Court challenges mount against sex offender law

12-22-2010 California:

Hundreds of paroled sex offenders are winning reprieves from a ban against their living near schools or parks as they flood local courts with constitutional challenges to the most controversial part of Jessica's Law.

Judges in Contra Costa and elsewhere have routinely issued stays permitting sex offender parolees to ignore the ban on their living within 2,000 feet of a school or park where children "regularly gather," pending rulings in their cases.

The slow pace of those challenges means the stays could last until their parole terms expire and the restrictions no longer affect them.

In the East Bay, at least a few dozen sex offenders have challenged the ban.

"I am seeing more, that's for sure," said Martinez attorney David Briggs.

Contra Costa judges have assigned him to represent about 16 parolee sex offenders seeking freedom to live where they want. In each case, he said, judges have barred enforcement of the law.

"There may be other (parole) restrictions on where they can't stay, and they're all on GPS, but this rule does not apply."

The flurry of court actions adds a new wrinkle in an ongoing debate over the residency ban's effect on public safety, and whether it's worth the added strain on parole resources. A statewide task force last month found that the ban has led to a dangerous 24-fold increase in homeless sex offenders and recommended repealing the voter-approved limits.

Parole agents should have leeway to target restrictions for the 6,300 paroled sex offenders living in communities, according to the task force of sheriffs, police chiefs, probation and parole officers, prosecutors and victim advocates. Since the law went into effect, the number of sex offender parolees who register as transient has risen from fewer than 100 to more than 2,100.

The bulk of legal challenges has arisen in Southern California, where about 850 paroled sex offenders have filed petitions in Los Angeles and San Diego counties, most of them after a state Supreme Court decision in February.

The court upheld the 2,000-foot rule against claims that it amounts to illegal, ex post facto punishment of parolees who committed their sex crimes before the law passed. But it left local judges to sort out, case by case and county by county, whether the restriction amounts to unconstitutional banishment, or whether it is unconstitutionally vague.

The sheer volume of challenges came to light last month, when Los Angeles County Superior Court Judge Peter Espinoza judge issued a countywide stay barring parole agents from enforcing the "predator-free zones." By then, 650 sex offenders had filed petitions in the county, the judge wrote. More than 100 petitions have since come.

A state appeals court panel nixed Espinoza's blanket order. But the judge has stayed enforcement of the ban in nearly all the individual cases, said Dylan Ford, a deputy public defender in Los Angeles County. Ford leads a team of lawyers and legal clerks who are helping process what he called a deluge of challenges by homeless sex offenders. He said about 75 percent of the 2,000 paroled sex offenders there are homeless or living in housing subsidized by the state corrections department.

"What a stay will do is allow a parolee who's living on the street, sleeping in their car, riding the buses at night, living under a bridge, to return home to their family and their social support network," Ford said.

On Friday, a San Diego County judge rejected a similar plea for a blanket stay order. Nearly 100 paroled sex offenders have filed challenges there, court documents show. The state Attorney General's Office is fighting the blanket stays in both counties, aiming to defend a law that voters overwhelmingly passed in 2006.

"I have considered filing a similar action in Contra Costa County. I think we have the same issues," said Briggs, the defense lawyer. "The futility of this policy is apparent to anyone who looks at it."

Men opposing the 2,000-foot rule in Contra Costa County claim similar struggles.

"I have not been able to live at home with my wife, but forced to live in a motel," wrote Wayne Captain, who was convicted of rape in 1987, then was released on parole for an unrelated crime in 2008 and fell under Jessica's Law.

Another foresaw a grim future with the ban.

"My parents allowed me to live with them. ... When I am order(ed) to leave this address I will have to live in my car. Or somewhere on the streets," wrote Anthony Brewer, of Pittsburg.

State corrections officials said they have not tallied how many paroled sex offenders are now free from the 2,000-foot rule. Fred Bridgewater, parole administrator for the North Bay district, said such stays are "sporadic" in the area.

The challenges do not affect conditions that parole supervisors can impose based on individual circumstances. Nor do they affect a different law that prohibits convicted child molesters who are deemed high-risk sex offenders from living within a half-mile of a school.

Growing pressure to overturn the 2,000-foot rule rankles the author of Jessica's Law.

Outgoing state Sen. George Runner, R-Antelope Valley, said he is pushing legislation that would protect it by allowing local judicial panels to adjust the limits but not eliminate them.

"I don't think the voters are concerned whether it's too hard (to find housing). It's whether it's possible," Runner said. He downplayed the notion that homeless sex offenders are more likely to commit new sex crimes, particularly now that sex offender parolees all wear GPS anklets.

"We are not aware of an individual who's on GPS, who is transient, who has committed an illegal sexual act," he said. "So we believe at this point it's a problem that they can't find a place to live. I'm sure that's a personal hassle for them, but that's not my concern."

In the meantime, few of the state's 58 counties are attempting to fully enforce the 2,000-foot rule on sex offenders under court probation, said probation officials.

"The bottom line is we're doing everything we can with the limited resources we have," said Philip Kader, county probation officer in Contra Costa. The department, which oversees about 140 sex offenders on probation, has sustained steep cutbacks and does not adhere to the 2,000-foot rule, unless a judge orders it, Kader said.

"We have not been adhering to the 2,000-foot rule because we wouldn't have any place to put our folks," said Bill Fenton, assistant chief probation officer in Alameda County, where about 200 registered sex offenders are on probation. "To me, the bigger risk is not knowing where they are." ..Source.. John Simerman, Contra Costa Times