Bob Barr

Tough Stance on Sex Offenders Needs Adjustments

The Atlanta Journal-Constitution

July 5, 2006

Discussing laws regarding sex crimes against children is always difficult. Those convicted of violating such laws are — and ought to be — considered the lowest of the low.

Yet, we are a nation that still purports to abide by a system of government in which the Bill of Rights prevails. It is that collection of rights, codified in the first 10 amendments to our Constitution, that tempers the unbridled zeal with which the majority in our society might otherwise dispose of sex felons.

Unfortunately, from time to time, that careful balance between the responsibility inherent in government to protect citizens against criminal acts and the rights of those accused or convicted of committing those acts is knocked askew. This appears to have happened in the situation now confronting us in implementing the recent changes to Georgia's laws regarding convicted sexual offenders.

Over the years our legislators have passed laws dealing very harshly with those convicted of sex offenses against minors – lengthy prison sentences and strict monitoring of those on parole, for example. I, and probably the vast majority of Georgians, support such tough measures as reasonably necessary to protect the most vulnerable in our midst – small children – from the deep and abiding harm to which they are subject if victimized by sexual predators. These are viscerally emotional matters.

Still, we must never forget that ours is a system designed to function based on carefully crafted laws and procedures — founded not on raw human emotion, but on fundamental constitutional principles of due process, equal protection, and so much more. Our Founding Fathers — those brilliant students of history and of the human condition — understood this well. They crafted for us a clear guide with which to strike that balance. It is called the Bill of Rights, and we allow emotion or expediency to trump it only at great peril to the very foundations of our republic.

It is at precisely those times in which government officials, armed with the best of motives and with broad support from the public at large, allow emotion to cloud constitutional understanding, that the prescience of our Founding Fathers becomes most evident and of highest value.

Thus it is with the law enacted earlier this year that places new and Draconian restrictions on where persons convicted of sex offenses against minors can live, work, worship or be educated. The law went into effect July 1, except for those provisions found, at least temporarily, to be constitutionally problematic by federal judge Clarence Cooper and at least two Superior Court judges.

The power granted the government over convicted sex offenders under this law is truly vast. In prohibiting a convicted offender from living within 1,000 feet of a school bus stop, for example, the law essentially empowers local school officials to decide where those persons can live — or not live — in their county.

In some highly populated counties in the metro Atlanta area an entire class of persons – granted, a disfavored class — would be unable to live in the county at all without risk of summary arrest for even inadvertently running afoul of the bus-stop prohibition.

Whether such absolute power over the future of persons properly subject to judicial limitations because of prior convictions is necessary or even whether it would reasonably make children less likely to be subject to sex crimes in the future, is an open question.

What does seem clear at this point, however, in light of the findings by both federal and state judges that the reach of the law in limiting where a person might live, and forcing them to give up homes, jobs, education and the practice of their religion, is that Georgia's law needs to be rethought. Taking a new look at Georgia's law, perhaps in a special session, to address the constitutional infirmities already identified by the courts, would allow our legislators to also consider other, more reasonable and more appropriate ways to address what they apparently perceived as weaknesses in Georgia's already-tough laws on child-sex offenders

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.