JESSICA’S LAW PLACED “ON HOLD” IN L.A. COUNTY
September 3, 2010
On August 31, 2010, Los Angeles Superior Court Judge Peter Espinoza issued an order staying the provision of Penal Code sec. 3003.5(b), known as Jessica’s Law, “as to all individuals who are subject to the terms of section 3003.5(b) and who are currently serving a term of active parole in Los Angeles County ….”
Jessica’s Law was enacted in 2006 to restrict those released on parole, who have been convicted of sex crimes, as to where they can reside, and with whom they can live. According to the web site of the California Department of Corrections and Rehabilitation (CDCR), the law enhances the state’s abilities to detect, track and apprehend sexual offenders.
Specifically, Penal Code sec. 3303.5(b) states that “it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.”
CHALLENGES TO JESSICA’S LAW
There have been numerous challenges to the Law based on a variety of legal theories. Earlier this year, in February of 2010, the California Supreme Court rejected several constitutional challenges brought forth by four parolees. In a 5-2 ruling, the Court held that the law did not violate the rights of sex offenders by applying it retroactively, if they were on parole when the law was adopted.
In addition, the Court ordered that more hearings were needed in order to determine if claims by parolees, that they could not find a place to live due to the residency restriction, had merit. The Court said it did not have enough evidence before it to support or reject those claims.
Proposition 83, which created Jessica’s Law, was passed by over 70% of California voters. Similar laws exist in approximately 20 other states which also impose residency restrictions.
L.A COURT ORDER
In Judge Espinoza’s order, he states that “in light of the more than 300 habeas petitions already filed with this Court and the constant stream of new petitions, it is now abundantly clear to the Court that the question of the constitutionality of Penal Code section 3003.5(b) … is a recurring problem important to other [parolees] and the [CDCR].”
The Court states that “the primary grievance raised by nearly every petitioner … is that there is virtually no housing which is compliant with the section’s residency restriction in Los Angeles County and that they are forced into homelessness.”
The Court also notes that assistance of counsel is necessary to file a petition seeking relief from the restrictions of section 3003.5(b) and, therefore, “in the interests of equity and judicial economy, the Court now deems it appropriate to consider the procedural rights of all similarly situated parolees in the instant petitions for writ of habeas corpus.” As such, the Court stayed the enforcement of section 3003.5(b), as well as the policy of CDCR which enforces the law, pending the outcome of hearings on these claims.
Following the Court’s order, CDCR issued a memorandum to “Region III Staff” stating, in part, that “the enforcement of Penal Code Section 3003.5(b) … and the provisions of [CDCR] Policy Number 07-36, Implementation of Proposition 83, AKA Jessica’s Law, is stayed for all paroled sex offenders residing in Los Angeles County.” (Emphasis added.)
However, it is important to note that the CDCR memo continues by stating that “High Risk Sex Offenders with a current or prior conviction of P.C. Sections 288 … shall continue to be prohibited from residing within one-half mile from any public or private school serving kindergarten and/or grades 1 – 12.” The memo also points out that “the duration of this [court] order is unknown.”
HOW THIS AFFECTS YOUR AGENCY
For those agencies located in L.A. County, the court order is binding on all of you and you are precluded from enforcing P.C. sec. 3003.5(b) in your jurisdictions. For those located outside of Los Angeles County, nothing has changed … yet. Obviously, similar actions might be brought in other courts throughout the state and it seems logical that they will.
The purpose of this Client Alert Memo is to make you all aware of this latest challenge and the resulting action of a court affecting those residing in the state’s largest county.
As always, we urge that you confer with your own agency’s legal counsel for advice and guidance. However, if you wish to discuss this matter in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.