BILL ANALYSIS
SB 277
Page 1
Date of Hearing: June 28, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 277 (Battin) - As Amended: June 13, 2005
FOR VOTE ONLY
SUMMARY : Prohibits the placement of any parolee who upon
release must register as a sex offender, within one and one-half
miles of any public park, day care, preschool, or public or
private school, including Kindergarten and Grades 1 through 12
inclusive. Specifically, this bill :
1)Prohibits the California Department of Corrections (CDC) from
placing persons released on parole and who must register as
sex offenders within one and one-half miles of any pubic park,
day care, preschool, or public or private school, including
any or all of Kindergarten and Grades 1 to 12, inclusive.
2)Prohibits an inmate released on parole who must register as a
sex offender from residing, for the duration of his or her
parole, within one and one-half miles of any pubic park, day
care, preschool, or public or private school, including any or
all of Kindergarten and Grades 1 to 12, inclusive.
3)Requires CDC to notify by mail, at least 60 days prior to the
scheduled release date from prison of an inmate required to
register as a sex offender, the sheriff or chief of police, or
both in the community in which the person was convicted.
4)Requires CDC to notify by mail, at least 60 days prior to the
scheduled release date from prison of an inmate required to
register as a sex offender, the sheriff or chief of police, or
both in the community in which the person is scheduled to be
released on parole, or released following a period of
confinement pursuant to a parole revocation without a new
commitment.
EXISTING LAW :
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1)States that except as otherwise provided, an inmate who is
released on parole shall be returned to the county that was
the last legal residence of the inmate prior to his or her
incarceration. [Penal Code Section 3003(a).]
2)States that an inmate who is released on parole for any
violation of child molestation or continuous sexual abuse of a
child shall not be placed or reside, for the duration of his
or her period of parole, within one-quarter mile of any public
or private school including any or all of Kindergarten and
Grades 1 to 8, inclusive. [Penal Code Section 3003(g).]
3)States that "last legal residence" shall not be construed to
mean the county wherein the inmate committed an offense while
confined in a state prison or local jail facility, or while
confined for treatment in a state hospital. [Penal Code
Section 3003(a).]
4)Provides that an inmate may be returned to a county other than
that of his or her last legal residence if that would be in
the best interests of the public. [Penal Code Section
3003(b).]
5)States that if the inmate is released on parole to another
county, the paroling authority shall place its reasons in
writing and include these reasons in the required notice to
the sheriff or chief of police of that county, as specified.
[Penal Code Sections 3003(b) and 3058.6.]
6)Sets forth the factors the paroling authority shall consider
in making its placement decision, and states that the greatest
weight to the protection of the victim and the safety of the
community. These factors include:
a) The need to protect the life or safety of a victim, the
parolee, a witness or any other person;
b) Public concern that would reduce the chance that the
inmate's parole would be successfully completed;
c) The verified existence of a work offer or an educational
or vocational training program;
d) The existence of family in another county with whom the
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inmate has maintained strong ties and whose support would
increase the chance that the inmate's parole would be
successfully completed; and,
e) The lack of necessary outpatient treatment programs for
parolees receiving specified treatment.
7)Provides that the CDC, in determining an out of county
placement, shall give priority to the safety of the community
and any witnesses and victims. [Penal Code Section 3003(c).]
8)States that specified identifying information shall be
provided by CDC to local law enforcement agencies regarding a
paroled inmate who is released into their jurisdictions.
[Penal Code Section 3003(e).]
9)Provides that an inmate released on parole shall not be
returned to a location within 35 miles of the actual residence
of the victim of, or a witness to, a violent felony, as
defined. [Penal Code Section 3003(f).]
10)Requires the paroling authority to give consideration to the
equitable distribution of parolees and the proportion of
out-of-county commitments from a county compared to the number
of commitments from that county when making parole decisions.
[Penal Code Section 3003(i).]
11)Allows an inmate to be paroled to another state pursuant to
any other law. [Penal Code Section 3003(j).]
12)Prohibits parolees who are required to register as sex
offenders from residing, during the period of parole, in any
single-family dwelling with any other person required to
register as a sex offender unless those persons are related by
blood, marriage, or adoption. States that a "single family
dwelling" does not include a residential facility that serves
six or fewer persons. (Penal Code Section 3003.5.)
13)Provides that parolees deemed to pose a high risk to the
public of committing violent sex crimes shall be placed on
intensive and specialized parole supervision caseload. [Penal
Code Section 3005(a).]
14)States that subject to the appropriation of funds, the CDC
may implement a plan of relapse prevention treatment to reduce
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the recidivism of high-risk sex offenders and study the
effects on recidivism, with a final report due to the
Legislature by January 1, 2006. Further provides that this
section shall remain in effect only until July 1, 2006 unless
a later enacted statute is enacted before July 1, 2006 that
deletes or extends that date. [Penal Code Section 3005(b).]
15)Requires the CDC to provide specified information to local
law enforcement 15 days before the scheduled release date of a
person required to register as a sex offender, and to notify
local law enforcement within 36 hours of learning of any
changes to the scheduled release date or any of the
information required to be provided. (Penal Code Section
290.6.)
16)Establishes a three-tiered Internet Web site to notify the
public of specified information regarding certain registered
sex offenders. (Penal Code Section 290.46.)
17)Provides that the Internet Web site include the specific home
addresses for specified registered sex offenders. [Penal Code
Section 290.46(b).]
18)Provides that the Internet Web site include the community of
residence and zip code, rather than specific residence
addresses, for other specified sex offenders. [Penal Code
Section 290.46(c).]
19)Allows a law enforcement agency to provide specified
information about registered sex offenders as necessary to
protect the public, to specified public and private
institutions and other community members at risk. [Penal Code
Section 290.45(a)(1).]
20)Provides that prisoners on parole are under the legal custody
of the CDC and are subject at any time to be taken back within
the enclosure of the prison. (Penal Code Section 3056.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill would
expand state law to ensure that neighborhoods receive adequate
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notice and protection from paroled sexual predators. [This
bill] requires the State Board of Parole to give local law
enforcement a 60-day notice of all convicted Megan's Law
registrants who are to be paroled into their jurisdiction.
