Statement: “More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks,” the Watchdog Institute reported in The San Diego Union-Tribune.

Determination: Misleading

Analysis: In November, this statement spurred a debate between San Diego CityBeat and the Watchdog Institute, a new nonprofit investigative reporting group connected to The San Diego Union-Tribune. We hope to get to the bottom of it.

The debate focused on the Watchdog Institute’s story about Jessica’s Law, a voter initiative passed in 2006 that bans sex offenders from living within 2,000 feet of parks and schools. Throughout much of the story, the Watchdog Institute flatly asserted that any registered sex offender living within the restricted zone is “violating state law.” It used that language in the lead sentence, throughout the story and in every accompanying graphic.

Here’s the dilemma: The Watchdog Institute’s assertion is an opinion, not a fact.

It built its story around this interpretation of the law: that all registered sex offenders are banned from living within the restricted 2,000-foot zone, regardless of when they were convicted or become registered.

In the November story, the Watchdog Institute quoted people who reaffirmed its interpretation but it ignored contrary positions.

By only reading the Watchdog Institute’s report, you would never know that the state attorney general, some state legislators, at least one federal judge and decades of court rulings support the position that Jessica’s Law does not apply to every registered sex offender, and therefore, every person in the restricted zone is not violating state law.

For example, the state attorney general supports an interpretation of the law that bans any registered sex offender from moving into the restricted zone after the law became effective Nov. 8, 2006. If a sex offender lived within the zone before Nov. 8, 2006, he would not be required to move and not be violating the law. But if the sex offender wanted to move across town today, he could only move to a place outside the restricted zone.

Compared to other opinions about Jessica’s Law, the Watchdog Institute asserted what’s called the literal interpretation of the law. In other words, it interpreted the law based strictly on the words used in the state statute. The statute says “any person” required to register as a sex offender must follow the residency restrictions.

To be clear, we are not saying that using a literal interpretation for Jessica’s Law is right or wrong. It’s an opinion at this point, so we’ll let attorneys and the courts weigh how the law may be applied.

Our purpose is showing how the Watchdog Institute’s story misled people by failing to identify its interpretation as an opinion and failing to further explain the debate surrounding Jessica’s Law. It’s not a minor point either: Much of the legal discussion about the law has specifically focused on who the law applies to and whether it’s retroactive punishment for people convicted before 2006.

For starters, another California law prohibits any new punishment from being retroactive. That 1872 statute, confirmed repeatedly by the State Supreme Court, literally says, “No part of (the state’s criminal code) is retroactive, unless expressly so declared.”

When the law fails to make an explicit declaration, the state Supreme Court has previously said the law’s literal construction “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent.” It’s disputed, in this instance though, what voters intended for the law when they approved it in 2006.

The Watchdog Institute has defended its report, because it accurately reflected the literal meaning of the statute and its story said “the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed.”

For all intents and purposes, though, that sentence was presented as an asterisk in a report that repeatedly asserted the literal interpretation of Jessica’s Law. In no way could that single-sentence caveat counterbalance how the rest of the story and accompanying graphics used language like “violate state law.”

Moreover, the Watchdog Institute’s report highlighted a recent state Supreme Court case that officials hoped would bring some clarity to the residency restrictions. It didn’t.

The Supreme Court announced its decision Feb. 1, but it steered away from the big questions about the law’s application to all registered sex offenders, its punishment and its constitutionality. It focused narrowly on the appeal of four parolees and sent their cases back to trial courts to address lacking evidence.

“The further question whether [Jessica’s Law] also created a separate new misdemeanor offense applicable to all sex offenders subject to the registration requirement …, irrespective of their parole status, is not before us,” the court wrote in its majority opinion.

— KEEGAN KYLE

Summer Polacek

Summer Polacek was formerly the Development Manager at Voice of San Diego.

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