California Attorney General Kamala Harris is refusing to release an unpublished opinion that is being cited by the California Department of Corrections and Rehabilitation for changing sex offender release policies.
A recent state Supreme Court ruling that struck down a blanket ban on registered sex offenders living near schools or parks in San Diego County has muddied the issue of residency restrictions for prison officials and civic leaders.
In early March, the high court ruled In re Taylor that blanket enforcement of Jessica’s Law’s mandatory distance requirements impeded the constitutional rights of parolees in San Diego County. By March 25, the California Department of Corrections issued a memo directing parole officers to discontinue issuing blanket residency restrictions for parolees throughout the entire state of California.
“The Court’s ruling is specific to San Diego County, its rationale isn’t,” CDCR spokesman Luis Patino said in a statement. “The State Attorney General’s Office has advised us that applying the blanket mandatory residency restrictions would be found to be unconstitutional in every county. We believe the changes will reduce the alarming number of homeless sex-offender parolees, reduce their risk of reoffending, and increase community safety.”
High-risk sex offenders and those whose sex offenses involved minors would still be subject to residency restrictions. But rather than using a one-size-fits all approach, the utility of keeping offenders from living near children would be assessed on a case-by-case basis, examining the nature of the offense, the offender’s criminal history, and risk of future criminality.
After learning of the policy change, state Sen. Sharon Runner, co-author of Jessica’s Law – passed overwhelmingly by voters in 2006 – girded for battle.
“I was alarmed by CDCR’s sweeping decision to stop enforcing the people’s will as expressed in Jessica’s Law,” Runner said in a statement. The senator said she is working on building a coalition of support for a legislative remedy that keeps the integrity of Jessica’s Law intact, and working on legislation that will clarify any confusion caused by the Supreme Court decision.
Runner also demanded the release of an unpublished opinion from Attorney General Kamala Harris that CDCR used to justify the policy change, saying “The public, the press and the Legislature have a right to a transparent explanation of the Department’s position.”
The attorney general’s office, citing attorney-client privilege, referred requests for the text of the opinion to CDCR, but CDCR also refused to release any documents. “The letter was legal advice from counsel to CDCR.Â It is covered under attorney-client privilege and will not be released,” Patino said.
Former Attorney General John Van de Kamp said that he didn’t understand why CDCR had made the unusual decision to keep the decision unpublished. “I don’t know why CDCR is hiding behind [attorney-client privilege],” Van de Kamp said. “From a policy standpoint, I don’t see why CDCR wouldn’t waive the privilege. It seems to me whatever advice they got would flesh out the reasons they reached the decision they did.”
But the policy shift is a logical and unsurprising move given the Taylor verdict, said Laurie Levenson, a former prosecutor and a professor at Loyola Law School. “CDCR is trying to be responsive to a Supreme Court decision. If it’s going to be imminent in the large communities, in the major urban communities, then it’s better for CDCR to scrap it and move forward.”
Attorney Janice M. Bellucci, President of California Reform Sex Offender Laws, anticipates that the only way to settle the question of whether Jessica’s Law residency restrictions for parolees will be decisively abandoned in all California counties is through more lawsuits.
Bellucci also points out that the Supreme Court’s decision only addressed the roughly 6,000 sex offenders who are actively on parole. That leaves room for a lot of confusion about the residency restrictions for the close to 94,000 other sex offenders on California’s registry, Bellucci says. Add to that laws created by counties and cities, and “they have three layers of residency restrictions to worry about.”
Bellucci cites an example of the confusion left in the wake of the Taylor decision: While the CDCR has decided not to enforce residency restrictions for parolees, the city of Murietta has decided it will.
Despite the CDCR’s policy change, Murietta cited a man who was on parole and living in his mother’s residence for noncompliance with city laws – although he was in compliance with state-level enforcement.
According to Bellucci, since the Supreme Court ruling, Riverside County and the city of Downey have moved toward repealing their existing residency restrictions.
“They have threatened that if he doesn’t move by May 1, they are going to charge him with a misdemeanor. That would be a parole violation, and they would put him back in jail.”