BILL ANALYSIS
AB 148
Page 1
Date of Hearing: March 13, 2007
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 148 (Alarcon) - As Introduced: January 17, 2007
SUMMARY : Removes the prohibition in existing law against using
information from the Department of Justice's (DOJ) Megan's Law
Web site for purposes related to housing or accommodations.
Specifically, this bill :
1)Authorizes, but does not require, a lessor of residential real
property to refuse to provide housing to, or evict, a sex
offender whose residence address is made available on the
Megan's Law Internet Web site.
2)Allows, but does not require, lessors of residential real
property to inform other residents of that property that a
person whose residence address is made available on the
Internet Web site also resides in the residential real
property.
3)States that nothing in the section permitting evictions or
denials of housing to sex offenders whose residence addresses
are disclosed on the DOJ Megan's Law Web site shall be
construed to diminish in any way the power or right that any
person including, but not limited to, any service provider or
lessor of residential real property may have to use
information disclosed to protect a person at risk from a
registered sex offender, including those offenders whose
residence addresses are not made available to the public on
the DOJ Megan's Law Web site.
4)Removes "housing or accommodations" from the statutory list of
prohibited uses of the information disclosed on the DOJ
Megan's Law Web site.
5)Provides that inmates who are released on parole for violation
of any sexual offenses for which registration is required
pursuant to the sex offender registration statutes be evenly
placed throughout the state geographically based on Assembly
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districts.
6)Makes technical, non-substantive changes to statutory
language.
EXISTING LAW :
1)Provides that DOJ shall make available to the public via the
Internet Web site the following information regarding
specified sex offenders:
a) His or her name or names and known aliases;
b) A photograph;
c) A physical description, including gender and race;
d) Date of birth;
e) Criminal history;
f) The address at which the person resides; and,
g) Any other information the DOJ considers relevant and is
not excluded by law.
2)States that the above information shall apply to specified
sexual offenses; generally, those deemed the most serious.
[Penal Code Section 290(a)(2).]
3)Provides that the above information shall also be provided on
the Internet Web site as to any person who has ever been
adjudicated a sexually violent predator, as defined. [Penal
Code Section 290.46(b)(3).]
4)States that the DOJ shall make available to the public via the
Internet web site the offender's name and known aliases; a
photograph; a physical description, including gender and race;
date of birth; criminal history; and the community of
residence and zip code in which the person resides, but not
the specific address, for a person convicted of specified
offenses generally deemed less serious. [Penal Code Section
290.46(d)(1).]
5)Provides that the DOJ shall make a determination whether the
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person has a prior or subsequent conviction of specified sex
offenses. For such a person with additional convictions, the
address at which the person resides shall be made available.
[Penal Code Section 290.46(c)(1).]
6)Provides that a person may use the information disclosed
pursuant to the DOJ's sex offender Internet Web site only to
protect a person at risk. [Penal Code Section 290.46(l)(1).]
7)States that, except as otherwise provided, it is unlawful to
use any of the information that is disclosed pursuant to this
section for purposes related to health insurance, insurance,
loans, credit, employment, education, scholarships or
fellowships, housing or accommodations, and benefits,
privileges or services provided by any business establishment.
[Penal Code Section 290.46(l)(2).]
8)Provides that an inmate released on parole shall be returned
to the county that was the last legal residence of the inmate
prior to his or her incarceration. Specifies that "last legal
residence" shall not be construed to mean the county wherein
the inmate committed an offense while confined in a state
prison or local jail facility, or while confined for treatment
in a state hospital. [Penal Code Section 3003(a).]
9)States that notwithstanding subdivision (a), above, an inmate
may be returned to another county if that would be in the best
interests of the public. Requires the Board of Prison
Hearings (BPH) or the California Department of Corrections and
Rehabilitation (CDCR) to place its reasons in writing in the
parolee's permanent record and include these reasons in a
notice to the sheriff or chief of police, as specified, if it
is determined to return to the inmate to a different county.
[Penal Code Section 3003(b).]
10)Provides that in making its decision, the paroling authority
shall consider, among others, the following factors, giving
greatest weight to the protection of the victim and the safety
of the community [Penal Code Section 3003(b)(1) through (5)]:
a) The need to protect the life or safety of a victim, the
parolee, a witness or any other person;
b) Public concern that would reduce the chance that the
inmate's parole would be successfully completed;
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c) The existence of family in another county with whom the
inmate has maintained strong ties and whose support would
increase the chance that the inmate's parole would be
successfully completed; and,
d) The lack of necessary outpatient treatment programs for
parolees receiving specified treatment.
11)States that, in determining an out-of-county placement, CDCR
shall give priority to the safety of the community and any
witnesses and victims. [Penal Code Section 3003(c).]
12)Provides that, notwithstanding any other provision of law, an
inmate who is released on parole for violation of child sexual
abuse or continuous sexual abuse of a child, whom the CDCR has
determined poses a high risk to the public, shall not be
placed or reside, for the duration of his or her parole,
within one-half mile of any public or private school including
any or all of Kindergarten and Grades one through 12,
inclusive. [Penal Code Section 3003(g).]
13)States that notwithstanding any other law, an inmate who is
released on parole for an offense involving stalking shall not
be returned to a location within 35 miles of the victim's
actual address or place of employment if the victim or witness
has requested additional distance in the placement of the
inmate on parole, and if the BPH or CDCR finds there is a need
to protect the life, safety, or well-being of the victim.
[Penal Code Section 3003(g).]
