Banishment of Sex Offenders is Unfair and Ineffective

Jacob Sullum

11/28/2007 12:01:00 AM - Jacob Sullum

When Georgia's legislature drew up a list of places where sex offenders were not allowed to live, the majority leader of the state House said he hoped the restrictions would be so intolerable that sex offenders "will want to move to another state." By overturning those restrictions, the Georgia Supreme Court has created an opportunity to reconsider the mindless harsher-is-better approach they exemplified, which is neither fair as a matter of criminal justice nor sensible in terms of public safety.

Despite all the talk of protecting children, registered sex offenders are not synonymous with predatory criminals, let alone child molesters. In Georgia, they include many people who were guilty of nothing beyond consensual sex as teenagers.

Even if they have never demonstrated a propensity to abuse children, the 10,000 or so sex offenders covered by the registration requirement have to regularly report their whereabouts to local law enforcement officials, who in turn make the information publicly available. Failure to report triggers a prison sentence of at least 10 years.

Yet, until the Georgia Supreme Court intervened, sex offenders also had a strong incentive not to register since doing so enabled the government to enforce residence restrictions that made nearly all locations in urban areas off limits. The penalty for violating those restrictions was the same as the penalty for failing to register.

Georgia's law barred sex offenders from living within 1,000 feet of a school, church, daycare center or any other location where children might congregate, including parks, playgrounds, swimming pools, skating rinks and school bus stops. Even if a sex offender managed to find a legal place to live, he could be ordered to move again and again, depending on how his neighbors decided to use their property.

Anthony Mann, the registered sex offender who successfully challenged Georgia's law, bought a house in Clayton County with his wife in 2003. At the time, it was a legal location. But then a daycare center opened nearby, rendering it illegal.

"Under the terms of that statute," the state Supreme Court noted, "there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected." Concluding that the law "precludes appellant from having any reasonable investment-backed expectation in any property purchased as his private residence," the court unanimously ruled that it violated the Fifth Amendment's ban on uncompensated takings of private property.

Georgia's law also prevents Mann from working at the barbecue restaurant he co-owns since it's within 1,000 feet of a daycare center established after the business was opened. Because Mann did not present enough evidence of economic harm, the Georgia Supreme Court did not overturn the work restrictions, which have been challenged in federal court as well.

Constitutional issues aside, closing off employment opportunities for sex offenders, who already are handicapped by criminal records, is not exactly conducive to rehabilitation. Nor is forcing them to cluster in the boondocks, far from employers and treatment programs, or encouraging them to go underground.

In Iowa, which bars sex offenders from living within 2,000 feet of schools or daycare centers, police and prosecutors have concluded that such residence restrictions do not prevent recidivism since people can readily travel beyond their immediate neighborhoods, and that they discourage registration. After Iowa's law took effect, the number of sex offenders whose whereabouts were unknown more than doubled.

Last year, the chief sponsor of Iowa's law, state Sen. Jerry Behn (R-Boone), conceded that he may have gotten a bit carried away. "If you draw a map, pretty soon you can make it so no area in town is available to live in," he told The Atlanta Journal-Constitution. "It would have been better if we had put it at 1,000 feet."

But who can be bothered to look at a map when there's important grandstanding to be done? "The bottom line," Behn explained, "is it's all about protecting children." Or seeming to.