BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2295 (De La Torre) 5
As Amended May 28, 2010
Hearing date: June 29, 2010
Penal Code
AA:dl
SEX OFFENDERS:
PAROLEE RECORDS
HISTORY
Source: Author
Prior Legislation: None
Support: Unknown
Opposition:None Known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE LONG-TERM RETENTION OF CDCR RECORDS CONCERNING REGISTERED
SEX OFFENDERS PAROLED FROM PRISON BE STATUTORILY REQUIRED, AS
SPECIFIED?
PURPOSE
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The purpose of this bill is to ensure the long-term retention of
CDCR records concerning registered sex offenders paroled from
prison, as specified.
Current law creates in state government the Department of
Corrections and Rehabilitation (CDCR), headed by a secretary who
is appointed by the Governor, subject to Senate confirmation,
and serves at the pleasure of the Governor. CDCR consists of
Adult Operations, Adult Programs, Juvenile Justice, the
Corrections Standards Authority, the Board of Parole Hearings,
the State Commission on Juvenile Justice, the Prison Industry
Authority, and the Prison Industry Board. (Government Code
12838 (a).)
Current law provides that "the supervision, management and
control of the state prisons, and the responsibility for the
care, custody, treatment, training, discipline and employment of
persons
confined therein are vested in the Secretary of the Department
of Corrections and Rehabilitation." (Penal Code 5054)
Existing law generally provides that inmates serving a
determinate term of imprisonment shall be released on parole for
a period of three years.<1> (Penal Code 3000, subd. (b)(1).)
Existing law provides that any person released from prison on
parole may be released from parole after 1 year, or 2 years for
violent felonies, unless CDCR recommends to the contrary.
(Penal Code 3001.)
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<1> Sex offenders who have served a determinate term of
imprisonment are released on parole for a period of five years.
Specified sex offenders serving indeterminate (life) terms are
released on parole for a period of 10 years. (Penal Code
3000, subd. (b)(1) and (3).)
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Existing law provides that longer periods of parole apply to
specified crimes, for example lifetime parole for persons
sentenced to life imprisonment with the possibility of parole.
(Penal Code 3000.1.)
Existing law includes these additional provisions:
Prisoners on parole shall remain under the legal custody
of the department and shall be subject at any time to be
taken back within the enclosure of the prison. (Penal Code
3056.)
Any person who has been returned to prison after
revocation of parole may be held for 12 months, and an
additional 12 months for prison misconduct. The person
shall then be released on parole for the balance of the
period of parole. (Penal Code 3057.)
That prisoners, with the exception of life prisoners,
may earn custody credits for work and approved programs to
reduce the period of custody following revocation of
parole. (Penal Code 3057.)
The parole authority - now the Board of Parole Hearings
- shall have full power to suspend or revoke any parole,
and to order returned to prison any prisoner upon parole.
The written order of the parole authority shall be a
sufficient warrant for any peace or prison officer to
return to actual custody any conditionally released or
paroled prisoner. (Penal Code 3060.)
This bill would require CDCR to "permanently retain all files,
including handwritten or typed field files, prepared by the
Division of Adult Parole Operations regarding any person who has
been released on parole from the state prison who is required to
register pursuant to the Sex Offender Registration Act."
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
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the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<2>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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<2> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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COMMENTS
1. Author's Amendment
The author intends to amend this bill in Committee to provide
that its provisions require CDCR sex offender record retention
for 75 years.
2. Stated Need for This Bill
The author states:
Recent high-profile crimes, like those of John Albert
Gardner, have illustrated the value of parole
information to law enforcement in identifying and
apprehending dangerous suspects. In the Gardner case,
CDCR destroyed the suspect's Field File months before
he was sought in connection with the murders of
Chelsea King and Amber Dubois.
CDCR has since changed its parole file retention
policy to require the indefinite retention of sex
offender parole files. This bill will implement a
recommendation of the California Sex Offender
Management Board and ensure that CDCR will not change
this policy again without Legislative approval.
"The law does not currently require CDCR or local law
enforcement agencies, which register sex offenders, to
retain records on sex offenders for any specified time
period. In order to have all the facts about a
registered sex offender, it is essential that all
agencies involved in investigating, supervising,
monitoring and registering such offenders retain
records for at least 75 years, or until the death of
the registrant. Current law requires that the courts,
the California Department of Justice, and district
attorneys' offices retain these records for 75 years."
(Source: Response to Gov. Schwarzenegger's Request for
Review of the John Gardner Case, California Sex
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Offender Management Board, May 1, 2010)
3. Recommendation of the Sex Offender Management Board
As noted by the author, this bill is consistent with the
recommendations of the California Sex Offender Management Board
in its May 1, 2010 report, Response to Governor Arnold
Schwarzenegger's Request for Review of the John Gardner Case.
The Board noted that, "CDCR has since promulgated a policy
requiring that parole notes on sex offenders be retained
indefinitely," and recommended that "(r)egistering agencies
(sheriffs and police departments), county probation departments,
and CDCR should be added to the law requiring that these records
be retained for 75 years."
This bill addresses CDCR sex offender records; it does not
include records maintained by registering agencies and county
probation departments. The author and/or members of the
Committee may wish to discuss whether the provisions of this
bill should be extended to these records as well.
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