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November 21, 2007

Georgia Supreme Court strikes down sex offender residency restrictions (on a takings theory)!

As detailed in this AP report, "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate."  Though the outcome itself is noteworthy, the legal theory behind the ruling in Mann v. Dept. of Corrections (available here) is particularly interesting and could garner US Supreme Court attention: the court finds a takings problem with the law.  Here is a key paragraph from the ruling:

Looking to the magnitude and character of the burden OCGA § 42-1- 15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, Lingle, supra, 544 U.S. at 542; see also Mann, supra, we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be "spread among taxpayers through the payment of compensation." Lingle, supra at 543. We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation.  Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction.

November 21, 2007 at 01:06 PM | Permalink


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From a quick skim, the analysis is dubious. The Supreme Court's Takings jurisprudence is less than fully coherent, but they've said repeatedly that there's a distinction between takings and valid exercises of "police power." Civil and criminal forfeitures come to mind... also, more basically, every person who is sent to prison is unable to make use of his home in much the same way that the appellant in this case is.

Between this and Genarlow Wilson's case, I wonder about the Georgia Supreme Court...

It could be that the Supreme Court is wrong on these constitutional issues and the Ga. Supreme Court is right (Prof. Berman raised the interesting question a while back about whether there should be more life in the Eighth Amendment than Supreme Court precedent currently gives it), but the latter should be more forthright about what it is doing.

Posted by: | Nov 21, 2007 4:07:34 PM

Well, the whole idea that someone is supposedly free, but can be forced to move at any time, is more than a little ludicrous. A court could strike this down on any of a number of grounds, if it were so inclined. For example, does the Ninth Amendment give people the right to live in their homes? A court could rule either way on the question. It seems like on this type of issue, what happens is that pressure builds for a court to throw something out, and if the pressure is strong enough, it does. In this case, with plenty of police and prosecutors saying the restrictions are a problem, the pressure must be pretty strong -- so the court acted.

Posted by: William Jockusch | Nov 22, 2007 11:03:17 AM

No one knows what the Ninth Amendment means. According to Bork, it's an "ink blot." According to Prof. Lash, it's a federalism-reinforcing provision. According to Justice Goldberg, it's a better source for a right to privacy than Justice Douglas's penumbras and emanations.

According to other people, it's a license to argue that anything you don't like must therefore be unconstitutional.

Well, the whole idea that someone is supposedly free, but can be forced to move at any time, is more than a little ludicrous.

What do you mean by "supposedly free"? I think most people whould acknowledge that being forced to register as a sex offender is a bit more like being paroled than being "free." I don't think you'd argue that the government must either incarcerate people or leave them entirely alone...

Posted by: | Nov 23, 2007 5:27:30 PM

I am a registered sex offender in the State of Florida. That fact, however, has no bearing on my recitation of the following FACTS:

1) No study has ever proven that sex offender residency requirements have any effect on recidivism. Fact is, if a sex offender intends to re-offend he or she will travel that 1001 feet to do so.

2) Depending on whose numbers you use, a child is 25 to 250 times more likely to be sexually abused by his or her OWN PARENTS than a previously convicted sex offender. Fact is, parents pose the greatest threat. Shall we force them to live 1000 feet away from their children?

3) The U.S. Justice Department reports that sex offenders recidivate with a new conviction for a sex crime at a rate of 3.5%. Child molesters and crimes involving incest have an even lower rate of recidivism. Look it up.

4) If you think the exhaustive study conducted by the Justice Department's Bureau of Statistics is without merit, look up the Rutgers University study that generated virtually the same statistics.

5) Fact is, this nation's bizarre obsession with sex offenders these last 10 years is a function of media sensationalism. J.Q. Public never gets the real facts about this issue.

Posted by: Brian Pratt | Nov 27, 2007 5:18:03 PM

As municipalities, and states pass increasing distances in residence restrictions on sex offenders, I'm surprised no ones ever sued on the grounds that this puts a smaller group of children at risk.

This is, as sex offenders are forced to move further away from parks, schools, day care centers, etc... They are being forced to reside in tighter and tighter areas, concentrating the number of sex offenders in a smaller geographic area.

Subsequently increasing the number of sex offenders per children in a specific area, and potentially putting those children living in that area at risk.

While I do not have the exact numbers to support my belief, I believe that the poorer cities, or poor areas within larger cities would be the ones that would be forced to burden the risk due to the lack of services, or infrastructure.

The increased the risk to poor families due to this scenario should be tested in court

Posted by: Mark | Apr 10, 2010 8:28:20 PM

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