Sex Offenders. Sexually Violent Predators.
Punishment, Residence Restrictions and Monitoring.
Mario De Bernardo
Copyright © 2006 by University of the McGeorge School of Law
Table of Contents
Proposition 83, commonly known as “Jessica’s Law,” was drafted in response to the tragic story of Jessica Lunsford, a 9-year-old Florida girl who was kidnapped, assaulted, and buried alive by a convicted sex offender who had failed to report where he lived. Andre Coleman, Permanently Tagged Out [hereinafter “Permanently Tagged Out”], Pasadena Weekly (Aug. 10, 2006) (available at http://www.pasadenaweekly.com/article.php?id=3742&
IssueNum=32); California Official Voter Information Guide, Argument in Favor of Proposition 83 (Secretary of State, 2006) at 46 [hereinafter “Argument in Favor of Proposition 83”]. Proposition 83 seeks to effectively and strictly punish, monitor, and restrict sex offenders in order to protect the public from an offender’s re-offense. California Official Voter Information Guide, Analysis by the Legislative Analyst, Proposition 83 (Secretary of State, 2006) at 42 [hereinafter “Analysis by the Legislative Analyst”].
Originally, Proposition 83 proposed harsher sentencing for sex offenders, higher court fees, and expanded definitions for certain sex offenses. Id. It also sought to prohibit probation in some cases and to eliminate early release credits and to extend parole for certain offenders. Id. All of these proposals, however, were essentially signed into law by Governor Schwarzenegger on September 20, 2006 through Senate Bill 1128 (Cal. Sen. Bill No.1128, Leg. Counsel Digest, http://www.leginfo.ca.gov/pub/bill/sen/sb_1101-1150/sb_1128_bill_20060920_chaptered.pdf [hereinafter “Sen. Bill No. 1128”]. Therefore, if passed, Proposition 83 will not have a substantial impact in these areas of the law because they have already been changed.
However, Proposition 83 still maintains several major provisions that will significantly change the laws against sex offenders. First, the Proposition will broaden the scope of sex offenders who are eligible for a sexually violent predator (SVP) evaluation. California Official Voter Information Guide, Text of Proposed Laws, Proposition 83 (Secretary of State, 2006) at Welfare and Institutions Code, § 6600(a)(1) [hereinafter “Text of Proposed Laws”]. Second, an SVP will be kept in a state mental facility until a court determines that he or she should be released. Id. at §§ 6604, 6605. Third, the Proposition will require most sex offenders to wear a Global Positioning System (GPS) device for life so that they can be monitored by law enforcement. Id. at Penal Code § 3004(b). And lastly, the Proposition will create “Predator Free Zones” which will prohibit sex offenders from living within 2,000 feet of schools, parks, and other areas restricted by local jurisdictions. Id. at § 3003.5.
Proposition 83 will cost California hundreds of millions of dollars annually which will increase each year as the number of convicted sex offenders grows. Legislative Analyst’s Office, Proposition 83: The Sexual Predator Punishment and Control Act: Jessica’s Law, 2-3 (Oct. 3, 2006) (presented to the Assembly and Senate Public Safety Committees). These costs will mainly come from GPS monitoring and the treatment of SVPs in state mental hospitals. Id.
Sexually Violent PredatorsAccording to California law, a sexually violent predator (SVP) is “a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” Cal. Welfare and Safety Code § 6600(a)(1). If a person is found to be an SVP, a petition can be filed with the court to have the SVP committed to a state mental hospital for treatment. Id. at § 6601. Once committed to a state mental hospital, the SVP remains there for an indeterminate term. Id. at § 6604.1. However, an SVP has the right to an annual examination of his or her mental condition and the right to petition the court once a year for conditional release. Id. at § 6605(a) – (b). At the hearing for release, the SVP is “entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding.” Id. at § 6605(d).
On September 20, 2006, Governor Schwarzenegger signed legislation, Senate Bill 1178, which makes every person required to register as a sex offender undergo assessment to determine whether he is at a high risk of re-offending. Cal. Sen. Bill No.1178, Leg. Counsel Digest, http://www.leginfo.ca.gov/pub/bill/sen/sb_1151-1200/sb_1178_bill_20060920_chaptered.pdf. Every adult male assessed as a high risk to re-offend is to be electronically monitored while on probation or parole, unless the court determines that such monitoring is unnecessary. Id. at Penal Code § 1202.8(b) & § 3004(b). The electronic monitoring device does not need to be GPS monitoring. Instead, SB 1178 states that “[t]he monitoring device used for these purposes shall be identified as one that employs the latest available proven effective monitoring technology.” Id.
