Existing law, the Sex Offender Registration Act, requires persons convicted of specified sex offenses to register with local authorities for life while residing, located, attending school, or working in California. Existing law, as adopted by the voters by the passage of Proposition 83 at the November 7, 2006, statewide general election, prohibits a person who is required to register as a sex offender from living in specified places, including within 2,000 feet of a school or park where children regularly gather. Existing law authorizes municipal jurisdictions to enact local ordinances that further restrict the residency of the registered sex offender. Existing law makes it a misdemeanor for a person who is on parole for specified sex offenses to enter any park where children regularly gather without express permission from the persons parole agent.

This bill would state that a local agency is not preempted by state law from enacting and enforcing an ordinance that restricts a registered sex offender from residing or being present at certain locations within the local agencys jurisdiction. The bill would authorize a local agency to adopt ordinances, rules, or regulations that are more restrictive than state law relating to a registered sex offenders ability to reside or be present at certain locations within the local agencys jurisdiction.

Existing law, the Sex Offender Registration Act, requires persons convicted of specified sex offenses to register with local authorities for life while residing, located, attending school, or working in California. Existing law, as adopted by the voters by the passage of Proposition 83 at the November 7, 2006, statewide general election, prohibits a person who is required to register as a sex offender from living in specified places, including within 2,000 feet of a school or park where children regularly gather. Existing law authorizes municipal jurisdictions to enact local ordinances that further restrict the residency of the registered sex offender. Existing law makes it a misdemeanor for a person who is on parole for specified sex offenses to enter any park where children regularly gather without express permission from the persons parole agent.

This bill would state that a local agency is not preempted by state law from enacting and enforcing an ordinance that restricts a registered sex offender from residing or being present at certain locations within the local agencys jurisdiction. The bill would authorize a local agency to adopt ordinances, rules, or regulations that are more restrictive than state law relating to a registered sex offenders ability to reside or be present at certain locations within the local agencys jurisdiction.

Date of Hearing:

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 201

Author:(Brough) – As Amended Ver:April 21, 2015

SUMMARY:  Allows cities and counties to adopt ordinances, rules or regulations that are more restrictive than state law regarding the ability of people who are required to register as sex offenders to reside or be present at certain locations within the city or county.  Specifically, this bill:

1. Provides that a local agency is not preempted by state law from enacting and enforcing an ordinance that restricts a person required to register as a sex offender, pursuant to existing law, from residing or being present at certain locations within the local agency’s jurisdiction.
2. Allows a local agency to adopt ordinances, rules, or regulations that are more restrictive than state law relating to the ability of a person required to register as a sex offender to reside or be present at certain locations within the local agency’s jurisdiction.
3. Defines, for the purposes of this bill, "local agency" to mean a city, county, or city and county.

EXISTING LAW:

1. Requires persons convicted of enumerated sex offenses to register within five working days of coming into a city or county, with specified law enforcement officials in the city, county, or city and county where he or she is domiciled, as specified.  (Pen. Code, § 290.) 
2. Provides that it is unlawful for any registered sex offender to reside within 2,000 feet of any public or private school, or park where children regularly gather.  Further states that nothing in this section shall prohibit municipal jurisdictions from enacting local ordinances that further restrict the residency of any sex registrants.  (Pen. Code, § 3003.5.) 
3. Requires persons convicted of specified sex offenses to register for life, or re-register if the person has been previously registered, upon release from incarceration, placement, commitment, or release on probation.  States that the registration shall consist of all of the following (Pen. Code, § 290.015, subd. (a).):
   1. A statement signed in writing by the person, giving information as shall be required by the Department of Justice (DOJ) and giving the name and address of the person's employer, and the address of the person's place of employment, if different from the employer's main address;
   2. Fingerprints and a current photograph taken by the registering official;
   3. The license plate number of any vehicle owned by, regularly driven by or registered in the name of the registrant;
   4. Notice to the person that he or she may have a duty to register in any other state where he or she may relocate; and,
   5. Copies of adequate proof of residence, such as a California driver's license or identification card, recent rent or utility receipt or any other information that the registering official believes is reliable.
4. States every person who is required to register, as specified, who is living as a transient shall be required to register for the rest of his or her life as follows:
   1. He or she shall register, or reregister if the person has previously registered, within five working days from release from incarceration, placement or commitment, or release on probation, pursuant to Penal Code Section 290(b), except that if the person previously registered as a transient less than 30 days from the date of his or her release from incarceration, he or she does not need to reregister as a transient until his or her next required 30-day update of registration.  If a transient is not physically present in any one jurisdiction for five consecutive working days, he or she shall register in the jurisdiction in which he or she is physically present on the fifth working day following release, as specified.  Beginning on or before the 30th day following initial registration upon release, a transient shall reregister no less than once every 30 days thereafter.  A transient shall register with the chief of police of the city in which he or she is physically present within that 30-day period, or the sheriff of the county if he or she is physically present in an unincorporated area or city that has no police department, and additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is physically present upon the campus or in any of its facilities.  A transient shall reregister no less than once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters.  If a transient fails to reregister within any 30-day period, he or she may be prosecuted in any jurisdiction in which he or she is physically present.
   2. A transient who moves to a residence shall have five working days within which to register at that address, in accordance with Penal Code Section 290(b).  A person registered at a residence address in accordance with that provision who becomes transient shall have five working days within which to reregister as a transient in accordance with existing law.
   3. Beginning on his or her first birthday following registration, a transient shall register annually, within five working days of his or her birthday, to update his or her registration with the entities described in existing law.  A transient shall register in whichever jurisdiction he or she is physically present on that date. At the 30-day updates and the annual update, a transient shall provide current information as required on the DOJ annual update form, including the information.
   4. A transient shall, upon registration and re-registration, provide current information as required on the DOJ registration forms, and shall also list the places where he or she sleeps, eats, works, frequents, and engages in leisure activities.  If a transient changes or adds to the places listed on the form during the 30-day period, he or she does not need to report the new place or places until the next required re-registration.  (Pen. Code, § 290.011, subds. (a) to (d).)
5. Provides that willful violation of any part of the registration requirements constitutes a misdemeanor if the offense requiring registration was a misdemeanor, and constitutes a felony of the offense requiring registration was a felony or if the person has a prior conviction of failing to register.  (Pen. Code, § 290.018, subds. (a)&(b).)
6. Provides that within three days thereafter, the registering law enforcement agency or agencies shall forward the statement, fingerprints, photograph, and vehicle license plate number, if any, to the DOJ.  (Pen. Code § 290.015, subd. (b).)
7. States that a misdemeanor failure to register shall be punishable by imprisonment in a county jail not exceeding one year, and a felony failure to register shall be punishable in the state prison for 16 months, two or three years.  (Pen. Code, § 290.018, subds. (a)&(b).)
8. Provides that the DOJ shall make available information concerning persons who are required to register as a sex offender to the public via an internet Web site.  The DOJ shall update the Web site on an ongoing basis.  Victim information shall be excluded from the Web site.  (Pen. Code § 290.46.)  The information provided on the Web site is dependent upon what offenses the person has been convicted of, but generally includes identifying information and a photograph of the registrant. 
9. Generally prevents the use of the information on the website from being used in relation to the following areas:  (Pen. Code, § 290.46, subd. (l)(2).) 
   1. Health insurance;
   2. Insurance;
   3. Loans;
   4. Credit;
   5. Employment;
   6. Education, scholarships, or fellowships;
   7. Housing or accommodations; and
   8. Benefits, privileges, or services provided by any business establishment.

