Last week in CityBeat, Kelly Davis reported that an investigation by the local nonprofit journalism outfit The Watchdog Institute, published on Nov. 29 in the Union-Tribune, spread misinformation about sex offenders and Jessica's Law. Neither The Watchdog Institute nor the U-T has corrected the story.
The institute's story led with the alarming assertion that 70 percent of sex offenders in San Diego County are in violation of the residency restrictions in Jessica's Law. The story then followed, incongruously, by reporting that there's a lack of legal clarity over whether or not the law is retroactive.
Let us put this plainly: As of the date the story appeared in the U-T, no sex offenders were known to be violating Jessica's Law, and there is no confusion regarding the statute's retroactivity; it is not retroactive. The basis of the entire story was a fallacy.
The Watchdog Institute appears to have based the 70-percent claim on what it believes to be the intent of one of the law's provisions—that registered sex offenders be barred from living within 2,000 feet of schools and parks. It based its claims regarding a perceived lack of clarity on a case pending before the California Supreme Court and the comments of the lawyer representing the plaintiffs in that case.
Jessica's Law applies to registered sex offenders released from prison after Nov. 7, 2006. The law's authors say they never intended for it to apply to people released before it passed. While the law appears to apply to all registered sex offenders, there's no language about retroactivity in it, and the California Penal Code makes it clear that a law is not retroactive unless its language expressly makes it retroactive.
What has confused some people is the case before the state's highest court. The plaintiffs are sex offenders who were released before the law was passed but committed non-sex crimes while on parole. Lawyers for the state Department of Corrections and Rehabilitation (CDCR) are arguing that the residency restrictions apply to the plaintiffs because they violated parole after the law was passed. The case pertains only to these individuals, not the larger population of sex offenders released before the law was passed.
Regrettably, Ernest Galvan, the plaintiffs' attorney, has contributed to the confusion by defending The Watchdog Institute's claims in comments on our blog (www.lastblogonearth.com). Galvan asserts that CDCR is arguing that the law applies to all sex offenders. That is flat-out wrong. In its court brief, CDCR makes it clear that their argument applies only to the plaintiffs and goes on to say that the way the law's being enforced—that is, not retroactively—“is entirely consistent with California law.”
A CDCR spokesperson has pointed out to CityBeat that CDCR can't argue that Jessica's Law should be applied to all registered sex offenders because CDCR doesn't have jurisdiction over people who aren't on parole. Furthermore, a spokesperson for the state Attorney General's office told CityBeat that The Watchdog Institute's story is inaccurate.
Galvan wants the law clarified so that it explicitly doesn't apply to people like his clients, but not a single attorney representing the state has asked for it be interpreted in a way that would make it applicable to all registered sex offenders. CDCR, meanwhile, has asked the U-T for a correction.
The Watchdog Institute and the U-T must acknowledge that they got the story wrong. The story was picked up by numerous other media across the country, carrying its inaccurate message that dangerous sex offenders all over San Diego County are violating the law by living too close to parks and schools, possibly stirring up even more fear of this stigmatized population than already existed, if that's possible.
You want to do a story reflecting the sentiments of people who think the law should apply to all sex offenders? Fine. That's a valid position, albeit one that could run into constitutional problems.
But, as Kelly Davis wrote in an e-mail Monday to top officials at The Watchdog Institute and the U-T requesting a correction, a better story would have asked: “What's the recidivism rate among transient sex offenders versus housed sex offenders? Or, in the three years since Jessica's Law was passed, have any sex offenders who were living within 2,000 feet of a school or playground committed a sex offense against a child? The key question that needs to be answered is whether residency restrictions actually work.”
The U-T and The Watchdog Institute got a lot of attention from a sensational opening sentence that played on people's fears for the safety of our community's children, but the attention was undeserved, and it's time to set the record straight. What do you think? Write to firstname.lastname@example.org.