BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 1 2 0 SB 1201 (DeSaulnier) 1 As Amended April 5, 2010 Hearing date: April 13, 2010 Penal Code AA:mc SEX OFFENDERS PAROLEES: RISK ASSESSMENTS HISTORY Source: Author Prior Legislation: SB 325 (Alquist) - Ch. 582, Stats. 2009 SB 1253 (Alquist) - vetoed, 2008 SB 1128 (Alquist) - Ch. 337, Stats. 2006 Support: Unknown Opposition:None known KEY ISSUE SHOULD the California Department of Corrections and Rehabilitation BE EXPRESSLY REQUIRED TO RISK ASSESS sex offender parolees WHO HAVE BEEN transferred from other jurisdictions, AS SPECIFIED? (More) SB 1201 (DeSaulnier) PageB PURPOSE The purpose of this bill is to expressly require that sex offender parolees transferred from other jurisdictions to the California Department of Corrections and Rehabilitation be risk assessed pursuant to the requirements of the California "State-Authorized Risk Assessment Tool for Sex Offenders" ("SARATSO"), as specified. Current law generally authorizes the use of a "State-Authorized Risk Assessment Tool for Sex Offenders" ("SARATSO") pursuant to the legislative finding that "a comprehensive system of risk assessment, supervision, monitoring and containment for registered sex offenders residing in California communities is necessary to enhance public safety and reduce the risk of recidivism posed by these offenders." (Penal Code 290.03; 290.04.) Current law requires that the SARATSO be administered as follows: The Department of Corrections and Rehabilitation ("CDCR") shall assess every eligible person who is incarcerated in state prison. Whenever possible, the assessment shall take place at least four months, but no sooner than 10 months, prior to release from incarceration. CDCR shall assess every eligible person who is on parole if the person was not assessed prior to release from state prison. Whenever possible, the assessment shall take place at least four months, but no sooner than 10 months, prior to termination of parole. The department shall record in a database the risk assessment scores of assessed persons, as specified. The State Department of Mental Health shall assess every eligible person who is committed to that department. (More) SB 1201 (DeSaulnier) PageC Whenever possible, the assessment shall take place at least four months, but no sooner than 10 months, prior to release from commitment. The State Department of Mental Health shall record in a database the risk assessment scores of assessed persons, as specified. Commencing January 1, 2010, CDCR and the State Department of Mental Health shall send SARATSO scores to the Department of Justice Sex Offender Tracking Program not later than 30 days after the date of the assessment. The risk assessment score of an offender shall be made part of his or her file maintained by the Department of Justice Sex Offender Tracking Program as soon as possible without financial impact, but no later than January 1, 2012. Each probation department shall assess every eligible person for whom it prepares a report, as specified. Each probation department shall assess every eligible person under its supervision who was not assessed previously, as specified. The assessment shall take place prior to the termination of probation, but no later than January 1, 2010. Eligible persons not assessed, as specified, may be assessed as specified in the law. "Eligible person" means a person who was convicted of an offense that requires him or her to register as a sex offender and who is eligible for assessment, as specified. Persons authorized to perform risk assessments are immune from liability for good faith conduct under this act. (Penal Code 290.06.) This bill would revise this provision to expressly require that CDCR also assess every person on parole transferred from any other state or by the federal government to this state who has been, or is hereafter convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as a registerable sex offense, as specified. (More) SB 1201 (DeSaulnier) PageD This bill also would revise this bill to cross-reference the "Sex Offender Registration Act" in the provisions of this section describing persons eligible for SARATSO assessments. 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.) (More) SB 1201 (DeSaulnier) PageE . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including 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.