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InvisibleLunarEclipse
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Constitutional rights of sex offenders vs. child safety
    #5841610 - 07/10/06 07:43 AM (17 years, 8 months ago)

Georgia sex-offender rules create stir
By Jenny Jarvie

Los Angeles Times

ATLANTA — Wendy Whitaker cannot live in her new home, a 106-year-old bungalow with rocking chairs on its front porch and an American flag flying from its white picket fence.

A month after Whitaker, 26, bought the house in Harlem, a small town in northeastern Georgia, police officers informed her that it is within 1,000 feet of a child-care center.

Whitaker is a registered sex offender: when she was 17, she had consensual sex with a 15-year-old boy.

For the past four months, Whitaker and her husband have lived in his brother's cramped mobile home because Georgia law restricts sex offenders from living near child-care centers. And now they may have to move again.

In April, Georgia Gov. Sonny Perdue signed a stricter law, which prohibits sex offenders from living within 1,000 feet of a school-bus stop. Anyone who does not comply faces a minimum of 10 years in prison.

Hailed by its sponsor as the "toughest law in the country," the act passed almost unanimously through Georgia's General Assembly. But now it seems destined to become a textbook example of the difficulty in imposing tougher penalties on sex offenders.

Not only do sheriffs say the bus-stop restriction would be almost impossible to enforce — Georgia has more than 10,000 sex offenders and 150,000 school-bus stops — but human-rights groups have raised the thorny issue of sex offenders' constitutional rights.

On Thursday, two days before the law came into effect, U.S. District Judge Clarence Cooper temporarily blocked the state from forcing sex offenders to move from homes near school-bus stops. The restraining order remains in effect until July 11, when a hearing will be held to debate the constitutionality of the law.

Attorneys from the Southern Center for Human Rights, a nonprofit law center that filed a federal lawsuit earlier this month, argue that the school-bus-stop provision would banish thousands of Georgia's sex offenders — many of whom, they say, pose little threat to society — from their homes.

Unlike many other states, Georgia does not distinguish between people convicted of violent sexual offenses, such as rape, and teenagers who had consensual sexual relations with minors.




"I feel punished over and over and over again for something I did as a teenager," said Whitaker, the main plaintiff in the suit, who has already served five years' probation and now fears she will be forced to live apart from her husband.

Belated punishment?

Whitaker's predicament, attorneys say, demonstrates that the bus-stop restriction violates the Constitution's ban on laws that are "ex post facto," meaning after the fact.

"It is a fundamental concept of justice: You don't add punishment to people after the fact," said Lisa Kung, director of the Southern Center for Human Rights. "Here we have many people who got five years' probation — that's punishment — and suddenly, wow, 10 years later, they're banished from Georgia."

A huge number of Georgia's sex offenders live within 1,000 feet of bus stops: in DeKalb County in suburban Atlanta, all 490 offenders would have to move; in Bibb County, about 85 miles south, all but three of the county's 230 sex offenders would have to move.

Already, some sex offenders have left Georgia. Eight have registered just across the state line in Russell County, Ala., since the law passed.

While legislation that restricts where sex offenders may live has been introduced in at least 15 states, Georgia — which already prohibits their living within 1,000 feet of schools, child-care centers and playgrounds — is the first state to prohibit living near school-bus stops.

Georgia does not make exceptions for those who already owned or rented homes, and it does not offer hardship exemptions based on old age, illness or disability. According to the Southern Center for Human Rights, about 25 people on the registry are in nursing homes.

Yet supporters of the law — which also imposes mandatory prison sentences of 25 years for rape and child molestation and requires sexual predators to be monitored by electronic tracking devices — insist that the school-bus-stop restriction is necessary.

"Yes, it's an inconvenience; some folks will have to move," said Rep. Jerry Keen, the House majority leader, who sponsored the legislation. "But if you weigh that argument against the overall impact, which is the safety of children, most folks would agree this is a good thing."

Keen said he decided to make it as difficult as possible for sex offenders to live in Georgia after 9-year-old Jessica Lunsford was raped and murdered in Florida by a registered sex offender who was subsequently arrested in Augusta, Ga.

Although legislators could not figure how to craft the residency restrictions to exempt low-level offenders without creating an exception for everyone, he said, he remained confident the law would stand.

"This is something that is taking root all over the country," he said. "People are putting a premium on the safety of kids."

Restrictions upheld

So far, legal efforts to challenge residency restrictions for sex offenders have been unsuccessful. In 2004, a federal judge ruled that Iowa's rule against offenders living within 2,000 feet of schools and child-care centers was unconstitutional because it retroactively imposed sanctions. But that decision was reversed by the Iowa Court of Appeals, which ruled in the name of public safety.

