Constitutional Law

Georgia Supreme Court Rejects Banishment of Sex Offenders

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Last week the Georgia Supreme Court unanimously overturned that state's draconian restrictions on where sex offenders may live after they're released from prison. Georgia's law prohibited sex offenders from living within 1,000 feet of schools, churches, and other places where children may gather, including the state's 150,000 or so school bus stops. The upshot was that entire counties, except for a few spots here and there (where there might not have been any actual housing), were off limits. Worse, the opening of a playground or day care center, or the designation of a new bus stop, could render previously legal locations illegal, forcing sex offenders to move repeatedly. "Under the terms of that statute," the state Supreme Court noted, "it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected." The court ruled that the law violated the Fifth Amendment's ban on uncompensated takings of property. 

A PDF of the decision is available here. Kerry Howley called attention to the wide reach and onerous requirements of state and local sex offender residence restrictions in a reason online essay last year. In a column last fall, I noted that such restrictions are part of a broader political fashion.

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  1. The court ruled that the law violated the Fifth Amendment’s ban on uncompensated takings of property.

    I thought this wasn’t an obstacle any more? These GA boys are behind the times.

    Private property was sooooooooooo last century…

  2. The information I read last week said that they had only overturned one very small portion of the restrictions – specifically the taking away of property already owned byt the person. However, this doesn’t change the restriction on where they can live unless they already owned the property – so they can’t rent (and can be evicted if already there) and can’t buy something new. Also, they still can’t work anywhere near any of the restricted areas.

    I can’t go back and look for the source again, but from what I was reading the ruling didn’t do nearly as much as what the NYtimes article implies.

  3. The following is sooo politically incorrect.
    Yeah, Georgia Supreme Court! These attempts to zone “sex offenders” out of jurisdictions is just plain evil.

    An example of this can be described like this, 17 year old boy + 15 year old girl + heavy petting = SEX OFFENDER in many jurisdictions. It’s for the children my ass. It’s pandering for votes and fanning the flames of hysteria. Lawmakers should be ashamed over this type of legislation. They won’t be. Expect to hear diatribes about “those liberal judges” in Georgia campaigns next year.

  4. The court ruled that the law violated the Fifth Amendment’s ban on uncompensated takings of property.

    Two thoughts:

    Your rights under a lease are property rights, so I can see how this could protect renters as well a owners.

    What the hell happened to the ban on “cruel and unusual punishment”? Why wasn’t that the grounds for this ruling?

  5. Who said you can’t own the property? You just can’t live there.

    As to the punishment issue, the whole point is that it’s not supposed to be considered punishment, but just a health/safety restriction, like the required distances for explosives magazines from various things.

  6. Clearly the Georgia Supreme Court cares more about sexual predators than they do about OUR CHILDREN!

  7. Clearly the Georgia Supreme Court cares more about sexual predators than they do about OUR CHILDREN!

    Reinmoose,
    Are you running for a seat in the Georgia legslature next year?

  8. The court ruled that the law violated the Fifth Amendment’s ban on uncompensated takings of property.

    Does that mean that when the law was passed, sex offenders were to forfeit any property they owned within these zones to the state?

    I don’t entirely object to telling a convicted pedophile that he doesn’t get the benefit of the doubt if he’s found lurking where kids are (i.e. some guy hanging out in the bathroom near a little league field. Sure, he might just need to take a piss, but his history says probably not. Likewise for a convicted rapist hanging out in parking lot of a women’s gym), but these sorts of zoning laws are way over the line.

    I also find it unsettling that people seem to naturally conflate “sex offender” with “baby-rapist”.

  9. R C Dean:

    The same thought flew through my head; the fifth amendment property ruling sounded like a pretty odd way to approach what looks like a simple eighth amendment deal…until I remembered that the eighth amendment is dead letter and has been for a long while and in any event, the ruling mob would undoubtedly disagree that anything is too cruel for “sex offenders”.

  10. Ah propose that all convicted child molestahs be allowed to rend living space on the premises of the Georgia Supreme Court, seein’ as how these judges are so concerned with the welfare of preverts.

  11. As to the punishment issue, the whole point is that it’s not supposed to be considered punishment, but just a health/safety restriction, like the required distances for explosives magazines from various things.

    Yeah, right. You can’t build a school within 1000 yards of an explosive magazine, not the other way around. If the law were written such that a new church, school, playground, or bus stop couldn’t be put in within 1000 yards of the address-of-record of a registered sex offender, I’d buy this. But since there is no restriction on children approaching sex offenders, but an onus upon sex offenders to retreat from children, this isn’t a safety regulation, but a punishment.

  12. The Georgia Supreme Court’s decision is a correct one.

    The scarlet letter has never been a good idea.