<1> The court stayed implementation of its January 12, 2010, ruling pending the state's appeal of the decision to the U.S. Supreme Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. -------------------------- <1> 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). (More) SB 1201 (DeSaulnier) PageF This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Author's Amendment in Committee The author intends to amend this bill in Committee to require that the risk assessment of sex offenders transferred from other jurisdictions occur no later than two months from the placement of the person under the jurisdiction of CDCR. 2. Stated Need for This Bill The author states: Under current law when a parolee is transferred from another state or by the federal government to California, they are not required to undergo the same risk assessment that all sex offenders who are convicted in California must undergo. This loophole in current law was brought to light through the arrest of Phillip Garrido who allegedly kidnapped and held Jaycee Duggard captive for 18 years. When Phillip Garrido's parole supervision was transferred to the California Department of Corrections and Rehabilitation from Nevada he did not receive any type of risk assessment. If Phillip Garrido would have been provided a risk assessment, which was finally done after his arrest, his parole agent would have known that he was at a high-risk of re-offending and the agent would have been able to treat him accordingly. This would have included putting him on a high-risk sex offender caseload. Unfortunately, because of this loophole in current law, Phillip Garrido was able to continue holding Jaycee Duggard captive while under the supervision of the California Department of Corrections and (More) SB 1201 (DeSaulnier) PageG Rehabilitation for over 10 years. SB 1201 requires that all parolees who are transferred from any other state or the federal government be assessed using the current risk assessment tool that is currently used for all California sex offenders. This will ensure that parole agents are aware of the risk of re-offending by all of their parolees, not just those released from California prisons. 3. What This Bill Would Do As explained above, this bill would expressly require that sex offender parolees transferred from any other state or the federal government to California and placed on parole under the California Department of Corrections and Rehabilitation be assessed pursuant to the requirements of the California "State-Authorized Risk Assessment Tool for Sex Offenders" ("SARATSO"). This bill would make an additional technical cross-reference change. 4. Background: Risk Assessments of Sex Offenders The value of risk assessments in managing sex offenders is broadly recognized. For example, in July of 2007 the California Sex Offender Management Task Force included as a strategic goal the establishment of "comprehensive standards for assessment of sex offenders to allow for appropriate allocation of interventions and resources." The Task Force explained: One important principle of sex offender management is that sex offenders are a diverse group of individuals with widely differing levels of risks and areas of needs. . . . Within the past decade, risk assessment has become an area of increased influence in decision-making with sex offense cases. Actuarial instruments are currently the most common method of estimating and categorizing sex offenders into risk groups. These (More) SB 1201 (DeSaulnier) PageH instruments are designed to determine a sex offender's likelihood of being arrested for a new sex crime by assessing how he is similar to other groups of sex offenders for whom the risk of re-offense is known. These instruments are moderately effective at predicting the re-offense rate of a group of similarly defined offenders, but cannot identify whether a particular individual offender within a specific "risk group" will or will not re-offend. . . . Actuarial risk assessments have been developed in two distinct areas. Static risk assessments use primarily static or unchangeable risk factors (e.g., number of prior sex offenses, age of the offender, gender of victims, and relationship to victims). They are historical in nature and research has identified them to be moderately predictive of future sexual offending behavior. More recently, researchers have begun to focus on dynamic or changeable risk factors believed to be associated with sexual recidivism. (e.g., negative mood, substance abuse, anger, victim access, intimacy deficits, poor social supports, antisocial lifestyle or behaviors). Some risk assessment tools contain both static and dynamic risk factors, while others exclusively examine one or the other. . . .<2> As summarized in a January 2008 report issued by the California Sex Offender Management Board: By statute effective September 2006, the Legislature established a statutory scheme for assessing all persons required to register as sex offenders in California for risk of reoffending. For each population of sex offenders-adult males, adult females, juvenile males, and juvenile females-the Legislature either selected, or established a means ---------------------- <2> Making California Communities Safer: Evidence-Based Strategies for Effective Sex Offender Management (July 2007) California Sex Offender Management Task Force (see http://www.casomb.org/docs/CSOM%20Full%20 Report.pdf.) (More) SB 1201 (DeSaulnier) PageI for selecting, a State Authorized Risk Assessment Tool for Sex Offenders, or SARATSO. By statute, the SARATSO selected for adult males is the Static-99 risk assessment instrument. The continued use of this instrument for adult males, and the selection of instruments for the other populations, will be determined by the SARATSO Review Committee. The Committee, which is