14)Provides that the paroling authority shall give consideration
to the equitable distribution of parolees and the proportion
of out-of-county commitments from a county compared to the
number of commitments from that county when making parole
decisions. [Penal Code Section 3003(h).]
15)States that notwithstanding any other provision of law, when
a person is released on parole after having served a term of
imprisonment for an offense requiring registration as a sex
offender, that person may not, during the period of parole,
reside in any single-family dwelling with any other person
required to register as a sex offender, as specified, unless
those persons are legally related by blood, marriage, or
adoption. States that a "single-family dwelling" shall not
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include a residential facility which serves six or fewer
persons. [Penal Code Section 3003.5(a).]
16)Provides that, notwithstanding any other provision of law, it
is unlawful for any person for whom registration as a sex
offender 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).]
17)States that nothing shall prohibit municipal jurisdictions
from enacting local ordinances that further restrict the
residency of any person who is required to register as a sex
offender. [Penal Code Section 3003.5(c).]
18)Provides that the registering agency shall submit
registrations, including annual updates or changes of address,
directly into the DOJ's Violent Crime Information Network
(VCIN.) [Penal Code Section 290(a)(1)(F).]
19)Provides specified dates by which certain additional
information shall be made available to the public via the
Internet Web site concerning registered sex offenders [Penal
Code Section 290.46(a(1) and (2).]:
a) On or before July 1, 2010, DOJ shall include on its
Internet Web site regarding registered sex offenders the
following information:
i) The year of conviction of the latest offense
requiring registration.
ii) The year the registrant was released from
incarceration for that offense.
iii) Whether the registrant was subsequently incarcerated
for any other felony if that fact was reported to DOJ.
States that if DOJ has no information about a subsequent
incarceration for any felony, that fact shall be noted on
the Internet Web site.
iv) States that no year of conviction shall be made
available to the public unless DOJ is also able to make
available the corresponding year of release from
incarceration and the required notation about any
subsequent felony.
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b) Requires any state facility that releases from
incarceration any person required to register as a sex
offender shall, within 30 days of release, provide the year
of release for his or her most recent offense requiring
registration to the DOJ in a format approved by DOJ.
[Penal Code Section 290.46(a)(2)(B).]
20)States that on or before June 1, 2010, the DOJ shall renovate
the VCIN to do the following [Penal Code Section 290(n)(1)
through(n)(5)]:
a) Correct all software deficiencies affecting data
integrity and include designated fields for all mandated
sex offender data.
b) Consolidate and simplify program logic, thereby
increasing system performance and reducing system
maintenance costs.
c) Provide all necessary data storage, processing and
search capabilities.
d) Provide law enforcement agencies with full Internet
access to all sex offender data and photos.
e) Incorporate a flexible design structure to readily meet
future demands for enhanced system functionality, including
public Internet access to sex offender information, as
specified.
f) Requires specified state facilities that release a
person required to register as a sex offender to provide to
DOJ the year of release in a format approved by DOJ.
[Penal Code Section 290.46)(a)(2)(B).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill seeks
to make two changes to current law: first, it would strike a
provision of the law that states that landlords cannot deny an
individual housing based on their status as a sexual offender.
It would allow landlords to verify an applicants name against
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the Megan's Law List and therefore deny them housing based on
their status. Secondly, it would ask the Department of
Corrections that when distributing sex offenders, upon
completion of their sentence, they would have to be
distributed evenly by Assembly District so that not one
community or district is burdened with a large number of
sexual offenders. Last year I was approached by members of my
community about a family friendly hotel that was housing
paroled sex offenders. At that time I promised to work with
the community to help bring relief through legislation."
2)Background : According to background information provided by
the author, "Released sex offenders are currently released
into communities without concern for their impact. For
instance, in just Los Angeles County, Sylmar is home to 124
registered sex offenders who are on Megan's List, and Pacoima
is home to 76. Beverly Hills has six and Westwood has five.
There is an obvious burden on certain communities.
"Additionally, Megan's Law as applied to the rental housing
providers is vague and subject to various legal
interpretations. California law has given rental property
owners and managers a conflicting directive. Heavy fines,
including a civil penalty of up to $25,000, can be imposed
upon a landlord for unlawfully using the Megan's Law database
to discriminate against or harass a sex offender.
"[This bill] will clarify and update housing law as it relates
to sex offender registry in order to allow rental housing
providers to protect residents from high-risk sex offenders.
This bill would add the condition that inmates who are
released on parole for violation of any sexual offense for
which registration is required pursuant to specified
provisions be evenly distributed throughout our state by
Assembly Districts, [and] clarify that rental housing
providers can use the Megan's Law database to act decisively
in the interests and safety of other tenants. Rental housing
providers should be able to protect their residents by
refusing to house high risk sex offenders, by evicting high
risk sex offenders or by notifying other tenants.
"[T]his bill is a wonderful example of how the community can
band together and create laws that impact and improve the
neighborhood . . . . "
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3)Affirmative Restraint : In determining that sex offender
registration statutes are, in general, constitutional, the
United States Supreme Court identified a number of factors to
be considered in determining whether the sex offender
requirements were punitive in nature or merely a civil
regulatory scheme. [ Smith v. Doe , 538 U.S. 84 (2003).] The
factors are whether the regulatory scheme: (a) has
historically been regarded as punishment; (b) imposes an
affirmative disability or restraint; (c) promotes the
traditional aims of punishment; (d) has a rational connection
to a non-punitive purpose; or, (e) is excessive with respect
to this purpose.
