let its five members know how you feel. Then contact your local senator at http://www.gencourt.state.nh.us/senate/senatemembers.asp.
Senate Judiciary Committee members
Deborah Reynolds 536-1552 536-8980 ext 10
Sheila Roberge r (H) 472-8391
sheila.roberge@leg.state.nh.us
Robert Letourneau (O) 271-2118
robert.letourneau@leg.state.nh.us
Matthew Houde 271-2104 (H) 504-2744
Bette Lasky d 888-5557 (603)271-2735
Bette.Lasky@leg.state.nh.us