FISCAL EFFECT:  Unknown

COMMENTS:

1. Author's Statement:  According to the author, "The purpose of AB 201 is to authorize local governments to enact ordinances relating to convicted sex offenders. Cities and counties are within their rights to pass laws that benefit their communities. Local governments have the best ability to serve their unique populations and geographical needs. Recently this authority was invalidated when an Orange County court ruled that state law excluded local municipalities from making laws relating to sex offenders. In resolution, the disposition of the case stated, 'If the Legislature wishes to do so, it can amend Section 290.03 to permit local ordinances.'

"Prior to this ruling many cities and counties had taken action by enacting ordinances that would protect their residents. These cities and counties are now faced with the harrowing choice of repealing local ordinances, compromising the safety of their communities, or face the excessive cost of litigation. AB 201 restores a jurisdiction issue that has left local governments unable to protect their communities in an appropriate way. AB 201 will restore authority to local agencies and authorize the ability to implement their own ordinances to protect their friends and neighbors from becoming victims of convicted sexual predators."

1. State Preemption/Fully Occupying the Field:  Article XI, Section 7 of the California Constitution allows cities and counties to make and enforce within their limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.  However, courts have found that if otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.  A conflict exists if the local legislation “duplicates, contradicts or enters an area fully occupied by general law, either expressly or by legislative implication.”
2. Impact of Residency Restrictions:  The Office of the Inspector General (OIG) in October
   of 2014 conducted a review and assessment of sex offenders on parole and the impact of residency restrictions on this population.  The OIG Report concluded, "The residency restrictions imposed by Jessica's Law, which prohibit parole sex offenders from living within 2,000 feet of a school or park where children congregate, contribute to homelessness among parole sex offenders.  According to the California Sex Offender Management Board (CASOMB), there were only 88 sex offenders on parole registered as transient when Proposition 83 was passed in November 2006.  As of June 2014, there were 1,556 sex offender parolees identified as transient by the California Department of Corrections and Rehabilitation (CDCR).  While this represents 3.38 percent of all parolees, the incidence of homelessness is 19.95 percent (approximately one in five) among the subset of parolees who are sex offenders."

"Transient sex offenders are more 'labor intensive' than are parolees who have a permanent residence.  The OIG interviewed parole administrators in 12 parole districts, who said that because transient sex offenders are moving frequently, monitoring their movement is time consuming.  Transient sex offenders must register with law enforcement monthly (as opposed to yearly for those with permanent residences), thus requiring more frequent registration compliance tracking by parole agents.  Adding further to the workload associated with monitoring transients, agents are required to conduct weekly face-to-face contacts with them."

"While Jessica's Law leaves open the door for local governments to impose their own restrictions on paroled sex offenders, parolees are finding relief from residency restrictions in the courts."

1. Supreme Court Ruling on Residency Restrictions:  In March of 2015, the Supreme Court unanimously ruled that the provisions in state law prohibiting sex offenders from living within 2,000 feet of schools or parks, as applied in San Diego County, are unconstitutional and bear "no rational relationship to advancing the state's legitimate goal
   of protecting children from sexual predators" (In Re Taylor [2015] 60 Cal. 4th 1019).  The Supreme Court said sex offenders can still be banned from living near parks and schools, but such a determination must be made on a case-by-case basis.

As a result, several cities and counties have repealed – or are in the process of repealing – local ordinances with blanket residency bans.  In addition, the California Department of Corrections and Rehabilitation (CDCR), on the advice of the Attorney General, issued new regulations requiring parole agents to individually determine residency restrictions for each of the 6,000 offenders they monitor.

1. Presence Restrictions/Exclusion Zones:  Existing state law is silent regarding where registered sex offenders are allowed to be present.  These restrictions are known as presence restrictions or exclusion zones.  Numerous local jurisdictions enacted a variety of ordinances establishing “child safety zones” to restrict registered sex offenders from being present at parks, libraries, swimming pools, arcades, piers, and other similar locations where children regularly gather.  Many of these ordinances were the subject of litigation, and local governments across the state repealed some or all of their ordinances as a result.

In addition, last year, an appellate court opinion in People v. Nguyen (222 Cal. App. 4th 1168, 2014) found that state law’s comprehensive scheme regulating the daily life of sex offenders fully occupies the field, therefore preempting a City of Irvine ordinance restricting sex offenders from visiting city parks and recreational facilities. The Supreme Court declined a petition to review this decision.

1. California's Sex Offender Management Board's Background:  On September 20, 2006, Governor Arnold Schwarzenegger signed Assembly Bill 1015, which created the California Sex Offender Management Board (CASOMB).  AB 1015 had been introduced by Assembly Members Judy Chu and Todd Spitzer and passed the California Legislature with nearly unanimous bipartisan support.
   
   Because California is the most populated state in the Union and has had lifetime registration for its convicted sex offenders since 1947, California has more registered sex offenders than any other state with about 88,000 identified sex offenders (per DOJ, August 2007). Currently, the California Department of Corrections and Rehabilitation (CDCR) supervises about 10,000 of those 88,000 sex offenders, of which about 3,200 have been designated as "high-risk sex offenders".  (CDCR Housing Summit, March 2007).  Additionally, there are about 22,500 adult sex offenders serving time in one of 32 state prisons operated by CDCR (California Sex Offender Management Task Force Report, July 2007).
   
   While it is commonly believed that most sexual assaults are committed by strangers, the research suggests that the overwhelming majority of sex offenders victimize people known to them; approximately 90% of child victims know their offenders, as do 80% of adult victims [per Kilpatrick, D.G., Edmunds, C.N., & Seymour, A.K.  Rape in America:  A Report to the Nation (1992).  Arlington, VA:  National Victim Center.]
2. CASOMB 2014 Year End Recommendations:  In their 2014 Year End Report^[1][1], the California Sex Offender Management Board (CASOMB)made five recommendations for California policy makers.  The last two recommendations are specifically contrary to the intentions of this legislation.  

As CASOMB continues to track the status of sex offender management in California, many areas would benefit from major or minor improvements. However, certain policies and practices deserve the highest priority. Most of them repeat previous CASOMB recommendations, some of which remain on the list since the initial CASOMB Recommendations statement in 2010 (www.casomb.org).

