Few crimes deserve greater sanction than child sex offense. Such crimes betray all reasonable standards of moral conduct and they are (deservedly) punished harshly.
Yet in society's understandable rush to punish these criminals, the Constitution is being violated.
Residency restrictions, unconstitutional laws that bar sex offenders from living in a specified area, are on the rise. But why break the highest law for the lowest crime?
When government betrays the Constitution, no matter the reason, we jeopardize everyone's freedom.
Twenty-two states have prohibited sex offenders from living within a minimum distance of family facilities, such as schools and day-care centers. The distance ranges from 500 feet to five times that. And further restrictions are on the way.
In California, state legislation already bans a child sex offender from living within a quarter mile of a school. And a number of jurisdictions are contemplating banning residence by sex offenders altogether.
In larger cities and rural areas, such restrictions may not be overly burdensome. But in small towns, they can make residence for an ex-offender impossible.
The more crucial problem, though, is that residency restrictions clearly violate the constitutional limits on statutory law. Article I, Section 9 of the United States Constitution reads in part: "No bill, or attainder, or ex post facto law shall be passed." The Latin phrase "ex post facto" literally translates as "from after the fact." The Founding Fathers wisely realized that law must not be retroactive.
A free citizenry must know what the law permits and what it forbids; arbitrary punishment is unacceptable. If ex post facto legislation were permitted, no citizen would know if his present actions might be later ruled illegal. We owe our liberty a stronger safeguard than the whims of popular conscience.
Most state laws require their state to build schools and family facilities according to the population of a constituency. Therefore, inevitably a case arises when changes in demographics require construction of a school within the restricted range of a convicted child sex offender. We may feel no sympathy when an ex-convict is forced to sell his home because of it, but this practice is retroactive punishment.
Legislators have cleverly tried to sidestep the constitutionality of residency restrictions by inserting a clause specifying retroactive punishment into federal law. But in the traditional spirit of heavy-handed government, this attempt to steer around the spirit of the law is rather like solving racism with Jim Crow. Clever, but the wrong way to protect children.
Until now, the courts have been far too lax. In Doe v. Miller, the Eighth Circuit Court held that residency restrictions, as civil regulations designed to protect children, did not violate constitutional law. But that response barely addresses the argument.
Should society accept law that holds citizens in double jeopardy just because it does so explicitly? If a law, or clause, violates the Constitution, does it make it acceptable simply because a senator notes the unconstitutionality in the law itself? If so, of what value is the Bill of Rights at all?
In fact, residency restrictions are uniquely egregious violations of the ex post facto restriction. It is not only that they happen to fall afoul of the law; it is that they fly in the face of our law. Passing a law that mandates the flouting of the Constitution requires a special brand of legislative hubris.
So what can we do instead?
Society could fix the exact location of all future schools. But without infallible demographic predictions, legislators would find themselves building schools where they were not needed. No law can reasonably lay out exact future residency requirements; therefore no law can constitutionally impose residency restrictions.
Even if an offender is never actually forced to sell his home, democratic society cannot function when citizens are subject to arbitrary forced relocation.
There are other ways to protect our children; we might begin by increasing the number of police assigned to patrol near city schools. Such measures might be costly, but far less costly than violating due process.
We owe our Founding Fathers respect that transcends anger and haste.