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November 8, 2006

California's new sex offender law enjoined

As detailed in articles here and here, a federal judge in California today "blocked enforcement of key provisions of Proposition 83, the ballot measure passed overwhelmingly by voters that's meant to crack down on sex offenders, including limiting where they may live."  Here are some more details:

U.S. District Judge Susan Illston, ruling on a lawsuit filed a day after the election, said the measure "is punitive by design and effect" and likely unconstitutional.  The so-called Jessica's Law prohibits registered sex offenders from living within 2,000 feet of a school or park — effectively prohibiting parolees from living in many of California's cities. It also would require lifetime satellite tracking for paroled rapists, child molesters and other felony sex criminals upon their release from prison....

The scope of the initiative's impact largely hinged on whether it would apply retroactively to the state's roughly 90,000 registered sex offenders. Supporters and critics had expected the expanded residency requirements to be challenged in court.  Judge Illston issued a temporary restraining order against the residency requirements of Proposition 83....

John Doe, as the plaintiff was named in court documents, argued that the measure could only apply to sex offenders registered after the law was passed.  Illston did not address whether it could apply to those who registered after Nov. 7. Another unknown is what to do with registered sex offenders who violate the law.  The measure does not add any crimes to the state's criminal statutes. "There are a million questions left open," said Dennis Riordan, the lawyer who filed the lawsuit.

Nathan Barankin, a spokesman for Attorney General Bill Lockyer, said the state would vigorously defend the law. "We won't know the true scope of Prop. 83 until the courts have resolved all the litigation," Barankin said. "Our goal is to make sure those questions get answered as quickly as possible."

Under the measure's language, most suburban and metropolitan areas of the state would be off limits to sex offenders. The proposition, according to the suit, "effectively banishes John Doe from his home and community for a crime he committed, and paid his debt for, long ago."  The suit says the proposition forces the former convict "from the home that he owns with his wife and his community of over 20 years."

It looks like California voters have ensured that the new Sex Crimes blog will have plenty of legal developments to cover and discuss.

UPDATE: Jonathan Soglin at Criminal Appeal has more here on developments in Califonia surrounding Proposition 83, aka Jessica's Law.

November 8, 2006 at 09:02 PM | Permalink


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» California Sex Offender Initiative Already Blocked in Court from A Stitch in Haste
That was fast:A federal judge on Wednesday blocked enforcement of Proposition 83, the ballot measure passed overwhelmingly by voters a day earlier and meant to crack down... [Read More]

Tracked on Nov 8, 2006 9:26:59 PM

» Proposition 83 Enjoined from Sex Crimes
As the seemingly indefatigable Professor Berman noted, the enjoinment of California's Proposition 83 will provide a lot of grist for the mill here at Sex Crimes. Yesterday, I commented that it would be interesting to see how California courts deal [Read More]

Tracked on Nov 9, 2006 9:46:47 AM


The authors agree:

Restraining order imposed on sex offender proposition
By Crystal Carreon - Bee Staff Writer

Published 8:10 pm PST Wednesday, November 8, 2006

John Doe, who lives within 2,000 feet of a park or school, alleged the law infringed on his right of due process. He was convicted of a non-aggravated sex crime more than 15 years ago, served his time and "has been a successful and contributing member of his community ever since," according to the 12-page suit filed against four Bay Area counties, Gov. Arnold Schwarzenegger and Attorney General Bill Lockyer.

Becky Warren, a spokeswoman for proposition author state Sen. George Runner, R-Lancaster, who authored the proposition, said the law's supporters agreed with the judge's order, because the law was not intended to be implemented retroactively.

Posted by: George | Nov 9, 2006 12:24:14 AM

I do not agree with the AP article that the residency restriction is a "key provision." Even if that provision is eventually stricken completely, it would not impair the rest of the initiative, and California already has a more reasonable residency restriction.

