On November 7th of 2006 California voters overwhelmingly passed prop 83 (Sexual Predator Punishment and Control Act), widely known as “Jessica’s Law”, with 70% of the vote.
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Although there are many facets of this legislation that have a dramatic impact on the lives of convicted sex offenders and the penalties they face, the most controversial and legally convoluted provision is Section 21 which prohibits registered sex offenders from residing within 2,000 feet of any public or private school, or any park “where children regularly gather”. This provision was challenged the day after prop 83 passed on November 8, 2006 by “John Doe”, an ex-offender who was concerned that the new law would apply retroactively, forcing him to move from his home because he lived within 2,000 of a park. Doe contended that the restriction implicated the ex post facto clause of the U.S. Constitution which prohibits the government from using a new law to punish a person for conduct that occurred before the law existed. Federal Judge Susan Illston in San Francisco granted a temporary restraining order (TRO) against the application of the residency restrictions until the case could be resolved through the courts.
After the complaint was filed by attorney Dennis Riordan on behalf of John Doe against then California Attorney General (AG) Bill Lockyer, Governor Arnold Schwarzenegger, and the bay area district attorneys, all parties involved seemingly agreed that the residency restrictions were not to be applied retroactively. However, at a hearing where this agreement was to be entered into the record, the AG’s staff changed their previous position. Their new view was that since John Doe currently lived within the restricted zone, he could continue to live there but if he moved, he would have to comply with the residency restrictions. Judge Jeffrey White felt “ambushed” by this change of position and scheduled a hearing for February 23, 2007. Governor Schwarzenegger and the authors of prop 83 distanced themselves from the AG and stood firm in their position that the law would not apply retroactively.
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In the meantime, another lawsuit was filed by three ex-offenders in Sacramento in which a TRO was also granted against the application of the residency restrictions but denied as to another provision of the law which requires lifetime Global Positioning System (GPS) monitoring of felony registered sex offenders for life. On February 9th Judge Lawrence K. Karlton ruled that the plaintiffs had no standing to bring suit because the residency restrictions applied prospectively and not retroactively and therefore they faced no risk of injury from the application of prop 83 and their motion for a preliminary injunction was denied on these grounds. Karlton advanced that the AG’s interpretation of the law bordered “on the frivolous” and it would not apply to ex-offenders who attempt to move into a restricted area.
Back in San Francisco, Judge White was following the Sacramento case closely and on February 22, one day before the scheduled hearing, he dismissed the suit based on plaintiff’s lack of standing, the same grounds Judge Karlton based his decision on. White agreed with Karlton’s reasoning and likewise held that under either the plaintiff’s or the Governor’s position, the SPPCA did not apply to the plaintiff because it would not apply retroactively.
The cases in Sacramento and San Francisco made it clear that the residency restrictions in “Jessica’s Law” can’t apply to ex-offenders who have already served their sentences. However, there is a mountain of obscurity that clouds exactly to whom the residency restrictions will in fact apply and more litigation involving this legislation is inevitable. This is because there are at least four different interpretations as to who the residency restrictions should apply to, each view casting a larger net than the previous. County district attorneys and probation departments in Sacramento say the residency restrictions should apply to those whose crimes were committed November 8th, 2006 or later. Schwarzenegger and the California Department of Corrections and Rehabilitation (DCR) say they apply to any offenders released from prison after November 8, regardless of when the crime was committed. This position is also endorsed by the politicians who drafted the law. Another view is that the restrictions apply to those offenders released from parole or probation after November 8th. Finally, new AG Jerry Brown agreed with former AG Lockyer’s view that the restrictions would not require previously released offenders to move now, but would apply to them if they moved into a restricted area in the future. This is still a potentially viable position as there was no definitive ruling on this issue despite judicial appraisal of this position as bordering “on the frivolous”.
Although the residency restrictions in Section 21 of the SPPCA are the most controversial, the GPS provision in the law faces a separate, pending legal challenge. Section 22 of the act mandates lifetime Global Positioning Satellite monitoring for anybody paroled from prison in California for a sex offense that requires registration as a sex offender. Those offenders who fall within this category will be required to wear a tracking device 24 hours a day for the rest of their lives. This provision raises the same concerns as Section 21 as to which sex offenders will be affected because the language is similarly unclear. Attaching a GPS device and then using it to track a person also implicates the 4th Amendment, which protects against unreasonable searches and seizures by the Government. Under the 4th Amendment, using an electronic tracking device to monitor people in public does not constitute a search; tracking them in their homes or other “private places” does. United States v. Karo, 468 U.S. 705, 713-18 (1984); see generally In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp.2d 747 (S.D. Tex. 2005). It is even conceivable that our state constitutional right to privacy would prohibit tracking in public; see State v. Jackson, 150 Wash. 2d 251, 76 P. 3d 217 (Wash. 2003).
The unclear legislative intent as to which sex offenders are meant to be ensnared in prop 83’s web has led to confusion among the majority of law enforcement agencies in California as to how they should proceed and which offenders these provisions should apply to. However, the parole division of the DCR has largely ignored the legal debate swirling around prop 83 and has been applying the residency restrictions to sex offenders released from prison since the November election. Although this view is in line with the Governor and the drafters of the law, there will almost certainly be legal challenges by those affected by these restrictions whose crimes were committed before November 8th. District attorneys and probation departments in Sacramento County interpreted the law in a way that would not affect this group of offenders and that is reason enough for any offender who committed his crime before November 8th and has been subject to the residency restrictions by the DCR to formulate a legal challenge. After all, there is a public or private school or park “where children regularly gather” within 2,000 feet of basically every potential residence in every densely populated urban area in California.