Restrictions from Areas Where Vulnerable Citizens Are Located
As mentioned above in the “Executive Summary,” Governor Schwarzenegger signed into legislation Senate Bill 1128 on September 20, 2006. Sen. Bill No. 1128. SB 1128 includes three provisions that are meant to restrict sex offenders from areas where vulnerable citizens are known to be located. Id.
The first provision prohibits all registered sex offender from going onto school grounds “without lawful business thereon and written permissions from the chief administrative official of that school.” Id. at Penal Code § 626.81(a). The second provision restricts all registered sex offenders from “loitering about any school or public place at or near which children attend or normally congregate.” Id. at § 653b(a). If a registered sex offender violates either section of the Penal Code, he or she is subject to jail and/or a fine. Id. at §§ 626.81(b), 653b(b).
The third provision restricts sex offenders whose crimes were against elderly or dependent persons from being on a facility where elderly or dependent adults are regularly present or living without registering with the facility administrator. Id. at § 653c(a). If a registered sex offender violates this section of the Penal Code, he or she is subject to jail and/or a fine. Id. at § 653c(d).
Furthermore, the California Penal Code restricts paroled child molesters from living within one-quarter mile of any school that teaches grades from kindergarten to eighth. Cal. Penal Code § 3003(g)(1). The Penal Code also restricts high risk child molesters on parole from living within one-half mile of a school that teaches grades from kindergarten to twelfth. Id. at § 3003(g)(2).
As noted above, the recent passage of SB 1128 enacted several of the provisions contained in Proposition 83. As such, the following analysis will not include references to the provisions which SB1128 and Proposition 83 share because neither passage nor defeat of the ballot measure will have an effect on those provisions which have already been signed into law through the legislative process. The following analysis of proposed law discusses the additional components of the sexual offender laws that will be effectuated if Proposition 83 passes.
Sexually Violent Predators
Instead of defining an SVP as a person with a mental disorder who was convicted of a sexually violent offense against two or more victims, Proposition 83 requires that a person with the mental disorder be convicted of a sex offense against only one or more victims. Text of Proposed Laws at Welfare and Institutions Code § 6600.
Further, Proposition 83 will eliminate the SVP’s right to petition once a year for a conditional release. Instead, the SVP is committed to the state mental hospital for an indeterminate term until the Department of Mental Health determines that he or she is no longer an SVP or that there are less restrictive alternatives available. Id. at § 6605(b). Once the Department of Mental Health makes such a determination, the SVP can petition the court for a conditional release or unconditional discharge. Id. The court may then set a hearing. Id. at § 6605(d).
Proposition 83 will require individuals who have been found guilty of a “registerable sex offense” to be subject to GPS monitoring for life once released on parole. Text of Proposed Laws at Penal Code § 3004(b). The Department of Corrections and Rehabilitation will be authorized to collect fees from sex offenders who can afford to cover the costs of GPS monitoring. Id. at § 3004(c).
Restrictions from Areas Where Vulnerable Citizens Are Located
Proposition 83 will bar any individual required to register as a sex offender from living within 2,000 feet of any school or park where children regularly gather. Id. at § 3003.5(b). These areas are called “Predator Free Zones.” Argument in Favor of Proposition 83 at 46. Moreover, there are no restrictions on municipal jurisdictions from enacting local ordinances that further restrict the residency of a sex offender. Text of Proposed Laws at Penal Code § 3003.5(c). For example, a city can restrict sex offenders from living within 2,000 feet of an amusement park.
It is not clear whether Proposition 83’s GPS monitoring and “Predator Free Zones” provisions are regulatory and prospective only. Interview with Kimberly Horiuchi, Counsel, Assembly Comm. on Pub. Safety (Sept. 14, 2006) (Notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy). Arguments have been made suggesting that the Proposition can be read as being punitive and retroactive.
The Proposition can be read as being retroactive for two reasons. First, laws, when meant to be only prospective, usually state when they will be effective. Cal. Joint Sen. & Assembly Pub. Safety Comm., Proposition 83: Jessica’s Law (Oct. 3, 2006)[hereinafter “Public Safety Comm.”] (comments by Assembly member Mark Leno). Proposition 83 does not state when it will become effective, therefore, it could be construed as retroactive. Id. Second, the “Argument in Favor of Proposition 83” in the November 2006 voter’s guide states that “85,000 registered sex offenders live in California. Current law does not provide Law Enforcement with the tools they need to keep track of these dangerous criminals. . . How can we protect our children if we don’t even know where the sex offenders are?” Argument in Favor of Proposition 83 at 46. This argument suggests that the Proposition will give law enforcement the tools to track the 85,000 sex offenders in California. Public Safety Comm. (comments by Assembly member Mark Leno). In order to track the 85,000 sex offenders, both the GPS monitoring and the “Predator Free Zones” must be enforced retroactively. Id. If they are not enforced retroactively, then law enforcement will not be able to track the existing 85,000 convicted sex offenders. Id. However, according to the proponents of the Proposition and the California Legislative Analyst’s Office, Proposition 83 should be construed as being prospective only. Id.
