BILL ANALYSIS
AB 1081
Page 1
Date of Hearing: April 21, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1081 (Torrico) - As Amended: April 13, 2009
SUMMARY : Allows electronic monitoring through Global
Positioning System (GPS) surveillance for those convicted of
violating specified protective orders, stalking, or felony
domestic violence. Specifically, this bill :
1)Provides that upon the conviction of an intentional and
knowing violation of a protective order issued pursuant to
domestic violence, elder abuse or dependent abuse, the court
shall order the probation department to administer a mandatory
risk assessment evaluation as part of its presentence report.
If the court determines that the results of the risk
assessment and any other relevant circumstances of the
violation merit the order, the court shall order that the
person be placed under continuous electronic surveillance
using GPS technology as a term of probation, parole, or any
other conditional release from custody.
2)Mandates that the GPS technology used to electronically
monitor the defendant, shall be the best available technology
for tracking domestic violence offenders. The technology
shall be capable of all of the following:
a) Immediately notifying law enforcement or any other
responsible monitoring agency when the defendant is in a
location prohibited by an order of the court.
b) Immediately notifying the victim when the defendant is
in a location prohibited by an order of the court.
c) Allowing monitors to speak to the offender through a
cell phone implanted in the bracelet device.
d) Activating a loud alarm to warn the victim of the
offender's presence in a prohibited location.
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3)Places the costs associated with any monitoring required upon
the offender unless the court or the California Department of
Corrections and Rehabilitation (CDCR) finds that the offender
does not have the ability to pay for those costs.
4)Requires the court to order the defendant to pay a $200 fee
upon conviction of a violation protective order unless the
court finds that the defendant does not have the ability to
pay this fee. The money collected by a county from the
imposition of this fee shall be deposited into that county's
domestic violence surveillance fund, a special account that
shall be established in each county. The money in that fund
shall be used to pay for the GPS program and for any
reasonable administrative costs of the county for the
administration of this fund.
5)Makes contingent upon a Budget Act appropriations, CDCR shall
ensure than any parolee convicted of stalking who is deemed to
pose a high risk of committing a repeat stalking offense shall
be required to be placed under continuous electronic
surveillance through GPS technology. The parolee shall be
required to pay for the costs associated with the required
monitoring unless CDCR finds that the parolee does not have
the ability to pay.
6)States that whenever a court issues a restraining order
against the defendant as a result of a felony conviction for
domestic violence as defined under existing law, the court
shall order the probation department to administer a mandatory
risk assessment evaluation as part of its presentence report.
If the court determines that the results of the risk
assessment and any other relevant circumstances of the offense
merit the order, the court shall order that the person be
placed under continuous electronic surveillance using GPS
technology as a condition of probation. The defendant shall
be required to pay for the costs associated with the required
monitoring unless the court finds that the offender does not
have the ability to pay for those costs.
EXISTING LAW :
1)Authorizes the parole authority to require, as a condition of
release on parole, electronic monitoring as long as the device
is not used to eavesdrop or record the parolee's
conversations. (Penal Code Section 3004.)
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2)Provides that notwithstanding any other provisions of law,
CDCR may utilize continuous electronic monitoring to
electronically monitor the whereabouts of persons on parole.
[Penal Code Section 3010(a).]
3)Mandates that continuous electronic monitoring shall have as
its primary objective the enhancement of public safety through
the reduction in the number of people being victimized by
crimes committed by persons on parole. [Penal Code Section
3010(b).]
4)States it is the intent of the Legislature to specifically
expand the authority of CDCR to utilize a system of continuous
electronic monitoring. [Penal Code Section 3010(c).]
5)Defines "continuous electronic monitoring" to include the use
of worldwide radio navigation system technology, known as the
Global Positioning System, or GPS. The Legislature finds that
because of its capability for continuous surveillance,
continuous electronic monitoring has been used in other parts
of the country to monitor persons on parole who are identified
as requiring a high level of supervision. [Penal Code Section
3010(d)(1).]
