BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 492 (Correa)
As Introduced February 17, 2011
Hearing date: January 10, 2012
Welfare & Institutions Code
JM:mc
SEXUALLY VIOLENT PREDATORS:
EVALUATIONS AND PETITIONS; DISCRETION OF PROSECUTORS
HISTORY
Source: Orange County District Attorney
Prior Legislation: Proposition 83, November 2006 General
Election
SB 1128 (Alquist) - Ch. 337, Stats. 2006
AB 893 (Horton) - Ch. 162, Stats. 2005
AB 2450 (Canciamilla) - Ch. 425, Stats. 2004
AB 493 (Salinas) - Ch. 222, Stats. 2004
SB 659 (Correa) - Ch. 248, Stats. 2001
AB 1142 (Runner) - Ch. 323, Stats. 2001
SB 2018 (Schiff) - Ch. 420, Stats. 2000
SB 451 (Schiff) - Ch. 41, Stats. 2000
AB 2849 (Havice) - Ch. 643, Stats. 2000
SB 746 (Schiff) - Ch. 995, Stats. 1999
SB 11 (Schiff) - Ch. 136, Stats. 1999
SB 1976 (Mountjoy) - Ch. 961, Stats. 1998
AB 888 (Rogan) - Ch. 763, Stats. 1995
SB 1143 (Mountjoy) - Ch. 764, Stats 1995
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Support: Unknown
Opposition: Disability Rights California;
California Public Defenders Association; Consumer
Attorneys of California
KEY ISSUE
SHOULD THE PROCESS FOR DETERMINING WHETHER PERSONS CONVICTED OF
SPECIFIED SEX CRIMES SHOULD BE CIVILLY COMMITTED AS "SEXUALLY
VIOLENT PREDATORS" ("SVPs") BE SIGNIFICANTLY BROADENED AND REVISED
TO GIVE DISTRICT ATTORNEYS INDEPENDENT AUTHORITY TO FILE SVP
PETITIONS AND UNLIMITED ACCESS SVP EVALUATION AND TREATMENT RECORDS,
AND TO MAKE ADDITIONAL, RELATED CHANGES, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) provide that all persons who
have been convicted of a sexually violent offense, as defined,
who are committed to the Department of Mental Health (DMH), or
on parole, subject to an arrest warrant, or in the custody of
the Department of Juvenile Facilities shall be subject to
evaluation as sexually violent predators (SVPs); 2) provide that
the district attorney shall determine whether a person's prior
sex crimes were predatory; 3) require DMH to request from the
district attorney any information relevant to each SVP
evaluation and require DMH to inform the district attorney about
the evaluators and the status of each evaluation; 4) require
evaluators who have completed an evaluation to consider whether
or not input from the district attorney on the facts or
methodology used in the evaluation would change the evaluators'
conclusions; 5) give the district attorney access to "all
records" about any person evaluated as an SVP or committed to
the SVP program; 6) shield from all liability any person who
releases SVP records to the district attorney; 7) authorize the
district attorney to monitor an SVP's treatment; 8) create the
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right to a jury trial in a hearing to determine if an SVP
patient should be conditionally released; 9) give victims a
right to present relevant evidence in a conditional release
trial; and 10) require DMH to set a consistent payment scale for
SVP evaluators.
The Sexually Violent Predator (SVP) law provides for the civil
commitment for psychiatric and psychological treatment of a
prison inmate found to be a sexually violent predator after the
person has served his or her prison commitment. (Welf. & Inst.
Code § 6600, et seq.)
Existing law defines a sexually violent predator as an inmate
"who has been convicted of a sexually violent offense against
one or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior." (Welf. & Inst. Code § 6600, subd. (a).)
Existing law provides that where, pursuant to a screening
process by the Department of Corrections and Rehabilitation or
Board of Parole Hearings, an inmate fits the criteria for
evaluation as an SVP, the inmate shall be referred for
evaluation to the Department of Mental Health. (Welf. & Inst.
Code § 6601, subd. (b).)
