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Federal Judge Suspends Some Georgia Sex Offender Residency Restrictions

by Matthew T. Clarke

On June 29, 2006, e federal judge in Georgia granted class-action status and a temporary restraining order (TRO) suspending enforcement of some provisions of Georgias sex offender residency law (SORL), Ga.Code.Ann. § 42-15.

The SORL was passed in 2006 and included provisions prohibiting registered sex offenders (RSO) from living, working, or loitering within 1,000 feet of any area where minors congregate. This includes any public or private school bus stop. The effect of the law is to banish most sex offenders from their housing while prohibiting RSOs from living in, the vast majority of Georgia residences.

The law affects all Georgia RSOs. This is seen by many as draconian because some RSO are low-risk, non-violent offenders. For instance, Wendy Whitaker, 26, the lead plaintiff in a lawsuit challenging the school bus stop provision, was convicted of having consensual sex with her 15-year-old boyfriend when she was 17. She was sentenced to 5 years of probation, which she completed without incident. She also had no further charges following her probation. Despite her exemplary record, Whitaker was required to move from the 106-year-old bungalow she and her husband recently acquired in the tiny north Georgia village of Harlem when Georgia passed its first SORL.
The reason was that her house was within 1,000 feet of a child care center.

To comply with the SORL, Whitaker and her husband moved in with his brother in a cramped mobile home. Then Georgia amended the law to include school bus stops. Now Whitaker has been told she will have to move from the mobile home as well. She fears the SORL will force her to live separately from her husband. She also complains that the SORLs are additional punishment added after the fact to the sentence for the crime she committed.

I feel punished over and over again for something I did as a teenager, said Whitaker.

Some attorneys agree with Whitaker that the SORLs school bus stop
provision violates the ex post facto law prohibition in the U.S. Constitution.

It is a fundamental concept of justice: You dont add punishment to people after the fact, said Lisa Kung, director of the Southern Center for Human Rights, a nonprofit Atlanta-based law center that filed the lawsuit along with the American Civil Liberties Union of Georgia. Here we have people who had five years probation thats punishment. And suddenly wow 10 years later, theyre banished from Georgia.

And banishment it is, affecting almost all of the RSOs in Georgia. For instance, all 490 RSOs in suburban Atlanta DeKalb County would have to move. Ironically, none of the 490 are dangerous sexual predators, according to DeKalb County Sheriff Thomas F. Brown.

The fortunate thing for me is that there are no dangerous predators in DeKalb County, not ore, said Brown who explained that most of the RSOs in DeKalb County were men who as teenagers has sex with 14- or 15-year-olds.
Thats a good thing too because, as Brown notes, he doesnt have the resources to make sure that none of the 690 live within 1,000 feet of a school bus stop. Brown, who calls the law almost unenforceable, says that his office will issue warrants on anyone who doesnt comply with the statute should it take effect, but wont search for anyone who doesnt pose a threat to public safety.

Many see the see as an overreaction to a non-existent problem as only 14 of Georgias approximately 11,000 RSOs are classified as dangerous predators.
Indeed, one of the criticisms of the residency statute is that it may cause RSOs to drop out of sight rather than face draconian residency restrictions. That appears to be whet has happened in Iowa where residency restrictions that prevent RSOs from living within 2,000 feet of schools and parks were recently upheld by the Eighth Circuit court of appeals. Doe v. Miller, 405 F.3d 700 (8th Cir.), cert. denied, 326 S,Ct, 757 (2005). Sheriff Donald Zeller of Linn County, Iowa, notes that his office used to know where 90% of the countys sex offenders lived. Since passage of the residency restrictions, this has dropped to less than 50%.

The law is supposed to create a completely safe environment, said Zeller. It isnt working.

This will likely also happen in Georgia if the school bus stop provision stands.

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

So why do legislators vote for statutes that dont work and may even exacerbate the problem they were intended to fix? Savannah Democrat Regina Themes, the only legislator to vote against the Georgia bill, says the motivation is fear. Not fear of the sex offenders, fear of the political. consequences of not voting for any bill that gives sex offenders a hard time.

Nobody, Republican or Democrat, wanted to be seen as voting for child molestation, said Thomas. So, for appearances sake, they voted for a bill that likely makes the streets less safe for children while likely violating RSOss constitutional rights. Score one for political cynicism.

Fortunately, on June 27, 2006, Atlanta U.S. District Judge Clarence Cooper had the courage to stand up to the potential political fallout. He issued a TRO enjoining enforcement of the school bus stop provision in the SORL while noting that it was probably unconstitutional and had the perverse effect of putting the public in greater danger by making it harder to monitor the RSOs. The state has announced an immediate appeal to the Eleventh Circuit. See: Whitaker v. Perdue, U.S.D.C.-N.D.GA-Atlanta Div., Civil Action No. 4:06-CV-0l40-CC.

Additional sources: Lisa Kung; Southern Center for Human Rights Statement (6-26-06); Rome News-Tribune; Associated Press; Los Angles Times; Atlanta Journal-Constitution.

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Related legal case

Whitaker v. Perdue