Yet critics of Georgia's new law say the bus-stop provision is not likely to make children any safer. In fact, many worry that some sex offenders will stop registering.

"The level of desperation is amazing," Kung said. "People are trying hard, but they literally have no place to go. Many people will just disappear off the grid."

Thomas Brown, the sheriff of DeKalb County, held a news conference last month to complain that the law is "almost unenforceable."

He says his office does not have the resources to ensure that all 490 sex offenders in the county move. If the bus-stop provision comes into effect, DeKalb will take warrants out on anyone who does not comply, but will not search for them unless they pose a threat to public safety.

But that, he said, is unlikely.

"The fortunate thing for me is there are no dangerous predators in DeKalb, not one," said Brown, explaining that most of the sex offenders in DeKalb were men who, while in their teens, had consensual sex with 14- or 15-year-old girls.

Wendy Whitaker — the woman who had sex with a 15-year-old when she was 17 — is now studying for an associate's degree in criminal justice. She has faith that the law will generate enough debate about sex offenders for her to be able to remain in Georgia.

"People hear 'sex offender' and they automatically think of a dirty old man prowling the streets," she said. "They don't think about people like me."


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OfflinePhred
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5841647 - 07/10/06 08:19 AM (17 years, 8 months ago)

Now that was an excellent article! I hope it generates lots of discussion.

This is one of those situations where easy answers aren't forthcoming. In the specific case of the woman who is the focus of the article, my take on it is that she shouldn't be lumped into the same category of sex offender as say a forty year old man who diddles eight year old children. In other words, there should be more gradations of "sex offender" to which different legislation applies.

But even for the most serious category of child molesters -- all of whom have served their time in prison as mandated by law, remember -- is it really fair to forbid them from living within a thousand feet of a school bus stop? Is that going too far?

I can see reasonable arguments to be made for each side of this issue and I look forward to reading them.




Phred


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OfflineRedstorm
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5841741 - 07/10/06 09:19 AM (17 years, 8 months ago)

I think this is an awful piece of legislation.

The state legislature is getting into the duties of the court, which is to punish those who committed a crime. While I don't feel bad for most sex offenders, they don't deserved to be punished after the fact. The sex offender registry is bad enough for them; they shouldn't have to maintain an arbitrary distance away from bus stops. Like it said in the article, in some areas it would be impossible to maintain that distance.

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InvisibleVeritas
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5841763 - 07/10/06 09:25 AM (17 years, 8 months ago)

Maybe Georgia could require them all to have a scarlet "M" (for molester) tattooed on their forehead. This would alert everyone they approach to their sex offender status, and eliminate the need for residence restrictions.

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OfflineBasilides
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5841814 - 07/10/06 09:43 AM (17 years, 8 months ago)

Where was all this 10, 20 years ago? Society is in a moral panic right now. Take a decade or two off the charts and Vladimir Putin's bellykiss wouldn't even make the back page.

If anything, banning "sex offenders", whoever they are, from bus stops, schools, churches, hospitals, etc. is little more than a sense of false security considering most sexual abuse cases are familial. I don't get the government's role in this either. Shouldn't communities be dealing with prospective problems in their communities instead of having the government throw some money at feel-good legislation?


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InvisibleAnnapurna1
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5841972 - 07/10/06 10:58 AM (17 years, 8 months ago)

if you ask me..this is not about protecting children from *dangerous* (unlike the woman in this case) sex offenders..but rather that the conspiracy whackos are prolly right this time and that its a test case for the new neocon fascism...

if sex offenders cannot be trusted to return to the community..then they should simply sentanced to life imprisonment or death in the first place..and not banned from georgia after they have already been punished...at this point in time..prison sentances still take into account the nature of the offence.. it will interesting to see how long that lasts...


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InvisibleFlop Johnson
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Re: Constitutional rights of sex offenders vs. child safety [Re: Basilides]
    #5841986 - 07/10/06 11:03 AM (17 years, 8 months ago)

I personally think it is pretty crappy law, but you also have to see the flipside to it which is - (hypothetically speaking) I wouldn't want my five-year old daughter to go to day care and play outside right across the street from a registered sex offender.

And while what happened to Wendy Whitaker sucks, most sex offenders aren't incarcerated over a two-year differential consenual sex, rather rape, sexual assualt, and indecency with a child.

Sexual Offenders are people too, but you can't deny the facts which is that most of them are likely to repeat their actions, and you can't blame a community for not wanting one of their own to be the next victim.

