Not in Our Backyard

Chris and Amy Hagan spent two months looking for the perfect apartment in Barre. It had to have two bedrooms to accommodate their two young children. It had to be dog- and cat-friendly, and the rent had to be low enough to conform to the requirements of Section 8 subsidized housing.

Their dream place turned out to be a tidy, suburban-style apartment on the outskirts of Barre with beige carpeting and a living room big enough for piles of kids’ toys. But they had barely signed the lease on the place when the City of Barre [1] told them they had to get out.

The problem: Their second-story apartment is within 1000 feet of two parks, and Chris Hagan is a convicted sex offender. Barre’s Child Safety Ordinance [2] prohibits sex offenders from living within 1000 feet of schools and recreation facilities such as parks and playgrounds.

The Hagans believe that’s misguided.

“I made a mistake years ago, went to prison and paid my dues,” says Hagan, 29. “Now my wife and children are being punished.”

“My husband is not a rapist and he’s not a pedophile,” Amy Hagan chimes in. “He’s a good husband and a loving father. He’s no threat to anybody.”

Hagan, with the help of the American Civil Liberties Union of Vermont [3], has taken the City of Barre to court, arguing that state law does not grant cities and towns the right to impose such sex offender residency ordinances, which now exist in Barre and Rutland.

But Barre Mayor Thom Lauzon [4] says the ordinance is legal because the city is relying on its zoning bylaws to create the buffer zones. Moreover, he says the document was drafted in such a way that it would not force sex offenders to leave the city, just to move out of the exclusion zones.

“Ordinances have failed nationally when they’ve been drafted to preclude sex offenders from living in a city,” explains Lauzon. “We have plenty of neighborhoods where sex offenders can live. My neighborhood is not within a buffer zone.”

At the moment, both the efficacy and the legality of residency restrictions are being tested.

“It’s important to challenge those ordinances because we think they’re unconstitutional and against state law,” says Allen Gilbert, executive director of the Vermont ACLU. “We also think they’re counterproductive because they can force offenders to go underground.”

As a practical matter, says Gilbert, such restrictions force sex offenders to live in outlying areas where jobs and social services may be scarce. “How are you going to rehabilitate somebody if that person can’t get a job or services?” he wonders. “That’s setting up a situation for the person to reoffend.”

But Lauzon said he has seen “no evidence that restrictions can make the situation worse. People say that, but when I ask to see a study, they fade into the shadows.

“I don’t buy the argument that restrictions drive offenders underground,” the mayor continues. “We’re asking them to move a quarter-mile down the road. We’re not trying to deprive them of services.”

Chris Hagan’s problems began more than a decade ago, when he was 18 and had sexual relations with a 15-year-old girl — “a friend,” he says. “I knew her a little.” At the time, he admits, he was strung out on heroin and heavily into hallucinogens. Three years later, the young woman reported the encounter to Burlington police. She said it began consensually, but that Hagan refused to stop when she said no.

For his part, Hagan says he has no memory of that night. “I don’t know what happened,” he says, “but I took accountability.” He pled guilty to lewd and lascivious behavior.

Although he spent three and a half years in jail, maxing out his sentence, Hagan has discovered that his punishment hasn’t ended. Although he believed — and court records confirm — he was pleading guilty to a misdemeanor, he later learned that lewd and lascivious behavior is a felony in Vermont. By the time he got out of prison, his credit was shot because of bills he didn’t pay during his incarceration. “I lost a job at IHOP [5] because of my status as a felon,” he says. “I can’t do truck driving, and I can’t be a teacher, which is what I’d really like to do. I started at a school for hairstylists, but I can’t be licensed as a cosmetologist.”

Hagan’s situation illustrates how sex offenders — even those who have served their full prison terms — have become social pariahs all across the country. Recently, stories have surfaced about sex offenders being forced to live under a bridge in Miami, in cars in San Francisco, and tents in Iowa. Many cities and towns don’t want them around.

Some, like James Oney, are being held in jail until they can find places to live. In April, Oney, 37, challenged Rutland’s city residency restrictions, which apply only to child sex offenders. Oney was convicted of lewd and lascivious conduct with a child in 1991. A convicted arsonist as well, he currently is serving time in the Chittenden County Correctional Center, but his goal is to get home to Rutland.

The Prisoners’ Rights Office [6] is assisting Oney in his suit. Rory Malone is the attorney assigned to the case. Malone, who says he instructed Oney not to speak to the press, did not return numerous phone calls.

As of January 2009, 2470 people were listed on Vermont’s overall sex offender registry, according to statistics published by the Vermont Criminal Information Center. Of those, some 20 percent now appear on the state’s “Internet Sex Offender Registry,” [7] either because of the severity of the crime they committed or because there’s a high probability they’ll reoffend. Some who appear on the online registry have failed to comply with treatment; some have simply disappeared. This year, the legislature expanded the crime categories that can land a sex offender on the searchable registry. As a result, the number on the Internet registry is expected to jump from 20 percent of all sex offenders in the state to 80 percent.

In other words, the intensity of exposure the state imposes on sex offenders is different depending on whether the perp is a pedophile who molests young children, or a rapist who aggressively violates adult women, or an 18-year-old who has sex with a 15-year-old. But the residency ordinances make no such distinctions. Any sex offender, regardless of his or her crime, is subject to the restrictions, even those who have completed the state’s respected Vermont Sex Offender Treatment Program and “have relatively low recidivism, statistically speaking,” according to Max Schleuter of the VCIC.