CASOMB urges decision makers to take steps to implement the following recommendations in order to make the systems for sex offender management in California rational and consistent and designed to improve the safety of California citizens and communities:

• 1. Enact a tiered sex offender registry so that length of registration and extent of community notification relate to the risk level and dangerousness of the offender, to enable law enforcement to identify and concentrate resources on dangerous offenders.
  2. Require participation in the Containment Model for sex offenders released to community supervision (PRCS).
  3. Provide state funding for sex offenders on probation and sex offenders on PRCS to ensure that all registered sex offenders under supervision participate in the Containment Model.
  4. Amend state law on residency restrictions to apply such restrictions on a case by case basis, depending on the risk level and type of offender.
  5. Avoid enactment of exclusion zones that apply to all registrants because no evidence shows they are effective in reducing sexual re-offending, and they may be counter-productive.

1. Additional Restrictions are Ineffective:  An October 2014 report released by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking ("SMART") in the Federal Department of Justice developed the Sex Offender Management Assessment and Planning Initiative (SOMAPI), a project designed to assess the state of research and practice in sex offender management.  That report states in part: 

"Despite the intuitive value of using science to guide decisionmaking, laws and policies designed to combat sex offending are often introduced or enacted without empirical support.  The reasons why this occurs are complex and are not explored here.  However, there is little question that both public safety and the efficient use of public resources would be enhanced if sex offender management strategies were based on evidence of effectiveness…(S)tudies have revealed that proximity to schools and other plces where children congregate had little relation to where offenders met child victims." ^[2][2]

According to the 2014 Year End Report by the California Sex Offender Management Board, in 2014 an appellate court determined that local ordinances governing where sex offenders can go in the community are unconstitutional because the state has “occupied” the field of sex offender management by enacting a comprehensive scheme for the registration, management and control of sex offenders in the state. The California Supreme Court declined to review this decision, which is, therefore, final. (People v. Godinez (2014) 222 Cal. App.4th 1168.)

CASOMB has discussed whether to recommend a model ordinance on where sex offenders can go in the community. However, no research shows that exclusion zones are helpful in preventing re-offense. Restrictions about where the offender can go in a community are routinely imposed as part of the individual parole and probation conditions because they can be fashioned to relate to the particular offender. State laws already preclude registered sex offenders from being on school campuses and from working with children under defined circumstances. (Pen. Code, §§ 626.81 & 290.95.) There is no evidence that broader restrictions will be effective, or will not be counter-productive by preventing offenders from obtaining appropriate employment.

CASOMB takes the position that any law precluding sex offenders from being in particular places (“exclusion zones”) must be tailored to the individual, including a consideration of the California Sex Offender Management Board Year End Report, February 3, 2015, risk level of the offender in order to be effective and need to have reasonable distances and protected places along with consistency in implementation statewide. Correlating the tiered registry and exclusion zones would assist law enforcement in monitoring those individuals most likely to reoffend and would increase options for housing and employment in the interest of developing offender stability in order to prevent recidivism.

1. Difficulty in Finding Appropriate Housing for Sex Registrants:  According to the 2014 End of Year Report by the CASOMB, every thoughtful consideration of sex offender management practices takes into account the need for lifestyle stabilization and the importance of reliable housing in the service of risk reduction and community safety. Having an alarmingly large number of transient sex offenders in California does not make communities safer.
   1. Number of sex registrants who register as transient – 6,692 (AS OF 1/15/15) 
   2. Number of parolees who are homeless and transient – 1,382 (AS OF 1/30/15)
   3. Number of probationers who are homeless and transient - unknown

CASOMB has looked carefully into these issues and has repeatedly stated that the promulgation of conditions which actually create homelessness and transience among registered sex offenders while producing no discernible benefit to community safety is counterproductive and continues to be the single most problematic aspect of sex offender management policy in California. CASOMB continues to recommend the elimination of one size-fits-all restrictions on where registered sex offenders may live.

1. Lack of Notice to Registrants Likely Make this Bill Unconstitutional: In addition to the myriad of other reasons why this bill is probably unconstitutional, the lack of a provision in the bill to provide notice to sex offenders in particular jurisdiction as to what the rules and regulations are in that area also make this bill unconstitutional.  One reason why regulation of sex offenders should be a matter of statewide concern (much like firearms rules and regulations) is that we do not want to have a patchwork of laws throughout the state that can be inconsistent and lead to prosecution of offenders who do not actually know that they are violating a local regulation.  In Lambert v. California (1957) 355 U.S. 255, the United States Supreme Court held that requiring convicted felons to register within five days of coming into the City of Los Angeles which such persons had not had actual notice of the city's registration requirement was an unconstitutional denial of due process.  Unlike persons who are informed of their duty to register, it is unclear how persons subject to potentially multiple and varying local ordinances restricting their presence would gain actual knowledge of the restriction. 
2. This Legislation Opens Local Jurisdictions to a Flood of Lawsuits:  Across the state of California, local jurisdictions have attempted to pass a number of presence restrictions.  Nearly all, if not all, presence restrictions passed by local governments that prevent registered sex offenders from being in a particular area have been thrown out on a variety of grounds.  Most of the lawsuits focus on a lack of Due Process under the 14^th Amendment to the United States Constitution which requires both procedural due process (including notice) as well as substantive due process.  Additionally, the lawsuits allege ex post facto violations, when they are imposed against people who were convicted and then had additional restrictions placed on them which were not in place at the time of the conviction.  Another basis for lawsuits is that registrants lose their 5^th Amendment property interests to public facilities that they are charged taxes to support. 

By and large, lawsuits against local jurisdictions have been extraordinarily successful.  In the last 12 months, more than 30 lawsuits have been filed throughout the state to challenge presence restrictions.  Passing this bill would only encourage more local jurisdictions to pass presence restrictions which would also be found unconstitutional.  As a result of these lawsuits 42 local jurisdictions have repealed their presence restrictions and seven other jurisdictions have stayed enforcement of their local laws. 

1. Argument in Support:  According to the City of Carson, "Local ordinances regulating where it is appropriate for offenders to live and congregate have recently come under attack, and your bill is the first step to restoring local residents' peace of mind, and allowing for locally elected officials to continue advocating for their ongoing safety.

"Different cities throughout the state face various challenges to maintaining a quality standard of living depending on their economic status, education, crime rates, gang activity, and police presence, among other factors. While the state currently requires certain prohibitions for sex offenders after the passage of Proposition 83 (2006), a statewide law of this nature, however well intentioned, cannot address the specific issue that are faced by each individual locality. Local ordinances are vital for locally elected officials to be able to continue maintaining a quality standard of living precisely because they are to account for the various conditions unique to their locality.

"While we recognize these ordinances may create a hardship for registered sex offenders, when weighed against the benefit for public safety, we view AB 201 as an extension of the spirit of Section 290 of the Penal Code, that this bill 'does not intend…to inflict retribution or additional punishment on any persons convicted of a sex offense.' Rather local ordinances are meant to enhance the statewide system, and have the effect of 'reducing the risk of recidivism posed by these offenders, thereby protecting victims and potential victims from future harm."