6)Declares that the Legislature finds that continuous electronic
monitoring has proven to be an effective risk management tool
for supervising high-risk persons on parole who are likely to
reoffend where prevention and knowledge of their whereabouts
is a high priority for maintaining public safety. [Penal Code
Section 3010(e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Stalking and
domestic abuse are terrible crimes where the offender has a
specific target in mind. The intent of this bill is to set up
a program using specific risk assessment procedures, and a
global positioning system that immediately alerts the victim
and police if an offender enters into an exclusionary zone.
Violators of protective orders would go through a risk
assessment through the courts to determine if they should be
fitted with this technology. This legislation is modeled in
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part by legislation that has been passed and proven effective
in Massachusetts and Illinois. The use of this technology,
in combination with specific risk assessment tools and
training, could help empower victims, help prevent repeated
assault and harassment and even save lives."
2)Background : According to information provided by the author,
"According to Bureau of Justice Statistics, in the United
States, in 2005, an average of three women a day were killed
by their intimate partners, husbands, ex-husbands, boyfriends,
or ex-boyfriends. According to the California Department of
Justice Criminal Justice Statistics Center; California law
enforcement received 174,649 domestic violence calls in 2007.
69,422 of these calls involved weapons, including firearms,
knives, hands, fists or feet. In addition, 119 murders were
the result of intimate partner violence in California. The
National Coalition Against Domestic Violence reports that in
70 to 80 percent of intimate partner homicides, the victim was
physically abused by the offender before the murder.
"Even when a domestic violence case is prosecuted, victims are
often not protected and many still live in fear of their
abuser. One remedy for these victims is the right to obtain a
restraining order to help protect themselves from their
abuser. Although restraining orders are an important tool for
victims, they are very often violated, many times repeatedly.
Restraining order violations can sometimes be hard to prove if
there are no other witnesses and unfortunately repeated
violations often result in injury and sometimes murder."
3)Background Information on GPS : Electronic monitoring is a
form of "house arrest" with the use of electronic ankle
bracelets. Offenders wear devices that permit periodic checks
of their whereabouts by telephone. GPS uses satellite
tracking operating in a manner similar to cellular phones.
Offenders wear ankle bracelets and carry with them packs
containing mobile receivers. When offenders are sleeping or
sitting, packs can be placed near them. A monitoring station
receives data from all offenders using the system and tracks
them. Tracking may be active or passive. Active GPS transmits
its location at near real-time intervals and can include
immediate alert notifications. Passive GPS transmits its
location at set intervals and alert notifications are usually
received the next day. If the offender tampers with the
equipment, moves more than about 150 feet from the receiver,
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deviates from a schedule, or ventures into forbidden
territory, overseers are automatically paged. Not only does
GPS follow offenders, GPS can also be programmed with
"exclusion zones" where sex offenders are not allowed - for
example, the home of a victim or the victim's place of
employment.
4)GPS Technology is Not Foolproof : The use of GPS for parolee
tracking provides a level of surveillance not available by any
other means. GPS' ability to locate an offender 24 hours per
day makes GPS an invaluable tool for parole agents. The GPS
is a system of 24 satellites 11,000 miles above Earth. Using
GPS tracking, a parolee can be precisely located 24 hours per
day, seven days per week. For the system to work, the parolee
must carry a GPS receiver, complete with a microprocessor and
antennae, to record locations. The parolee carries the device
in a waist pack. The parolee must also wear an ankle bracelet
equipped with a radio transmitter that works in tandem with
the GPS receiver. Thus, if the parolee does not wear both the
ankle bracelet and the receiver, the receiver will set off an
alarm at the monitoring station. Both pieces of equipment
also have tamper-detection features to keep offenders from
trying to remove or dismantle them. New technology is being
used in California and other states that have only one piece,
an ankle monitor, which must be recharged every 12 to 18
hours.
In various degrees, GPS is used to track parolees in Arizona,
Michigan, Florida, Texas, Connecticut Washington and
California. Reported GPS problems include loss of signal
creating false alarms, high costs, and required technical
training. Lost signals are typical in cars, large buildings,
and underground basements.
