BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair             A 
                             2011-2012 Regular Session               B

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          AB 813 (Fletcher)                                           
          As Amended May 11, 2011 
          Hearing date:  June 21, 2011
          Government and Penal Codes
          AA:mc

                                SEX OFFENDER MANAGEMENT
                                            

                                       HISTORY

          Source:  California Sex Offender Management Board

          Prior Legislation: AB 1844 (Fletcher) - Ch. 219, Stats. 2010

          Support: California Probation Parole and Correctional 
          Association; Chief Probation Officers of California; California 
          Police Chiefs Association 

          Opposition:None known

          Assembly Floor Vote:  Ayes  75 - Noes  0


                                        KEY ISSUES
           
          SHOULD MEMBERS OF THE SEX OFFENDER MANAGEMENT BOARD AND CERTIFIED 
          SEX OFFENDER MANAGEMENT PROFESSIONALS HAVE GOOD FAITH IMMUNITY, AS 
          SPECIFIED?

          SHOULD CERTAIN ACTIVITIES OF THE BOARD BE ALLOWED TO BE CONDUCTED IN 
          CLOSED SESSION, AS SPECIFIED?





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          SHOULD LARGELY TECHNICAL CHANGES BE MADE TO SPECIFIED STATUTES 
          RELATING TO THE MANAGEMENT OF SEX OFFENDERS?



                                       PURPOSE

          The purpose of this bill is to make numerous largely technical 
          changes to issues relating to the management of sex offenders.  
          The bill also provides good faith immunity for members of the 
          Sex Offender Management Board and certified sex offender 
          management professionals, and allows the Board to conduct 
          certain activities in closed session, as specified.

           Sex Offender Management Board
           
           Current law  establishes the Sex Offender Management Board, as 
          specified.  (Penal Code  9000 et seq.)

           Current law  requires the board to "address any issues, concerns, 
          and problems related to the community management of adult sex 
          offenders.  The main objective of the board, which shall be used 
          to guide the board in prioritizing resources and use of time, is 
          to achieve safer communities by reducing victimization."  (Penal 
          Code  9002.)

           This bill  would provide that members of the board shall be 
          immune from liability for good faith conduct in their duties.

           This bill  deletes language in current law requiring specified 
          assessments and recommendations by dates already passed, for 
          work already completed by the board.

           Current law  requires the board to develop and update standards 
          for certification of sex offender management professionals on or 
          before July 1, 2011, as specified.  (Penal Code  9003.)  The 
          board shall require any person who applies for certification 
          under this section to submit information relevant to the 
          applicant's fitness to provide sex offender management services. 
           (Penal Code  9003(a)(2).)




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           This bill  , as now in print, would require that this information 
          shall be submitted under the penalty of perjury by the person 
          applying for certification.   As proposed to be amended by the 
          author  , this perjury provision would be deleted and replaced 
          with the provision that, "any person who knowingly provides 
          false information under this paragraph shall be subject to a 
          civil penalty in an amount up to $1,500 dollars, in addition to 
          any other remedies available to the board.  An action for a 
          civil penalty under this provision may be brought by any public 
          prosecutor in the name of the people of the State of 
          California."

           This bill  additionally would provide that certified sex offender 
          management professionals, who provide sex offender management 
          programs and risk assessments as specified "shall not be held 
          civilly liable for any criminal acts committed by the persons on 
          parole, probation, or judicial commitment status who receive 
          supervision or treatment.  This waiver of liability shall apply 
          to certified sex offender management professionals, 
          administrators of the programs provided by those professionals, 
          and to agencies or persons under contract to those professionals 
          who provide screening, clinical evaluation, risk assessment, 
          supervision, or treatment to sex offender parolees, 
          probationers, or persons on conditional release," as specified.  
            
             
           State-Authorized Risk Assessment Tool for Sex Offenders
           
           Current law  establishes the State-Authorized Risk Assessment 
          Tool for Sex Offenders (SARATSO), as specified.  (Penal Code  
          290.04.)  