The Proposition, as it relates to the “Predator Free Zones” is silent on whether it is punitive or regulatory. Id. It could be construed as regulatory if its purpose is to protect children from child molesters as suggested by the “Argument in Favor of Proposition 83.” Id; Argument in Favor of Proposition 83 at 46. However, others have suggested that the “Predator Free Zones” can be construed as punitive for two reasons. The first reason is that recent statistics from states with similar residency restrictions prove that there may be no correlation between resident restrictions and the safety of children and community. Public Safety Comm. (comments by Assembly member Mark Leno). If this is true, then the residency restriction in Proposition 83 may not be considered regulatory, but instead punitive since its only purpose would be to inconvenience and punish sex offenders. Id. The second reason is that the residency restriction limits the ability of sex offenders to live near schools and parks (areas where there are children) even though not all sex offenders are child molesters. Public Safety Comm. (comments by Prof. David Jung). By including all sex offenders in the residency restriction, the Proposition affects, for arguably no regulatory purpose, the class of sex offenders who are not child molesters. Id. As such, the residency restriction may be considered punitive. Id.
There is also ambiguity regarding how the GPS monitoring and the residency restrictions will be enforced against convicted sex offenders who are no longer on probation or parole. Interview with Kimberly Horiuchi. The Proposition does not expressly create a crime for tampering with the GPS monitoring devises or moving into a “Predator Free Zone.” Public Safety Comm. (comments by Assembly member Mark Leno). Proponents of the Proposition say that these types of violations are misdemeanors despite the absence of explicit language. Public Safety Comm. (comments by David La Bahn). For example, proponents state that mischief statutes will punish those who tamper with their GPS monitoring. Id.
Lastly, the Proposition does not specify if local or state government will be responsible for monitoring sex offenders who have been released from state parole supervision. Analysis by the Legislative Analyst at 44. Since the effect of the “Predator Free Zones” may be to push a significant number of sex offenders to rural areas, local government may be overwhelmed and under-funded if stuck with the responsibility of monitoring. Interview with Kimberly Horiuchi.
Proposition 83 contains a severability clause that states:
If any provision of this act, or part thereof, is for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions of this act are severable.
Text of Proposed Law, Proposition 83, § 32.
The Supreme Court of California has held that, “a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable...” Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821 (1989). However, severability clauses are not conclusive. Id. As such, the Court has articulated three criteria to determine if severance is permissible: the invalid provision must be grammatically, functionally, and volitionally separable. Gerken v. Fair Political Practices Com., 6 Cal. 4th 707, 715 (1993).
Is the Proposition grammatically severable?
Proposition 83 creates law regarding monitoring and residency restrictions of sexually violent predators in distinct sections of the Penal and Welfare and Institution Codes. If a provision of Proposition 83 is found invalid, most, if not all, of the other provisions will still be grammatically intact because they are found in independent code sections. As such, the Proposition is grammatically severable.
Is the Proposition functionally severable?
Proposition 83 focuses on monitoring, restricting and committing sexually violent predators. The Proposition approaches these issues through changes and additions to several sections of the California Penal and Welfare and Institution codes. Each one of the statutory sections addresses a particular way to punish, monitor and/or restrict a sex offender. Since each of these sections are distinct and not reliant on another section, if any one of these sections is ruled unconstitutional, the remaining changes could still be implemented on their own. For example, if the GPS monitoring was found unconstitutional, it will not affect the implementation of the 2,000 feet restriction from school and parks. If the 2,000 feet restriction is found invalid, it will not affect the implementation of the SVP laws. And if the SVP laws are found invalid, they will not affect the implementation of the GPS monitoring. Therefore, most of the main provisions of Proposition 83 are functionally severable.
Is the Proposition volitionally severable?
