Court: sex offender laws going too far?

[strollingbones]

Court: Sex-offender law unfairly restrictive
Bob Egelko, Chronicle Staff Writer

Friday, November 21, 2008



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(11-20) 18:17 PST SANTA ANA -- A voter-approved law prohibiting sex offenders from living within 2,000 feet of a school or a park amounts to additional punishment for the offenders' original crimes, a state appeals court has ruled in a case that could affect thousands of parolees.



The ruling Wednesday by the Fourth District Court of Appeal in Santa Ana was the first by a California court to find that the residency restrictions in Proposition 83, a November 2006 initiative, are not just public safety measures but also would punish ex-offenders by forcing them out of their homes.

Prop. 83, called Jessica's Law by its sponsors, imposes "traditional banishment under another name," the court said.

The ruling leaves the law in effect but could limit its application. The U.S. Constitution forbids laws that retroactively impose criminal penalties or increase punishment for past offenses.

A lawyer for four men who are challenging Prop. 83 before the state Supreme Court said Thursday that the ruling should prevent the state from imposing the residency restrictions on parolees who committed sex crimes before the ballot measure passed.

The attorney, Ernest Galvan, said the state now is applying the 2,000-foot buffer zone requirement to any former sex offender who has been paroled since Prop. 83 passed, even if the parolee committed a sex crime many years earlier and was serving a sentence for an unrelated crime. He said at least 2,000 parolees fall into that category, and the number is growing by hundreds each month.

"You can't criminalize conduct after it's already happened, can't increase the punishment, because everyone's entitled to notice of what's criminal now," Galvan said.

Lisa Page, spokeswoman for Gov. Arnold Schwarzenegger, said the administration is reviewing the ruling. "The governor strongly supports Jessica's Law and keeping families and children safe," she said.

Prop. 83, approved by 70 percent of the voters, increased sentences for various sex crimes and also barred all registered sex offenders - whose crimes range from forcible rape to indecent exposure - from living within 2,000 feet of a school or park where children regularly gather.

State law previously prohibited only convicted child molesters from living within a quarter-mile of a school. Prop. 83 makes most densely populated areas of California off limits to paroled sex criminals, including nearly all of San Francisco.

The state initially sought to apply the residency restrictions to all 90,000 registered sex offenders in California, but federal judges ruled that it did not cover anyone paroled before Prop. 83 passed.

In the case pending before the state Supreme Court, the four parolees say the residency restrictions are an unconstitutional retroactive punishment and an unreasonable parole condition. They say the limits should be applied only to those who committed crimes against children.

In Wednesday's ruling, the appeals court overturned the residency restrictions on an Anaheim man, Steven Lloyd Mosley, who was convicted in 2007 of assaulting a 12-year-old girl four years earlier but acquitted of committing a lewd act. The trial judge nevertheless concluded that Mosley had committed a sex crime, ordered him to register with police as a sex offender and barred him from living within 2,000 feet of a school or park.

In a 3-0 ruling, the court said the judge's order would have been valid if the Prop. 83 requirements were simply nonpunitive measures to protect the public. But because they have an "overwhelmingly punitive effect," the court said, they can be imposed only after a jury trial and conviction for a sex crime. That also means the restrictions can't be applied retroactively.

The law forces many parolees to leave their homes and leaves them under "constant threat of ouster" from their new residences if a new school or park opens nearby, said Justice Raymond Ikola.

Court: Sex-offender law unfairly restrictive

shouldnt sex offenders who prey on children be given the most restrictive punitive measures we have? or do these laws amount to nothing more than modern day witch hunts? what would you do if a sex offender moved next door? would your reaction be different if that sex offender preys on children?

 

[RetiredGySgt]

The law is a horrible infringement on the rights of those affected by it. The Government does not have the right to punish outside court decisions. If these people are a threat to society convict them and put them in jail. The Government does not have the legal right to effectively prevent them from living in any city or town.

 

[editec]

A voter-approved law prohibiting sex offenders from living within 2,000 feet of a school or a park amounts

2000 feet of any school or park??

Yeah, that's asking a bit much.

That would mean they couldn't live within the most town limits in America.

Perhaps one could understand that ruling for child sex-offenders (perhaps we need a special child-free place for all of them to live, too?) but for every hapless idiot who got caught in some sexual escapade?

