Monday, March 17, 2008

Offenders' residency rules face court test

Lawyers for Cherry Hill will appear before a state appellate court today to defend a township ordinance that prohibits convicted sex offenders from living anywhere near places where children tend to gather.

A Superior Court judge in Camden County struck down the ordinance one year ago and Cherry Hill decided to appeal the ruling on the basis that the ordinance protects some of the township's most vulnerable residents -- children -- from potential sexual assault.

Immediately after Cherry Hill's hearing, attorneys for Galloway Township in Atlantic County will present a similar defense of its own sex offender ordinance, which a Superior Court judge rejected in February 2007.

Both municipalities want the appellate court to overturn the lower court decisions so they can get back to enforcing their ordinances, which have been suspended throughout the appeal process.

The three-judge panel won't issue a ruling on the Cherry Hill and Galloway ordinances today. But when the court does make its decision, officials say it will have a statewide effect since it's estimated that more than 100 municipalities across New Jersey have sex offender ordinances on the books.

"It will at least govern the language of the ordinances," said defense attorney Scott Schweiger, who is representing the two male sex offenders fighting the Cherry Hill ordinance.

Local governing bodies began adopting sex offender measures in 2005 as a way to both protect their communities and scare away would-be sexual predators. In the case of Cherry Hill and Galloway, sex offenders are banned from residing within 2,500 feet -- think seven football fields lined up end-to-end -- of any school, park, playground, or day-care center. If offenders don't move within 60 days of being notified, they are subject to hefty fines, imprisonment and community service.

Under the ordinances, sex offenders are banned from living in nearly two-thirds of Galloway and most of Cherry Hill, with the exception of a high-income neighborhood of $400,000-plus houses and an undeveloped area.

Superior Court Judges John McNeill in Camden County and Valerie Armstrong in Atlantic County rejected the ordinances. Their main point was that Megan's Law, a state law requiring sex offenders to inform local police where they live, trumps the local ordinances. The judges said the ordinances violated the constitutional rights of convicted sex offenders and punished them again for their crimes. The measures were also overly broad because they didn't attempt to assess a particular offender's actual risk to the community, the judges stated.

Vincent McCarthy, a lawyer representing Galloway, considers the judges' reasoning faulty.

"The town has a compelling interest in creating these setback zones because these people are felons who have been convicted of sexual attacks, some of them against young children," said McCarthy, a senior attorney at the Washington D.C.-based American Center for Law & Justice, a conservative nonprofit law firm specializing in constitutional law issues.

It's one of the few situations where local government has a reasonable and rational basis for burdening some people's constitutional rights, McCarthy said.

In its legal brief, Cherry Hill argues New Jersey municipalities have broad entitlement to adopt ordinances for the safety and protection of their residents. The township says sex offenders, particularly those who target children, have a high recidivism rate and can go years before striking again. The ordinance, therefore, is regulatory in nature and not intended to punish offenders again for their crimes, the township asserts.

"The mayor's primary job is ensuring public safety," said Dan Keashen, Mayor Bernie Platt's spokesman. "Bernie and town council believe this ordinance is an additional layer of protection . . . Keeping convicted sex offenders from living near public places where Cherry Hill families convene is an important part of this local legislation and the township will continue to support that concept."

These ordinances actually impede the rehabilitative objectives of Megan's Law, according to the legal brief filed by the American Civil Liberties Union on behalf of a Richard Stockton College student battling the Galloway measure. The ordinance would banish the student, who was convicted of criminal sexual contact as a juvenile, from living on campus and prevent him from fully taking advantage of what the college has to offer.

"The question I get all the time is: "How would you feel if these guys moved next to you?' " said Schweiger, who got the case when he was a Cherry Hill public defender.

But the fact is these ordinances don't stop sex offenders from visiting parks, malls, playgrounds, movie theaters and other places where children and teens go, he said.

Reach Lisa Grzyboski at (856) 486-2931 or

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