There have also been reports of loss of GPS signals as a result
of battery and equipment failure. Furthermore, in testimony
offered before the Assembly Committee on Public Safety in
November 2005, a Washington State Corrections representative
stated that problems resulted not only from lost signal in
urban canyons, but also breaks in the signal because the
offender put more than 150 feet between the device and the
unit monitor. This occurred even though the offender was
still at home. Also, frequent problems occurred with battery
life. Offenders are required to recharge a battery every 8 to
18 hours depending on the unit, proving very inconvenient and
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also resulting in a number of false alarms. In a discussion
of the uses of GPS in California, CDCR and the Department of
Mental Health (DMH) representatives speaking before this
Committee indicated that GPS is an effective monitoring tool
for a small manageable class of offenders.
"In Arizona, a 2007 legislative study found more than 35,000
false alerts by 140 subjects wearing the GPS-monitoring
devices.
"In California, the percentage of transient parolees, those
who've been declared homeless, has increased by 900% since a
law was passed that included GPS as part of the solution.
Now, officials say, they're guessing about where the offenders
are because more have become transient and the GPS monitoring
can be unreliable, especially when the offenders lack real
housing where they can charge the devices.
"And in Connecticut, officials are pushing for a state-run
monitoring facility to keep track of offenders being monitored
by GPS after numerous false alarms involving several subjects,
including one whose case prompted action.
"Though public safety officials typically agree that GPS is a
valuable tool, they say it's not a replacement for personal
contact with the subject, his co-workers, family and friends
that keeps the offender honest . . .
" . . . GPS is a legitimate tool for law enforcement, but its
limitations must be understood, and it must be used correctly.
'It's got to be centered in the context of all the other
information available to the officer, including the reports
from treatment, family and so
forth . . .'
"Policymakers should understand that having a GPS device on
subjects doesn't mean they're monitored all the time. 'A lot
of people think if you're on GPS somebody is sitting at a
computer and they know your whereabouts all the time . . .
They're not aware of the influence of weather and other
interferences with the system and the cell tower issues . . .
parolees can venture out of the satellites' range by entering
buildings or a dense urban location. Places like schools,
hospitals, government buildings . . .
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"In Washington state, there has been resistance to GPS
monitoring. In 2006, the Washington Association of Sheriffs
and Police Chiefs opposed proposed legislation - which passed
- to expand the use of GPS because of experiences with faulty
readings when offenders move inside steel buildings, tunnels
or outside when it's snowing, according to Don Pierce, the
association's executive director. 'We were concerned, and
still are, that GPS monitoring is viewed as a panacea and will
prevent future crime. It isn't, and it won't.' " [McKay, Sex
Offenders' GPS Devices Not a Silver Bullet, States Say (Feb.
1, 2009) Emergency Management News
http://www.govtech.com/em/articles/596099?id=596099&full
=1&story_pg=1 (as of Apr. 15, 2009].]
a) Sex Offender Kills Teen While Under GPS Surveillance :
"Darrin Sanford, 30, was one of several homeless people
living near the field in an abandoned home slated for
demolition, police said.
"He was convicted in 1998 of communicating with a minor for
immoral purposes and luring minors with sexual motivation;
he was sentenced to probation, said a Clark County
sheriff's report. When he was released from jail in
January, following a November probation violation, Sanford
was fitted with a global positioning tracking unit on his
ankle, according to the Washington Department of
Corrections.
"Sanford was wearing the device seven weeks later when he
tried to rape [13 year old, Alicia Nipp] . . . before
beating and stabbing her in a field a couple of blocks from
the street where she lived, according to police.
"Authorities said they used GPS to corroborate Sanford's
confession. . . .
"The slaying rocked the enclave of Hazel Dell in Vancouver, a
15-minute drive from Portland, Oregon, and serves as fodder
for those who claim GPS is used too broadly and bluntly as
a tool for keeping tabs on offenders.
" 'They can't monitor it live, and even if you could monitor
it live, him being in the field wouldn't have told you [if]
he was murdering the girl,' said Evan Mayo-Wilson, an
Oxford University lecturer who has studied the use of GPS.
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"There are two types of GPS monitoring: active, in which the
offender's whereabouts are surveyed in real-time, and
passive, in which probation or parole officers check an
offender's movements after the fact.
