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DeVine Law opposes residence restrictions on sex offenders

Once a person convicted of a crime has been released from jail, prison or a half-way house while on probation or parole, that person should be allowed to live anywhere they can afford, subject only to restrictions concerning proximity to the specific victim(s) of their crime.

devine gamecock law

My interest in this subject was piqued by an excellent column by my fellow member of the bar, Bob Barr and his recent “Sex Offender Vagabond” column in the AJC in which he expertly analyzed Georgia’s law that restricts sex offenders from living within 1000 feet from schools and other places children congregate. Even before the 1000 feet applied to bus stops, about the only place those subject to the law could legally live in Georgia is an uninhabited barrier island in the Atlantic.

Barr also graciously got DeVine Law up to speed on Georgia Supreme Court rulings that have limited the scope of the Georgia statute, at least with respect to real estate owned by convicts, but I want to expand on Barr’s following conclusion:

“…passing legislation piling on endless restrictions and burdens on those who already have served prison terms and who remain subject to extensive monitoring, is neither responsible nor effective.”

The idea that these residency restrictions protect children is ridiculous. The best deterrent is a long prison sentence. I would have no problem with a life sentence of sexual offenses accompanied by assaults and batteries of high and aggravated natures.

Barr also rightly identifies a problem with lumping consensual teen sex with adult child molestation, but my objection to the residency restrictions is much broader than this flaw in the law.

Lastly, as a veteran criminal defense attorney that has tried and many sex offense cases, I would remind that these types of cases are among the ones that are most often falsely alleged, and so I do not favor any general, massive increase in penalties (unless the acts are corroborated by physical injuries).

DeVine Law welcomes comments and debate.

Mike DeVine’s Charlotte Observer and Minority Report columns

“One man with courage makes a majority.” – Andrew Jackson

Originally published @ Examiner.com, where all verification links may be accessed.

COMMENTS

  • bk

    On the one hand, once someone has served their sentence that should be the end of the story in general. But on the other hand, it seems like these folks have a great tendency to be repeat offenders.

    From what I heard this morning on Fox, most of these sex offender registry laws are way too broad, treating for example someone who calls some schoolkids over and exposes himself the same as a guy who was dying to take a leak and happened to get caught doing so behind some bushes where he thought no one could see him. Getting those laws tightened to true sex offenders would be a good start.

    Like you said, increased penalties could be the right answer, again if it’s for the worst offenders.

    I don’t think there’s an easy black and white answer, because people are always going to feel kids need more protection.

  • dave_in_atl

    Life in prison or the death penalty is the answer if we feel certain types of criminals cannot be rehabilitated, but these restrictions on people who have already served their time seem downright anti-american in so many ways.

    In fact sometimes I have to sit back and wonder how much of a difference is there between Nazi’s forcing the Jews (they were after all “in violation of the law” for being Jewish) into ghettos and these laws against sexual predators.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • Streiff

    is the very broad group of unrelated crimes which subject a person to the sex offender label.

    In Maryland if you’re caught with your girlfriend in the backseat of a car you can be charged with a sex offense which will get you on the sex offenders register for the rest of your life.

    The sex offenders these laws were designed for can’t be rehabilitated and should be locked away for life. Like so many other things these laws generate funding and then you have a sex crimes unit with full time prosecutors who have to find work to do to justify their existence.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    if they must have some residency requireiements, then obviously they should only apply prospectively to child molesters and no “statutory” consensual sex between minors, teens of similar age.

