And the definition of insanity is . . .

As discussed in the following New York Times article, a Jersey municipality, the township of Newton in Sussex County, intends to enact a total residency ban for convicted sex offenders. This despite two recent trial court rulings which have struck down partial residency restrictions enacted elsewhere on the ground that these restrictions are in direct conflict with, and preempted by, the State's registration scheme, known, of course, as Megan's Law. Go figure.

October 7, 2007
The Law
Newton Considering Sex-Offender Ban

WHILE dozens of New Jersey municipalities have tried to restrict convicted sex offenders from living near their schools and parks, officials in Newton are seeking to bar high-risk sex offenders from living anywhere within the borders of their 3.5-square-mile Sussex County community.

During the past year, courts have struck down three New Jersey towns’ ordinances prohibiting convicted sex offenders from living within specified distances of schools and parks.

Despite the prospect of a legal challenge, officials in Newton said they were confident that their ordinance, which would bar sex offenders classified as being at high risk of repeating their crimes, would win approval by the Town Council on Oct. 10.

Newton, the county seat, has a population of 8,300 and was designed as a pedestrian town with sidewalks along its streets. Because children often travel on foot, “they’re very vulnerable,” Mayor Thea Unhoch said.

Most New Jersey municipalities that have limited sex offenders’ residency have focused on creating boundaries around child care centers and schools. “In effect, a couple of towns, by doing this, may have made the town off-limits, but I’ve never heard of any municipalities saying it outright,” said Deborah M. Kole, staff attorney for the New Jersey State League of Municipalities.

Municipal and state efforts across the nation have also focused on keeping sex offenders from living near schools. Dyersville, Iowa, may have the toughest restriction. In 2005, it barred any sex offender older than 21 from living there. The law has yet to face a legal challenge, Mayor Jim Heavens said.

The Newton proposal would prohibit sex offenders listed on the state police’s Internet registry from living within the town limits. The registry, which lists those deemed most likely to commit another offense, comprises all Tier 3 (high risk) and some Tier 2 (moderate risk) convicts.

The registry identifies seven residents living within Newton’s ZIP code as sex offenders, but the ordinance would not displace them.

Newton would also prohibit any sex offender who has yet to be classified by the state from moving in — including those just leaving the county jail in town, the Walter Keogh-Dwyer Correctional Facility. Detective Lt. Michael Richards of the Newton Police Department said it was not uncommon for sex offenders to be incarcerated there and move into town upon their release.

With the town being a walking community, the presence of sex offenders who have left the jail poses great dangers, Councilman Ray Storm said.

The proposal, which needs three votes to pass, is supported by Mayor Unhoch and Councilman Storm, and the mayor predicted that the three other council members would support it. The other council members did not return calls seeking comment.

The Town Council had considered taking a less restrictive action, but some residents in what would have been the nonrestricted pockets objected.

Council members also heard concerns about a legal challenge. So, Mr. Storm and Ms. Unhoch said, the town decided to wait, hoping that the Legislature would approve a statewide law. But the state has not yet done so.

“We have to take action sooner or later,” Mr. Storm said.

The State League of Municipalities has stopped keeping track of the number of towns that have sex offender residency restrictions, but the group is large.

“This is like a game of musical chairs, and what communities are trying to do is, they don’t want to be the last one to ban sex offenders,” said Ken Singer, executive director of the New Jersey Association for the Treatment of Sexual Abusers.

In the past year, ordinances regulating sex offenders’ housing in three municipalities — Cherry Hill, Galloway Township and Lower Township — lost court challenges, in part because state laws already provide for oversight of where sex offenders can live, said Michael Z. Buncher, a New Jersey deputy public defender.

Cherry Hill has appealed, as has Galloway, which is being represented by the American Center for Law and Justice, a nonprofit group founded by Pat Robertson. Its chief counsel, Jay Sekulow, said a total ban could be more difficult to defend.

“The government would have to show its interest in that kind of sweeping legislation,” he said.

Creating residency exclusion zones can create a false sense of security, said Douglas A. Berman, a professor at Ohio State University’s Moritz College of Law. He added that barring sex offenders from living in a town does not stop them from traveling through it.

In Newton, Lieutenant Richards acknowledged that opponents of restrictions on sex offenders call them “feel-good legislation.” But, he said, the ordinances can be valuable in educating parents about potential threats in their town.

And if there is a legal challenge?

“So be it,” Mayor Unhoch said. “My main concern is the safety of the children.”