11th Circuit Rules that Alabama Sex Offender Restriction is Unconstitutional

In Henry v. Tuscaloosa, the Eleventh Circuit Court of Appeals found that an Alabama statute that prohibited sex offenders from residing with their own children was unconstitutional. The Court held that the statute’s blanket prohibition constituted an impermissible burden on an individual’s parental rights.

Background

The petitioner in this case had been convicted of one count of possessing child pornography in 2013. He was prosecuted in federal court and sentenced to serve 70 months in prison followed by 60 months of supervised release.

He was released from prison in 2018 and completed a sex offender treatment program. His supervised release term was later extended to 96 months as a result of the petitioner’s admissions that he had accessed pornography, including images of “young or teenage females.”

The petitioner is now married and has a three-year-old son. At issue in this case is an Alabama statute that prohibits him from living with his son.

Statute in Question

Under the Alabama Sex Offender Registration and Community Notification Act (ASCORCNA), a sex offender is prohibited from residing or having an overnight visit with any minor, including their own children, if the person “has been convicted of any sex offense involving a child.” This includes “offenses involving child pornography.”

“Residing” is defined as spending more than four hours a day at a location “on three consecutive days or on 10 or more aggregate days during a calendar month.”

An “overnight visit” occurs when an offender is in the same place as a minor “for any part of the period between the hours of 10:30 p.m. and 6:00 a.m.”

So, the statute prevents the petitioner from being at the same location as his son during these time frames. These restrictions are permanent as the statute provides no mechanism to apply for any sort of exemption or relief.

Circuit Court’s Ruling

First, it should be noted that the lower court held that the statute was unconstitutional as it applied to everyone. The Circuit Court limited that ruling and held that it was only unconstitutional as it applied to parents such as the petitioner here.

At the outset, the Court noted that the right of a parent to live with their children “is both deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”

The Court went on to find that the statute was not narrowly tailored to further Alabama’s compelling state interest in protecting children. It stressed that this is even more crucial where the statute infringes upon fundamental rights such as those of a parent.

The Court found that there was no evidence that child pornography offenders posed such an imminent danger to children that there was a need to permanently bar any such offender from ever residing with their child.

The Circuit Court suggested that the most effective way of furthering the state’s interest in protecting children is to maximize the number of children who can remain with fit parents while minimizing the number of those with unfit ones. This would require the statute to contain some sort of individualized relief for those offenders who can prove that they are deserving of residing with their children.

As a result, the Circuit Court held that the statute could not be enforced against the petitioner “and other similarly situated parents.”

The Court even suggested how the State of Alabama could rectify its statute: “Alabama can amend its statute to provide parents with a meaningful chance to show that they are fit despite their conviction.”