Living on the edge: recent developments in Georgia sex-offender legislation.

• Author: Xenakis, Nick

INTRODUCTION

"My intent personally is to make it so onerous on those that are convicted of these offenses ... they will want to move to another state." (1) These are the words of Georgia State Representative Jerry Keen, the man largely responsible for what is considered to be the most stringent sex-offender law in the country. The words themselves aren't remarkable; hyperbole is common in politics. What is remarkable, however, is that Keen's fantasy has become a reality.

In February of 2005, nine-year-old Floridian Jessica Lunsford was brutally raped and murdered by Jim Couey, a man thirty-five years her senior. (2) Couey was ultimately arrested in Augusta, Georgia, and Representative Keen was able to use the media attention as a catalyst for passing HB 1059, a sex-offender residency law that prohibited registered offenders from living within one thousand feet of schools, child-care facilities, and school bus stops. (3) It was the bus-stop provision that would effectively expel every sex offender from the Peach State. The bill passed easily with a vote of 144 to 27 on February 2, 2006, and since then a cloud of controversy has continued to loom over the legislation. (4)

Debate surrounding sex-offender residency laws is nothing new. Come election time, state legislatures are always trying to push the limits to show they can be "tough on crime." (5) Usually, the legislatures push and the courts push back. (6) It's an all too familiar political drama. In Georgia, however, the courts have started to give way, partially upholding the constitutionality of the new law's expanded residency requirements. This Note will argue that the events in Georgia are interesting for two reasons. First, the manner in which HB 1059 withstood its constitutional challenge may portend a new generation of sex-offender residency requirements. Specifically, the law is indicative of how the renter-homeowner distinction is being used to enforce constitutional takings that would otherwise be prohibited. Second, while the law might be novel in its expanse, there is nothing new about its enforcement issues they are the same problems that have long plagued preceding generations of sex-offender residency laws. In Georgia's not-too-distant future, the intersection of these two trends will show that stricter residency laws are not necessarily better residency laws.

1. HISTORY OF HB 1059

   In March of 2006, just a year after Jessica's death, Governor Sonny Perdue of Georgia signed into law HB 1059, a bill which made it illegal for sex offenders to live within one thousand feet of practically any site where children gather. (7) HB 1059 became Official Code of Georgia (OCGA) [section] 42-1-15. Of the law's five subsections, it is section (a) that distinguishes this new legislation from its predecessors. Section (a) stipulates: "No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate." (8) The crux of the issue is the phrase "where minors congregate."

   The statute declares that an "'[a]rea where minors congregate' shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools." (9) It also clarifies that "'[s]chool bus stop' means a school bus stop as designated by local school boards of education or by a private school." (10) As civil rights groups--most notably the Southern Center for Human Rights--pointed out, given the sheer number of bus stops and the fact that the stops themselves change frequently, the law effectively made it impossible for sex offenders to live anywhere in Georgia. (11) Civil rights groups, however, were not alone in noting the dramatic effects of the new law. As the Forsyth County News reported, "nearly every residential area of the county is off-limits for sex offenders, officials confirmed. There are at least 1200 school bus stops in Forsyth County, school officials said." (12)

2. CONSTITUTIONAL CHALLENGE

   A common argument against expansive residency requirements for convicted sex offenders is that the requirements will result in unconstitutional takings, since there is no compensation as required by the due...