"Sanford was passively monitored, said Anmarie Aylward, the
Washington Department of Correction's program
administrator.
" 'Both types of GPS are important tools for law
enforcement', Mayo-Wilson said, 'but the technology must be
coupled with other efforts to reduce recidivism, including
treatment programs, personal visits and interviews with
neighbors, family members and employers
. . . '
" . . . 'It's a technology that cannot stand alone,
especially if you're thinking about using it with offenders
who imperil the public.'
" . . . Experts say GPS can create a false sense of security
because its capabilities are overestimated. Jill Levenson,
an associate professor of human sciences at Lynn University
in Boca Raton, Florida, said many people believe it is
'some magic bullet or panacea that prevents crimes.'
" . . . Because the media focus on the most sensational
crimes, politicians often focus their energies on combating
the violent incidents rather than the more common
occurrences . . ." [McLaughlin and Oppmann, Sex offender
kills teen while under GPS monitoring, police say (Mar. 12,
2009) CNN (as of Apr. 15, 2009).]
This bill does not indicate whether active or passive GPS
surveillance will be used. The problem with GPS
surveillance is that it may not be real time; it may not
even be working; it may give false alarms; and - most
importantly - it does not prevent future crime. GPS tracks
a person's whereabouts, but it does not give a view of what
he or she is doing. Given all of these factors should
California increase the use of GPS surveillance? Who is
going to monitor these persons under surveillance? Does
California have the resources to monitor these persons?
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5)GPS Monitoring is Costly and This Bill Does Not Specify who
will Cover the Costs : The CDCR estimates that the cost to
track parolees utilizing GPS is $8 to $15 per day, per inmate.
The annual contract cost per parolee would be $2,920 to
$5,470 per year and does not include supervision costs or the
cost of the additional personnel needed to monitor the
parolees on GPS. Also, the use of GPS tracking requires
expensive technical training. The current annual average
parolee cost is $2,882. In addition to tracking parolees,
this bill places GPS surveillance on probationers.
This bill indicates that the defendant shall not be ordered to
pay for GPS surveillance if he or she is not able to. This
bill also institutes a $200 fee upon conviction of violation
of a protective order unless the court finds that the
defendant does not have the ability to pay this fee. The $200
that is collected is to be deposited into that county's
domestic violence surveillance fund which shall be used to pay
for the GPS program. It will be rare that a defendant will be
able to pay for the GPS surveillance and it will be rare if he
or she will be pay the $200 used to fund the GPS program
established under this bill. As such, there will never be
enough money in the domestic violence surveillance fund to
subsidize the requirement of placing GPS monitors on all
persons required under this bill.
This bill also does not specify which agency is responsible for
tracking the offenders. When offenders are on parole, CDCR
goes to great lengths to make sure the offender is housed.
But once the offender is no longer on parole, CDCR is no
longer responsible for the offender. Hence, the cost of the
monitor and the tracking would probably fall on local law
enforcement. Certainly, the offender will not be able to pay
the cost of GPS monitoring. If he or she is not able to
afford housing, he or she will obviously not be able to afford
a GPS monitor.
6)GPS Surveillance May Already be Applied as a Term of Probation
or Parole : Penal Code Section 3004 allows the parole
authority to use of electronic monitoring for the purpose of
helping to verify a parolee's compliance. GPS surveillance may
also already be applied as a term of probation. In People v.
Randolph (2006) 2006 Cal. App. Unpub. LEXIS 9727 (Randolph),
the defendant contended that his GPS term was unreasonable.
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The court in Randolph stated that "[t]he primary goal of
probation is to ensure the safety of the public . . . through
the enforcement of court-ordered conditions of probation.
Conditions of probation are routinely imposed when the
sentencing court determines, in an exercise of its discretion,
that a defendant who is statutorily eligible for probation is
also suitable to receive it. In the granting of probation,
the Legislature has declared the primary considerations to be:
the nature of the offense; the interests of justice,
including punishment, reintegration of the offender into the
community, and enforcement of conditions of probation; the
loss to the victim; and the needs of the defendant. (Id. at
*4-*5.)
