BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 54 Hearing Date: June 30, 2015
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|Author: |Runner |
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|Version: |June 19, 2015 |
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|Urgency: |Yes |Fiscal: |No |
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|Consultant:|ALA |
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Subject: Sex Offenders: Residency Restrictions
HISTORY
Source: Author
Prior Legislation:SB 54 (Runner) - 2011, failed passage Senate
Public Safety
Support: Crime Victims United of California
Opposition:ACLU; California Attorneys for Criminal Justice;
California Reform Sex Offender Laws; California Public
Defenders Association; California Sex Offender
Management Board
PURPOSE
The purpose of this bill is to make the following changes to the
residency restrictions pertaining to registered sex offenders
now in statute: 1) limit these restrictions to persons
convicted of specified sex crimes; 2) provide that the residency
restriction of 2,000 feet of any public or private school or
park where children regularly gather shall be measured by the
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shortest practical pedestrian or vehicle path; and 3) provide a
statutory judicial process whereby registered sex offenders
could be relieved of this restriction, as specified.
Current law generally requires persons convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with specified law enforcement officials in
the city, county or city and county where he or she is
domiciled, as specified.<1> (Penal Code § 290.) Registration
generally must be updated annually, within five working days of
a registrant's birthday. (Penal Code § 290.012(a).) In some
instances, registration must be updated once every 30 or 90
days, as specified. (Penal Code §§ 290.011, 290.012.)
Residency Restrictions for Sex Offenders: Measuring "2,000
Feet"
Existing statute provides it "is unlawful for any person for
whom registration is required pursuant to the Sex Offender
Registration Act to reside within 2,000 feet of any public or
private school, or areas of a park where children regularly
gather." (Pen. Code § 3003.5 (b).)
Existing statute explicitly authorizes municipal jurisdictions
to enact local ordinances that further restrict the residency of
any person required to register as a sex offender. (Penal Code
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<1> Penal Code section 290(b) provides: "Every person
described in subdivision (c) for the rest of his or her life
while residing in, or, if he or she has no residence, while
located within California, or while attending school or working
in California, as described in section 290.002 and 290.01, shall
be required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
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§ 3003.5(c).)
Existing case law provides that the residency restrictions
contained in subdivision (b) of Penal Code section 3003.5 "are
unconstitutional as applied across the board to petitioners and
similarly situated registered sex offenders on parole in San
Diego County." (In Re Taylor [2015] 60 Cal. 4th 1019.)
This bill would narrow the application of this provision to
persons convicted of any of the offenses enumerated in Section
667.61.
This bill would provide that the "2,000 feet shall be measured
by the shortest practical pedestrian or vehicle path."
This bill additionally would provide that any person subject to
the residency restriction imposed pursuant to the provisions of
this section "may, if compliance is not reasonably possible
within his or her county, seek relief," as would be provided in
this bill (see below).
This bill also would make a purely technical change to this
section.
Residency Restrictions for Sex Offenders: Process for Relief
This bill would provide a judicial process through which
registered sex offenders subject to the residency restrictions
noted above with the following features and requirements:
Applicability
This bill would provide that any registered sex offender
prohibited by current statute, as specified, from living within
2,000 feet of any public or private school, or park where
children regularly gather, "may seek relief from those
restrictions if he or she cannot comply with the restriction
because of the unavailability of compliant housing within his or
her county of domicile."
Process
This bill would provide that any person seeking relief "may file
a petition with the superior court of the county in which he or
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she resides. Notice of the petition shall be timely served on
the state parole authority or other entity enforcing the subject
sex offender residency restrictions."
This bill would provide that, "(n)otwithstanding any other law,
original jurisdiction for any petition filed pursuant to this
section shall lie with the appellate division of the superior
court in which the petition is filed."
This bill would authorize the court to consolidate all pending
petitions.
Elements Required to Grant Relief; Standard for Review
This bill would authorize the appellate division of the superior
court in which the petition is filed to "grant the petition if
the petitioner establishes by a preponderance of the evidence,
and the court finds, both of the following:
(1) There is a pervasive lack of compliant housing within
the petitioner's county of domicile.
(2) As a result of the pervasive lack of compliant housing,
a majority of sex offenders subject to the 2,000-foot
residency restriction have, despite good faith efforts,
been unable to find compliant housing within the county.
