BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 564 (Hollingsworth)
As Amended April 2, 2009
Hearing date: April 28, 2009
Welfare & Institutions Code
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SEXUALLY VIOLENT PREDATORS:
REENTRY HOUSING ON CONDITIONAL RELEASE
HISTORY
Source: Author
Prior Legislation: AB 893 (Horton) - Ch. 162, Stats. 2005
AB 2450 (Canciamilla) - Ch. 425, Stats. 2004
AB 493 (Salinas) - Ch. 222, Stats. 2004
AB 659 (Correa) - Ch. 248, Stats. 2001
AB 1142 (Runner) - Ch. 323, Stats. 2001
SB 2018 (Schiff) - Ch. 420, Stats. 2000
SB 451 (Schiff) - Ch. 41, Stats. 2000
AB 2849 (Havice) - Ch. 643, Stats. 2000
SB 746 (Schiff) - Ch. 995, Stats. 1999
SB 11 (Schiff) - Ch. 136, Stats. 1999
SB 1976 (Mountjoy) - Ch. 961, Stats. 1998
AB 888 (Rogan) - Ch. 763, Stats. 1995
SB 1143 (Mountjoy) - Ch. 762, Stats 1995
Support: San Bernardino County Sheriff's Department
Opposition:None known
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KEY ISSUES
SHOULD ANY SEXUALLY VIOLENT PREDATOR PATIENT RELEASED FROM
COMMITMENT IN THE STATE HOSPITAL BE PLACED IN A REENTRY FACILITY
ADMINISTERED BY THE DEPARTMENT OF MENTAL HEALTH UNTIL SUITABLE
HOUSING IS FOUND FOR THE PERSON?
SHOULD THE LEGISLATURE FIND AND DECLARE THAT RELEASE OF A SEXUALLY
VIOLENT PREDATOR WHO HAS NO RESIDENCE PRESENTS AN UNACCEPTABLE RISK
TO THE SAFETY OF THE PUBLIC AND THE RELEASED PERSON?
PURPOSE
The purposes of this bill are to 1) require that patients
released from the sexually violent predator program be placed in
a reentry facility operated by the Department of Mental Health
(DMH) until suitable housing is found; and 2) state a
legislative finding that release of a person from the sexually
violent predator program without a residence presents an
unacceptable risk of harm to the public and the released person.
The Sexually Violent Predator (SVP) law provides for the civil
commitment for psychiatric and psychological treatment of a
prison inmate found to be a sexually violent predator after the
person has served his or her prison commitment. (Welf. & Inst.
Code 6600, et seq.)
Existing law defines a sexually violent predator as an inmate
"who has been convicted of a sexually violent offense against
one or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior." (Welf. & Inst. Code 6600, subd. (a).)
Existing law defines a "diagnosed mental disorder" as one that
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includes "a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to
the commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others." (Welf.
& Inst. Code 6600, subd. (c).)
Existing law permits persons committed as SVP patients to
petition the court for conditional release without the
recommendation or concurrence of the DMH Director (Welf. & Inst.
Code 6608). In particular, section 6608:
Sets the standard for consideration at a hearing for
conditional release to the community for treatment is that
he or she would not be a danger to others in that it is not
likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment
in the community. (Welf. & Inst. Code 6608, subd. (a).)
Mandates that the court shall give notice of the hearing
date to the designated county counsel, the retained or
appointed attorney for the committed person and the DMH
Director at least 15 court days before the hearing date.
(Welf. & Inst. Code 6608, subd. (b).)
Mandates that the court shall hold a hearing to
determine whether the person committed would be a danger to
the health and safety of others in that it is likely that
he or she will engage in sexually violent criminal behavior
due to his or her diagnosed mental disorder if under
supervision and treatment in the community. If the court,
at the hearing, determines that the committed person would
not be a danger to others due to his or her diagnosed
mental disorder while under supervision and treatment in
the community, the court shall order the committed person
placed with an appropriate forensic conditional release
program operated by the state for one year. A substantial
portion of the state-operated forensic conditional release
program shall include outpatient supervision and treatment.
The court shall retain jurisdiction of the person
throughout the course of the program. At the end of one
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year, the court shall hold a hearing to determine if the
person should be unconditionally released from commitment
on the basis that, by reason of a diagnosed mental
disorder, he or she is not a danger to the health and
safety of others in that it is not likely that he or she
will engage in sexually violent criminal behavior. The
court shall not make this determination until the person
has completed at least one year in the state-operated
forensic conditional release program. The court shall
notify the DMH Director of the hearing date. (Welf. &
Inst. Code 6608, subd. (d).)
