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After Proposition 83: Sex Offender Regulation in California

Patrick Whitnell is general counsel for the League and can be reached at pwhitnell@cacities.org.

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.


"It is the intent of the People in enacting this measure to help Californians better protect themselves, their children and their communities ..."

- Proposition 83, Findings and Declarations1

How has Prop. 83, Jessica’s Law, affected the way cities regulate sex offenders in the community? The answer appears to be "not very much." While Prop. 83 is being challenged in court and also criticized for its unintended consequences, cities are still being pressured to address sex offenders through local regulation. This article discusses what Prop. 83 does, the legal challenge that is currently before the Supreme Court, the criticisms that have been leveled against it, and what cities continue to do to regulate sex offenders.

Background

California voters passed Prop. 83 in the November 2006 election; it received more than 70 percent of the vote. The initiative increased mandatory minimum sentences for violent or habitual sex offenders and child molesters, and it allows for sexually violent offenders to be committed for an indeterminate period. Further, the law requires lifetime Global Positioning System (GPS) monitoring of all registered felony sex offenders. The initiative also prohibits registered sex offenders from residing within 2,000 feet of any school or park. Local governments are allowed to further expand these residency restrictions.2

Legal Challenge

Prop. 83 doesn’t address whether its residency restrictions apply to those registered sex offenders who had been paroled prior to the initiative’s passage. In 2007, the California Department of Corrections and Rehabilitation (CDCR) began enforcing the residency restriction against any registered sex offender who had been in prison for any reason on or after Nov. 7, 2006. A group of registered sex offenders whose offenses occurred prior to Prop. 83’s passage petitioned the California Supreme Court to stop this enforcement action. The Supreme Court agreed to hear the matter and is currently considering the constitutionality of retroactively applying Prop. 83’s residency restrictions. A decision is expected in the coming months.3

Criticisms of Proposition 83

Prop. 83’s residency restrictions have also come under some fire. A primary concern is that the residency restrictions may have the effect of preventing some registered sex offenders from finding a place to live in the community where they have been paroled. The result is that some sex offenders have become homeless or have been driven to remote rural areas of the state. The California Sex Offender Management Board (SOMB) found that between 2006 and 2007 the number of transient sex offender parolees increased fourfold.4 Prior to Prop. 83, a paroled sex offender could often find a place to live with relatives. After Prop. 83, new parolees may sometimes be denied this option because the relative’s home is located within an excluded area.5 In some communities, Prop. 83 residency restrictions or locally adopted restrictions may prevent a paroled sex offender from finding a place to live in the community. Although transient paroled sex offenders are subject to certain reporting requirements, they pose a risk due to the increased difficulty in monitoring and supervising them.6

Another area where Prop. 83 has been criticized is its GPS tracking requirement. The initiative doesn’t address whether the state is responsible for providing the equipment and the actual tracking or whether that responsibility lies with municipalities. CDCR has informed local officials that the responsibility lies with them. Local officials have responded that they have neither the money nor the staff to track sex offenders and that the state is in a better position to track sex offenders. Lastly, Prop. 83 provides no penalty if a sex offender fails to comply with the GPS tracking requirement. Discussions regarding monitoring responsibilities between CDCR and local officials continue.7

Prop. 83’s author, Senator George Runner (R-Antelope Valley), has responded to these two criticisms. Regarding the residency restriction concern, he acknowledged that in some counties, such as San Francisco, registered sex offenders may have difficulty finding housing. Sen. Runner said he would support legislation that would allow the separation requirement to be adjusted where necessary to address the housing problem in a particular county.

With respect to the GPS tracking concern, Sen. Runner believes the state should pay for the costs of the GPS monitoring equipment regardless of which agency handles the monitoring. He has pointed out that the Safe Neighborhoods Act, an initiative on the November 2008 ballot, would guarantee funding for GPS ankle bracelets.8

How Are Cities Regulating Sex Offenders?