In analyzing Alaska's sex offender registration requirements,
the United States Supreme Court found that "our system does
not treat dissemination of truthful information in furtherance
of a legitimate governmental objective as punishment. In
contrast to the colonial shaming punishments, the State does
not make the publicity and the resulting stigma an integral
part of the objective of the regulatory scheme. . . . The
purpose and principle effect of notification are to inform the
public for its own safety . . . . " (Id. at page 99.)
The Supreme Court noted that the statute under review did not
restrain activities sex offenders may pursue but left them
free to change jobs or residences, stating "the record in this
case contains no evidence that the [sex offender registration
laws] have led to substantial occupational or housing
disadvantages for former sex offenders that would not
otherwise have occurred through the use of routine background
checks . . . ." (Id. at page 100.)
The clear implication from this discussion is that to the extent
the sex offender registration and public notification laws
impose substantial housing disadvantages on former sex
offenders, the effect of such laws might more easily be
determined to be punitive rather than regulatory. To the
extent use of the Megan's Law database information imposes an
affirmative duty or restraint on registrants which is greater
than minor or indirect, the effect is more likely to be
determined punitive. If the law is determined to be punitive
in nature, constitutional validity under the ex post facto
provisions of the U.S. Constitution is called into question.
[Id. at page 99, citing Kennedy v. Mendoza-Martinez , 372 U.S.
144, 168 (1963).]
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The Smith Court concluded that "whether other constitutional
objections can be raised to a mandatory reporting requirement,
and how those questions might be resolved, are concerns beyond
the scope of this opinion. It suffices to say [these]
registration requirements make a valid regulatory program
effective and do not impose punitive restraints in violation
of the Ex Post Facto Clause." ( Smith , supra, at page 102.)
Inasmuch as the United States Supreme Court specifically
discussed affirmative restraints on housing in its
consideration of the constitutionality of the Alaska sex
offender notification laws and also left the door open to
"whether other constitutional objections can be raised to a
mandatory reporting requirement," it appears reasonable that
this bill's expression of the right of any person, including
rental housing providers, to deny housing, services, benefits
or otherwise discriminate against registered sex offenders
could be subject to constitutional challenge.
In summary, the greater the burden(s) that Megan's Law
registration laws place on persons required to register, the
more likely it is that Megan's Law will be found to be
punitive and struck down, or severely restricted, on
constitutional grounds.
4)Blurring of Distinction Between Registered Sex Offenders Who
Have Committed Crimes Subjecting Them to Internet Disclosure
of Their Actual, Physical Address and Those Whose Crimes
Subject Them to Internet Disclosure of Their Community of
Residence, or Zip Code, Only : California's statutory "Megan's
Law" intentionally established as a tiered scheme, in which
the most serious offenses subject the registered sex offender
to public disclosure of his or her actual, physical address,
whereas with other offenses subject the registrant only to
disclosure of his or her community of residence, or zip code.
The tiered statutory scheme reflected a legislative
recognition that all sex offenses should not subject the
offenders to the same level of public disclosure.
According to the Attorney General's Web Site, "Specific home
addresses are displayed on more than 33,500 offenders in the
California communities; as to these persons, the site displays
the last registered address reported by the offender. An
additional 30,500 offenders are included on the site with
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listing by ZIP Code, city, and county. Information on
approximately 22,000 other offenders is not included on this
site, but is known to law enforcement personnel." Thus, the
number of registrants whose home addresses are displayed is
roughly equivalent to the number who are subject only to
disclosure of their community of residence or ZIP code.
Although this bill does not specifically permit lessors to
evict, or refuse to rent, to registered sex offenders whose
names and community of residence, rather than specific home
addresses, appear on the publicly-available DOJ Internet Web
site, it appears to attempt to open the door to that
possibility. This bill does so by adding a statement that the
limitations on permissive evictions and refusals to house
those sex offenders subject to disclosure of their specific
residence addresses shall not be construed to diminish in any
way the power or right the lessor may have to use the
information to protect a person at risk from sex offenders
"including those persons whose residence address is not made
available to the
public . . . . " Since existing law already allows use of the
Megan's Law information to protect a person at risk, what is
the purpose of this added provision? It must be assumed that
it is not a gratuitous repetition of existing law.
The specific identification of lessors of residential real
property as persons who may use the information on the Megan's
Law Web site regarding those offenders whose home addresses
are not available to the public appears to be an attempt to
"open the door" to a future argument that the Legislature has
accorded lessors of rental property a unique privilege
unavailable to others. By singling out lessors of residential
rental property as a group that may use information about sex
offender registrants whose home addresses are specifically
protected from public disclosure, does this bill's provision
confer upon lessors a special status and effectively impose a
less stringent restraint upon that one group of persons than
that contemplated by the Legislature in establishing a tiered
system for public notification? It should be noted that
lessors of rental property have a unique advantage over
members of the general public in that they already know the
specific home addresses of any of their tenants who may be
listed on Megan's Law by ZIP code only. Does this particular
provision of the bill contemplate that lessors may evict
tenants listed on the DOJ Web site by ZIP code only by
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declaring that such action is necessary to protect person(s)
at risk; i.e., their other tenants?
5)The Ability of Lessors of Residential Real Property to
Accurately Assess Whether a Tenant or Prospective Tenant Poses
a Risk to Other Residents : The author's statement reflects an
intended purpose of providing landlords with the ability to
protect other residents from "high-risk" sex offenders.