"[This bill] also prohibits any [parolee required to register as
a sex offender] from being placed within one and one-half mile
of a public park, day care, pre-school, or public or private
school. This restriction currently only applies to child
molesters convicted under [specified Penal Code Sections] and
is limited to a one-quarter mile of public and private
schools."
2)Background : According to background information supplied by
the author, a high-risk sex offender was paroled into a
community care facility located 1.1 miles from an elementary
school located on a major road artery on which three other
schools and more than 2,500 students are located.
Following this placement, the Riverside County Board of
Supervisors passed Ordinance Number 841 in response. The
ordinance makes a number of demands on the CDC and establishes
"significant restrictions on sex offenders in unincorporated
areas of the county."
According to the author, this ordinance is "unfortunately likely
unconstitutional because a county cannot preempt state law.
As a result, most law enforcement agencies believe the
ordinance will be unenforceable."
3)Re-Integration of Formerly Incarcerated Persons into Society :
According to "A Civil Rights Task: Removing Barriers to
Employment of Ex-Convicts", University of San Francisco Law
Review (2004) 38 U.S.F.L. Rev. 193, "Our nation faces a
growing problem that cries out for careful, rational reforms.
(Emphasis added.) As of June 2002, the prison and jail
population exceeded two million inmates for the first time.
State prisons operated between 1% and 16% above capacity and
federal prisons operated 31% above capacity. The inmate
population grew an average of 3.8% each year from 1995 to
2002.
"This inmate population naturally turns over - in 2001, over
600,000 prisoners were released on probation or parole, or
because they completed their sentences. Those released
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persons face the daunting task of integrating themselves back
into the very different mainstream society and most
importantly into the work world. The task of integrating the
ex-offender into employment is a valuable task for society to
undertake because unemployment is strongly correlated with
recidivism. Unfortunately, there are many laws and ordinances
that prohibit ex-offenders from certain categories of
employment, thus impeding that facet of the
rehabilitation process.
"A very important question [is:] . . . should traditional civil
rights organizations, concerned with improving the conditions
for black Americans, begin to treat this problem as one that
is in urgent need of law reform? If so, what resistances will
such organizations meet, and what strategies are appropriate
responses?
"By the mid-1990's, approximately one-half of the inmates
nation-wide were African-American despite the fact that blacks
were only 13% of the total population. Additionally, the
overwhelming bulk of inmates were male as opposed to female.
The blocking of ex-convicts from employment is thus, very
much, a 'black' problem." Laws that are facially neutral but
have a racially disparate impact violate the equal protection
clause of the constitution. [ Wang v. Hoffman , 694 F. 2d 1146
(9th Circuit 1980.), citing Green v. Missouri Pacific Railroad
Co., 523 F. 2d 1290, 1295 (8th Circuit 1985).]
According to No Second Chance , a publication of the Human Rights
Watch, United States courts have recognized "the obvious fact
that criminal records screening has a disparate impact on
racial and ethnic minorities." [See, e.g., Green v. Missouri
Pacific Railroad , supra.] No Second Chance also points out
that there is striking data from certain states and the first
state listed is California. ( No Second Chance , page 85.)
"Only 7% of the state's population, African Americans account
for 20% of all felony arrest and 31% of the prison population
in California," citing Three Strikes: The New Apartheid ,
Center on Juvenile and Criminal Justice (1996).
Arguably, the plight facing sex offender registrants is even
more severe that the overall difficulties imposed upon people
released from prison for other crimes. If barring former
inmates from employment is the critical problem addressed in
University of California, San Francisco, law review article,
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supra, the nature of that problem is compounded many times by
the restrictions proposed by this bill on housing of parolee
sex offenders. The location of housing, the availability of
public transportation, and a stable living environment are
inextricably interrelated with finding and maintaining
employment.
This is a serious public safety issue as the lack of employment
has been cited as a factor in recidivism, as has the lack of a
stable living environment. By banishing sex offender parolees
to discrete colonies far from schools, parks, daycare, etc.,
this bill also proposes to banish them to what are likely
remote locations lacking suitable, or any, employment
opportunities, sufficient affordable housing, and available
mass transit. Thus, this bill proposes to make their
successful reintegration into society far less likely and the
likelihood of recidivism greater.
Given the serious consequences implicit in the sex offender
registration and related laws, is it good policy to enact
piecemeal legislation in reaction to the release of a single
parolee one mile from a school? (According to background
information provided by the author's office, this bill was
introduced in reaction to the release of a single parolee into
a group home in Mead Valley.) Or, as suggested by the
above-cited law review article and by a member of this
Committee at a previous hearing, should a comprehensive,
careful, and rational approach be adopted as to any revisions
to California's sex offender registration and related laws?
4)Parolees Required to Register as a Sex Offender : According to
CDC, there are approximately 9,000 parolees under supervision
in California who are required to register as a sex offender.
Of this number, approximately 3,000 had been convicted of
offenses related to lewd acts with a child. Although the
provisions of this bill apply to the entire universe of sex
offender parolees, the prohibitions in this bill and the
author's statement tend to indicate that it is the registrants
who committed offenses against children who are the specific
target of this bill.
Yet, this bill includes all of the parolee sex offender
registrants on parole and prohibits them from residing within
one and one-half miles from schools, parks, day care centers,
pre-schools, etc. Is there a rational basis for applying such
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a strict exclusionary housing policy to parolees who have
never molested or abused a child?
A related question could be raised as to the more than 600
rapists on parole. Should the law reflect equal concern for
all vulnerable victims of sexual crimes? For example, should
there be an analogous prohibition against rapists residing
within one and one-half miles of any women's clothing stores,
any obstetrician/gynecologist's office, women's fitness
centers, convents, etc.? The female victims of these rapists
might argue that as similarly-situated victims of a violent
sex crime they deserve the same considerations given to child
victims by this bill.
