CAL SUPREME COURT RULES “JESSICA’S LAW” UNCONSTITUTIONAL AS APPLIED IN SAN DIEGO
On March 2, 2015, the California Supreme Court unanimously found that the application of “Jessica’s Law” in San Diego County violated the constitutional rights of convicted sex offenders. The Court held that “the mandatory residency restrictions [are] unconstitutional as applied to all registered sex offenders on parole in San Diego County, and [enjoined] enforcement of the statute in the county.”
However, the Court agreed with the lower courts that “parole authorities [CDCR] retain the statutory authority to impose special parole conditions on sex offender parolees, including residency restrictions, as long as they are based on the specific circumstances of each individual parolee.”
Facts
“On November 7, 2006, the voters enacted Proposition 83, the Sexual Predator Punishment and Control Act: Jessica’s Law. Proposition 83 was a wide-ranging initiative intended to help Californians better protect themselves, their children, and their communities from problems posed by sex offenders by strengthen[ing] and improv[ing] the laws that punish and control sexual offenders.”
“Jessica’s Law sought to ‘prevent sex offenders from living near where our children learn and play’ by creating ‘predator free zones around schools and parks’ [Voter Information Guide, Gen. Elec. (Nov. 7, 2006) argument in favor] through the enactment of mandatory residency restrictions in the form of an amendment to Penal Code section 3003.5.”
“The initiative added new subdivision (b) to section 3003.5, making it ‘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.’”
“The California Department of Corrections and Rehabilitation (CDCR) began enforcing the residency restrictions as a mandatory parole condition for all registered sex offenders on parole in San Diego County. Petitioners in this consolidated habeas corpus proceeding were registered sex offenders on active parole in San Diego County against whom section 3003.5(b) was enforced. Petitioners alleged the residency restrictions, as applied to them, are unconstitutional.
Discussion
During the trial in the superior court, the court found that the map of San Diego County, which highlighted those areas within 2000 feet of areas where children gathered, “graphically show[s] huge swaths of urban and suburban San Diego, including virtually all of the downtown area, completely consumed by the [residency] restrictions.”
After passage of Jessica’s Law, the number of transient registered sex offenders increased four to five fold. Evidence was presented, “from a law enforcement perspective, [that] homeless sex offender parolees are more difficult to supervise than those who have established residences.”
The Supreme Court discusses, in detail, all the problems created when sex offenders do not have a residence and cannot be located. It not only interferes with enforcement activity, it also prevents efforts to provide rehabilitative services to those persons.
The Supreme Court held that “enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees’ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, it bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has infringed the affected parolees’ basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive.”
The Court concluded that “section 3003.5(b)’s residency restrictions are unconstitutional as applied across the board to petitioners and similarly situated registered sex offenders on parole in San Diego County.”
“Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators . . . .”
HOW THIS AFFECTS YOUR AGENCY
The decision did not find that Jessica’s Law was, on its face, unconstitutional – it held that, as applied in San Diego, it was unconstitutional. It is necessary, therefore, for all cities and counties to review the restrictions regarding residency of sex offenders, in their jurisdictions, and ascertain if they are “unreasonable, arbitrary, and oppressive.”
An interesting footnote by the Court addressed the possible conflict created by the effect of Jessica’s Law and the intent of Megan’s Law. The Court noted that “It has further been suggested that increased homelessness resulting from the enforcement of Jessica’s Law’s residency restrictions thwarts the purpose and intent behind Megan’s Law which authorizes public disclosure of the residential addresses and notification of the whereabouts of registered sex offenders in California in the interests of public safety. It is more difficult to track paroled sex offenders who are transient and have no residential addresses, and to notify the public of their whereabouts.”
As stated above, this decision impacts directly on San Diego: “We conclude the evidentiary record below establishes that blanket enforcement of Jessica’s Law’s mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators.”
However, it is, obviously, going to be the basis for evaluating all jurisdictions and their limitations on housing for registered sex offenders. It is better to review and, if necessary, revise the restrictions in your jurisdiction than to be forced by costly litigation to do the same thing.
As with all legal issues, it is imperative to seek out and secure advice and guidance from your agency’s designated legal advisor. However, and as always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.