Although some states have conducted risk assessments for years
and reflect the risk level on their Megan's Law Web sites,
California is not such a state. California's Megan's Law Web
site contains no reference to risk level; in fact, a
"State-Authorized Risk Assessment Tool for Sex Offenders"
(SARATSO) was enacted into law in 2006 and does not become
effective until July 1, 2008. [Penal Code Section 290.04.]
Since the State itself presently cannot accurately identify
which sex offenders who are incarcerated or on parole are in
at "high-risk" of re-offending, how is an owner of rental
property expected to make such determinations?
The SARATSO legislation contains very specific requirements for
the training program for persons administering the SARATSO,
and states that the training shall be provided by experts in
the field of risk assessment and the use of actuarial
instruments in predicting sex offender risk. [Penal Code
Section 290.05(c).] It seems apparent that most rental
property owners are not experts in the field of risk
assessment or the use of actuarial instruments in predicting
sex offender risk. Although this bill's background
information mentions in passing "high-risk" sex offenders, its
intent is clearly to permit the evictions of all registered
sex offenders without regard to the risk they may or may not
pose.
Thus, this bill's provisions sweep quite broadly and threaten
the housing stability of every person whose name is listed on
the Megan's Law Web site without taking into account whether
or not that person poses any risk at all to other residents of
rental property. With respect to evictions, this bill allows
a property owner to evict a registered sex offender who may
have been a long-term tenant of that property merely because
of his or her status as a Megan's Law registrant. This bill
allows such evictions even if the registered sex offender has
always paid his or her rent in a timely manner and has never
caused any problems to his or her neighbors or to the
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landlord. This bill allows the eviction of a person listed on
the Megan's Law database for a crime that may have been
committed as long as 50 years ago when the tenant was a
teen-ager who engaged in a factually consensual act that
requires registration.
The eviction of a registered sex offender is likely to extend to
all members of his or her household, particularly if the
registered sex offender is the primary source of family
income. Due to the lack of any limitations on its scope, this
bill will cause innocent spouses and innocent children, who
may not even know of their parent's past history, to suddenly
become homeless. Innocent spouses are likely to lose their
jobs, by virtue of having to relocate, and innocent children
will be uprooted from their schools, their churches, and their
circle of friends. In enacting the restrictions in Penal Code
Section 290.46(l), the Legislature clearly intended to avoid
severely negative consequences to sex offender registrants and
their families by virtue of the mere fact that the Megan's Law
database was being placed on the Internet.
It could be argued that there is no rational basis for a law
that allows the eviction and denial of housing to a person who
meets all of the landlord's criteria for tenancy other than
having committed, at some time in the past, a crime for which
registration as a sex offender is required. There are many
ex-offenders listed on the Megan's Law database whose crimes
were non-violent, did not involve child sexual abuse, and may
have been committed when the person was a teenager and having
sexual relations with another younger teenager during the
course of a consensual dating relationship. Since California
has been registering offenders since 1947, many of those
listed on the Megan's Law database may have been offense-free
for close to 50 years. What legitimate business reason would
compel a landlord to evict such a person?
6)Does This Bill Provide Lessors with a Basis for Pretextual
Housing Discrimination ? Federal and California State case law
recognize the concept of defendants in housing discrimination
cases offering a pretext as a defense to claims that they
unlawfully discriminated against protected classes. A pretext
is generally the offer of evidence, which - if true - would
constitute a valid reason for refusing to rent to, e.g., an
African American applicant. For example, in a case in which
the evidence proved that the landlord had told several people
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that he wanted an "all-white" apartment complex, the landlord
attempted to use the pretext of bad credit in support of his
decision not to rent to African Americans. [ Fair Housing of
Marin v. Combs , 285 F.3d 899 (9th Circuit 2002); cert. den,
2002 U.S. LEXIS 8340 (2002.]
In housing discrimination cases, the plaintiff must establish a
prima facie case; and if he or she successfully does so, the
burden shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the challenged action. If the
defendant articulates such a reason, the burden of proof
shifts back to the plaintiff to demonstrate that the purported
legitimate, non-discriminatory reason was merely a pretext for
a discriminatory motive. This test was first set forth in an
employment discrimination case, McDonnell Douglas Corp. v.
Green , 411 U.S. 792 (1973), and has subsequently been extended
to housing discrimination cases as well. [See, e.g., Walker
and Fair Housing Foundation of Long Beach v. City of Lakewood ,
272 F. 3d 1114 (9th Circuit 2001); cert. denied 2002 U.S.
LEXIS 2855.]
Like the landlord in Fair Housing of Marin v. Combs , supra,
lessors of residential real property may engage in unlawful
discriminatory housing practices frequently and, when
challenged, deny the discriminatory intent and offer evidence
of a legitimate, non-discriminatory reason for his or her
actions. It can be difficult for plaintiffs in such cases to
prove that the proffered reason was in fact a mere pretext for
discrimination.
For example, if a landlord wishes to evict an African-American
tenant or deny that person admission to the apartment complex,
he or she must articulate a legitimate, non-discriminatory
reason for his or her action. Having done so, the burden of
proof shifts to the plaintiff to prove that such reason was
pretext. If the African American in this hypothetical
situation also happens to be a Megan's Law registrant, it
would be virtually impossible to prove pretext should this
bill be enacted. The landlord would merely need to reference
the State law allowing denial of housing to persons whose
names and addresses appear on the Megan's Law database and
that would seemingly be sufficient to overcome any claim of
pretext. Thus, this bill may result in housing being denied
on a disproportionate basis to racial and ethnic minority
tenants and applicants who are also Megan's Law registrants,
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thereby placing yet another hurdle to stable housing on groups
that historically have been subject to discrimination. This
bill provides landlords who may have hesitated to engage in a
discriminatory eviction or denial of admission a
statutorily-sanctioned rebuttal of a plaintiff's pretext
argument.
