The 11th Circuit U.S. Court of Appeals conducted a rare en banc hearing Tuesday to examine Alabama's sex offender residency restrictions, which prevent certain offenders from living with any minor, including their own children. The constitutional challenge comes as Alabama simultaneously pursues aggressive new legislation targeting child sex crimes.
The case centers on Bruce Henry, a Tuscaloosa County resident who pleaded guilty in 2013 to federal child pornography possession. Henry served 18 months in prison and completed sex offender treatment, with no subsequent offenses. After marrying and fathering a son in 2021, Alabama law prohibited him from living with or staying overnight with any minor, including his own child.
Henry filed suit in 2021, arguing the law violates his fundamental right to parental care and family integrity under the 14th Amendment. The restriction forces family separation without any individualized risk assessment, according to his challenge.
U.S. District Judge R. Austin Huffaker Jr. sided with Henry in January 2024, declaring the provision facially unconstitutional. A three-judge panel of the 11th Circuit affirmed that ruling in April 2025, prompting Alabama to seek en banc review before the full appeals court.
The legal battle unfolds against the backdrop of Alabama's recent passage of House Bill 41, the "Child Predator Death Penalty Act," which the state Legislature approved overwhelmingly on Feb. 5. The bill, now awaiting Governor Kay Ivey's signature, makes certain non-homicide sexual crimes against children under 12 punishable by death.
HB41 mirrors similar laws in Florida, Tennessee and other states designed to challenge the Supreme Court's 2008 decision in *Kennedy v. Louisiana*, which held that capital punishment for non-homicide crimes against children violates the Eighth Amendment's prohibition on cruel and unusual punishment.
During Tuesday's hearing in Atlanta, Alabama Deputy Solicitor General Robert Overing urged the full court to reverse the lower court decisions. Overing argued that judges should view Henry's case through a narrow, historically specific lens rather than considering broad parental rights.
"We have to be more granular, because the right to care, custody and control is way too general to answer difficult, controversial questions of constitutional law," Overing argued. He contended that courts must define the right more precisely as "the right of a person convicted of a child sex or child pornography offense to live with a child."
Once framed that way, Overing maintained, historical precedent does not support treating such a right as fundamental. He cited old family law cases discussing parents who committed "gross misconduct" to support his position.
The judges pressed Overing repeatedly on the potential scope of his legal theory. Several asked whether states could strip or severely limit parental rights for any felony conviction, or for conduct like adultery under his framework.
The constitutional questions at stake extend beyond Henry's specific circumstances. The case tests the balance between states' authority to regulate sex offenders and constitutional protections for family relationships.
Alabama's residency restrictions represent part of a broader national trend toward stricter sex offender regulations. However, courts have increasingly scrutinized such laws when they impose blanket restrictions without considering individual circumstances or rehabilitation.
The 14th Amendment's Due Process Clause protects fundamental rights to family relationships and parental care. When laws burden these rights, courts typically apply strict scrutiny, requiring the government to show the restrictions serve compelling interests and use the least restrictive means possible.
Henry's case highlights tensions between public safety concerns and constitutional rights. While states have legitimate interests in protecting children from sexual predators, blanket restrictions that separate rehabilitated offenders from their own children raise significant constitutional questions.
The timing of the en banc hearing alongside Alabama's death penalty legislation underscores the state's aggressive approach to sex crimes against children. Both measures face potential constitutional challenges, though at different levels of scrutiny.
The Supreme Court's *Kennedy* decision established clear limits on capital punishment for non-homicide offenses. Alabama's new death penalty law directly challenges that precedent, setting up potential future litigation.
The 11th Circuit's en banc review of Henry's case could influence how courts nationwide evaluate similar residency restrictions. The full court's decision will likely carry significant weight in constitutional challenges to sex offender regulations that impact family relationships.
The case also reflects broader debates about criminal justice reform, rehabilitation effectiveness, and the appropriate scope of post-conviction restrictions. Henry's completion of treatment and lack of reoffending raise questions about whether blanket lifetime restrictions serve legitimate penological purposes.
The 11th Circuit's ultimate decision in Henry's case may provide important guidance for balancing public safety concerns with constitutional protections for family integrity. The outcome could affect similar laws across the circuit's jurisdiction, which includes Alabama, Florida and Georgia.