Tuesday, February 2, 2010

Residency Restrictions on Sex Offenders Apply to Parolees

More than a year ago we reported on legal challenges to the residency restrictions in Jessica's Law. The proposition, which passed in 2006, included the following section:

This measure bars any person required to register as a sex offender from living within 2,000 feet (about two fifths of a mile) of any school or park. A violation of this provision would be a misdemeanor offense, as well as a parole violation for parolees. The longer current law restriction of one-half mile (2,640 feet) for specified high-risk sex offenders on parole would remain in effect. In addition, the measure authorizes local governments to further expand these residency restrictions.

Yesterday, the Chron reports, the California Supreme Court decided in re E.J. The 5-2 majority decision was that these restrictions apply to current parolees who were imprisoned even before the measure passed. This decision rejects the parolees' argument that the provision is retroactive "because it attaches new legal consequences to their convictions of registrable sex offenses suffered prior to the passage of Proposition 83." Here is the full decision, authored by Justice Baxter.

The court relies on People v. Grant, where the retroactivity of a similar provision was discussed. In Grant, the following retroactivity test was adopted:

In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party‟s liability for, an event, transaction, or conduct that was completed before the law‟s effective date. . . Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute‟s effective date. . . A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.

Applying the "last act or event" test to Jessica's Law's residence restrictions, the court finds:

Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal “last act or event” . . . that must occur before the mandatory residency restrictions come into play is the registered sex offender‟s securing of a residence upon his release from custody on parole. If that “last act or event” occurred subsequent to the effective date of section 3003.5(b), a conclusion that it was a violation of the registrant‟s parole does not constitute a “retroactive” application of the statute.

But how do we deal with the fact that people, at the time of their conviction, did not know that one of the consequences would be a severe limitation on their housing conditions after release?

By parity of reasoning, the provisions of Jessica‟s Law here under scrutiny — section 3003.5(b)'s statutory residency restrictions — are not implicated until a convicted and registered sex offender is released from custody and must take up residency in the community to which he has been paroled. Applying the mandatory residency restrictions to these four petitioners, who were released from prison on parole after the effective date of Jessica‟s Law, and who thus had ample notice of the necessity of securing housing in compliance with the restrictions at the time they moved into noncompliant housing, is simply not a retroactive application of the new law. . . Contrary to petitioners‟ argument, the fact that they were all convicted of sex offenses giving rise to their status as lifetime registrants pursuant to section 290 well prior to the passage of Jessica‟s Law does not, in itself, establish that the new parole residency restrictions are now being applied retroactively to them.

Justice Moreno wrote the dissent (to which Justice Kennard concurred). He responds by invoking the plain language of Prop 83. And he adds:

the majority opinion‟s characterization of what constitutes the pivotal date for purposes of retroactivity analysis in this case is simply wrong. These petitioners did not become subject to the residency restriction when they were released from custody on parole for nonsexual offenses; they were subject to the residency restriction by virtue of their status as registered sex offenders and they acquired that status upon their convictions for their sex offenses. . . Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the registrable offense as are all ancillary restrictions that flow from that requirement including the residency restriction. Therefore, for purposes of the retroactivity analysis here, the pivotal date is the date of conviction for the registrable offense.

The decision in re E.J. affects all parolees who were imprisoned for sex offenses before Jessica's Law came into effect and released after its enactment. I wonder about the size of this population. Also, either by coincidence or not, I found two emails in my inbox this morning from convicted parolees who detailed the difficult conditions of their parole, highlighting the issue of residence restrictions.

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