Another scenario that presents frequently is the use of pretext
to circumvent local rent control ordinances. Landlords in
areas in which high-market rents are commanded and paid are
generally pleased to see a rent-controlled unit vacated, and
this bill provides such landlords with a legislatively
sanctioned method of evicting tenants paying controlled rents
if such tenants are Megan's Law registrants. The permissive
evictions and denials of housing sanctioned by this bill could
be a virtual invitation to landlords to discriminate against
persons in protected classes and to otherwise circumvent local
laws designed to protect tenants.
7)Will Enactment of this Bill Be the First of Many Adverse
Consequences Unrelated to Community Notification ? The law
placing the Megan's Law database on the Internet prohibited
the use of the information contained therein for any purposes
related to health insurance, insurance, loans, credit,
employment, scholarships, housing, and benefits or services
provided by any business. [Penal Code Section 290.46(l)(2).]
This bill effectively removes housing from that list of
prohibited actions. Does this bill establish a dangerous
precedent that will, in the future, lead to further amendments
such that Penal Code section is rendered completely
ineffective?
It is well-recognized that many people in the United States face
a health insurance crisis in that they have no coverage or
coverage that is too expensive or inadequate. If this bill
establishes a precedent of diminution of the prohibited uses
of Megan's Law, how likely is it that the health insurance
companies will be the next group desiring to use the
information on Megan's Law to cancel individual health
insurance policies or deny new applications for health
insurance? It seems not unlikely that a reasonable sounding
argument could be made for the proposition that homeless
people and families have greater health problems than do the
general public, thereby creating a business necessity to
compare the information on the Megan's Law database to the
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insurance companies' databases of customers and applicants.
Because this bill is fundamentally based on the economic
interests of the lessors, it would serve as a useful precedent
to commercial interests and groups seeking to avoid the other
prohibitions contained in the law.
Employment will almost assuredly follow housing as the target
for an attack on the prohibitions of Penal Code Section
290.46(l)(2). If the Legislature condones the principle that
merely by virtue of being listed on the Megan's Law database a
person is so inherently dangerous as to be evicted without any
other justification, how can a distinction be made as to
employment? If a Megan's Law registrant is too dangerous
merely because of his or her status to live in an apartment,
how can he or she not be deemed too dangerous to be employed
in an office, restaurant, or automobile repair company?
Is this bill the first of many attempts to remove the
prohibitions on using the Megan's Law information for purposes
unrelated to community notification, thereby creating a huge
class of homeless, unemployed and unemployable, and uninsured
persons? Such a class would unfortunately include innocent
family members, including minor children of any listed sex
offender registrant. Spouses, partners, and minor children of
the registered sex offender will be impacted as heavily as the
sex offender by the removal of the few protections in the
existing law or, in the alternative, spouses and partners may
be compelled to break up the family unit simply to survive.
At some point, actions like those discussed above will almost
certainly cause an appellate court to conclude that the
Megan's Law registration requirements have transcended "a
civil regulatory scheme" and become punitive in nature. A
judicial determination that the requirements of Megan's Law
are punitive, not regulatory, will signal the end of the
system of community notification that now exists under the
various schemes known generally as "Megan's Law." [See Smith
v. Doe , 538 U.S. 84 (2003), citing Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963).]
The United States Supreme Court, in upholding Alaska's Megan's
Law as a civil, regulatory scheme against a constitutional
challenge, specifically stated "the record in this case
contains no evidence that [the sex offender registration laws]
have led to substantial occupational or housing disadvantages
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for former sex offenders that would not otherwise have
occurred through routine background checks . . . . " ( Smith
v. Doe , supra, at p. 100.) However, this bill will cause
substantial housing disadvantages for former sex offenders;
and since the bill seeks eviction as well as denial of
admission to housing as a lessor right, it must be assumed
that the substantial housing disadvantages would not otherwise
have occurred through routine background checks as the
registered sex offenders whom this bill seeks to evict were at
one time admitted to the apartment complex through its normal
tenant admission policies. The Smith v. Doe Court's statement
in this regard was made in its discussion of whether the
Megan's Law registration schemes were punitive in nature. A
determination of punitive restraints would invoke an entirely
different consideration of the ex post facto issues as the
Court stated, "If the law is determined to be punitive in
nature, constitutional validity under the ex post facto
provisions is called into question." (Id. at p. 99, citing
Kennedy v. Mendoza-Martinez, supra, at p. 168.)
8)California Registered Sex Offenders : According to a
California Coalition on Sexual Offending (CCOSO) report, Using
the Internet to Provide Passive Community Notification About
Registered Sex Offenders , "Because California has been
requiring certain sex offenders to register since the mid
1940's, far longer than any other state, California's
cumulative total of registered sex offenders is much larger,
both in absolute numbers and proportionately, than the total
for any other state." According to the report, approximately
one out of every 180 adult males in California could be posted
on the Internet as a sex offender.
As of May 2003 (citing DOJ statistics), the report states there
were 100,501 registered sex offenders in California. Of that
number, 1,836 were classified as "high risk" and 82,190 as
"serious." It is those two groups who are subject to the
current Internet notification system. A third group of
registered sex offenders were convicted of crimes not
currently subject to public notification.
