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Friday, Feb 18, 2011 - Last Blog on Earth | News

Judge rules Jessica's Law is unconstitutional

Ruling applies to four parolees, but could reach more

By Kelly Davis
news1 For many sex offenders, a tent becomes home for the duration of their parole.
- Photo by Kelly Davis

A San Diego judge has ruled that Jessica's Law's residency restrictions—which ban all registered sex offenders from living within 2,000 feet of a school or park—are unconstitutional. For now, the ruling applies only to four petitioners, all registered sex offenders from San Diego County, who argued that Jessica's Law has forced them into homelessness. The ruling, however, will serve as the basis for deciding whether roughly 132 additional petitioners should be exempt from the residency restrictions.

Offenders who’ve committed a crime against a child under 14 and determined to be at high risk for re-offense aren't eligible for relief.

The ruling is in response to a week of hearings that started on Jan. 25. (I wrote about them for CityBeat's Feb. 2 issue.) Last year, the California Supreme Court ruled that Jessica's Law applies to sex offenders on parole for a non-sexual offense (so, someone who committed a sex crime in the past but was subsequently returned to prison for a different crime), but declined to rule on claims that the residency restrictions are vague and overly broad. The Supreme Court asked that local courts conduct hearings to establish a factual basis for those claims.

The petitioners were represented by Deputy Public Defender Laura Arnold; the state Attorney General defended the law. As I pointed out in my original article, it was Arnold's case to prove. She put on more than a dozen witnesses to the state's single witness. Arnold argued that there's a miniscule amount of compliant, affordable housing available to paroled sex offenders. San Diego County crime analyst Julie Wartell testified that only 2.9 percent of multi-family parcels (apartments, mobile home parks) are compliant with the law and, according to testimony, parole agents offer parolees no assistance in finding that housing. One Department of Corrections therapist testified that he'd been discouraged from providing assistance. 

Arnold argued that conditions of parole must be narrowly tailored to aid in rehabilitation and prevent future crimes. The blanket application of the residency restrictions makes no distinction between someone who molested a child and someone who was convicted of indecent exposure 30 years ago. Mental health professionals testified that homelessness hurts a person's efforts to get his life back on track.

"The evidence in this case show that the rigid application of the residency restrictions results in large groups of parolees having to sleep in alleys and riverbeds," Judge Michael Wellington wrote in his ruling, "a circumstance that did not exist prior to Jessica's Law. The burdens this places on parolees are disruptive in a way that hinders their treatment, jeopardizes their health and undercuts their ability to find an maintain employment, significantly undermining any effort at rehabilitation."

Wellington also noted that the law's "anomalies that smack of arbitrariness." 

"Testimony established that the restriction zones bar parolees from indoor accommodations in virtually all of downtown San Diego, but they are allowed, as 'transients,' to sleep in alleys and doorways in that same area," he wrote. "Also, situations will inevitably arise where the parolee has an opportunity to live in a supportive family or rehabilitation environment but is prohibited because the front door is a few feet inside the 2,000 foot exclusion zone."

He noted one petitioner who has AIDS, throat cancer and has suffered three strokes and could live with his nephew, whose wife is a health care provider, if not for the residency restrictions.

The ruling, however, "doesn't mean parolees can live wherever they want to. Parole agents should have discretion to impose special conditions of parole which, in some cases, could mean conditions more restrictive than Jessica's Law."

This post has been updated to clarify which offenders aren't eligibale for relief from the residency restrictions.