  • Leopard1996

    And I felt then that there was something a little wrong with constant registration, surveillence, and restrictions. I always believed that it should have been either life sentence or death penalty for sexually abusing a child. You can’t just correct one error of the law with another, totally unconstitutional (in my amateur analysis of the constitutional), patch. Fix the underlying law so that the punishment truly fits the crime.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • Scope

    The Libertarian candidate for the presidency in 2008. The same person who was/is an ACLU lawyer/supporter. The same Libertarian candidate who apparently has no moral bearings (unlike what I believed about you) who thought it was just good fun to, and I am going to be graphic, thought it was fine and dandy to “lick whipped cream off the breasts of those women at a party.” You have lost me as a supporter of you, mainly if you can site Bob Barr as a helper, but, more so if you feel that it is OK for sex offenders to live amongst the normal citizens. Most espically, I am disgusted with you for thinking that sex offenders should blend among the population, because they have paid their dues, even when sex offensees are the most likely to be recividivist. Oh man, did I have you, and your supposed Christianism pegged wrong. Today, the legs of a 7 year old were found in the trash. Years ago, the body of Jessie Lunsford, was found, and believed to be buried alive. Megan Kanka was murdered by a previously known sex offender. I could go on and on. It is the biggest shock to me that someone who claims to be the biggest Christian, can stand with first an ACLU lawyer, and thank him for giuding you. It shocks me that you would support anything that would put those sex offender, residivists, back right where they have the most opportunity to re-commit their crimes. I am so absolutely shocked by your position, mostly by your endorsement of the ACLU attorney, Bob Barr.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    1 – Barr, personally, has nothing to do with the substance of the matter at hand. I have known him very tangentially since approx 2002 when I joined the Federalist Society in Atlanta. He is an impressive constitutional legal scholar with whom I frequently disagree, but also agree with much of the time, esp on gun rights.

    He writes a column in the AJC every Monday. He wrote one recently on an issue I already had an opinion on, and since he cited a Ga case without the name, and since I had been gone from GA for 2 years, wrote and asked him fir the citation to save time.

    I am unaware of any personal scandal, but all I care about on this matter is the substance of the issue re the propriety of residency restrictions on ANY convict released from full incarceration.

    2 – Do I want for us non-child-molesters to “blend” with child-molesters? Of course not. I wish we didn’t have to blend with any sinners, much less convicted criminals. But unless we want to have life sentences for most all but petty crimes, or the death penalty, then we will always be blending with bad, risky people.

    3 – My experience as criminal defense lawyer whose main claim to fame is my defense of a falsely accused of child molestation public figure based on charges trumped up by an ex wife after the child was physically injured at school, and knowing the relative likelihood of false allegations of sex crimes is much greater than other assault type crimes, I think that on balance we would have many more innocent people in jail with draconian laws in this area.

    4 – From the standpoint of Liberty, if the government releases you and does not provide for you a place to live, then you should not be put in an impossible situation regarding residency. The Ga law is quite draconian, this causing there to spring up tent cities of the dispossessed. Think that’s good for recidivism? What better way to get a place to live again than molest again.

    5 – Recidivism though is not prevented by residency requirements. There simply is no case for GA’s draconian law.

    6 – Don’t see how this relates to my Christian faith or advocacy of Christian values.

    I would mention that in the Old Testament they provided sanctuary cities for certain criminals.

    So that if our government makes a condition of release from prison that you can’t live near any school bus stop, and hence anywhere in any town, then they should provide you a town.

    That is in the OT.

    7 – I was molested by a sports coach as a child.

    Scope, even if you do favor life in prison for FUTURE molesters, there is a concept in out law that was informed by the 10 Commandments and that is that there be no ex post facto laws or Bill of Attainders, and to put residency restrictions on those convicted before the passage of such a law, is wrong.

    Hope this helps restore 4 years of credibility vs one disagreement that I hope I have explained is not evidence that the Prince of Darkness has stolen my soul!

    In Christ

  • BlackConservative

    I believe that things such as consensual teenage sex should be removed, and on top of that, the whole makeup of how we are definig sex offenders should be redefined, for example, people peeing outside of the baseball park are put on the sex offenders list. While this is gross, it is certainly not a sex crime, and to define it as so puts a dent on the real sex offenders, such as rapists and child molesters. Furthermore, the real sex offenders as I have defined them should not have these laws put to them because they should not even be given taxpayer funds for a life sentence and the death penalty-these people should be taken out back with a shotgun and rolled into a common grave as their souls go to the special place in Hell that God reserves for monsters who hurt children. I must admit, the title got me to read the post, and of course as usual, I find nothing to disagree with. BC has internet again, and of course that means I’ll be around.

