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Prop. 83 rulings leave a gray area

Judges have made clear that restrictions on sex offenders' residency can't be retroactive, but exactly when they do apply is still unresolved.

February 24, 2007|Jenifer Warren | Times Staff Writer

SAN FRANCISCO — For the second time in two weeks, a federal judge has concluded that California's sweeping new law barring sex offenders from living near schools and parks does not apply to ex-felons already settled in society.

Despite the pair of rulings narrowing the scope of the law, legal questions continue to cloud the measure, which was approved overwhelmingly by voters in November.

U.S. District Judge Jeffrey S. White, in a brief order Thursday, said Proposition 83's rule forbidding registered sex offenders from living within 2,000 feet of a school or park cannot be used to govern the 90,000 offenders already released from prison before the measure passed.

White's ruling echoed an earlier decision by U.S. District Judge Lawrence Karlton, who said it was a "time-honored principle" that new laws apply prospectively unless otherwise specified. To conclude that Proposition 83 should cover people already out of prison, Karlton said, would raise serious constitutional concerns, namely that the initiative was punishing people twice for the same crime.

But several questions remain, and they may not be resolved for years, lawyers said.

Most important, there is still disagreement over the universe of offenders covered by the law. Gov. Arnold Schwarzenegger and the law's chief proponent, state Sen. George Runner (R-Lancaster), say it was meant to cover all those released from prison after its passage.

Runner likened that application of the law to what occurred with Megan's Law, which required certain sex offenders to register their addresses and other information with law enforcement agencies. That information is available to the public on the Internet.

"Like with Megan's Law, people in prison at the time it passed were required to comply with the restrictions once they got out," Runner said. "It's a form of regulation."

Others argue that Proposition 83 should apply only to those whose crimes were committed after the Nov. 7 election.

State Atty. Gen. Jerry Brown has taken an altogether different position. He argues that Proposition 83's residency restrictions, while not requiring previously released offenders to move now, would apply to them if they chose to relocate.

Judge Karlton has said that interpretation "borders on frivolous," but he made no definitive ruling on it.

Nathan Barankin, a spokesman for Brown, said the attorney general hopes a court will ultimately resolve that question and specify just how, or against whom, the initiative should be enforced.

"Everyone now agrees this law is prospective, but what's missing is a definitive legal decision on exactly who gets swept up by it," Barankin said. In the meantime, he said, "most law enforcement agencies around the state are in a holding pattern in terms of how they should proceed."

One agency that has not hesitated because of the legal debate is the Department of Corrections and Rehabilitation. Its parole division has been applying the initiative to sex offenders released from prison since November, spokeswoman Cheryl Campoy said.

About 350 such offenders return to California communities each month. Many of them -- child molesters, for instance -- were bound by residency rules and equipped with tracking devices under laws adopted by the Legislature before passage of Proposition 83. The initiative broadened the affected group to include all felony sex offenders.

Because of a severe shortage of housing, some offenders have been living in noncompliant apartments, motels and homes, department officials said. But they are wearing the tracking devices and are under intensive supervision by parole agents, they said.

In addition to its residency rules and electronic monitoring requirement, Proposition 83, passed by 70% of voters, lengthened prison and parole terms for repeat and violent sex offenders. Those elements of the law already have taken effect.

White's decision came in the case of a Bay Area man convicted of a sex offense about 20 years ago. Identified only as John Doe to protect his safety, the plaintiff had served his sentence, completed treatment and led "a productive and law-abiding life" ever since, his lawsuit said.

Proposition 83, he claimed, would have "banished" him from the community where he and his wife have lived for 15 years, and made most other urban areas in California off limits as well. In so doing, he argued, the law would have violated his constitutional rights by subjecting him to a second punishment for the same crime.

U.S. District Judge Susan Illston, finding a "substantial likelihood" that the plaintiff would prove his case, had initially blocked enforcement of the residency limit pending a full hearing of the case.

White's order Thursday dismissed the suit, saying Doe did not have legal standing to sue because the measure was not retroactive and thus did not affect him.

Dennis Riordan, a lawyer for Doe, said that outcome "provided a sense of security to Mr. Doe and others like him that they will not be further punished for acts for which they long ago paid their debt to society."

In a statement, Schwarzenegger said he was pleased with the ruling.

"This ruling allows my administration to continue implementing the will of the people as expressed in this landmark initiative, and to continue protecting our children from sex offenders," he said.

jenifer.warren@latimes.com

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