Legislation regulating sex offenders tends to fall under two categories.9 Child safety zone legislation identifies areas where children congregate, such as schools, child care centers, bus stops, playgrounds, video arcades and amusement parks, and imposes a distance from such areas within which a registered sex offender may not loiter - typically 300 feet.

Distance marker legislation, on the other hand, restricts sex offenders from permanently residing within a certain distance of designated places where children congregate. The distance restriction typically ranges from 1,000 to 2,000 feet. Prop. 83 is an example of distance marker legislation.

In California, more than 25 cities have adopted some form of sex offender regulation.10 The overwhelming majority of local regulation falls under the child safety zone category. But some cities have adopted ordinances that include both child safety zone and distance marker restrictions.

Prop. 83 extended the law to prevent registered sex offenders from living within 2,000 feet of any public or private school or park where children gather.11 But it specifically allows municipalities to enact ordinances that place further residency restrictions on registered sex offenders.12 Cities that have adopted local distance marker legislation have expanded the residency restriction to include residency near child care and day care centers, playgrounds, arcades and amusement centers,13 libraries, museums and churches.

Conclusion

Prop. 83 doesn’t appear to have lessened the pressure on cities to address paroled sex offenders living in their communities. Prop. 83 allows cities to expand on the baseline residency restriction that it imposes, and many cities are adopting more expansive local restrictions.

In considering a local residency restriction ordinance, cities need to carefully consider whether the ordinance will result in an "unintended consequence." Is the proposed restriction so great that a sex offender could not establish a residence in the city without violating the ordinance?14 Does the ordinance increase the possibility of transient sex offenders?

While a city council may be under intense pressure from residents to "do something," it is still important that the council understands the social and legal implication of any proposed regulation. This will help the council address the concern in a way that may help avoid unintended consequences.

Footnotes:

1 Proposition 83, section 2(f).

2 See Official Title, Summary, and Analysis for Proposition 83 available on the Secretary of State website at http://vote2006.sos.ca.gov/voterguide/props/prop83/prop83.html

3 In re E.J. on Habeas Corpus, Case no. S156933. Proposition 83’s indeterminate commitment provision has been upheld by the courts. See, Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 and People v. Shields (2007) 155 Cal.App.4th 559.

4 California Sex Offender Management Board, An assessment of current management practices of adult sex offenders in California: Initial Report, 2d ed. (January 2008) at 126 ("SOMB Report").

5 SOMB Report at 122.

6 Jill S. Levenson and Leo P. Cotter, The impact of sex offender residence restrictions, 1,000 feet from danger or one step from absurd?, Int’l J. of Offender Therapy and Comparative Criminology 168, 169 (2005). Tony Manolatos, Cities modify Jessica’s Law even as court mulls validity, San Diego Union-Tribune (March 23, 2008).

7 CDCR has requested the Sex Offender Management Board (SOMB) assist with interpreting Proposition 83 on these two issues. CDCR’s letter to the SOMB can be found at http://www.cdcr.ca.gov/News/docs/BrownMcBrideLtr.pdf

8 George Runner, Jessica’s Law Works, http://www.latimes.com/news/opinion/la-oew-runner3dec03,0,7969060.story. The SOMB has identified other areas of Proposition 83 that present implementation challenges or require clarification. See, SOMB Report at 134.

9 Patrick Whitnell, Coping with the Paroled Sex Offender Next Door, Western City, March 2006.

10 CDCR is currently compiling a chart of those local agencies that have adopted sex offender restrictions.

11 Penal Code section 3003.5(b).

12 Penal Code section 3003.5(c).

13 San Diego’s ordinance defines "amusement center" to include places like Chuck E. Cheese, and places that provide activities such as gymnastics, laser tag and art classes, so long as the primary users of the establishment are minors. Businesses like restaurants, movie theaters, and toy or game stores are not included in the definition. See San Diego Municipal Code, section 58.0602.

14 Geographic Information Systems (GIS) can help in understanding the consequences of a proposed residency restriction on housing availability for sex offenders.

 

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