    Yours in Christ always

  • Scope

    I could no more agree to disown you, because I don’t agree with you on sex offenders blending into society. No human being should be forced to live in a tent, but, there have to be practical solutions to not allowing them to live near children. Even the monitoring laws seem to have broken down, as in the Jessica Lunsford case for example. I understand that some have been found guilty, who were not guilty. Those that have admitted their guilt are not defendable, and, should not enjoy the benefits of law abiding citizens, especially when it comes to children. I don’t know what the answer is, but, it must be something other than just opening the prison door, and letting them walk back out to possibly recommit.

    My biggest surprise was your support of Bob Barr. He very well may be a great constitutional attorney, but, as a part of the ACLU, he goes nowhere in convincing me that he is not a part of an organization that has done everything in it’s power to remove God from society. Is the ACLU not responsible for removing the 10 commandments from court houses where the displays have lived for years. Are they not responsible for wanting the word God removed from everything from the Pledge of Alligence, to our money, to any reference to God whereever it is found. Are they not responsible for not allowing towns to have Christmas and any other religious displays. Have they not gone to battle to stop any town from enforcing laws against the hiring and housing of illegal immigrants, the town I was born in, Hazleton, PA is a good example. I guess my christian references in my post above mostly come from supporting what I believe to be those waging the biggest war on Christianity, which has lead to major moral deline.

  • Merrie16

    the little girl all over the news, lived near almost 100 registered sex offenders and was killed and thrown in a landfill as though she were a piece of trash. I think it would have been “responsible” and “effective” if those who were convicted of crimes with children weren’t allowed to live that close to an elementary school.

  • JadedByPolitics

    either put them in jail for life or give them the death penalty. I do believe the 7 year old down in Florida where over 35 offenders lived in her apartment complex is proof that WE the People SUFFER when these predators are released. I will NEVER have sympathy for an ANIMAL who touches a child and if I were President of these United States that type of ANIMAL would be charred and the ashes thrown on the trashpile!

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    I can’t think of more than one or two matters on which I have agreed with the ACLU on since the 1940s! And I certainly am with you and against Barr on the matter of the First Amendment speech and religious rights. Alito is about correcting the O’Connor mistakes onthose issues now, and you and I are against Barr on those.

    I simply can’t deny though, that Barr is with us on many of those issue in some cases and many others as well. And that many lawyers become mebers of the ACLU as a matter of course even if they don’t agree with the ACLU on all issues and Barr does not.

    But, I don’t “support” Barr in any way politically or otherwise.

    more later and thanks for the nice reply friend

    and I am with you 100% on the issues you mention re religion rights etc

  • Merrie16

    This is the worst analogy I think I have ever heard. You’re comparing sex offenders who have actually committed real crimes under JUST laws and are potentially repeat offenders to the Jews who didn’t commit any crimes being forced into concentration camps under UNJUST laws? The laws surrounding sex offenses need tweaking as those who really haven’t committed true sex offenses are prosecuted, but there are REAL threats and they cannot be around children who are vulnerable. I would think that would be obvious.

  • Richard Mullins

    I’ve done that myself on a few occasions with some leftist columnists in the San Antonio Express-News. The point Barr makes seems to make sense(I glanced over it but it’s certainly not garbage) and it should not be taken lightly. I don’t really want sex offenders around either, but making super restrictions on where they can live isn’t going to the problem. Either lock them up or kill them. Those are the only 2 choices for sex offenders that can’t be rehabilitated.