Posted by: Kent Scheidegger | Nov 9, 2006 8:24:07 AM

On second thought, there is a fascinating undercurrent here. The authors of the proposition, the Runners, say they did not intend it to be retroactive, yet the wording does not make that clear. So John Doe sues. The government will "vigorously defend the law," presumably its ex post facto potential.

It would be more than interesting to know what the law bloggers think of this political footballing of laws.

Why would the Runners leave it ambiguous?

Why would the AG not know what the intent was? And do they care?

Is this an example of government trying to expand its power to the fullest extent despite intent?

What does the footballing of laws do to the respect for law and order?

Are judges and Justices aware of this chaos and how it can incline some to disrespect the law? And isn't that one of the reasons our Founders wrote the no ex post facto clause into the Constitution?

Are regulations, not subject to the ex post facto clause, subverting respect for the law as our Founders predicted?

Posted by: George | Nov 9, 2006 3:30:12 PM

One last thought, and maybe one thought too many. The text of the section in question is this:

3003.5. (b) Notwithstanding any other provision of law, 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.

In plain language, "any person" is obviously "any person."

Even the Legislative Analysis is misleading if no ex post facto was intended:

Limit Where Registered Sex Offenders May Live.
This measure bars any person required to register as a
sex offender from living within 2,000 feet (about two-
fifths of a mile) of any school or park. A violation of this
provision would be a misdemeanor offense, as well as
a parole violation for parolees. The longer current law
restriction of one-half mile (2,640 feet) for specified
high-risk sex offenders on parole would remain in effect.
In addition, the measure authorizes local governments
to further expand these residency restrictions.

Either the Runners, the authors, are ignorant or they are cunning as all get out.

Cunning would be more likely. What is the benefit of this misleading section - and they likely knew the Courts would not allow it - if they never intended it to be ex post facto?

To get votes. It was a GOTV ploy and voters thought they could rid their neighborhoods of sex offenders overnight. Great for an election, bad, bad public policy to use the initiative process so crudely and viciously. If the Democratic sweep across the country had not been so strong, this sting would have served them well.

But the state will attempt to Black Hole all the power they can in their attempt to get an ex post facto ruling. Then there is, of course, the blame it on the "activist judges" factor. The Runners and the Republicans couldn't lose.

That is, unless someone calls them on it.

Posted by: George | Nov 12, 2006 12:52:33 AM

One of the initiatives on this November’s ballot is Proposition 83. Sadly, very little public discussion has been focused on this initiative. Dubbed “Jessica’s Law,” this is another misguided attempt to try to make our children safer, but it plays on public hysteria to no real benefit. It is difficult to argue against something as positive as child safety, but this proposed law would spend billions of dollars to implement a Buck Rogers system of global positioning satellite ankle bracelets for all of California’s 90,000 plus registered sex offenders—for life, yet. The estimated costs for this hair brained scheme cannot possibly be accurately calculated or projected into the future, but it figures to be huge. As it is, the authors of this initiative think that about one billion dollars should probably cover the costs for the first year. Our long history with governmental cost estimates makes the fuzziness of this figure clear. Huge cost over-runs are almost guaranteed.
Some vague idea that the costs of this law might be paid by offenders themselves is the funniest thing I’ve heard in a long time. Blood out of a turnip, anyone?

As cogent as this idea may seem at gut level, the illogic of this plan can be seen in the following: First, this proposition makes no distinction at all between sexual offenders. It lumps them all into one big pile. Some sex offenders are forced to register for even misdemeanor crimes such as urinating in public. To pay the exorbitant cost to place lifetime GPS tracking devices on these people is plain ludicrous. The wording of this proposition is typically vague (as are most proposed laws written by amateurs). At one point the proposal says something about “Violent Sexual Predators”, but later it mentions “High Risk Sex Offenders” as somehow equivalent. The voters might read this and think, ”Yeah, let’s put this bracelet on the worst of the worst.” But in California there are only two classifications for sex offenders: SVP—or sexually violent predators, and HRSO--high risk sex offenders. Despite the suggestion to the contrary, there is no such thing as a “low risk sex offender” in California; the lowest one can be is “High-risk”. So, while perhaps suggesting that only the worst and most dangerous offenders will be targeted for this draconian and astronomically expensive treatment, it, in effect, makes this program mandatory for absolutely every registered offender in the state!

