Law enforcement authorities in California will have to be more circumspect about restrictions on paroled registered sex offenders after a state appellate court ruled last week that a law banning them from living 2,000 feet from a park or school was unconstitutional.

Voters approved Proposition 83, known as Jessica’s Law, in 2006 to further restrict the movements of sex offenders and reduce the threat of predators in areas with children. In so doing, they made it nearly impossible for the parolees to find any legal housing. The Fourth District Court of Appeal unanimously ruled that the blanket prohibition had to end, although parole officers were still free to set those kinds of limits on an individual basis.

Data presented to the court on behalf of four San Diego sex offenders who challenged the law established that 97% of the multi-family housing that they would likely be seeking in the city was off limits to them. As a result, two of them lived in the alley behind their parole office, on the advice of the agents, one lived on a San Diego riverbed with other sex offenders and a fourth lived in a van.

An analysis of data in other cities turned up similar restrictive circumstances. In San Francisco, there was virtually no legal housing available to those covered by the law.

As of August 29, there were 9,912 sex offenders on parole in the state, according to the California Department of Corrections and Rehabilitation. Of those, 6,968 were in communities subject to Jessica’s Law and 2,077 were considered high-risk.

Activists involved in the issue point out that there were an estimated 106,000+ registered sex offenders in California as of this year. The National Center for Missing & Exploited Children (NCMEC), which regularly surveys the issue, says nearly one out of every seven sex offenders in the nation lives in California. Texas is a distant second at 68,529.     

But the numbers can be misleading because they include people convicted of nonviolent crimes—public urination, solicitation, streaking and consensual sex with teenagers—who are not likely to be predators. The court found that balancing constitutional rights against the perceived predator threat was problematic.

The law “imposes a substantially more burdensome infringement on constitutional rights than is necessary to protect children from sex crimes,” Justice Patricia D. Benke wrote for the court. “The blanket enforcement . . . has been unreasonable and constitutes arbitrary and oppressive official action.”

The court also noted that the restriction limited parolee’ access to rehabilitative and medical treatment services, which are usually found in densely populated areas that are off-limits to them. “Relegated to rural areas of the county, petitioners are cut off from access to employment, public transportation and medical care,” Justice Benke wrote.

The ruling is expected to be appealed to the California Supreme Court, which issued an earlier ruling in 2010 on a narrow question raised about the law. The justices decided that the housing restriction applied to all paroled sex offenders, regardless of when they committed their crime. But the court said it lacked enough evidence to rule on law's constitutionality. The court left open the door for registered sex offenders to challenge residency requirements, and the San Diego case was filed in response to the ruling.

In November 2010, Los Angeles Superior Court Judge Peter Espinoza declared the distance provisions of Jessica’s Law unconstitutional. Although the California Second District Court of Appeal, Division 4, reversed that ruling on May 16, it was appealed to the state Supreme Court. Meanwhile, Los Angeles County was the only jurisdiction that did not broadly apply the 2,000-feet restriction.

–Ken Broder

To Learn More:

Prop. 83 Violates Sex Parolees’ Rights (by Bob Egelko, San Francisco Chronicle)

San Diego Sex Offenders Upset Residency Limit (by Lorraine Bailey, Courthouse News Service)

Sex offender residential requirements unconstitutional, court rules (by Emily Green, San Francisco Daily Journal)

Part of Jessica's Law Ruled Unconstitutional (by Andrew Blankstein, Los Angeles Times)

In re William Taylor et al on Habeas Corpus (Fourth District Court of Appeal) (pdf) 

Sex Offender Information (California Department of Corrections and Rehabilitation)