Requires, if the court determines that the person should
be transferred to a state-operated forensic conditional
release program, the community program director, or his or
her designee, shall make the necessary placement
arrangements and, within 21 days after receiving notice of
the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision
plan unless good cause for not doing so is presented to the
court. (Welf. & Inst. Code 6608, subd. (f).)
Allows if the court rules against the committed person
at the trial for unconditional release from commitment, the
court may place the committed person on outpatient status
in accordance with specified procedures. (Welf. & Inst.
Code 6608, subd. (g).)
This bill provides that any sexually violent predator who is
released from civil commitment in a state hospital after January
1, 2010, pursuant to this article shall be placed in a reentry
facility administered by the State Department of Mental Health
until suitable housing is found for the sexually violent
predator.
This bill includes the following findings and declarations:
The December 2006 report of the High Risk Sex Offender
and Sexually Violent Predator Task Force stated the
following: "Homeless releases cause an unacceptable and
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unnecessary risk to the public because the individual
cannot be properly supervised and many of the terms and
conditions of release cannot be enforced (such as global
positioning satellite monitoring, curfews, and associations
with other felons).? [R]elease of any SVP without a home ?
creates an unacceptably high risk to the public and the
SVP, and is making specific recommendations in this report
to improve the SVP placement process."
[T]he Legislature [therefore intends] to provide
appropriate reentry housing for SVPs until suitable
residential housing may be found.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
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rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
The Sexually Violent Predator Act (Welf. & Inst. Code 6600)
went into effect on January 1, 1996. This statute established
a new category of civil commitment. In establishing the SVP
Act, the Legislature declared that there is a small group of
extremely dangerous sexual offenders who have diagnosable
mental disorders and can be readily identified while
incarcerated. It further declared that these individuals are
not safe to reside at-large in the community and represent a
danger to the health and safety of others if they are
released. The Legislature intended that individuals
classified as SVPs be confined and treated until they no
longer present a threat to society. Currently, roughly 768
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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SVPs are in state mental facilities.
The California Department of Mental Health (DMH) has a
statutorily defined responsibility regarding the housing of
SVPs on conditional release, which includes ensuring that the
housing aligns to the treatment needs of the SVP. Contracted
by DMH in February 2003, Liberty Healthcare Corporation
provides specialized supervision which requires approval of
the committing Superior Court. Upon notification of the Court
to place an SVP in the community, they initiate a housing
search and once a tentative placement option has been
identified, it is presented to the Court which makes the final
decision. If housing cannot be found, the Court can order a
"homeless release" and the SVP is able to register as a
"transient." When registrants change their residence address
or become homeless, they are required to update their
registration information within five days with a local agency,
which forwards that information to the Department of Justice
(DOJ). DOJ updates the registered sex offender database on a
daily basis, based on information received from local
agencies. DOJ also updates the registered sex offender
information daily on the Internet site.
Homeless releases of SVP patients cause an unacceptable and
unnecessary risk to the public. SB 564 would require the
Department of Mental Health to house conditionally released
SVP patients in a reentry/transition facility until suitable
housing can be found.
2. The Department of Mental Health has Found it Nearly Impossible
to Place Conditionally Released SVP Patients
Approximately 10 years have passed since the first person was
conditionally released from the Department of Mental Health
("DMH") program for sexually violent predators. The first
patient - Brian DeVries - was moved a number of times before he
was finally placed in a trailer on the grounds of the Soledad
State Prison. The surrounding community vehemently protested
the placement. Another conditionally released patient - Carrie
Verse - was literally moved daily under cover of night until he
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was offered a residence in Contra Costa County.
Numerous bills in recent years have considered requirements for
the placement of a conditionally released SVP. (See, e.g., AB
493 (Salinas) - Ch. 222, Stats. 2004 and AB 2450 (Canciamilla) -
Ch. 425, Stats. 2004.) For example, an SVP patient is required
to be conditionally released into his county of residence,
unless the treatment and supervision required under the law
cannot be given in that county.
In 2006, after a year of hearings, Sacramento court ordered an
SVP patient to be conditionally released to no fixed residence.
DMH was unable to find him a residence in that time, although it
appears that the court found that DMH had not been diligent in
its efforts.
By the end of April, 2009, Matthew Hedge will be conditionally
released to a trailer on the grounds of Donovan State Prison in
San Diego County. Hedge was previously placed on conditional
release, but was returned to the program because of a violation
of his release conditions. Another SVP patient, Douglas Badger,
was conditionally released to a trailer at Donovan in 2006. He
did not contest a return to the program.
It appears that an SVP patient who has qualified for conditional
release has a liberty interest in his release. Denying a
qualifying patient conditional release because the state is
unable to find a residence for him would violate substantive due
process. (Foucha v. Louisiana (1992) 504 U.S. 71, 75-76.)
Further, denying release to a patient who has met statutory
requirements would be unconstitutional as punitive, because SVP
civil commitment can only be for treatment, not punishment.
