Who's watching the watchdog?

Earlier this year, The San Diego Union-Tribune launched the Watchdog Institute, a nonprofit news organization with a mission to “produce in-depth investigative reports based on government databases.” And, for its first investigation, published on Sunday, Nov. 29, in the U-T, the institute did just that. Reporters Denise Zapata and Kevin Crowe looked at the California Attorney General’s public list of registered sex offenders and mapped out how many sex offenders in San Diego County currently live within 2,000 feet of a school or park.

The results, summed up in the story’s lead, were rather surprising: “More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.” In some cities, Zapata and Crowe reported, noncompliance is 100 percent. In the city of San Diego, 85 percent of sex offenders are breaking the law, according to the story.

But none of that is true. The Watchdog Institute’s findings are based on a flawed interpretation of Jessica’s Law, the 2006 referendum that, among other things, placed lifetime residence restrictions on California’s sex offenders. The California Department of Corrections and Rehabilitation (CDCR) applies Jessica’s Law only to sex offenders who were released from prison—and have stayed out of prison—since the law passed on Nov. 7, 2006. Zapata and Crowe, however, applied the law to all registered sex offenders in San Diego County—1,731 people as of mid-November, when they reported their story. Even the law’s authors, California legislators George and Sharon Runner, have said publicly that the law was never intended to be applied retroactively. 

“Senator Runner continues to argue, consistent with general rules of statutory construction, that Jessica’s Law is not retroactive,” Will Smith, Sen. George Runner’s chief of staff, wrote in an e-mail to CityBeat.

The exact number of county sex offenders subject to the law changes almost daily, but on Dec. 3—when CityBeat asked for a count—that number was 434 (1,297 fewer than the Watchdog Institute reported). Jerome Marsh, a spokesperson with adult parole operations, the arm of CDCR responsible for enforcing Jessica’s Law, said that all 434 are monitored by GPS devices—another provision of Jessica’s Law—and are in compliance with the law.

“The ones that go out of compliance, we arrest,” he said.

Sex offenders are a hot topic, and the Watchdog story got national attention. But, as far as CityBeat’s been able to tell, no major news outlets questioned the veracity of the report. CDCR spokesperson Gordon Hinkle told CityBeat on Tuesday that he was checking to see if anyone from parole operations had contacted the Watchdog Institute or the Union-Tribune to point out the error. 

“I can assure you that if they have not already, we definitely will,” he said.

Watchdog Institute editor Lorie Hearn, most recently a senior editor at the Union-Tribune before leaving to start the nonprofit, told CityBeat in an e-mail that she’s standing by the story and referred a reporter to a comment she submitted last week on CityBeat’s blog, Lastblogonearth.com, in response to a post questioning the story’s accuracy. 

“A key question before the California Supreme Court is who is subject to the residence restrictions of this law,” Hearn wrote in her comment. 

Her comment misses the point: How is the law, right now, being enforced? The state Supreme Court is currently considering whether Jessica’s Law should apply to a certain class of re-offenders—those released to parole prior to Jessica’s Law but who then committed a new, non-sexual offense, and were re-incarcerated after the law was passed. The plaintiffs, four offenders, are arguing that Jessica’s Law’s various provisions, including the residence restrictions, shouldn’t apply to them. CDCR attorneys, meanwhile, have countered that any registered sex offender released from custody after Nov. 7, 2006—regardless of offense—should be subject to Jessica’s Law. Or, as Hinkle explains:

“A sex offender that had been released in September 2006 to parole would not be required to meet Jessica’s Law requirements according to the law. But, say this same guy committed a new offense for any reason and came back out on Nov. 24, 2009. Because he has a previous sex offense, he would be subject to Jessica’s Law requirements completely per CDCR’s interpretation.”

On CityBeat’s blog, Hearn went on to argue that CDCR’s position is “that Jessica’s Law was intended to create ‘predator-free zones,’ which would require all registered sex offenders to abide by the residency restrictions. Jessica’s Law simply states that registered sex offenders can’t live within 2,000 feet of a school or park.”

When Jessica’s Law’s residence restrictions were challenged in the past—particularly a 2007 federal court case in which a judge found, among other things, that language like “predator-free zones,” wasn’t sufficient to warrant retroactive application of the law—CDCR was consistent in its position: The law applies only to registered sex offenders released from custody after Jessica’s Law was passed. In the case currently before the state Supreme Court, that position’s not changed, Hinkle said.

“Our argument has always been that if someone was incarcerated on or after Nov. 8, 2006… then the residency restrictions apply to them.... If the Supreme Court goes with our specific argument, any [registered sex offender] who was not incarcerated on or after Nov. 8, 2006, would not be subject to the Jessica’s Law residency restrictions.”

Ernest Galvan, the plaintiffs’ attorney, described Jessica’s Law as “poorly drafted” and, barring clarity from the court, too open to interpretation. Galvan said that his take on CDCR’s argument to the court is that the law should be applied retroactively (Hinkle insisted that this is incorrect). Galvan said he’s asking that the court clarify to whom the law applies once and for all. CDCR’s attorneys, meanwhile, are asking that no such language be added to the law.

Even though CDCR has asked the judges to rule only on the law’s application to the four plaintiffs, Galvan told CityBeat it’s conceivable that the court could decide that the law should apply to all registered sex offenders. In that case, the Watchdog Institute’s story would be accurate—sort of. It wouldn’t mean that the next day, the 70 percent whom the Watchdog Institute found to be living too close to a school or park would be subject to arrest.

“There would always be a time period to implement and comply with the court decision,” said Marsh, of adult parole operations, adding that even as it’s currently applied, “Jessica’s Law is a great burden for law-enforcement agencies. Certainly our elected representatives were aware of that when they passed it.”

Write to kellyd@sdcitybeat.com and editor@sdcitybeat.com.