Sex offenders don’t conform to a stereotype. While the public perception is that they are strangers preying on young children, the facts — and the efficacy of efforts to segregate them from everyone else — seem to be at odds with that image. For one thing, notes Gilbert, “90 percent of all sex offenses committed against children are perpetrated by friends and family members. That’s where the problem is, not with strangers.”

“No Easy Answers,” [8] a report published by Human Rights Watch [9] in 2007, takes issue with the notion that imposing residency restrictions can prevent sex crimes. In fact, the authors argue, “among laws targeting sex offenders living in the community, residency restrictions may be the harshest as well as the most arbitrary. The laws can banish registrants from their already established homes, keep them from living with their families, and make entire towns off-limits to them, forcing them to live in isolated rural areas.”

At the same time, the researchers found “no evidence that prohibiting sex offenders from living near where children gather will protect children from sexual violence. Indeed, the limited research to date suggests the contrary: A child molester who does offend again is as likely to victimize a child found far from his home as he is one who lives or plays nearby.” A study by the Minnesota Department of Corrections found that “individuals who committed another sex crime against a child made contact with their victim through a social relationship.”

Another report — done by the National Association to End Sexual Violence [10] — reached the same conclusion, noting that some restrictions are so broad as to prevent sex offenders from using group homes, homeless shelters and hurricane shelters. “There is no evidence that these laws protect children,” the authors wrote, citing studies in Minnesota and Colorado that “found no relationship between sex offense recidivism and sex offenders’ proximity to schools or other places where children congregate.”

Moreover, the NAESV study concluded that “residency restrictions are having unintended consequences that decrease public safety. For example, Iowa Department of Public Safety statistics show that the number of sex offenders who are unaccounted for has doubled since a residency restriction law went into effect in June 2005.

“Sex offenders who continually move or become homeless as a result of residency restrictions are more difficult to supervise and monitor, thereby increasing the risk of reoffense … Because residency requirements cause instability, which may increase the risk of reoffense, NAESV opposes residency restrictions.”

Even the Vermont League of Cities and Towns [11], to which Barre and Rutland belong, is not prepared to defend restrictions as good policy. “We’ve looked at the issue from two viewpoints,” says Trevor Lashua, senior legislative associate at the VLCT. “When cities and towns ask us if restrictions are legal, we’ve come to the conclusion that they are. But we also point out to them that research and data show these are not the most effective tools to ensure public safety.”

Last summer, the VLCT fielded questions from many towns in the wake of the Brooke Bennett [12] murder, says Lashua, adding, “The most concern came from the service-center towns like Barre and Rutland, where there is housing and social services.”

But Mayor Lauzon disputes the idea that Barre’s restrictions were a reaction to the murder of 12-year-old Brooke Bennett, whose body was found in a shallow grave in Randolph last July. “This ordinance was first presented the evening before Brooke Bennett went missing,” he says. “This was in response to our perception that a disproportionate number of sex offenders were being placed in Barre City. We had candid discussions with some Department of Corrections employees who told us that even some offenders who maxed out shouldn’t be out of prison. It was a cause for concern.”

Chris Hagan went before the Barre City Council to ask for a waiver of the restrictions, but his request was denied. Lauzon recalls that “Mr. Hagan’s version of events is in conflict with the record. He told us that he had consensual sex with a young woman. He did not tell us he was convicted of lewd and lascivious conduct. We’re asking for a complete disclosure of the documents, and we haven’t gotten them as yet.”

A bill recently passed by the Vermont legislature reflects the conflicts of information and the political hazards inherent in appearing to defend sex offenders. In S.13, which became Act 1, state legislators took note of the apparent inefficacy of residency ordinances, warning that “such policies could have a negative impact on public safety in our rural state by isolating offenders or driving them underground.”

The authors of “Local Community Sex Offender Residency Restrictions” went on to say that “research has shown that sex offender residency restrictions are unlikely to deter sex offenders from committing new crimes and should not be considered a viable public safety strategy.”

But in the end, they chose not to prohibit municipal ordinances, instead requesting “that the Vermont League of Cities and Towns, Inc. work proactively with local communities to ensure they are receiving accurate and substantive information about the lack of efficacy of such laws and to encourage communities to focus on prevention and other strategies to improve community safety.”

“I’m not sure exactly what that means,” says Barre City Manager John Craig. “I don’t know what they’re telling us to do.”

For Hagan and his family, the uncertainty is taking a toll. Amy Hagan says she loves her new apartment and wants to stay, but the couple faces a $500-a-day fine if they fail to move out when the city says. The Hagans have signed a lease through September and risk losing a $1000 deposit if they break it. Hagan would forfeit his family’s housing subsidy if he moved out on his own.

At the moment, the City of Barre has stayed enforcement of the ordinance until the case is decided in Washington Superior Court. At the June 11 hearing, says Gilbert, Vermont District Judge Helen Toor heard arguments from both sides on a preliminary injunction, noting that the clock doesn’t run out on the Hagans’ living situation until July 7, unless she rules before then. Whatever the decision, Gilbert adds, the case is not over: “No matter who wins or who loses, the suit will be going up another rung of the ladder to the Vermont Supreme Court. It’s too important to let it stop here.”