Tuesday, July 18, 2006

Court challenge nears for sex-offender residency law

Court challenge nears for sex-offender residency law

LOWER TOWNSHIP —The first major challenge of a local sex-predator ordinance is drawing interest from both sides of the debate one month before the matter goes to court.

Steven Elwell, a sex offender registered under Megan's Law, is challenging the township's 2005 ordinance banning him from “residing or loitering” within 500 feet of public areas and 25 feet of school bus stops. Elwell's challenge is scheduled to be heard in Superior Court on Aug. 15.

Several parties, meanwhile, have drafted amicus briefs to weigh in on the issue. A brief supporting Elwell's case from the New Jersey chapter of The Association for the Treatment of Sexual Abusers has already been accepted by the court.

Steve Latimer, the association's attorney, argues that residency laws do not reduce the risk to children and can actually disrupt the lives of a registered sex offender's own family.

“There is no empirical data that says kicking people out of neighborhoods will reduce the risk that some kid walking down the street will be abused by a sex offender. If somebody wants to commit a sex crime, nothing stops him from getting in a car or on a bus,” Latimer said.

The association, which is a national organization with chapters in different states, also argues residency laws do not help rehabilitate a sex offender. Latimer said the association is partly made up of psychologists who treat sex offenders.

“It's counter-productive in terms of rehabilitation,” Latimer said.

The nonprofit New Jersey Crime Victim's Law Center has also prepared an amicus brief, although it has not yet been submitted to the court. Attorney Richard Pompelio said the brief makes a case that the township's law is constitutional.

Elwell's attorney, Frank Corrado, who is fighting the case with help from the American Civil Liberties Union, or ACLU, claims the local ordinance violates the New Jersey State Constitution. This includes constitutional protections of due process, ex post facto clauses and allegations that it amounts to double jeopardy as Elwell suffers for a crime he already paid for. Elwell served time in jail for having sex with a minor. Corrado also argues the state law pre-empts towns on the issue.

Pompelio disagrees. He argues municipalities have an enormous amount of authority when it comes to health, safety and welfare. Pompelio said the law must be reasonable. It can't ban a sex offender from living everywhere in a town.

Pompelio argues that if such laws were only done statewide, then it would send sex offenders away from dense urban areas and out into the suburbs.

“The only way this works is if municipalities do it, and they have to do it in a reasonable way. I think 500 feet is reasonable,” Pompelio said.

Pompelio acknowledged there is debate about whether such laws, which have been adopted by many towns in New Jersey, are effective. He said at least it gives parents peace of mind that their children are safe on the playground.

“At least we have the position of the crime victims supporting this ordinance. He (Elwell) was convicted of aggravated sexual assault of a female minor,” Pompelio said.

Corrado said amicus briefs usually come at the appellate level, not in trial court, but he welcomed them.

“I expected the issue to generate amicus briefs. It's an important issue, and it should bring as many points of view as it can,” Corrado said.

If the court accepts Pompelio's brief, Corrado said he would respond to it, although he already disagrees with the view that towns should regulate where sex offenders live. He said the state already regulates residency for some Megan's Law offenders under CSL, or Community Supervision for Life rules.

“There are all kinds of statewide controls on where they can live and can't live. The probation officer approves their residences. Municipalities are pre-empted from additional regulations,” Corrado said.

Another problem, Corrado argues, is that towns have many different versions of residency laws. They vary on what are public areas and vary on how far away a registered sex offender must live.

“They should be consistent,” Corrado said.

Township Attorney Tony Monzo was happy to have support from the New Jersey Crime Victim's Law Center. He has tried to get other towns that have residency laws to join the case, but to no avail.

“This group says the entire ordinance passes all challenges. Based on our research, we feel the same way,” Monzo said.

The case before Judge Valerie Armstrong is drawing a lot of interest since it is one of the first to be litigated. Monzo said the only case that has come to a court decision thus far was in Iowa, where a state law establishing a 2,000-foot residency restriction was challenged. Monzo said it got to a federal appeals court and was upheld.

Many of the Iowa arguments were on constitutional issues, although Corrado noted his case is under the New Jersey State Constitution because it is “more protective of due-process rights” than the federal Constitution.

Lower Township Council in August 2005 banned Megan's Law registrants from “residing or loitering” within 2,500 feet of any school, park, playground, recreation area, day-care facility or school bus stop. The original zone was about 90 percent of the township.

In December, the ordinance was amended to 25 feet from school bus stops and 500 feet from other public areas. The new zone only covered about 20 percent of the township.

Elwell filed suit with his wife, Jennifer. They live in Middle Township but expressed interest in moving to Lower Township. Elwell was convicted of having sex with a student when he was a teacher at Lower Cape May Regional High School.

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