Flaw found in Md. sex offender law

Homelessness a barrier to registration, court says

November 16, 2006|By Andrea F. Siegel | Andrea F. Siegel,sun reporter

Maryland's top judges found a gap yesterday in the state's sex offender registry law: Criminals who are supposed to report every change of address to officials can't do it if they become homeless.

It is impossible for people who do not know where they will be staying from day to day to comply with the registry's provisions, the Maryland Court of Appeals said in a pair of unanimous rulings.

"That's the problem. They can't [report a new address]. Therefore, the statute doesn't cover them," said Julia Doyle Bernhardt, the assistant public defender representing one of the Montgomery County men who challenged his conviction for failing to notify authorities that he moved.

But Kathryn Grill Graeff, deputy attorney general for criminal appeals, argued that the men could have complied by reporting where they were staying - even if it wasn't a permanent residence.

"We've got our work cut out for us, going back to the legislature on this," said Montgomery County Assistant State's Attorney Laura L. Chase, who heads the office's family violence unit, which handles such cases.

Lawmakers did not intend to exempt homeless sex offenders from registry requirements, she said.

"Let's go back and have the General Assembly define what they mean by residence, or maybe ask for special requirements," she said.

What she found "frightening," she said, is that judges sentence sex offenders based in part on two variables: what the defense considers suitable housing and the registry's ability to monitor them.

But if circumstances changes and the offender becomes homeless, judges cannot redo the sentence. So Chase said she would consider asking judges to add registry-like conditions as terms of probation.

Maryland is not alone in this predicament. Facing a similar issue in 1999, legislators in Washington state amended the sex offender registry law there, the Court of Appeals noted. Bernhardt said that at least three states have laws requiring homeless offenders to check in with authorities as they move.

The cases go to the heart of concerns about the criminalization of poverty, said professor Steven D. Schwinn, who specializes in poverty law at the University of Maryland School of Law and has worked with area advocacy groups for homeless persons.

Local governments periodically try to make overt signs of poverty - sleeping on benches, for example - illegal, or they crack down on the types of things that are part of a poor person's life, he said.

"It strikes me that these cases can be read in much that same way. But Maryland has gone the other way and said, `We are not going to punish you because you are homeless,'" Schwinn said.

That's good for transient people in the short term, but might not be in the long term if legislators add burdensome check-in requirements for homeless offenders, Schwinn said.

How many people the ruling affects is unclear. A person staying in a homeless shelter for any length of time has an address, the high court said.

Of the 4,495 registered sex offenders in Maryland, "a small number are truly homeless," said Karen V. Poe, a spokeswoman for the Department of Public Safety and Correctional Services. Current figures say 344 are out of compliance with registry requirements, but that might be because they do not meet the new state mandate to have an identifying photo taken within the year or similar requirements.

The high court's decisions overturned the convictions of two men in Montgomery County - convicted sex offenders - for failing to update their addresses.

A person has an address only "if that person has a fixed location at which the registrant is living, or one to which the registrant intends to return upon leaving it," Judge Irma S. Raker wrote for the court. It was unreasonable to conclude that someone who has no residence has changed residences and has thus broken the reporting law, she said.andrea.siegel@baltsun.com

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