5)Is This Bill Workable ? If all sex offenders on parole,
regardless of the crime requiring registration, were precluded
from living within one and one-half miles of a school,
preschool, day care, and public park, it would be virtually
impossible for sex offenders to live in most urban areas and
arguably most suburban areas as well. For example, under the
provisions of this bill, no sex offender registrant parolees
could be placed, or reside, within the City and County of San
Francisco. Maps of other suburban cities indicate that most
of their areas are excluded merely by extending the distance
from schools; when public parks, day care centers and
preschools are factored into the equation, it appears that
most urban and suburban areas will be zones in which no sex
offender on parole may reside.
To the extent that there may be areas in cities that are not
within one and one-half miles of a school, a preschool, a day
care center or a park, those areas would most likely be in
industrial parts of the city. It is unclear that even highly
industrialized areas of cities do not have some land dedicated
as park area. Such a residency restriction would lead to
massive clustering of sex offenders in particular,
identifiable areas, where medical and psychological services
are not readily available.
In the alternative, this residency restriction would require sex
offenders to live in unpopulated rural areas, which would lead
to the same problems of clustering and unavailability of
services.
6)Location of Schools : According to the California Department
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of Education, in urban areas densely populated with
multifamily apartments, schools may be designed to serve a one
square mile attendance area. The school district may have
schools located 1.5 to 2.5 miles apart if the residences are
single-family homes. Assuming that the area had no parks, day
care centers, or pre-schools, it is possible that the location
of schools would allow for small "corridors" or "clusters"
between the schools into which urban-placed sex offender
parolees could be concentrated if available housing could be
found.
This bill is applicable to all public and private schools,
Kindergarten through Grade 12, inclusive. Home schooling of
children is an option increasingly chosen by many parents.
Are home schools contemplated as "private" schools covered by
this bill? Is there a readily available listing of addresses
at which minors are being "home-schooled?" A 1996 study by
the National Home Education Research Institute (NHREI)
concluded that there were 1.23 million children in the United
States being home schooled in the fall of 1996 and estimated
that home schooling has a sustained growth rate of 15% to 20%
for the last three decades.
The Education Code contains other bases for exemption of minors
from attendance at regular schools; e.g., exemptions for
children working in the entertainment industry, children being
privately tutored, etc. Would such alternate places of
education be covered by the provisions of this bill?
7)Day Care Centers : Similarly, day care centers and preschools
may not be clearly delineated on maps and are often located in
residential areas without visible signage. While the
Department of Social Services licenses child care facilities
that apply for such licenses, there are also undoubtedly an
unknown, and continually changing, number of unlicensed child
care facilities being conducted out of residential homes.
According to background information received on this bill, there
are approximately 60,000 licensed child care facilities
located throughout California. Of these 60,000 facilities,
approximately 13,000 are child-care centers, approximately
42,000 are child-care homes, and 5,000 are county-licensed
child-care homes. In order for CDC to comply with the
mandates of this bill, CDC would have to obtain the addresses
of the 60,000 licensed facilities, locate them on a map, and
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disseminate the information to all paroling authorities and
parole agents. It is unclear how CDC could compile the same
information as to the unlicensed child-care facilities being
operated by individuals from their private residences.
A perusal of the classified advertisements in any newspaper
makes it abundantly clear that day care centers are prevalent
in both urban and suburban communities. Some are licensed,
and some are not licensed. Licensure status is a fluid
matter; a day care center may be licensed today and go out of
business for any number of reasons next week. Tracking the
unlicensed, day care centers for purposes of this bill would
be virtually impossible. Since this bill states that sex
offender parolees may not be placed, and may not reside,
within one and one-half miles of the day care centers,
preschools, private schools, public schools, and public parks,
what does this bill contemplate as to a parolee who is
properly placed within the constraints of this bill only to
have a residential day care center go into operation within
one and one-half miles of the placement in the following
month?
A literal reading of this bill indicates that the parolee would
be in violation of the provisions of this bill if he or she
continued to reside in the housing designated by the paroling
authority if, after the parolee has been placed, a person
residing within one and one-half miles decides to start a
small child-care business in his or her home. Does this bill
contemplate that the burden is on the parolee to ascertain the
existence of new, perhaps unlicensed, day care centers that
may have recently opened? Or is the burden on the parole
agent to keep abreast of such new businesses and relocate his
or her affected parolees accordingly? If the parolee failed
to move in such a case, would this be grounds for parole
revocation and return to prison? What consequences, if any,
would inure to CDC for non-compliance?
8)Public Parks : This bill contains no definition of a "public
park." There are references to public parks in a number of
statutes in the Government Code and Public Resources Code,
although none provide a general, overall definition applicable
to all law. According to the Public Park Preservation Act of
1971, "As used in this chapter, 'public park' includes only a
park operated by a public agency." However, as discussed
below, other sections of the Public Resources Code employ a
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broader implied definition, and the Government Code discusses
public land used for recreational purposes in the same
sections as public parks. (See, e.g., Government Code Section
25550 et seq.)
Therefore, it can be assumed that a public park is any land
owned by a governmental entity and set aside for use as a park
or used for recreational activities. A public park may
include private land used as a park or for egress and ingress
to and from a park, as to which an easement has been granted
for general use. There are 26 national parks, such as
Yosemite, in California; and 278 state parks, many of which
are adjacent to urban areas or residential developments.
There are municipal parks of all sizes and types, such as
greenbelt areas within a housing subdivision, skateboard
parks, dog parks, children's parks, neighborhood parks, and
land devoted to community gardening. National or state
forests and wilderness areas, as well as rivers, streams,
lakes, bays, tidelands, wildlife refuges, beaches, golf
courses, may be considered public parks. (11 A.L.R. Fed. 556;
Government Code Section 25550 et seq.)