           Current law  provides that commencing January 1, 2007, the 
          SARATSO for adult males required to register as sex offenders 
          shall be the STATIC-99 risk assessment scale, which shall be the 
          SARATSO static tool for adult males.  (Penal Code  
          290.04(b)(1).)

           Current law  required the SARATSO Review Committee to determine 




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          whether the STATIC-99 should be supplemented with an actuarial 
          instrument that measures dynamic risk factors or whether the 
          STATIC-99 should be replaced as the SARATSO with a different 
          risk
          assessment tool by January 1, 2008.  (Penal Code  
          290.04(b)(2).)

           This bill  would technically revise this language to instead 
          require the SARATSO Review Committee to determine whether the 
          STATIC-99 should be supplemented with an empirically derived 
          (instead of "actuarial") instrument, as specified.  

           This bill  also would revise language requiring the SARATSO 
          Review Committee to select an actuarial instrument for dynamic 
          risk factors to instead refer to an "empirically derived" 
          instrument that measures dynamic risk factors, and an 
          empirically derived instrument that measures risk of "future 
          violence" instead of future "sexual" violence.

           Sex Offenders on Probation and Parole
           
           Current law  generally requires registered sex offenders to 
          participate in an approved sex offender management program while 
          on parole or "formal supervised probation," as specified.  
          (Penal Code  290.09 and 1203.067.)

           This bill  would delete from these provisions references to 
          "supervised" probation, revising this language instead to refer 
          to "formal probation."

           Current law  requires that on and after July 1, 2012, parolees 
          released from prison for an offense that requires sex offender 
          registration shall be subject to specified parole conditions 
          generally reflecting the containment model for sex offender 
          management.  (Penal Code  3008(d).)

           This bill  makes a purely technical correction to language in 
          this subdivision.
           





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          Bagley-Keene Open Meeting Act
          
          Current law  contains the Bagley-Keene Open Meeting Act, which 
          generally reflects the public policy of this state that public 
          agencies exist to aid in the conduct of the people's business 
          and the proceedings of public agencies be conducted openly so 
          that the public may remain informed, as specified.  (Government 
          Code  11120 et seq.)

           This bill  would amend Government Code section 11126 to provide 
          that nothing in this Act would prevent the California Sex 
          Offender Management Board from holding a closed session for the 
          purpose of discussing matters pertaining to the application of a 
          sex offender treatment provider for certification, as specified, 
          and that those matters may include review of an applicant's 
          qualifications for certification.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  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 January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 




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          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  
           
          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  , as proposed to be amended in Committee (See Comment 1 
          below) does not appear to aggravate the prison overcrowding 
          crisis described above.
                                          
          

                                      COMMENTS

          1.  Author's Amendments

           The author intends to amend this bill to delete its perjury (a 
          felony) provision as follows:

               (2) The board shall require any person who applies for 
               certification under this section to submit information 
               relevant to the applicant's fitness to provide sex 
               offender management services.  That information shall 
               be submitted under the penalty of perjury by the 
               person applying for certification.   Any person who 
               knowingly provides false information under this 
               paragraph shall be subject to a civil penalty in an 
               amount up to $1,500 dollars, in addition to any other 
               remedies available to the board.  An action for a 
               civil penalty under this provision may be brought by 
               any public prosecutor in the name of the people of the 




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               State of California.    

          2.  Stated Need for This Bill

           The author states:

               Existing law requires all registered sex offenders to 
               be in treatment programs managed by certified sex 
               offender management professionals beginning in July 
               2012.  The Sex Offender Management Board is tasked 
               with developing standards for certifying the treatment 
               professionals and treatment programs, as well as for 
               polygraph examiners.  The Board will review 
               applications for certification submitted by sex 
               offender treatment providers and programs beginning in 
               August 2011.

