SCHR: Litigation Challenging HB 1059: Georgia's Sex Offender Law

Update on the Mann v. Dept of Corrections case

November 27, 2007

Hello friends,

We write with an update about the Mann case.  Here is some information for your consideration:

(1)   The Office of the Attorney General has confirmed that, as a result of the Mann case, the residency restrictions in Ga Code Ann § 42-1-15(a) are not enforceable against anyone on the registry.  This ruling applies to all residency restrictions, those enacted in 2002 as well as by HB 1059 in 2006. It is possible, however, that the State will ask the Supreme Court to reconsider the Mann decision in the next few days.  We will keep you posted on any developments. 

(2)   We’ve received reports that some law enforcement officials are nevertheless still enforcing the residency restriction law. This may be because they have not yet received word about the effect of the Mann decision.  It may take some time for this information to filter down through the chain of command.  In the meantime, it is very important for people on the registry to comply with the direction of law enforcement officers.

(3)   We have not seen the end of residency restrictions in Georgia.  It is likely that the legislature will pass new residency restrictions in the coming session. We hope that this time, the Legislature will listen to the experts and to law enforcement before passing a law.  Most everyone agrees that there are some people on the registry who should not live near schools or child care centers.  But we hope the Legislature has learned that a one-size-fits-all law – a law that treats everyone the same – is not the solution.  Nor is it right or legal to turn people on the registry into nomads by continually evicting them from their homes.  We will keep you posted on any legislative developments.

(4)   The prohibition against employment at or within 1,000 feet of a church, school, or child care center is still in place.  Unless/until it is reversed by the courts or changed by the legislature, people on the registry must comply with this provision.

(5)   Below we have included an editorial and an article on the Mann decision from today’s Atlanta Journal-Constitution.

As always, we will do our best to pass along additional information to you as we learn it.

All the best,

Sarah, Sara, Lisa, James, Gerry, Shareef and Mica

OUR OPINIONS: Common sense lives
State Supreme Court decision opens the door to more rational sex offender residency rules

By Maureen Downey
The Atlanta Journal-Constitution
Published on: 11/27/07

Jeffery York, 23, of Polk County can come out of the woods, where he's been sleeping in a camper without electricity.

In Perry, Ruby Anderson, 78, can stay in her home to care for her 82-year-old husband, Daniel, in the advanced throes of Alzheimer's disease.

York and Anderson are among 15,000 people on Georgia's bloated sex offender registry. Until last week, all 15,000 were subject to unsparing and unreasonable residency restrictions that banned them from living within 1,000 feet of day care centers, schools, churches and other places where children congregate. Violators faced a minimum 10-year prison sentence.

On Wednesday, the Georgia Supreme Court declared those residency rules unconstitutional, unanimously returning sanity to an area of law where emotion and pandering had overtaken common sense.

The case before the court involved Anthony Mann, Clayton County resident and convicted sex offender, who researched neighborhoods before he and his wife bought a house that complied with registry restrictions. But after a day care center opened nearby, Mann was ordered to move. He went to court instead and won.

According to the court, the state law was unconstitutional because it violated Fifth Amendment guarantees of property rights. As justices pointed out, offenders could do everything right to find a suitable home, only to find themselves breaking the law because a new church locates across the street or a school bus route changes.

The law was not limited to sex offenders coming onto the registry but applied retroactively to those already listed, evicting some people from homes they had dwelled in lawfully for years. It created a nightmare for families of sick or disabled offenders such as Daniel Anderson because the law included no exemption for age or infirmity or for offenders living in nursing homes, hospice or personal-care facilities.

While many Georgians may applaud efforts to rid the state of sex offenders, they'd probably be surprised to discover the low-risk offenses that land people on the registry and subject them to the residency limits. York, for example, was 17 when he was arrested for engaging in consensual oral sex with a 15-year-old. His high school behavior did not make him a dangerous predator for life; it made him a stupid teenager.

But as a result of the Legislature's overreaching, Georgia's sex-offender registry became a registry without reason, condemning York and others to the same harsh living restrictions as dangerous pedophiles. The Supreme Court's ruling has restored reason.

States do have an obligation to protect children, but sex-offender registries are more window dressing than effective prevention. Most molesters don't stalk bus stops or playgrounds; 80 percent to 90 percent of sex crimes against children are committed by a relative or family acquaintance.

—- Maureen Downey, for the editorial board

Officials: Residency ruling applies to all sex offenders
State attorney general's office says Supreme Court's decision to strike down restrictions covers everyone.

By BILL RANKIN
The Atlanta Journal-Constitution
Published on: 11/26/07

The state attorney general's office Monday said it believes the residency restrictions for all of the state's registered sex offenders are no longer valid in light of last week's ruling by the state Supreme Court.

In a unanimous decision, the court struck down the law prohibiting registered sex offenders from living within 1,000 feet of day care centers, schools, churches or other places children congregate. Because it deprives some offenders of their property rights, the law is unconstitutional, the court found.

Because the law addressed a challenge raised by a Clayton County homeowner who was told he had to move when a day care center was built within 1,000 feet of his house, some lawyers who examined the ruling questioned whether it applied to all 15,000 registered offenders — including those who rent or live in places for free.

The state attorney general's office believes that it does and will soon send out a letter stating its position, spokesman Russ Willard said. "Our office is currently advising our clients how to proceed now that the Georgia Supreme Court has struck down the sex offender residency restrictions," he said.

Georgia sheriffs are eager for guidance.

DeKalb County Sheriff Thomas Brown said his office believes the ruling applies to all sex offenders, regardless of residential status.

But Jefferson County Sheriff Charles Hutchins said he believes the law applies only to people with established residences.

If a sex offender was already living in a Jefferson County home and then a child care center is built nearby, the offender will not be asked to move, Lt. Robert Chalker said. "But if someone wants to move into a place within 1,000 feet of a church or a school, we would not allow that."

David Hudson, an Augusta lawyer who represents sheriffs in a class-action lawsuit brought against the sex-offender law in U.S. District Court in Atlanta, said he understands why there is some confusion about the court's ruling. But he believes the entire residency restriction provision was struck down.

Rep. Wendell Willard (R-Sandy Springs) said legislators will fix the residency requirement so it can be enforced. "It was the appropriate approach to be taken by the court if they were going to strike it down," Willard said. "We can address it this coming session."

Sarah Geraghty, a lawyer with the Southern Center for Human Rights, said some predatory sex offenders should not live near schools. But the law was used to evict hospice-care patients from nursing homes and forced people who engaged in consensual sex when they were teenagers to move from place to place, she said.

"We need to impose residency restrictions on certain offenders, but a one-size-fits-all law isn't the answer," Geraghty said.

Brown, the DeKalb sheriff, also has problems with the law. He said that when the Legislature reconvenes in January, he hopes lawmakers will pay more attention to law enforcement.

"It's not like we're soft on this issue, but we don't believe it should be so restrictive that it will force people underground into hiding as opposed to registering," Brown said. "We want to know where they are."