BILL ANALYSIS
AB 575
Page 1
Date of Hearing: January 12, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 575 (Torres) - As Amended: January 4, 2010
SUMMARY : Creates a new misdemeanor for a high-risk sex
offender (HRSO) to be physically present and delay, linger, or
idle within 100 feet of bus stops, rail stations, child care
centers, sports centers, youth centers, and schools.
Specifically, this bill :
1)Describes "bus stop" as a location designated for the
regularly scheduled boarding and departing of bus passengers
for bus service offered to children attending school or to the
general public.
2)Classifies "child" or "children" or "youth" to include a
person or persons under 18 years of age.
3)Defines "child care center" as any of the following:
a) A "day care center" as defined under existing law.
b) A "child care and development facility" as defined under
existing law.
c) A facility that provides non-medical care and
supervision of children, including infants, toddlers,
preschoolers, and school-age children, for a period of not
less than 24 hours, consecutively, and required to be
licensed by the Department of Social Services.
4)Describes a "nontraditional school" to include any of the
following:
a) A public or private preschool.
b) A Montessori school.
c) A home school that has filed an affidavit or statement
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with the Superintendent of Public Instruction for the
current year pursuant to existing law and that provides
regularly scheduled home schooling to children as an
alternative to their attendance at other public or private
schools.
d) A school approved by the state as a charter school.
5)Terms "rail station" to be a location designated for the
regularly scheduled boarding and departing of rail passengers
for rail-based transportation service offered to children
attending school or to the general public.
6)Defines "sensitive use site" to be any location defined under
this section.
7) Classifies "sensitive use site parcel boundary" as the legal
boundary of the parcel or parcels occupied by the sensitive
use site, regardless of whether the site occupies the entire
parcel or any portion thereof.
8)Identifies a "sex offender" to be:
a) A person for whom registration is required pursuant to
the Sex Offender Registration Act;
b) A person convicted of a an offense under Penal Code
Sections rape, aggravated sexual assault of a child,
sodomy, lewd or lascivious acts, and forcible acts of
sexual penetration where the victim is a child under the
age of 14 years; and,
c) A person who has been placed on intensive and
specialized parole supervision because he or she has been
deemed to pose a high risk to the public of committing sex
crimes, as determined by the State-Authorized Risk
Assessment Tool for Sex Offenders (SARATSO).
9)Defines a "sports center" to include:
a) A location designed for accommodating sports or
recreational activities that is frequented by children,
seasonally or otherwise, including, but not limited to,
playgrounds, skate parks, baseball fields, basketball
courts, tennis courts, soccer fields, swimming facilities,
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karate studios, dance or ballet studios, and other sports
or recreational facilities frequented by children
regardless of whether that location is publicly or
privately owned.
b) Facilities open to members of a common interest
development or homeowners association in which that
facility exists shall be considered a sensitive use site.
All other facilities open to the general public not otherwise
addressed in this definition that are located in residential
zones not open to the general public shall not be included in
this definition of sports center.
10)Defines a "traditional school" as any of the following:
a) A private school that provides education from
Kindergarten through Grade 12 and that is not affiliated
with a local school district.
b) A public school providing instruction from Kindergarten
through Grade 12.
c) A community college, technical school, public or private
college, university, or professional school granting
associate arts degrees, certificates, and undergraduate and
graduate degrees.
11) Labels "youth center" to be a location at which a public or
private organization provides mentorship, educational, or
recreational programs to children on a regularly scheduled
basis for purposes of social, educational, artistic, athletic,
or community enrichment. Examples of youth centers include,
but are not limited to, Boys and Girls Club facilities and
YMCA facilities.
12)Provides that it is unlawful for any sex offender to be
physically present and delay, linger, or idle about within 100
feet of any sensitive use site, as defined in the
aforementioned paragraphs.
13)States that in determining whether a particular point is
within 100 feet of any sensitive use site, distances shall be
measured in a direct straight line from any point of the
boundary of the legal parcel on which the sensitive use site
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is located.
14)Makes a violation of this section is a misdemeanor,
punishable by imprisonment in the county jail not exceeding
one year, or by a fine not exceeding $1,000, or by both
imprisonment and a fine. A person is guilty of a separate
offense for each day during which a violation occurs.