Sounds undoable to me.

Sounds to me like we'd be telling those poor idiots who got caught taking a leak in a public park or something (and was charged with the sex crime of indecent exposure, for example...it happens..I know somebody this actually happened to) that he can't live in any town or city in the USA.

Here's a thought...let's consider making these punishments (or safeguards post punishment) actually fit their crimes.

 

[Sunni Man]

I am for Life sentences for child molesters on the First offence. No parole. Period!

 

[editec]

I am for Life sentences for child molesters on the First offence. No parole. Period!

That's nice.

But until we actually do that, demanding that they live over 2000' from every school or park seems damned near impossible.

And besides, this law doesn't JUST APPLY to child molestors.

It applies to every so called sex crime.

 

[Goose]

I also beleave in locking them up and trowing away the key! but 2000' is a little much. the harder you push them the more of them come to my neighborhood!

 

[William Joyce]

The law is a horrible infringement on the rights of those affected by it. The Government does not have the right to punish outside court decisions. If these people are a threat to society convict them and put them in jail. The Government does not have the legal right to effectively prevent them from living in any city or town.

Totally agree.

You need not be liberal or conservative on this... if you're a lib, support short jail. If you're a conservo, support long jail.

But this halfway crap is absurd. Get rid of it.

 

[Cecilie1200]

The law is a horrible infringement on the rights of those affected by it. The Government does not have the right to punish outside court decisions. If these people are a threat to society convict them and put them in jail. The Government does not have the legal right to effectively prevent them from living in any city or town.

Why not?

 

[Cecilie1200]

That's nice.

But until we actually do that, demanding that they live over 2000' from every school or park seems damned near impossible.

And besides, this law doesn't JUST APPLY to child molestors.

It applies to every so called sex crime.

I suspect it might be difficult to manage. That would be one of the reasons why our society does not typically use banishment as a legal punishment.

However, practicality and efficacy aren't the questions being raised about this law, but "fairness" and whether or not the government can legally choose to use this method of punishment for crimes. On those two scores, I don't see a problem.

 

[Gunny]

Court: Sex-offender law unfairly restrictive
Bob Egelko, Chronicle Staff Writer

Friday, November 21, 2008



--------------------------------------------------------------------------------

(11-20) 18:17 PST SANTA ANA -- A voter-approved law prohibiting sex offenders from living within 2,000 feet of a school or a park amounts to additional punishment for the offenders' original crimes, a state appeals court has ruled in a case that could affect thousands of parolees.



The ruling Wednesday by the Fourth District Court of Appeal in Santa Ana was the first by a California court to find that the residency restrictions in Proposition 83, a November 2006 initiative, are not just public safety measures but also would punish ex-offenders by forcing them out of their homes.

Prop. 83, called Jessica's Law by its sponsors, imposes "traditional banishment under another name," the court said.

The ruling leaves the law in effect but could limit its application. The U.S. Constitution forbids laws that retroactively impose criminal penalties or increase punishment for past offenses.

A lawyer for four men who are challenging Prop. 83 before the state Supreme Court said Thursday that the ruling should prevent the state from imposing the residency restrictions on parolees who committed sex crimes before the ballot measure passed.

The attorney, Ernest Galvan, said the state now is applying the 2,000-foot buffer zone requirement to any former sex offender who has been paroled since Prop. 83 passed, even if the parolee committed a sex crime many years earlier and was serving a sentence for an unrelated crime. He said at least 2,000 parolees fall into that category, and the number is growing by hundreds each month.

"You can't criminalize conduct after it's already happened, can't increase the punishment, because everyone's entitled to notice of what's criminal now," Galvan said.

Lisa Page, spokeswoman for Gov. Arnold Schwarzenegger, said the administration is reviewing the ruling. "The governor strongly supports Jessica's Law and keeping families and children safe," she said.

Prop. 83, approved by 70 percent of the voters, increased sentences for various sex crimes and also barred all registered sex offenders - whose crimes range from forcible rape to indecent exposure - from living within 2,000 feet of a school or park where children regularly gather.

State law previously prohibited only convicted child molesters from living within a quarter-mile of a school. Prop. 83 makes most densely populated areas of California off limits to paroled sex criminals, including nearly all of San Francisco.

The state initially sought to apply the residency restrictions to all 90,000 registered sex offenders in California, but federal judges ruled that it did not cover anyone paroled before Prop. 83 passed.

