CA: 'Jessica's Law' limits raise host of questions (Prop 83 ,, expect challenges if it passes)

Proposition 83, or "Jessica's Law," covers 29 pages stuffed with stiffer punishment, longer parole terms and tighter monitoring for future sex criminals. But the passage that raises the thickest skepticism -- and the part that some legal scholars call ripe for attack -- runs just a few dozen words.

Anyone required to register as a sex offender, it says, could not live "within 2,000 feet of any public or private school, or park where children regularly gather."

To legal scholars and critics, including some sex-crime detectives and prosecutors, those words present serious concerns. Among them:

• Whether Prop. 83 would apply to already convicted sex offenders -- the thousands now behind bars, on probation or parole, or even the tens of thousands who have been free of the criminal justice system for years, living in the community, some of them homeowners.

• That it would too broadly restrict where all registered offenders can live, including those whose convictions were for sex crimes against adults.

• That it would cross a constitutional line into public banishment if registered offenders could find nowhere to live in most of the state's population centers -- as maps produced by the state Senate suggest.

"There are difficult constitutional questions that are implicated by this law," said Derek Shaffer, executive director of the Stanford Constitutional Law Center.

About 70,000 registered sex offenders live in California communities. Another 17,000 are behind bars.

Sex offenders, said Shaffer, could argue that Prop. 83 strips them of protected liberties -- although a challenge on those grounds failed to overturn an Iowa law that restricts sex offenders from living within 2,000 feet of schools and day care centers. In that case, a federal appeals court ruled that there is no right to live where you want to live if the state has compelling reasons otherwise.

They could argue that the law, in practice, amounts to unconstitutional banishment, leaving only remote outposts as residential areas for convicted offenders.

But the strongest legal attack, several scholars said, would likely come if a city tried to apply Prop. 83 to sex offenders who were convicted before the law took effect, either by forcing them to move or requiring them to meet the 2,000-foot rule if they moved on their own.

The appeals court in the Iowa case skirted that issue because the Iowa law includes a grandfather clause.

But Ohio did not include those already convicted in its law barring sex offenders from living within 1,000 feet of schools. Some registered sex offenders who have been evicted from their homes have launched court challenges.

"We have a dozen or so cases going," said David Singleton, executive director of the Ohio Justice & Policy Center. "We haven't stopped an eviction yet."

Prop. 83 does not include a grandfather provision because it didn't seem necessary, said Sen. George Runner, who co-authored the measure with his wife, fellow Antelope Valley Republican Sharon Runner.

"It wasn't intentional," Runner said. "We were convinced you could not go back and actually change people's domicile based upon this new law going into effect. They'd have to go knock on the door of Joe Registered Sex Offender, who has owned his house for the last 10 years. We just think at the core that it's an illegal government taking."

"If the person is a tenant, there's no property being taken," said Eugene Volokh, a UCLA law professor. "Even if he owns the property, it's not that the person is being barred from or denied the right to own the property. He can resell it, rent it out. He could make money off it."

The key question is whether a court would view the 2,000-foot rule as punishment for past crimes rather than a civil law intended to protect the public.

The constitutional ban on "ex post facto" laws only applies to punitive laws, not civil regulations with a clear public policy rationale. Federal courts look at two factors: whether it is intended as a civil law, and if so, whether in practice it amounts to criminal punishment.

Runner said the 2,000-foot rule is meant only to protect and inform the public, not as punishment -- although the proposition is titled "The Sexual Predator Punishment and Control Act: Jessica's Law."

In past rulings, the U.S. Supreme Court has set a high bar for proving that a civil law has crossed the line to punishment, insisting on "only the clearest proof."

Wayne Logan, a visiting professor at William and Mary College of Law, points to a landmark 1997 case in which the high court ruled that it is not unconstitutional to keep sex predators in mental institutions after they have served their prison sentences -- as long as officials can prove the inmate is unable to control his dangerous behavior.

In that light, attacking the 2,000-foot rule as an ex post fact law is "a difficult argument to make," said Logan.

"It's pretty clear this would be analyzed as a civil provision in order to prevent future harm, rather than to impose a punishment for past conduct. The line . . . is fairly well established," said Professor David Jung, director of the Center for State and Local Government Law at Hastings College of the Law.