15)Creates exceptions under this section in the following
instances:
a) The sex offender is a minor and he or she is present
within 100 feet of a sensitive use site while accompanied
by a parent or legal guardian.
b) The sex offender is present within 100-feet of a
sensitive use site only because he or she is traveling,
whether on foot, by car, or by other means to or from a
destination beyond the 100-foot area, and his or her
presence within the 100-foot area is temporary and
incidental to that travel.
c) The sex offender is present within 100 feet of a
sensitive use site only because he or she is accompanying a
related minor to that site and only for so long as is
necessary to provide care or supervision to the related
minor. As used in this paragraph, "related minor" means a
minor to whom the sex offender is the legal parent or
guardian.
d) The sex offender reasonably does not know that he or she
is present within 100 feet of a sensitive use site,
provided that he or she immediately takes steps to move
beyond that 100 foot area upon learning or being notified
of the existence of the sensitive use site.
e) The sex offender is exercising First Amendment rights
protected by the United States Constitution, such as the
free exercise of religion at a place of worship or freedom
of speech or the right of assembly at a traditional public
forum.
f) The sex offender is present within 100 feet of a
sensitive use site only because he or she is traveling,
whether on foot, by car, or by other means, to or from his
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or her place of employment for employment purposes.
g) The sex offender is present within 100 feet of a
sensitive use site only because he or she is traveling,
whether on foot, by car, or by other means, to or from a
medical facility, such as a hospital or doctor's office for
a legitimate and verifiable medical appointment.
EXISTING LAW :
1)Allows the California Department of Corrections and
Rehabilitation (CDCR) to ensure that all parolees under active
supervision who are deemed to pose a high risk to the public
of committing sex crimes, as determined by the SARATSO, are
placed on intensive and specialized parole supervision and are
required to report frequently to designated parole officers.
[Penal Code Section 3008(A).]
2)Provides that an inmate released on parole for any violation
of child molestation or continuous sexual abuse of any child
may not be placed or reside, for the duration of his or her
period of parole, within one-quarter mile of any public or
private school including any or all of Grades K-8, inclusive.
[Penal Code Section 3003(g)(1).]
3)Affirms that it is unlawful, notwithstanding any other
provision of law, for any person for whom sex offender
registration is required, to reside within 2,000 feet of any
public or private school or park where children regularly
gather. [Penal Code Section 3003.5(b).]
4)Affirms that it is unlawful, notwithstanding any other
provision of law, for any person for whom registration is
required pursuant to Penal Section 290 to reside within 2,000
feet of any public or private school or park where children
regularly gather. [Penal Code Section 3003.5(b).] Provides
that an adult must register for life as a sex offender if he
or she commits a specified sex offense. There are over 30 of
such offenses including, but not limited to, lewd acts in
public, sexual battery, indecent exposure, annoying or
molesting a child, rape, sodomy, a lewd act with a child, oral
copulation, rape or sodomy with a foreign object, pimping or
pandering a minor under the age of 16, kidnapping for purposes
of committing a sex crime, and continuous sexual abuse of a
child, assault with the intent to commit a sex crime. [Penal
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Code Section 290(a)(2)(A).]
5)Provides that any person required to register as a sex
offender shall, within five working days, notify the law
enforcement agency with which he or she registered of any
change in his or her residence address. The law enforcement
agency must report the change of residence to the DOJ within
three working days. [Penal Code Section 290(f)(1).]
6)Provides that any law enforcement entity may release
information regarding specific serious or high-risk sex
offenders by any means necessary to ensure the public safety,
and any person who receives that information from law
enforcement may disclose that information to the extent
authorized by the law enforcement agency. (Penal Code Section
290.45.)
7)States that available, specified information about certain sex
offenders shall be made available to the public via the
Internet. This information includes the name, known aliases,
a photograph, a physical description, date of birth, and the
address at which the person resides for specified sex
offenses. [Penal Code Section 290.46(b).]
8)Provides that only the county of residence and ZIP code shall
be made available on the Internet, in addition to the
identifying information, for specified other sex offenders.
[Penal Code Section 290.46(d).]
