Redlining Sex Offenders?
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Even if you believe that sex offender registry laws are constitutional...
...and even if you believe they are not only constitutional but also a good idea...
...and even if you believe that a law banning registered sex offenders from living, say, within 2,500 feet of a school or day care facility is both legal and wise...
...still, how can you possibly believe that using such restrictions to ban sex offenders from an entire city can be either moral or legal?
The unusual geography of Miami Beach, coupled with the wide variety and distribution of the relevant "hotspots," would actually redline the entire city; there would be nowhere that a registered sex offender could live.
Now I dislike sex offenders as much as the next non-pervert, but I simply do not not recognize the perogative of a local government to ban people from residing in their town.
With all due respect to Professor Gelfand, I don't think one needs the Dormant Commerce Clause to resolve this question. (SIDEBAR: The reason the Commerce Clause might be at issue is because whenever a lawyer hears "Within XX feet of a school," they leap to the famous case U.S. v. Lopez, 514 U.S. 549 (1995), which held the federal Gun-Free School Zones Act unconstitutional under the limits of the Commerce Clause.)
The right to live where one chooses should be deemed a fundamental right under the Fourteenth Amendment, similar to the right to travel freely within the country. That would mean that any law attempting to infringe freedom of residency would be subject to strict scrutiny (i.e., "narrowly tailored to a compelling government interest"). Such a broad residency ban as the Miami Beach redlining scheme would never survive a strict scrutiny challenge.
Prohibiting sex offenders from working near children seems reasonable, as does prohibiting them from caring for other people's children. But to erect a wall around an entire town with a giant "Keep Out" sign goes too far. Just because we want to protect our children doesn't mean we can stop protecting basic American freedoms in the process.
There are similar developments in Iowa City, Iowa. Crime & Federalism has three...good...posts on the subject. Read them all.
...and even if you believe they are not only constitutional but also a good idea...
...and even if you believe that a law banning registered sex offenders from living, say, within 2,500 feet of a school or day care facility is both legal and wise...
...still, how can you possibly believe that using such restrictions to ban sex offenders from an entire city can be either moral or legal?
[Miami Beach, Florida] Mayor David Dermer wants to prevent sex offenders from living within 2,500 feet, or a half-mile, of any school, school bus stop, day care center, park or playground on the 7.5-mile-long barrier island. Currently, sex offenders must stay 1,000 feet from those areas.
...
The City Commission unanimously passed the measure in a preliminary vote last week; the panel will consider it again May 18.
...
But Tulane University constitutional law professor M. David Gelfand said similar attempts to keep felons or others out of certain communities have run afoul of the Constitution's dormant Commerce Clause, regulating the free movement of goods and people.
The unusual geography of Miami Beach, coupled with the wide variety and distribution of the relevant "hotspots," would actually redline the entire city; there would be nowhere that a registered sex offender could live.
Now I dislike sex offenders as much as the next non-pervert, but I simply do not not recognize the perogative of a local government to ban people from residing in their town.
With all due respect to Professor Gelfand, I don't think one needs the Dormant Commerce Clause to resolve this question. (SIDEBAR: The reason the Commerce Clause might be at issue is because whenever a lawyer hears "Within XX feet of a school," they leap to the famous case U.S. v. Lopez, 514 U.S. 549 (1995), which held the federal Gun-Free School Zones Act unconstitutional under the limits of the Commerce Clause.)
The right to live where one chooses should be deemed a fundamental right under the Fourteenth Amendment, similar to the right to travel freely within the country. That would mean that any law attempting to infringe freedom of residency would be subject to strict scrutiny (i.e., "narrowly tailored to a compelling government interest"). Such a broad residency ban as the Miami Beach redlining scheme would never survive a strict scrutiny challenge.
Prohibiting sex offenders from working near children seems reasonable, as does prohibiting them from caring for other people's children. But to erect a wall around an entire town with a giant "Keep Out" sign goes too far. Just because we want to protect our children doesn't mean we can stop protecting basic American freedoms in the process.
There are similar developments in Iowa City, Iowa. Crime & Federalism has three...good...posts on the subject. Read them all.
Posted by KipEsquire on
1 May 2005
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