Additionally, Public Resources Code Section 5096.144 includes
lands and water areas suitable for public parks, beach or
recreational purposes in its discussion of places suitable for
public parks including, but not limited to, areas of
historical significance and areas of open space that
complement park, beach, or recreational areas or which are
suitable for the preservation of coastal resource values.
Moreover, Government Code Section 40401 makes it clear that
local governing bodies may acquire land for public squares,
parks, and playgrounds; this is a matter of local, not
statewide, concern. Similarly, the local governing agency may
change the location of a park through local procedures.
(Government Code Section 5407.2.)
The above discussion seemingly leads to the inevitable
conclusion that the state paroling authority, parole agents,
or parolees would find it difficult if not impossible to
develop and maintain accurate maps reflecting the location of
all public parks. If the parole agent and the parolee are
unable to determine where all public parks are located, how
are they to determine whether a proposed residence is within
one and one-half miles of such a park?
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Moreover, cities frequently designate formerly vacant land as a
park site; there are neighborhood parks, skateboard parks, dog
parks, etc, in many small California cities, as well as
larger, more officially designated parks such as Golden Gate
Park in San Francisco. If a parcel of privately owned land is
suddenly acquired by a city in order to provide recreational
opportunities to its residents, is a sex offender parolee who
was placed within one and one-half miles of this parcel of
land now required to move? If a community garden project
sprouts on formerly vacant urban land, what relocation, if
any, is required of the parolee subject to this bill? Any
publicly owned land used for recreational purposes appears to
fall within the broad definition of "public park."
Does CDC have the resources to constantly monitor the actions of
every California city council to determine what new business
licenses for child care may have been issued and what formerly
vacant land has now been designated as a skateboard park, a
dog park, or a local neighborhood park? Does CDC have the
resources, both financial and personnel, to continually move
the parolees subject to this bill in order to maintain
compliance with its provisions? The monitoring and relocation
activities mandated by this bill would seem to consume a huge
amount of parole agent resources, if indeed the relocation
could be accomplished under the strictures of this bill. In
general, CDC estimates that temporary hotel placement of
parolees until an appropriate placement in the county of last
legal residence is located costs at least $65 per day, per
parolee.
9)Unconstitutionally Vague : According to a recent Ninth Circuit
Court of Appeals case, "A statute is void for vagueness (and
thus unconstitutional under due process) if the statute: (a)
does not define the conduct it prohibits with sufficient
definiteness and (b) does not establish minimal guidelines to
govern law enforcement. A criminal statute cannot be so vague
that men of common intelligence must necessarily guess at its
meaning and differ as to its application." [ U.S. v. Wyatt ,
2005 U.S. App. LEXIS 9635 (May 26, 2005).]
"In determining whether a statute is void for vagueness, we also
consider whether the statute defines the offense 'in such a
manner that does not encourage arbitrary and discriminatory
enforcement,' citing Kolender v. Lawson , 461 U.S. 352, 357
(1983). A scienter requirement can help a law escape a
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vagueness problem," citing Posters 'N' Things v. United
States , 511 U.S. 513, 526 (1994). ( Wyatt, supra, at HN 7.)
The provisions of this bill with respect to day care, public
parks, and schools arguably, due to the lack of any
definitions, do not define the prohibited areas with
sufficient definiteness and may cause people of ordinary
intelligence to guess as to whether an area is a public park
or whether a home with a number of children is a day care
center or merely a large family.
Moreover, this bill provides no guidelines to law enforcement,
which is of particular concern due to the wide sweep of the
prohibitions - prohibitions which would affect both parole
agents and parolees. Further, as discussed below, this bill
fails to define the offense in such a manner that does not
encourage arbitrary and discriminatory enforcement.
( Kolender, supra, at page 357.) As stated in the Wyatt case,
supra, "[an] intent requirement thus limits the discretion of
law enforcement and mitigates any perceived vagueness." (Id.)
This bill lacks the intent requirement which "can help a law
escape a vagueness problem." (Id.) It may also be written in
such a way as to encourage arbitrary and discriminatory
enforcement.
10)Discriminatory Enforcement : On the basis of previous study
of the issue of locating sex offenders within specified
distances of schools, it is apparent that there are some
counties, such as San Francisco, in which there is no housing
available for sex offender registrant parolees pursuant to the
provisions of this bill. Maps previously provided by CDC also
demonstrate there is little, if any, housing available in
cities such as Cupertino, Sunnyvale, and Indio under the
increased restrictions which have been proposed regarding
location near schools. By adding prohibitions on location
near parks, day care, and pre-schools, it seems apparent that
only rural areas in the central valley's farm areas, or desert
areas near Los Angeles, may be available for housing parolees
required to register as sex offenders. It is not clear that
such areas would be permissible housing zones under this bill
due to the difficult nature of identifying the location of
unlicensed day care and parks of all types.
Therefore, the paroling authority will be faced with the dilemma
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of relocating the parolee from what may be a stable
environment to an unknown area, outside of his or her county
of last legal residence and away from the parolee's family,
job, and support system, or being in non-compliance with the
law. The parolee will face the same impossible choice.
Sex offender registrant parolees residing in large urban areas
may not attract the media and other attention received by sex
offenders located in other areas of California. Does this
bill invite inadvertent or passive violation of this bill's
prohibitions depending upon the local community's reaction to
public notification and media coverage of the parolee's
residence?
How likely is it that this bill would, or could, be equally
enforced as to all parolees in the state required to register
as sex offenders? If the provisions of this bill are not
applied equally to every sex offender parolee in California, a
number of additional unintended consequences arise, including
the potential of discriminatory and/or arbitrary parole
revocations, unequal provision of medical treatment and
services, disparate racial or ethnic impacts, etc.
Any of these effects could give rise to a constitutional
challenge on equal protection grounds. "Group classification
by legislative act will be analyzed under the strict scrutiny
test if the classification infringes fundamental rights or
concerns a suspect class." [ City of Cleburne v. Cleburne
Living Center , 473 U.S. 432, 440 (1985).] Although sex
offenders, per se, are not a suspect class, discriminatory
enforcement of the provisions of this bill could impact a
group of persons who do constitute, or are found to
constitute, a suspect class.