9)Forbids persons required to register as a sex offender from
loitering about any school or public place at or near which
children attend or normally congregate and who remains at any
school or public place at or near which children attend or
normally congregate, or who reenters or comes upon a school or
place within 72 hours, after being asked to leave by the chief
administrative official of that school or, in the absence of
the chief administrative official, the person acting as the
chief administrative official, or by a member of the security
patrol of the school district who has been given
authorization, in writing, by the chief administrative
official of that school to act as his or her agent in
performing this duty, or a city police officer, or sheriff or
deputy sheriff, or Department of the California Highway Patrol
peace officer is a vagrant. [Penal Code Section 653b(b).]
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10)Provides that every person who has a previous felony
conviction for rape, rape or penetration of genital or anal
openings by a foreign object, aggravated sexual assault of a
child, incest, oral copulation, continuous sexual abuse of a
child, or forcible acts of sexual penetration which involved a
minor under 16 years of age, or a previous felony conviction
of lewd and lascivious acts, or sending or bringing into the
state for sale or distribution of matter depicting sexual
conduct of a minor under 14 years of age who thereafter annoys
or molests any child under 18 years of age shall be punished
by imprisonment in the state prison for two, four, or six
years. [Penal Code Section 647.6(a)(1) and (c)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 575 is
intended to provide a new tool for law enforcement to manage
violent sex offenders. It prevents loitering near specified
sites frequented by children, by sex offenders on parole who
have been convicted of sex crimes against children and are
subject to special supervision under the Penal Code.
"It is based on an ordinance adopted by the City of Pomona, and
has been narrowed after extensive input from the Sex Offender
Management Board to restrict loitering by the highest risk sex
offenders in places where they are likely to encounter
children - schools, parks, bus-stops, playgrounds.
"The bill specifically applies to an estimated (by CDCR) 2300
current sex offenders under special supervision. It prohibits
them from loitering -- which is specifically defined to
include "delay, idle or linger about"-within 100 feet of
sensitive use sites, which are specifically defined in the
bill.
"Activities necessary to work, attend medical appointments, or
to travel to other destinations that bring a subject within
100 feet on a transitory basis are not covered by the
prohibition.
"This is a responsible measure that affords our children an
added measure of protection from the most dangerous sex
offenders and gives law enforcement an additional tool to
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protect the public."
2)Background : According to information provided by the author,
"After the enactment of Proposition 83 in November 2006, some
municipalities took action on Penal Code section 3003.5(c),
which authorizes municipalities to adopt restrictions on
residence by registered sex offenders that exceed the
Jessica's Law restrictions contained in Proposition 83.
"The City of Pomona was one such municipality. (Long Beach and
Covina are other municipalities that have adopted similar
ordinances.) It enacted Municipal Code Title 34-700 and
following, which takes a conceptually different approach to
managing the residence, presence and movements of registered
sex offenders. Jessica's Law excludes registered sex
offenders from residing within 2000 feet of a school. Penal
Code section 3003.5 The Pomona Ordinance identifies 16
"sensitive use sites" that are attractive to children -
including schools and also other attractions such as arcades,
youth centers, museums, cyber cafes, movie theaters,
child-care facilities, children's retail stores, sports
centers, etc. -- and excludes registered sex offenders from
residing and "loitering" in proximity to those sites.
Assemblywoman Torres was Mayor of Pomona when the ordinance
was approved.
"AB 575 proposes a state law that adapts the loitering
restrictions contained in the Pomona ordinance, but not the
residence restrictions, to define a new state crime."
3)High-Risk Sex Offenders : As of January 2009, there were 2,158
HRSOs on parole. [CDCR, Sex Offender Information, An
Overview of Facts and Resources (January 2009)
(as of Dec.7, 2009).] These HRSOs are
eligible for Global Positioning Satellite (GPS) monitoring and
CDCR paid treatment from contracted specialists. HRSOs are
also supervised by specifically trained parole agents. The
size of the HRSO program is determined and limited by CDCR's
funding levels. Currently, the ratio between parole officers
to HRSOs on active GPS is 20:1. [California Sex Offender
Management Board, An Assessment of Current Management
Practices of Adult Sex Offenders in California (January 2008),
p. 13.] To qualify as a HRSO, a newly paroling sex offender
must receive a score of four or higher on the Static-99. [Id.
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at 109 (The Static-99 is a research derived actuarial risk
assessment tool designed to predict sexual recidivism).]
