Few legal questions cut as close to the heart as this one: can the government permanently keep a parent from living under the same roof as their own child? In Henry v. Sheriff of Tuscaloosa County, the U.S. Court of Appeals for the 11th Circuit weighed in on Alabama’s lifetime residency ban for certain registrants. The case has now been before the courts several times, and this latest ruling may be the most important yet.
In this article, we break down what the law says, who Bruce Henry is, how the court reasoned, and why the decision matters for families across the country.
Background: Alabama’s Sex Offender Registry Act
The Alabama Sex Offender Registry and Community Notification Act bars registrants from residing or conducting overnight visits with minors. On its face, the law excepts parents, grandparents, step-parents, siblings, and step-siblings. But there is an exception to the exception. If the person was convicted of any sex offense involving a child, the ban applies even to their own children, regardless of whether the child was the victim.
The ban lasts for life. It covers current and future children. And Alabama provides no way to apply for relief.
Who Is Bruce Henry?
In 2013, Bruce Henry pled guilty to possessing child pornography under federal law. Officers found two videos and 348 images. He had no prior sexual offense history. He received 70 months in prison and 60 months of supervised release, and he was released in March 2018.
After release, Henry completed a qualified treatment program, attended counseling and weekly Sex Addicts Anonymous meetings, held a steady job, attended church, and volunteered. His supervised release was not perfect. He admitted viewing inappropriate material on streaming devices and a phone on separate occasions. His probation conditions, however, expressly allowed contact with his own children.
In August 2021, Henry and his wife had a son. Because of Alabama’s law, Henry could not live with the child.
A Confusing Definition of “Residing”
Under Alabama law, a person resides at a place if habitually or systematically present. As a baseline, that means four or more hours a day on three or more consecutive days, or ten or more aggregate days in a calendar month. Courts also weigh the totality of circumstances.
This leaves ordinary people guessing. How many weekend visits are safe? When does a visit become living there?
The Procedural Journey
An en banc panel of the 11th Circuit held that Henry has a fundamental right to live with his children. But it did not declare the law facially unconstitutional, which would require showing no circumstances in which it could be valid. Instead, it sent the case back to the three-judge panel to decide whether the law is narrowly tailored to a compelling interest.
Strict Scrutiny Explained
The Fourteenth Amendment bars states from depriving people of life, liberty, or property without due process. Substantive due process protects fundamental rights, those deeply rooted in the nation’s history and tradition. Raising one’s children easily qualifies.
A fundamental right is not absolute. The state may burden it if the law is narrowly tailored to a compelling interest, and the state bears the burden of proof. Everyone agreed that protecting children is a compelling interest. The question was whether this law fit.
Why the Law Failed
Over-Inclusive
The court noted the act sweeps in offenses that suggest little risk to a child. It offered an example of a 19-year-old college freshman convicted over explicit images sent by a 16-year-old sweetheart. Even if he later married her and lived law-abiding for decades, the ban would still keep him from his own child.
Under-Inclusive
The law also leaves gaps. It does not bar unsupervised visits with a registrant’s child at a place where the child does not reside, and it allows significant unsupervised access to minors under the residency threshold. A law that misses so much undermines claims that it is tailored to child safety.
Less Restrictive Alternatives
Henry proposed several alternatives:
- Individualized hearings on parental fitness
- Conditions such as a qualified caregiver or supervision by the Department of Human Resources
- Fewer qualifying offenses
- Time-of-day limits
- Reinstatement criteria, such as completing treatment
Alabama argued no tool can accurately predict risk. The court responded that Alabama offered no evidence that individualized relief would be less effective.
The Ruling and Its Reach
The court concluded the act fails strict scrutiny as applied to Henry, a non-contact offender, and affirmed the district court. The decision binds Florida, Alabama, and Georgia. Elsewhere it is persuasive authority, meaning lawyers can cite it and judges may adopt it. The hosts expressed hope that, should the Supreme Court take the case, it would discourage other states from similar laws.
The Cost
The hosts noted years of litigation across many courts, with a likely fee award to Henry’s attorneys exceeding a million dollars. Individualized review through child protective agencies, they argued, is a more lawful and efficient route than blanket bans.
Takeaways
- Parental rights remain fundamental even after a conviction.
- Broad, permanent bans without exceptions are vulnerable to constitutional challenge.
- Individualized assessment is a constitutionally preferred approach.
Conclusion
The Henry decision reinforces a core principle: the state may protect children, but it must do so with laws that fit the actual risk. Blanket rules that sweep too broadly and too narrowly at once cannot survive strict scrutiny.