    I’m all 4 draconian laws (including execution) for people that commit aggrevated sexual assaults.

    I don’t think people that have served their time and made deals (to avoid trial) should be re-punished.

  13. Libertarians really should pick their battles. This one might be better left to the ACLU.

  14. See my comment above for why it’s not treated as an 8th amendment issue. Neither was the case of the guy who couldn’t carry a gun because of a restraining order imposed because of a domestic relations violation. The “punishment” isn’t connected to the trial at all; if it were, it could be considered an ex post facto law. The criminal conviction is treated only as a fact establishing a status, just as carrying a communicable disease would be. It looks like a punishment for that reason, but is legally considered no different from the different status of citizens vs. non-citizens, handicapped vs. non-handicapped, etc. It could just as well apply to someone who was determined to be a sexual danger in a civil proceeding.

  15. Are you running for a seat in the Georgia legslature next year?

    I hadn’t thought about it, but this would be a good way for a libertarian to get elected. Since neocons lie that they’re fiscally conservative, do you think that libertarians could lie that they’re hawks?

  16. I’m all 4 draconian laws (including execution) for people that commit aggrevated sexual assaults.

    I don’t think people that have served their time …should be re-punished.

    Given that you’d rather (literally) take their heads, I guess they won’t have to worry about being re-punished.

  17. You can’t build a school within 1000 yards of an explosive magazine, not the other way around.

    No, the law is written the other way. Someone can be required to move/remove a magazine if a public road is put thru too close to it; the existence of the magazine does not prevent the construction of the road.

  18. The taking issue makes sense in that the value of the property is diminished because of the restriction put on its use.

  19. If these offenders are so dangerous that they can’t be within 1000 ft of places where children are likely to congregate, what are they doing out of prison?

  20. Jason –

    They have to make room for the dope fiends. Even a child molester isn’t as dangerous to the children as THE DEMON WEED!!!!

    Clearly.

    If our politicians can be taken at all seriously.

  21. Russ R | November 26, 2007, 11:59am | #
    Libertarians really should pick their battles. This one might be better left to the ACLU.

    Umm, I am a libertarian and a card carrying member of the ACLU. I rule that Venn Diagram.

    I support JPFO instead of the NRA though as they support the 2nd whether it benefits them politically or not.

  22. Either you are considered a danger to society or not. Such people are put in prison until a debt owed to society is resolved. When such debt is paid in full, after termination of prison and parole periods such debt is paid in full. Therefore, if your obligation is up and your civil rights are restored, you should no longer be considered a danger to society.

    Its abundandantly clear that the ex pos facto nature of these sex offender laws are extremely PUNITIVE in intent and have nothing to do with protecting children. Politicians score big, cheap political points enacting new harsh unconstitutional laws and will press the limits, forcing the unfortunate sex offenders to challenge every law in court.

    Are these laws protecting the public? It’s just for show. These guys can drive to another part of the state tonight and perform another assault. Where’s the protection? This trashing of civil rights with sex offenders is a testing ground for further destruction of our constitution and the fear mongered masses don’t even see it coming.

    For the guys reading this, a question: If the police came in your home right now and confiscated your computer, would you have anything to worry about? They can analyze all those porn images you’ve viewed over the years, even erased ones. Are you sure those women were all over 18? What if you were sent child porn via a virus without your knowledge? Point is, you may be guilty of a sex offense as we speak. The government and authorities have the power to ruin anyones life now by labeling them a sex offender and have such an easy means to accomplish that. Just look at your images, and if nothings there just plant something.

    Significant, important laws should never be enacted based on extreme, low probability cases and extreme emotion. Be careful what you wish for, and how much you allow yourself to hate.

  23. Libertarians really should pick their battles. This one might be better left to the ACLU.

    The ACLU is too busy this time of year making sure little towns across America don’t put manger scenes and menorahs in public areas.

  24. Libertarians really should pick their battles.

    We do. Is it our fault that we happen to pick all of them?

  25. Libertarians really should pick their battles.

    We do. Is it our fault that we happen to pick all of them?

    And for some reason we keep getting our asses kicked.

  26. But can the State of Georgia use eminent domain laws to pick up the sex offender’s property? They could use it to pay for the costs of said offender’s prison term. Afterwards, the offender has to move elsewhere (different state / Australia).

  27. A material reduction in the utility of a property to its owner is often considered a “taking”. For example, I seem to remember from my college days that building an airport near private property is considered a taking due to the reduction in property values from airport noise.

  28. Libertarians really should pick their battles. This one might be better left to the ACLU.

    I like to think that the ACLU is a libertarian organization.

  29. I like to think that the ACLU is a libertarian organization.

    I agree with them more often than not as well, Jacob. But don’t mention the ACLU and the 2nd Amendment around here. Fireworks inevitably ensue.