  • http://andrightlyso.com/ civil_truth

    However, we’re dealing with a metaproblem, in particular 1) the very framework of our legal system and the historical process by which Anglo-Saxon jurisprudence developed (leading to our Constitutional jurisprudence) is not designed to deal with people like genuine sex offenders (not be confused with inadvertant exposure or back-seat sex among consenting teens), and our efforts to date to deal with them undermine the foundations of rule of law on which our nation is built; and 2) the politicians who write laws do not have the courage to stand up to mob hysteria.

    In light of these problems, the most reasonable stop gap policy is to decide that if you can’t rehabilitate, you need to keep people separated from society within the penal system. The current system of release and persecute is corrosive to our legal system.

    Perhaps I’ll be able to write more later.

  • E Pluribus Unum
  • dave_in_atl

    Both are laws where a certain group of people are singled out and forced to live apart from society as a whole. The only difference is you hate one group of people and not the other.

    What happens when we pass laws requiring anyone who speeds to live 1000 ft away from any moving vehicle? We can all agree that speeding is illegal, why not punish those who commit the crime? it is after all a JUST law. Where do you feel the line should be drawn?

  • Achance

    restrictions post-sentence. If it is the social consensus that “sex offenders” cannot truly be rehabilitated, then life sentences would seem appropriate. That said, as others have pointed out, the definitions of sex crimes are far too broad and, sadly, do not reflect current mores.

    There may have been a time that 18 was an appropriate age of consent, but it certainly isn’t today. When I graduated from high school in ’67, The boys’ brave stories notwithstanding, I’m confident that three quarters or more of my classmates were virgins and most were very naive sexually. Steaming up the car windows on a backroad and some, sometimes heavy, petting was the limit of sexual adventure for most. And it wasn’t fear of pregnancy, it was absolute TERROR about pregnancy that restrained most of us. Birth control pills were available but doctors wouldn’t prescribe them for a minor without parental consent and most girls weren’t willing to have that talk with their mother in those days. Once they were over 18, they could get them without their parents’ knowledge. If you lived in a small town, and many more of us did in those days, even buying condoms was not an easy matter. I never knew a girl to have one back then and boys took a considerable risk of their parents being told or even of the store refusing to sell to them AND telling their parents. Your father might have taken it OK if told you had been buying rubbers at the Mini-Mart, but it sure isn’t a discussion I’d have wanted to have with my mother. And all that is from the perspective of a Hell-raiser who played in a rock-and-roll band and had long hair, as that term had meaning then; my hair is actually longer now than it ever was when I was in high school – though there’s less of it. By the time I was sixteen I was regularly playing music out of town and even at colleges. Life could be a lot more adventurous sexually when you were away from home and especially on a college campus but it wasn’t that adventurous unless you had drugs.

    The increasingly ready availability of drugs and the pill by the late ’60s, early ’70s changed all that. When I started college in the fall of ’67 the girls couldn’t wear their gym clothes about campus, so they all wore a London Fog topcoat to an from the then-mandatory gym class. Two years later those same girls were walking around campus in hip-huggers an eighth of an inch north of pubic hair and wearing a see-through lace top with no bra. It changed that fast! And it changed most everywhere and for the vast majority of people. Except for the most conservative and the most devoutly religious, America went on a sexual binge that lasted at full tilt until AIDS put the brakes on in the mid-eighties.

    Many, maybe most, of the daughers of the women of that era were on the pill at mother’s insistance as soon as they began having their period. I raised a teenaged daughter as a single father in the ’80s and that is the second hardest thing I’ve ever done! I’ve been flirted with by many of her friends, propositioned by a couple of them, and came home late one night to find one of them in my bed. (No, I didn’t, but there was an interval with the devil on one shoulder and the angel on the other having a pretty good argument.) I resolved during that time that if I could get her to 21 without an unwanted child or a felony conviction (for either of us), I’d be a success at fatherhood.