Existing law provides that a qualifying prior conviction must be
predatory - committed against a stranger or a person with whom
no substantial relationship with the perpetrator, or against a
person with whom the perpetrator established or cultivated a
relationship for the purpose of victimization. (Welf. & Inst.
Code §§ 6600, subd. (e) and 6601, subd. (a).)
Existing law provides that the inmate "shall be evaluated by two
practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health" (DMH). If both evaluators concur
that the person meets the criteria for SVP commitment, DMH shall
request the prosecutor to file a commitment petition. (Welf. &
Inst. Code § 6601, subd. (d).)
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Existing law provides that if both evaluators concur that the
person meets the criteria for SVP commitment, DMH shall request
the designated county attorney to file a commitment petition.
The petition is filed in the county from which the person was
committed to prison. (Welf. & Inst. Code § 6601, subd. (d).)
Existing law provides that the county board of supervisors shall
designate either the district attorney or county counsel to
prosecute SVP petitions<1>. (Welf. & Inst. Code § 6601, subd.
(i).)
Existing law provides that at the commitment trial, the
following shall apply:
Proof that the person is an SVP shall be beyond a
reasonable doubt to a unanimous jury or the court if both
parties do not demand jury trial.
Either the person or the district attorney may demand a
jury trial
The person is entitled to counsel and the assistance of
experts. If indigent, counsel and experts shall be
provided at state expense. (Welf. & Inst. Code § 6603.)
Existing law provides that if the evaluators designated by DMH
disagree, additional, independent evaluators are appointed. The
second pair of evaluators must agree that the person meets the
requirement for SVP commitment or the case cannot proceed.
(Welf. & Inst. Code § 6601, subd. (c)-(e).)
Existing law defines a "diagnosed mental disorder" as one that
includes "a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to
the commission of criminal sexual acts in a degree constituting
---------------------------
<1> While the governing statute directs the board of supervisors
to designate either the district attorney or county counsel to
prosecute SVP cases, it appears that the district attorney is
the agency that handles SVP cases. For purposes of brevity, the
county agency designated to prosecute SVP cases shall be
described as the district attorney in this analysis.
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the person a menace to the health and safety of others." (Welf.
& Inst. Code § 6600, subd. (c).)
Existing law defines a "diagnosed mental disorder" as one that
includes "a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to
the commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others." (Welf.
& Inst. Code § 6600, subd. (c).)
Existing law permits persons committed as SVP patients to
petition the court for conditional release without the
recommendation or concurrence of the DMH Director (Welf. & Inst.
Code
§ 6608). In particular, section 6608:
Existing law provides that a person may be conditionally
released into the community for treatment is that he or she
would not be a danger to others. Specifically, the court must
find that it is not likely that the person will engage in
sexually violent criminal behavior if placed under supervision
and treatment in the community. (Welf. & Inst. Code § 6608,
subd. (a).)
Existing law includes the following substantive and procedural
rules for conditional release hearings and decisions:
The court shall give 15-days' notice of the hearing to
the prosecutor<2>, the attorney for the committed person
and the DMH. (Welf. & Inst. Code § 6608, subd. (b).)
The court shall determine whether the committed person
is likely to engage in sexually violent criminal behavior
if under supervision and treatment in the community. If
the court determines that the person would not be a danger
--------------------------
<2> The governing statute states that the county shall designate
which entity shall act as counsel for the county in SVP
proceedings. This is generally the district attorney. For
brevity, the term prosecutor will be used to refer to the county
attorney in this analysis.
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while under supervision and treatment in the community, the
court shall order the committed person placed in a
conditional release treatment program for one year. At the
end of one year, the court shall determine if the person
should be unconditionally released from. (Welf. & Inst.
Code § 6608, subd. (d).)
If the court rules against the committed person at the
trial for unconditional release from commitment, the court
may place the committed person on outpatient status in
accordance with specified procedures. (Welf. & Inst. Code
§ 6608, subd. (g).)
