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Calif.'s Sex Offender Residency Law Is Unconstitutional: Supreme Ct.

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By Mark Wilson, Esq. on March 03, 2015 8:01 AM

Blanket prohibitions on where registered sex offenders can live are unconstitutional, the California Supreme Court unanimously ruled yesterday. The case was brought by registered sex offenders in San Diego who objected to mandatory residency restrictions in the penal code.

Sex offenders can't, for example, live within 2,000 feet of a public or private school or a park where children regularly gather. These requirements, the court said, have done more harm than good to registered sex offenders and bear "no rational relationship to advancing the state's goal of protecting children from sexual predators."

That's How You Get Homeless Sex Offenders

Over the last few decades, it's become increasingly popular to levy ever-more onerous restrictions on people found guilty of certain sex crimes. Who, after all, wouldn't get an electoral boost out of being anti-sex offender? Mandatory residency restrictions are one of those areas where electoral rhetoric and empirical public policy outcomes don't quite line up.

Of the 482 registered sex offenders on active parole in San Diego County, the trial court heard evidence that 34 percent registered as "transient or homeless." Notably, an officer in San Diego Police Department's Sex Crimes Unit "testified to a dramatic increase in the number of sex offender parolees who registered as transient" following the passage of Jessica's Law in 2006.

Ultimately, the trial court found, sex offender parolees "are effectively barred from access to approximately 97 percent of the existing rental property that would otherwise be available to them." And even the remaining 3 percent of rental units might not be fully available for other reasons, including landlords who don't want to rent to them.

This Doesn't Survive Even Rational Basis Review

That's troubling, but rational basis review is an incredibly deferential standard. Even under that level of review, though, the California Supreme Court said a blanket prohibition doesn't pass constitutional muster. The effect of the law actually frustrates the law's legitimate purpose: Homeless and transient sex offenders are harder to track than those who have homes, so a law has the effect of making a large chunk of sex offenders more difficult to track than they would be without the residency restrictions.

The court also found troubling San Diego's apparently arbitrary enforcement of the law, which included memos to parole officers instructing them not to advise parolees where they could live without running afoul of the law. (It's almost as though certain people in the CDCR and San Diego County wanted paroled sex offenders to reside in the wrong places, allowing them to be re-arrested and prosecuted for violating their parole. Hmm ...).

So is the state without any power to do anything about sex offenders? Actually, no: The Court of Appeal pointed out that judges retain the authority to impose discretionary residency restrictions that, unlike the blanket prohibitions, are based on "the particularized circumstances of each individual parolee" and could actually work in the public interest.

As with the Ninth Circuit's decision last November to strike California's Internet reporting requirements for sex offenders, courts seem poised to rein in many of the more punitive and overwrought statutes that appear designed not only to punish sex offenders over the course of their entire lives, but also to tilt the scales in favor of the state that the offender will mess up on a procedural requirement and end up back in prison.

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