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August 7, 2011

Massachusetts top court finds constitutional problems with state law barring certain sex offenders from nursing homes

As detailed in this Boston Globe article, which is headlined "SJC limits nursing home ban on sex offenders," the top state court in the Bay State found unconstitutional as applied a legislative restriction on sex offender residency in a nursing home. Here are the basics from the article:

A state law that makes it illegal for dangerous sex offenders to live in a nursing home was unconstitutionally used to try to oust a man from a Boston home, the Supreme Judicial Court ruled yesterday.

In a unanimous ruling, the high court said that the rights of the offender, identified only as John Doe, were violated when Boston police invoked the law in 2010 and told the frail 65-year-old he had to leave the nursing home where he was living.  The court said the statute overreached in providing no opportunity for the offender to make the case that he could safely stay.

Attorneys familiar with the case said the ruling is narrowly written and technically applies only to John Doe’s situation.  But advocates for aging sex offenders in need of long-term care said they hope the court’s criticism of the state law will sway nursing home administrators to let sex offenders into their facilities when the risk they pose is low.

The court previously ruled that it was constitutional for these offenders to lose protections, such as privacy rights, after being classified as a Level 3 offender, those considered most likely to reoffend, by the Sex Offender Registry Board.  But the court said the state law barring Level 3 offenders from nursing homes goes too far under the state’s Declaration of Rights, because it transforms a person’s right to choose where to live into a crime.

The full ruling in Doe v. Police Commissioner of Boston is available at this link, and it begins this way:

The plaintiff is a level three sex offender currently residing in a rest home.  Pursuant to a statute enacted by the Legislature in 2006, a level three sex offender who "establish[es] living conditions within, move[s] to, or transfer[s] to" a long-term care facility such as a rest home commits a crime.  See G. L. c. 6, § 178K(2)(e), inserted by St. 2006, c. 303, § 6 (§ 178K[2][e], or the statute).  The plaintiff asks this court to declare § 178K(2)(e) unconstitutional as applied to him.  We conclude that the statute infringes on the plaintiff's protected liberty and property interests and violates his right to due process; because the statute fails to provide for an individualized determination that the public safety benefits of requiring him to leave the rest home outweigh the risks to the plaintiff of such a removal, the statute is unconstitutional as applied to the plaintiff.

August 7, 2011 at 06:07 PM | Permalink


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The nursing home should receive immunity for his offenses against helpless residents. All such victims should be allowed to sue the judges as individuals. The taxpayer should not be made to pay for their left wing, pro-criminal ideologies.

A nursing home is sex offender paradise, especially at night, with limitless access to victims, understaffing, little supervision. Many residents have no ability to form memories, cannot speak, and some cannot move. No stalking. No preparations. No need to worry about being reported.

If he victimizes someone's grandma, the family has every moral, intellectual, and policy consideration to beat the asses of these judges. Bring street justice to them. They may gamble with the lives of others, but only if they have a personal stake in the game. Before someone criticizes self-help against judges, consider what they do to the public. They allow 5 million violent FBI Index felonies a year, including 17,000 murders, 2000 of which are carried out by paranoid schizophrenics with the full protection of the state. These judges are the most violent of all.

Posted by: Supremacy Claus | Aug 7, 2011 8:41:01 PM

no shit shurlocks! considering that according to the u.s. supreme court decision in 2002 the law is illegal on it's face! only pity is it took so long to get it tossed and no way of knowing how many people have been prosecuted and locked up under it by now that didnt' have either the guts or money to take it to trial!

Posted by: rodsmith | Aug 7, 2011 11:54:12 PM

in this case SC i have to say horse pucky!

when this stupidity got tossed in georgia! the individuals were locked up in their own rooms hell one was locked up in a room in a WHEELCHAIR and still the criminals running this govt tried to lock him up!

Posted by: rodsmith | Aug 7, 2011 11:55:44 PM

Rod: These apartheid style laws represent an entrepreneurial opportunity, apartments or nursing homes for sex offenders. All applicants would be verified, listed predators. A lifestyle community with the prices higher for greater staffing. Put them in an industrial district, with no neighbors to complain. It does not have to be a dump.