Additionally, any of these consequences may result in further
litigation and increase the potential that an appellate court
will find the sex offender registration and related statutes
punitive and no longer protected by the existing judicial
determinations that sex offender registration statutes are
civil, regulatory schemes. [See, e.g., Smith v. Doe , 538 U.S.
84 (2003).]
The provisions of this bill, and the consequences if enacted,
may be so severe as to be vulnerable to attack on the factors
determining a regulatory scheme, particularly those related to
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the imposition of an affirmative disability or restraint, the
lack of a rational connection to a non-punitive purpose, and
its excessive provisions with respect to this purpose.
11)The Kennedy v. Mendoza-Martinez Factors : In determining that
sex offender registration statutes are, in general,
constitutional, the United States Supreme Court identified a
number of factors to be considered in determining whether the
sex offender requirements were punitive in nature or merely a
civil regulatory scheme. [ Smith v. Doe , 538 U.S. 84 (2003).]
The factors are whether the regulatory scheme: (a) has
historically been regarded as punishment, (b) imposes an
affirmative disability or restraint, (c) promotes the
traditional aims of punishment, (d) has a rational connection
to a non-punitive purpose, or (e) is excessive with respect to
this purpose. [Id., citing Kennedy v. Mendoza-Martinez , 372
U.S. 144 (1963).]
Several of the factors seem particularly applicable to this
bill:
a) Affirmative Disability or Restraint : Does this bill
impose restraints so severe as to be punitive, rather than
regulatory, in nature? The sex offender registration laws
have been upheld by the courts to date because they have
been determined to be civil, rather than punitive, in
nature. To the extent that the State enacts laws that
impose severe and unreasonable restraints on sex offender
registrants, it is arguable that appellate courts will find
such laws unconstitutional. Does this bill, and others
like it, threaten the entire Megan's Law civil regulatory
scheme in California?
In analyzing Alaska's sex offender registration requirements,
the United States Supreme Court found that "our system does
not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as
punishment. In contrast to the colonial shaming
punishments, the State does not make the publicity and the
resulting stigma an integral part of the objective of the
regulatory scheme. . . . The purpose and principle effect
of notification are to inform the public for its own safety
. . . . " (Id. at page 99.)
The Supreme Court noted that the act does not restrain
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activities sex offenders may pursue but leaves them free to
change jobs or residences, stating "the record in this case
contains no evidence that the [sex offender registration
laws] have led to substantial occupational or housing
disadvantages for former sex offenders that would not
otherwise have occurred through the use of routine
background checks . . . . " (Id. at page 100.)
The clear implication from this discussion is that to the
extent the sex offender registration and public
notification laws impose substantial housing disadvantages
on former sex offenders, the effect of such laws might more
easily be determined to be punitive rather than regulatory.
To the extent that public notification of the names of sex
offender registrants imposes an affirmative duty or
restraint on registrants which is greater than minor or
indirect, the effect is more likely to be determined
punitive. If the law is determined to be punitive in
nature, constitutional validity under the ex post facto
provisions is called into question. [Id. at page 99,
citing Kennedy v. Mendoza-Martinez , supra, at page 168
(1963).]
The Smith Court concluded that "whether other constitutional
objections can be raised to a mandatory reporting
requirement, and how those questions might be resolved, are
concerns beyond the scope of this opinion. It suffices to
say the registration requirements make a valid regulatory
program effective and do not impose punitive restraints in
violation of the Ex Post Facto Clause." ( Smith , supra, at
page 102.)
b) Banishment : In Doe v. Miller , 405 F. 2d 700, 725 - 726
(April 29, 2005), 8th Circuit Court of Appeal Judge Melloy
concurred in part and dissented in part as to the
application of the Kennedy v. Mendoza-Martinez , supra,
factors regarding a determination if a law is punitive and
subject to constitutional challenge under the ex post facto
clause of the United States Constitution. Judge Melloy
stated that the residency restrictions at issue in Doe v.
Miller did not amount to full banishment (a factor
indicative of a punitive scheme), "it sufficiently
resembles banishment to make this factor weigh towards
finding the law punitive." (Id. at page 724.)
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In his concurring and dissenting opinion, Judge Melloy
further found that the residency requirement imposed an
affirmative restraint or disability and distinguished the
prohibitions in the Iowa law at issue in this case and that
discussed by the United States Supreme Court in Smith v.
Doe , 538 U.S. 84, 92 (2003), in which the offenders "were
free to change residences." Judge Melloy stated, "I would
find that the affirmative disability or restraint intrinsic
in the residence requirement distinguishes it from the sex
offender registry in Smith and weighs in favor of finding
the law punitive." ( Doe v. Miller , supra, at page 725.)
c) Excessive In Relation to Its Purpose: In his further
analysis of the Kennedy v. Mendoza-Martinez factors, Judge
Melloy stated that the restriction "is excessive in
relation to [the non-punitive purpose.] The effect of the
requirement is quite dramatic: many offenders cannot live
with their families and/or cannot live in their home
communities because the whole community is a restricted
area. This leaves offenders to live in the country or in
small, prescribed areas of towns and cities that might
offer no appropriate, available housing." (Id.)
12)Constitutional Challenge to This Bill : Inasmuch as the
United States Supreme Court specifically discussed affirmative
restraints on housing in its consideration of the
constitutionality of the Alaska sex offender notification laws
and also left the door open to "whether other constitutional
objections can be raised to a mandatory reporting
requirement," it appears likely that this bill's extreme
prohibitions on all sex offenders on parole living within one
and one-half miles of schools, daycare centers, parks, etc.
would be subject to constitutional challenge. According to
the Iowa Civil Liberties Union (ICLU) plans to seek review of
the Doe v. Miller decision by the entire 8th Circuit Court of
Appeal in hopes of obtaining a reversal. The ICLU newsletter
states "in the meantime, sex offenders across the state are
preparing to pull up stakes and leave their registered
residences." (ICLU, The Defender , June 2005.)