Scope of Relief Granted
This bill would provide that if relief is granted, it "shall
apply uniformly to all sex offenders convicted of any of the
offenses enumerated in Section 667.61 and for whom registration
is required pursuant to Section 290 in all communities within
the county that are subject to the 2,000-foot residency
restriction and shall, therefore, be narrowly crafted in order
to substantially comply with the intent of the people in
approving the residency requirements of Section 3003.5."
Limitations on Subsequent Petitions
This bill would provide that if "relief is granted or denied . .
. , no subsequent petition shall be heard, unless the petitioner
or petitioners establish in the petition, to the satisfaction of
the court, both of the following:
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(1) There has been a change of circumstances based upon a
substantial decline in the availability of compliant
housing.
(2) There has been a corresponding increase in the
percentage of sex offenders who are unable to comply with
the residency restrictions due to the change of
circumstances described in paragraph (1) since the court
ruling on the prior petition."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
" 143% of design bed capacity by June 30, 2014;
" 141.5% of design bed capacity by February 28, 2015;
and,
" 137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
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population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
" Whether a proposal erodes a measure which has
contributed to reducing the prison population;
" Whether a proposal addresses a major area of public
safety or criminal activity for which there is no other
reasonable, appropriate remedy;
" Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which
there is no other reasonably appropriate sanction;
" Whether a proposal corrects a constitutional problem or
legislative drafting error; and
" Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states in part:
SB 54 is designed to make sex-offender residency
restrictions more workable and to provide relief in
jurisdictions where a majority of sex offenders cannot
find compliant housing. The bill provides that the
Appellate Division of the Superior Court of each
county would have primary jurisdiction to consolidate
and hear petitions challenging the 2000 foot residency
restriction which precluded registered sex offenders
from residing near schools or parks. The Court would
grant relief if it was established that there was a
pervasive lack of compliant housing in the subject
county.
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2.Supreme Court Ruling on Residency Restrictions
In March of this year, the California Supreme Court unanimously
ruled that the provisions in state law prohibiting sex offenders
from living within 2,000 feet of schools or parks, as applied in
San Diego County, are unconstitutional and bear "no rational
relationship to advancing the state's legitimate goal of
protecting children from sexual predators." (In Re Taylor [2015]
60 Cal. 4th 1019). In that case, petitioners pursued habeas
corpus relief "by challenging the constitutionality of the
residency restrictions as applied to them and other similarly
situated registered sex offenders on supervised parole in San
Diego County, based on evidence adduced at an eight-day
evidentiary hearing ordered by this court." (Id. at 1038-39,
citation omitted.)
The Court stated in part:
In this case, however, we need not decide whether
rational basis or heightened strict scrutiny review
should be invoked in scrutinizing petitioners'
constitutional challenges to section 3003.5(b). As we
next explain, we are persuaded that blanket
enforcement of the mandatory residency restrictions of
Jessica's Law, as applied to registered sex offenders
on parole in San Diego County, cannot survive even the
more deferential rational basis standard of
constitutional review. Such enforcement has imposed
harsh and severe restrictions and disabilities on the
affected parolees' liberty and privacy rights, however
limited, while producing conditions that hamper,
rather than foster, efforts to monitor, supervise, and
rehabilitate these persons. Accordingly, it bears no
rational relationship to advancing the state's
legitimate goal of protecting children from sexual
predators, and has infringed the affected parolees'
basic constitutional right to be free of official
action that is unreasonable, arbitrary, and
oppressive. (In Re Taylor, supra, 60 Cal.4th at 1038.
(emphasis added)
3.Considerations in Light of In Re Taylor
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As explained in detail above, this bill would provide a judicial
process whereby registered sex offenders could be relieved of
the residency restrictions enacted by Jessica's Law in 2006.
These provisions are nearly identical to a bill introduced in
2011 (SB 54 [Runner]). As noted above, in the meantime the
Supreme Court has addressed some constitutional issues regarding
residency restrictions.
