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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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