Challenging the Constitutionality of "Jessica's Law"
The California State Supreme Court is currently considering whether or not the sex offender residency requirement of "Jessica's Law" violates the state constitution.
January 31, 2010 /24-7PressRelease/ -- Challenging the Constitutionality of "Jessica's Law"
The California State Supreme Court is currently considering whether or not the sex offender residency requirement of Proposition 83 of 2006 (the Sexual Predator Punishment and Control Act, or "Jessica's Law") is so expansive and intrusive that it violates the constitutionally guaranteed rights of registered sex offenders. The case before the court concerns four registered sex offenders who claim that enforcement of Jessica's Law will force them into homelessness.
Jessica's Law
Jessica's Law was enacted as a voter-approved measure four years ago. In part, the law bans registered sex offenders from living within 2,000 feet of a school or park where children regularly congregate. This particular requirement has been suspended and is not currently being enforced, as the Court has yet to resolve the challenge to Jessica's law.
The law requires that all registered sex offenders paroled after November 6, 2008 comply with the residency requirement or risk returning to prison. Thus, the Court's ultimate decision will determine whether or not thousands of offenders would have to relocate.
The Primary Challenge: Ex Post Facto Punishment
The heart of the challenge is not whether it is constitutional to require any sex offender to comply with the 2,000 foot residency requirement. The case before the Court instead focuses on which sex offenders should be required to comply.
The four sex offenders involved in the case had been charged with sex crimes and served their time for those crimes years before Jessica's Law was passed. Each had been convicted of an additional crime which was not sexually related and placed on parole for that crime after the November 2006 passage of Jessica's Law. As the four had originally been required to register with the state as per the Sex Offender Registration Act after, law enforcement assumed that the residency requirement of Jessica's Law applied to them, even though the violations that they were paroled for after the passage of Jessica's Law were not sexually related.
The lawyers for the four registered sex offenders argue that the residency requirement should not apply to those convicted of sex crimes and released before Jessica's law was passed. They argue that this group of offenders (approximately 4,000 EUR 5,000 individuals) is being punished ex post facto (retroactively) for their crimes. The Constitution prohibits ex post facto punishment, or any law that inflicts a greater punishment for crimes than the law that was in effect when the crime was committed. The residency requirement may be held unconstitutional as it creates a new disability for offenders and it is currently being applied to those whose convictions predated the passage of Jessica's Law.
The Secondary Challenge: Ex Post Facto Punishment in Effect
A second issue that the Court may rule on is whether the residency ban amounts to unconstitutional banishment of the 65,000 registered sex offenders currently living in California. Though the voters may have intended to create "predator-free zones," such zoning may be unconstitutional as the banishment of offenders from living in these zones for life may amount to ex post facto punishment in effect. This means that though sex offenders who committed sex crimes after Jessica's Law was passed are allowed to be reasonably punished, life banishment from communities may not be reasonable after offenders have served their time and been released from parole.
Critics of the residency requirement cite the fact that its implementation led to a tenfold increase in the number of offenders who had to register as transients, as offenders were unable to find a residence that did not violate the residency requirement. Many law enforcement agents also argue that the law compromises public safety by spurring an increase in homelessness among offenders and forcing them to live away from family and access to counseling and making them harder to track. Some even argue that the law has no beneficial effect, as sex offenders can work, recreate and lurk close to schools and parks, so the residential ban has little meaning in practice. Finally, the law is criticized for arbitrarily banishing all sex offenders from living near children even if the offense they committed had nothing to do with children.
For Further Reference
If you are a registered sex offender living in California and will be forced to relocate should the Court rule that the residency requirement of Jessica's Law is constitutional or if you have questions about the Sex Offender Registration Act or Jessica's Law, please contact an experienced criminal defense attorney.
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