HRSOs parolees are subject to a number of special conditions of
parole. Conditions may or may not include the following
relating to area restrictions and or minors:
a) "You shall not initiate, establish, have or maintain
contact with any minor under the age of 18. 'No contact'
means exactly that. No contact in any form, whether direct
or indirect, personally, by telephone, letter, electronic,
computer, or through another person, etc.
b) "You shall immediately inform your parole agent
regarding any contact with a minor whether it is
"accidental" or not.
c) "You shall not be within 100 yards of the perimeter of
places where children congregate, (day care centers,
schools, parks, playgrounds, video arcades, swimming pools,
etc.)
d) "You shall not date, socialize, or form a romantic
interest or sexual relationship with any person who has
physical custody of a minor.
e) "You shall not form a romantic interest or relationship
with a woman/man under the age of 18 years.
f) "You shall not travel more than ( enter number ) miles
from your residence of record.
g) "You shall maintain and have in your possession, a
travel log which shall include time of departure, tie of
arrival, destination, mileage, route traveled, with whom,
etc.
h) "You shall not travel during the hours of ( enter hours ).
i) "You shall not hitchhike or pick up hitchhikers.
j) "You shall not enter, travel past, or loiter near areas
of sexual or pornographic activity such as adult
bookstores, massage parlors, topless bars, sex shops, etc.
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aa) You shall maintain a residence with a street address or
other dwelling as approved by a Division of Adult Parole
Operations (DAPO) parole agent.
bb) "You shall not reside in neighborhoods where large
numbers of children reside.
cc) "You shall not reside in an apartment complex where
large numbers of children reside.
dd) "You shall not reside in a residence where minor
children reside.
ee) "You shall not reside near places where children
congregate (day care centers, schools, parks, playgrounds,
video arcades, swimming pools, etc.).
ff) "You shall not reside within one-half mile of any public
or private school.
gg) "Any other restriction as the DAPO agent sees fit."
[CDCR, DAPO, Special Conditions of Parole, CDC
1515-Addendum (Oct. 2008) (emphasis added).]
On November 8, 2006, California voters passed Proposition 83,
"The Sexual Predator Punishment and Control Act: Jessica's
Law". This proposition required registered sex offenders
released on parole be monitored for life using GPS technology
in the form of a satellite-tracked ankle bracelet.
Essentially, GPS monitoring provides information to probation
and parole officials about the whereabouts of sex offenders.
Theoretically, monitoring prohibits sex offenders from certain
areas (e.g., schools, day care centers, etc.) by making those
areas exclusion zones. Entrance into these exclusion zones
can result in a violation of an offender's probation or parole
status.
At present, there are also two statutes which seek to protect
minors from registered sex offenders. The first is Penal Code
Section 653b. This statute prohibits "persons required to
register as a sex offender from loitering about any school or
public place at or near which children attend or normally
congregate and who remains at any school or public place at or
near which children attend or normally congregate . . . ."
[Penal Code Section 653b(a).] The second statute, Penal Code
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Section 647.6, provides that "every person who annoys . . .
any child under 18 years of age, [and has a prior felony sex
offense conviction which involved a minor under 16 years of
age or in some circumstances 14 years of age] . . . shall be
punished by imprisonment in the state prison for two, four, or
six years . . . . " [Penal Code Section 647.6(a)(1) and
(c)(2).] In fact, Penal Code Section 647.6 makes it a felony
to "annoy or molest any child under the age of 18" in any
location. "Annoy and molest" are synonymous and mean to
disturb or irritate, especially by continued or repeated acts;
to vex, to trouble; to irk; or to offend. The focus is
properly on the defendant's intent and an objective assessment
of the defendant's conduct. There is a connotation of
abnormal sexual motivation on the part of the offender and,
although no specific intent is prescribed, the acts forbidden
are those motivated by an unnatural or abnormal sexual
interest or intent with respect to children. This existing
Penal Code section is more expansive and the punishment more
severe than what this bill provides.
This bill codifies specified "sensitive sites" for HRSOs who
have committed rape, aggravated sexual assault, sodomy, lewd
or lascivious acts, or forcible acts of sexual penetration
upon a victim under the age of 14 years. As demonstrated
above, HRSOs may already be given specific and individualized
restrictions during parole regarding when and where they may
be present. In addition thereto, these HRSOs are fitted with
GPS monitors for life. It is questionable whether or not
these specific exclusion zones need to be codified when these
areas can be "off-limits" already. In addition thereto, this
bill creates another misdemeanor: if an HRSO is found to have
violated the terms of his or her parole by going into one of
the "sensitive sites", he or she can be sent back to prison -
a consequence much more serious than imprisonment in the
county jail or a fine. Between the existent statutes, GPS
monitoring and the power of specialized DAPOs to prohibit and
restrict the movements of HRSOs, there are enough methods to
these parolees. This bill is superfluous.
