By Anna Pulley
By Erin Sherbert
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Each morning, a cop walks by to tell the men on the sidewalk to move on. The ones with vans can keep them parked. One transient sweeps away cigarette butts and beer cans, and the men pack up and take off for the day, a band of nomads constantly on the move.
Many of the men at the encampment are well into or past middle age, having served sentences for serious sex offenses decades ago that, with few exceptions, they insist they didn't commit. But Jessica's Law has also netted people whose original crime was arguably minor — such as Rod (not his real name). A plump, gregarious middle-aged man, Rod prefers blazing around solo in his red Windstar instead of hunkering down with the other guys in the city. Usually. On a recent afternoon, his mother rode shotgun while complaining about her son getting arrested for oversleeping at his house.
Rod's record of petty offenses could wallpaper a bathroom. He has picked up a couple of harder convictions for drug possession, too. But the severity of his sex offense? According to the police, Rod strolled into a Shell gas station in South San Francisco at 7 a.m. in August 1995, "pulled out his penis, and raised his arms."
Rod remembers it somewhat differently and without shame: "I had a 60-inch waist. I'm really fat. So when I sit down, I unbuckle my pants." He says he walked into the gas station without remembering to zip back up, and "I don't wear underwear, so I guess my thing was hanging out." Even the California Department of Justice determined that the indecent exposure offense wasn't grave enough for Rod's mugshot to appear on the state's online sex offender registry. Though his face is spared a viewing at a mouse click, he does still have to register with the police. (The SFPD confirmed that this is for his indecent exposure case in 1995.) So when he missed a deadline to register, he was arrested and sent to San Quentin.
Released last year on parole, he was subject to Jessica's Law, just like hundreds of others across the state who aren't on parole for the crime that made them a sex offender in the first place. Rod's story gets even more improbable. Parolees are supposed to be returned to their county of last residence, which Rod says would mean San Mateo, where he still pays rent. He believes his parents' house there would be compliant with Jessica's Law. Yet a paperwork mixup prevents him from living with his folks. A document in his probation file showed a residential rehab program in San Francisco as a past address, and so he was paroled here. His efforts to get transferred back have failed so far.
Rod has found one place where it's in the house's interest that he stay as long as possible: 24-hour card clubs. He says he sits down almost nightly to play Texas Hold 'Em until the early morning hours. He guesses he's gambled away tens of thousands of dollars in the last year of homelessness, and is plummeting into credit card debt. "I would leave [while I'm winning], if I had somewhere to go," he says. Recently, he's been sleeping in casino parking lots.
Oakland attorney Robert Beles wrote to Rod's parole agent, arguing that Rod should be exempt from Jessica's Law because Rod committed his offense more than 10 years prior to the law's passage. Parole officials' response can be best summed up in two words: shot down. Beles says he made the same request in a habeas corpus writ in Alameda County Superior Court. The judge, like others in the state considering similar pleas, put the case on hold, waiting for the state Supreme Court to decide.
While the opposing attorneys pushed their interpretations of the law at the November hearing, the Supreme Court justices asked about people like Rod, who were caught in the middle. Would enforcement be illegally retroactive if it applies to those who had long been discharged from parole for their sex offenses, but were on parole for new non-sex-related crimes?
Galvan says that for the ban on retroactivity to apply, the justices would have to determine that the residency restrictions are actually a punishment and not simply a civil regulation. The issue has divided the country's courts, he says, with a handful of state supreme courts ruling that it's a punishment, and the U.S. Supreme Court stretching in favor of a civil regulation.
At least one California Supreme Court justice seemed to agree with Galvan that the law puts offenders in an unfair predicament. Justice Carol Corrigan said that paroling people to a county where they couldn't live indoors "would be an absurd interpretation," and wondered whether they could be transferred to counties with more housing options. Galvan responded that the receiving counties would undoubtedly object; plus the move would require the justices to tinker with the legislation, when they usually just interpret it.
The question of who will continue to be affected by the law and who will not remains as the early February ruling approaches. Since California is home to the most sex offenders in the country, the ruling will certainly reverberate nationally.