The Tiered Registry Law, passed in 2017, became effective this month more than three years after it became law. During that long period of time, more than 100,000 people convicted of a sex offense closely watched as the California state government slowly released information regarding the law’s implementation.
One positive step in the implementation process was the public release of draft forms that registrants will be required to use when petitioning for removal from the registry. This step included both the opportunity for the public to comment on the draft forms as well as publication of revised forms which included many of the changes recommended by ACSOL and others. The final petition forms, however, have not yet been made available to the public.
Another positive step is the publication of answers to Frequently Asked Questions by the California Department of Justice (CA DOJ). This document has been updated annually, and does answer some important questions. For example, in November 2020, the CA DOJ revealed that a registrant’s tier designation will not be posted on the Megan’s Law Website. However, despite its length (eight pages), the CA DOJ’s FAQ document fails to answer several questions addressed later in this column.
Unfortunately, the number of positive steps in the Tiered Registry’s implementation process are limited to the few steps described above. And they are outweighed both in number and in scope by both the language of the law, as well as the discretionary decisions taken by CA DOJ, the state agency tasked with its implementation.
Perhaps most significantly, the current language of the Tiered Registry Law violates the equal protection clause of the state constitution because it assigns less severe offenses to Tier 3 while it assigns more severe offenses to a lower tier. For example, individuals who committed the same acts with a victim 14 or 15 years old and convicted of Penal Code Section 288(c) are assigned to Tier 3 while individuals with a victim under 14 years old and convicted of Penal Code Section 288(a) are assigned to Tier 2. And individuals are assigned to Tier 3 after being convicted of the non-violent, non-contact offense of possession of unlawful images, the same tier as those convicted of violent contact offenses, such as forcible rape.
In addition, the CA DOJ has already stumbled during the first 30 days of its implementation of the Tiered Registry Law. First, the agency has issued tier assignment letters to a large number of individuals stating that they have not yet been assigned to a tier. One of those individuals, ACSOL Treasurer Frank Lindsay, was convicted of one offense more than 40 years and the agency has had more than three years to determine his tier. To make matters worse, the agency’s letter told Frank that he is not eligible to petition until he receives his tier assignment, which could take up to two more years. If Frank adheres to the agency’s limitation, he would not be able to petition for removal from the registry when he is otherwise eligible to do so in January 2022. ACSOL believes that California law allows individuals like Frank to petition despite being placed in a tier-to-be-determined category, and is making this case to the CA DOJ.
Second, the agency is failing to take notice of the changed status of some individuals convicted of a wobbler, that is, a felony that has been reduced to a misdemeanor. Examples of a wobbler can be found in some sections of sexual battery, Penal Code 243.4. The agency’s decision to do this is not supported by law which states that a felony reduced to a misdemeanor is a misdemeanor for all purposes unless another law creates an exception to that law which the Tiered Registry Law does not. The result of this mistake is that individuals whose felonies have been reduced to a misdemeanor are being assigned to Tier 3, which requires lifetime registration instead of Tier 1, which requires 10 years registration.
In addition to the situations described above, there is another situation affecting individuals convicted of a sex offense in California who now live in another state. Some, but not all of those states, only require individuals to register in their state if they are required to register in California. And yet the same individuals are not able to petition for removal in California because they do not live here. The result is that the individuals are required to register in their current state although they would be eligible to petition for removal from the California registry.
These are but a few of the flaws identified so far in both the Tiered Registry Law and its implementation. ACSOL is addressing these flaws first through formal communications with the CA DOJ, planning for a series of lawsuits and possible legislative solutions. ACSOL will report its progress regarding these plans on the ACSOL website in the future. Please stay tuned.
— by Janice Bellucci