4)Procedural Due Process : The Fifth and Fourteenth Amendments
provide that neither the federal nor state governments shall
deprive any person "of life, liberty, or property, without due
process of law." (U.S. Const. amends. 5th, 14th, 1.)
"Procedural due process 'insists that laws give the person of
ordinary intelligence a reasonable opportunity to know what
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[conduct] is prohibited, so that he may act accordingly.' "
[Doe v. Miller (S.D. Iowa 2004) 298 F. Supp. 2d 844, 877.]
Accordingly, a court may find that a statute is overly vague
and thus void on procedural due process grounds because the
statute is so poorly articulated that sex offenders cannot
discern what conduct is prohibited. [See Connally v. Gen.
Constr. Co. (1926) 269 U.S. 385, 391.] Void-for-vagueness
problems also arise when the statute does not set minimal
guidelines, essentially allowing for arbitrary enforcement.
There is a requirement that the legislature establish minimal
guidelines to govern law enforcement." (Smith v. Goguen (1974)
415 U.S. 566, 574.) Where the legislature fails to provide
such minimal guidelines, a criminal statute may permit "a
standardless sweep [that] allows policemen, prosecutors, and
juries to pursue their personal predilections." Id., at 575.
This is unconstitutional.
a) Vagueness : The degree of specificity necessary to avoid
unconstitutional vagueness varies depending on the type of
provision. [Smith v. Goguen (1974) 415 U.S. 566, 573.]
Nevertheless, the Legislature need not define every term or
factual situation in a statute, and terms left undefined
are to be accorded their common, everyday meaning. [United
States v. Haun (6th Cir. 1996) 90 F.3d 1096, 1101.]
Absolute or exact precision is not required since
"flexibility and reasonable breadth" in the language chosen
is constitutionally acceptable. [See Grayned v. City of
Rockford (1972) 408 U.S. 104, 110; and Commonwealth v. Kash
(1997) 967 S.W.2d 37, 43 (stating that "simply because a
criminal statute could have been written more precisely
does not mean the statute as written is unconstitutionally
vague").] In reviewing a vagueness challenge, the
essential inquiry is whether the statute describes the
forbidden conduct sufficiently so that persons of common
intelligence disposed to obey the law can understand its
meaning and application. [Commonwealth v. Foley (1990) 798
S.W.2d 947, 951.]
Thus, procedural due process under the Fourteenth Amendment
requires that an individual have notice as to what conduct
is prohibited by a statute for the statute to pass
constitutional muster. This bill has many provisions that
can be considered vague for purposes of enforcement. For
example, this bill defines the term "bus stop" to be "a
location designated for the regularly scheduled boarding
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and departing of bus passengers for bus service offered to
children attending school or to the general public."
[Assem. Bill No. 575 (2009-2010 Reg. Sess.) 1.]
California has thousands of bus stops. Further, bus stops
have no set "boundaries," making it impossible to measure
100 feet from each one. Moreover, bus stops are a moving
target; they are inherently transient and may be designated
at any time, significantly limiting the permanency of an
HRSO's acceptable zone.
The same rationale that applies to bus stops can apply to
other sensitive site areas in this bill: rail stations,
child care centers, sports centers, youth centers and
schools.
There is also no indication that such information regarding
the location of all of the restricted locales listed in
this bill will be made available to HRSOs in a timely and
meaningful way every time location changes or appears. If
this bill is enacted, there is no way for an HRSO to know
in advance that a prohibited location was established and
lack adequate notice to change his or her route and or
plans.
As a policy matter, it is extremely unreasonable to place
this burden on HRSOs. Even if there was some type of Web
site that they could check on a daily basis to see if
locations have changed, this is not reasonable. Without
advance notice of new location prohibitions, HRSOs would
frequently find themselves in violation of the statute.