According to CCOSO, of the high-risk and serious groups, 55,902
were living in the community; 14,556 had returned to jail or
prison; 10,800 had left California; and 2,768 had been
deported. Altogether, 70,458 California residents (almost all
of them adult males) are subject to notification under the
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present system. According to the CCOSO report, approximately
one of every 123 adult males in California is a registered sex
offender, although some have left California or failed to
re-register as required.
The CCOSO report notes that in addition to the registered sex
offenders, there is a potentially large number of additional
individuals who are also impacted by Internet notification and
related actions, including parents, children, siblings, other
relatives, employers, landlords, associates, etc. By
permitting the denial of housing to registered sex offenders,
this bill affects a much larger group of innocent persons,
such as spouses, domestic partners, and minor children. By
evicting a registered sex offender from his or her rental
housing, the apartment owner effectively may be causing an
entire family to become homeless.
According to the CCOSO report, "Widespread notification is
making it increasingly difficult for registrants to find
housing. This tends to drive them into poorer neighborhoods,
where more dysfunctional families tend to live. Children from
these families are more easily victimized than children in
more affluent, better organized neighborhoods. The Third
National Incidence Study of Child Abuse and Neglect showed
that children living below the poverty line are 18 times as
likely to be sexually abused as children living at or above
the median income. [ National Incidence Study on Child Abuse
and Neglect (1996), Department of Health and Human Services,
Administration for Children and Families, National Center on
Child Abuse and Neglect.]
10)Is the Phrase Requiring Sex Offenders to be "Evenly Placed
throughout the State Geographically based on Assembly
Districts" Impermissibly Vague ? Although the bill does not
define the method by which even distribution geographically by
Assembly districts should be calculated by paroling
authorities, it appears that an even distribution will be
difficult at best, particularly given the other requirements
that control the placement of registered sex offenders. How
can all paroled registered sex offenders be evenly distributed
throughout the state geographically based on Assembly
districts while still complying with the 2,000-feet
restrictions on residence (enacted by the voters as
Proposition 83 in 2006); the requirement that the CDCR give
priority to the safety of the community and any witnesses and
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victims; the "serious consideration" that must be given to
releasing an inmate who participated in a joint venture
program to the county where the joint venture program employer
is located, the verified existence of a work offer or an
educational or vocational training program; the existence of
family in another county with whom the inmate has maintained
strong ties and whose support would increase the chance that
the inmate would successfully complete parole, and the lack of
necessary outpatient treatment programs for parolees receiving
specified treatment? [Penal Code Section 3003(b).]
In the public hearings held prior to the election on Proposition
83, there was testimony that the 2,000-feet restriction could
well make it impossible for registered sex offenders to reside
in certain urban areas, such as San Francisco. Yet, this bill
requires that all sex offenders released on parole must be
evenly placed throughout California geographically based upon
Assembly districts. How can the provisions of this bill and
the provisions of Proposition 83 logistically co-exist? It
appears clear from the map of San Francisco showing the
proposed 2,000-foot buffer zones prepared by the Senate Office
of Research that even geographic distribution of paroled sex
offenders to San Francisco's two Assembly districts could not
be accomplished without violating the Proposition's 2,000-feet
prohibition on residency near schools and parks. When CDCR
must also factor in to its consideration all of the elements
mentioned above, is it even possible to evenly distribute
paroled sex offenders geographically on the basis of Assembly
districts?
Is this bill impermissibly vague in its discussion of even
placement geographically by Assembly districts? What exactly
does that phrase require of the paroling authorities? Must
they count the number of sex offenders paroled in a given year
and divide that number by 80, the current number of Assembly
districts? Such calculation would provide a number for each
Assembly district, but would fail to take into consideration
the protections in the law for victims and witnesses [Penal
Code Section 3003(g)] and other mandated placement criteria.
What is CDCR to do when the number of sex offenders to be
paroled to a given Assembly district violates one or several
of the other requirements regarding placement? For example,
what is CDCR to do if none of the permutations constituting
equal geographic placement protects all of the victims and
witnesses or provides for the necessary outpatient treatment
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programs needed by the parolees? How can CDCR comply with
this bill's geographic mandate and at the same time assure
that Proposition 83's 2,000-feet restrictions are met in an
Assembly district consisting of San Francisco, where virtually
the entire city is off limits to sex offenders due to the
2,000-feet restriction? It should be noted that San Francisco
merely constitutes one example of a city mostly comprised of
prohibited zones; Ventura is another such city and there are
many other similar areas.
Is it reasonable that an Assembly district which is remotely
located, with few or no supportive services needed for
rehabilitation, be the site for placement of an equal number
of paroled sex offenders as an Assembly district which offers
many service and treatment providers, which was the offender's
last legal residence, and may be the location of the parolee's
family, friends and other support systems? The author makes
the point that there are only six registered sex offenders in
Beverly Hills, but apparently fails to consider that this
could as easily be the result of economic realities as well as
a concerted attempt by CDCR to keep sex offenders away from
high-income areas such as Beverly Hills.
11)Arguments in Support : The California Apartment Association
(CAA) states, "CAA members have been directly impacted by
widespread publication of the sex offender registry.
Frequently, a tenant living in an apartment community goes
online and learns that a sex offender is living in his or her
apartment complex. The tenant demands that management
terminate the tenancy of the registered sex offender. Under
existing law, however, management cannot. The net effect of
this situation leaves tenants potentially vulnerable, with sex
offenders sharing common walls and common areas such as pool
and laundry facilities with potential victims.
