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Watchdog Watch, Day 7

December 15, 2009 - 3:39 pm

More than 24 hours ago, I sent an e-mail to Watchdog Institute editor (and former U-T senior editor) Lorie Hearn, two of the institute’s board members (Charles Lewis of the Center for Public Integrity and Brant Houston, former executive director of Investigative Reporters and Editors), Union-Tribune publisher Ed Moss and U-T editor Karin Winner about incorrect information in an article written by the Watchdog Institute and published by the U-T on Nov. 29. So far, no response.

To recap: The story led with the claim that 70 percent of San Diego County’s registered sex offenders are breaking state law by living too close to schools and playgrounds. To arrive at the stat, Watchdog reporters applied the residency restrictions of Jessica’s Law to all registered sex offenders when the truth is that the state applies the law only to offenders released from prison on or after Nov. 8, 2006. There are roughly 430 people in that category in San Diego County and their whereabouts are monitored by GPS (meaning none of them are living too close to schools or parks). The Watchdog story also said that attorneys for the California Department of Corrections and Rehabilitation (CDCR) argued before the state Supreme Court that Jessica’s Law should apply to all registered sex offenders. They’re not arguing that. Here’s what CDCR said in a statement to CityBeat (we also read the brief CDCR attorneys filed in the Supreme Court case):

CDCR does not argue that any registered sex offender (RSO) who is not a parolee is subject to the Jessica’s Law residency restrictions. Our arguments were very narrowly and deliberately tailored to the parolee population, as we have no jurisdiction over non-parolees. Our argument has always been that if someone was incarcerated on or after Nov. 8, 2006, the day Jessica’s Law took effect, then the residency restrictions apply to them if they are a registered sex offender. If the Supreme Court goes with our specific argument, any RSO who was not incarcerated on or after Nov. 8, 2006, would not be subject to the Jessica’s Law residency restrictions. [Plaintiffs’ attorney] Ernie Galvan appears to have ignored the portion of our argument that states that the RSO must have been incarcerated on or after Nov. 8, 2006. [emphasis added]

There’s no indication in the story that Watchdog reporters contacted CDCR.

Why are we making such a fuss about this? 1.) The Watchdog Institute has applied for nonprofit status. They’ll be seeking public money (donations, foundation grants) to pay for their reporting and will also be working with students in San Diego State University’s journalism program. As a public charity, they should be held to the highest standard (as should all news orgs). 2.) This story was picked up by almost every news outlet in San Diego, none of whom bothered to check the facts. Its sensational lede was picked up by the Associated Press, and newspapers from San Francisco to Chicago reported on San Diego County’s law-breaking sex offenders. Notably, no news orgs in the state have attempted duplicate the story. 3.) It’s a sad commentary on the state of journalism that errors of this magnitude (again, folks, this story got national attention) are allowed to go uncorrected.

Please note: CityBeat‘s confirmed the accuracy of our reporting on this matter with countless sources and by reading every bit of case law and legal analysis available. We’re confident in our conclusions.

The Watchdog Institute could have simply reported that 70 percent of registered sex offenders live within 2,000 feet of a school, daycare or park (note: this doesn’t indicate that they want to be close to the kiddies; rather, it’s an example of how difficult it is to impose residency restrictions in metro areas). But that story would need to answer the “so what?” question: Does proximity affect recidivism?

Interestingly enough, U-T editorial page editor Chris Reed wrote this blog post on Friday, taking the Sacramento Bee to task for not correcting an error. We’d like to see Reed, whom we often disagree with, but respect, apply the same scrutiny to his publication.

And, now, the letter:

Lorie,

We’ve made a clear case that the Watchdog Institute’s Nov. 29 story, “Jessica’s Law Too Vague to Enforce” contained inaccurate information. I understand CDCR has contacted you with a correction as well.

To recap: CDCR is not asking the Supreme Court to make the law retroactive against all sex offenders; they’re only arguing that it be applied to the four plaintiffs. CDCR can’t argue that Jessica’s Law be applied to all registered sex offenders—they have no standing to make that argument because they don’t have jurisdiction over RSOs who aren’t on parole.

If you read CDCR’s brief, note that on Page 24, it says: “The Language and History of Section 3003.5(b) Reflect the Voters’ Intent to Apply the Residency Restriction to Registered Sex Offenders in Petitioners Circumstances” (emphasis added). The brief does say that Jessica’s Law’s language “arguably suggests that the residency restriction could be applied to all registered sex offenders” (bottom of Page 24) but then goes on to say that the way the law’s being enforced “is entirely consistent with California law” (top of Page 25). California Penal Code Section 3 says that a law isn’t retroactive unless expressly so stated. The court ruling in People v. Milligan provides an example of what “expressly stated” looks like: “(b) Paragraphs (2), (3), (4), (5), and (6) of subdivision (a) shall have retroactive application” (from Cal. PC 296.1).

The main issue, though, is the story’s lede. It’s a sensational and meant to attract attention—and, indeed it did. News orgs around the country picked up the story solely for the lede. But not only is the lede wrong, it’s contradicted by the rest of the story:  “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.” If that’s the case, how could your reporters, with confidence, apply the law to all registered sex offenders?

You can’t be breaking a law that’s not being enforced against you.

Jessica’s Law’s authors, the governor and the attorney general have all said that the law’s not retroactive. Four federal judges, in four separate cases, have found that the law’s not retroactive. A better lede would have been: “Should the state Supreme Court rule that a sex offender law is retroactive, more than 70 percent of registered sex offenders in San Diego County will be violating that law by living too close to schools and parks.”

But, again, the Supreme Court’s not being asked to rule on the law’s retroactivity, only whether its residency restrictions apply to a subset of sex offenders. The plaintiffs’ attorney would like the law’s language clarified, but not a single attorney for the state has asked that it be clarified in a way that would make it applicable to all California RSOs.

This isn’t a you’re wrong, I’m right thing. You’re in the enviable position of having a team of reporters who can take the time to absolutely nail a story. But you didn’t take that route (your reporters, for instance, didn’t call CDCR and didn’t call the state AG’s office). A better story: 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.

You know very well how people react to sex offenders. The story’s lede and accompanying charts tap into fear and emotion and, as a result, does a huge disservice to the very complex issue of sex offender laws.

*
kelly davis
associate editor
san diego citybeat
619.281.7526 x104
kellyd@sdcitybeat.com
http://www.sdcitybeat.com

Addendum: Since this blog post was published, Watchdog Institute editor Lorie Hearn contacted us to say that her reporters did, in fact, interview CDCR and the Attorney General’s office for their article. No one from either agency was quoted in the story, however.

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One Comment leave one →
  1. December 16, 2009 - 10:24 am 10:24 am

    great job. stay on the case. this is the best evidence yet that the real motivating force behind the daily fishwrap’s agenda is “be afraid, be very afraid”.

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