In the case pending before the state Supreme Court, the four parolees say the residency restrictions are an unconstitutional retroactive punishment and an unreasonable parole condition. They say the limits should be applied only to those who committed crimes against children.

In Wednesday's ruling, the appeals court overturned the residency restrictions on an Anaheim man, Steven Lloyd Mosley, who was convicted in 2007 of assaulting a 12-year-old girl four years earlier but acquitted of committing a lewd act. The trial judge nevertheless concluded that Mosley had committed a sex crime, ordered him to register with police as a sex offender and barred him from living within 2,000 feet of a school or park.

In a 3-0 ruling, the court said the judge's order would have been valid if the Prop. 83 requirements were simply nonpunitive measures to protect the public. But because they have an "overwhelmingly punitive effect," the court said, they can be imposed only after a jury trial and conviction for a sex crime. That also means the restrictions can't be applied retroactively.

The law forces many parolees to leave their homes and leaves them under "constant threat of ouster" from their new residences if a new school or park opens nearby, said Justice Raymond Ikola.

Court: Sex-offender law unfairly restrictive

shouldnt sex offenders who prey on children be given the most restrictive punitive measures we have? or do these laws amount to nothing more than modern day witch hunts? what would you do if a sex offender moved next door? would your reaction be different if that sex offender preys on children?

Think about. Supposedly, when one commits a crime and is punished for that crime, one's debt to society is supposed to be paid. Never seems to be the case, but it looks good on paper.

In the case of sex offenders, we as a society are merciless hypocrites and pretty much violate sex offenders' Constitutional Rights, and we do it gleefully with a smile on our faces.

Where I get annoyed is when people start trying to justify it morally and/or legally. Legally, it is not justified. Morally, it depends on one's morals.

My moral compass tells me better to step on a few Rights than chance a repeat offense.

But then again, whose rights are next?

 

[Cecilie1200]

Think about. Supposedly, when one commits a crime and is punished for that crime, one's debt to society is supposed to be paid. Never seems to be the case, but it looks good on paper.

Where is it written that the only punishment society can exact for your crimes is imprisonment? Where is it carved in stone that your only debt to society is incarceration? Where is it carved in stone that your only debt to society SHOULD BE incarceration?

In the case of sex offenders, we as a society are merciless hypocrites and pretty much violate sex offenders' Constitutional Rights, and we do it gleefully with a smile on our faces.

Little lost as to what Constitutional right is actually violated here.

Where I get annoyed is when people start trying to justify it morally and/or legally. Legally, it is not justified. Morally, it depends on one's morals.

Where I get annoyed is when people automatically assume everyone views the law and morality the same way they do, so it "goes without saying" that their point exists and is accepted as having been made without them ever having to make it.

Is it too much to ask that YOU justify YOUR point morally and legally before demanding that others do the same?

My moral compass tells me better to step on a few Rights than chance a repeat offense.

But then again, whose rights are next?

I haven't figured out what rights have been stepped on yet.

 

[RetiredGySgt]

It violates the right to "Life Liberty and the Pursuit of Happiness."

The Right to be secure in ones home from unreasonable search and seizure.

The Constitution forbids punishment that goes against the blood. These laws punish the entire family.

It violates the right to own property and to live free anywhere one chooses.

It violates the very core of our legal system. That once you pay your debt you are free. If these people are still a threat lock them up.

The Government does NOT have the right to banish people. To dictate where they will or can live AFTER their sentence is finished.

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

and

Amendment 8 - Cruel and Unusual Punishment. Ratified 12/15/1791.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

and

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The United States Constitution - The U.S. Constitution Online - USConstitution.net

 

[Cecilie1200]

It violates the right to "Life Liberty and the Pursuit of Happiness."

Yeah? And where is THAT codified into law?

Not to mention the fact that our laws already allow for the deprivation of all three in pursuit of justice and punishment for crimes. You HAVE noticed that we lawfully imprison and execute criminals, right? And I'm sure most of them are pretty unhappy about it.

The Right to be secure in ones home from unreasonable search and seizure.

Who defines what "unreasonable" is?

The Constitution forbids punishment that goes against the blood. These laws punish the entire family.

