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California sex offender residency restrictions upheld

Housing restrictions barring offenders from living near schools or parks apply even to those convicted years before the law took effect, state Supreme Court says.

February 01, 2010|By Maura Dolan

The California Supreme Court upheld residency restrictions for sex offenders Monday, ruling that thousands may be barred from living near schools and parks even if their sex crimes were committed years before the restrictions became law.

The state high court's 5-2 decision permits California to continue enforcing residency restrictions on thousands of sex offenders who were paroled after Proposition 83, known as "Jessica's Law," took effect in November 2006.

Four parolees challenged the residency rules, arguing that there was no place where they could live and comply with the law in the cities to which they had been paroled. The law bans sex offenders from living within 2,000 feet of schools or parks where children congregate.

Each challenger was convicted of a sex crime requiring lifetime registration years before Proposition 83 passed, and none was on parole for a sex crime when Jessica's Law took effect. The parolees contended that the state was illegally applying the law retroactively.

But Justice Marvin Baxter, writing for the majority, said the residency requirement applied to all registered sex offenders who were paroled for any crime after the November 2006 election. To rule otherwise would give a "free lifetime pass" to people the voters intended to restrict, Baxter wrote.

By moving into housing near parks or schools after Proposition 83 passed, "they violated a law already in effect, and application of that law to those violations is not 'retroactive,' " Baxter wrote.

Justice Carlos R. Moreno, joined by Justice Joyce L. Kennard, dissented, arguing that the majority had failed to follow long-standing legal principles of retroactivity. They said Proposition 83 did not state it would be retroactive and therefore could not apply to anyone convicted of a registrable sex offense before the law's enactment.

Moreno also said that the goal of the restriction was to protect children and that two of the parolees challenging it had never sexually assaulted a child.

Applying the law to them "would divert scarce law enforcement resources toward enforcing a restriction that has no demonstrable effect on increasing child safety," Moreno wrote.

The majority's decision permits offenders who claim they have no place to live to challenge the residency rules before a judge. Complying with the rules can be particularly difficult in densely populated cities like San Francisco, where much of the city is off-limits to sex offenders because of the proximity of schools and parks to housing.

ACLU staff attorney Michael Risher called the ruling "unsettling" and suggested that it would lead to more homelessness among sex offenders. He said the number of homeless sex offenders "skyrocketed" after the state began enforcing the residency rules.

"None of the urban areas of the state have viable places where sex offenders can live under this ruling, which of course is not good for public safety," said Risher, attorney for the ACLU of Northern California. "Experts say that the most important thing for preventing recidivism is life stability."

Gov. Arnold Schwarzenegger, in a written statement, said he was pleased by the majority's ruling and called the residency requirement "an important public safety measure."

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