SACRAMENTO – The contest over Proposition 83 might as well be over.
With overwhelming support in the polls, the ballot measure to crack down on child molesters with longer prison sentences, new residency restrictions and lifetime satellite monitoring will likely cruise to victory Tuesday.
Post-election challenges are already being planned. Lawyers say they will file suits that could derail or delay full implementation, while lawmakers and administrators will be forced to address the many questions that Proposition 83 leaves unanswered.
“It's going to be an appellate lawyer's dream,” said Jeff Stein, a San Luis Obispo criminal defense attorney.
Many initiatives suffer from drafting problems or ambiguities, but legal experts say Proposition 83 is especially vague and confusing.
“This is a new standard of 'Don't bother us with the facts,' ” said Franklin Zimring, a law professor at the University of California Berkeley's Boalt Hall School of Law and an opponent of the measure.
Even the initiative's sponsor, state Sen. George Runner, R-Lancaster, said some issues would have to be resolved by the courts or the Legislature.
Any legislative changes to the ballot measure have to be approved by a two-thirds vote of the Legislature, a difficult threshold to meet.
The initiative includes a Global Positioning System, or GPS, tracking requirement for thousands of felony sex offenders, but it doesn't say who is going to monitor them or how closely the convicts will be watched.
Nor does the measure spell out who has to enforce rules that prevent registered sex offenders from living within 2,000 feet of a school, park or any other site that local governments add to the restricted list. That would prohibit them from living in most urban areas in California.
But perhaps the most important concern is whether the residency restrictions apply to the 87,000 registered sex offenders or only to sex offenders convicted in the future.
If it applies to all, thousands of people will have to be moved from the state's urban areas to more rural locations, an undertaking that could prove to be an administrative and legal chore.
Runner dismisses complaints that Proposition 83 was poorly drafted, saying lawmakers frequently have to pass bills clarifying laws.
His initiative was inspired by the death of 9-year-old Jessica Lunsford, who was murdered by a convicted sex offender in Florida.
In addition to the GPS and residency provisions, Proposition 83 would expand the sexually violent predator program, making the predator designation possible after just one offense, instead of two as under current law. The measure also would increase penalties for crimes against children and for child pornography, allowing possession of such material to be prosecuted as a felony.
Frustrated that the Legislature had blocked his proposals, Runner launched the “Jessica's law” campaign to provide a “comprehensive way to protect children.” Since then, the Legislature has passed nearly all of Proposition 83's main provisions, except for the residency restrictions and the lifetime GPS.
Still, nearly all elected officials have climbed aboard the Proposition 83 juggernaut, including Republican Gov. Arnold Schwarzenegger and Democratic gubernatorial nominee Phil Angelides. In August, the nonpartisan Field Poll showed overwhelming support among voters, who favored it 76 percent to 11 percent. Opponents have no money for a campaign.
Yet critics, including those who work with sexual assault victims, say Proposition 83 concentrates resources in the wrong area: the few cases where strangers kidnap and molest children. According to government agencies, about 90 percent of all offenders are friends, relatives or neighbors of the victim's family.
Proposition 83, which the Legislative Analyst's Office said would cost more than $200 million a year within 10 years, doesn't include money for relapse prevention programs, which critics say could reduce recidivism among sex offenders.
Opponents also say there is no evidence that residency restrictions work.
In 2002, Iowa passed a residency restriction for sex offenders that prosecutors there now want to repeal. They believe it is counterproductive because it pushes offenders away from jobs, families and treatment. By forcing some offenders underground, it has made them difficult to track.
Runner said the residency restrictions were included in Proposition 83 to provide “social comfort.”
“Parents believe their children shouldn't have to walk past a child molester's home to get to school,” he said.
Runner also said the residency requirement was intended to apply only to those convicted of sex offenses in the future.
Regardless, the issue will almost certainly be settled in court.
San Francisco attorney Dennis Riordan has vowed to file a suit arguing that applying the measure retroactively violates a constitutional ban on additional punishments against criminals who have been sentenced for their crime.
Some legal experts, including Derek Shaffer, executive director of the Stanford Constitutional Law Center, believe the measure makes residency restrictions apply retroactively.
The initiative doesn't say which government agency will have to enforce residency rules. Runner believes that local police agencies, which enforce sex offender registration requirements, will be assigned the task.
The measure also appears to apply lifetime GPS to all felony sex offenders who have served time in prison, but a court will have to rule whether the requirement applies to future offenders or retroactively.
If it applies retroactively, the measure will require thousands of offenders to be immediately outfitted with GPS devices. Even if it applies only to future offenders, the number of felons requiring GPS will soon amount to thousands of people.
The measure also doesn't say how closely offenders will be watched. In their ballot arguments, supporters trumpeted lifetime GPS, saying it would help keep track of dangerous criminals. Now, supporters including Runner, say that the monitoring for the vast majority of offenders will be infrequent.
If the felon is suspected of committing a new crime, they say, authorities will retroactively check the system records to see where the suspect has been. Proponents of the measure call this “passive monitoring.”
But passive monitoring isn't mentioned in the ballot measure.
Zimring said confusion about GPS was another flaw. “You either have somebody watch those beeps or it's fraudulently useless,” he said. “But if you have somebody watch it all the time, it's expensive.”
San Diego County Sheriff Bill Kolender, a strong supporter of Proposition 83, agreed that there were many unanswered questions, including who watches the offenders. “We aren't sure whether GPS checking is going to be us or the state,” he said. “It's kind of unknown.”
Zimring said there was no reason to draft an initiative that leaves so many questions unanswered. “It looks like what you would end up with after a two-beer, two-hour conference,” he said.