Pending further constitutional challenges, sex offenders have
not been declared by the courts to be a protected class. To
date, their rights to be free from burdens placed upon them by
various states have not been declared to be fundamental
rights. Both protected classes and violations of fundamental
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rights are reviewed by appellate courts under the "strict
scrutiny" test, and such laws are upheld only when narrowly
tailored to serve a compelling state interest. [ Doe v. Moore ,
2005 U.S. App. LEXIS 10354 (11th Circuit June 6, 2005), citing
Reno v. Flores , 507 U.S. 292, 302 (1993).]
The United States Supreme Court has recognized that fundamental
rights include those guaranteed by the Constitution's Bill of
Rights as well as certain liberty and privacy interests
implicit in the due process clause and the penumbra of
constitutional rights. These special liberty interests
include "the right to marry, to have children, to direct the
education and upbringing of one's children, to marital
privacy, to use contraception, to bodily integrity, and to
abortion." [ Doe v. Moore , supra, citing Washington v.
Glicksburg , 521 U.S. 702, 720 (1997).]
In enunciating new fundamental rights, courts must determine
whether the asserted right is "one of those fundamental rights
and liberties which are, objectively, deeply rooted in this
nation's history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed." ( Williams v. Attorney General
of Alabama , 378 F. 3d 11232, 1239, citing Glucksberg, supra.)
At present, however, case law indicates that laws regulating sex
offenders are not subject to the constitutional strict
scrutiny test, but to the far less stringent rational basis
test. Would the prohibitions on residency during parole
withstand review under the rational basis test? Under the
rational basis test, courts inquire whether the statute is
"rationally related to legitimate government interests."
( Glucksburg , supra at page 728.)
It could be argued that there is no rational basis for the
assumption that the prohibitions of this bill in any way
protect children in particular or the public at large.
Although this bill prohibits the sex offender parolees from
residing near schools, parks, etc., it does nothing to prevent
such sex offenders from being in the areas where the schools,
parks, day care, etc., are located. In fact, although the
parolee could not under the provisions of this bill live
within one and one-half miles of a public park, that same sex
offender parolee could legally spend seven days per week
sitting in the same park or walking near that same school.
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Is this bill based on the flawed premise that strangers
perpetrate child molestation at or around schools and parks?
There is no indication that a one and one-half mile buffer
zone around schools, parks, day care centers, etc., would
actually protect children. Unfortunately, child molestation
usually occurs within the home of a relative or friend.
According to the federal bureau of Justice Statistics, "in
almost one-half the [molestation] cases [leading to
conviction] the abuser is a parent or relative." (Sarah
Glazer, 'Punishing Sex Offenders,' CQ Researcher, Vol. 6, No.
2, p. 28, January 12, 1996.)
Would the severe prohibitions and restrictions of this bill
survive scrutiny under the rational basis test? Is there a
rational basis to effectively banish 9,000 parolees to
discrete colonies where no one but other sex offenders live
and where they are unlikely to be able to avail themselves of
the treatment and services they need. Will parole agents be
able to effectively monitor and supervise their parolees under
such circumstances?
Does this bill have the practical effect of driving parolees
required to register as sex offenders underground to a life in
which they are unable to comply with the terms and conditions
of their parole and unlikely to continue to register as
required?
13)Laws in Other States : According to a recent Illinois
appellate case, there are 13 states that have enacted some
form of residency restrictions for sex offenders and the
distance they may live from specified locations populated by
children. ( People v. Leroy , 2005 Ill. App. LEXIS 369.) The
distances range from 500 feet (Illinois) to 2,000 feet
(Arkansas, Iowa, Oklahoma and Alabama.) The other states are
California (one-quarter mile); Florida, Georgia, Kentucky,
Louisiana, Ohio, and Tennessee (1,000 feet); and Oregon
(unspecified distance). There is a statutory mandate that the
CDC shall develop criteria that it may consider in placement
of parolees; such criteria should include generally
prohibiting residency near locations where children are the
primary users and the bases for authorizing exceptions.
(Oregon Revised Statutes, Section 144.642.)
Each of these states has restrictions far less severe than those
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proposed by this bill. For example, Ohio's law is restricted
to schools and provides for injunctive relief if sought.
(Ohio Revised Statutes Section 2950.031.) Oklahoma's law is
also restricted to schools and specifies misdemeanor penalties
for violations. (57 Oklahoma Statutes Section 590.)
Several of the other states' laws attempt to deal with some of
the vagueness issues raised by this bill. For example,
Kentucky specifies precisely how the measurement of 1,000 feet
is to be taken: "The measurement shall be taken in a straight
line from the nearest wall of the school to the nearest wall
of the registrant's place of residence." (KRS Section
17.495.) Similarly, Georgia specifies how the distance is to
be calculated (outer boundary to outer boundary of residence).
(Official Code of Georgia Annotated, Section 42 -1 -13.) The
Georgia law also includes a scienter (knowledge) element.
An important consideration is that these states are not all
lifetime registration states. Alabama's registration period
is 15 years unless an aggravated offense; Iowa's is 10 years,
except for violent offenses; Arkansas is 15 years and lifetime
for violent offenses; Florida is 20 years; Georgia is 10
years, except for sexually violent predators; Kentucky is 10
years, and lifetime for repeat offenders; Louisiana is 10
years, except for violent offenses; Ohio is 20 years, with
lifetime registration only for specified offenses; Oklahoma is
10 years, with lifetime registration for repeat offenders;
Oregon is 10 years with lifetime for sexually violent
predators; and Tennessee is 10 years, with lifetime
registration for repeat offenders.
There are other significant differences as well. California
requires all convicted sex offenders to register for their
lifetimes and does not conduct any risk assessment as to their
recidivism propensity. Arkansas, Iowa, Oklahoma, and
Tennessee do conduct a risk assessment.