In granting probation, courts have broad discretion to impose
conditions to foster rehabilitation and to protect public
safety pursuant to Penal Code Section 1203.1. The court may
impose and require such reasonable conditions as it may
determine are fitting and proper to the end that justice may
be done, that amends may be made to society for the breach of
the law, for any injury done to any person resulting from that
breach, and generally and specifically for the reformation and
rehabilitation of the probationer.
However, the court in Randolph cautioned that the trial court's
discretion, although broad, nevertheless is not without
limits: a condition of probation must serve a purpose
specified in the statute. (Id. at *5.) In addition, Penal
Code section 1203.1 requires that probation conditions which
regulate conduct "not itself criminal" be "reasonably related
to the crime of which the defendant was convicted or to future
criminality." [People v. Carbajal (1995) 10 Cal.4th 1114,
1120-1121; see also 1203.1; People v. Welch (1993) 5 Cal.4th
228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.]
As with any exercise of discretion, the sentencing court
violates the above standard when its determination is
arbitrary or capricious or "exceeds the bounds of reason, all
of the circumstances being considered." [People v. Carbajal,
supra, 10 Cal.4th 1114 at p. 1121.] While a probationer
retains rights of privacy and liberty under the federal
Constitution [People v. Keller (1978) 76 Cal.App.3d 827, 832,
overruled on other grounds in People v. Welch, supra, 5
Cal.4th at p. 237.], probationary conditions may nevertheless
place limits on constitutional rights if reasonably necessary
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to meet the goals of probation. [People v. Bauer (1989) 211
Cal.App.3d 937, 940-941; see also Gilliam v. Municipal Court
(1979) 97 Cal.App.3d 704, 708 ("[a] condition of probation
which requires a defendant to give up a constitutional right
is not per se unconstitutional").]
The California Supreme Court in People v. Lent (1975) 15 Cal.3d
481, established the rule on probationary conditions: "A
condition of probation will not be held invalid unless it '(1)
has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .' [Id. at p.
486, fn. omitted, abrogated by Proposition 8 on another ground
as recognized in People v. Wheeler (1992) 4 Cal.4th 284,
290-292.] It is well established that "probation conditions
which regulate conduct 'not itself criminal' must be
'reasonably related to the crime of which the defendant was
convicted or to future criminality.' " [People v. Welch,
supra, 5 Cal.4th 228, 233-234, quoting Lent, at p. 486.] All
three factors must be present for a condition of probation to
be invalid. [People v. Wardlow (1991) 227 Cal.App.3d 360,
365-366.]
In People v. Jungers (2005) 127 Cal.App.4th 698 (Jungers), the
defendant pleaded no contest to committing corporal injury
upon a cohabitant or child's parent [ 273.5, subd. (a)]. He
was granted probation, one of the conditions of which was that
he only have "mutual" contact with the victim. After
violating probation by, among other things, contacting or
attempting to contact the victim, the court ordered that
defendant have no contact with her, stating that the victim
could contact defendant, but defendant could not contact her.
The defendant later married the victim, Martinez, and sought
modification of a probation condition that had restricted
association between them. The court "clarified its ruling" by
stating that the order did not preclude any contact between
the defendant and his wife but precluded him from initiating
the contact. The defendant complained on appeal that the
modified condition violated, inter alia, his rights to
association and marital privacy. (Jungers, supra, 127
Cal.App.4th at pp. 700-706.)
The Jungers court stated, "Probation is a privilege and not a
right. Because probation conditions foster rehabilitation and
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protect the public safety, they may infringe the
constitutional rights of the defendant, who is 'not entitled
to the same degree of constitutional protection as other
citizens. Certain intrusions by government which would be
invalid under traditional constitutional concepts may be
reasonable at least to the extent that such intrusions are
required by legitimate governmental demands. Consequently,
restrictions on a probationer's right of association are
permissible if reasonably required to accomplish the needs of
the state. However, probation conditions that restrict
constitutional rights must be carefully tailored and
'reasonably related to the compelling state interest' in
reforming and rehabilitating the defendant." (Jungers, supra,
127 Cal.App.4th at pp. 703-704.)
The Court of Appeal continued, "Here, Jungers's reasonable
expectations of free association and marital privacy have
necessarily been reduced by his conviction of a crime
specifically, a felony involving domestic violence against
Martinez. Nevertheless, the probation condition restricting
Jungers's ability to contact Martinez is valid only if it is
reasonably necessary to accomplish the needs of the state and
is narrowly tailored to accomplish this goal. We conclude it
is." (Jungers, supra, 127 Cal.App.4th at p. 704.)