    Fast forward to my step-kids who were teenagers in the ’90s; that was the hardest thing I’ve ever done, and on so many levels. For those of you who haven’t raised teenagers and who think that you can keep them from the influences of popular culture, you best be moving to a cabin in the wilderness with no neighbor in walking distance, no TV, no movie rental, no FM radio, home schooling, and no visitors, not even the ones they meet at church. I think my oldest stepson was born trying to get some girl in the sack and by middle school was well along to his goal of sleeping with all living females. I sat down with him to have “the talk” when he was twelve or so and he all but asked me what I wanted to know. And, yeah, I bought the condoms for him and really all I could do with him was admonish him to be careful. I was amazed at how sexualized both the girls that followed him and the friends of my stepdaugher were. What were those parents thinking when they let their daughers go out like that? Hookers working the corners in LA wear more clothes than those girls. I learned later that under those baggy jeans and sweatshirts that they left home wearing or in the backpack was where the hooker outfit was when they left home. Likewise, with the daughter all we could do was control the time she could be out, exercise some control over where she went, and admonish her to be careful. All three of them had tried and recreationally used drugs by high school and only the oldest really stayed away from drugs because he was an athlete. We got them to 21 without the felony or the unwanted child but it was a close-run thing.

    So, in thirty years it went from sex and drugs in the late teens in the ’60s, to high school in the ’80s, to middle school in the ’90s. Some significant percentage of middle-schoolers are having consensual sex. And yes I know all the stuff about how reasoned and informed that consent is, but whatever is happening it isn’t rape. Even the definitions of statutory rape and child molestation don’t reflect the reality of highly sexualized and sexually agressive teenagers. Sorry, but even in my day sex between a fifteen year old boy and a twenty-something teacher wouldn’t have been rape or abuse in his mind. It should be some sort of crime and it should be a bar to employment as a teacher, but it isn’t rape or molestation. And what about the 15 year old girl? Even by the ’80s, that song by The Police (I think), “Don’t Stand So Close” about a teenaged girl and a young male teacher resonated enough to get a lot of play time. Is it rape or molestation if the older man is outright propositioned by the sexually active and agressive sixteen or seventeen year old girl? It is something, don’t infer that I’m approving, but it isn’t rape or molestation. Maybe it is some sort of assault, but it isn’t something that should mark the man for life. Having been on the receiving end of a couple of those propositions, I can tell you that it is a damned if you do, damned if you don’t situation. If you don’t and she says you did, you’re guilty until proven innocent and it is damned hard to prove yourself innocent in today’s climate. Frankly, nobody, starting with her parents, is going to believe she was the agressor.

    We all know that molestation of young children is a heinous crime and in some instances warrants the most dire punishment. Unfortunately, like the zero-tolerance of weapons laws that have caused so much controversy of late, the laws relating to sexual offenses simply do not reflect present realities. There are lots of shades of gray and the laws try to make it all black and white and in do doing ruin many lives. I’m just glad my kids don’t need teenaged babysitters any more, don’t have teenaged friends any more, I don’t have subordinates with teenagers anymore, and I just hope nobody with a teenaged daughter moves in next door.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • Xasteius

    And for the record, homeschooling and Christian private schooling doesn’t mean the person going to be an angel.

    I dated a homeschooler from Alabama once who was in her early 20s (for the record, I’m in my mid-twenties). She’d been to nothing but homeschools and Christian private schools in her life, and yet she still dressed like a tramp on the first date (a tank top that showed most of her chest). We bumped into each other at CPAC and she gave the cold shoulder; I’m guessing because I didn’t put my hands all over her like the other guys (judging from her Facebook). I’ve also been propositioned in front of my Baptist Sunday school and in the classroom. Frankly, between your comments and my limited experience I’m considering thoughts of wiring myself on future dates (if I do date; I’m really burned out on the idea of marriage at this point due to my experience; Christians are such in title only and non-Christians and I would probably have too many religious/philosophicial difference) and my house in case any ‘incursions’ like yours do occur.

