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?


                                   ***************