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Hastings Constitutional Law Quarterly

Abstract

There are few criminals in our society that receive more contempt and deserve less sympathy than sex offenders. In the last ten years, twenty-seven states have passed residency restrictions, limiting where a sex offender may live within the state. In some situations, the statutes have effectively banished sex offenders from parts of these states. The United States Supreme Court has yet to review any of these residency restriction statutes. In order to maintain the integrity of our legal system and because state legislatures may not represent the interests of sex offenders fairly, it is imperative to consider the constitutionality of statutes aimed at sex offenders.

In 2006, Georgia passed a very strict statute prohibiting registered sex offenders from residing, working, or loitering within one thousand feet of any child care facility, church, school, or area where minors congregate. Registered sex offenders challenged the statute in federal district court, arguing the statute is unconstitutional in various respects. A recent Georgia Supreme Court case invalidated the living provision of the statute solely on a Fifth Amendment Takings theory. The federal case is still pending in district court.

Accordingly, this note uses Georgia's statute as a case study to discuss other constitutional concerns that state legislatures and courts should consider in the context of sex offender residency restrictions, including the Ex Post Facto Clause, the Eighth Amendment, Fourteenth Amendment Procedural Due Process, and the Free Exercise Clause. Lastly, the note analyzes potential issues under the Dormant Commerce Clause and other policy considerations to argue that, in practice, the use of such harsh residency restrictions might make for a more dangerous situation for children, sex offenders, and the rest of society.

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