1. Argument in Opposition: 
   1. According to the Sex Offender Management Board, "One of the principles under which CASOMB operates is that policies and practices should be guided by the best available scientific research. Making such research available and recommending policies and practices consistent with verifiable knowledge and recommending against policies and practices which the research finds ineffective, useless, or counterproductive is a major part of CASOMB’s efforts to increase public safety. A national panel of experts on sex offender management issues stated the following:

"Perpetrators of sex crimes are often seen as needing special management practices. As a result, jurisdictions across the country have implemented laws and policies that focus specifically on sex offenders, often with extensive public support. At the same time, the criminal justice community has increasingly recognized that crime control and prevention strategies—including those targeting sex offenders—are far more likely to work when they are based on scientific evidence. (Emphasis added.) http://smart.gov/SOMAPI/index.html

"CASOMB consistently urges policy makers to be familiar with and follow what is known and supported by research and, whenever such research is available, not to advance policies which are not evidence-based.

"When it comes to residence restrictions and, to a slightly lesser extent, exclusion zones, the research and evidence is sufficiently clear. There is no research which supports the use of these strategies, there is substantial research showing that such policies have no effect on preventing recidivism, and there is growing body of research which indicates that residence restrictions actually increase sex offender recidivism and decrease community safety.

"In support of the statement that residence restrictions actually make communities less safe because they increase the risk of sexual recidivism, some yet-unpublished research recently conducted in a 2016 California study provides data showing that about 18% of sexual re-offenses in the probation group of registered sex offenders were committed by individuals who were registered as transients at the time of arrest on the new sex offense. More striking is the finding that 29% of sexual re-offenses in the parolee sex offender group were committed by individuals who were registered as transients at the time of re-arrest. Since transient sex offenders make up only about 8% of the overall population of sex offenders living in California communities, it is obvious that the rate of reoffending among those who are transient is quite disproportionately high. (Source: verbal report by DOJ staff at CASOMB meeting on November 19, 2015.) A substantial body of criminal justice research supports the fact that 'lifestyle stability' is a 'protective factor' and that anything which undermines such stability amplifies the risk of reoffending.

"The proponents of residence restrictions and exclusion zones, as put forth in AB 201, appear to begin with the premise and assumption that such policies will make California citizens safer. The Analysis of AB 201 by the Assembly Committee on Local Government provides the following Author’s Statement:

"Prior to this ruling many cities and counties had taken action by enacting ordinances that would protect their residents. These cities and counties are now faced with the harrowing choice of repealing local ordinances, compromising the safety of their communities, or face the excessive cost of litigation. AB 201 restores a jurisdiction issue that has left local governments unable to protect their communities in an appropriate way. AB 201 will restore authority to local agencies and authorize the ability to implement their own ordinances to protect their friends and neighbors from becoming victims of convicted sexual predators.

"As articulated in several places in this paper, the claim that residence restrictions make communities safer is one which has no support in the scientific literature. It is a claim which CASOMB and numerous other authoritative sources strongly reject as untrue. It is not a proper foundation upon which to build effective policies.

"As CASOMB has stated previously, those who are really interested in reducing the risk of recidivism by registered sex offenders should be raising and addressing the question of where can they safely live rather than merely creating restrictions on where they cannot live.

"PART TWO: RECOMMENDATIONS OF EXPERTS

"Whether residence restrictions and exclusion zones are good public policies is not a question which should be decided by “common sense” or other considerations, including the impulse to further punish sex offenders because of the damage they have done to innocent victims. The anger most citizens feel about sex offenders and their crimes makes it difficult to think clearly and legislate wisely with the goal of preventing future victimization. The body of knowledge produced by scientific research should be the guiding force in identifying effective policies.

"A number of respected bodies have reviewed the research regarding residence restrictions and exclusion zones and have published their conclusions. CASOMB is not aware of any similar statements from experts in support of such policies.

"(1) USDOJ SMART Office: A national group of highly respected experts has issued recommendations against the adoption and continued use of residence restrictions. The United States Department of Justice under the auspices of the 'SMART Office' convened a panel of recognized national experts. This panel, named the Sex Offender Management Assessment and Planning Initiative (SOMAPI), issued their Report in October of 2014. In that document, they recommended against adopting residence restrictions.

“ 'Finally, the evidence is fairly clear that residence restrictions are not effective. In fact, the research suggests that residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support. There is nothing to suggest this policy should be used at this time.' 'SOMAPI forum participants do not recommend expanding the residency restriction policy.' (Emphasis added.) (http://smart.gov/SOMAPI/index.html)

"(2) ATSA: The international Association for the Treatment of Sexual Abusers (ATSA) issued a statement regarding residence restrictions. In that document, ATSA strongly recommended against the use of residence restriction policies. The research supporting that conclusion is also provided. ATSA supports evidence-based public policy and practice. Research consistently shows that residence restrictions do not reduce sexual reoffending or increase community safety. In fact, these laws often create more problems than they solve, including homelessness, transience, and clustering of disproportionate numbers of offenders in areas outside of restricted zones. Housing instability can exacerbate risk factors for reoffending. Therefore, in the absence of evidence that these laws accomplish goals of child protection, ATSA does not support the use of residence restrictions as a feasible strategy for sex offender management. (Emphasis added.) (www.ATSA.org)

"(3) California Supreme Court: In the landmark Taylor case regarding residence restrictions in San Diego County, the California Supreme Court determined that the restrictions, as applied in San Diego County, were unconstitutional. The decision made a number of strong statements about the practice of imposing residence restrictions and based their decision in part on the “no rational basis” principle. In other words, the court held that, although the intentions of protecting the community may have been admirable, there was no reason to think that residence restrictions did anything meaningful to actually achieve that end. It is difficult to advance a 'no rational basis' argument because the presumption is that the government has implemented a policy which bears some relationship to the goal it is attempting to achieve. The Taylor decision is believed to be the first 'no rational basis' determination regarding residence restrictions which has been decided against the government.

"The court’s decision, filed on 3-2-15, included the following language: 'As will be explained, we agree that section 3003.5(b)’s residency restrictions are unconstitutional as applied across the board to petitioners and similarly situated registered sex offenders on parole in San Diego County. Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.' (Emphasis added.) In re WILLIAM TAYLOR et al., on Habeas Corpus. Ct.App. 4/1 D059574 S206143

"(4) CASOMB: For many years, CASOMB has recommended against adopting or continuing residence restrictions in California. These repeated recommendations can be found in papers and Reports on www.CASOMB.org, and include numerous research references and facts supporting that position. 'CASOMB has … repeatedly stated that the promulgation of conditions which actually create homelessness and transience among registered sex offenders while producing no discernible benefit to community safety is counterproductive and continues to be the single most problematic aspect of sex offender management policy in California. CASOMB continues to recommend the elimination of one-size-fits-all restrictions on where registered sex offenders may live.' (www.CASOMB.org Year End Report, February 2015)

"It is worth noting that none of the statements and arguments made by proponents and supporters of this Bill and none of the Analysis provided by the Assembly Committee on Local Government have made any reference to these highly credible authorities."

"PART THREE: ASSUMPTIONS HELD BY PROPONENTS OF AB 201

"The push to pass AB 201 and there by empower local jurisdictions to create their own versions of residence restrictions and exclusion zones appears to be grounded on the acceptance by proponents of a large number of assumptions which are simply not true.

