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In light of the recent arrests of two registered sex offenders in connection with four murders in Orange County, I’d like to share an article that I originally wrote a few months ago for OC Lawyer Magazine. The tragedy brings into focus the critical shortcomings of our state’s sex offender registry and the stress it puts on a criminal justice system already in crisis. As far as public policies goes, the laws regulating sex offenders are incredibly difficult to approach and reform, but we owe victims (and potential victims) a system that actually works…
“Given that we are a society of law, let us demand that the laws we do enact achieve their intended mission. Let us stop creating a false sense of security and wasting our precious resources on laws that simply do not work.”
~ Andrea Casanova, mother of a victim murdered by a repeat sex offender
This article discusses recent developments in the struggle over “Jessica’s Law,” a measure passed by voters that amended the Sex Offender Registration Act (“SORA”). The Ninth Circuit recently published an opinion that improves the procedural posture for parolees challenging the constitutionality of Jessica’s Law. Meanwhile, enforcement of SORA has broken down under the weight of Jessica’s Law. Thousands have been made homeless as a result of the law’s residency restriction, leading many to choose evasion over compliance. Compounding the crisis, California is taking unprecedented steps to lower its prison population. In effect, this means violations of SORA largely go unpunished. Jessica’s Law has proven to be a practical and humanitarian disaster, and worse, it continues to take a toll on the wider criminal justice system.
Proposition 83: The Sexual Predator Punishment and Control Act
Proposition 83 passed with the support of seventy percent of California voters. Commonly known as Jessica’s Law, supporters invoked Jessica Lunsford, a nineyear- old girl who was killed by a convicted sex offender who had failed to report where he lived. Jessica’s Law is not limited to offenses against children. Nevertheless, its advocates argued in the Official Voter Guide that the law “will protect our children by keeping child molesters in prison longer; keeping them away from schools and parks; and monitoring their movements after they are released.” Moreover, it was reasoned that the current law is too lenient because of the “high risk that a sexual predator will commit additional sex crimes after being released from prison.” However, Jessica’s Law and SORA target sex offenders generally, past and present, a group not particularly likely to re-offend.
The controversy over Jessica’s Law has largely been focused on two of its provisions. One of those is the residency restriction prohibiting any person subject to SORA from ever residing within “2000 feet of any public or private school, or park where children regularly gather.” The other provision, a means to enforce the first, requires sex offenders to submit to GPS tracking by wearing an electronic ankle bracelet. These measures are not likely to curb the prevalence of sex crimes. Potential victims of sexual violence, both children and adults, regularly congregate in many locations other than schools and parks. More important, the law ignores how the vast majority of victims come into contact with predators. The American Psychological Association warns that “stranger danger” does not significantly contribute to the prevalence of sex crimes. Of the 190 sex offenders in California who have re-offended, only one met his victim in a park, and the park was more than 2000 feet away from where he resided.
The California Supreme Court is currently reviewing the constitutionality of the residency restriction. The case is an outgrowth of a previous decision by the high court, in which habeas petitioners claimed the residency restriction is an “unreasonable, vague and overbroad parole condition that infringes on various state and federal constitutional rights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights under the federal Constitution.” Noting the issue’s complexity, the court remanded the cases for evidentiary hearings.
Following through with the California Supreme Court’s instructions, a judge in San Diego found that the residency restriction, where applied as a “blanket” parole condition, is unconstitutional as an arbitrary and oppressive official action. The judge cited evidence showing that the residency restriction prohibited offenders from living in all but three percent of San Diego County. Additionally, when affordability and rent prospects were considered, the realistic figure is “significantly less.” The court of appeal affirmed the lower court, ^ arguing the law as applied “treats all parolees the same regardless of whether his or her crime involved the victimization of children or adults.” Given the deference generally afforded to state courts on penal matters, the Ninth Circuit’s recent intervention concerning Jessica’s Law is particularly interesting in light of contemporaneous state proceedings.
The Ninth Circuit’s Intervention
The Ninth Circuit, in Thornton v. Brown, held that a parolee could challenge Jessica’s Law, as applied by the California Department of Corrections And Rehabilitation (“CDCR”), under Section 1983 of the Civil Rights Act. A matter of first impression, the expansive approach to Section 1983 has implications beyond the current controversy. In effect, the Ninth Circuit has given parolees direct access to federal courts. While the claim was limited to injunctive relief on appeal, the opinion reads like a road map for money damages. The imposition of civil liability may give way to the reform needed in the parole system. However, it is far from clear how practitioners are to discern whether a parole term is cognizable under Section 1983.
In Thornton, a parolee sought money damages and injunctive relief against the CDCR. The claim challenged two provisions of Jessica’s Law: the residency restriction and the requirement to submit to GPS tracking. The parolee had been convicted of sexual battery in 1987 in Tennessee. Twenty years later, he was convicted of non-sexual crimes in California requiring a period of parole administered by the CDCR. Due to the earlier sex offense, the parolee was subject to SORA. The federal district court dismissed the claim, directing the parolee to the federal habeas statute. Persons “in custody” can file a habeas petition challenging state policies under federal law, but only after “exhausting” opportunities for relief at the state level.