Existing law , despite a reference to "unconditional discharge"
in subdivision (a) of Welfare and Institutions Code section
6608, includes no process where a court or a jury could find
that an SVP patient should be unconditionally released. Section
6608 includes no standards for the court to determine if
unconditional release should be granted. Section 6608 includes
no cross-reference to section 6605, the section governing trials
for unconditional release. (Welf. & Inst. Code § 6608, subd.
(a).)
This bill provides that a "predatory" sex crime includes
convictions involving multiple victims, regardless of the
relationship between the perpetrator and the victims or whether
or not the crimes occurred on the same or different occasions.
This bill provides that a person in the custody of the
Department of Juvenile Facilities, who has been convicted of a
qualifying offense, shall be evaluated for commitment to the SVP
program.
This bill directs the director of the Director of the Department
of Mental Health to identify all individuals in the custody of
DMH "who have convictions for sexually violent offenses" and
evaluate such persons at least six months prior to release.
This bill provides that a person who is on parole, or for whom a
warrant of arrest is outstanding, shall be considered in the
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custody of CDCR and subject to evaluation for commitment as an
SVP.<3>
This bill eliminates the provision that a person shall be
serving a determinate prison term or a parole revocation term to
be subject to evaluation for commitment as an SVP.
This bill provides that the Secretary of CDCR shall identify
persons as possible SVPs who are scheduled for release from
prison "or another facility."
This bill authorizes the filing of a petition for commitment of
a person as an SVP where the person is under a "civil
commitment."
This bill eliminates the duty of CDCR to determine whether or
not an inmate's prior sex offenses were predatory.
This bill provides that CDCR shall only determine if an inmate
has been convicted of a qualifying sex offense or offenses.
This bill provides that the prosecutor shall determine whether a
person subject to SVP evaluation has been convicted of a
predatory sex crime, as specified.
This bill provides that DMH shall request any information in the
possession of the prosecuting attorney to assist in the
evaluation of the person as a possible SVP.
This bill provides that DMH shall, upon request, immediately
provide the prosecuting attorney with the status of the
evaluation, the information relied on by the evaluators, the
---------------------------
<3> Some entities, including the California Public Defenders
Association read this provision to mean that parolees who are
subject to an arrest warrant for a sexually violent offense
shall be screened as potential SVPs. However, the bill states
that an SVP petition can be filed concerning any person "in
custody for any criminal matter or civil commitment." Such
persons include "a person who is on parole, or for whom a
warrant of arrest is outstanding?"
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names and contact information of the evaluators, the reports and
results of the evaluation.
This bill requires DMH to provide the evaluations to the
prosecutor within 45 days of the date that the prosecutor
determined that the person's prior convictions are predatory.
This bill eliminates the requirement that DMH only request that
an SVP petition be filed by the prosecuting attorney where two
evaluators<4> find that the person is likely an SVP.
This bill requires DMH to file the evaluation reports to the
prosecuting attorney and that the prosecutor can decide whether
or not sufficient evidence exists to file a commitment petition.
This bill provides that if the prosecutor determines that there
is sufficient evidence that the person is an SVP, the prosecutor
"shall" file a petition for commitment.
This bill provides that information used in an evaluation shall
be available for review by the prosecutor, the SVP respondent
(the person facing commitment) and the person's attorney.
This bill provides that the prosecutor, if he or she concludes
that the evaluation did not consider material information, may
request that DMH provide the information to the evaluators to
determine if the information would change the outcome of the
evaluation.
This bill provides that DMH shall allow the prosecutor 30 days
to provide input to DMH "on either the facts or methodology" of
the evaluations. DMH shall forward the input of the prosecutor
to the evaluators within 15 days.
This bill provides that the prosecutor shall have access to all
records held by any agency "if the records contain information"
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<4> Existing law provides that where the first two evaluators do
not agree whether or not a person is an SVP, two independent
evaluators shall be appointed. Only if these evaluators agree
that the person is an SVP shall a petition for commitment be
filed. (Welf. & Inst. Code § 6601, subds. (e)-(f).)
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about a person alleged to be an SVP or a case concerning an SVP
or alleged SVP.