"ASSUMPTION 1. The most basic assumption which appears to be accepted by the proponents of this Bill is that Residence Restrictions and Exclusion Zones are actually effective in preventing the commission of new sex offenses by previously identified (PC 290 Registrant) individuals. See the Author’s statement provided in PART ONE above. As stated previously, this assumption is not true. These types of policies simply do not accomplish the purposes for which they have been enacted.

"ASSUMPTION 2. All convicted sex offenders are equally likely to reoffend and so it is effective to develop “one-size-first-all policies. This assumption is false. There is a wide range of re-offense risk among sex offenders. For this reason, California has put a great deal of thought and effort into developing systems to evaluate the risk level for each PC 290 Registrant and to following the widely accepted “Risk Principle,” which urges that more effort be put into the management of higher risk offenders and less into those whose risk to reoffend is lower. Risk levels are determined through a system developed by the legislatively-created State Authorized Risk Assessment Tools for Sex Offenders (www.SARATSO.org) committee. The SARATSO system is being effectively used throughout the state and the various management interventions are calibrated to take that risk into account. Opening the door to “blanket” one-size-fits-all policies would move the state back in the opposite direction and would ignore California’s thoughtfully developed risk-based approach.

"ASSUMPTION 3. Most convicted sex offenders will reoffend and extremely robust controls and restrictions are needed to stop them. This assumption is not supported by the research. Measuring and accurately stating recidivism rates is very complex. However, all of the various published studies indicate that the overall rate is considerably lower than is commonly believed. The largest single study of sex offender recidivism conducted to date found a sexual recidivism rate of 5.3 percent for the entire sample of sex offenders based on an arrest during the 3-year follow-up period.

"Research conducted in California by one of the most highly respected researchers in the world has found that the recidivism rates for sex offenders who have been identified by SARATSO risk assessment instruments (cf. www.SARATSO.org ) as 'Low to Medium risk' fall in the range of 1 to 2 percent.

"ASSUMPTION 4. Every sex offender will continue to be a significant risk to reoffend for the remainder of his or her life. The research provides ample evidence that this assumption is not true. The longer a sex offender remains offense-free in the community, the lower the risk that that individual will reoffend in the future. Because California continues to be one of the four states requiring universal lifetime registration, many, many thousands of California’s approximately 83,000 registered sex offenders living in the state’s communities have reached the point where, according to the risk assessment research, their risk of reoffending is negligible. Yet apparently they would all fall under the scope of this Bill and, with no scientifically defensible justification, would be subject to residence restrictions and exclusion zones.

"ASSUMPTION 5. Previously convicted sex offenders account for a substantial proportion of the new sex offenses committed. This assumption is false. The research has found that only about 5% of new sex offenses were committed by individuals previously convicted of a sex offense. Conversely, almost all new sex offenses are committed by individuals who have never been previously convicted of a sex offense. Efforts to prevent new sexual victimizations by focusing on PC 290 Registrants are misplaced and a waste of resources. Instead, broader prevention strategies should be given increased attention and resources.

"ASSUMPTION 6. Sex offenders are all alike in terms of their potential danger to offend against a juvenile victim and so all need the same restrictions with respect to limiting their access to children. This assumption is obviously not true. Many sex offenses involve victimization of adult women or men. When it comes to offenders with no history of victimizing children, community safety is not improved by regulating their access to places where children gather.

"ASSUMPTION 7. Sex offenders prowl California communities looking for children to molest. This assumption is discredited by the research. Although “stranger danger” perspective paints compelling images of sex offenders lurking in the bushes to snatch and molest a child, the reality is that sex offenses perpetrated against strangers account for only about 5% of total offenses. In the vast majority of cases, the offender is already known to the victim through some existing relationship, including being a member of the same family. Formulating policies based on the belief that “stranger danger” represents much of the problem needing attention diverts attention from the other types of prevention efforts are needed to attempt to reduce the 95% of actual victimization events.

"ASSUMPTION 8. Sex offenders find their victims and commit their crimes in or around schools or parks or other places where children gather. This assumption is not correct. Research on these questions discloses that such scenarios are by far the exception. Most contact with child victims and most actual offenses occur in the home of the victim or the offender. Of the very small number of sex offenses actually committed in or around a school, the majority were committed by teachers or staff who had never been convicted of a prior sex offense. Similarly, very few victims were encountered or offenses committed occurred in parks or similar locations. Where do sex offenders find their victims and commit their offenses? Not in the places from which they would be restricted by this Bill.

"(Note that the research upon which each of the above statements is based can be provided upon request.)

"PART FOUR: CONSEQUENCES – INTENDED AND UNINTENDED

"It is likely that many of California’s 540 local jurisdictions (58 Counties and 482 Municipalities) will enact some form of residence restriction and exclusion zone regulations. It is impossible to predict how many will actually do so. Prior to the court ruling determining that they were in violation of the California constitution, many local ordinances had been put in place. Numbers cited suggest that 70 Municipalities and 5 Counties had restrictions in place. Others were presumably in the process of being enacted.

"Because there is no system in place or anticipated to keep track of all of the possible local ordinances and regulations, it will be very difficult for anyone governed by or involved with this local-jurisdiction system to actually know what the rules are. Before the court decision prohibiting such local regulations was issued, CASOMB staff had made attempts to track the emergence of new local regulations. Staff found the effort frustrating, challenging, and extremely time-consuming and eventually were unable to continue the monitoring. This Bill makes no provision for any such tracking as a new set of regulations begin to roll out across the state.

"The Bill also makes no provision for the notification of registered individuals who might be directly impacted by new local residence restrictions or exclusion zones. If the Bill and the new local ordinances apply to all registrants, then as many as 83,000 individuals could be impacted. Since it is likely that not all local jurisdictions will create local regulations, the number would probably not be that high, but could easily be tens of thousands.

"Because the introduction of regulations purporting to prevent sexual reoffending is often – in the view of some observers – driven more by political considerations than by well-informed policy considerations, it appears quite possible that local jurisdictions, especially those in certain parts of the state where many smaller jurisdictions are geographically contiguous, will vie with each other to avoid being seen as a 'safe-haven' for sex offenders and will escalate efforts to match or surpass the restrictions imposed by their neighboring communities. A notorious example of this mentality on the national stage is that politicians in Georgia openly stated that their intent was to put in place stringent regulations which would drive sex offenders out of the state. Such a stance reflects an attitude of “we don’t really care where they go, just get them out of here.”

"ANTICIPATED DESIRED CONSEQUENCES

"Although, based on the above information, it seems highly unlikely, it is possible that a very small number of offenses might be prevented by the actions of local jurisdictions made possible by this Bill.

"ANTICIPATED UNDESIRED CONSEQUENCES

"It appears likely that local restrictions will apply to ALL PC 290 registrants. Prop 83 (Jessica’s Law) was completely unclear and so the RR was never applied to all registrants. The state’s previous experience with residence restrictions is based upon their application primarily to those on state parole – approximately 6,000 individuals. By contrast, ordinances developed under AB 201 could impact as many as 83,000 registrants living in California communities. The potential for dislocation, loss of previously stable living arrangements, fragmentation of families, loss of jobs due to exclusion zones and other foreseeable consequences would be massive.

