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CA Supreme Court Ruling on Sex Offender Retroactivity (for those on parole)

February 1, 2010

mercurynews.com: California Supreme Court upholds state enforcement of sex offender ban.

Voter-approved limits on where sex offenders can live can apply legally to parolees who committed their sex crimes long before Jessica’s Law passed, the California Supreme Court ruled today.

The ruling means state parole agents can continue enforcing a ban on sex offenders living within 2,000 feet of a school or park where children “regularly gather” — the most controversial provision of the 2006 ballot measure backed by 70 percent of voters.

The majority opinion from Justice Marvin R. Baxter found that the 2,000-foot ban does not amount to retroactive punishment as a parole condition for convicts who are required to register as sex offenders.

“It matters not … whether the registered sex offender is being released on his current parole for a sex or nonsex offense,” Baxter wrote. To rule otherwise, he wrote, would grant parolees with earlier sex convictions “a free lifetime pass” from the ban.

The court, however, declined to say whether the law can apply to those sex offenders once they leave parole, saying there is no evidence that it is being enforced against anyone but parolees.

Critics say the ban has forced thousands of registered sex offenders into homelessness, potentially raising the risk of recidivism. Since the law passed, the number of paroled sex offenders registered as transient has risen from less than 100 to more than 2,200. The ranks of homeless sex offenders increased dramatically over the past year, after state parole officials cut back on paying for motel rooms and apartment rents for many sex offenders.

The plaintiffs in the case are four registered sex offenders who committed their sex offenses before the law passed but were later released from prison after serving time for other crimes. They claimed the ban amounted to retroactive punishment, also arguing that the law is unconstitutionally vague and that the 2,000-foot ban infringes on various constitutional rights, including property and privacy rights, by severely limiting where they can live. The court left that question open, ruling that the plaintiffs would need to show lower courts that the law is overly restrictive in the counties where they live.

Justices Carlos R. Moreno and Joyce Kennard dissented, arguing that the 2,000-foot ban should apply only to those convicted of sex offenses after the law passed.

Ernest Galvan, an attorney for the plaintiffs, said the ruling, and the constitutional questions it left open, warrant a change in the law.
“This is in no way a green light for rousting sex offense registrants out of their homes or starting a round of local enforcement of these residency restrictions,” Galvan said. “There are still very grave constitutional doubts about this law. The best thing to do would be for the Legislature to fix it.”

Proposition 83, backed by 70 percent of voters in 2006, stiffened penalties for some sex crimes, required lifetime GPS monitoring of newly released sex criminals and set the 2,000-foot “predator free zones.” It is considered among the nation’s stiffest anti-predator laws.
One advocate for sex offenders predicted that San Francisco, where state maps show scant available housing outside the zones, will turn the legal tide against the 2,000-foot rule. “This case is not over,” said Jake Goldenflame, himself a convicted sex offender and author of “Overcoming Sexual Terrorism.” “It is just beginning.”

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