Members may wish to discuss, in light of the decision in the
Taylor case, the viability of this bill's provisions and how
they might work. The Taylor decision states in part:
. . . (W)e agree that section 3003.5(b)'s residency
restrictions are unconstitutional as applied across
the board to petitioners and similarly situated
registered sex offenders on parole in San Diego
County. Blanket enforcement of the residency
restrictions against these parolees has severely
restricted their ability to find housing in compliance
with the statute, greatly increased the incidence of
homelessness among them, and hindered their access to
medical treatment, drug and alcohol dependency
services, psychological counseling and other
rehabilitative social services available to all
parolees, while further hampering the efforts of
parole authorities and law enforcement officials to
monitor, supervise, and rehabilitate them in the
interests of public safety. It thus has infringed
their liberty and privacy interests, however limited,
while bearing no rational relationship to advancing
the state's legitimate goal of protecting children
from sexual predators, and has violated their basic
constitutional right to be free of unreasonable,
arbitrary, and oppressive official action.
Nonetheless, as the lower courts made clear, CDCR
retains the statutory authority, under provisions in
the Penal Code separate from those found in section
3003.5(b), to impose special restrictions on
registered sex offenders in the form of discretionary
parole conditions, including residency restrictions
that may be more or less restrictive than those found
in section 3003.5(b), as long as they are based on,
and supported by, the particularized circumstances of
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each individual parolee. (In re Taylor, supra, 60
Cal.4th at 1023.)
It appears that the reasoning of Taylor now would apply in
any jurisdiction seeking to apply a blanket residency
restriction on registered sex offenders. As enumerated by
the Court, the trial court made a number of findings of
fact in the San Diego case:
(1) Despite certain imprecisions, the map book
prepared by (the) San Diego County crime analyst . . .
is the most accurate assessment of housing that is
reasonably available to registered sex offender
parolees in San Diego County.
(2) Registered sex offender parolees are unlikely
candidates to rent single-family homes; they are
most likely to be housed in apartments or low-cost
residential hotels.
(3) By virtue of the residency restrictions alone,
registered sex offender parolees are effectively
barred from access to approximately 97 percent of the
existing rental property that would otherwise be
available to them.
(4) The remaining 3 percent of multifamily rental
housing outside the exclusion areas is not necessarily
available to registered sex offender parolees for a
variety of reasons, including San Diego County's low
vacancy rate, high rents, and the unwillingness of
some landlords to rent to such persons.
(5) In addition to CDCR's policy prohibiting parole
agents from supplying registered sex offender parolees
with specific information about the location of
compliant housing, parole authorities in San Diego
County have taken affirmative steps to prevent parole
agents from helping parolees find compliant housing.
(6) Rigid application of the residency restrictions
results in large groups of registered sex offender
parolees having to sleep in alleys and riverbeds, a
circumstance that did not exist prior to Jessica's
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Law.
(7) The residency restrictions place burdens on
registered sex offender parolees that are disruptive
in a way that hinders their treatment, jeopardizes
their health and undercuts their ability to find and
maintain employment, significantly undermining any
effort at rehabilitation. (Id. at 1034.)
This bill would provide a process for challenging a local
residency ordinance under which the appellate division of
the superior court in which the petition is filed pursuant
to this section may grant the petition if the petitioner
establishes by a preponderance of the evidence, and the
court finds, both of the following:
(1) There is a pervasive lack of compliant housing
within the petitioner's county of domicile.
(2) As a result of the pervasive lack of compliant
housing, a majority of sex offenders subject to the
2,000-foot residency restriction have, despite good
faith efforts, been unable to find compliant housing
within the county.
The author submits that "(r)ather than waiting for multiple
habeas petitions and appeals to wind their way through our
appellate courts, SB 54 seeks to create a more orderly and
efficient process for those seeking relief from the 2000
foot residency restrictions as applied in particular
counties."
The two criteria proposed by this bill as the basis upon
which a court may grant relief from a residency restriction
are narrower than the evidentiary examination performed in
the Taylor case. In addition, the standards proposed by
this bill appear to be vague. Members may wish to consider
how possible it would be for a petitioner under this bill
to 1) demonstrate a "pervasive" <2> lack of compliant
housing; 2) demonstrate that as result of a "pervasive lack
of compliant housing" a "majority" of sex offenders have
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<2> A word search for the word "pervasive" by Committee staff
resulted in no usage in the Penal Code.
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been unable to find compliant housing; and 3) demonstrate
that a majority of these other sex offenders had used "good
faith efforts" to find compliant housing.
Currently, these cases are being taken up as writs of
habeas corpus. The Court in Taylor notes that in the
related case of In Re E.J., 47 Cal.4th 1258, it remanded
the cases for evidentiary hearings in the trials courts.
