Legal Alerts Mar 05, 2015

California Supreme Court Rules Residency Restrictions are Nonpunitive

Two Sex Offender Opinions in One Day Should Prompt Local Governments to Reevaluate Regulations

California Supreme Court Rules Residency Restrictions are Nonpunitive

A judge can require sex offender registration for a convicted criminal defendant — even if the jury did not find that the crimes were sexual in nature, the California Supreme Court held this week. Interestingly, the Court handed down this ruling on the same day as another, unrelated sex offender residency restriction opinion. Viewed together, the opinions include statements that could potentially create some confusion.

In People v. Mosley, the Court decided whether judicial discretion to require registration in cases that do not automatically require it as a matter of statutory law violates the Sixth Amendment right to a jury determination, beyond a reasonable doubt, of any fact that increases the penalty for a crime beyond the prescribed statutory minimum. California law has long required persons convicted of specified sex crimes to register as sex offenders as long as they live or work in the State. However, if the conviction is for an offense other than those automatically requiring registration, the court may nonetheless exercise its discretion to impose a registration requirement if it finds the offense was sexually motivated or compelled, and that registration is justified by the defendant’s risk of re-offense.

The Court of Appeal found that the residency restrictions in Jessica’s Law are punitive, that the initiative measure made those restrictions an integral part of all registrations, and that the lack of jury findings to support registration violated the constitutional rights of those convicted and subject to these restrictions. The Supreme Court disagreed, however.

The decision was released on Monday — the same day as In re Taylor, in which the justices overturned residency restrictions in San Diego County. In that case, the Court found that the residency restrictions, as enforced in San Diego County, did not bear a rational relationship to advancing the stated goal of the protecting children from sexual predators. The Taylor court held that the residency restrictions actually frustrated their stated purpose, making it harder to monitor, supervise and rehabilitate offenders. Yet in Mosley, the Court emphasized the “legitimate regulatory goal” of the restrictions —reducing the opportunity for persons convicted of sexually related crimes to reoffend in the future. The Mosley court determined that residency restrictions are not so clearly punitive in effect as to override their regulatory aim.

As a result of Taylor and Mosley, the law surrounding sex offender residency restrictions is now murkier than before. While residency restrictions are not per se unconstitutional, as Mosley reaffirms, they are now open to case-by-case challenges where defendants can argue residency restrictions as-applied to them violate the Constitution. These two cases indicate slow, faltering movement on the part of the Supreme Court in terms of how it views Jessica’s Law and the burden residency restrictions can place on parolees as they try to reintegrate into society. The current system remains in place, for the moment; yet Taylor indicates it may be wise for local governments to look closely at their current residency restrictions and reevaluate the practical effects they may have on sex offenders in these communities.

For more information on the opinion and its statewide implications, please contact the authors of this legal alert listed at right in the Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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