(Kansas v. Hendricks (1997)521 U.S. 346, 364; Hubbart v.
Superior Court (1999) 19 Cal.4th 1138, 1166-1177.)
The task for DMH in placing conditionally released SVP patients
into residences became more difficult with the passage of
Proposition 83 (Jessica's Law) of the 2006 November Election.
Under Proposition 83, specified sex offenders cannot reside
within 2,000 of a school or park where children congregate. DMH
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must now compete with the Department of Corrections and
Rehabilitation for very limited residential sites.
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3. The Washington SVP (Special Commitment Center - SCC) Program
Operated for 15 Years under a Federal Injunction Based in Part
on the Failure of its Conditional Release Program to Include
Community Reintegration
The State of Washington was fined millions of dollars in federal
court sanctions for failing to comply with court orders to
improve treatment in its Special Commitment Center (SVP)
program.<3> The program operated for nearly 15 years under a
federal injunction that required the SCC to provide meaningful
treatment for committed persons. The case initially considered
a wide range of treatment and confinement issues. The last
matter supervised by the court was the conditional release
program. The court ordered the state to provide the least
restrictive alternative (LRA) housing and treatment in the
community for conditionally released patients. (Turay v.
Richards (9th Cir. 2009) 2009 U.S. App. LEXIS 1930
(unpublished); Sharp v. Weston (2000) 233 F.3rd 1166.)
The state now operates transitional LRA facilities in King
County (Seattle) and Pierce County. The Pierce County LRA is a
separate facility from the SCC on McNeil Island. (The island is
a relatively short ferry boat ride from the Tacoma area.) The
patients in the Seattle facility reside in the midst of a wide
range of employment and educational opportunities, and the
patients can be visited relatively easily by family members.
(Washington SCC protocols also appear to define living with
relatives as a valid LRA.) The federal court has dissolved the
injunction after finding that the LRA facilities provide
adequate treatment and reintegration of SVP patients into the
community. (Turay v. Richards (2007) 2007 U.S. Dist. LEXIS
21374.)
SHOULD CALIFORNIA, AS HAS WASHINGTON STATE, ESTABLISH
TRANSITIONAL LIVING FACILITIES THAT PROVIDE THE LEAST
RESTRICTIVE ALTERNATIVE FOR HOUSING AND TREATING CONDITIONALLY
RELEASED SVP PATIENTS?
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<3> Payment of the fines was permanently stayed because the
state eventually complied with the court orders.
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4. Drafting Issues - Technical, Statutory and Constitutional
Concerns
Task Force Recommendations - Technical Drafting Error
The findings and declarations in the bill include a quotation
from the 2006 report by the High Risk Sex Offender and Sexually
Violent Predator Task Force. One phrase or clause in the
quotation refers to specific recommendations made by the task
force in the report. However, these specific portions of the
report are not included in the bill. Thus, the clause is
statutory "surplusage" - excess words not necessary or relevant
to the statute. (SB 564, as amended April 2, 2009, p. 2, lines
11-13.)
SHOULD A REFERENCE TO RECOMMENDATIONS IN A REPORT BY A TASK
FORCE BE STRICKEN FROM THE BILL, AS THE REPORT DOES NOT APPEAR
IN THE BILL?
The Bill Refers to "Any" Person Released from Civil Commitment,
not Conditionally Released Persons
A person who is conditionally released from inpatient treatment
in the SVP program is still under commitment and treatment,
although treatment is given to the patient in a community
program. DMH is responsible for finding housing for a
conditionally released SVP patient. A person who is
unconditionally released from the program is not in treatment.
An unconditionally released person is only under state control
if he is still subject to parole. If the person is still on
parole, CDCR is responsible for supervising the person.
Further, a person who is unconditionally released is no longer
considered a sexually violent predator.
Thus, the bill should state that "any sexually violent predator
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who is released into a forensic conditional released program
shall be placed in a reentry facility operated by [DMH]?"
Failure of DMH to Place Patient in a Reentry Facility Shall not
Prevent Release
This bill requires DMH to place conditionally released SVP
patients into a reentry facility. Numerous court cases have
held that an SVP patient who has qualified for conditional
release cannot be indefinitely held in confinement because DMH
has failed to find housing for the person. It is suggested that
the bill provide that failure of DMH to place an SVP patient in
a reentry facility shall not prevent conditional release of a
patient who has established that he "would not be a danger to
others ? while under supervision and treatment in the
community."
SHOULD THE BILL PROVIDE THAT THE FAILURE OF DMH TO PLACE AN SVP
PATIENT IN A REENTRY FACILITY SHALL NOT PREVENT RELEASE OF A
PATIENT WHO HAS QUALIFIED FOR CONDITIONAL RELEASE?
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