California high court invalidates sex offender residency restrictions

326746prIn a remarkable, unanimous decision, the California Supreme Court held on March 2, 2015 that residence restrictions for sex offenders on parole were unconstitutional as applied.  Although the case technically addressed the situation of four named plaintiffs in San Diego County, the decision calls into doubt the statute’s validity in the entire state.

In re Taylor tested the Sexual Predator Punishment and Control Act: Jessica’s Law, which, like many overwrought and unwise laws was enacted by initiative.  Passed in 2006, it added Section 3003.5(b) to the Penal Code, making it “unlawful for any person for whom registration is required . . . to reside within 2000 feet of any public or private school, or park where children regularly gather.”  In 2010, in an earlier stage of the case, the Court rejected claims brought by that the law was invalid on its face because it was unconstitutionally retroactive under California law, or because it violated state or federal prohibitions on ex post facto laws.  However, the plaintiffs pursued the argument that the law was unconstitutional as applied; the trial court, California Court of Appeals, and Supreme Court agreed.

The evidence showed that the law was counter-productive.  More than 97% of the housing in San Diego County was off-limits, including the entirety of several cities.  Of the housing stock that was theoretically available, only a fraction was affordable.  As a result, many registered sex offenders on parole were homeless and transient, advised by their parole officers to sleep in riverbeds or alleys.  The Court agreed with lower court findings—and the findings of a California Department of Corrections and Rehabilitation Task Force–that this result impaired rather than improved public safety.  It is, of course, harder to monitor people who have no fixed address.  In addition, public policy as a whole, including state law, supported reintegration and employment of convicted persons, which was frustrated by their inability to find housing.  The Court noted that dispersion of parolees meant that they would be “cut off from assess to public transportation, medical care, and other social services to which they are entitled, as well as reasonable opportunities for employment.”

The parties debated the standard of review for blanket restrictions on parolees, but the Court found it did not need to resolve it.  Instead, the Court found that the law was irrational as applied even under a rational basis standard.

[W]e 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.

However, the Court noted that there was statutory authority for parole authorities to impose residency restrictions on a case-by-case basis “so long as they are based on, and supported by, the particularized circumstances of each individual parolee.”

The plaintiffs were aided by the fact that the litigation advanced focusing on the situation of four named plaintiffs, each of whom was convicted only of a single offense, some decades before, and some either not involving children or based on conduct occurring when the sex offender him- or herself was a child.  Thus, the need for harsh restrictions on these particular people was by no means obvious.

Assuming that San Diego County is not distinctively populated with schools and parks, and that the housing situation is not dramatically more tenant-friendly in Los Angeles, San Francisco, and Sacramento Counties, the decision should lead, more or less directly, to invalidation of Jessica’s Law across the state.

It is less clear how the decision will affect registrants who are not on parole.  The decision seems to mean that the automatic nature of the law is invalid.  While registrants who are not on parole have an even greater liberty interest in being free from restrictions, they have no parole officer to impose residence or other conditions on a case-by-case basis.  Perhaps as to post-parole registrants, the law is wholly inoperative, although other provisions of state law imposing restrictions on presence in certain schools, places where children congregate, and elder care facilities were not tested in the case.

Beyond sex offender registration, the tone of the opinion suggests that the Court is going to take a serious look at residency restrictions to determine whether in operation they cause more harm than good.


Gabriel "Jack" Chin

Professor of Law at the UC Davis School of Law, Jack is one of the leading academic authorities on collateral consequences. He served as reporter for the Uniform Collateral Consequences of Conviction Act, and the ABA Standards on Collateral Sanctions and Discretionary Disqualification.

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