Consistent with the Legislature's response to the problem of
domestic violence, section 273.5 punishes a defendant who
inflicts corporal injury on a spouse. The statute reflects
legislative recognition of the high incidence of violence in
intimate relationships and the state's interest in encouraging
non-violent, intimate relationships. Further, when a
defendant convicted of domestic violence is granted probation,
the terms of probation must include '[a] criminal court
protective order protecting the victim from further acts of
violence, threats, stalking,
. . . and harassment, and, if appropriate, containing residence
exclusion or stay-away conditions." (Jungers, supra, 127
Cal.App.4th at p. 704.)
The Jungers court continued, "Here, the court was required to
issue a protective order for Martinez when it placed Jungers
on probation, despite Martinez's claim she did not fear for
her safety. Although the court's order curtailed Jungers's
rights of association and marital privacy, it legitimately and
reasonably operated to accomplish the needs of the state in
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addressing domestic violence by rehabilitating Jungers and
protecting Martinez. The state's compelling interest in
protecting victims of domestic violence justifies the
restriction on Jungers's right to initiate contact with
Martinez." (Jungers, supra, 127 Cal.App.4th at p. 705, fn.
omitted.)
Likewise, the court in Randolph held, the GPS term supports the
state's compelling interest in preventing future incidents of
domestic abuse. (Randolph, supra, 2006 Cal. App. Unpub. LEXIS
9727 at p. *13.) The court did not prohibit any and all
contact or association between defendant and the victim.
Instead, the court imposed, as a probation condition, a term
that would protect the safety of the defendant's wife.
(Ibid.) The court noted that despite the fact that there is
no record of a restraining order against defendant by the
victim or a stay-away order prohibiting defendant from contact
with the victim, the crime of domestic violence justifies
increased surveillance and protection as noted by the
Legislature.
In furtherance, the Randolph court acknowledge that a GPS term
is no different than the probation conditions requiring a
defendant to submit to a polygraph examination, requiring a
defendant to wear a monitoring ankle bracelet, or requiring
defendant to submit to a warrantless search. [See, e.g.,
People v. Ramos (2004) 34 Cal.4th 494, 505-506 (warrantless
search); Brown v. Superior Court (2002) 101 Cal.App.4th 313,
319-321 (polygraph examination); People v. Zichwic (2001) 94
Cal.App.4th 944, 952 (tracking device); People v. Miller
(1989) 208 Cal.App.3d 1311, 1314 (polygraph examination).]
This bill imposes mandatory placement of GPS surveillance. This
is unnecessary. As it stands, trial courts and the parole
authority may impose such a device as they deem necessary on a
case-by-case basis. No reason has been given to take away
such discretion. Moreover, this bill incorrectly gives trial
courts the authority to place GPS surveillance upon a parolee.
Trial court judges do not have this ability. A parolee is
under the guise of the parole authority, and it is the parole
authority who determines the necessary and proper terms of
parole.
7)GPS May have an Unintended Disparate Impact Among Minority
Communities : Legislation meant to provide greater protection
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to victims of domestic violence could actually exacerbate the
conditions that facilitate its occurrence within minority
communities. While some women terrified by their abusers will
seek help from law enforcement as a result of this bill,
patterns of domestic violence in the African American
community suggest that using GPS to monitor offenders will
silence many female victims in that community, where domestic
violence is both more prevalent and is more likely to lead to
homicide than in Caucasian communities. The average annual
rate of non-fatal, intimate partner violence from 1993 to 2004
was higher for African American females than for Caucasian
females. [Catalano, U.S. Dep't of Justice, Bureau of Justice
Statistics, Intimate Partner Violence in the United States
(2006),
[as of Apr. 15, 2009].] African American women are also more
likely to suffer the most severe forms of violence in
comparison to most other groups of women. [Chicago Foundation
for Women, What Will It Take? Types of Violence
(as of
Apr. 15, 2009).] By failing to build appropriate safeguards
into this policy, law enforcement officials with ulterior
motives will face an added incentive to determine
disproportionately that offenders from targeted racial groups
warrant GPS monitoring. This might include the desire to
constantly monitor African American offenders, whom they
perceive as more likely to engage in other illicit activities.
