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September 14, 2012

California appeals court upholds as-applied challenge to sex offender residency restriction of Jessica's Law

As reported in this local article, headlined "San Diego Sex Offenders Upset Residency Limit," there mas a notable ruling earlier this week concerning California's sex offender residency restrictions. Here are the basics from the press report:

It is "unreasonable" and "oppressive" to forbid registered sex offenders from living within 2,000 feet of a school or park, a California appeals court ruled.

California voters adopted Proposition 83, also known as Jessica's Law, in 2006 to impose strict regulations on registered sex offenders. One provision in particular prohibits sex offenders from living within 2,000 feet of any school or park.

In 2010, the California Supreme Court ruled that the housing restriction applies to all paroled sex offenders, regardless of when they committed their crime, but the court said it did not have enough evidence to rule on law's constitutionality.

Following this ruling, William Taylor, Jeffrey Glynn, Julie Briley and Stephen Todd, all registered sex offenders living in San Diego County, challenged the residency restriction in Superior Court. All four parolees were unable to find housing after their release: Taylor and Briley lived in an alley behind the parole office on the advice of their parole agents, Todd lived in the San Diego riverbed with other registered sex offenders who had no place to live, and Glynn lived in his van.

In 2011, Judge Michael Wellington held an eight-day evidentiary hearing in which experts testified that 24.5 percent of San Diego residential properties comply with the Jessica's Law residency requirement, but most of these dwellings are single-family homes. Less than 3 percent of multifamily housing meets the requirement.

Wellington subsequently ruled that the parole condition was "unconstitutionally 'unreasonable'" because it "violated petitioners' right to intrastate travel, their right to establish a home and their right to privacy and was not narrowly drawn and specifically tailored to the individual circumstances of each sex offender parolee."

California's Fourth Appellate District affirmed Tuesday, finding that the law's "blanket enforcement as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action."

The full 37-page appellate panel ruling is available at this link, and here are the final two substantive paragraphs:

Glynn and Taylor are registered sex offenders because each of them committed a sex crime against an adult; there is no hint of pedophilia in their histories.  The exclusion of parolees with backgrounds similar to Glynn and Taylor from living near schools and parks does not substantially protect children, but as the record here shows, it has tremendous impact on such parolees' rights and liberty without bearing a substantial relation to their crimes.  As in the cases of Glynn and Taylor, it prevented them from living with family members.  In Taylor's case, it also decreased his proximity to needed services and treatment.  By banning all sex offenders, the absolute residency restriction of Jessica's Law, when enforced as a parole condition, imposes a substantially more burdensome infringement on constitutional rights than is necessary to protect children from sex crimes.  As such, the blanket enforcement of section 3303.5(b) as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action.

As noted by the trial court, its orders do not prohibit CDCR from individually enforcing the residency restriction of Jessica's Law as a parole condition for registered sex offender parolees in San Diego County.  The orders merely disallow CDCR from blanket enforcement of the residency restriction. Parole agents retain the discretion to regulate aspects of a parolee's life, such as where and with whom he or she can live. (§§ 3052, 3053, subd. (a).) Agents may, after consideration of a parolee's particularized circumstances, impose a special parole condition that mirrors section 3303.5(b) or one that is more or less restrictive. It is only the blanket enforcement — that is, to all registered sex offender parolees without consideration of the individual case — that the trial court prohibited and we uphold.

September 14, 2012 at 02:33 PM | Permalink

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Comments

Courts are starting to come around to the idea that residency restrictions are more trouble than they're worth, but what's remarkable about this to me is that, if I'm reading it right, these guys were on parole.

Posted by: Guy | Sep 14, 2012 2:51:01 PM

A theory is more valid if it can predict and since this is the only article on this subject so far, I predict Nancy Gertner will be proven right in subsequent articles. Any takers?

Posted by: George | Sep 14, 2012 4:46:15 PM

Putting aside the one guy's other crimes, that he cannot get off the sex offender list, even though he committed the crime when he was 15 and over 30 years ago seems ridiculous.

Posted by: federalist | Sep 14, 2012 5:49:57 PM

"It is only the blanket enforcement — that is, to all registered sex offender parolees without consideration of the individual case — that the trial court prohibited and we uphold."

So what's going to happen when all the individual determinations lead to the exact same result as a blanket enforcement?

Posted by: Daniel | Sep 14, 2012 7:26:41 PM

Yes, the guys were on parole, but the plaintiff's lawyer, anchored by the San Diego public defender's office, did a BANG-UP JOB of presenting every fact. SOSEN was in contact with a couple of the paralegals working the case, and it was, without question, a very convincing ruling. The arguments centered less around the plaintiffs' parole conditions than the actual constitutionality, as a whole, with regard to the ordinance and Proposition 83. This also was different from a previous CA Supreme Court ruling allowing for restrictions with regard to a greater preponderance of accumulating data that show the ineffectiveness and, in fact, increased danger to children such a policy holds.