Another intelligent question would be, “How does knowing the exact location of 100,000 registrants twenty-four hours a day make children (or anybody else) any safer?” Will this device tell us which ones have a kid tucked under their arm? No, of course not. A kid goes missing after school. His parents aren’t sure anything is wrong until several hours later. So, we track the movements of all the several thousand offenders in a hundred mile radius, and come up with a solid red blotch on the computer screen, there’s so many. Plus, what if somebody not registered did it? Even a child could see that this supposed “solution” is of very little use at all.

Iowa is one of several states ahead of us in implementing this law. At first, their police, prosecutors, district attorneys, etc. were in favor of this legislation. But after having to wrestle with the awkward and impossible implementation of these provisions, they now favor the repeal of “Jessica’s Law.” Additionally, the mandated “offender free zones” created by this law (no offender can reside within one-half mile of a school, park, playground, daycare, etc.) have shown to have had absolutely no impact on the statistical incidence of child abduction or other crimes against children (or anyone else). It turns out that if you’re a sex offender determined to grab a kid, you can simply drive past a school or grab a kid as he walks past your house or anywhere else.

California prisons are overcrowded to an all-time record. The Federal Courts are poised to perhaps Federalize the operation of the California Dept of Corrections (as they already have done with CDC Medical operations). Recently, the CCPOA (the powerful prison guards’ union) lobbied Sacramento for 6 billion dollars for new prison construction. They were turned down, because this is simply not a responsible use of the limited tax dollars in our state. The state legislature is very favorably inclined to the prison industry in this state, but enough is sometimes enough.

Prop 83 mandates one half billion dollars in the first year alone for new prison construction, to house all the offenders who will be given greatly longer sentences under its provisions. This is potentially an end-run around the state legislature, who for once failed to give the CDC whatever it asks for.

Lastly, the offenders who are registered are those who are already complying with the restrictions placed upon them. We know where they are because they’ve followed the rules. There are many more offenders who fail to register. We don’t know where they are. Many states require registration for ten years. After that, the previous records of offenders are certainly available, should any repeat offense occur. California already requires lifetime registration for these people—even 90 and hundred year old geriatrics living in nursing homes. The cost of this extreme and shortsighted current law already costs taxpayers hundreds of millions of dollars to pay the salaries of law enforcement personnel to simply file paperwork all day long. To add the almost unfathomable cost of outer space technology and the thousands of additional employees to install, monitor and maintain such equipment is money very poorly spent.

One way to make children safer would be to require all kids to wear safety helmets when riding in automobiles. The incidence of child traffic injury and death would definitely be lowered by this. Where do I go to start a petition to put that into law? And where do we draw the line? Face it, everyone wants kids—and everybody else—to be safe. There’s just a big line between what’s reasonable and efficacious, and what is not. Prop 83 is a disaster waiting to gum up the works here in California. With a fraction of the money Prop 83 will spend, we could immunize every child in the state. That would help kids too. Really.

Posted by: Craig | Nov 13, 2006 2:40:13 PM

It is hard to sit by and watch as americans make laws that affect so many people because of the violent and sinful acts of a few. I think that people who do things like that which was done to Jessica should suffer the consequences of their actions in full. But to pass laws that treat everyone like they were the one who violated and killed someone is not quite honest nor fair. What about those who have an inappropriate relationship with a brother or sister, with no violence involved at all and both parties are participating, should we treat them as predators? This kind of activity between siblings has gone on for so many years. That does not mean that it is right, but should one of the parties involved be considered a high risk offendor or SVP? I know of to many people in this situation that have now gone on to have families and have steady jobs and a family. When is enough enough? When is to far to far? The families of offendors who have not offended anyone in years are now victimized by a system that just wants to add numbers to a registrety. Maybe I am wrong, but where do we allow a second chance to come into play? Just my heart. It is breaking for those who have strived for many years to right a wrong and do whatever they can to help this country be the country that it should be. Thanks for listening.