Even if such information available, these registrants might
have to move not only upon such short notice, but also move
frequently. This bill creates a misdemeanor to be
physically present and delay, linger, or idle about within
100 feet of one of the proscribed areas; however, what if
the HRSO resides within 100 feet of this area? This bill
makes no exceptions for these persons. Therefore, this
bill essentially creates a residency restriction since the
terms "delay, linger, or idle" are vague. One would assume
that a person living near these locales is certainly idle
under the plain definition of the word.
For instance, a HRSO may buy a house or lease an apartment
near one of the sensitive sites. If a bus stop, rail
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station, child care center, sports center, youth center,
tutoring center or school is located or relocates to this
area the sex offender will have to move. There is little
incentive for registrants to enter into any long-term
commitment for housing.
b) Arbitrary Enforcement : The Supreme Court has indicated
that in order to avoid arbitrary enforcement, a statute
should contain objective, normative standards to prevent
purely subjective decisions by government officers in
enforcing the statute. [City of Chicago v. Morales (1999)
527 U.S. 41.]
The exclusionary zones in this bill may precipitate arbitrary
enforcement and may fail to contain the minimal guidelines
necessary to guide proper enforcement. The potential for
arbitrary enforcement exists because officers may fine or
arrest a known offender who seemingly has no reason to be
in the prohibited area but may indeed be there for a lawful
reason. For example, an HRSO wants to take the bus for an
appointment to visit his or her parole officer or friend.
However, this bill makes it unlawful for an offender to
delay, idle or linger at a bus stop. What if the parolee
misses this bus or train? Will he or she be lingering too
long? An offender's mere presence at a bus stop is not
necessarily indicative of criminality or a nefarious
intent; indeed, an offender can have a lawful and
legitimate purpose for being within 100 feet of a bus stop,
rail station, sports center, school, or youth center. Yet,
law enforcement officials may fine or arrest the offender
without considering the offender's reason for being there.
The terms "delay, linger, or idle" are not objective
standards either. For example, how does a law enforcement
officer measure whether a registrant's conduct in mass at a
church located within 100 feet of a bus stop qualifies as
delaying, lingering, or idling in violation of this bill?
Attending mass is allowed, but is lingering around the
church after mass to speak to others or to wait for traffic
in a crowded parking lot to disperse allowed? Does living
in a sensitive area constitute delaying, lingering, or
idling? Is this creating a backdoor residency restriction?
What happens if a bus stop is placed within 100 feet of
where an HRSO lives? This bill does not have a move to the
offender exception. There is also no measurable or
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definite time period; delaying, lingering and idling is
purely an objective measurement of time which encourages
arbitrary enforcement under this bill.
When it is unclear what conduct is prohibited or when the
statute does not guard against discriminatory enforcement
by containing minimal guidelines, a procedural due process
challenge may be successful. This bill allows for
arbitrary enforcement.
5)Are Sensitive Site Restrictions a Reasonable Mean to an End :
Understanding the costs and benefits of a law is crucial to
determining its rationality. The benefits of residency
restrictions or "sensitive site" laws are two-fold. At one
level, communities benefit from knowing that they do not have
sex offenders living in specified areas. This provides
security. Theoretically, the second benefit of residency laws
would be that they prevent some sex offenses from occurring.
However, empirical evidence demonstrates that these laws do
not prevent a majority of sex crimes. "Ninety percent of child
victims know their offender, with almost half of the offenders
being a family member. Of sexual assaults against people age
12 and up, approximately 80% of the victims know the
offender." [Office of the Attorney General, Facts About Sex
Offenders (as Jan. 7, 2010).] These findings not only
undermine the stated purpose of residency and sensitive site
boundary laws, but also render false the sense of security.
The perceived "benefits" of residency and sensitive site
boundary laws come with monetary, psychological, and ethical
costs. [See Levenson (2005) Sex Offender Residence
Restrictions: A Report to the Florida Legislature.] The
obvious costs include those associated with identifying,
monitoring, arresting, prosecuting, and imprisoning sex
offenders who violate broad residency laws. There are also
other less obvious social costs. Perhaps the most compelling
of these costs is that police resources will be spread thin by
voluminous monitoring obligations, leaving fewer resources.