As an initial matter, studies of domestic violence in African
American communities have revealed that there are unique
factors associated with African American male offenders: "The
situational context in which intimate partner violence occurs
among African Americans is, in many ways, a product of the
various structural forces (e.g., institutional racism, cycles
of chronic underemployment and unemployment, poverty, etc.)
that constrict the lives of African Americans." [Hampton, et
al., Domestic Violence in the African American Community: An
Analysis of Social and Structural Factors, Violence Against
Women (2003) 533, 542.] "Frustrated masculinity syndrome" has
been used "to describe how some African American men responded
to racial prejudice and various institutional barriers that
blocked them from having equal access to the designated
legitimate means to achieve manhood through conventional,
societal avenues." (Id. at 539.)
The pressures of an oppressive and socially stratified society
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have elicited a negative effect on African American women as
well. Many of them feel they cannot subject their partner to
an oppressive and racist institution by seeking help through
the legal system in a society where many African American men
already feel frustrated and emasculated. Thus, physically
imposing a GPS unit on their bodies so that the government can
constantly monitor their behavior will only serve to heighten
their sense of powerlessness. Such an effect will not go
unnoticed by their partners debating whether to seek help from
law enforcement officials, and it may tilt the scale away from
pursuing help from official authorities. Moreover, any
reputational harm or difficulty this system creates for
offenders in their hunt for gainful employment will only
further the conditions that bred abuse in the first place.
Even where equality in process should be at its apex, there is
discrimination. Justice Scalia, in discussing the death
penalty, wrote that "the unconscious operation of irrational
sympathies and antipathies, including racial, upon jury
decisions, and [hence] prosecutorial decisions, is real,
acknowledged in the decisions of this court, and
ineradicable." [Doyle and Hynes, Catholics and the Death
Penalty Panel Discussion (2006) 44 J. Cath. Legal Stud. 297
(citing Banner, The Death Penalty (2002) 289, 290 (quoting
Memorandum from Antonin Scalia, Associate Justice, United
States Supreme Court, to the Conference of Supreme Court
Justices (Jan. 6, 1987).]
Further, dangerousness assessments, which have been proposed as
a way to determine whether batterers will qualify for GPS
monitoring, risk disparate enforcement and have "repeatedly
been shown in the psychological and psychiatric literature" to
be "notoriously unreliable." [See Rosenfeld, Correlative
Rights and the Boundaries of Freedom Protecting the Civil
Rights of Endangered Women (2008) 43 Harv. C.R.-C.L. L. Rev.
261 (discussing dangerousness assessments).]
California must ensure that GPS is not unjustly enforced against
people of color and that it is actually benefiting the women
it is trying to protect. California must avoid cultural and
racial bias and to ensure that the use of the GPS system in
protecting against domestic violence does not become the
pretext for constant monitoring of minority batterers.
8)Arguments in Support : None submitted
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9)Argument in Opposition : According to the California
Partnership to End Domestic Violence (CPEDV) , "AB 1081 is part
of a nationwide effort to implement GPS monitoring for
domestic violence offenders. While CPEDV has long advocated
justice for victims and accountability for offenders, we have
major concerns with this legislation, which are listed below.
a) "GPS monitoring should not be viewed as a panacea or
'quick fix' for threats if future violence. GPS monitoring
is only effective as a part of a larger coordinated system.
