Feb. 2 2011 10:36 AM

Sex offenders press judge for relief from Jessica’s Law

Testimony that set the foundation for a challenge to Jessica’s Law’s residency restrictions was given in the most remote courtroom in the San Diego Central Courthouse.
Photo by Kelly Davis
In 1989, Mike pleaded guilty to misdemeanor sexual assault. It was a he said / she said case: His girlfriend at the time accused him of touching her breasts after she’d told him to stop. Though he disputed her version of events—and still does—he was told that the crime was so minor that the easiest thing would be to plead guilty. “And you’re out of here,” he was told.

“One 15-minute occasion 23 years ago with my girlfriend,” he said, standing in the hallway of San Diego’s Central Courthouse.

Two decades later, Mike was homeless and living in a van. Though his 1987 offense didn’t involve a child and he hasn’t committed a sexual offense since then, when he was released to parole for a 2006 theft conviction, he found himself subject Prop. 83, or Jessica’s Law, the 2006 ballot initiative that, among other things, bars parolees with a sex offense on their record from living within 2,000 feet of a school or park.

Mike was fitted with a GPS-equipped ankle bracelet and told he couldn’t return to his apartment with his wife and kids because it was too close to a school. Unwilling to uproot his family and unable to pay two rents, he bought a Chevy Astro and installed carpet and a flat-screen TV. He was allowed to spend two hours in the morning and two hours at night in the apartment—long enough to charge his GPS device. He couldn’t park his van in the apartment complex—or on any residential property—but he could park it on a public street or, with permission, in a private commercial lot, between the hours of 7 p.m. and 7 a.m.

“I can live in a vehicle near a park or school, but not in my home,” he testified to a judge last week.

Mike is one of four parolees who are petitioning the San Diego Superior Court for relief from Jessica’s Law’s residence restrictions, arguing that the law has forced them into homelessness. Indeed, according to the state attorney General’s office, the number of homeless registered sex offenders in California has skyrocketed since the law was enacted. Only 88 were homeless prior to the law. In August of last year, that number had grown to roughly 5,064—a 5,700-percent increase.

In hearings that began on Jan. 25 and were set to wrap up on Feb. 2, bleak individual stories emerged from petitioners’ testimony—one testified, for instance, that despite having full-blown AIDS and only $200 to his name, he was denied housing assistance by parole authorities; a woman barred from living with her sister got a bed at a homeless shelter but was then told it was too close to Petco Park. And there are commonalities— all four, for example, have struggled with drug addiction and found it more difficult to stay sober out on the street. Because of their criminal histories, they’re unemployed or underemployed, further limiting their housing options.

The petitioners are represented by county Deputy Public Defender Laura Arnold while two deputies from the state attorney General’s office defended the law. It was Arnold’s case to prove. The state put on only one witness to her 14 and offered little in the way of cross examination. The thrust of the state’s case focused on whether petitioners, some of whom had a history of homelessness, would have been living on the streets regardless of Jessica’s Law.

The hearings come one year after the California Supreme Court declined to rule on whether the residence restrictions are unconstitutional. Instead, judges asked local courts to determine whether the law, as applied, is vague and overly broad. The Constitution requires that parole conditions be narrowly tailored to a person’s most recent crime. Under Jessica’s Law, petitioners claim, they’re being subjected to rules based on crimes for which they already did their time. And while the law’s intent was to protect children, residency restrictions apply to parolees whose sexual offense didn’t involve a child. Lined up behind the four are at least 130 more petitioners in similar circumstances.

As of Tuesday, the petitioners had called parole agents, a forensic psychologist and psychotherapists employed by the California Department of Corrections and Rehabilitation to counsel sex offenders.

Jack Chamberlain, a psychotherapist, testified that roughly 20 percent of the parolee sex offenders he counsels are homeless.

“It ties my hands as a psychotherapist,” he said. “I cannot do the psychotherapy that I’d like to do with some of these men unless they have a stable place to live.”

Parole agent Reuben hernandez, who used to supervise high-risk sex offenders, said he left the unit after Jessica’s Law passed because he predicted “it would eventually become transient, the whole caseload.”

