What to do with sex offenders?
You don't want them living near schools or parks. I get that. That's why voters passed "Jessica's Law" (Proposition 83) in 2006. It's not like sex offenders are a sympathetic group. Plus they clearly can't afford to run a campaign or buy advertisements. They're going to lose an election. And, on the merits, you can understand why voters might legitimately be concerned.
But particularly with an initiative, things can get out of hand. (Though, truth be told, as applied to disfavored groups like sex offenders, things can equally get out of hand in the Legislature.) Relevant here is Proposition 83's requirement that sex offenders live more than 2,000 feet from all parks and schools. That's a fair distance. So much so that it means that, in urban areas like San Diego, there's almost nowhere anyone can live. Or at least almost no place that's actually feasible. Sure, there are homes in Rancho Santa Fe and La Jolla that are 100 acres and cost several million dollars and that are 2,000 feet away from schools and parks. But you're not likely to be able to afford to buy those places with the $200 in gate money they give you upon your release from prison. For the most part, if you're a sex offender, you're stuck living in cheaper multiunit apartments -- in particular, those who will rent to people without conducting a criminal background check (which you'll fail). Nearly all of which are in downtown areas and are too close to schools or parks. That's the inherent nature of urban density.
So let's see how it works out practically. Then we can judge the wisdom of this particular initiative; or, more more practical purposes, whether the restrictions imposed by Proposition 83 are "reasonable" given the parolee's constitutional rights.
This case involves several representative plaintiffs. The first is Taylor. He's a sex offender but his conduct was with an adult. He's nonetheless subject to Proposition 83; not allowed to live near kids. He wants to live with his nephew, whose wife is a health care professional. But he can't because their house -- like most houses -- is within 2000 feet of a school or park. Taylor also has AIDS and lots of health problems (three strokes, a heart attack, etc.). Can't leave near most health facilities either; those are generally downtown and too near schools and parks as well.
So Taylor asks his parole officer where he can live. 'Cause he can't live where he'll be taken care of and can't find a place. His parole officer tells him -- pursuant to department policy -- that he can't say. It's up to Taylor to find a place. The only place the parole officer is permitted to mention is the alley behind the parole office. That's a permitted spot. So that's where Taylor leaves. Along with 20 or so other sex offenders, all of whom were also told by their parole officers about that alley. Wonderful life. So much better to live in an alley than in a residential drug facility. Which Taylor desperately needs, but can't attend because they're also too near schools and/or parks. Fear not. Taylor's surely better off in the alley with dozens of other sex offenders than in drug treatment. Definitely will not roffend. Definitely.
Or take Briley. She molested her daughter. Upon release, she wants to live with her sister. No dice. Within 2000 feet of a school. What about a sober living facility? Nope. Too close also. What about one of the homeless shelters for women? Not there either. All of 'em with beds are too close. Where does Briley end up? Same alley behind the parole office.
What about Todd? He was 15 when he molested his 10-year old sister. Recovering heroin addict and addicted to meth. Wants to live with a friend at a hotel in downtown San Diego. Nope. Too close. Fear not, though. Todd's parole officer doesn't relegate him to the same "offender-compliant" alley as Taylor and Briley. No, Todd's tells him about a much better place. The riverbed of the San Diego River. I drive or bike alongside it -- and (presumably) Todd -- every day to get to work. Compliant with Proposition 83. Wonderful place, too. If you don't mind the dampness, overflowing trash and stench of human feces. But I'm sure it's a really good place for an ex-heroin user who has problems with meth. We definitely want this guy living in a riverbed rather than in a noncompliant hotel.
I won't mention the other plaintiffs except to say that they share similar fates. (Glynn, for example, can't live with his wife -- noncompliant house -- so he sleeps in a van.) I leave it for others to decide whether these residency restrictions really serve the public interest. They admittedly keep offenders from sleeping next to places where kids congregate. Whether they decrease -- or actually increase -- sex offenses and/or other crimes I leave for others to decide. But I can't imagine that a rule that says the only place you can live is an alley or riverbed is really good at reintegrating people into society.
Does this mean there are no places in San Diego that are available for sex offenders? No. There are still the big homes in La Jolla. Good luck with that. Does it mean there are no places where a person can live for less than $850/month with criminal record? Nope. There are some. Mind you, it took a couple of professors fifty or sixty hours driving all around San Diego to find such a place. Good luck accomplishing this same task if you're a just-released offender with $200.
The Court of Appeal holds that, at least as applied to San Diego, this is impermissible. It's not a reasonable blanket restriction in light of the parolee's interests in association, right to travel, etc. You've got to do a lot of work, I might add, to come to such a conclusion doctrinally. Because the state has a decent argument that as long as there are some places to live -- as there surely are -- the statute doesn't really burden people's rights. But the Court of Appeal takes a more practical approach. As a practical matter, it means people often can't live anywhere. That's not reasonable. Particularly when, as with several of the plaintiffs, you're barring people from living in places that make sense (e.g., with their wives or relatives) and that are close to essential health care. Forcing those people to shoulder incredible burdens to find a place that almost no one can actually find isn't permissible.
We'll see if the California Supreme Court takes this one up. I doubt it will. If only because Justice Benke writes a pretty persuasive opinion about the equities and practical consequences of Jessica's Law in a place like San Diego. One that doesn't put the statute in a particularly favorable light. To either the offenders or to society as a whole.