    Now before anyone labels me as a misogynist, I’ve a younger sister who has gone to public school and she does not dress like a whore (I’ve sorted the family laundry, and I’ve seen her Facebook). She conducts herself with decorum and a grace beyond her years (she’s a year younger than the Alabamian I dated).

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • Merrie16

    We need reasonable citizens and lawmakers who can distinguish between a just law and an unjust law, a moral act and an immoral act, and base their decisions accordingly and fairly. There are no gray areas here-predatory sex offenders need to serve lifetime sentences when caught so that they are forced to live apart from society, but they are let out of jail and serve less time than criminals caught with cocaine. So, because they are let back out into society and are usually repeat offenders, there needs to be restrictions on where they live. That is reasonable and not comprable to innocent civilians being forced into camps soley based on their religion/ethnicity/political beliefs, etc, which is not reasonable. I’m sure you can agree that sex offenders who prey on children should not be allowed easy access to probable victims.

    Also, it is not reasonable to pass a law requiring those who speed to stay away from a moving vehicle, so that would not be a just law. It doesn’t fit the crime committed. Insurance premiums go up for speeders who get tickets. That punishment fits the crime.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    from parents and social workers that continually tell children that they are so severely damaged that they can never recover. This to children that are not harmed physically! The parents and DSS workers seem to get some morbid satisfaction out of reminding the child that they have been “violated”.

    more later

  • Scope

    it is neighbors, family members, friends and etc. that form the childs mind, and what they perceive themselves to be. I remember learning in Psychology class that your character is formed by the time you are 8. And, at that time, Sociology classes did not teach that the masses were all about “social justice” or it’s all for the “Common good.” Man of man, how things have changed.

  • Scope

    it is neighbors, family members, friends and etc. that form the childs mind, and what they perceive themselves to be. I remember learning in Psychology class that your character is formed by the time you are 8. And, at that time, Sociology classes did not teach that the masses were all about “social justice” or it’s all for the “Common good.” Man of man, how things have changed.

  • http://andrightlyso.com/ civil_truth

    The drugs and sex (in substantial percentages) started in the college in the 60s, but it started hitting the high-schools by the late 60s (at least the drugs did, and I’m sure the sex followed close-on; the two have a way of going together) and was hitting the middle schools by some time in the 80s, if not earlier – though I am probably speaking from an urban-nearby suburban sperspective. And of course it’s even touching the elementary level for some time now.

    I remember sitting in a school assembly in ’69 and the principal lambasted some unnamed informant suspected to be a student who had spilled the beans to a local radio station about a drug bust involving high schoolers – the administration was desperately trying to sweep this under the carpet to preserve the schools “reputation”. By a few years later, I heard, the school had thrown in the towel because it was too pervasive to cover up anymore.

    The key problem as the drugs/sex age has decreased is that the kids are far more damaged because they have less personalilty development before these things hit them – and their emotional/behavior maturation process gets stopped or diverted if they get hooked.

    Teen’s are tough enough to raise, but when you have an arrested 11-year-old maturity in an 18-year-old body, that’s heap of trouble – and potentially life-threatening for the parents.

  • http://andrightlyso.com/ civil_truth

    You can raise kids in very similar environments, but they can turn out so differently.

    There’s no guarantees – but as parents we can do a lot in terms of how we educate them and what behaviors we assent to – and thereby at least give our kids a greater probability of getting to adulthood intact. Involved parents can make the difference compared with abdicating parents. Heck, even parents acting as adults rather than trying to be their kids’ buddies can make a huge difference.

    That’s our responsibility before God; the rest is their wiring and the choices they make. No guarantees, and no returns/do-overs.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    They overstate the damage done by the vast majority of child molestation cases which do not involve significant or even any physical harm. Even if they are physically harmed it is wrong to tell a child that they can’t get better. Many children aren’t affected all that much from the actual crime, but then have it drummed into their head that they are damaged goods.

    more later