"We are all sinful; we are all redeemable"

Posted by: CB | Nov 13, 2006 11:27:26 PM

any of us were wrongfully convicted back in the 1970s
back in the 1960s the 1950s
some as far back as 1944!!
with a MISDEMEANOR past
long ago sex conviction
just one you can be starting
in 2007 FORCED to MOVE ??
what if you are disabled ??
what if you are a senior citizen
now and have a fixed income?
We have never heard how this is
going to be ENFORCED retro-active
and in addition be forced to wear
GPS? how will you force this on
HOMELESS people ??

Posted by: [email protected] | Nov 15, 2006 6:39:14 PM

I am a student and a mother, I found this very helpfula and informative. I, of course agree with children's safety, however, I feel education is probably our best answer. It has been statistically documented that most cases involve a trusted friend or family member. Those cases occur too frequently and those children are left more confused than by "stranger danger". We need to educate our children from an early age about "bad" touching and what is appropriate regardless who is doing the touching.

Thank you

Posted by: amy | Mar 24, 2008 2:16:56 PM

more sex offender laws is just more ignorance.The laws now are over board. what people should do is get informed and not allow any more stupid laws be imposed that dont do any good and causes your taxpayer dollars to be wasted.
dept of justice website shows true statistics
not just hype from uneducated ignorants on a witch hunt. what is the next witch hunt you or your family when you molest a kid or pee on a wall and have to register for life? the ignorant people dont realize rediculous knee jerk reaction laws for politicians to gain office only does harm to america. its dirty and vile to protray such ignorance. anyone can be a sex offender with laws the way they are. and what about the people who are supposed to be protecting you like judges and district attourneys who molest children or any law they break and get away with it because they are above the law. look at these men who worked for dept of homeland security being charged with luering children for sex. this has been a social problem for ever and if it wasnt illegal as it isnt in some places it wouldnt be thought as sick. most men we all know look at young girls sexually even at boys. even the people criticizing others because they feel guilty about what they think about. common sence is needed here because until the next ignorant person gets caught for doing it himself and he or his family member to be ostracized as today this whole witch hunt will get stupider by the day. what then when you get caught. The way the laws are now it is worse for someone to do a sex crime than it is to kill a kid and not molest them, they dont have to even register, how does that look? so the hype and sensationalism train everyone flocks to when one more kid killing happens need to be proportionate and focused on that person. the witch hunt has to stop. more and more people are agreeing every day that the witchunt and scarlet letter has to stop and registration put to a halt with offenders addresses bieng put on websites as it does no good and harms the PEOPLE that dont deserve it anymore. or where innocent all together. some offenders where minors themselves or barely adults. i do agree with high risk offenders get the shaft but not all of the people who ever did a sex crime. after all people are people and make mistakes. doesnt god forgive everyone? even sex offenders, yes he does. People need to stop mutating the label pedophile as a pedophile is a offender who preys on little kids. not every one who does a sex offence. when you entrapped for peeing outside lets say then you will be labeled a pedophile. maybe even one of your family members.

Posted by: joe | Aug 28, 2008 12:51:38 AM

please tell me that this child molestor wasnt released and is no longer mandated to register with photo in the state of origin...where he lived and where he moved from with the said minor female who is now residing in the same state...currently

Posted by: patricia wertz | Apr 17, 2009 6:38:20 AM

i found the predator (convicted felony forcible for child under 10 yrs old) is not only out-of-custody, but furthermore is not required to post his photo on megans law registration....is that legal???

Posted by: patricia wertz | Apr 17, 2009 6:41:05 AM

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