Thursday, February 4, 2010

Sex Offenders Fight “Jessica’s Law” Claiming the Residency Restriction is Unconstitutional

On February 1, 2010, the California Supreme Court allowed four registered sex offenders to challenge a state law prohibiting them from residing within 2000 feet of schools, parks, and other places children gather such as churches and playgrounds. The state law, known as “Jessica’s law” was passed by California voters when it appeared on the ballot in 2006 as Proposition 83. By a 5-2 vote, the Court agreed that most other of the provisions of Jessica’s Law were constitutional, including a section allowing the residency requirement to be applied retroactively to offenders convicted before the law was approved by the voters in 2006. This ruling means that all sex offender parolees will have to abide by Jessica’s Law until the residency issue is resolved.

Among the strongest arguments on behalf of the parolees is that implementation of the law is impossible in urban areas, such as San Francisco, where most residential areas are within 2000 feet of a park, school, playground, church or other area children congregate. The Supreme Court said it wasn’t presented with enough evidence to support or refute the claims of the offenders and sent each case back to the trial court for separate consideration and further hearings. The Court noted that there are 3,884 parolees subject to Jessica’s Law, and 718 of them have declared themselves homeless because of their inability to comply with the residence restrictions.

Supporters of the law say it protects children against sex predators. The state Department of Corrections and Rehabilitation, through its parole units, has been responsible for enforcement of the residency restrictions. State parole agents have been tracking nearly 7,000 registered sex offenders with GPS devices, trying to make sure they aren't living within 2,000 feet of child care centers, schools and other areas where children assemble.

Gov. Arnold Schwarzenegger, a backer of the provision, praised the Supreme Court for allowing the "state to continue implementing this important public safety measure." Justice Carlos R. Moreno, joined by Justice Joyce L. Kennard, dissented, arguing that the majority had failed to follow long-standing legal principles of retroactivity. They said Proposition 83 did not state it would be retroactive and therefore could not apply to anyone convicted of a qualifying sex offense before the law's enactment. Moreno also said that the goal of the restriction was to protect children and that two of the parolees challenging it had never sexually assaulted a child. Applying the law to them "would divert scarce law enforcement resources toward enforcing a restriction that has no demonstrable effect on increasing child safety," Moreno wrote.

Other critics of the residency requirement, including many law enforcement agents, also argue that the law compromises public safety by spurring an increase in homelessness among offenders and forcing them to live away from family and access to counseling and making them harder to track. Some even argue that the law has no beneficial effect, as sex offenders can work, recreate and loiter close to schools and parks, so the residential restriction has no practical benefit.

ACLU staff attorney for the ACLU of Northern California Michael Risher called the ruling "unsettling" and suggested that it would lead to more homelessness among sex offenders. He said the number of homeless sex offenders "skyrocketed" after the state began enforcing the residency rules.

"None of the urban areas of the state have viable places where sex offenders can live under this ruling, which of course is not good for public safety," said Risher. "Experts say that the most important thing for preventing recidivism is life stability."

Gov. Arnold Schwarzenegger said he was pleased by the majority's ruling and called the residency requirement "an important public safety measure." The future of the residency requirement still remains uncertain and will ultimately be decided at the trial court level where the constitutional challenge will again be litigated.


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