Other costs include a potential loss of labor from HRSOs who
are unable to obtain an education or skill since they are
prohibited from community colleges, technical schools,
college, university or professional school. Additionally,
communities incur other subtle costs by disenfranchising a
substantial sector of their population. Feelings of
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disenfranchisement, rejection, hatred, and neglect negatively
affect the mental states of those individuals forced to live
on the fringes of society. [See Pinard & Thompson, Offender
Reentry and the Collateral Consequences of Criminal
Convictions: An Introduction (2006) 30 N.Y.U. Rev. L. & Soc.
Change 585 (hereafter Pinard).] This large-scale rejection
often causes the sex offender to harbor reciprocal feelings
towards society, sometimes to the point where the offender's
feelings of civic responsibility - including the duty to
follow laws dissipate. (Id.) When people are denied the
rights of citizens, some may feel like they have
proportionally fewer duties of citizenship. (Id.)
Forcing HRSOs to move to remote areas creates additional social
costs by decreasing access to mental health, behavioral
treatment, and educational opportunities. These costs are
especially troubling because they threaten to negate the
benefits of forcing HRSOs to move in the first place. If
certain sex offenders benefit (i.e., become less likely to
recidivate) from treatment and educational opportunities, then
denying these sex offenders such opportunities increases the
likelihood to reoffend in the future. [See Marshall &
Pithers, A Reconsideration of Treatment Outcome with Sex
Offenders (1994) 21 Crim. Just. & Behav. 10.] As sex
offenders are forced farther and farther from densely
populated areas and required to find housing from an
increasingly small number of options that comply with
residency restrictions, they are more likely to become
homeless and transient. Homelessness and transience increase
the risks of psychological and treatment problems and the
costs of monitoring and tracking the sex offenders. (Pinard,
supra.)
If imposing residency laws incurred no costs and were effective
in preventing crime, it would be rational for states to enact
severe, broad laws and enforce them against every person who
may commit a sex crime in the future. However, significant
costs do exist and, therefore, zero crime is not socially
ideal. [See Becker, Crime and Punishment: An Economic
Approach (1968) 76 J. Pol. Econ. 169, 180-85 (describing model
for finding an optimal, equilibrium level of punishment in
which the optimal quantity of prevention and punishment is
inversely correlated to the respective costs).]
The reality is that the cost of preventing a crime through
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residency and sensitive site boundary laws is greater than the
marginal benefit of its prevention; thus, it is not worth
attempting to prevent its commission. It is irrational to
impose a law where the costs outweigh the benefits; therefore,
a law cannot survive even the most deferential rational basis
analysis at the point where this disequilibrium occurs.
This bill creates additional residency restrictions and imposes
sensitive site boundary restrictions, whilst becoming less
logically related to the original purpose, i.e., preventing
crimes against children. On the cost side, the expansion
under this bill undermines the effectiveness in helping law
enforcement detect the people who actually pose a threat by
diluting limited police resources within communities.
6)Argument in Support : According to Crime Victims United of
California , "We share the same goal as Assemblymember Torres
of alleviating temptation of offenders who would prey upon our
most vulnerable populations, our children, by prohibiting them
from loitering near sensitive areas."
7)Argument in Opposition : According to the California Public
Defenders Association , " . . . this bill is unnecessary
because anything which might be actionable under this
legislation is already actionable under Penal Code section
653[b](b), the existing loitering statute which makes it a
misdemeanor for 290 registrants to "delay, linger or idle
about . . . without lawful purpose, in a public place at or
near which children attend or normally congregate."
"Additionally, some of the definitions in this bill may lead to
arrests where an individual was unintentionally engaging in
behavior which may be deemed in violation of this act. One
example is the definition of "bus stop" which specifies a
location "designated for" school bus pick up. Often,
locations may be "designated" for school bus pick up and drop
off without any signage or other indication to the general
public that the location is used as such. Accordingly, an
individual may be in violation of this law without even
knowing it. While the bill seeks to address this possibility
in subparagraph (e)(4), it is unlikely that a high risk sex
offender will be successful in making this argument prior to
being arrested and deemed a parole violator.
"It is important to note that for many years as a group, sex
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offenders were less likely than other groups of offenders to
violate parole; now between Jessica's Law and impossible
parole terms and conditions imposed by CDCR, sex offenders
violate at a significant rate. This unnecessary and ambiguous
bill will only exacerbate this problem, while doing nothing to
achieve the desired effect of keeping children safer."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Capitol Resource Family Impact
Crime Victims United of California
San Bernardino County Office of the Sheriff
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Disability Rights California
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744