"While CAA appreciates the policy arguments that led to the
online database, CAA members believe the safety of tenants is
paramount. AB 148 is a significant step toward establishing
the state's policy of protecting tenants in rental housing.
"CAA supports efforts to develop comprehensive solutions for
housing sex offenders. At the same time, CAA is concerned
that the current volatile situation is ripe for evolution into
another 'Three Strikes' fire storm. We urge the Legislature
to address and resolve problems like those described above to
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prevent this from occurring."
1)Arguments in Opposition :
a) Protection and Advocacy states, "AB 148 expressly
permits discrimination in housing against a particular
group of individuals, many of whom have psychiatric
disabilities. Individuals with psychiatric disabilities,
who by law have served their debt to society, should be
allowed to achieve the most independent and productive
lives possible. This should include access to stable,
quality living arrangements that allow them access to
employment opportunities, medical care, mental health
services, and any other services necessary to get their
lives back on track.
"[P]roposition 83 of 2006 currently requires that the CDCR
place a parolee in an appropriate county upon the parolee's
release from prison, as determined by specific conditions.
In determining an out-of-county commitment, the Department
must give priority to the safety of the community and any
witnesses and victims. AB 148 would amend this section of
the Penal Code to add the condition that registered sex
offender parolees be 'evenly placed throughout the state
geographically based on Assembly Districts.'
"This arbitrary provision threatens to uproot individuals
from their communities and support systems, without any
indication of necessity. This bill is directly contrary to
Welfare and Institutions Code Section 5600.2(a)(4), which
mandates that people with psychiatric disabilities 'receive
treatment and rehabilitation in the most appropriate and
least restrictive environment, preferably in their own
communities' and this bill may also be a violation of the
Equal Protection clauses of the state and federal
constitutions."
b) The American Civil Liberties Union states,
"Discrimination in the rental of property based on the fact
that the individual is an ex-offender is a denial of basic
civil rights. Housing may be denied on the basis of an
individual's behavior, but not because of his or her status
as an ex-offender. There are over 100,000 persons who are
required to register under California's sex registration
statute. It is lifetime registration. There are more than
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30,000 persons whose home addresses are listed on DOJ's sex
offender Web site. This bill will likely result in large
numbers of ex-offenders and their families becoming
homeless, creating the increased likelihood that the state
will not know the whereabouts of these individuals - the
primary intent and purpose of the registration laws. This
proposal is particularly bad and counter-productive public
policy."
c) The Western Center on Law and Poverty states, "We must
respectfully oppose AB 148 because of what we believe will
be its unintended consequences on poor children. We
presume that the purpose of the bill is to facilitate a
landlord's ability to ask prospective tenants if they are
required to register and then refuse to rent, or to evict,
tenants required to register on Megan's Law website. We
believe that an unintended consequence of the bill will be
a further concentration of offenders in lower-rent
apartments and single-room occupancy hotels, thus putting
poor, latch-key children at even greater risk. Our local
legal services programs already report this type of
concentration.
"[I]t has been reported that higher income tenants already
demand that their landlords refuse to rent to, or evict,
offenders. Unfortunately, this is a zero-sum game: the
offender has to live somewhere. Where are they likely to
go? To lower rent housing, where the landlord's standards
are lower and where the current tenants lack the equipment
and time to check whether the new tenant is registered.
The children of poverty are forced to live in these
buildings. They have already suffered great disadvantages,
and would thus be burdened with one more hazard, perhaps an
indelible one. We believe this is unfair and surely not
the result you would ever envision bringing about with the
legislation you authored."
d) The California Attorneys for Criminal Justice state,
"Stable housing options have proven critical to successful
rehabilitation of criminal offenders. Therefore, AB 148
will create a life-long barrier to rehabilitation for
non-affluent offenders. Without affordable housing
options, these individuals are likely to become a transient
class of sex offenders, who are at greater risk of
committing additional crimes.
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"AB 148 will also give rental property owners statutory
authority and full immunity to discriminate against
registered sex offenders even if a person's offense was
committed many years or decades earlier. Rental property
owners will also be able to use registration status as a
pretext for evictions that would otherwise be prohibited by
California's Fair Employment and Housing Act.
"CACJ does not believe a piecemeal approach to housing
options for registered sex offenders will result in
effective public policy. AB 148 will only serve as a
barrier to rehabilitation. CACJ also disapproves of the
provision dispersing registered sex offenders by
legislative districts. Criminal justice planning should be
tied to services, opportunities for rehabilitation, and
public safety."
e) The Friends Committee on Legislation of California
states, "We note the considerable difficulty that CDCR has
in placing people convicted of sex offenses in residential
housing. It seems probable that if we deny housing to
people convicted of sex offenses that we increase the
likelihood of homelessness among this population and make
them harder to track, which defeats the purpose of Megan's
Law.
"Moreover, no public purpose is served by denying a person
who has served his or her sentence and who is attempting to
comply with the law by registering the opportunity to
obtain acceptable housing. Rather, we should support their
successful reintegration into the community by offering
services in addition to necessary supervision.
"We also have concerns about this legislation's requirement
that sex offenders be paroled evenly in Assembly Districts.
We have serious doubts whether rural areas of the state
are equipped to offer the services that parolees need in
order to successfully reintegrate into the community.