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InvisibleHank, FTW
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Re: Constitutional rights of sex offenders vs. child safety [Re: Annapurna1]
    #5841989 - 07/10/06 11:04 AM (17 years, 8 months ago)

They should infact have varying degrees of dangerousness, where this woman would be rated a 1. Have the scale go to 10 perhaps, and have a sliding scale of conditions they have to live by.


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Hell yeah I push the limits and hell yeah thats fucking cool, dope, bad ass and all that, I'm not changing shit, I'm cutting to to the chase and giving u shroom experience report. Real trippers aren't afraid to go beyond there comfort zone "

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OfflinePhred
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Re: Constitutional rights of sex offenders vs. child safety [Re: Redstorm]
    #5842021 - 07/10/06 11:14 AM (17 years, 8 months ago)

Redstorm writes:

Quote:

The state legislature is getting into the duties of the court, which is to punish those who committed a crime.




Actually, this is not the case. The legislature is NOT usurping the prerogatives of the courts. Legislators write the law, the court system enforces it.

Most states have penalties which continue once the malefactor has served his time in the prison system: permanent loss of voting privileges for felons, permanent loss of the right to own a firearm for violent felons, permanent disqualification from holding public office, and more.

One can argue the provisions mentioned in the article are too harsh or are improperly applied, but one cannot argue the legislature has no right to enact those provisions into law -- they have every right to do so. Similarly, affected parties have the right to challenge that legislation in the state appellate courts and ultimately (assuming SCOTUS agrees to consider the case) in front of the Supreme Court of the US. But until the legislation is reversed by an appellate court, it is the law of the land.






Phred


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InvisibleFlop Johnson
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Re: Constitutional rights of sex offenders vs. child safety [Re: Annapurna1]
    #5842039 - 07/10/06 11:17 AM (17 years, 8 months ago)

Quote:

Annapurna1 said:
if sex offenders cannot be trusted to return to the community..then they should simply sentanced to life imprisonment or death in the first place..




For someone who raped a child.... fine with me.

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Offlineyounikrawn
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Re: Constitutional rights of sex offenders vs. child safety [Re: Phred]
    #5842110 - 07/10/06 11:33 AM (17 years, 8 months ago)

I agree with alpharedecho. Consensual fornication between two minors is a far cry from rape/molestation of a child by an adult. The punishments for sex offenders should be separated into categories rather than have ALL sex offenders share the same punishments for different types of sex crimes.

But until that happens, the bus stop rule is unfair and poorly planned. How are they going to enforce it? And are they going to simply prevent sex offenders from moving to these locations or force existing sex offenders to move?


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OfflineRedstorm
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Re: Constitutional rights of sex offenders vs. child safety [Re: Phred]
    #5842126 - 07/10/06 11:37 AM (17 years, 8 months ago)

Does the court actually have the choice of whether or not to enforce this particular law? Like I said, it seems like it takes the power out of the courts' and juries hands.

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OfflinePhred
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Re: Constitutional rights of sex offenders vs. child safety [Re: Redstorm]
    #5842175 - 07/10/06 11:51 AM (17 years, 8 months ago)

Quote:

Does the court actually have the choice of whether or not to enforce this particular law?




There are hundreds of laws which are routinely ignored. They nonetheless exist, and if a citizen were to go to the police or to the District Attorney's office and request this particular law, it would have to be enforced.

Quote:

Like I said, it seems like it takes the power out of the courts' and juries hands.




No, it doesn't. The courts decide whether or not a defendant has broken the law they are charged with breaking, and decide what punishment shold be meted out for breaking that law. So the woman in question has already done her time for breaking the law about having sex with a minor. But now we are talking about a different law -- one which says a convicted sex offender may not reside within X distance of Y object. Two entirely different offenses.

As has been noted already, the problem in her specific case is that unlike many other states, Georgia does not distinguish between people convicted of violent sexual offenses, such as rape, and teenagers who had consensual sexual relations with minors. So she gets tarred by the same brush which was obviously aimed not at her or people like her, but at kiddy diddlers.

So let's disregard her case -- it's obvious what the solution should be to correct the harm she has been dealt. But what about kiddy diddlers themselves? Should legislation restricting where a convicted kiddy diddler may not live be so broad the end result is that he may live almost nowhere in an urban area of any size in Georgia?



Phred


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OfflineBasilides
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Re: Constitutional rights of sex offenders vs. child safety [Re: Flop Johnson]
    #5842206 - 07/10/06 12:01 PM (17 years, 8 months ago)

Is that true though, that sex offenders have the highest recidivism rate? I wonder how this data is compiled in comparison to other crimes. There are repeat offenders in most areas of criminality, whether physical assault, robbery, drunk driving, drugs, etc. It seems quite possible that because some of the crimes of sex offenders are quite horrific that it somehow becomes conflated with intractability.


