Sex offender advocates sue state prisons over regulations

A group that advocates for changes in sex offender laws sued the Department of Corrections and Rehabilitation, seeking to overturn regulations published this month that classify all sex offenders as violent felons under Proposition 57.

The Alliance for Constitutional Sex Offense Laws claims the regulations violate the voters' intent under the initiative. As part of their proof, the Los Angeles-based group cites opponents' arguments against the criminal justice initiative, which passed in November with nearly 65 percent of the vote.

The filing includes a John Doe co-plaintiff, an inmate who said he is improperly being denied parole consideration under the regulations. Alliance for Constitutional Sex Offense Laws v. California Department of Corrections and Rehabilitation, 80002581 (Sacramento Super. Ct., filed April 27, 2017).

"The fact is when you have a law, and Proposition 57 is a law, you can't issue regulations that are broader than the law," said Janice M. Bellucci, executive director of the sex offender advocates group and a Sacramento-based civil rights attorney.

The suit argued that the goal of Proposition 57 was to "reduce the size of the prison population" and add incentives for rehabilitation. In line with those goals, the California Constitution now specifies: "Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole reconsideration after completing the full term for his or her primary offense."

"This 'early parole consideration' provision is mandatory and leaves no discretion for CDCR to pick and choose," the complaint states.

Proposition 57 directed the corrections department to issue regulations to aid in implementation, which it did in March. The Office of Administrative Law approved a corrections department request to fast-track the regulations, publishing them on April 18 without a public comment period.

The complaint alleges the regulations "significantly undercut Proposition 57" by including every offense that could force a person to register as a sex offender, "even nonviolent offenses." The suit seeks to invalidate the regulations and force the corrections department to draft rules that comply with the group's view of the initiative.

The filing then quotes ballot arguments filed by opponents of Proposition 57 to establish that the provisions were "intentional, well-publicized, and within the contemplation of those who voted for" the initiative.

Proposition 57 was put on the ballot by Gov. Jerry Brown. However, when the governor released his draft 2017-18 budget summary in January, the section on Proposition 57 funding stated the regulations "will exclude sex registrants."

The plaintiffs appear to have a strong case based on the plain language of the initiative, said Larry Rosenthal, a professor at the Dale E. Fowler School of Law at Chapman University. He added that the suit could be an "interesting and early test" of new Attorney General Xavier Becerra, who could choose not to defend the lawsuit.

Meanwhile, he said, the Legislature could fix the problem.

"If, for example, the Legislature forgot to put a truly violent felony on the list, and rectified that omission subsequently, Proposition 57 wouldn't stand in the way," Rosenthal said. In fact, there is a Republican-backed bill that would do just that. SB 75 would reclassify 20 offenses as violent felonies, including sexual assault of an unconscious person and some other sexual offenses. The bill failed in the Senate Public Safety Committee on April 18 but was granted reconsideration and could be revived.

On Tuesday, the committee passed SB 421, which would create a three-tiered sex offender registry. The bill is backed by the sex offender advocates group and numerous law enforcement groups, who say the large number of minor offenders listed in the sex offender registry makes it more difficult to monitor highest-risk offenders.

"While it sounds contradictory, California will greatly improve public safety by eliminating our current lifetime sex offender registration requirement," according to written testimony submitted by the Los Angeles County district attorney's office, one of the bill's sponsors.

Under the bill, defendants convicted of misdemeanor sexual crimes could petition a court to be dropped from the registry after 10 years, provided they don't commit another such crime. It also offers a procedure for people with older offenses to be removed from the list.

Lifetime registration would be reserved for the most serious offenses. These include murder and kidnapping with the intent to commit a sexual offense, as well as aggravated or repeat felony child molestation. Alabama, Florida and South Carolina are the only other states that have lifetime registration for all sex offenses.

The Department of Corrections said the agency has not been served yet and could not comment.