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Residency law for sex offenders narrowed

A federal judge says Prop. 83's ban on living near schools and parks can't be applied to those who had already served their sentences.

February 10, 2007|Jenifer Warren | Times Staff Writer

SACRAMENTO — A federal judge Friday ruled that a voter-approved crackdown on sex offenders may not be applied retroactively, meaning thousands of offenders who have done their prison time probably will not be barred from living near California schools and parks.

U.S. District Judge Lawrence K. Karlton said there was no clear evidence that Proposition 83, dubbed Jessica's Law by promoters, was intended to govern those whose crimes occurred in the past.

"The court finds that the law does not apply to individuals who were convicted and who were paroled, given probation or released from incarceration prior to its effective date," Karlton wrote in his 11-page order.

Passed by 70% of voters, Proposition 83 gave California what experts called the toughest sex offender law in the nation. As well as lengthening prison and parole terms for repeat and violent offenders, the measure requires registered sex offenders to wear an electronic tracking device for life.

The most controversial provision bans offenders from living within 2,000 feet of a school or park. Proponents said children should not have to pass an offender's house while walking to school, while foes said the ban would not enhance safety because most sex crimes are committed against victims the perpetrator knows.

Shortly after the initiative passed, the residency rule sparked a handful of lawsuits from ex-offenders. Among other things, they argued that the restriction was unconstitutional because it slapped a new penalty on ex-convicts long after they had been punished.

Karlton's ruling is the first judicial interpretation of the measure. It brought relief to some of the 80,000 registered sex offenders living in California communities, including former child molester Jake Goldenflame.

Goldenflame lives in San Francisco, which has such high density that maps drawn by the Legislature show that Proposition 83's buffer zones around parks and schools would make the city virtually off limits.

"We have already paid the price for our crimes, and this gives us the freedom to go on with our lives without having to pay for it again," said Goldenflame, an author who also runs a website to help former sex offenders. "I am certainly buoyed by this ruling and hope other judges follow suit."

The Karlton decision comes in a lawsuit filed by three unidentified sex offenders, including one on parole and one on probation, who said they lived within 2,000 feet of schools or parks. Their crimes occurred more than 15 years ago.

They sought a preliminary injunction to block enforcement of the residency limit and to bar the state from forcing them to move. Karlton denied the motion in his Friday ruling, saying it was unnecessary because the residency ban did not apply to them.

In his decision, the judge said Proposition 83 does not make it clear that its intent was retroactive. He also said it was a "time-honored principle" that new laws apply prospectively unless otherwise specified. To conclude that it should cover offenders already out of prison, he said, would raise serious constitutional concerns, namely that the initiative was punishing people twice for the same crime.

Lawyers for state Atty. Gen. Jerry Brown argued that Jessica's Law should be interpreted like Megan's Law, which established a database listing the addresses of tens of thousands of sex offenders.

But Karlton said Megan's Law is different because it merely instructs the state to make certain information about ex-felons available and "does not appear to regulate sex offenders directly."

Still unresolved is another case, pending in federal court in San Francisco, involving an offender who has lived in the same Bay Area town for more than 15 years. His lawsuit said he had completed treatment and has led "a productive and law-abiding life" ever since. With the passage of Proposition 83, his suit said, he "has effectively been banished from his community" and from residential areas in virtually every city in California.

In that case, the attorney general contends that the law does not require the plaintiff, known as John Doe to protect his safety, to move out of his home. It would affect him, however, if he chose to relocate to another home inside the 2,000-foot buffer zone, the attorney general argued.

Karlton addressed that interpretation in his ruling Friday, saying it "borders on the frivolous." Proposition 83 makes no distinction, he noted, between offenders who now live within the 2,000-foot zone and those who may choose to move there later.

Michael Romano, an attorney in the San Francisco case, said Karlton's ruling "bodes well for us."

"This vindicates our position that the attorney general's interpretation is simply untenable," he said.

A spokesman for Brown said the attorney general's office was still reviewing the judge's order.

Gov. Arnold Schwarzenegger said he was pleased that the ruling removed a potential roadblock to enforcing the statute, which he and nearly every other elected state official supported.

"The people of California passed this important initiative to help protect themselves from sexual predators, and today's ruling allows the state to continue its implementation of Jessica's Law," he said in a statement.

Corrections officials said the ruling would not alter the residency limit on paroled sex offenders that was created by the Legislature and took effect last year. Under that law, certain high-risk child molesters may not live within half a mile of a school while on parole.

Those high-risk sex offenders also are on satellite monitoring while being supervised by parole agents.

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