This bill provides that a prosecutor may "monitor" the progress
with DMH of persons committed to the SVP program and "shall have
full access to all institutional records for these individuals."
The bill states that no liability shall attach to any person or
institution that provides information pursuant to this
provision.
This bill provides that where a person committed to the SVP
program files a petition for release, and where the court does
not determine that the petition is frivolous, the person shall
have the right to a full hearing, including jury trial on the
demand of the person or the prosecutor, on the issue of whether
or not he remains an SVP or whether or not he can be safely
released into society under supervision.
This bill provides that where a person files a non-frivolous
motion as to whether he remains an SVP or can be released under
supervision, the person shall have "Ýa]ll the rights described
in subdivision (d) of Section 6605." Subdivision (d) of Section
6605 provides that the state shall carry the burden to establish
beyond a reasonable doubt that the person is still a danger to
others because he is likely to engage in sexually violent
behavior if released into society.
This bill provides that at such a hearing the jury can find that
the person can be safely and conditionally released into society
under supervision.
This bill provides that if the jury rules against the person at
a hearing for unconditional discharge, the jury can place the
person in an outpatient program.
This bill provides that the court or jury shall review all prior
findings and orders in the case.
This bill provides that victims may present relevant evidence at
a hearing for conditional release.
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This bill provides that DMH shall establish an "appropriate
payment schedule" for appointed expert evaluators, including
equal payment for similar services, sufficient payment for court
and preparation time and payments shall not be based on the
results of the evaluation.
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
-- 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
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overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
This bill will better protect the public by reducing
deficiencies in the law on sexually violent predators.
Intra-family sex offenders who abuse multiple victims
will be eligible for SVP commitment. All possible
SVPs who are in state custody - parolees and civil
commitment patients - will be subject to evaluation.
The prosecutor (county counsel or the district
attorney) will determine if the potential SVPs
offenses were predatory. The psychologists and
psychiatrist will perform SVP evaluations, but the
prosecutor will determine if a commitment petition
will be filed. The Department of Mental Health (DMH)
will have a statutory duty to provide information
about the evaluation and the potential SVP to the
prosecutor. Prosecutors may request evaluators to
correct or complete evaluations. All appointed
evaluators will receive the same compensation.
Prosecutors will have easier access to relevant
records. The SVP patient or the prosecutor may demand
a jury trial in a proceeding to determine if the
patient is no longer an SVP.
2. Expansion of the Class of Persons Subject to SVP Evaluation
have Strained Ability of DMH to Perform SVP Commitment
Evaluations
Proposition 83 of the 2006 General Election (Jessica's Law)
changed the basic criteria for evaluation of an inmates as an
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SVP. Previously, a person could be evaluated as an SVP if he<5>
committed predatory sexual crimes against more than one victim.
Pursuant to the changes made by Proposition 83, an inmate may
be evaluated as a possible SVP if he committed a predatory
sexual offense against one person. A predatory offense is one
committed against a stranger or a person with whom the
perpetrator cultivated a relationship for purposes of abuse.
CDCR must examine prison records to find any inmate who has been
convicted of a qualifying sex crime (most sex crimes qualify)
against a non-family member. Such inmates are then referred to
DMH for full evaluation. After an initial evaluation by trained
screeners, these inmates are referred to expert psychiatrists or
psychologists for full evaluation.
The changes in criteria for evaluation of potential SVPs have
increased the number of evaluations performed by DMH experts 10
fold, from approximately 50 to well over 500 per month. In
fiscal year 2009-10, the average number of monthly referrals was
620. The total number of referrals was 7,439. Funding for the
DMH evaluation process increased from $5 million in 2005-2006 to
$30 million in 2007-08 and 2008-09.
However, as reflected by an audit by the Bureau of State Audits,
the number of persons actually committed to the program was
largely unchanged by the huge expansion of the inmates subject
to evaluation, and fell significantly in 2009.
