Where can sex offenders live?

The Supreme Court of California has struck down a blanket ban on sex offenders living near schools, which effectively barred them from living in large cities.

Photo by Wally Gobetz (Flickr)

The California Supreme Court has struck down the voter-approved Jessica’s Law, which prohibits registered sex offenders from living within 2,000 feet of a school or park.  The court held that there was no rational relationship between the restrictions and the state’s goal of protecting children from sexual predators.  The justices also found that the rules have increased homelessness and hindered access to treatment programs.

Background of Jessica’s Law

Proposition 83, also known as the Sexual Predator Punishment and Control Act: Jessica’s Law, was a statute enacted by seventy percent of California voters in 2006.  The Act made several changes to the California Penal Code, including barring convicted sex offenders from living within 2,000 feet of a school or any place where children gather.  This restriction effectively blocks such offenders from living in the vast majority of areas in large California cities.

The law was proposed by means of the initiative process as a version of the Jessica’s Law proposals that had been considered in other states.  The statute was supported by Governor Arnold Schwarzenegger and law enforcement throughout the state.  California Attorneys for Criminal Justice opposed Proposition 83 and argued that the restrictions would cause problems with finding a place of residence for freed offenders.

Enforcement of the residency provision

The enforcement of the law was initially blocked in four counties by Judge Susan Illston of the U.S. District Court for the Northern District of California.  Judge Illston issued a temporary restraining order, blocking enforcement of the provision due to its possible unconstitutional retroactive penalty.  Three months later, Judge Illston’s colleague, Judge Jeffrey White, wrote in a brief order that the residential provision of the law could not be used to govern offenders already released from prison when the measure passed.  This would involve punishing people twice for the same crime, which raises a serious constitutional concern.

In 2010, a challenge over the residency restriction’s constitutionality and to whom Jessica’s Law applies made its way to the Supreme Court of California.  The court ruled that the residency requirements of the law could be applied retroactively.  This ruling on retroactive application applied to registered sex offenders who committed their crimes before the law’s passage, but who were paroled after it took effect.  The decision did allow registered sex offenders to challenge the residency requirements when they are paroled to places where it is impossible to avoid living near schools and parks.

The Supreme Court declined to rule on the residency restriction portion of the law, instead asking local courts to conduct evidentiary hearings.  Those hearings took place in San Diego in January 2011.  In February 2011, Superior Court Judge Michael Wellington ruled that the residency requirement restrictions were unconstitutional.  The State appealed.  A California appellate court affirmed the lower court ruling, stating that it was an unconstitutional blanket condition of parole that “limits the housing choices of all sex offenders identically, without regard to the type of victim or the risk of reoffending.”

“Blanket enforcement” overturned

The ruling of the California Supreme Court stems from a habeas corpus challenge by a group of registered sex offenders on active parole in San Diego County.  Writs of habeas corpus are used to review the legality of a party’s arrest, imprisonment, or detention.  Here, the petitioners claimed that residency restrictions as a mandatory parole condition made it impossible for them to find suitable housing.

The court found that the blanket enforcement of the residency aspect of the law has had unintended consequences.  Homelessness spiked as a direct result of the restrictions on where sex offenders could live.  In turn, this hinders both access to medical treatment and rehabilitative services—and law enforcement’s efforts to supervise the parolees—said the court.

“It has thus 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, and had violated their basic constitutional right to be free from unreasonable, arbitrary and oppressive official action,” Justice Marvin Baxter wrote for the court.

The court applied a rational basis scrutiny test to the residency restrictions. Rational basis review is a test used in certain contexts to determine a law’s constitutionality.  To pass rational basis review, the challenged law must be rationally related to a legitimate government interest.  Here, the state’s legitimate interest is to protect the public and children from sexual predators.

The court concluded that the increased homelessness, as a direct consequence of the residency restrictions, has impeded the surveillance and supervision of such parolees.  This consequence thwarts the “legitimate governmental objective behind the registration statute to which the residency restrictions attach; that of protecting the public from sex offenders,” wrote Justice Baxter.

The inability of the California Department of Corrections and Rehabilitation to monitor, supervise and rehabilitate parolees has the opposite result of the legitimate goal to be achieved by the law. There is no rational relationship to the goal of public safety when law enforcement cannot locate such parolees.

Furthermore, the exclusionary restrictions impede “basic, albeit limited, constitutional rights” of such individuals.  The court noted that the petitioners face the disruption of family life if the family member’s residence is not a compliant location.

As a solution, the court held that the CDCR must enforce the restrictions on a case-by-case basis “based on and supported by the particularized circumstances of each individual parolee.”

Tough on crime?

The unanimous ruling only immediately affects San Diego County, but will likely apply to other densely populated counties, including San Francisco.  A researcher found that less than three percent of multifamily housing in the state was legally available to convicted sex offenders. Thus, the court’s decision will apply to other areas where it would be extremely difficult to find housing that is 2,000 feet from a school or park.

Jessica’s Law was initially passed as an initiative that was “tough on crime.” Supporters of the court’s recent ruling point out that public safety is better served when sex offenders are tracked closely and within the reach of parole officers.

This ruling allows for the state to make particularized decisions for parolees, which will help in being effective against crime in the long run.

Hannah Emory, Associate Editor
About Hannah Emory, Associate Editor (15 Articles)
Hannah Emory is a Campbell Law graduate and served as an Associate Editor for the Campbell Law Observer for the 2015-2016 academic year. She is originally from Dunn, North Carolina and graduated from the University of North Carolina at Chapel Hill in 2013 with a Bachelor of Arts in Political Science and History. Following her first year of law school, Hannah interned at the North Carolina Office of the Juvenile Defender.
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