BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 5 8 3 SB 583 (Hollingsworth) As Amended March 31, 2009 Hearing date: April 28, 2009 Penal Code AA:mc REGISTERED SEX OFFENDERS: ADDRESS DATABASE HISTORY Source: Author Prior Legislation: None Support: Unknown Opposition:None known KEY ISSUE SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO CREATE A DATABASE CONTAINING CERTAIN HOUSING INFORMATION ABOUT REGISTERED SEX OFFENDERS FOR USE BY STATE AGENCIES CONDUCTING INVESTIGATIONS RELATING TO SEX OFFENDERS, AS SPECIFIED? PURPOSE (More) SB 583 (Hollingsworth) PageB The purpose of this bill is to require the Department of Justice to create a database containing certain housing information about registered sex offenders for use by state agencies conducting investigations relating to sex offenders, as specified. Existing law requires a person convicted of specified sex offenses to register upon release from incarceration, placement, commitment, or release on probation. (Pen Code 290 et seq.) Sex offender registration consists of the following: A written statement giving information required by the Department of Justice (DOJ) and giving the name and address of place of employment and employer; Fingerprints and a current photograph taken by the registering official; The license plate number of any vehicle owned, driven by or registered to the registrant; Notice that the registrant may have a duty to register in another state upon relocation; and Adequate proof of residence. (Penal Code 290.15.) This bill would require DOJ to "classify the address at which a registered sex offender resides with a unique identifier for address. The identifier shall include a description of the nature of the dwelling, including, but not limited to, a single family residence, an apartment, a motel, or a licensed facility. Each address classified and its association with any specific registered sex offender shall be stored in a private searchable database maintained by the department. The department shall make that information available to the State Department of Social Services or any other state agency when the agency needs the information for investigative responsibilities relative to sex offenders." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) (More) SB 583 (Hollingsworth) PageC 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: 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. ---------------------- <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).) (More) SB 583 (Hollingsworth) PageD . . . 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 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. --------------------------- <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). (More) SB 583 (Hollingsworth) PageE This bill does not aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Stated Need for This Bill The author states in part: To ensure that registered adult sex offenders are not residing in licensed facilities that serve children, SB 583 would require the Department of Justice to assign a unique identifier to each registered address in its sex offender database, indicating the type of residence (i.e., private residence, licensed or unlicensed facility). It would also require the Department of Justice to develop a process that would allow for the generation and disclosure between agencies (such as Social Services and Alcohol and Drug Programs) on sex offender residence data on an as-needed basis. . . . SB 583 will provide state agencies with an effective tool in the monitoring of registered sex offenders, enabling them to share critical information that would well serve in the protection of children and families in California. . . . The Department of Justice's database contains addresses of registered sex offenders, but it does not identify whether the addresses are a private residence, a licensed residential facility or hotel because there is no requirement to report this information. 2. What This Bill Would Do As explained above, this bill would require the Department of (More) SB 583 (Hollingsworth) PageF Justice ("DOJ") to create a database containing certain housing information for registered sex offenders for use by state agencies conducting investigations relating to sex offenders, with the following features and requirements: DOJ would be required to classify the residence addresses of registered sex offenders using a "unique identifier." This "identifier" would have to include a description of the nature of the dwelling, including, but not limited to, a single family residence, an apartment, a motel, or a licensed facility. Each address classified and its association with any specific registered sex offender would be required to be stored in a private searchable database maintained by DOJ. DOJ would be required to make that information available to the State Department of Social Services or any other state agency when the agency needs the information for investigative responsibilities relative to sex offenders. 3. State Auditor's Report This bill is based on a report issued a year ago by the California State Auditor entitled, "Sex Offender Placement: State Laws Are Not Always Clear, and No One Formally Assesses the Impact Sex Offender Placement Has on Local Communities." With respect to the author's targeted concerns about the proximity of sex offenders to children in licensed facilities, this report states in part: We also found 49 instances in which the registered addresses in Justice's database for sex offenders were the same as the official addresses of facilities licensed by Social Services that serve children such as family day care homes. State law requires that before issuing a license to operate or manage certain facilities that serve children, Social Services must review the criminal history of all applicants seeking licenses, their employees, and all adults residing at (More) SB 583 (Hollingsworth) PageG these facilities.<3> The report contains the following recommendation that is the basis of this bill: To ensure that registered adult sex offenders are not residing in licensed facilities that serve children, Justice should provide Social Services with the appropriate identifying information to enable Social Services to investigate those instances in which the registered addresses of sex offenders were the same as child care or foster care facilities. If necessary, Justice and Social Services should seek statutory changes that would permit Justice to release identifying information to Social Services so that it may investigate any matches. . . .