Bureau of State Audits Statistical Analysis of SVP Evaluations
and Commitments
2005 2006 2007 2008
2009
-------------------------------------------------------------
|Total |512 |1,850 |8,871 |7,338 |6,765 |
|referrals | | | | | |
|to DMH | | | | | |
|-----------+---------+---------+---------+---------+---------|
|Total |15 |27 |43 |16 |3 |
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<5> Virtually all SVPs are men.
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|Commitments| | | | | |
| to SVP | | | | | |
|Program | | | | | |
|-----------+---------+---------+---------+---------+---------|
|Percentage |2.93% |1.46% |.48% |.22% |.04% |
|of | | | | | |
|commitments| | | | | |
| to | | | | | |
|referrals | | | | | |
-------------------------------------------------------------
Jessica's law was enacted in November of 2006. Most of the 43
persons committed to the program in 2007 were likely initially
evaluated under the law prior to Jessica's Law. This is because
the commitment process is typically lengthy, often taking many
years. SVP experts are few and difficult to schedule as
witnesses at trial. The trial issues are complex. Further,
prior to enactment of Chelsea's Law in 2010, some persons
pending SVP commitment trials had an incentive to slow the
process in order to run out their parole period during the
process. However, by 2009 it is likely that persons in the
commitment process, including trial, had been evaluated under
the standards for eligibility set by Jessica's Law.
HAS THE GREATLY INCREASED POOL OF INMATES ELIGIBLE FOR SVP
COMMITMENT CREATED BY JESSICA'S LAW RESULTED IN ADDITIONAL
COMMITMENTS TO THE SVP PROGRAM?
This bill broadens the definition of a predatory sex crime to
include any crime with multiple victims, regardless of
relationship of the perpetrator to the victims and whether or
not the crimes occurred on a single occasion. Thus,
intra-family sexual molestations involving more than one victim
would constitute predatory sex crimes. As such, the bill
significantly expands the class of persons who would be subject
to full SVP evaluation. However, because it appears that a
finding that a person is an SVP typically is based, at least in
part, on a predator's pattern of criminal sexual conduct, this
change may not substantially expand the number of persons
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committed to the SVP program.
WOULD THIS BILL EXPAND THE CLASS OF INMATES SUBJECT TO
EVALUATION AS SVPs WITHOUT SIGNIFICANTLY INCREASING THE NUMBER
OF PERSONS COMMITTED AS SVPs?
3. This Bill Grants the District Attorney Substantial Authority
and Involvment in Expert Evaluations of Inmates as Possible
SVPs
Current Evaluation Process
Under existing law, CDCR reviews the record of each inmate
scheduled for release on parole to determine whether or not the
inmate has a prior qualifying sex crime conviction.<6> CDCR
also makes the initial determination of whether or not the
inmate's prior sex crimes were predatory - committed against a
stranger or a person groomed for abuse or victimization. Where
the inmate has a prior qualifying conviction, the case is
referred to DMH for evaluation. DMH designates two experts
(psychiatrists or psychologists) to evaluate the inmate pursuant
to a specified protocol to determine if the inmate has a mental
disorder that renders him likely to commit sex crimes.
If both of the first evaluators agree that the inmate is likely
an SVP, the case is referred to the district attorney in the
county from which the inmate was committed to prison. The
district attorney files a petition in superior court for an
indeterminate commitment of the person for treatment by the DMH.
In the commitment trial, the district attorney must prove
beyond a reasonable doubt that the person is an SVP.
If the first set of evaluators agree that the inmate is not an
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<6> The SVP statute directs the county board of supervisors to
designate which office - district attorney or county counsel,
shall prosecute SVP commitment cases. (Welf. & Inst. Code §
6601, subd. (i).) It appears that the district attorney is
typically the office that pursues these matters. For example,
the Orange County District Attorney is the sponsor of this bill
and pursues SVP prosecutions in that county.
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SVP, the inmate is released on parole. If the evaluators do not
agree, two independent evaluators are appointed. If they agree
that the inmate is likely an SVP, the district attorney is
directed to file a petition for commitment. If the evaluators
have a split opinion, or agree that the inmate is not an SVP,
the inmate is released on parole.