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OfflineSeussA
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Re: Constitutional rights of sex offenders vs. child safety [Re: Redstorm]
    #5842375 - 07/10/06 01:04 PM (17 years, 8 months ago)

> While I don't feel bad for most sex offenders

This is the problem... we have lumped any "sex related crime" into the "sex offender" category. Life is easy if we categorize everything and pretend that there are no special cases and use "zero tollerance" to avoid having to think.

There is a huge difference between the guy that slept with an "underage girl" when they were both 15 and the 40 year old pervert that rapes a five year old child. However, in the eyes of the law, these two are the same.

> As has been noted already, the problem in her specific case is that unlike many other states, Georgia does not distinguish between people convicted of violent sexual offenses, such as rape, and teenagers who had consensual sexual relations with minors.

I don't follow state law that much, but I was under the opposite impression... that very few states differentiate between statutory rape where both were adolescents versus statutory rape where one was much older than the other.


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OfflinexDuckYouSuckerx
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5842393 - 07/10/06 01:10 PM (17 years, 8 months ago)

Awful legislation. If someone has been released from prison, they've "paid their debt" to society. If they commited acts in prison that would lead the prison officals to believe that they are still a danger to society, they should be kept in prison. It's public information if someone has been in prison, and what they were in prison for.

As Seuss said, cases like this are lumped in with the 50 year old guy who offers a 5 year old a shiny quarter for a sex act. I think that the age of concent needs to be lowered and I think that a persons potential threat should be evaluated upon their release from prison and the conditions applied then, much like other conditions of parole.


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Offlinewilshire
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5843906 - 07/10/06 07:23 PM (17 years, 8 months ago)

rant ahead:

a couple things:

1. if a person is so dangerous that they can't be allowed to live within 1000 feet of a child care center, they should still be in prison or at least on parole. if they aren't in prison or on parole, it isn't fair to tell them where they can and can't live.

2. this republic has generally made convicted felons second class citizens. in many states, convicted felons cannot vote. they cannot possess firearms. they may not serve on a jury or run for public office. in the private sector, many have difficulty finding work or even housing or credit. some states have avenues through which felons can eventually have their records cleared. others do not. it's not exactly a situation encouraging to rehabilitation. i believe that once you've served your time and completed any parole requirements, you should have full citizen's rights restored. after a number of years more, the conviction should be erased completely.

3. we also have some pretty ridiculous ideas when it comes to sex and the law. things have come a long way, but get minors involved and it's still a huge mess. a lot of people suffer terrible injustices because of it. i posted an article about this a few weeks ago.


what are 3 things the people of this country are hysterical about? sex, crime, and their kids. it is extremely rare for a child to be abducted and raped. most cases are people they know, without prior records. what gets the media's attention and the public in a fuss though? same goes with crime. people are paranoid.

and we're downright neurotic when it comes to sex, especially with young people involved. i don't know about you all, but i can think back to being 14 and wanting nothing more than to fuck some of the 14 year old girls i knew then. it didn't make me a dangerous pervert then, and being attracted to some 14 year old girls wouldn't make me a dangerous pervert now. at that age, i can think also of a number of friends' older sisters - adults - that i would have been rather happy to be "raped" by. i don't think i was alone in feeling that way.

i recall one incident a few summers ago when i was working as a painter. i was up on a ladder, without a shirt on, and my shorts were a little beat up. i definitely wasn't exposing myself or anything. you see more at the beach. anyway, the woman next door comes over and asks me if i have something i could wear. tells me she's got two daughters next door - 15 and 17. what did she honestly think she was protecting them from? people are just plain silly when it comes to that stuff - i imagine her dad would have had more pointed words for me.

young people, under no circumstances, should be having sex or sexual experiences of any kind. they shouldn't have to suffer through it until their at least in their 20's.... we make compromises and set the age at 18, and i guess we can't stop them from having sex with eachother, but let us catch an adult abetting a youth's sexual misfortunes and we'll brand them for life as a pervert and criminal!

the fact that people quite younger than 18 are sexual beings as much as those older than 18 is a fact a lot of adults are very uncomfortable with. there are a few places where trusting in the "collective wisdom of individual ignorance" has failed miserably. this is one of them.


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InvisibleGijith
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Re: Constitutional rights of sex offenders vs. child safety [Re: LunarEclipse]
    #5843982 - 07/10/06 07:40 PM (17 years, 8 months ago)

Just keep them locked up.


