Of Counsel

Legal Notes on Georgia and The South

A Little Slow on the Draw

Posted by Maggie on November 27, 2007

Go figure, the day I leave town and take a vacation from the blog, the Georgia Supreme Court makes headlines by striking down the state’s sex offender residency restrictions.  I spent several days without access to pdf files, with no way to read the opinion. By the time I got back and started reading the news again, law enforcement had decided that it didn’t matter that the law was unconstitutional and they were going to enforce it anyway.

The Attorney General has thankfully clarified the issue, telling police that unconstitutional does in fact mean unconstitutional, no matter the person’s circumstances. However, it’s not the end. In this article, a Republican congressman from Sandy Springs says the legislature will re-draft. Based on my reading, it seems all they’ll have to do is allow grandfathering of sorts, that offenders can stay where they are if something new shows up after a certain date. I’m betting that’s the route they’ll take, though it completely ignores the bigger issue.

For those who haven’t read the opinion, the Court struck down the law based on the takings clause of the Constitution. The takings clause doesn’t allow the government to take your property without compensating you for it fairly. The law required sex offenders to move from their residences if a new day care or church or whatever showed up, meaning they’d never be guaranteed to stay anywhere. For property owners, it’s a taking. An easy but bad redraft would just say that offenders could stay as long as the residence met the requirements as of a certain date, so if something new came they could stay.

Here’s the problem. For those who should be kept away from children, there’s no protection. For those who have no reason to be kept away, it’s a huge burden. This op-ed puts it well.  Sex offenses are not one-size-fits-all.  And the mob mentality that seems to magically appear when sex offenses are on the table is ignorant to the statistics.  Sex offenses are less common.  Offenders are less likely to re-offend.  Many offenders were involved in consensual acts.  Others preyed only on family members.  The sexual crime against a stranger that you see on all those procedural dramas happens much more rarely and are much more likely to be reported.

The Court’s opinion is a step in the right direction, but it’s not the end of the battle.  But happily we’re on the forefront of a major issue that needs to be addressed.

3 Responses to “A Little Slow on the Draw”

  1. joe said

    Some bloggers seemed excited hopeful that the takings argument would be one that would get US Supreme Court attention; I was glad to see the law struck down but your notion that they’ll just re-draft it to grandfather in current residences makes sense to me. And you’re exactly right, it completely ignores the bigger issue.

    I gathered a some good links here arguing that these laws DO NOT WORK and act only siphon resources away from measures that might honestly and effectively address the very real problems of sexual dysfunction, abuse and deviance.

    I hope maybe you’ll check it out.

  2. Maggie said

    As a regular blawg surfer, the amount of information out there is overwhelming. It’s starting to make a dent in the mainstream media and get addressed in a more informed way.

    I doubt the USSC will take up this case on cert. Many other states have different restrictions from Georgia and the Court is unlikely to step in to a state issue until there’s some real urgency and potential splits between state/federal approaches. There’s also a pending federal suit that addresses additional claims besides the takings claim (I haven’t heard yet whether the federal suit will still be a go). But every little bit helps.

    Thanks a bunch for the links.

  3. […] by Maggie on December 14, 2007 Last month, the Georgia Supreme Court struck down the sex-offender residency restrictions. Whatever balls they may have had at the time have apparently shrunk, because yesterday they made a […]

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