A Stitch in Haste

That was fast:

A federal judge on Wednesday blocked enforcement of Proposition 83, the ballot measure passed overwhelmingly by voters a day earlier and meant to crack down on sex offenders, including limiting where they may live.

U.S. District Judge Susan Illston, ruling on a lawsuit filed early Wednesday, said the measure "is punitive by design and effect" and unconstitutional.

Well yes of course it's "punitive by design" — it's a sex offender law. That's what sex offender laws do, and they are not summarily unconstitutional because of it.

The question is whether a constitutional right is violated. I say yes: Residency restrictions are objectively irrational facially and are patently absurd when they are extended beyond schools to places like parks, or to those convicted of sex crimes not involving children (both of which apply to Prop 83). Lifetime GPS monitoring is highly problematic as an incursion upon one's liberty interest, and relaxing the rules for involuntary commitment proceedings (which are not considered "punishment," incidentally) can still run afoul of procedural due process guarantees if abused.

I might follow up if I can get a copy of the decision.

---

I'm lifting my comments on Prop 87 out of my earlier election post and republishing it here:

ITEM: Now that the anti-gay "backlash" has played itself out, those who wish to constitutionalize the War on The Others Who Are Ruining America™ must look elsewhere. And they didn't have to look far:

Some sex offenders would serve longer prison and parole terms. Sex offenders released from prison would be monitored with Global Positioning System (GPS) devices while on parole and for life after discharge from state supervision. Registered sex offenders would not be allowed to reside within 2,000 feet of a school or park. More sex offenders would be eligible for commitment by the courts to state mental health facilities for treatment under the Sexually Violent Predator (SVP) program.

That was a summary of California's Proposition 83, which passed by a better than 70-30 margin.

I don't think state penal codes should be subject to ballot initiatives, for the same reason as bigot amendments: majorities should simply not be allowed to tyrannize insular and unpopular minorities. Expanding rights — as the various "anti-Kelo" amendments are attempting to do — are one thing; restricting rights is something else entirely.

In any case, expect many more of these new "get out the vote" anti-sex-offender amendments in future elections — by both parties. Also expect the courts, eventually, to start deciding where the line between "it's all about the children" ends and "irrational due process violation" begins.

(Via Catallarchy. More thoughts at SLP.)