Ky. sex offenders win case

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Finally a judge who sees the BS for what it is, BS!! AMEN!!!

04/21/2007

Judge says new rules don't apply retroactively

COVINGTON - Eleven Kenton County residents have beaten charges that they violated Kentucky's new sex-offender law intended to prevent them from living within 1,000 feet of a playground, school or day care.

Kenton District Judge Martin Sheehan ruled Friday that the new restrictions do not apply to people convicted of their crimes before the amended law took effect last year.

"If what we seek is to protect children from sex offenders, how do we accomplish that aim by imposing a 1,000-foot residency restriction ...?" Sheehan wrote. "If the offender is still permitted to visit and linger in such areas for protracted periods, so long as he does not sleep there, what actual protection have we provided our children?

"In truth, residency restrictions appear to be little more than a political placebo, offering false comfort to pacify the public's fear of sex offenders."

Court observers said prosecutors would likely appeal. Kenton County Attorney Garry Edmondson did not return phone messages seeking comment.

"This is a ruling in the right direction," said Beth Wilson, executive director of the American Civil Liberties Union of Kentucky. "We have long argued that the new law ... does nothing to enhance community safety. It effectively banishes people from their communities."

Registered sex offenders frustrated in finding an eligible place to live have found themselves fighting it in court across the state.

A Fleming County jury recently found a registered sex offender guilty but ordered no jail time or fine, said Tom Griffiths, regional manager for Kentucky Department of Public Advocacy. In another incident, a charge was dropped against a Mason County sex offender when he agreed to move.

In reference to Sheehan's ruling, defense lawyer Don Nageleisen called the order "the most courageous judicial decision in the last 10 years." He said Sheehan followed the law even if it meant making a politically unpopular ruling.

Nageleisen, who represented one of the 11 men, challenged the misdemeanor charges against his client on several constitutional grounds.

Sheehan didn't strike down the statute. He ruled that legislators passed a punitive law after the fact - a violation of the state and federal constitutions. Prosecutors had argued that the restrictions were not further punishment, but a civil plan designed to protect children.

"The public both fears and hates sexual offenders, the political pariahs of our day," Sheehan wrote. "This prevailing public animus has resulted in the enactment of increasingly harsh measures. Our courts, the public's last line of defense for civil liberties, have been quick to join the mob, twisting and controlling prevailing case law with an eye on the ultimate goal of approving harsher and harsher laws, while simultaneously glossing over significant concerns and constitutional challenges."

Pointing out that someone could be placed on a sex offender registry for just possessing child porn, Sheehan even suggested an alternative system. He cited a plan used in Nebraska that evaluates each offender's risk of re-offending before deciding where he can live.

The judge also questioned a common belief that sex offenders are likely to exploit the children of the neighbors. The 36-page order cited numerous studies or recidivism rates of inmates.

Sheehan wrote that problems in Kentucky's law were exacerbated by the lack of a legal definition of a playground. He said Kenton County's patchwork of small cities could each strategically position a few swing sets throughout their borders to ban sex offenders from residing anywhere within their cities.

"An area within which sex offender residency is permitted today could be converted to an off-limits area tomorrow simply by the opening of a playground, school or day-care facility," Sheehan wrote, adding that the law has no grandfather clause.

"In fact, the harsh reality of a lack of legal housing available to sex offenders subject to residency restrictions is already striking home in at least one jurisdiction," Sheehan wrote.

He said less than two years after Miami enacted a 2,500-foot residency restriction, sex offenders are living under expressway overpasses because there is no other legal housing available.