If not enough trained officers respond quickly when an
offender approaches a victim, and if courts lack resources
to hold offenders accountable, the monitoring devices will
not be effective.
b) "GPS can complicate an already delicate dynamic in
communities where relations between law enforcement and
advocates are not strong. In order for a GPS system to be
effective, it would be necessary for a community-based
advocate to explain to victims how the offender tracking
system works, and its benefits and risks.
c) "There could be unintended costs to survivors resulting
from the bill's stipulation that offenders pay for their
tracking devices when possible. If offenders are required
to pay for the technology it could complicate child
support, rent or mortgage payments, etc., which can
adversely affect the offenders' victims and children.
d) "Active monitoring of perpetrators is only effective if
an administrator continually monitors the location of
offenders, 24/7. Additionally, perpetual monitoring would
require the victim, who has not committed a rime, to be
tracked 24 hours a day. This raises serious safety and
privacy risks. It also creates a risk that the offender or
offender's attorney may try to obtain the victim's location
records in an effort to intimidate or harass the victim.
For safety, a monitoring agency's polices should restrict
access to a victim's location to the fewest staff possible,
and routinely purge victim location records. Such best
practices are not currently address [sic] in the bill.
Additionally, any victim who is considering carrying a GPS
device must be fully informed of all risks and benefits,
provide consent before being tracked, and must be allowed
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to withdraw that consent at any time.
e) "Mandating a statewide 'one size fits all' approach
instead of rolling out grant-funded pilot projects in a few
counties is problematic. GPS tracking may not be the most
effective way to combat violence in all communities.
f) "The bill suggests that a 'risk assessment' will be made
to determine the likelihood of a perpetrator to reoffend.
However [,] the current bill language does not address the
substance of these assessments, or important questions
regarding their development and administration. Who does
the assessment? If the probation/parole assesses at a bail
hearing and the hearing takes place in the middle of the
night, what happens when certain counties don't have a
24-hour staff on hand to handle it? Will advocates and
mental health professionals be involved in the development
of this assessment? Is there certainty that victims who
violate protective orders or are on parole/probation will
not be fitted with a GPS device?
g) "It is critical to not divert existing resources, energy
and staff time away from other vital community efforts like
domestic violence prevention. GPS monitoring could work
will when the entire community is ready for it, but could
complicate and/or derail other domestic violence efforts if
introduced prematurely.
h) "While there are some victims who would be more likely
to seek help from law enforcement as a result of this bill,
patterns of domestic violence in some communities suggest
that using GPS to monitor offenders will silence many
others. This effect is most likely to impact victims of
color, who might hesitate to invite such an invasive law
enforcement intervention into their families and
communities.
i) "GPS tracking should not be used as an excuse to release
inmates in overcrowded prisons when budgets are strained.
However[,] on the surface if appears to be a good way to
reduce jail and prison costs, and could easily be leveraged
to this end."
10)Prior Legislation :
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a) SB 502 (Hollingsworth), of the 2007-08 Legislative
Session, would have required any person released
unconditionally from the sexually violent predator civil
commitment program to be monitored by GPS for life. SB 502
failed passage in the Senate Committee on Public Safety.
b) AB 1913 (Cardenas), of the 2005-06 Legislative Session,
would have placed GPS surveillance monitors on transient
sex offenders. AB 1913 failed passage in this Committee.
a) AB 231 (Runner), of the 2005-06 Legislative Session,
would have required sex offenders to be tracked on GPS for
the remainder of his or her life both on and off parole.
AB 231 failed passage in this Committee.
b) AB 1152 (La Suer), of the 2005-06 Legislative Session,
would have required every parolee defined as a "high-risk"
sex offender to be monitored by a GPS. AB 1152 was held on
the Assembly Appropriations Committee's Suspense Calendar.
c) AB 1442 (La Suer), of the 2003-04 Legislative Session,
would have established a pilot project in San Diego which
would require any inmate released on parole for conviction
of specified "violent" sex offenses to be monitored by a
GPS for the term of the inmate's parole. AB 1442 failed
passage in the Senate Public Safety Committee.
d) AB 1450 (Cardenas), of the 2001-02 Legislative Session,
would have required the CDCR to use a GPS to track 1% of
the state's parole population (1,230 parolees) over the
course of 12 months. AB 1450 was held in the Senate
Appropriations Committee's Suspense File and was later
amended into an unrelated subject matter.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Partnership to End Domestic Violence
Community Overcoming Relationship Abuse
AB 1081
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Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744