Thursday, November 29, 2007

Property Rights As a Limit to Governing through Crime

In its recent opinion striking down aspects of Georgia's harsh law forbidding registered sex offenders from living within 1,000 feet of a school, church, or any one of a number of enumerated functions thought to attract children, the Georgia Supreme Court did not invoke the prohibition on cruel and unusual punishments, or even due process. Instead, the opinion by Justice Carol Hunstein emphasized property rights, citing the Supreme Court's recent regulatory takings case and suggesting that the Georgia law creates just such a taking.

The opinion in MANN V. DEPARTMENT OF CORRECTIONS (S07A1043) held that Mann has a substantial property interest in the home he had purchased with his wife. Since the home complied with the 1,000 foot rule when they purchases it, Mann had sought to comply with the law. By criminalizing him for subsequent decisions by others to locate child oriented functions nearby, the law made Mann subject to the whims of his neighbors and perhaps deliberate efforts to run him out of the area (noting that addresses are available through the registry). In terms that remind us why property rights are part of the American vision of equality, Justice Hunstein wrote:

All of society benefits from the protection of minors, yet registered sex offenders alone bear the burden of the particular type of protection provided by the residency restriction in OCGA § 42-1-15 (a). No burden is placed on third parties to aid in providing

Justice Hunstein's opinion is a reminder to those of us looking for a way out of the culture of fear and control that resources for resistance and change lie to the right as well as the left.

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