I see this decision as paving the way to massive litigation opportunity against nursing homes for failure to supervise. "Supervise" means "more staff." Meanwhile, Medicaid and Medicare cuts are on the way for nursing homes already operating down to the bone, with no place else to cut. Even if your grandma is not personally victimized by a roaming, entitled sex offender, she will be by increased costs or by decreased access to nursing home services. Thank the lawyer. More victimization and more litigation.

Posted by: Supremacy Claus | Aug 8, 2011 7:06:10 AM

SC, In part your are right about the financial opportunity. In my version, sex offenders move in and force property values down. Cheap real estate for sex offenders!!

Posted by: J | Aug 8, 2011 10:20:13 AM

oh so you now think they should self segragate. would you have told the jews to build their own concentration camps as well?

the entire body of law that restrict where they live are compltely illegal on thier face based on the 2002 u.s. supreme court decsion as far as i'm concerned anyone dumb enough to walk up to someone ANYONE and order them to move or leave based on one of them should be KILLED on the spot! for treason against the UNITED STATES OF AMERICA'S CONSTITUION!

Posted by: rodsmith | Aug 8, 2011 12:56:59 PM

Supremecy Clause:

If the individuals are as dangerous as you proclaim, then by all means make sure their conviction and legal, judicial incarceration sentencing reflects this danger. The problem with your thinking is that you let your emotions guide policy, which unfortunately has resulted in the multitude of constitutionally-vague decisions such as a public registry, which in turn fuels the emotive rage of people to create residency restrictions, employment restrictions, and the like.

The simple fact is this: Your loved one is far more likely to be attacked by a NON-registered sex offender, usually by a poorly-vetted nursing home employee. Indeed, it is 20 times as likely, as confirmed by DOJ stats. But this is not really the key here. Be honest: you are NOT taking such facts into consideration, because it is NOT the actual statistics of danger, but the public PERCEPTION of such danger, coupled with the public's absolute revulsion for such RSO's, that is driving your desire to segregate such individuals from society.

Your solution will never fly, because once someone proposes they build a facility that houses sex offenders, what county is not going to IMMEDIATELY reject such a proposed building? Keep in mind communities get angry when RSO's are rejected from living anywhere...EVEN IN CURFEWED TRAILERS ON JAIL GROUNDS... because of the hyper-hysterical societal response to registered sex offenders.

Let me be blunt: If you REALLY want to be able to create such zones, the ONLY constitutional solution would be to create an amendment to the US Constitution to specifically declare restrictions against RSO's. Without such an amendment, once RSO's have money to fund competent legal representation, most of the laws regarding residences and public restrictions will fall on the wayside.

Posted by: Eric Knight | Aug 9, 2011 2:11:19 PM

Eric: We share a reliance on empiricism, support what works to keep the public safe, and want failed programs ended. If you are a lawyer, I commend and encourage you as extraordinary. If you are not a lawyer, you are just a smart person, and have ordinary common sense.

A registry would not have saved even Megan. It is a paper work solution so the lawyers can appear to be doing something virtuous.

If Daubert standards can apply to expert testimony, narrow and non-influential in impact, , the laws should be subjected to testing for safety and effective in pilot programs. Any law that fails to meet scientific criteria should be void. In our secular nation, faith based law making is unconstitutional. To my knowledge, the Supreme Court applied scientific reasoning in 2 cases, but it should become established constitutional requirement.

Posted by: Supremacy Claus | Aug 9, 2011 2:36:20 PM

this is so so true eric!

"once RSO's have money to fund competent legal representation, most of the laws regarding residences and public restrictions will fall on the wayside."

sooner or later they are gonna wise up that there is about a million of them now not counting family. once you bring in family that will bring the number up into the MILLIONS! at that point it won't take much from EACH ONE to have enough money to fight it all the way to the u.s. supreme court or just take a short cut and put a contract on anyone dumb enough to support these illegal laws......they can match illegal was with illegal action. You pass an illegal law be prepared to back it with your ass! someone will be coming to collect!

Posted by: rodsmith | Aug 10, 2011 12:23:09 AM

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