"The consequences of efforts to apply residence restrictions and exclusion zones to all of the state’s Registrants who live in jurisdictions which would implement AB 201 must be considered. No one appears to have made any estimate regarding the number of citizens who would be forced by residence restrictions to move, including those who own their own homes. There is no estimate about the amount of homelessness and transience which would result. Projections based on the experience of CDCR in enforcing residence restrictions on parolees suggest that those numbers would be considerable. There has been no apparent effort to estimate the number of jobs which would be lost because the place where a Registrant works – and may have worked for many years – happens to be in an area declared an exclusion zone by the local jurisdiction.

"Historically and currently, CDCR Parole Agents have been depending on Global Positioning Monitoring (GPS Ankle Bracelets) to monitor exclusion zones. (Such case-specific exclusion zones can be and frequently are imposed by parole authorities in response to individualized needs and concerns.) The use of this costly equipment and the supporting tracking systems is now limited to parolees and some county probationers. The cost of requiring such tracking for all PC 290 registrants would be absolutely prohibitive. Yet without such a system, it would appear impossible to do any type of consistent enforcement of exclusion zone restrictions. Only if local law enforcement should happen to find a registrant in an exclusion zone would the presumed effectiveness of creating such zones have any chance of being realized.

"PART FIVE: ADDITIONAL CONSIDERATIONS

"Experts advise that case-by-case decisions about where sex offenders may live or be present are far preferable to blanket, one-size-fits-all policies. Fortunately, California’s current system allows such case-based determinations to be made for individual sex offenders under direct criminal justice system supervision. The time when convicted sex offenders are most likely to commit a new offense occurs during the initial period after release. Over time the risk diminishes. It is during this initial period that authorities have the greatest control over these individuals since they are supervised under the authority of the California Department of Corrections and Rehabilitation’s Division of Parole Operations (CDCR-DAPO) or under one of the state’s 58 County Adult Probation Departments. These supervising agencies can use case information to make individually tailored requirements regarding where specific offenders may live or may be present during their period of supervision. These periods of parole or probation vary in length. CDCR parolees are under supervision for periods of 5, 10, or 20 years or, in certain cases, for life. Those on county probation are usually supervised for periods of 3 or 5 years. This system of sex offender management is already in place in California. The Legislature has included in the Penal Code explicit requirements that sex offenders under supervision be engaged in a certified specialized treatment program and that supervisors and treatment providers hold regular meetings and communicate regularly in accord with the 'Containment Model.' This sex offender management approach, including individualized supervision guided by the “Risk Principle” paired with a specialized rehabilitative treatment program, is viewed by experts as the most effective approach to reducing sex offender recidivism.

"Although it extremely difficult to estimate the costs involved with implementing, enforcing, and defending the local ordinances which might be created under this Bill, it is clear that they could be substantial. It may be true that there would be no costs to the state itself. There would definitely be costs to local government jurisdictions. The costs of filing, pursuing and responding to anticipated lawsuits would be considerable. It is certain that there would be fiscal impacts on individual citizens, including potentially tens of thousands of registrants who could lose their housing and, in some cases, their jobs. Landlords would lose income as tenants were forced to relocate. Whether it would even be possible to estimate all of the costs is questionable. To pass such legislation without even attempting to do so seems irresponsible.

"Given the history of residence restrictions in California, the proliferation of previous court challenges, and the decision returned by the California Supreme Court in the Taylor case, it seems predictable that there will be numerous court cases subsequent to the implementation of this Bill. The process of bringing lawsuits is, of course, a very costly one and much of the cost would be incurred by local jurisdictions defending their ordinances. Ultimately, such a process is also likely to take years.

"It seems improbable that decision makers in the state’s 540 local jurisdictions would have the internal expertise or access to such expertise to support the crafting of ordinances which would really have some chance of improving sex offender management and reducing recidivism. Based upon past history, it seems more likely that the local decisions would be influenced by “common sense” and other considerations which would not be helpful in drafting solid policies. The history of the emergence of sex offender management policies throughout the United States is filled with experiences of jurisdictions creating policies which are not grounded in good science and verifiable knowledge.

"FINAL NOTE: As CASOMB has stated repeatedly in its Reports and other documents, it is unfortunate that so much energy goes into introducing and even implementing policies and practices which research says do not work rather than into actualizing the many possible policies and practices which could actually reduce sexual victimization in California."

• 1. According to the American Civil Liberties Union, "The ACLU of California regrets to inform you that we must oppose AB 201, which would allow local jurisdictions to enact more restrictive residency limitations and limitations on being present in specific locations than currently provided under state law for people registered as sex offenders. AB 201 will lead to the unconstitutional deprivation of individuals’ basic rights and liberty, thereby exposing local jurisdictions to costly litigation. It will also increase the incidence of homelessness among sex offenders, making it more difficult to manage the sex offender population and putting public safety at risk.

"Just one month ago, the California Supreme Court invalidated the statewide residency requirements for sex offenders as applied to parolees living in San Diego County. (In re Taylor, March 2, 2015, S206143.) In its analysis, the Supreme Court noted that

"parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of the core values of unqualified liberty even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  (Id. st slip op p. 27.)

"The court found that, as applied to paroled sex offenders in San Diego County, the statewide residency restrictions effectively prevented most individuals from finding housing. Of the sex offender parolees in San Diego County, 34% were homeless. Of those with a home, nearly half were under a court order preventing the residency requirements from being applied to them during the pendency of the litigation.

"Further, the trial court and the Supreme Court quoted the findings of the California Department of Corrections and Rehabilitations’ Sex Offender Supervision and GPS Monitoring Task Force (Task Force), as follows:

"The Task Force studied the increased rate of homelessness among paroled sex offenders following the enactment of section 3003.5(b)’s residency restrictions and reported that between 2007 and 2010, the number of homeless sex offender parolees statewide reflected an alarming increase of 'approximately 24 times.' (Task Force, Rep., supra, at pp. 4, 17.) A specific finding was made that “[h]omeless sex offenders put the public at risk. These offenders are unstable and more difficult to supervise for a myriad of reasons.” (Id. at slip op p. 17.)

"The Supreme Court ultimately held that:

"Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.  (Id. at slip op pp. 3-4.)

"AB 201 would empower local jurisdictions to enact even more restrictive residency requirements and would permit local ordinances that would apply to registered sex offenders who are no longer on parole, as well as those on parole. As the Supreme Court noted, even sex offenders on parole retain basic rights and liberty interests under the state and federal constitution. The rights of individual who are no longer on parole are even stronger.

"AB 201 essentially invites local jurisdictions to pass residency restrictions that would have the effect of preventing registered sex offenders from finding a place to live within the jurisdiction. This will no doubt be an appealing invitation to many communities. It is, however, an invitation to violate the constitution. Local ordinances that restrict residency requirements beyond existing state law will lead to costly litigation.