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OfflineCatalysis
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Re: Constitutional rights of sex offenders vs. child safety [Re: Phred]
    #5844028 - 07/10/06 07:49 PM (17 years, 8 months ago)

Quote:

But even for the most serious category of child molesters -- all of whom have served their time in prison as mandated by law, remember -- is it really fair to forbid them from living within a thousand feet of a school bus stop? Is that going too far?




It is not going far enough. Have you ever known someone who was seriously molested as a child? I think of it as "partial murder" because they destroy a huge piece of that person's life. No human should be allowed to do that to another and walk away.

Also, it is no coincidence that whenever you hear of a child raped and murdered, the culprit is always a repeatedly convicted rapist. This is why there is so much surviellence of rapists (not enough, I believe).

As for cases like the above article, obviously the punishment should fit the crime.

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InvisibleLunarEclipse
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Re: Constitutional rights of sex offenders vs. child safety [Re: Redstorm]
    #5844125 - 07/10/06 08:12 PM (17 years, 8 months ago)

In my opinion once a person has served their time including meeting all of the requirements of probation or parole, should be released and not have to face additional new punishment for crimes not committed. If we are to uphold the Constitution we should uphold it for all citizens, even if it is for a group as unpopular in society as sex offenders.


The sex offenders who are registered are the law abiding ones. But, there are thousands upon thousands of sex offenders in every state have failed to register even though required to do so under penalty of a felony. Where are they? Why don't the police at least try to find them in the interest of child safety? If you were a parent, should you be more worried of the offender who has registered and who you can find out where they live or the offenders who have failed to register and could be anywhere?

What about the kids of the sex offenders who have done absolutely nothing criminal yet will have to move when Dad or Mom move out of state?

Below is a blog I found online detailing the legal wranglings in Iowa. I found the part about the Right to Live Where You Want of particular interest.

Sex Offender Residency Restrictions and the Right to Live Where You Want
One of the most interesting public policy developments of the last few years has been the rise of land use restrictions that regulate who your neighbors are, as opposed to what your neighbors can do. Perhaps the most important example of this trend is the enactment, by at least twelve states, of sex offender residency restrictions.

Such laws generally prohibit registered sex offenders from residing within 1,000 or 2,000 feet of schools or day-care facilities. Some of them, however, such as Louisiana’s and Georgia’s are broader, and include places like video arcades, swimming pools, and any location “where minors congregate.”

The constitutionality of sex offender residency restrictions was recently tested in the 8th Circuit. See Doe v. Miller, 405 F.3d 700 (8th Cir. 2005). In Doe, the court reversed a district court opinion that had invalidated Iowa’s sex offender registry requirements. The court noted that the law prohibited sex offenders from living in many Iowa towns altogether, and rendered 77% of the state’s housing units off limits to convicted sex offenders. Most of the remaining 23% of Iowa's housing units consisted of rural farmhouses. Still, the court found no constitutional violation, rejecting, inter alia, ex post facto arguments, substantive due process claims, and procedural due process claims. The opinion was controversial, as five 8th Circuit judges voted to hear the case en banc.

To me, the most interesting part of the 8th Circuit’s opinion was its rejection of the plaintiffs’ claim that there is a “fundamental right to live where you want.” The court basically quoted Washington v. Glucksberg’s two-pronged test for new fundamental rights (is the right deeply rooted in the nation’s history and implicit in the concept of ordered liberty?), and said the plaintiffs failed to develop an argument for how that right satisfies those prongs. But is it really so hard to construct such an argument? While early American municipal ordinances sometimes confined members of certain ethnic groups to ghettos, these laws are rightly viewed today as embarrassments, though perhaps our revulsion has more to do with ethnicity than ghettoization as such. Still, setting aside banishment laws and particularized restraining orders, I can think of little historical precedent for states preventing citizens from living in homes they can afford to buy, let alone rendering entire cities off limits to undesirables. And it’s not far fetched to say that the right to live where one pleases (again, if one can afford to do so) is implicit in the concept of a free society, whatever that means. Government-mandated ghetto-ization is, after all, a hallmark of un-free societies. Unless we want to embrace a problematic “greater power (to incarcerate) includes the lesser power (to ghettoize)” tack, these laws should prompt serious reflection. I am not entirely convinced that this right counts as fundamental under the Glucksberg framework, but it seems to me the question is close enough to warrant some scholar’s careful historical research and perhaps more sustained attention from the nation’s judges.


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Anxiety is what you make it.

Edited by LunarEclipse (07/10/06 08:15 PM)

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by toxick

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