"I can't tell you whether (Prop. 83) would indeed be interpreted to apply to past convictions. If it is, it would be quite constitutional," said Volokh.

Some legal scholars point to the Supreme Court's 2003 decision upholding Megan's Law registration and notification requirements for sex offenders. The majority in that case found that the law did not amount to punishment, regardless of the "collateral" shame and humiliation it might cause.

But three justices dissented, and a fourth expressed concern that the law may border on punishment. Even in the majority opinion, Justice Anthony Kennedy noted that Megan's Law falls short of colonial punishments such as banishment and leaves sex offenders "free to change jobs or residences."

Shaffer said that case showed that the justices "are very concerned about laws like this.

"If you look at a map, these prohibitions basically foreclose those persons from living in any sort of urban area. A whole lot of folks basically are going to be banished from their communities."

Most of the legal experts agreed on one thing: With California poised to become the 18th state with residency restrictions on sex offenders, and court rulings likely to differ across the country, another showdown before the U.S. Supreme Court seems likely.

It may be inevitable if local governments race to set their own, more stringent laws, fearing an influx of sex offenders from "predator-free zones" -- covering, say, a wide radius around school bus stops, as a Georgia law does.

"What's going to happen is that communities are going to go so far that the Supreme Court's going to have no choice but to step in," said Singleton.

I'd like to see a poll of parents, especially parents of victims of these predators.
Tom McClintock says Jessica's Law is a GOOD thing.
That's enough for me.

It is well ahead in polls and predicted to pass readily.

It will also likely end up in the courts before the details are nailed down re: limits, etc.

Over 100,000 registered sex offenders statewide could potentially be subject to moving as it is currently being interpreted by some. That potentially could toss the real estate markets in quite a few places for a loop.

Lots of unintended consequences potentially and significant additional expenses involved. We'll see what shakes out soon enough.

Magan's Law and Jessica's Law. These are words that will not be spoken if Free'm All Deval is elected governor of MA.

I don’t like this at all, all their going to do is create “hot spots” in the parts of cities where these people can live and like all these laws it doesn’t separate the “predators” from others accused of a sexual crime (I’m sorry but I’m not going to lose sleep living next to a happily married man with a family who 20 years ago slept with is 16yo girlfriend when he as 18).

The worst part though is that none of these laws do a thing about reducing sex crimes, something like 92% of them occur between family members and as for the rest, all these laws do is make them drive a little further down the road. This is nothing but another “feel-good” law that won’t solve a damn thing.

The paper printed a map of the Bay area with circles showing where they would be barred from living. In essence , they would be barred from living in all urban areas.

This will never pass the courts. Like it or not, they do have to live someplace.

It would be better if they made the law such that they were barred from being in the immediate vicinity of a park and/or school. I would not consider 4/10 of a mile "immediate vicinity".

I have a friend who is a parole officer. He has said basically what you have stated. So many of the kids molested are molested by family members, Dad, uncle, ect. This is "feel good" legislation at its worst. Hell, just look at the post on FR about Rep. Foley. Many people here were saying that this guy was a sick pedo child molester! We now know that that is not true. Just the allegation of child molestation can ruin your life. I have heard father's rights activist on the radio say that this is often the "trump card" in a nasty divorce. I can't believe that some women would do this, but I guess there some who would to get custody.

I forgot to say that Foley is somewhat perverted, but we don't put most perverts in jail. If we did, I bet there would be a lot less people in Washington. Statistically speaking of course.

I'm voting for this proposition. Like I've said before, it's hard for something to be too restrictive for California.

The Contra Costa Times has been beating this poor initiative to death.

I suspect that it's a liberal tactic to divert the vast majority from their primary opinion:

For the wages of sin is death;

If libs want to get on the side of rapists and kiddie perverts, let 'em go right ahead. They're so sure the country agrees with them we treat sexual offenders too harshly.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." -Manuel II Paleologus

I have reservations about this Prop and fully expect it'll be hacked at by the courts.

I'm voting YES, however, because I hate seeing the registered child molesters literally living next to schools or public parks in my community.

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