composed of representatives from the California Department of Corrections and Rehabilitation, the Department of Mental Health, and the Attorney General's Office, is working in consultation with experts in a variety of disciplines to ensure that, for each population, the SARATSO is "the most reliable, objective, and well-established protocol for predicting sex offender risk of recidivism." The law contemplates that, as of January 1, 2013, each person required to register as a sex offender in California will have been assessed for his or her risk of reoffending. This information will be available to probation offices, courts, correctional facilities, and law enforcement. . . . Through the efforts of the SARATSO Committee (State Authorized Risk Assessment Tool for Sex Offenders) established by the legislature and Governor in 2006, California is on a path to identify and implement the best possible available instruments for the assessment of "static" as well as "dynamic" risk.<3> The Board's January 2009 "Progress Report" underscored that, "(i)n a time of limited resources the most effective way to maximize public safety is to allocate resources in a manner that --------------------------- <3> An Assessment of Current Management Practices of Adult Sex Offenders in California (January 2008), California Sex Offender Management Board (see http://www.casomb.org/docs/SOMBReport1.pdf.) (More) SB 1201 (DeSaulnier) PageJ ensures that the highest risk populations receive supervision, management and transition resources that are commensurate with their risk." The Board noted, "(t)he Static-99 is a sex offender risk assessment instrument that is used to help determine the risk of recidivism for male adult offenders. It is the only recognized risk assessment tool utilized for this population in California. The committee intends to examine the challenges in training and administering the Static-99 instrument. Also, there are challenges being presented in the court process with the exam itself; the committee would like to look at how to prepare these findings for the most useful presentation in court."<4> (More) --------------------------- <4> Progress Report, January 2009 California Sex Offender Management Board (see http://www.casomb.org/docs/ 2009 %20Progress%20Report%20V5.pdf.) In January of this year, the Board issued its Recommendations Report, which included the following information about risk assessments: There are twenty states which were using some form of risk assessment by the end of 2008. (Velasquez, The Pursuit of Safety: Sex Offender Policy in the United States, Vera Institute of Justice, Sept. 2008, at Appendix.) Some, but not all, use empirically based risk assessment instruments to determine level of risk. Others use committees to determine risk factors without basing the factors on empirical research to verify that the factors correlate to risk of reoffense. Recent research shows that pure actuarial analysis using empirically based risk assessment instruments is more predictive of reoffense than a combination of unstructured clinical judgment and use of an empirical instrument. (Hanson, K., et al., The Accuracy of Recidivism Risk Assessments for Sex Offenders: A Meta-Analysis, p. 10 (2007). . . . California currently uses a pure actuarial approach to risk assessment for purposes of sentencing, placement on supervision, treatment, and use of GPS monitoring devices. (Pen. Code, 290.03-08; 1202.8; 1203.) The risk assessment instrument being used both pre-sentencing and prior to release on parole for adult sex offenders is the Static-99. The instrument chosen to assess juvenile sex offenders is the JSORRAT-II. Both instruments were chosen by the California risk assessment committee (SARATSO Committee - see Pen. Code, 290.03-04). As of December 2009, the SARATSO Committee had not yet chosen a dynamic risk assessment instrument for California. . . . The majority of sex offenders released on parole in California after 2005 have risk assessment scores under 4 on the Static-99. In December 2009, (More) SB 1201 (DeSaulnier) PageL the California Department of Justice determined that the Static-99 score distribution for the 28,612 registered sex offenders in the DOJ database, whose risk assessments were done prior to release from prison or at pre-sentencing, was as follows: Percentage of Assessed Offenders in Each Static-99 Score Category: 0 = 12.45% 1 = 18.92% 2 = 19.84% 3 = 17.74% 4 = 13.21% 5 = 7.89% 6+= 9.96% The California score distribution is consistent with the percentages of sex offenders found in each score category in the risk assessment study which was the basis for the Static-99 risk assessment tool. (Hanson, Morton, & Harris, "Sexual Offender Recidivism Risk: What We Know and What We Need to Know," Ann. N.Y. Acc. Sci. 989:154-166 (2003).)<5> WILL THIS BILL IMPROVE CALIFORNIA'S STATUTORY SCHEME FOR RISK ASSESSING KNOWN SEX OFFENDERS? WILL THIS BILL IMPROVE PUBLIC SAFETY? *************** --------------------------- <5> Decrease Victimization, Increase Community Safety Recommendations Report, California Sex Offender Management Board (Jan. 2010).