A section of a proposition is volitionally severable if “it can be said with confidence that the electorate's attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions." Id. at 715. The main goal of Proposition 83 is to create laws that protect people from sex offenders. The Proposition does this primarily in three ways: by restricting sex offenders from schools and parks, requiring GPS monitoring of sex offenders, and expanding the definition of sexually violent predators. It is more than reasonable to believe that those voting for Proposition 83 want stricter laws against sex offenders; therefore, if each of the three methods were placed on the ballot separately, it is very likely that the same voters would support each one. As such, any of these three main sections of the Proposition would likely be deemed volitionally severable.
The California Constitution states that the legislature “may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.” Cal Const, Art. II § 10. Under Proposition 83, there is an amendment clause that states that the act shall not be amended by the Legislature except by a statute passed by two-thirds of each house, or by a statute that becomes effective by a future initiative from the voters. Text of Proposed Law at § 33. Additionally, the amendment clause allows the Legislature to expand the scope of the Proposition by a statute passed by majority vote of each house. Id.
There are at least five types of constitutional challenges that may arise in response to Proposition 83, none of which have been addressed by the United States Supreme Court, the Ninth Circuit, or any California state court.
The first three types of constitutional challenge (ex post facto, double jeopardy, and cruel and unusual punishment) depend on whether or not the residency restrictions of Proposition 83 are criminal sanctions meant to punish the offender. Marcus Nieto & David Jung, The Impact of Residency Restrictions on Sex Offenders and Correctional Management Practices: A Literature Review , 43 [hereinafter “The Impact of Residency Restrictions”] (August 2006) (available at http://www.library.ca.gov/crb/06/08/06-008.pdf). If meant to be criminal sanctions and retroactive, the provisions of Proposition 83 create an ex post facto and double jeopardy issue to those sex offenders who have already served their sentences. Id. at 43-44. The Proposition’s restrictions may also be cruel and unusual punishment in violation of the Eighth Amendment, even if they are not retroactive. Id. at 43. However, the United States Court of Appeals for the Eighth Circuit dealt with a similar regulation in Iowa and held that the residency restriction is a form of civil regulation, not criminal punishment. Doe v. Miller, 405 F.3d 700, 718 (8 th Cir. 2005). If a court were to follow the reasoning of the Eighth Circuit and find that the residency restriction is regulatory, none of these three types of constitutional challenges would be applicable. But if a court hearing a challenge of the Proposition held that the residency regulation is punitive, it is likely that ex post facto, double jeopardy, and cruel and unusual punishment arguments could succeed.
The fourth type of constitutional challenge may apply whether or not the Proposition is punitive because the Proposition may violate the fundamental right to travel as it effectively bans sex offenders from residing in large sections of the state’s towns and cities. The Impact of Residency Restrictions at 44. However, as held in Miller, residency restrictions are not obstacles to a sex offender’s entry into the state, and they “[do] not erect an actual barrier to interstate movement.” Miller , 405 F.3d at 712. As such, the residency restrictions would undergo the rational basis test, meaning that if the court finds that the restrictions are rationally related to the goal of protecting children, they are constitutionally valid. But, if the residency restrictions present an obstacle to a sex offender’s entry into a state thus violating a person’s right to travel, the strict scrutiny test will apply, meaning that the restriction must be narrowly tailored to serve a compelling state interest. Saenz v. Roe, 526 U.S. 489, 499 (1999). Although protecting children at schools and parks from child molesters may be a compelling state interest, the statute would not be narrowly tailored because it would restrict non-child molester sex offenders who have no risk of offending against children. The Impact of Residency Restrictions at 44 . Thus, this constitutional challenge may likely succeed, causing this part of the Proposition to be invalid.
Lastly, the fifth type of constitutional challenge deals with the Fifth Amendment and self incrimination. Pursuant to Penal Code section 290, people convicted of a registerable sex offense must register with local law enforcement. Cal. Penal Code § 290. However, if Proposition 83 is passed and a sex offender lives within 2,000 feet of a school or park, the sex offender will be incriminating him or herself if required to register pursuant to Penal Code section 290. Public Safety Comm. (comments by Michael Risher) ; see also Leary v. United States, 395 U.S. 6, 13 (1969) (holding that defendant did not have to pay a marijuana tax because doing so would have compelled petitioner to expose himself to a "real and appreciable" risk of self-incrimination .) As such, a sex offender in the above situation may prevail in a constitutional challenge against registering because, pursuant to the Fifth Amendment of the federal constitution, a person cannot be compelled to incriminate him or herself. Id.; see also Leary, 395 U.S. at 13.
