BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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7
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AB 1707 (Ammiano) 7
As Amended March 13, 2012
Hearing date: June 12, 2012
Penal Code
AA:mc
CHILD ABUSE AND NEGLECT:
CENTRAL INDEX
HISTORY
Source: Public Counsel; Children's Law Center of California
Prior Legislation: SB 1022 (Steinberg) - vetoed, 2008
Support: California State Association of Counties; California
Public Defenders Association; National Association of
Social Workers, California Chapter; California
Attorneys for Criminal Justice; County Welfare
Directors Association of California; Conference of
California Bar Associations
Opposition:California District Attorneys Association; California
Police Chiefs Association, Inc.
Assembly Floor Vote: Ayes 54 - Noes 18
KEY ISSUE
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SHOULD SPECIFIED REVISIONS BE MADE TO THE CHILD ABUSE CENTRAL
INDEX WITH RESPECT TO REPORTS CONCERNING MINORS?
PURPOSE
The purpose of this bill is to revise the law concerning the
Child Abuse Central Index to provide that 1) a person listed in
the CACI when they were under 18 years of age at the time of the
report shall be removed from the CACI 10 years from the date of
the incident resulting in the CACI listing, if no subsequent
report concerning the same person is received during that time
period, as specified; and 2) if, at the time a CACI report is
filed with the Department of Justice, the known or suspected
child abuser is either a minor or a nonminor dependant under the
jurisdiction of the juvenile court, the agency shall notify the
minor's attorney, if any.
Current law establishes the Child Abuse and Neglect Reporting
Act ("CANRA"), which generally is intended to protect children
from abuse and neglect. (Penal Code § 11164.)
Current law requires the Department of Justice ("DOJ") to
maintain an index of all reports of child abuse and severe
neglect ("CACI") submitted by specified reporting agencies.
CACI is required by statute to be continually updated and not
contain any reports determined to be unfounded. (Penal Code §
11170(a) (1).)
Current law states that the DOJ shall act only as a repository
of the suspected child abuse or neglect reports that are
maintained in CACI, and that the reporting agencies are
responsible for the accuracy, completeness, and
retention of reports. (Penal Code § 11170(a)(2).) Only
information from reports that are reported as substantiated
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shall be filed, and all other determinations shall be removed
from the central list. (Penal Code § 11170(a)(3).)
This bill would require that if a person listed in the CACI was
under 18 years of age at the time of the report, the information
shall be deleted from the CACI 10 years from the date of the
incident resulting in the CACI listing if no subsequent report
concerning the same person is received during that time period.
Current law requires that when agencies receiving these reports
forward a report in writing to the Department of Justice, the
agency shall also notify in writing the known or suspected child
abuser that he or she has been reported to the CACI. (Penal
Code § 11169(c).)
This bill additionally would require that, if "the known or
suspected child abuser is either a minor or a nonminor dependant
under the jurisdiction of the juvenile court, the agency shall
notify the minor's attorney, if any."
Current law generally provides that persons listed on the CACI
have the right to a due process hearing before the agency that
requested his or her inclusion in the CACI, as specified.
(Penal Code § 11169(e).) Current law also provides that any
person listed in the CACI who has reached 100 years of age shall
have his or her listing removed from the CACI. (Penal Code §
11169(f).)
This bill would provide that any person listed in the CACI as of
January 1, 2013, who was listed prior to reaching 18 years of
age, and who is listed once in CACI with no subsequent listings,
shall be removed from the CACI 10 years from the date of the
incident resulting in the CACI listing.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
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hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
Children can be listed on CACI as perpetrators of
physical abuse if they injure another child in
circumstances other than a mutual fight or an
accident. Children can also be listed on CACI as
perpetrators of sexual abuse due to any reported
sexual behavior between the child and another child,
even if the behavior is consensual. Children in the
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foster-care system are especially vulnerable to being
listed on CACI because they may act out due to past
abuse and because their behavior is subject to closer
scrutiny by child welfare agency case workers than
that of children in the general population.
AB 1707 provides an avenue for the removal of
single-offense minors from the CACI. Specifically if
a person is listed in the CACI as a perpetrator of
abuse due to an incident that occurred when the person
was under 18 years old, the listing shall be removed
from the CACI 10 years after the incident, if no other
incidents have occurred. By removing non-reoffending
minors, AB 1707 would protect youth from suffering
life-long restrictions on job opportunities and
licensing eligibility due to misbehavior that occurred
when they were under 18.
AB 1707 will also improve the use and operation of
CACI by providing important clean up. Listing conduct
of non-reoffending minors can make CACI less effective
because it loads CACI with questionable data and
wastes the time of subsequent investigators that rely
on in conducting investigations and background checks.
2. What This Bill Would Do
Since its inception in the 1960s, over 600,000 reports and over
700,000 "suspects" have been entered into the Child Abuse
Central Index ("CACI"), which is maintained by the Department of
Justice. This is not an index of persons who necessarily have
been convicted of any crime; it is an index of persons against
whom reports of child abuse or neglect have been made,
investigated and, according to standards that have changed over
the years, determined by the reporting agency (local welfare
departments and law enforcement) to meet the requirements for
CACI inclusion.
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This bill would do two things relating to CACI:
Revise CACI to remove a person if he or she was under 18
years of age at the time of the report after 10 years has
elapsed from the date of the incident, and if no subsequent
report concerning the same person is received during that
time period; and
Require that counsel for a child or nonminor dependant
under the jurisdiction of the court be notified if the
child is the subject of a CACI report, as specified.