Therefore, the impact of the severe restrictions imposed by this
bill would be far greater in California, which has more sex
offender registrants and undoubtedly more sex offenders on
parole than any other state.
14)Impact on Public Safety : It is entirely possible that rather
than increasing the safety of the public, this bill could have
the unintended consequence of negatively impacting the safety
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of California's citizens. If a portion of a community could
be found that had no schools, day care centers, preschools and
parks within one and one-half miles, sex offender parolees
would be clustered in such an area. The clustering of sex
offenders is discouraged by existing law for a reason. It is
possible if not likely that such clustering would decrease,
rather than enhance, public safety, particularly to the extent
that the permissive areas of residence are likely to be remote
and lack the necessary medical and psychological treatment and
services recommended for rehabilitation of such offenders.
According to No Second Chance , published by the Human Rights
Watch in 2004, "Exclusionary housing policies constitute one
of the most significant barriers to re-entry [of formerly
incarcerated persons into society.] Excluded from public
housing, they often end up swelling the ranks of the homeless,
become inhabitants of grimy and unsafe transient hotels and
motels, or crowd into the homes of relatives and friends.
None of these options is conducive to the development of
stable, productive lives for former prisoners or their
children." (Id. at page 16.)
The Human Rights Watch Publication further states that "people
who are inadequately housed, especially those living on the
streets or in homeless shelters, are at a higher risk for
communicable diseases such as HIV and tuberculosis," citing
Housing and HIV: Drug and Sex Risk Behaviors , by Angela
Aidala and Jay Cross, Center for Applied Health, Mailman
School of Public Health, Columbia University. (Id at page
42.) "Existing mental health conditions are exacerbated by
the stress of rejection and housing instability." (Id.)
"Recidivism becomes a self-fulfilling prophecy when offenders
are released from incarceration with scant survival options.
[E]xclusionary policies need to be changed not just because it
is the humane thing to do but because it's the smart, public
safety thing to do." (Id. at page 43.)
15)The Impact of Sex Offender Residence Restrictions : In an
article published in the International Journal of Offender
Therapy and Comparative Criminology, Vol. 49, pp. 168 - 178,
"The Impact of Sex Offender Registration Restrictions: 1,000
Feet From Danger Or One Step From Absurd?", it was stated,
"Several states have enacted public policies that prohibit sex
offenders who have abused children from living within close
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proximity to a school, park, day care center, or school bus
stop. The purpose of this exploratory study was to describe
the impact of residence restrictions on sex offender
re-integration and to better understand sex offenders'
perceptions of these laws. A survey of 135 sex offenders in
Florida was conducted. Most of the molesters who responded to
the survey indicated that housing restrictions increased
isolation, created financial and emotional stress, and led to
decreased stability. Respondents also indicated that they did
not perceive residence restrictions as helpful in risk
management and, in fact, reported that such restrictions may
inadvertently increase triggers for re-offense."
The title of the above article seems particularly apt. Is the
Legislature's piecemeal approach to regulating registered sex
offenders truly "one step from the absurd?" On June 13, 2005,
the Salt Lake Tribune newspaper published an article,
"Neighborhood in Texas to be Sex Offender-Fee." The article
begins by stating "the sales pitch for this planned
subdivision goes beyond the usual vision of attractive homes
and amenities - homeowners will be required to pass criminal
background checks and no convicted sex offenders will be
allowed."
The subdivision described is being developed by a real estate
development company which will require home builders to agree
to conduct background checks on home buyers and any juveniles
expected to live in the homes. They could be penalized if
they even unknowingly sell to a convicted sex offender
according to the article. Further, "residents will face
penalties if they allow a convicted sex offender to live in
their homes and will be responsible for checking the
backgrounds of potential buyers if they sell." The
development company "promises to buy a home back for 85%" of
the appraised value if builders sell to a sex offender or if
an owner or a resident is convicted of a sex offense.
Are these and similar restrictions a further step toward a sex
offender registry system that is punitive, not civil, in
nature and thus open once again to constitutional challenge?
16)California Registered Sex Offenders : According to a CCOSO
report, "Using the Internet to Provide Passive Community
Notification About Registered Sex Offenders", "Because
California has been requiring certain sex offenders to
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register since the mid 1940's, far longer than any other
state, California's cumulative total of registered sex
offenders is much larger, both in absolute numbers and
proportionately, than the total for any other state."
According to the report, approximately one out of every 180
adult males in California could be posted on the Internet as
sex offenders.
As of May 2003 (citing Department of Justice Statistics), the
report states there were 100,501 registered sex offenders in
California. Of that number, 1,836 were classified as "high
risk" and 82,190 as "serious." It is those two groups who are
subject to the current Internet notification system. A third
group of registered sex offenders were convicted of crimes not
currently subject to public notification.
According to CCOSO, of the high risk and serious groups, 55,902
were living in the community, 14,556 had returned to jail or
prison, 10,800 had left California, and 2,768 had been
deported. Altogether, 70,458 California residents (almost all
of them adult males) are subject to notification under the
present system. According to the CCOSO report, approximately
one of every 123 adult males in California is a registered sex
offender, although some of these have left California or
failed to re-register as required.
The CCOSO report notes that in addition to the registered sex
offenders, there is a potentially large number of additional
individuals who are also impacted by Internet notification and
related actions, including parents, children, siblings, other
relatives, employers, landlords, associates, etc. By
prohibiting all sex offender parolees from living in so many
areas of California, this bill affects a much larger group of
innocent persons, such as their spouses, domestic partners,
and minor children.
According to the CCOSO report, "Widespread notification is
making it increasingly difficult for registrants to find
housing. This tends to drive them into poorer neighborhoods,
where more dysfunctional families tend to live. Children from
these families are more easily victimized than children in
more affluent, better organized neighborhoods. The Third
National Incidence Study of Child Abuse and Neglect showed
that children living below the poverty line are 18 times as
likely to be sexually abused as children living at or above
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the median income. ["National Incidence Study on Child Abuse
and Neglect", Department of Health and Human Services,
Administration for Children and Families, National Center on
Child Abuse and Neglect (1996).]
