BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          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?    





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                                                       SB 1201 (DeSaulnier)
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                                       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.   




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                                                       SB 1201 (DeSaulnier)
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               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.






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           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.)




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               . . .

               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).



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           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  




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               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  




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               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.)



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               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.)



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          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>





























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          <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,  




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               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).