               AB 813 will help the Sex Offender Management Board 
               perform its role in protecting public safety by 
               providing technical amendments and clarification 
               within the Penal Code, and by limiting legal liability 
               for treatment providers and the Board for good faith 
               conduct performed pursuant to sex offender management.

               The bill seeks to clean up some provisions of AB 1844 
               which were overlooked in the original bill.  
               Specifically, it would codify some of the legal 
               protections for treatment providers and for the board 
               for doing the tasks asked of them in AB 1844.  The 
               bill would provide an exemption to the Bagley-Keene 
               act when dealing with private personnel matters.  The 
               bill would also make some technical language changes.



               Specifically, the bill would address the following 
               issues:







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               Issue #1: Penal Code section 1203.067 subdivision (b) 
               uses the term "formal supervised probation," where the 
               correct term is just "formal probation."  Formal 
               probation is a recognized status and clearly 
               delineates that all sex offenders who are on probation 
               must participate in the treatment program.  The term 
               "supervised" may confuse the issue of who must 
               participate, according to Department of Justice.

               AB 813: Amends the Penal Code to read "formal 
               probation."

               Issue #2: Penal Code section 3008 subdivision (e) 
               gives the court the responsibility of determining 
               defendants' ability to pay for approved sex offender 
               management treatment programs; however, the court does 
               not retain jurisdiction over parolees post-sentencing. 


               AB 813: Makes a technical amendment clarifying that 
               CDCR must determine parolees' ability to pay.

               Issue #3: AB 1844, authored by Assemblyman Fletcher, 
               expanded the Sex Offender Management Board's role as a 
               policy advisory board to include duties such as 
               developing certification standards for sex offender 
               management professionals and standards for sex 
               offender treatment programs; certifying that 
               professionals and programs meet the requirements of 
               those standards; and developing polygraph 
               certification standards.  Members of the Board are not 
               statutorily immune for good faith acts in furtherance 
               of this legislation, unlike members of the state risk 
               assessment committee. 

               AB 813: Extends immunity to the members of the Sex 
               Offender Management Board for good faith conduct under 
               Penal Code section 9002.





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               Issue #4: Under current statute, certified treatment 
               providers and polygraph examiners lack protection from 
               civil liability for acts committed by offenders in sex 
               offender management programs, unlike their 
               counterparts in the Forensic Conditional Release 
               Program.

               AB 813: Provides immunity for certified treatment 
               providers and polygraph examiners.  This amendment 
               would not insulate them from claims involving 
               malpractice.

               Issue #5: The Sex Offender Management Board has 
               limited resources to ensure that programs managing sex 
               offenders provide complete and accurate information 
               when they seek certification from the Board.

               AB 813: Requires that applications for certification 
               be submitted under penalty of perjury.<1>

               Issue #6: The Bagley Keene Open Meeting Act requires 
               the Sex Offender Management Board to conduct its 
               certification process in a public open meeting.  
               Discussions may involve matters which would involve an 
               unwarranted invasion of privacy of persons applying 
               for certification, especially when those matters 
               pertain to the denial of a certification.

               AB 813: Would provide an exception to the open meeting 
               act law involving personnel decisions for discussions 
               that involve denial of certification to a sex offender 
               treatment provider, or appeals from denials, because 
               discussion may be about sensitive personal issues.  
               This exception is similar to other exceptions to 
               Bagley Keene involving personnel decisions.

               Issue #7: Current statute contains some 
               inconsistencies regarding the violence risk assessment 

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          <1> See Comment 1.  The author is revising this provision to not 
          provide for perjury.











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               instrument.  In most cases, the term "future violence" 
               is used; however, one section inconsistently refers to 
               "future sexual violence."

               AB 813: Corrects this inconsistency in language.

               Issue #8: Current statute uses the term "actuarial," 
               while the correct term is "empirically derived."

               AB 813: Corrects this language error.

          3.  Double Referral

           This bill is double-referred to Senate Judiciary Committee.


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