A new take(ing) on sex offender residency restrictions
The inanity of increasingly restrictive efforts to confine the areas where sex offenders may live has been a frequent topic here. Just a month or so ago I discussed the oral argument in Hyle v. Porter, in which the Ohio Supreme Court will be determining whether those restrictions can be applied retroactively, to people who were living in the restricted zones before the laws were passed. A decision last week by the Georgia Supreme Court takes the argument to a whole new level: whether sex offender residency restrictions are permissible at all.
The argument against those laws — besides the lack of any empirical evidence that they do any good, and a growing body of evidence that they may be counterproductive, by forcing sex offenders “underground” and making them more difficult to track — have up to this point been directed at the ex post facto and vagueness issues. The former attack hasn’t gotten much traction because of the legal fiction that such laws are actually remedial instead of punitive. The latter contention has a bit more vitality, especially as the focal point of such restrictions move from specifically-defined locales like schools, day care centers, and the like, to more obscure venues — some more recent restrictions prohibit sex offenders from living (and even working) in areas where children might congregate.
The Georgia decision, though, was based upon that most hallowed of American rights, the principle of private property. The defendant, Anthony Mann, had purchased a home with his wife in 2003 which was well outside any restricted zone. A year later, though, someone opened up a day care facility within 1,000 feet of the home, and Mann’s probation officer told him he’d have to move out. Mann argued that this violated his constitutional rights, because it constituted a taking of his property without compensation.
Historically, “takings” law was regarded as simply co-extensive with the concept of eminent domain, but the rapid increase in government regulation of property use has led to a substantial expansion of the theory. Environmental regulations in particular can greatly limit the use one makes of his own property — for example, if it’s determined to contain wetlands or is home to an endangered species — and in 2005 the US Supreme Court acknowledged that
“government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.”
That’s the analysis that the Georgia Supreme Court employed. Mann had complied with the law, and had purchased a home outside the restricted area. If someone thereafter opened a day-care center or a skating rink, or the city put up a bus stop, within a thousand feet of his home, he would have to sell it and move out, or go to prison for ten years.
Keep in mind that this isn’t a silver bullet on sex offender residency restrictions. It’s not even clear if the law was invalidated in all cases or just in Mann’s. Mann had sought a declaratory judgment that the law was unconstitutional, and the decision grants that. But other language in the opinion, as well as the nature of the takings argument, suggests that a better reading is that, in this case, the economic burdens imposed by the law on Mann constituted a regulatory taking. That’s highlighted by the fact that, interestingly, Mann had been up to the state supreme court before on this very issue; on that occasion, the court had held that his being forced to relinquish his residence — he was living rent-free with his parents — didn’t constitute a substantial economic burden.
Still, the argument has substantial merit, and it’ll be interesting to see if anybody on the Ohio Supreme Court picks up on it in the upcoming decision in Hyle. In that case, the defendant had purchased his house in 1991, twelve years before the residency restriction was even enacted. He was told he had to move in 2005, and it would seem that he had every bit as good an argument on taking as Mann did.
These cases crop up with more frequency, and probably will keep doing so, given the politics of the situation: as the reaction to the Georgia decision described in this article shows, there’s no political downside to demanding ever more onerous restrictions. If you’ve got a case like this, the Georgia decision is a good place to start. You can find it here.
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| | Posted by Russ Bensing at 7:05 am
December 1st, 2007 at 11:09 am
Hey Russ: I’ll make sure my staff is aware of this issue and do those things necessary to perfect the record when the issue arises.
December 7th, 2007 at 11:01 am
People need to get a grip on this situation before it gets out of hand. The problem is that politicians try to create all these new laws inorder to make them self look better in they eyes of the public.
However as the public becomes more educated they will stop voting for law makers who support restrictions that drive sex offenders under bridges and underground where they can not be monitored.
I do agree with the 1,000 feet from a school. Thats not a bad Ideal but all they other laws are just a pathetic attempt by a politician to get more votes. Such as 1,000 feet of a school bus stop. lol Give me a break thats the same thing as saying you are banished to another country. Its unconstitutional and all it will do is drive them underground where they cant be monitored and make there lifes horrible to the point they are mad and there revenge will be to re-offend for spite.
These laws are supposed to protect children but its actualy making it worse.
Stephanie
December 7th, 2007 at 11:10 am
Hey stephanie,
I could not agree more. I have sympathy for sex offenders and child molesters. They are horrible people. We need to protect our children from these creeps.
However these new laws are getting out of hand and all it will do is make it harder for law enforcement officials to monitor them.
The 1,000 feet from a school is fine, but the bus stop thing is crazy. There is a bus stop no matter where you go virtualy making it that they cant live anywhere.
Im sorry but as much as I hate sex offenders that is wrong as hell. That is a law the should be banished. Also if an offender owns a house and then a day care opens up next door the guy that owns the house should be allowed to stay at his house. The people who put the day care there should not be so dumb and put a day care right next door to a sex offenders house.
I also agree politicians will use anything as leverage to keep there jobs. I think it would suit them best to come up with a solution to the problem instead of making the problem worse with the new idiot laws that will make it impossible to monitor them.
July 14th, 2008 at 2:25 pm
I think it’s ridiculous at all. What is to keep a predator from living 1001 feet from a school…is that safer? Come on, residency restrictions have been proven NOT TO WORK. Think about it this way - why are we telling them where they cannot live - when in all fact 95% never re-offend? Not all “sex offenders” are what you all are thinking and calling “pedophiles and rapists” - come on, wake up! My son is on it for online chat with a friend - he was 22, she was 15. Mind you I think it wasn’t nice chat, but by golly - they were doing it consensually and it takes 3 seconds or LESS to block anyone that you don’t want to hear from. Tinkling on the side of the road, being ACCUSED of touching someone inappropriately can put you on it even if you are innocent! “Children never lie” is another one - you can EASILY be put onto the registry because a kid says “he touched me here” and the parent goes bonkers and calls the cops and hey, they’re guilty until proven innocent and even if you prove innocent, your life is tarnished. I could go on and on, please please - know that residency restrictions do NOT WORK. If a bad person wants to get at someone, they’ll do it and won’t read the law first. Remember, 95% never reoffend - kids like my son www.changingthelaw.com or Ricky www.rickyslife.com are ruined because of these idiotic legislators trying to appear “tough on crime” yet they don’t consider “well, shoot, let’s give a judge some responsibility and let them look at the consensual behavior of the other party, were they really victimized, was it dangerous, was it violent”, etc. Nope, let’s stick em in prison for years for chatting - and make them register the rest of their life..for chat…come on. I agree in punishment for both young people in my sons case, she was doing it with several other young men - my son, only her. They should receive counseling, not the boy go to prison and register and the girl can continue because she’s a “minor”. ??? Ridiculous. I’ll shut up now