Thursday, November 16, 2006

CA's Prop 83 is not retroactive

California makes the right call and avoids a whole lot of trouble:

Law on sex offenders narrowed

In response to a suit challenging residency limits, Atty. Gen. Bill Lockyer says the measure will not be enforced retroactively.


SACRAMENTO — A ballot measure restricting where sex offenders may live in California does not apply to thousands of ex-convicts who have served their prison time and are off parole, government lawyers defending the initiative in court said Wednesday.

The declaration, made in a legal filing, means a key provision of the measure that passed overwhelmingly in the Nov. 7 election will not affect many of the 75,000 former sex offenders living throughout the state.

It also means the first legal battle over Proposition 83 is essentially over before it began. Lawyers for a sex offender challenging the initiative's residency restrictions near schools and parks said they probably would dismiss their lawsuit soon.

"It appears to us that our client and thousands of other people who thought they faced banishment can now breathe easier," said attorney Dennis Riordan, who represents the Bay Area man who filed the suit.

But Riordan cautioned that he would drop the legal challenge — which has blocked enforcement of the residency ban — only after obtaining a binding agreement signed by Atty. Gen. Bill Lockyer and approved by a judge.

Passed by 70% of voters, Proposition 83 authorized a sweeping crackdown on sex offenders, giving California what experts called the toughest such law in the nation. As well as lengthening prison and parole times for repeat and violent offenders, the measure requires registered sex offenders to wear an electronic tracking device for life.

The most controversial provision bans offenders from living within 2,000 feet of a school or park. Shortly after the election, the residency rule sparked a lawsuit from the Bay Area offender, identified as "John Doe" to protect his safety.

The suit said the initiative was unconstitutional because it slapped a new penalty on ex-convicts years after they had already been punished.

Convicted of a felony 15 years ago, the man had served his sentence, completed treatment and has led "a productive and law-abiding life" ever since, his lawsuit said. With the passage of Proposition 83, he "has effectively been banished from his community" as well as from residential areas in virtually every city in California, the suit said.

U.S. District Judge Susan Illston, finding a "substantial likelihood" the plaintiff would prove his case, blocked enforcement of the residency limit. That prompted Wednesday's response from the attorney general.

In the court papers, Lockyer says "John Doe" does not have legal standing to sue because Proposition 83 is meant to apply prospectively, not to former offenders. To ensure the law applied retroactively, its authors would have had to expressly state — or make unambiguously clear — such an intent, which they did not, he said.

In addition, Lockyer noted, the initiative's sponsor, state Sen. George Runner (R-Lancaster) has repeatedly said that he never intended to uproot registered sex offenders already settled in society.

"We never planned for this to be retroactive," Dave Gilliard, campaign strategist for Proposition 83, said Wednesday.

Assemblyman Mark Leno (D-San Francisco), one of the few lawmakers who took a public stand against the initiative, said that statement contradicted the impression left by some of the measure's ballot materials.

Leno said some arguments presented in favor of Proposition 83 clearly "talk about the tens of thousands of sex offenders living among us, saying they need to be banished and that they are so dangerous our children should not have to pass their homes on the way to school."

"So now they're saying it's only the sex offenders released in the future we have to worry about, not those among us?" Leno said. "If I were a voter who supported this, I'd be angry and confused."

Although Lockyer's declaration that the initiative does not apply retroactively will probably make the lawsuit moot, the attorney general did address the constitutional challenge it presented.

The residency ban does not constitute a new punishment, Lockyer said, but is instead a housing regulation that "strengthens community safeguards against potential future acts of child molestation."

Some sex offenders Wednesday expressed relief that they apparently would not be covered by the initiative.

Richard Adamson, 50, of Visalia said the stigma of his offense left him unemployed and unable to find housing for eight months after his release from prison. He now lives in a small apartment within 2,000 feet of a neighborhood park. Six other sex offenders live in the same complex.

"I looked at the map, and all but about 5% of Visalia would be off limits to me," said Adamson, who now works as a bartender. He is a former teacher convicted of lewd and lascivious behavior with a minor. "I have felt a lot of anxiety, waiting for that knock on the door telling me to pack up and move."

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