New Powers and Duties of District Attorneys in Evaluation
Process under this Bill
District attorney determines whether or not an inmate's
prior sex crime was predatory.
District attorney may review all material considered by
the experts.
District attorney may direct the experts to consider
certain material, including the district attorney's opinion
on the evaluation methodology.
District attorney has authority to file an SVP petition
regardless of the experts' conclusions.
Only one set of evaluations is done.
Issues Arising from Directive that Evaluators shall Consider
Input from Prosecutors as to Inadequate Facts and Improper
Evaluation Methodology
This bill provides that prosecutors may essentially reject an
expert evaluation of a person who meets initial statutory
criteria for evaluation as an SVP. The prosecutor can direct
DMH evaluators - either DMH employees or appointed experts - to
consider additional facts and circumstances determined by the
prosecutor to be material. The prosecutor can also question the
methodology used by the evaluator.
It can be argued that the bill allows a prosecutor to
essentially demand a re-evaluation. Further, it appears that
the prosecutor can monitor the evaluation process. That is, DMH
must immediately provide to the prosecutor the status of the
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case, including information used in the evaluation, names and
contact information of the evaluators, the reports and the
conclusions of the reports. It can be argued that this
provision gives a prosecutor the ability to critique, if not
attempt to directly influence, the evaluation.
DO SVP PROSECUTORS HAVE THE EXPERTISE TO CRITICIZE OR QUESTION
THE METHODOLOGY USED BY AN SVP EVALUATOR?
WHAT IS THE EVIDENCE THAT DMH OR APPOINTED PSYCHIATRISTS AND
PSYCHOLOGISTS PROVIDE INADEQUATE EVALUATIONS IN SVP CASES,
EITHER AS CONCERNS THE METHODOLOGY OR FACTS CONSIDERED?
4. General Policy Issues Raised by new Powers and Duties for
Prosecutors in SVP Cases
Existing law provides that mental health experts make the
initial determination that an inmate is likely an SVP. Only
where two evaluators agree that the inmate is an SVP is the
matter forwarded to the district attorney or county counsel -
whichever office is designated by the county to handle SVP
matters - for litigation of the case. Existing law does not
specify that the district attorney shall litigate SVP cases,
although that is the typical practice. Arguably, this
demonstrates a policy that SVP matters are not essentially
criminal matters. That is, mental health experts determine
whether an inmate has a mental disorder and the district
attorney or county counsel uses his or her expertise as a
litigator to present the case for the state.
Arguably, this bill makes the SVP evaluation a prosecutorial
process. The district attorney makes the initial determination
of whether or not the prior conviction or convictions were
predatory - against a stranger, a person groomed for abuse or
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involving multiple victims.<7> DMH shall inform the prosecutor
of the names and contact information of the evaluators, the
material used in the evaluation and the status of the case. It
is not clear whether or not the district attorney is entitled to
receive draft reports or only the final report.
Arguably, this bill would make the filing of SVP petitions very
similar to the process for the filing of criminal charges. In
the context of alleged crimes, police arrest suspects, write
crime reports and forward the reports to the district attorney.
The district attorney then determines whether or not to file
charges against the arrestee. The police become prosecution
witnesses and typically assist the prosecutor in the preparation
of the case. Under this bill, the expert evaluators in SVP
matters would have a similar function to police in criminal
cases. The evaluators would review material, be subject to
prosecutorial review, and submit a report to the prosecutor who
would determine whether or not to proceed.
SHOULD THE SVP EVALUATION PROCESS BE MADE SIMILAR TO THE PROCESS
FOR FILING CRIMINAL CHARGES?
5. Constitutional Issues - Substantive Due Process and Ex Post
Facto Punishment (Increasing the Punishment after Commission
of an Offense)
Due Process
The United States Supreme Court has held that commitment to a
mental hospital involves "massive curtailment of liberty" and
social stigma that "requires due process protection." (Vitek v.