Goes against the blood? Where the hell is that in the Constitution? And do you honestly think OTHER legal punishments don't end up punishing the family of the offender, as well? That just falls under the heading of "shit happens".

It violates the right to own property and to live free anywhere one chooses.

Where is THAT codified into law?

It violates the very core of our legal system. That once you pay your debt you are free. If these people are still a threat lock them up.

The Government does NOT have the right to banish people. To dictate where they will or can live AFTER their sentence is finished.

Like I said, where is it carved into stone that incarceration is the only allowable debt to society that must be paid?

I won't say that I think simply keeping them locked up for good would be more effective than trying to tag and track them like animals in the wild, but that's not the same as saying the government has no right to decide to make that the law, if it wants to. There's no legal restriction anywhere that says that only incarceration is an acceptable legal punishment.

And by the way, the government already DOES dictate where people can and will live and what they can and can't do after they are released from prison. Ever hear of the concept of "parole"? The government also uses techniques of releasing criminals but keeping tabs on them and dictating conditions of their lives as a form of punishment. Ever hear of the concept of "probation"?

and



and



The United States Constitution - The U.S. Constitution Online - USConstitution.net

And . . . and . . . the point of posting the Constitution's text is what, exactly?

 

[RetiredGySgt]

Yeah? And where is THAT codified into law?

Not to mention the fact that our laws already allow for the deprivation of all three in pursuit of justice and punishment for crimes. You HAVE noticed that we lawfully imprison and execute criminals, right? And I'm sure most of them are pretty unhappy about it.



Who defines what "unreasonable" is?



Goes against the blood? Where the hell is that in the Constitution? And do you honestly think OTHER legal punishments don't end up punishing the family of the offender, as well? That just falls under the heading of "shit happens".



Where is THAT codified into law?



Like I said, where is it carved into stone that incarceration is the only allowable debt to society that must be paid?

I won't say that I think simply keeping them locked up for good would be more effective than trying to tag and track them like animals in the wild, but that's not the same as saying the government has no right to decide to make that the law, if it wants to. There's no legal restriction anywhere that says that only incarceration is an acceptable legal punishment.

And by the way, the government already DOES dictate where people can and will live and what they can and can't do after they are released from prison. Ever hear of the concept of "parole"? The government also uses techniques of releasing criminals but keeping tabs on them and dictating conditions of their lives as a form of punishment. Ever hear of the concept of "probation"?





And . . . and . . . the point of posting the Constitution's text is what, exactly?

If you had BOTHERED to read it you would find your questions answered. 2 of the Amendments posted specifically mention the right to Life, liberty and property. And that they can not be denied with out DUE Process. Without your day in court.

The current laws punish BEYOND what the court punishes. They punish after a person has ENDED the punishment part that they were assigned in court. Further they are retroactive which is also UNCONSTITUTIONAL. People that had served their punishment and gotten on with their lives were suddenly told they could not live where they lived, you know, NO DAY in court, lose of Liberty, lose of use of ones property, all with OUT due process.

You may have a faint argument as to NEW convictions, but those that were out and done before the law have had due process violated.

Section 3 - Treason Note

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Go ahead and argue that we can not do it for the most heinious crime of Treason but we can for sex.

Denying someone the right to live in cities and towns denies them property rights, it denies them the right to work, it denies them the right to be free of Cruel and Unusual Punishment.


You ask where in the Constitution the law was denied, I posted articles to show you and your response is to say " Why did you post those articles?"

 

[Cecilie1200]

If you had BOTHERED to read it you would find your questions answered. 2 of the Amendments posted specifically mention the right to Life, liberty and property. And that they can not be denied with out DUE Process. Without your day in court.

Did read it. Didn't change anything. That's why I'm still asking.

Maybe you ought to look up "due process", Sparky. I do not think it means what you think it means.

The current laws punish BEYOND what the court punishes. They punish after a person has ENDED the punishment part that they were assigned in court.

Excuse me, but technically, the COURT doesn't punish. The LAW punishes, and the court merely applies it. You talk as though you think the court somehow operates separately from the law.

Further they are retroactive which is also UNCONSTITUTIONAL. People that had served their punishment and gotten on with their lives were suddenly told they could not live where they lived, you know, NO DAY in court, lose of Liberty, lose of use of ones property, all with OUT due process.

Another one of your apocryphal "the Constitution says" statements.