<4> 4. The Responses of DOJ and DSS to the Auditor's Report With respect to the issue of sharing information with DSS, DOJ responded to the Auditor's Report as follows: The supplemental report states that the BSA has "found instances in which the registered addresses in Justice's database for 49 sex offenders were the same as the official addresses of facilities licensed by Social Services that serve children, such as family day care homes and foster family homes." The initial report states 45 such instances were identified, but the BSA has represented that four additional cases were overlooked in the initial review because of human error. The BSA has stated that the 49 cases represent ---------------------- <3> Sex Offender Placement: State Laws Are Not Always Clear, and No One Formally Assesses the Impact Sex Offender Placement Has on Local Communities (California State Auditor Report 2007-115) ("Report"), pp. 1-2. <4> Report, p. 27 (emphasis added). (More) SB 583 (Hollingsworth) PageH its final conclusion.<5> The DOJ has examined its records and confirmed that of the 49 "matches" identified by the BSA, the DOJ has no record that 46 were ever the subject of a DSS pre-licensing inquiry for state or national level criminal history search. Under California law, a criminal history search is required as a condition "to operate or provide direct care services in a community care facility, foster family home, or a certified family home of a licensed foster family agency." (Health & Safety Code, 1522.) The DOJ promptly performs this search when requested, (More) ---------------------- <5> In response to this paragraph BSA states: "In completing our quality control process, we identified four additional sex offenders whose addresses in Justice's database were the same as the official addresses of facilities licensed to serve children. Accordingly, we notified Justice and increased the number from 45 to 49 in our report. We also added language to page 22 of the report to clarify that the licensed facilities that serve children are in addition to, and not a subset of the 352 residential facilities." but the DOJ has no record that a request was ever made for these 46 cases. As to the remaining three (of the 49), the DOJ has examined each case's specific circumstances and concluded it provided the necessary information to the DSS in a timely manner as required by law.<6> The DOJ has actively worked with the DSS to satisfy the report's recommendation that "Justice should consult with Social Services to investigate those instances in which the registered addresses of sex offenders were the same as these facilities." The DOJ and DSS continue to cooperate with each other to find a solution to the issue to protect the public and ensure the safety of every person at risk.<7> In its response to the audit the Department of Social Services stated in part: The Department of Justice (DOJ) is responsible for notifying CDSS of the complete criminal record history information, based on fingerprints submitted for adults working or residing in a facility seeking a license. If CDSS finds that the license applicant or any individual who works or resides in a licensed facility (other than the residential facility clients themselves) has been convicted of any crime, other than a minor traffic violation, the license ---------------------- <6> In response to this paragraph BSA states: "We appreciate that Justice has performed some research on those sex offenders we identified as having the same address as a child care facility. However, Justice did not address our comment that it further investigate these instances and report to us the results of its investigation. Accordingly, we have added a recommendation on page 27 of the report advising Social Services and Justice to investigate those instances we identified in which the registered addresses of sex offenders were the same as the addresses of facilities that serve children." <7> Letter dated April 15, 2008, attached to BSA report. (More) SB 583 (Hollingsworth) PageJ application shall be denied, unless the director grants an exemption. Subsequent criminal conviction information may also result in a revocation of the license or exclusion of an individual from the licensed facility. In addition, upon enrollment of their children in a licensed child day care facility, all parents are notified by CDSS in the parents' rights notification form of the sex offender registry website and the parents may check the registry if they are further concerned with the neighborhood they have selected for their child care. The draft audit indicates that in reviewing the addresses of licensed facilities for children, the BSA discovered 46 resident address matches in a DOJ database for 49 registered sex offenders. Pursuant to the definition provided in the audit draft, this would mean that 46 of the approximately 70,000 licensed facilities serving children could be compromised. This type of information is always of significant concern to the CDSS and requires us to take immediate action.<8> In light of the existing authority for the exchange of criminal record information between DOJ and DSS, members of the Committee and the author may wish to explore whether the information found by the audit - specifically, that in 49 cases the addresses for registered sex offenders matched the addresses for DSS-licensed child facilities - supports the need for a new database or, in the alternative, might better be addressed through more rigorous accountability practices and procedures at DSS. SHOULD DOJ BE REQUIRED TO ESTABLISH A SEPARATE DATABASE CONTAINING HOUSING INFORMATION ABOUT REGISTERED SEX OFFENDERS, TO BE MADE AVAILABLE TO DSS AND OTHER STATE AGENCIES REQUIRING INVESTIGATIVE INFORMATION RELATING TO SEX OFFENDERS? WOULD SUCH A DATABASE IMPROVE THE ABILITY OF DSS AND OTHER STATE --------------------------- <8> Letter dated April 16, 2008, attached to BSA report. SB 583 (Hollingsworth) PageK ENTITIES TO QUICKLY AND ACCURATELY IDENTIFY THE RESIDENCES OF REGISTERED SEX OFFENDERS FOR PURPOSES OF ENSURING THE INTEGRITY OF STATE LICENSING OVERSIGHT? DOES DOJ'S CURRENT SEX OFFENDER REGISTRY DATABASE INCLUDE THE CHARACTERISTICS THIS BILL WOULD REQUIRE MARKED WITH A "UNIQUE IDENTIFIER" - SINGLE FAMILY RESIDENCE, APARTMENT, MOTEL, OR LICENSED FACILITY? IF NOT, WOULD THIS BILL REQUIRE DOJ TO CREATE A DATABASE FROM NEW DATA NOT CURRENTLY COLLECTED BY DOJ? IF DOJ CURRENTLY CONDUCTS CRIMINAL BACKGROUND CHECKS FOR DSS LICENSING PURPOSES, IS THIS BILL NECESSARY? DO THE FINDINGS OF THE BSA AUDIT DESCRIBED ABOVE SUPPORT THE NEED FOR AN ADDITIONAL DATABASE, AS THIS BILL PROPOSES? OR, DO THESE FINDINGS SUGGEST THAT IMPROVEMENTS CAN BE MADE IN THE PRACTICE AND PROCEDURES OF DSS IN CONDUCTING CRIMINAL RECORD CHECKS FOR ITS LICENSEES? WOULD Improved practices coupled with accountability and performance auditing to ensure rigorous compliance with existing criminal record check requirements BE A more practical WAY OF DEALING WITH THE CONCERNS RAISED BY THIS BILL? ***************