As the parolee in Thornton was not required to exhaust his options in state court, the dissent accused the majority of disregarding the policy of the federal habeas statute, which is to avoid unnecessary friction with state courts. Generally, a person in custody cannot bring a claim under Section 1983, in lieu of a habeas petition, if its success would necessarily imply the invalidity of the state’s conviction or sentence. Traditionally, parolees are “in custody” in this context. The majority found that the imposition of GPS tracking and the residency restriction have no bearing on the fact or duration of the plaintiff’s parole, only its conditions.
The dissent saw no distinction between the conditions of parole and the fact of parole because the CDCR possesses discretionary authority to impose the terms. More to the point, the dissent argued that the majority’s holding is unworkable because it is impossible to differentiate between the conditions of parole and terms essential to the sentence. Given the limited applicability and purpose of Jessica’s Law, it does seem arbitrary, if not incorrect, to conclude that its terms do not constitute the fact of parole. Nevertheless, it defies common sense to bar parolees from making a Section 1983 claim for no other reason than that they are on parole. Parolees are not actually in state custody. Deference to state courts in this context is premised on the state’s continuous, direct, and intimate supervision of its prisoners. In the words of the majority, parole “is by its nature less confining than incarceration.”
Homeless and Unregulated Sex Offenders
The fall-out from Jessica’s Law illustrates the fallacy of considering parolees as in custody. The Sex Offender Management Board has repeatedly reported that Jessica’s Law has resulted in an ever-growing homeless rate among the state’s more than 100,000 sex offenders. In 2010, it reported that thirty-two percent of sex offenders paroled under the CDCR were homeless. Moreover, the residency restriction effectively banishes offenders to rural areas of the state because urban communities are densely populated with schools and parks. This is particularly prohibitive because one is more likely to find employment, affordable housing, and legal aid in cities. The confinement of prisoners, of course, does not give rise to such concerns.
Moreover, Jessica’s Law encourages local governments to place additional residency restrictions on sex offenders. Its restrictions already have the effect of forcing offenders to amass in certain areas. Neighbors are easily made aware of their presence due to the online sex offender registry, and in turn, put pressure on local authorities to enact further restrictions. Hundreds of localities have passed ordinances imposing varying restrictions. For example, one prohibits a sex offender from living 1000 feet from another sex offender. Cities in Orange County have recently put in place the most restrictive ordinances to date. Alternatively, cities have responded by building “pocket parks” that effectively drive offenders out of the area.
Semantic quibbles aside, those subject to Jessica’s Law are in a category unto themselves. Sex offenders hardly constitute a sympathetic group, and that is part of the problem. Subjecting even the most loathsome among us to the whims of popular outrage has no place in an ordered society. The legal regime imposed on sex offenders today sets a precedent that can be used in the future to justify similar impositions on other groups. Moreover, the arbitrary provisions in Jessica’s Law may only frustrate the fight against sexual violence. The Sex Offender Management Board has cited research showing that employment and stable housing are the most significant factors in predicting whether a sex offender will re-offend. In addition, more sex offenders are going wholly unregulated as a result of Jessica’s Law as they become increasingly willing to abandon their tracking devices. Parolees, then, ignore all provisions of SORA, including registration of current addresses with local police.
Conclusion: Facing Unpleasant Facts
As authorities struggle to cope with limited resources, the problems created by Jessica’s Law are taking a toll on the state’s larger penal system. California is being compelled by a federal court order to take major steps to lower its prison population.To comply, the “realignment” program prevents parole violators from being sent to state prisons, directing them to county jails instead. Struggling with their own budget and overcrowding issues, county jails are being forced to prioritize among violent criminals. Ultimately, the lack of resources means that those in violation of SORA are set free within a day, if booked at all. State legislators have responded by calling for tough mandatory prison sentences for those removing GPS devices. Senator Ted Lieu maintains that by imposing tougher punishments, “sex offenders will have second thoughts about roaming freely among the public with zero oversight.” Perhaps, but given the state’s track record and the conditions imposed upon these offenders, second thoughts will not lead to different decisions.
Doubling down on Jessica’s Law is unwise in any event; but given the circumstances discussed above, it would be counterproductive. The sixty-five-million dollar per year program will direct resources away from effective crime prevention and into a misconceived and failed program. The GPS tracking devices are powerless to stop crime because they do not reveal the sex offender’s actions. The devices send occasional signals to independent contractors who merely verify whether the offender is complying with residency restrictions. As such, their sole purpose is to enforce a policy that many are realizing is arbitrary and needlessly oppressive. As California faces unprecedented legal and financial challenges, we cannot afford to choose a false sense of security over reasoned public policy. Jessica’s Law protects no one and it has proven to be costly in more ways than one.