Most notable, the three judges on the panel were all nominated by Governor Deukmejian or Governor Wilson, both conservative republicans with regard to law and order, and the judges by and large have opined in several cases in favor of prosecution/law enforcement positions, so this ruling is HUGELY significant in that the political affiliation would most likely rule for residency restrictions. But what is KEY is that the constitutionality of residency restrictions have been rendered in a fair interpretation.

Posted by: Eric Knight | Sep 14, 2012 10:24:21 PM

Mr. Knight" "But what is KEY is that the constitutionality of residency restrictions have been rendered in a fair interpretation."

Do you mean by this that the CDCR can still restrict the residency of some parolees but cannot blanket them all? That was my reading. What of those not under any supervision? Doesn't this ruling render those residency restrictions unconstitutional because there is no supervision?

"Agents may, after consideration of a parolee's particularized circumstances, impose a special parole condition that mirrors section 3303.5(b) or one that is more or less restrictive. It is only the blanket enforcement — that is, to all registered sex offender parolees without consideration of the individual case — that the trial court prohibited and we uphold."

Since there are no agents for the unsupervised, how could there be any residency restrictions on the unsupervised? It is possible under this reading, which could be wrong, that all the recent local residency blanket restrictions are void as unconstitutional.

Posted by: George | Sep 15, 2012 12:38:33 AM

Yep i see the same thing george. IF they cant' even do a blanket restriction for those on PAROLE...it's no where even close to fucking legal for those who have LEGALY finished it.

Posted by: rodsmith | Sep 15, 2012 1:39:28 AM

This if it isnt' appealed or if it's appealed and loses...is a MAJOR game changer in the fucktard politicicals rush to the sewer in sex crimes law....they will have to find a new boogie man!

Since calif is one of the biggest states and one with the most offenders on the list. Gonna be hard to say the other 2/3's of those on the registry have to do it...when the 200K in cal don't

Posted by: rodsmith | Sep 15, 2012 1:41:25 AM

By the way, as far as I know the ruling only applies to San Diego County. California has a very weird jurisdiction assignments for their appellate courts. Appellate Court 4 was originally created for all of Southern California below LA, which included OC, the Inland Empire (Riverside/San Bernardino Counties), and San Diego County. But the population had soared in different phases; in San Diego and OC in the 60's and 70's, and Riverside / San Bernardino in the 80's / 90's. So the 4th is broken into three separate districts; one of which is San Diego County. As far as I know, although the appeal process has to go to the highest state level from here, the ruling does NOT apply to OC, Riverside, and San Bernardino, which have residency restrictions in city and county codes. This is a bit unsettling, to be honest.

To George earlier: Yes, probation/parole can still mandate any restriction the court imposes, including residency restrictions, for any particular offender. But historically, probation/parole have been used to both take away costs from incarceration, as well as to re-integrate the offender back into society, including support services such as meetings, jobs, and other conditions of release. Residency restrictions, by and large, contradict this particular necessary component of probation/parole, and as a result, either would automatically violate an offender, or worse, put him into a situation where he can reoffend more easily.

The bottom line: residency restrictions are far less likely to produce community safety as to actually create a danger.

Posted by: Eric Knight | Sep 15, 2012 2:33:06 PM

That's true Eric but it's those different rulings that will force the higher courts to sit their asses down and do their own job and decide WHICH is legal.

Posted by: rodsmith | Sep 15, 2012 3:43:37 PM

Eric:

residency restrictions are far less likely to produce community safety as to actually create a danger.

Exactamundo. My favorite is when citizens get all hot and bothered about sex offenders all having to live at a single motel in one point in town, somehow not realizing that is a consequence of a situation that they have created (i.e., because they have nowhere else that they legally can live). Of course, it's not really about safety or protection IMHO, it's about banishment and NIMBY.

Posted by: Guy | Sep 15, 2012 5:23:28 PM

Following this ruling, William Taylor, Jeffrey Glynn, Julie Briley and Stephen Todd, all registered sex offenders living in San Diego County, challenged the residency restriction in Superior Court. All four parolees were unable to find housing after their release

Posted by: moving to london | Nov 26, 2012 2:16:06 AM

I am wondering with all of this chatting, Am I under the present laws, subject to Jessica's law if I am off of parole for some two years? I'm looking to move and have found this question very troubling to me as the majority of the community (Riverside County) is either near a park or school. As a registering 290 am I subject to this law? I'm also very confused on the whole aspect of sentencing laws for a violation of the 2000' buffer, There is no sentencing mandates or guidelines.??????? Someone please fill me in if anyone can.

Posted by: Kevin P | Jan 20, 2013 1:32:43 AM

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