There are some California appellate decisions that suggest that the California constitution, unlike the federal constitution, may protect the right to choose one’s residence as part of the right to travel within the state. The Impact of Residency Restrictions at 44; see In re Marriage of Fingert, 221 Cal. App. 3d 1575, 1581 (1990) (holding custody order unconstitutional because it would make a mother move to and live in a community not of her choosing). Therefore, under this view of California constitutional law, the residence restriction on sex offenders should be viewed under strict scrutiny. The Impact of Residency Restrictions at 44. The California strict scrutiny test involves a two-pronged inquiry: (1) does the challenged governmental action serve a compelling state interest and (2) does it infringe upon the protected rights by the least intrusive means? Vannier v. Superior Court, 32 Cal. 3d 163, 178 (1982). Although protecting children from child molesters is a compelling state interest, since the residence restriction includes offenders who are not child molesters, the regulation may be considered overly broad, not narrowly tailored and unconstitutional. The Impact of Residency Restrictions at 44.
Proponents of Proposition 83 argue that there need to be stricter laws to punish, monitor and restrict sex offenders. They claim that there is a high risk that a sexual predator will commit additional sex crimes after being released from prison. There are currently over 85,000 registered sex offenders in California, and a large number of convicted sex offenders have not registered. Permanently Tagged Out; Arguments in Favor of Proposition 83 at 46.
Proponents believe that by requiring a sex offender to wear a GPS device for life, law enforcement can effectively keep track of sex offenders, even those who do not register. Law enforcement can also monitor the whereabouts of offenders to either prevent them from committing another offense or to find the offender and/or victim after an offense has been committed. Arguments in Favor of Proposition 83 at 46; Public Safety Comm. (comments by Assembly member Jay La Suer). Proponents also believe that the Proposition’s “Predator Free Zones” provision will protect children from sex offenders since it restricts sex offenders from living within 2,000 feet of schools and parks. Arguments in Favor of Proposition 83 at 46. Furthermore, by expanding the laws against sexually violent predators, proponents believe that they will be able to detect SVPs more effectively and keep them from re-offending. Id
Proponents point to the tragic story of Jessica Lunsford, a nine-year-old girl who was kidnapped, assaulted, and buried alive by a convicted sex offender who failed to report where he lived. They assert that laws as proposed by Proposition 83 could have saved her. Permanently Tagged Out.
Opponents of Proposition 83 focus their arguments mainly on the GPS monitoring and the 2,000 feet residency restriction from parks and schools.
First, opponents feel that a life-time GPS monitoring requirement for sex offenders is over broad. There are thousands of people who have lived law abiding lives for years or even decades that will be subject to the life-time GPS monitoring. California Official Voter Information Guide, Rebuttal to Arguments in Favor of Proposition 83 at 46 (Secretary of State, 2006). Furthermore, there are several first-time offenders convicted of nonviolent offenses that would be subject to GPS monitoring, which would be inappropriate. Id. For example, a 19-year-old boy could be subject to lifetime monitoring after a conviction for having sexual contact with a 17-year-old girl. Id.
Second, opponents are concerned with the cost (about $7 to $15 a day, per offender, for the offender’s life), effectiveness (signal problems with terrain and heavy vegetation, especially causing a problem with tracking homeless offenders), and law enforcement’s ability to keep up with over one hundred thousand sex offenders wearing GPS devises. Interview with Kimberly Horiuchi.
2,000 Feet Restriction
Some opponents of Proposition 83 have concerns with the “Predator Free Zone” provisions that prevent sex offenders from living within 2,000 feet of schools and parks. The biggest problem, as discovered by Iowa when it enacted a similar law, is that sex offenders are forced to go underground or migrate to rural areas where there is little housing and law enforcement. California Official Voter Information Guide, Arguments Against Proposition 83 (Secretary of State, 2006). Also, opponents look to studies showing that there is no connection between residency restrictions and the safety of our children and communities. Public Safety Comm. (comments by Assembly member Mark Leno). Moreover, there are plenty of non-violent sex offenders who are not child molesters, who will be forced to leave their homes because they are too close to a school or park. Interview with Kimberly Horiuchi.
Proposition 83 strengthens the laws against sex offenders in an effort to protect the public from re-offenders. It does so by monitoring sex offenders, restricting sex offenders from schools and parks, and by creating stronger sexually violent predator laws.
While the issue of protecting children is one of main concern in California, Proposition 83 may be too broad as it imposes GPS monitoring on non-violent and misdemeanor sex offenders and restricts offenders who are not child molesters from living near schools and parks. There are also studies which suggest that there is no correlation between residency restrictions and child and community safety. Furthermore, Proposition 83 will cost California hundreds of millions of dollars that will only increase as time goes on.