17)Arguments in Support : The Peace Officers Research
Association (PORAC) states they represent 58,600 rank and file
peace officers and 710 local peace officer associations and
are "writing to inform you of their support for SB 277
(Battin) relating to sex offenders."
18)Arguments in Opposition :
a) The California Attorneys for Criminal Justice state, "It
is difficult to imagine if any such property or residence
exists in California. Most cities have schools in much
smaller circumscribed areas than one and one-half miles.
This bill would effectively tell [sex offender] registrants
that they have to sell their homes, move out of their
apartments or say goodbye to their family members and move
out of California.
"Although it may be applauded by some citizens, it is
fundamentally unfair. . . . Any problems that exist with
registrants living in our communities need to be addressed
with a more carefully tailored solution than that proposed
by [this] bill."
b) The California Public Defenders Association (CPDA)
state:
i) The bill is superfluous; the Board of Prison Terms
"already is authorized to give paramount consideration to
the protection of the victim and the safety of the
community in making parole placements;
ii) "Parole officers already have the authority to set
special conditions of parole which may impose additional
conditions on a parolee such as mandating that the
parolee stay at least 100 yards away from places where
children congregate (schools, parks, playgrounds, video
arcades, swimming pools, etc.)
iii) This bill curtails the discretion of the Board of
Prison Terms, which should be able to evaluate inmates on
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a case-by-case basis. "An inmate convicted of molesting
adolescent girls probably is not a risk to an all-boys' K
- 8 school. An inmate who is in a wheelchair or
otherwise incapacitated is unlikely to be a risk to a
school within the one and one-half mile radius."
iv) This bill further retards and prevents the
rehabilitation of sex offenders, who "need to be
reintegrated into the community in order to successfully
complete [parole]. Banishing them to a commercial or
industrial ghetto retards that process. It makes more
sense to mainline sex offenders while they are under the
most intense parole supervision rather than after they
have completed parole and are not subject to
supervision."
v) This bill presents practical problems which include
the following:
(1) "In order to implement the proposed
legislation, CDC would have to re-examine every
placement and determine if it is beyond the one and
one-half mile perimeter. This would mean additional
costs to house parolees who were moved from their
family homes or placements to stay in motels or other
locations until new facilities could be rented or
constructed.
(2) "For parolees who had succeeded in obtaining
employment or training, such uprooting could lead to
the loss of those opportunities. Loss of income could
quickly lead to homelessness, creating additional
problems of supervising sex offenders.
(3) "The one and one-half mile prohibition would
make it almost impossible to return any sex offender
registrant parolees to their county of origin. All
such San Francisco County parolees would have to be
placed elsewhere.
(4) "The community notification provisions of this
bill would guarantee that CDC would be in the same
position as the Department of Mental Health (DMH) is
placed whenever they try to place a person who has
been released [from civil commitment.] If CDC cannot
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find appropriate placements, will the parolees be
forced to stay in prison? Then they would be released
without any supervision."
c) The American Civil Liberties Union states, "This bill
represents an unnecessary and unworkable expansion of
existing law. Current law already prohibits a person in
this category from living within one-quarter mile of a
school. There is no indication that a wider buffer zone
around schools is necessary or will do anything to actually
protect children.
"The unfortunate reality is that child molestation usually
occurs within the home of a relative or friend. (Emphasis
added.) According to the federal Bureau of Justice
Statistics (BJS), 'in almost one-half the [molestation]
cases [leading to conviction] the abuser is a parent or
relative.' (Sarah Glazer, Punishing Sex Offenders , CQ
Researcher, Vol. 6, No. 2, page 28, January 12, 1996.)
"Further, extending the law to childcare facilities and parks
would be impractical to administer. With the proliferation
of childcare centers, both licensed and not, it would be
very difficult to know with any degree of certainty whether
any particular location were more than one and one-half
miles from a childcare facility. Unlike a school, a
childcare facility may be impossible to distinguish from
the outside, lacking signs or other distinguishing
characteristics. Moreover, expanding current law to
include additional locations, such as parks, will make it
virtually impossible for placement of parolees in many
parts of California."
19)Related Legislation :
a) AB 35 (Spitzer) proposed to add addresses, employer
names and addresses and specified vehicle information to
the Megan's Law Internet web site. AB 35 failed passage in
this Committee, was granted reconsideration, failed passage
again, and was returned to the Chief Clerk of the Assembly.
b) AB 438 (Parra) proposes to allow the eviction of
registered sex offenders from rental housing. AB 438
failed passage in this Committee, was granted
reconsideration, and has not yet been reheard.
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c) SB 43 (Battin) proposes to add specified child
pornography offenses to the Megan's Law Internet Web site.
SB 43 failed passage in this Committee, has been granted
reconsideration, and is set to be reheard on June 28, 2005.
d) AB 1422 (Bogh) imposes specified notice and other
requirements regarding sex offender registrants living in
long term care facilities. AB 1422 is being held on the
Assembly Appropriations Committee's Suspense File.
e) AB 240 (Bermudez) prohibits sex offenders on parole from
being placed within one-quarter mile of a school with
grades Kindergarten through Grade 12, inclusive. AB 240 is
pending hearing by the Senate Appropriations Committee.
f) AB 1323 (Vargas) is a technical clean-up bill following
the posting of the Megan's Law information on the Internet
site maintained by the Department of Justice. AB 1323 is
pending hearing by the Senate Public Safety Committee.
g) AB 1844 (Cohn) extends the period of parole for
specified sex offenders to 10 years. AB 1844 was held in
the Assembly Appropriations Committee.
20)Prior Legislation : AB 488 (Parra), Chapter 745, Statutes of
2004, developed a three-tiered system of making the names and
specified addresses or location information as to registered
sex offenders available to the public on the Internet.
REGISTERED SUPPORT / OPPOSITION :
Support
Peace Officers Research Association of California
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744
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