This bill would provide that the appellate division of the
superior court would have jurisdiction over the petition
process this bill would enact. Members may wish to discuss
the effect of the process proposed by this bill compared to
a habeas writ, and whether the evidentiary hearing process
would be different under this bill.
COULD A PETITIONER REASONABLY PREVAIL UNDER THE CRITERIA
THAT WOULD BE ESTABLISHED BY THIS BILL?
WOULD THIS BILL LIMIT THE CONSTITUTIONAL EXAMINATION
EMPLOYED BY THE COURT IN TAYLOR?
WOULD THE PROCESS ENACTED BY THIS BILL BE CONSTITUTIONAL?
WOULD THIS BILL PROMOTE PUBLIC SAFETY?
1.Measuring 2,000 Feet for Purposes of the Residency Restriction
In its January 2008 initial report, the California Sex Offender
Management Board noted that some of the terms in the existing
residency restrictions are not defined by the initiative, and
are not clear:
Proposition 83 added Section (b) to Penal Code Section
3003.5 which makes it unlawful for any person required
to register pursuant to Penal Code Section 290 to live
within 2,000 feet of any "public or private school, or
park where children regularly gather."
" The term "park where children regularly gather" is
not defined by the initiative.
o It is unclear if this term refers to the
entire grounds of a park (sizeable portions in
which children may not routinely gather) or the
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portion (such as location where a play structure
is located) where children are intended to be
present.
o It is unclear how often children need to
be present at a park to meet the threshold of the
phrase "regularly gather."
Proposition 83 does not prescribe a method
for determining how to measure the 2,000 residency
restriction.
o It is unclear what physical point on a
site should be used to begin measurement. For
example, some localities measure from the
center-point of a property and some measure from
the border edges of the property.
o It is unclear how the 2,000 foot distance
should be measured. Should practitioners
determine the distance by roads or routes a car
would travel? Should the distance be determined
using straight lines or 'as the crow flies'?
This bill would provide that the 2,000 feet "shall be measured
by the closest practical pedestrian or vehicle path." This
language would appear to provide clarity in terms of how to
identify restricted areas. This standard arguably might reduce
the reach of the existing restriction to the extent it employs
pathways and thoroughfares instead of a simple circumference
drawn around the prohibited area. For example, a residence may
be sited directly behind a fenced school campus but not be
within 2,000 feet - less than half a mile - of the school as
measured by the road or pathway.
WOULD THIS BILL ADD CLARITY TO THE APPLICATION OF CURRENT LAW,
AS ENACTED BY JESSICA'S LAW?
COULD THIS PROVISION MATERIALLY REDUCE THE SCOPE OF THE
RESIDENCY RESTRICTIONS OF JESSICA'S LAW?
WOULD THIS PROVISION IMPROVE THE PRACTICAL APPLICATION AND
ENFORCEMENT OF JESSICA'S LAW?
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WOULD THIS PROVISION IMPROVE STATE LAW WITH RESPECT TO
MONITORING SEX OFFENDERS AND PREVENTING SEX CRIMES?
1.Opposition
The California Sex Offender Management Board, which
opposes this bill, submits in part:
The blanket imposition of residence restrictions on
sex offenders is, in fact, not based on or in accord
with any available science, knowledge, research or
other solid foundation. CASOMB strongly believes that
policies should be evidence-based whenever such
evidence is available, as it clearly is regarding
residence restrictions.
. . . Residence restrictions policies, both in general
and as now proposed in SB 54, appear to be built on a
foundation of false assumptions and discredited myths.
Among these are mistaken beliefs about who commits
sex offenses ("stranger danger"), where they are
committed and what has and what has not been proven
effective in reducing recidivism.
. . . The recommendations of a number of authoritative
expert resources oppose the application of residence
restrictions because their review of the research
consistently finds absolutely no scientific support
for such policies. These experts and authorities
include a Task Group of experts (SOMAPI) convened by
the US Department of Justice's SMART Office, the
National Council of State Governments and the
Association for the Treatment of Sexual Abusers
(ATSA). The ATSA review concluded: "Policies
emphasizing residential proximity to schools and parks
. . . ignore the empirical reality of sexual abuse
patterns, specifically that residence restrictions do
not reduce recidivism or increase community safety." .
. .
A number of additional concerns about SB 54 have been
identified by CASOMB, including the likelihood of a
number of serious unintended consequences, the
certainty of significant costs in implementation, and
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vagueness in the bill's language. . . . (emphasis in
original)
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