By Lesley Warren
Child welfare advocates sounded the alarm earlier this month when the California Supreme Court issued its opinion on In re: William Taylor, a case involving housing restrictions imposed on certain paroled sex offenders in San Diego County that has been weaving its way through the judicial system for years.
The California Supreme Court ruled that the residency restriction provision of Jessica’s Law, as applied to this group of registered sex offender parolees in San Diego, was unconstitutional.
So was this a win for “sex offenders and child molesters,” as former state senator and Jessica’s Law co-author George Runner maintains? Should parents or child advocates be worried?
The case arose after a ballot initiative called Proposition 83 passed in 2006 and established Jessica’s Law. The intent was to establish “predator-free zones” by imposing mandatory residency restrictions on paroled registered sex offenders that barred them from living within 2,000 feet of any public or private school, or park where children regularly gather.
“[H]uge swaths of urban and suburban San Diego, including virtually all of the downtown area” was found to be off-limits to the parolees, according to incontrovertible evidence obtained by the California Department of Corrections. With demand for low-cost housing in the county more than doubling in recent years, the California Supreme Court found that over one-third of sex offender parolees were registered as “transients” in the county.
Low vacancy rates, high rents, and background check requirements of some landlords further limited the ability of registered sexual predators from securing stable housing. This represents an increase in homelessness among this population by 24 times between 2007 and 2010, the first few years after Jessica’s Law was enacted.
In its legal analysis, the court considered what was the proper standard of review under which the 14th Amendment due process clause of the United States Constitution to be applied to these registered sex offender parolees. The parolees urged the court to apply so-called “strict scrutiny,” which forbids the government from infringing on their fundamental liberty and privacy interests in any manner unless it is “narrowly tailored to serve [the conceded] compelling state interest” of protecting children.
Jessica’s Law, they claimed, violated their basic right to be free of unreasonable arbitrary and oppressive official action. The government argued that registered sex offender parolees’ rights are lawfully circumscribed and necessarily protected to a lesser extent than those of the general public.
Therefore, the government urged that the “rational basis” test be used, requiring only “a reasonable relation to a legitimate state interest.” The parties cited both federal and state case law in support of their respective positions.
In its opinion earlier this month, however, the Court determined it did not have to decide which of the standards of review to apply in this case because the “blanket” enforcement of the law couldn’t even pass the more deferential “rational basis” test. It noted that the claims by the parolees did not present a facial (or broad) challenge to the statute, but rather, was an “as applied” challenge by specified individual registered sex offender parolees in San Diego county.
It was, in short, a very narrow ruling, and affirmed what courts below had already held.
Still, the ruling will resonate beyond San Diego as officials scramble to interpret its ramifications in their own counties. One interpretation: “Blanket bans are unconstitutional,” said University of California-Irvine Law School Dean Erwin Chemerinsky to The Orange County Register last month.
But recall that Jessica’s Law amended a preexisting law codifying CDCR authority to establish special parole conditions. It thus retains statutory discretion to impose restrictions, including residency, as long as they are based on facts and circumstances of each individual case.
The old law could, in theory, impose even more, or stricter, parole restrictions in appropriate cases than Jessica’s Law envisaged, but still be constitutional, based on the particular circumstances of the underlying offense. Whether this authority is exercised prudently by CDCR going forward, in fact, remains to be seen.
So again: Should parents or child advocates worry? Probably not.
The CDCR Task Force’s final report concluded that Jessica’s Law residency restrictions failed to improve public safety as it had promised, and instead compromised the effective monitoring and supervision of sex offender parolees, placing the public, including the children the law professed to protect, at ever greater risk.
Experts seem to be in general agreement that stable housing makes access to medical treatment, drug and alcohol dependency programs, psychological counseling and other rehabilitative social services possible, while simultaneously enabling parole authorities and law enforcement officials to more readily monitor and supervise sex offender parolees, advancing overall public safety, including providing for the best interests of children.
Lesley Warren wrote this story for the Journalism for Social Change massive online open course.