Source: courthousenews.com 2/10/26
Oral arguments revealed deep judicial skepticism on both sides as Alabama joins other states to pursue aggressive measures against child predators, from family bans to potential executions.
(CN) — A rare en banc hearing before the full 11th Circuit U.S. Court of Appeals on Tuesday may foreshadow the legal battles awaiting Alabama’s newest tough-on-crime measure.
On Feb. 5, the state Legislature overwhelmingly passed House Bill 41, the “Child Predator Death Penalty Act,” making certain non-homicide sexual crimes against children under 12 punishable by death. HB41, now awaiting Governor Kay Ivey’s signature, mirrors laws in Florida, Tennessee and elsewhere designed to challenge the Supreme Court’s 2008 Kennedy v. Louisiana ruling that such punishments are unconstitutionally cruel and unusual.
On Tuesday, the 11th Circuit grappled with an arguably lower bar: Bruce Henry’s 14th Amendment challenge to Alabama’s residency restriction barring certain sex offenders from living with minors, including their own children.
Henry, a Tuscaloosa County resident, pleaded guilty in 2013 to federal child pornography possession and served 18 months in prison, completed sex offender treatment and has had no further offenses. In 2021, after marrying and fathering a son, Alabama law barred him from living with or overnighting with any minor, including his own child, forcing family separation without individualized risk assessment.
Henry sued in 2021, claiming the law violates his fundamental right to parental care and family integrity. In January 2024, U.S. District Judge R. Austin Huffaker Jr. agreed, declaring the provision facially unconstitutional. A three-judge panel of the 11th Circuit upheld the ruling in April 2025.
Alabama Deputy Solicitor General Robert Overing sought to reverse those decisions in Atlanta, asking the full court to look at Henry’s case through a very narrow, historically specific lens. Instead of discussing a broad right of parents, he argued the court 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 the right is framed that way, he said, history does not support treating it as fundamental.
“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, leaning on old family law cases that discussed parents who committed “gross misconduct.”
The judges repeatedly pressed Overing on how far his theory could go, with several asking whether a state could strip or severely limit parental rights for any felony, or for conduct like adultery or drug use, as long as it could be labeled “gross misconduct,” but Overing would not …
They’re splitting hairs here to justify their thinking, sadly.
Interesting to see an en banc review given the recent experience with the Eighth @ACSOL just had.