Experts on sexual offending use the term “containment model” to describe a three-pronged approach to managing sex offenders. hernandez testified that when he was supervising sex offenders, his containment model was simple: “I secured them a residence and employment. That was my model of containment.”

Three parole agents acknowledged in their testimony that only in rare cases—for a limited number of mentally ill sex-offender parolees, deemed “EOP,” or Enhanced Outpatient Program—is housing assistance provided. John, an EOP parolee diagnosed with bipolar disorder, testified that he was told he “wasn’t crazy enough” for housing assistance.

Agents said they were told not to assist parolee sex offenders with finding housing.

“There was a time when we were told not to tell them where to live,” said Agent Maria Dominguez. “‘I can’t tell you where you can live,’” she said she’d tell them, “‘but if you bring me an address, I’ll tell you if it’s compliant.’”

Dominguez said agents had a map showing compliant areas but weren’t allowed to provide it to parolees. And, even if agents knew of affordable, compliant housing, “We could not find locations for them,” she testified.

Psychotherapist Michael Feer testified that he tried to assist parolees in finding housing through Google Earth until it was blocked from his computer. He said he was told that its use wasn’t approved by CDCR and that it wasn’t his job to assist parolees in finding a home.

“Parole agents are required by state mandate to provide… assistance,” he testified. Sex offenders “are not provided that level of assistance... by policy” Without that assistance, their instability not only remains, but their instability grows.”

John, who was granted an emergency stay from the residence restrictions last fall, said that as soon as he was able to move in with a friend, “I felt like I was a normal person,” he testified. “I didn’t have to hide in the riverbed. I didn’t have to hang out with drug addicts. I have a better shot at having a normal life.”

Dominguez said that prior to Jessica’s Law, she could exercise discretion—based on criminal history and case factors—to determine where a person could live. High-risk sex offenders, she said, “were not allowed to live on the street; they were not allowed to be transient.”

Several witnesses testified that the law was vague as to what constitutes a school or park. Schools, they said, included public and private institutions, kindergarten through 12th grade, but not preschools or daycares. Beaches and amusement parks were considered parks by some agents, but not others. Julie Wartell, a crime analyst for the District Attorney’s office, testified about maps she’d drawn up with 2,000-foot buffers around schools and parks. Only 24.5 percent of all residential parcels in the county are compliant, she said, while 2.9 percent of multi-family parcels—apartments, mobile home parks—comply with the law.

“Of course there’s compliant housing,” Arnold said, “But this is not housing that’s affordable to, or suitable for, the petitioners.”

Regardless of the outcome of the hearing, Jessica’s Law’s residence restrictions will eventually end up back in front of the state Supreme Court. “We’re creating the record the Supreme Court asked us to,” Judge Michael Wellington told the attorneys. Meanwhile, a similar case is being prepared in Los Angeles County, where more than 600 petitioners had sought relief— overwhelming the court—before Judge Peter Espinoza ordered a countywide stay in November.

Political pressure to amend the law is growing, too. Former state Sen. George Runner, Prop. 83’s author, has, in the past, been a staunch defender of his law. In December 2007, when grilled by members of the California Sex Offender Management Board—clinical experts and members of law enforcement—he shrugged off arguments that the law’s claim of high rates of recidivism among sex offenders wasn’t supported by any scientific studies. Studies, in fact, have shown the opposite.

According to the meeting minutes: “Senator Runner argues that this is irrelevant because we are supposed to implement what the public/voters asked for.”

In December, though, shortly before resigning his Senate seat to take a position with the state Board of Equalization, Runner introduced Senate Bill 54, which would change the way 2,000-foot buffers are determined. Currently measured “as the crow flies,” distance between a residence and a school or park would be determined by public path. The bill would also allow individual parolees to petition the court for relief from the law. Offenders who’ve committed a crime against a child under 14 and are flagged by CDCR as being "high risk" likely wouldn’t be granted relief.

Write to kellyd@sdcitybeat.com and editor@sdcitybeat.com.