A couple of days ago we reported on People v. McKee in which the California Supreme Court opened up the opportunity to challenge Proposition 83, also known as Jessica’s Law on equal protection grounds. Monday the court in In re E. J. again considered Jessica’s Law. This time it rejected claims that it was being used retroactively against parolees and remanded to the lower courts to consider on an individual basis whether it violates the constitutional rights of those required to register as sex offenders by preventing them from living within 2000 feet of “any public or private school, or park where children regularly gather.”

The law was challenged by four parolees who were released on a new grant of parole after the effective date of the proposition for non-registerable offenses but who due to previous convictions have a lifetime registration requirement. Compliance with the Proposition 83 requirements was made a condition of the new parole grant.

The parolees argued that the law was illegally being enforced retroactively. The majority opinion finds that it is not a violation of either Penal Code Section 3 which prohibits the retroactive enforcement of criminal law unless the law specifically allows retroactive enforcement or the ex post facto sections of the state and Federal constitutions. The court found, as to the four petitioners, it was only being alleged as a condition of parole granted after the effective date of the proposition and it was only governing activity that happens after the effective date. Generally ex post facto laws are prohibited because they punish activity without prior notice of the illegality of the activity. Here the petitioners were given notice when they were placed on parole that they could not live in certain areas. They were not being punished for the original offense which led to the registration requirement. Rather they could be punished for moving into certain areas when they were paroled after the proposition’s effective date.

As to the constitutionality of the stay away requirement, the Supreme Court requested superior courts in the county of parole to hold hearings to determine whether the residential restrictions violate the petitioners constitutional rights. The court indicated that there might be a constitutional violation if there was only a limited area in the county of parole where the petitioner could live. Many sex registrants have become homeless or at least have registered as being homeless because the parole boards have treated the homeless as not being in violation of the residential restrictions as long as they do not stay in an area within 2000 feet of a park or school for an extended period of time.

The California Supreme court ruled in People vs McKee that the Sexually Violent Predator Act (SVP) is subject to an equal protection challenge.

Proposition 83, also known as Jessica’s Law,passed by California voters, changed the SVP from a civil commitment that had to be renewed every two years, only if the government proved by a beyond a reasonable doubt standard that a person met the SVP requirements, to an indefinite commitment where the committed person must prove that he/she does not meet the standards by a preponderance of the evidence standard.

The Supreme Court remanded the case to the trial court with an order to hold a hearing, using a strict scrutiny standard, to determine if the SVP violates equal protection. The Equal Protection Clause of the Fourteenth Amendment requires equal treatment for people equally situated. This does not mean all people must be treated equally. But it does mean that people who are similar circumstances, as to relevant criteria must be treated equally. In this case the California Supreme Court determined that those alleged to be sexually violent predators are similarly situated with those alleged to be mentally disordered offenders (MDO) and those found to be not guilty by reason of insanity (NGI). All three groups involve people who committed violent felonies as a result of mental illness. While the predicate felonies for each of the categories is somewhat different, they all involve violent offenses and they are all determined to be a danger to society.

But unlike the MDO and NGI, the SVP ia given an indeterminate sentence and is not given a jury trial, after the initial determination, where the jury must find that the people have proven their case by a beyond a reasonable doubt standard. The MDO is give a one year commitment. After the initial commitment the SVG has the burden of proof by a preponderance of the evidence standard. The NGI’s term is limited to the maximum for the alleged crime.

On remand the people must attempt to show that there is a reasonable distinction between those who come under the SVP and those who are either MDO or NGI and that as a result of that distinction indefinite commitments and putting the burden of proof on the person committed is reasonable. If they cannot do that, pending any changes the legislature wants to make in the law those alleged to be sexually violent predators will be dealt with in the same manner as mentally disordered offenders.