Jones (1980) 445 U.S. 480, 491-492.) Nevertheless, the state
may involuntarily commit persons for mental health treatment who
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<7> The bill also expands the definition of predatory to include
crimes against multiple victims. That is, under this bill, any
inmate who has committed sex crimes against more than one victim
has committed predatory offenses. The bill also expands the
definition of predatory to include crimes against multiple
victims; under this bill, any inmate who has committed sex
crimes against more than one victim has committed predatory
offenses.
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are unable to care for themselves or who are dangerous because
of a mental disorder. (Foucha v. Louisiana (1992) 504 U.S.
71-75.) However, the proof of grounds for commitment should be
clear and convincing. (Addington v. Texas (1979) 441 U.S. 418,
425-433.) A civil commitment statute must also be narrowly
drawn. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153,
fn. 20.)
This bill grants substantial new powers to prosecutors in the
SVP evaluation process. The involvement of a criminal
prosecutor, or even a county counsel, in decisions concerning
whether a person suffers from a mental disorder and in the
treatment process would almost certainly be challenged as a
violation of due process. Persons committed under this bill
would likely claim that the SVP scheme was not truly a mental
health treatment program, but simply a means of confining
persons who would otherwise be released into society.
Ex Post Facto Issues
The federal and state constitutions prohibit enactment of an ex
post facto law - one that increases the punishment after a crime
has been committed. (U.S. Const., art. I, § 9, 10; Cal. Const.,
art. I, § 9; In re Arafiles (1992) 6 Cal.App.4th 1467,
1481-1482.) The California Supreme Court has upheld the SVP law
against ex post facto challenges. The court found that intent
of the law is to provide mental health treatment, not
punishment. (Hubbart v. Superior Court, supra, 19 Cal.4th 1138,
1170-1179.) The court noted that the non-punitive purpose of
the law is further demonstrated because it can only be applied
to a small number of particularly dangerous and mentally
disordered sex offenders, not a broad class of sex offenders.
(Id, at pp. 1153, fn, 20, 1172-1175.) The Supreme Court
recently found that the Jessica's Law amendments did not violate
ex post facto principles. (People v. McKee (2010) 47 Cal.4th
1172, 1193-1195.)
Nevertheless, because this bill gives substantial new power to
prosecutors at the SVP evaluation stage, the bill will be
subject to significant new ex post facto challenges. Mental
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health experts will simply write reports for the consideration
of the district attorney. The evaluators do not have to agree
that the person is an SVP. The district attorney can direct
evaluators to consider "input" about factual information and
even the evaluation methodology. As noted above, SVP defendants
will argue the bill effectively creates a second prosecution of
a person who would otherwise be released from prison.
6. Predatory Sex Crimes - Expansion of the Class of SVPs
This bill expands the definition of what constitutes a predatory
sex crime. By providing that multiple sex crimes, per-se,
constitute predatory crimes, the bill significantly expands the
class of persons subject to review as SVPs. Many sex crimes
involve intra-family molests (charged as lewd conduct).
Intra-family molests against more than one victim are not
uncommon. Because of the evaluation protocol, expert evaluators
would not likely find such persons to be SVPs. However, under
this bill the district attorney can ignore the findings of the
evaluators and seek SVP commitment.
The expansion of the definition of predatory may not
substantially increase the number of persons committed to the
SVP program. Jessica's Law (Prop. 83) greatly expanded the
class of persons subject to SVP evaluation by reducing the
number of qualifying prior predatory convictions from two to
one. This change required evaluations of thousands of
additional inmates, but very few additional commitments to the
program. In the main, evaluators did not find the additional
inmates to fit the criteria for SVP commitment. (See Comment #
2 for statistics and discussion of this issue.) The prosecutor
could proceed with a commitment trial under this bill, but it
may be difficult for the prosecutor to obtain a judgment for
commitment at trial.
The expansion of the definition of predatory also would affect
ex-post facto and substantive due process challenges. That is,
SVP defendants would argue the expansion of what constitutes a
predatory offense would argue that the law is simply a way to
extend the confinement of a broad class of sex offenders who
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have finished their prison terms and would otherwise be
released.