"In sum, we think it is irresponsible for the Legislature to
enact laws which increase penalties for sex offenders,
create additional barriers for their successful reentry,
and simultaneously insist that other locales be responsible
for their supervision and services upon their release from
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prison."
f) The California Rural Legal Assistance Foundation states,
"We would liken this situation to that of environmental
justice. Neighborhood groups in low-income areas are
asking why pollution-causing facilities are sited in their
neighborhoods. We believe AB 148 would have the unintended
consequence of siting large concentrations of sex offenders
in poor neighborhoods. We do note that the bill requires
placement of parolees even throughout the state based on
Assembly Districts. While that might indirectly reduce
some concentration, it would not be as effective as
requiring even placement based on area income. Still, even
that would not address the post-parole situation."
The California Rural Legal Assistance Foundation also notes
the "unintended consequences on poor children" and states
that this bill would put poor, latch-key children at even
greater risk, due to the bill's resultant concentration of
registered sex offenders in low income neighborhoods.
g) Taxpayers for Improving Public Safety states, "For a
parolee, housing and employment remain the two greatest
challenges - more so for a sex offender - to reintegrating
back into society. This legislation lumps all of the
offenders into one category and would make it that much
more difficult for those sex offenders who will not
re-offend to get back on their feet. AB 148 stands to tip
the scales against those offenders who would [otherwise]
secure stable housing and get back on their feet. [I]f
passed, AB 148 would instill a false sense of security
among tenants that there is no reason for their children to
beware of strangers in their apartment complex when, in
fact, an apartment could be leased under [another]
resident's name and occupied by a sex offender who is
intent on re-offending.
"What about the innocent spouses and children of the
convicted sex offender who would be faced with either being
homeless or living without that member of their family?
Further, housing occupation restrictions are a slippery
slope. The reality is there will always be a segment of
society with a criminal record. Who will the next targeted
group be - murderers, then robbers, followed by burglars
and finally tax evaders?
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"Finally, there is no provision within AB 148 to accommodate
redistricting. By requiring a release of sex offenders
being paroled to be consistent with Assembly District
boundaries, what will happen when there is redistricting?
Will there be a lottery to determine which sex offenders
can stay and which will have to move?"
2)Related Legislation :
a) AB 1197 (Aghazarian) is a spot bill which states "it is
the intent of the Legislature to enact legislation that
would address the needs of property owners and tenants for
safe rental housing in a manner that is consistent with the
goals and purposes of the Megan's Law sex offender
registration requirement and state laws on civil rights."
AB 1197 is pending referral by the Assembly Rules
Committee.
b) AB 1172 (Runner) would prohibit a sexually violent
predator released on parole or conditional release from
being returned to a location within 35 miles of the actual
residence of the victim or a witness to a violent felony or
a felony in which the defendant inflicted great bodily
injury, as defined. AB 1172 is pending referral by the
Assembly Rules Committee.
c) AB 1235 (Fuller) would require DOJ to include on its
publicly available Internet Megan's Law Web site
information relating to whether the registrant is on parole
for a specified sex offense or is being monitored by Global
Positioning System device or electronic means for a
specified sex offense. AB 1235 is pending referral by the
Assembly Rules Committee.
d) AB 1509 (Spitzer) would authorize CDCR, in cases in
which one inmate is paroled to a county other than the
county of his or her last legal residence due to a request
from the victim or witnesses, to place another parolee in
the county to which the first parolee would have been
returned but for the request, provided that CDCR provides
any notice and opportunity for community input required by
law for release of parolees. AB 1509 is pending referral
by the Assembly Rules Committee.
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e) SB 194 (Battin) would add felony convictions for
specified child pornography offenses and for annoying or
molesting a minor to the list of offenses published on the
DOJ's Megan's Law Web site with the offender's specific
home address. SB 194 is pending hearing by the Senate
Public Safety Committee.
3)Prior Legislation :
a) AB 438 (Parra), of the 2005-06 Legislative Session,
would have allowed the evictions of, or refusal to rent to,
registered sex offenders. AB 438 failed passage in the
Assembly Public Safety Committee.
b) AB 2712 (Leno), of the Legislative Session of 2005-06,
would have provided that no duty shall arise for a lessor
solely for renting or leasing residential real property to
a person who is registered or who is required to register
under Penal Code Section 290 or who is a person who has
been convicted as a sex offender in another state or
foreign jurisdiction. AB 2712 was vetoed. The Governor
stated in his veto message, "I sympathize with property
owners who are faced with the problems presented by sex
offenders. However, this bill would prioritize property
owner liability protection before tenant safety. I cannot
support legislation that may compromise the safety of
families and children. Protection of our children from
sexual predators should be the top priority and I encourage
the Legislature to revisit this dilemma in more depth next
session to develop a solution that protects both families
and property owners."
c) AB 1849 (Leslie), Chapter 886, Statutes of 2006,
requires that on or before July 1, 2010, the year of the
conviction of the offender's last sexual offense, the year
of release from incarceration for that offense, and whether
he or she was subsequently incarcerated for any other
felony, be posted on the Internet Web site, as specified.
AB 1849 took effect immediately.
d) AB 488 (Parra), Chapter 745, Statutes of 2004, required
that DOJ place the Megan's Law database on its Internet Web
site.
REGISTERED SUPPORT / OPPOSITION :
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Support
Sylmar Neighborhood Council (Sponsor)
California Apartment Association
Peace Officers Research Association of California
57 private individuals
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Rural Legal Assistance Foundation
Protection & Advocacy, Inc.
Taxpayers for Improving Public Safety
Western Center on Law and Poverty
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744