Residency for Sex Offenders in California Post-Supreme Court Decision | Law Office of John R. Fielding, Jr. & Associates

The California Supreme Court recently deliberated on whether the residency restrictions imposed on paroled, registered sex offenders living in California amount to retroactive punishment and whether "Jessica's Law" is so expansive that its provisions tread on offenders' constitutional rights. While the Court upheld the residency restrictions as a general matter, the question of whether the rights of individual offenders have been violated remains subject to debate.

The Law and the Challenge

California's "Jessica's Law" (also known as Prop 83 and "The Sexual Predator Punishment and Control Act") requires paroled sex offenders who must register with the state to live further than 2,000 feet away from a school or park where children regularly congregate. Critics of the "Jessica's Law" residency requirements argue that their implementation has led to a tenfold increase in the number of offenders who have had to register as transients. Since the law was enacted, paroled offenders have been largely unable to find a residence that does not violate the residency restrictions. The four registered sex offenders who challenged the law argued that if they followed the restrictions, they would effectively be forced into homelessness.

The offenders challenged "Jessica's Law" on two grounds:

The residency restrictions amount to ex post facto (retroactive) punishment for the offenders' sexually-related crimes, which were committed prior to the passage of "Jessica's Law"
The residency restriction, "as applied" is an "an unreasonable, vague and overbroad parole condition that infringes on various federal and state constitutional rights, including [offenders'] privacy rights, property rights, rights to interstate travel and substantive due process rights under the federal Constitution."

The Court rejected the first argument, but ruled that the second question remains open in the cases of individual offenders.

"Jessica's Law" Does Not Amount to Retroactive Punishment

The offenders who challenged the law had all served prison sentences and parole time for sexually motivated crimes prior to the passage of "Jessica's Law." They were required to register for life as sex offenders under California's "Megan's Law." Each offender then committed a non-sexually motivated crime and was sentenced to imprisonment and eventually parole, for those crimes.

When the offenders were on parole for their non-sexually motivated crimes, they moved into residences which violated the "Jessica's Law" residency restrictions and were charged with violations of their parole. The offenders argued that being forced to comply with the residency restrictions while on parole for non-sexually motivated crimes, simply because they had been required to register for past crimes under "Megan's Law," amounts to retroactive punishment for their sex crimes. The Constitution does not allow for retroactive punishments.

The Court ruled that the residency restriction in "Jessica's Law" is simply a condition of parole and because each offender moved into restricted housing after the passage of "Jessica's Law," the offenders should have known that they were violating their parole. As the restriction is simply a condition of parole for any registered sex offender, regardless of what the subsequent crime was that required the offender to be placed on parole, the restriction does not amount to retroactive punishment for sex crimes.

"Jessica's Law" May Violate the Constitutional Rights of Individual Offenders

The Court did however determine that the residency restriction may be a violation of individual offenders' rights to privacy, property, intrastate travel and substantive due process. The Court noted that offenders are paroled to different communities and only judges within those communities can adequately determine whether the restriction on an offender in that community violates his or her guaranteed rights.

This aspect of the ruling will likely give hope to those registered offenders living in California who cannot find legally permitted housing located close to family, friends, support, work and/or medical care.

For Further Reference

"As applied" challenges to Prop 83 may be appropriate for sex offender parolees who cannot find permitted housing in California. If you are have been convicted of a sex crime and are having a difficult time securing permitted housing in California, please contact an experienced criminal defense attorney.