BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
8
1
3
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?
(More)
AB 813 (Fletcher)
PageB
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).)
(More)
AB 813 (Fletcher)
PageC
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
(More)
AB 813 (Fletcher)
PageD
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.
(More)
AB 813 (Fletcher)
PageE
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
(More)
AB 813 (Fletcher)
PageF
-- 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
(More)
AB 813 (Fletcher)
PageG
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:
(More)
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.
(More)
AB 813 (Fletcher)
PageI
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
----------------------
<1> See Comment 1. The author is revising this provision to not
provide for perjury.
AB 813 (Fletcher)
PageJ
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.
***************