"Because registrants are such a reviled group, there is a significant danger that local governments will act based on fear and passion rather than evidence and logic and will enact measures that harm, rather than help, public safety. In its ruling, the Supreme Court emphasized the public safety problems caused by severe residency restrictions, such as an increase in homelessness that makes it more difficult for the police to protect the public from those registrants who do pose a danger to the public.

"Moreover, ordinances that prohibit registered sex offenders from being 'present' in specific location pose major constitutional issues. These ordinances frequently prohibit people from being “present” in parks and libraries, and from standing on public sidewalks. These areas are quintessential public forums, where the public has a long recognized and constitutionally protected right to engage in First Amendment activity. Given the complexity of the legal issues involved, it is highly likely that local communities will continue to enact ordinances that violate multiple constitutional rights, leading to costly litigation."

1. Related Legislation: 
   1. AB 262 (Lackey) places additional residency restrictions on Sexually Violent Predators conditionally released for community outpatient treatment.  AB 262 failed passage in the Assembly Public Safety Committee.
   2. SB 267 (Leyva), provides that a local agency is not preempted by state law from enacting and enforcing an ordinance that restricts a person required to register as a sex offender for an offense committed against a minor from being present at schools, parks, day care centers, or other locations where children regularly gather within the local agency’s jurisdiction.  SB 267 also allows a local agency to adopt ordinances, rules, or regulations that are more restrictive than state law relating to a person’s ability to be present at schools, parks, day care centers, or other locations where children regularly gather within the local agency’s jurisdiction when the person is required to register as a sex offender for an offense committed against a minor. SB 267 has yet to be heard in the Senate Public Safety Committee.
2. Prior Legislation:  AB 655 (Quirk-Silva), of 2013-14 Legislative Session, would provide that the Legislature does not preempt local agencies from enacting ordinances that restrict where persons required to register as sex offenders may go within a municipality.  AB 655 was held in the Senate Rules Committee.

REGISTERED SUPPORT / OPPOSITION

Support

Association of California Cities – Orange County

City of Aliso Viejo

City of Carson

City of Irvine

City of Laguna Niguel

City of San Juan Capistrano

Crime Victims United of California

Fraternal Order of Police

League of California Cities

Long Beach Police Officers Association

Los Angeles County Professional Peace Officers Association

Orange County Board of Supervisors

Orange County District Attorney's Office

Orange County Sheriff's Department

Sacramento County Deputy Sheriffs' Association

Santa Ana Police Officers Association

Opposition

Alameda County Board of Supervisors

American Civil Liberties Union

California Attorneys for Criminal Justice

California Civil Liberties Advocacy

California Public Defenders Association

California Reform Sex Offender Laws

California Sex Offender Management Board

Housing California

San Diego County Apartment Association

21 private individuals

Analysis Prepared by:

Gabriel Caswell / PUB. S. / (916) 319-3744

1. [1] http://www.cce.csus.edu/portal/admin/handouts/CASOMB_End_of_Year_Report_to_Legislature_2014.pdf ↑

2. [2] SOMAPI (http://smart.gov/SOMAPI/index.html.) ↑

Date of Hearing: April 29, 2015

ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT

Maienschein, Chair

ABPCA Bill Id:AB 201

Author:(Brough) – As Amended Ver:April 21, 2015

SUBJECT:

Registered sex offenders: local ordinances.

SUMMARY:

Allows cities and counties to adopt ordinances, rules or regulations that are more restrictive than state law regarding the ability of people who are required to register as sex offenders to reside or be present at certain locations within the city or county. Specifically, this bill:

1. Provides that a local agency is not preempted by state law from enacting and enforcing an ordinance that restricts a person required to register as a sex offender, pursuant to existing law, from residing or being present at certain locations within the local agency’s jurisdiction.

2. Allows a local agency to adopt ordinances, rules, or regulations that are more restrictive than state law relating to the ability of a person required to register as a sex offender to reside or be present at certain locations within the local agency’s jurisdiction.

3. Defines, for the purposes of this bill, "local agency" to mean a city, county, or city and county.

EXISTING LAW:

1. Requires, pursuant to the Sex Offender Registration Act (Act), persons convicted of specified sex offenses to register with local authorities for the rest of their lives while residing, located, attending school, or working in California.

2. Imposes residency restrictions for paroled sex offenders who must register, pursuant to the Act, including a prohibition against residing within 2,000 feet of any public or private school, or park where children regularly gather (Proposition 83, or Jessica's Law).

3. Provides that nothing in the above provisions prohibits municipal jurisdictions from enacting local ordinances that further restrict the residency of sex offenders who are required to register.

FISCAL EFFECT:

None

COMMENTS:

1. Bill Summary. This bill allows cities and counties to adopt ordinances, rules or regulations that are more restrictive than state law relating to the ability of people who are required to register as sex offenders to reside or be present at certain locations within the city or county. The bill also specifies that a local agency is not preempted by state law from doing so. This bill is sponsored by Orange County District Attorney Tony Rackauckas.

2. Author's Statement. According to the author, "The purpose of AB 201 is to authorize local governments to enact ordinances relating to convicted sex offenders. Cities and counties are within their rights to pass laws that benefit their communities. Local governments have the best ability to serve their unique populations and geographical needs. Recently this authority was invalidated when an Orange County court ruled that state law excluded local municipalities from making laws relating to sex offenders. In resolution, the disposition
   of the case stated, 'If the Legislature wishes to do so, it can amend Section 290.03 to permit local ordinances.'

"Prior to this ruling many cities and counties had taken action by enacting ordinances that would protect their residents. These cities and counties are now faced with the harrowing choice of repealing local ordinances, compromising the safety of their communities, or face the excessive cost of litigation. AB 201 restores a jurisdiction issue that has left local governments unable to protect their communities in an appropriate way. AB 201 will restore authority to local agencies and authorize the ability to implement their own ordinances to protect their friends and neighbors from becoming victims of convicted sexual predators."

3. Background. The Act requires people who have been convicted of specified sex crimes to register with local law enforcement authorities for the rest of their lives and to update their registrations, pursuant to specified requirements.

Proposition 83, or Jessica's Law, approved by voters in 2006, amended the Act with numerous provisions further governing sex offenders, including restrictions on where sex offenders can live. Specifically, Proposition 83:

1. Prohibited any person who is required to register, pursuant to the Act, from residing within 2,000 feet of any public or private school, or park where children regularly gather; and,

2. Allowed municipal jurisdictions to enact local ordinances that further restrict the residency of registered sex offenders.

Pursuant to these provisions, many local governments adopted more restrictive local ordinances that restricted registered sex offenders from residing within distances greater than 2,000 feet from schools or parks.

4. Impact of Residency Restrictions. The Office of the Inspector General (OIG) in October
   of 2014 conducted a review and assessment of sex offenders on parole and the impact of residency restrictions on this population. The OIG Report concluded, "The residency restrictions imposed by Jessica's Law, which prohibit parole sex offenders from living within 2,000 feet of a school or park where children congregate, contribute to homelessness among parole sex offenders. According to the California Sex Offender Management Board, there were only 88 sex offenders on parole registered as transient when Proposition 83 was passed in November 2006. As of June 2014, there were 1,556 sex offender parolees identified as transient by the California Department of Corrections and Rehabilitation (CDCR). While this represents 3.38 percent of all parolees, the incidence of homelessness is 19.95 percent (approximately one in five) among the subset of parolees who are sex offenders."