The sponsors of this bill submit that the lifetime consequence
of a CACI listing for children is inappropriate and unfair.
Children's Law Center of California submits in part:
A CACI listing can have a severe impact on a child's
future. If a child listed in CACI later seeks to
become a foster parent, an adoptive parent, or to work
in law enforcement or a child-care facility, the
licensing agency or prospective employer would be
notified that the individual is listed as a suspected
abuser. Though the child, now young adult, may have
long since healed from and/or received the appropriate
services to address the underlying issue that led to
the reported incident, they can be forever
disadvantaged by the listing. The effects of the CACI
listing can truly impact the youth for years into the
future.
3. Opposition; CACI Usage
The California District Attorneys Association and the California
Police Chiefs Association, which oppose this bill, submit in
part:
It is important to have records of abusive acts
against children for both law enforcement and
employment purposes. Often, substantiated acts of
abuse do not result in the filing of criminal charges,
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but it is nevertheless essential to have a repository
for reports of these acts. CACI reports can be very
useful in criminal investigations and prosecutions by
providing information about prior acts including child
protective services (CPS) reports and records. The
facts that an act of abuse was committed by a juvenile
and 10 years has passed since that act are not valid
reasons to remove this vital information from the
CACI, especially since the reports now in the CACI are
limited to those that are substantiated.
In fiscal year 2010-2011, there were a total of 276,985 CACI
search requests. Of those, 90 percent were regulatory, and less
than 10 percent investigatory. Of these investigatory requests
made last fiscal year, nearly 80 percent were made by one
agency, the Los Angeles Department of Children and Family
Services (DCFS). Regulatory requests resulted in 2.74 percent
possible matches; investigatory matches resulted in 18.09
percent possible matches. The highest percentage of possible
matches - 21.30 percent - came from citizen inquiries, which
comprised only 0.3 percent of all CACI search requests.
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4. Background: Child Abuse Central Index
CACI was created in 1965 as a centralized system for collecting
reports of suspected child abuse from law enforcement agencies,
physicians, teachers and others. Access to CACI initially was
limited to official investigations of open child abuse cases,
but in 1986 the Legislature expanded access to allow the
Department of Social Services (DSS) to use the information for
running background checks on applications for licenses,
adoptions, and employment in child care and related services
positions. DOJ provides the following summary of CACI on its
current website:
The Attorney General administers the Child Abuse
Central Index (CACI), which was created by the
Legislature in 1965 as a tool for state and local
agencies to help protect the health and safety of
California's children.
Each year, child abuse investigations are reported to
the CACI. These reports pertain to investigations of
alleged physical abuse, sexual abuse, mental/emotional
abuse, and/or severe neglect of a child. The reports
are submitted by county welfare and probation
departments.
The information in the Index is available to aid law
enforcement investigations, prosecutions, and to
provide notification of new child abuse investigation
reports involving the same suspects and/or victims.
Information also is provided to designated social
welfare agencies to help screen applicants for
licensing or employment in child care facilities and
foster homes, and to aid in background checks for
other possible child placements, and adoptions.
Dissemination of CACI information is restricted and
controlled by the Penal Code.
Information on file in the Child Abuse Central Index
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includes:
Names and personal descriptors of the
suspects and victims listed on reports;
Reporting agency that investigated the
incident;
The name and/or number assigned to the
case by the investigating agency;
Type(s) of abuse investigated; and
The findings of the investigation for the
incident are substantiated.
It is important to note that the effectiveness of the
index is only as good as the quality of the
information reported. Each reporting agency is
required by law to forward to the DOJ a report of
every child abuse incident it investigates, unless the
incident is determined to be unfounded or general
neglect. Each reporting agency is responsible for the
accuracy, completeness, and retention of the original
reports. The CACI serves as a "pointer" back to the
original submitting agency.<1>
As illustrated above, CACI is set up to be a directory that
tells investigators where they can obtain source information
about child abuse reports, rather than providing the information
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<1> http://oag.ca.gov/childabuse.
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itself.<2>
Information available from DOJ indicates that CACI contains the
following aggregate information as of May 1, 2012:
Reports: 638,851
Suspects: 705,290
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<2> California Code of Regulations ("CCR"), tit. 11, § 902
states: "The purpose of CACI is to serve as the index of
investigated reports of suspected child abuse received from
California CPAs that is maintained by DOJ pursuant to Penal Code
section 11170(a). CACI consists only of those reports of child
abuse that meet the criteria specified in the Child Abuse and
Neglect Reporting Act (Penal Code § 11164, et seq.) and that are
complete as specified by these regulations. "CACI is a
reference file and is used to refer authorized individuals or
entities to the underlying child abuse investigative files
maintained at the reporting CPA. It is the responsibility of
authorized individuals or entities to obtain and review the
underlying CPA investigative report file and make their own
assessment of the merits of the child abuse report. They shall
not act solely upon CACI information." See also 11 CCR 904:
"All submissions received by DOJ staff are reviewed to determine
that they meet the definition of a report in these regulations.
DOJ staff verifies only that the information entered into CACI
is consistent with the information as reported by the CPA. The
DOJ presumes that the substance of the information provided is
accurate and does not conduct a separate investigation to verify
the accuracy of the CPA's investigation." (emphasis added)