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In the 1850's adultery was the social stain on one's reputation. At
that time a person found to have
been an adulterer was required to wear a scarlet letter "A"
on their clothing. They were then
branded for life in their community and were made the subject of scorn,
ridicule, and disdain.
Nathaniel Hawthorne in his book "The Scarlet Letter" wrote
about the cruelty and hypocrisy of
this practice.
Today our system of branding is much more sophisticated. A person
convicted of a sexual offense
is required to register as a sex offender for life. The registration
was originally designed as an aid
to law enforcement and was not available to the general public. With
the passage of "Megan's Law"
the list of registered sex offenders was made available on CD-Rom
to the general public, 900
telephone numbers were set up, and in some cases local law enforcement
went door to door
notifying neighbors. One cannot forget the sight on the evening news
of mobs of people
demonstrating in front of the home of someone on the Registry.
The Sex Offenders Registry has become the new Scarlet Letter. As Hester
Prynne (the central
character in The Scarlet Letter) could not remove her "A"
from her clothing, today our legislature
has made it nearly impossible to remove one's name from the registry.
This is true even if the registrant is rehabilitated. This is true
even if decades of living an exemplary life have passed.
The Evolution of Sex Offender Registration
Requirements in California
1960-1982
Expungement of Criminal Record
Penal Code § 1203.4
In California a defendant could get his criminal
record expunged after successfully completing
his sentence and probationary period. This was done under the provisions
of Penal Code § 1203.4.
In 1960 in the case of People v. Taylor 178 Cal. App. 2d 472 the
court of appeals ruled that the
granting of an expungement of one's record under Penal Code §
1203.4 relieved a defendant from
the requirement to register as a sex offender under Penal Code §
290.
1982-1994
Misdemeanor Convictions
In 1982 the California Legislature added Penal
Code § 290.1 that stated that the granting of an
expungement of one's record under Penal Code § 1203.4 does
not relieve one of the duty to
register as a sex offender, thereby blocking the use of Penal Code
§ 1203.4 to relieve a former
offender from the duty to register.
However a life time registration for a misdemeanor conviction was
held to be cruel and unusual
punishment by the California Supreme Court. (In re Reed (1983) 33
C3d 914 and In Re King (1984)
157 C.A. 3d 554) The court stated that the failure of the legislature
to pass into law a system for
getting relief from registration for misdemeanor convictions violated
the cruel and unusual
punishment provisions of the Constitution.
From 1982 until 1994 the requirement to register for misdemeanors
ended upon the completion
of probation based upon the case law cited above.
1982-1994
Felony Convictions
Certificate of Rehabilitation
Penal Code § 4852.01
Penal Code Section 4852.01 allowed the Superior
Court to find that a defendant had been
rehabilitated and recommend to the Governor that a Pardon be granted.
A defendant had to first
obtain an Expungement of their record under Penal Code § 1203.4.
Until 1994 the granting of a Certificate of Rehabilitation relieved
a defendant convicted of a
felony of the duty to register.
1995-1996
Felony and Misdemeanors
Effective January 1, 1995 the California Legislature passed legislation
to allow the removal of the
registration requirement from misdemeanors. This was in response
to the court rulings finding the
life time registration to be cruel and unusual punishment. The new
legislation made it more
difficult to obtain relief. From 1960-1995 the requirement to register
terminated upon the
termination of the sentence or of probation. The new requirements
for misdemeanor convictions
required that a defendant obtain an expungement of their record
under Penal Code § 1203.4 and
a Certificate of Rehabilitation from the Superior Court after a
waiting period of seven years.
The requirements for relief from registration were the same for
felonies and misdemeanors
during this time.
July 8, 1996
Right to Grant Relief from Duty to Register
Removed from Courts for Most Felony Sex Offenses
The California Legislature effective July 8, 1996
removed from the Superior Courts the right to
relieve certain felony sex offenders from the duty to register.
The offenses that could no longer get relief from the Superior Court
were:
Penal Code Section 207 or 209 committed with the intent to violate
Section 261, 286, 288, 288a,
or 289; Section 220, except assault to commit mayhem; Section 243.4,
provided that the offense
is a felony; paragraph (1), (2), (3), (4), or (6) of subdivision
(a) of Section 261; Section 264.1;
Section 266, provided that the offense is a felony; Section 266c,
provided that the offense is a
felony; Section 266j; Section 267; Section 269; paragraph (1) of
subdivision (b) of Section 286,
provided that the offense is a felony; paragraph (2) of subdivision
(b), subdivision (c), (d), (f),
(g), (i), (j), or (k) of Section 286; Section 288; paragraph (1)
of subdivision (b) of Section 288a, provided that the offense is
a felony; paragraph (2) of subdivision (b), (c), (d), (f), (g),
(i), (j), or
(k) of Section 288a; Section 288.5; subdivision (a), (b), (d), (e),
(f), (g), or (h) of Section 289, provided that the offense is a
felony; and subdivision (i) or (j) of Section 289. (This left
misdemeanors and a few felonies unaffected.)
From July 8, 1996 until January 1, 1997 the only method to be relieved
from the duty to register
for these designated felonies was by a Governor's Pardon. In order
to decide who should be
granted a pardon the governor needs information from the courts.
The first step was to obtain an Expungement of your record under
Penal Code § 1203.4. The second step was to obtain a
Certificate of Rehabilitation. A certificate of rehabilitation is
not granted automatically. It requires
evidence during a hearing to be presented to the court that the
individual is in fact rehabilitated
and worthy of a pardon. The District Attorney is present at these
hearings and can contest the granting of a Certificate of Rehabilitation.
If a Certificate of Rehabilitation is granted, this
information would then be forwarded to the Governor for his review
in deciding whether to grant
a pardon.
The duty to register was no longer removed for these specified offenses
by the Courts after
granting of a Certificate of Rehabilitation. However, the duty to
register was removed for
misdemeanors and a few remaining felonies upon the granting of a
Certificate of Rehabilitation.
January 1, 1997
Courts Completely Eliminated from the Process for Certain Felonies
Effective January 1, 1997 the California Legislature eliminated
the right to obtain Expungement of Records under Penal Code §
1203.4 for certain designed sex felonies (listed above).
Effective January 1, 1997 the California Legislature eliminated
the right to petition the courts for
a Certificate of Rehabilitation under Penal Code § 4852.01
for certain felonies (listed above).
Currently the only method to obtain relief from the duty to register
as a sex offender for those
designated felonies is to obtain a Governor's Pardon. However, since
the courts have been totally
eliminated from the process, who is going to gather the information
necessary for the governor
to decide if a Pardon is warranted?
All misdemeanor and a few non-designated felonies can still obtain
relief from the procedure of
obtaining an Expungement of Records and a Certificate of Rehabilitation.
Conclusion
The duty to register under Penal Code § 290 is the modern day
"Scarlet Letter". Relief from
registration can be obtained. However, it is like the albatross
around the neck of the sailor in the
"Rhyme of the Ancient
Mariner". It just hangs on you forever, no matter what injustice
results.
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