  30. Jacob. But don’t mention the ACLU and the 2nd Amendment around here.

    And while you’re at it, don’t mention DWI, either.

    I mean, if nobody brings these two items up, there is no possibility of a threadjack.

    ;P

  31. The court ruled that the law violated the Fifth Amendment’s ban on uncompensated takings of property.

    Well yippy for property rights for convicted sex offenders….i wonder when the courts will get around to giving them to everyone else?

  32. I agree with them more often than not as well, Jacob. But don’t mention the ACLU and the 2nd Amendment around here. Fireworks inevitably ensue.

    Yeah, the only reason I haven’t joined the ACLU in the GWB era is that I’m forgetful and haven’t done it. That said, there’s also their love affair with ADA, the Violence Against Women Act, and affirmative action.

    FIRE/IJ they’re not, but the world’s better off with ’em than without ’em.

  33. This may be naive, but I don’t see why you can’t punish sex offenders by restricting where they live. After all, what’s a prison sentence but a very specific zoning restriction? Criminals (temporarily) forfeit all kinds of property rights. This is a moot point, since as Mike pointed out it’s ex post facto (exile was not part of these sex offenders’ original sentences, so it seems unconstitutional to take away their property after the fact.)

  34. This may be naive, but I don’t see why you can’t punish sex offenders by restricting where they live. After all, what’s a prison sentence but a very specific zoning restriction?

    I played with this idea for a few minutes. I found it naive because it immediately gave rise to the following questions:

    – OK, so you want to designate a portion of the locality the “OK for sex offenders to live” zone. Where do you put it? Whose property do you seize by eminent domain to form it? Do you condemn a whole subdivision? A farm? A derelict mall?
    – OK, you answered the above question and now you have a group of S.O’s to put there. How do you dole out the existing houses, if houses exist? How do you house them (and their families?) if housing does not exist? Barracks? Tents?
    – The SO Neighborhood now needs infrastructure… roads, water, sewer, bus routes. Whose taxes pay for this? Think you can talk the rest of the county into paying for it when infrastructure is needed for the more deserving?
    – How do you attract viable businesses to the area? (Besides liquor stores, I mean.) Can you persuade a grocery store to move in? A gas station?
    – What about any innocent family members living there? Are you going to have one section for people caught peeing in the park or hugging their classmate, and another one for people who hide 12-year-olds in their basement in a cage for five years? How do you protect them from each other? Panopticon? Beat cops? Wardens? Mandatory saltpeter in the food?

    I’d go on, but you can easily see it turning into a baroque fever dream of Hell. The rest of the exercise is left for the reader.

  35. Would a kind, generous, forgiving admin please close the italics tag after the first paragraph of the above post? Thanks ever so.

  36. You win. That sounds awful.

  37. Sorry, didn’t really know we were playing to win… 🙂 In all fairness, most of the points I made are arguable. It might even be possible to sell a locality the idea of putting those icky people over there and justifying the tax expense of setting it up. The offenders and their dependents could be housed in a similar way to how Katrina refugees were. The free market would take care of businesses; some of them might even be set up by reformed individuals themselves, and that might provide jobs. Churches can usually be depended on for some outreach efforts of varying effectuality (because you KNOW churches will show up, cracks about the RCs aside).

    However, there is nothing you can do about the perception of SO’s as “those icky people.” The rate of recidivism is a fact. It isn’t as simple as having two populations, the dangerous and the safe. Best case scenario would be a bit dystopian, and at worst we’d have a little home-grown sample of North Korea (depending on who’s in charge… for laughs, imagine it was Joe Arpaio).

    Fact is, we already have a place for people who have scarlet letters branded on their social skirts and are judged in need of punishment. They are the jails and prisons and other such ill or well meaning facilities. Either the criminal is unreformed and arguable belongs in such a captive institution, or the criminal is no more likely to commit another crime than is another average member of society, and deserves to participate in society again.

    Plenty of thinking points for libertarians in this… I don’t claim to have all the answers or even to know all the questions, and I may not agree with all of what I said, when it comes down to it. Thanks for raising the question; it was fun.

  38. Mike asks “For the guys reading this, a question: If the police came in your home right now and confiscated your computer, would you have anything to worry about?”

    And gives a good answer in a good post

    BUT the stigma is such that even being investigated or questioned is the same as being convicted. In fact, it may even be worse because you “got away with it”.

    I find these laws rather troubling because the publics perception of what constitutes a “sex offender” is often rather different from the actual offense. I’m also troubled that the sentences are often far harsher than those given for murder. I’m all for the “rape a child, get the death penalty” but some of the prison sentences I read about seem more than a little excessive. Granted, I wasn’t on the jury and don’t know all the facts but still…

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