And they did have their day in court. They were convicted, remember? You didn't really think that stopped affecting your life after you leave the prison, did you?

One wonders if you would be this jazzed about "retroactivity" if a law was passed allowing felons to regain their voting status, and it was extended to people who were convicted before the law was passed.

You may have a faint argument as to NEW convictions, but those that were out and done before the law have had due process violated.

Sorry, Jack, but if you get zoned out of the area, you get zoned out of the area. If the city council here changes the zoning from commercial to residential, do you think the businesses already there get "grandfathered in"? No, they have to move.

My city passed a law "adult" establishments like strip clubs, porn shops, that kind of thing couldn't operate within a certain distance of a school, park, or child-oriented business establishment such as Chuck E. Cheese's, McDonald's restaurants that had play areas, that kind of thing. There was a brand-new McDonald's, complete with play area, that had just opened up that year next door to the oldest strip club/porn shop in the city. That sucker had been in that building since well before I was born. Guess which business was forced to move, despite the "retroactivity" of the law?

Go ahead and argue that we can not do it for the most heinious crime of Treason but we can for sex.

Tell you what, Sparky. How's about you put your effort into making your own arguments, instead of thinking up arguments you want me to make? I'm perfectly capable of putting my own words in my mouth.

Denying someone the right to live in cities and towns denies them property rights, it denies them the right to work, it denies them the right to be free of Cruel and Unusual Punishment.

I don't see anything cruel and unusual about it, nor is it denying them the right to live in cities or the right to work. Don't exaggerate. It makes their lives harder, but that's already a consequence of being a convicted criminal.

You ask where in the Constitution the law was denied, I posted articles to show you and your response is to say " Why did you post those articles?"

Yeah, because not a one of them supported your contentions.

 

[Steerpike]

However, practicality and efficacy aren't the questions being raised about this law, but "fairness" and whether or not the government can legally choose to use this method of punishment for crimes. On those two scores, I don't see a problem.

The reason it is a problem is the retroactive nature of the law. One fundamental aspect of our criminal system is supposed to be 'notice.' If you do something, it is supposed to be fairly evident to you, as a citizen, that it is against the law, and what the penalty for it is.

If you commit a crime for which the sentence is 1 year in jail, and then after you are out the government decides that wasn't good enough and they change it to 2 years in jail, they can't come get you and throw you back in for that extra year. They can only punish you to the extent allowed by law at the time you were sentenced.

So what the lawyer in this case is saying is that basically these people have already served their sentence and the government cannot retroactively impose additional punishments.

If the government had a law saying "from here forward anyone convicted of a sex offense can't live within 2000 feet of these places..." then the sex offenders convicted from that point forward wouldn't have much of a case. But when you apply it retroactively you run into some issues under our Constitution.

 

[Cecilie1200]

The reason it is a problem is the retroactive nature of the law. One fundamental aspect of our criminal system is supposed to be 'notice.' If you do something, it is supposed to be fairly evident to you, as a citizen, that it is against the law, and what the penalty for it is.

If you commit a crime for which the sentence is 1 year in jail, and then after you are out the government decides that wasn't good enough and they change it to 2 years in jail, they can't come get you and throw you back in for that extra year. They can only punish you to the extent allowed by law at the time you were sentenced.

So what the lawyer in this case is saying is that basically these people have already served their sentence and the government cannot retroactively impose additional punishments.

If the government had a law saying "from here forward anyone convicted of a sex offense can't live within 2000 feet of these places..." then the sex offenders convicted from that point forward wouldn't have much of a case. But when you apply it retroactively you run into some issues under our Constitution.

I don't necessarily agree. Oh, I agree it would be flatly Unconstitutional to add an extra year to your sentence after you had already received your sentence, because a deal's a deal. This, however, isn't actually intended as a punishment for the sex offenders, any more than making them appear on a sex offender registry or check in with the local police department when they move is. It's intended primarily to serve the purpose of protecting others from them, and in that way more closely resembles the reality of having their criminal records follow them forever, having employers refuse to hire them after doing a background check, being ineligible to even apply for certain jobs, having the police automatically give them closer scrutiny when a similar crime is committed in their vicinity . . .

Basically, it sucks to be a convicted felon. And they already knew it was going to suck and screw up the rest of their lives before they did it. But making their lives suck was not the primary purpose here, the way it was when they were put in prison.