"Transient sex offenders are more 'labor intensive' than are parolees who have a permanent residence. The OIG interviewed parole administrators in 12 parole districts, who said that because transient sex offenders are moving frequently, monitoring their movement is time consuming. Transient sex offenders must register with law enforcement monthly (as opposed to yearly for those with permanent residences), thus requiring more frequent registration compliance tracking by parole agents. Adding further to the workload associated with monitoring transients, agents are required to conduct weekly face-to-face contacts with them."

"While Jessica's Law leaves open the door for local governments to impose their own restrictions on paroled sex offenders, parolees are finding relief from residency restrictions in the courts."

5. Supreme Court Ruling on Residency Restrictions. In March of this year, the Supreme Court unanimously ruled that the provisions in state law prohibiting sex offenders from living within 2,000 feet of schools or parks, as applied in San Diego County, are unconstitutional and bear "no rational relationship to advancing the state's legitimate goal
   of protecting children from sexual predators" (In Re Taylor [2015] 60 Cal. 4th 1019). The Supreme Court said sex offenders can still be banned from living near parks and schools, but such a determination must be made on a case-by-case basis.

As a result, several cities and counties have repealed – or are in the process of repealing – local ordinances with blanket residency bans. In addition, CDCR, on the advice of the Attorney General, issued new regulations requiring parole agents to individually determine residency restrictions for each of the 6,000 offenders they monitor.

6. State Preemption/Fully Occupying the Field. Article XI, Section 7 of the California Constitution allows cities and counties to make and enforce within their limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws. However, courts have found that if otherwise valid local legislation conflicts with state law,
   it is preempted by such law and is void. A conflict exists if the local legislation “duplicates, contradicts or enters an area fully occupied by general law, either expressly or by legislative implication.”

7. Presence Restrictions. Existing state law is silent regarding where registered sex offenders are allowed to be present. Numerous local jurisdictions enacted a variety of ordinances establishing “child safety zones” to restrict registered sex offenders from being present at parks, libraries, swimming pools, arcades, piers, and other similar locations where children regularly gather. Many of these ordinances were the subject of litigation, and local governments across the state repealed some or all of their ordinances as a result.

In addition, last year, an appellate court opinion in People v. Nguyen (222 Cal. App. 4th 1168, 2014) found that state law’s comprehensive scheme regulating the daily life of sex offenders fully occupies the field, therefore preempting a City of Irvine ordinance restricting sex offenders from visiting city parks and recreational facilities. The Supreme Court declined a petition to review this decision.

8. Policy Considerations. Given the recent court rulings in this arena, the Committee may wish to consider whether the provisions of this bill will have the perverse effect of the author's stated intent, by placing yet more language in statute that could give local governments the impression they will be protected from litigation when the courts have already found that residency restrictions of 2,000 feet are unconstitutional and that presence restrictions are preempted by state law. The League of California Cities, which submitted a letter of "Support in Concept" for this bill, notes, "We must acknowledge that this measure will require significant amendment, in part in light of In re: Taylor, the recent California Supreme Court decision striking down as unconstitutional the blanket application of 2,000-foot residency restrictions against sex offenders paroled into San Diego County."

9. Related Legislation. AB 262 (Lackey) places additional residency restrictions on Sexually Violent Predators conditionally released for community outpatient treatment. AB 262 failed passage in the Assembly Public Safety Committee on a 2-5 vote on April 21, 2015.

SB 267 (Leyva), pending in the Senate Public Safety Committee, provides that a local agency is not preempted by state law from enacting and enforcing an ordinance that restricts a person required to register as a sex offender for an offense committed against a minor from being present at schools, parks, day care centers, or other locations where children regularly gather within the local agency’s jurisdiction. SB 267 also allows a local agency to adopt ordinances, rules, or regulations that are more restrictive than state law relating to a person’s ability to be present at schools, parks, day care centers, or other locations where children regularly gather within the local agency’s jurisdiction when the person is required to register as a sex offender for an offense committed against a minor.

10. Previous Legislation. AB 655 (Quirk-Silva) of 2014 provided that the Legislature does not preempt local agencies from enacting ordinances that restrict where persons required to register as sex offenders may go within a municipality. AB 655 was held in the Senate Rules Committee.

SB 1128 (Alquist, et al.), Chapter 337, Statutes of 2006, enacted the Sex Offender Punishment, Control, and Containment Act of 2006, which made numerous changes to the body of law relating to sex offenders and made specified legislative findings and declarations concerning sex offenders.

11. Arguments in Support. The Association of California Cities – Orange County, in support, states, "Empowering local agencies and authorities to best serve their populations is good public policy, and will be the result of this bill. When it comes to monitoring sex offenders, no one better knows a particular jurisdiction's vulnerabilities and issue areas better than the local authorities that serve that community. Thus, it is imperative that the State does not obstruct local municipalities from taking actions that affect sex offenders in their districts in efforts to protect their children, young adults and community members.

The State cannot produce a 'one-size-fits-all' approach to sex offender ordinances; seventy cities and five counties have attempted to enact ordinances within their jurisdictions, this bill clarifies that the State does not intend to obstruct local municipalities from taking actions that affect sex offenders in their regions. Focusing on the return of power to local governments and allowing them to pass their own ordinances is crucial in providing public safety as a core function of government."

12. Arguments in Opposition. The Alameda County Board of Supervisors, in opposition, states, "Sex offender registration is an area that the state, not local agencies, has traditionally regulated. Legislative declarations and findings expressly create a 'standardized, statewide system' and a 'comprehensive system of risk assessment, supervision, and monitoring' of registered sex offenders.

"Allowing local municipalities to create their own ordinances restricting the 75,000 registered sex offenders in California from being present in certain locations in their jurisdiction would create an inconsistent patchwork of off-limits areas throughout the state that would be difficult to navigate and comprehend. Moreover, there is no evidence that granting such far reaching power to local municipalities would decrease the number of sex offenders or otherwise enhance public safety."

13. Double-Referral. This bill is double-referred to the Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Orange County District Attorney Tony Rackauckas [SPONSOR]

Association of California Cities – Orange County

California Fraternal Order of Police

California Police Chiefs Association

City of Aliso Viejo

City of Carson

City of Irvine

City of Laguna Niguel

Crime Victims United of California

League of California Cities (In Concept)

Long Beach Police Officers Association

Los Angeles County Professional Peace Officers Association

Orange County Board of Supervisors

Orange County Sheriff-Coroner Sandra Hutchens

Sacramento County Deputy Sheriff's Association

Santa Ana Police Officers Association

Opposition

Alameda County Board of Supervisors

American Civil Liberties Union of California

California Reform Sex Offender Laws

Citizens for Criminal Justice Reform

Housing California

Legal Services for Prisoners with Children

Individual letters (9)

Analysis Prepared by:

Angela Mapp/L. GOV./(916) 319-3958