7. SVP Evaluations of Parolees and others Civilly Committed to
DMH such as Mentally Disordered Offenders and Incompetent to
Stand Trial Defendants
Parolees
This bill appears to require SVP evaluation of parolees.
Parolees who have been previously convicted of qualifying sex
crimes would have been evaluated as SVPs prior to release from
prison. If this bill is enacted, it appears that inmates on
parole at the time of enactment would be
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subject to the new evaluation and commitment provisions prior to
discharge from parole. Parolees who were found not to be SVPs in
the expert evaluations could be subject to a petition filed by a
prosecutor who rejects the opinion of the experts.
It is unclear how the bill would apply to parolees who were
paroled after enactment of the bill, as those parolees would
have been evaluated under the new provisions while in prison.
This bill could be interpreted to mean that a second evaluation
must be done at least six months prior to the end of the parole
period.
Evaluation of Civilly Committed Persons other than SVP Patients
This bill requires DMH to evaluate as a possible SVP any person
who has been civilly committed for treatment. This would
apparently include forensic<8> mental health patients, such as
mentally disordered offenders, persons not guilty by reason of
insanity and defendants who are incompetent to stand trial. It
would also appear to include persons committed under purely
civil processes as gravely disabled (unable to care for
themselves) or dangerous to self or others under true civil
commitment through the Lanterman-Petris-Short (LPS) Act.
8. Equal Protection Issues
Litigation is pending as to whether SVPs are denied equal
protection in being indeterminately committed for treatment
while other forensic patients can be only be committed for one
or two years without a new proceeding. For example, Mentally
Disordered Offenders (MDO) have been convicted of a violent
offense, have a mental disorder that caused or contributed to
the crime, received psychiatric treatment in the last year of
prison and would otherwise be released on parole. (Pen. Code §§
2960-2981.) At the end of the parole period, an MDO can only be
involuntarily treated for a period of one year, unless the MDO
status is proved in a new trial. (Pen. Code § 2970.)
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<8> Forensic mental health involves treatment of persons who
have been drawn from the criminal justice system.
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The California Supreme Court in People v. McKee (2010) 47 Cal.4th
1172, held that the state had not proved why SVPs should be
treated differently as to length of commitment than other
forensic patients, such as MDOs. The Supreme Court appears to
have concluded that MDOs and SVPs are similarly situated and that
the state must prove that compelling state interests justify the
difference in treatment of the two classes of patients. (Id, at
p. 1202.) The Supreme Court remanded the McKee case to the San
Diego Superior Court. According to counsel for Mr. McKee, the
state prevailed in the trial court and the matter is pending in
the Court of Appeal. It appears that the California Supreme
Court will finally decide the issue. Resolution of the matter
could take a number of years. (Id at pp. 1196-1211.)
This bill creates a process for evaluating persons as possible
SVPs that is much broader than other forensic commitment laws,
even including persons under any other civil commitment. It
also appears that this bill would allow the district attorney,
or county attorney in a county where county counsel prosecutes
SVP cases, substantial involvement in the evaluation by experts
to determine if a potential SVP suffers from a mental disorder
making him liable to commit predatory sex crimes. The bill
allows the district attorney or county counsel to provide input
to evaluators on the methodology they used. No similar process
occurs in other forensic commitment schemes. Such different
treatment would be subject to equal protection arguments.
9. Possible Conflict or Confusion as to Rights and Procedures in
Hearings on an SVP Patient's Petition for Conditional Release
Under existing law, an SVP patient may, without the concurrence
or recommendation of DMH, file a petition for conditional
release.<9> To obtain conditional release under supervision,
the SVP patient must prove to a court by a preponderance of the
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<9> Welfare and Institutions Code Section 6608, subdivision (a),
does state that an SVP patient can file a petition for
conditional or unconditional release, but there is no procedure
where the court, without the concurrence of DMH, could grant
unconditional release without a period of conditional release
under supervision beforehand.
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evidence that he would not be a danger to the public if released
into the community under treatment and supervision. (Welf. &
Inst. Code § 6608.)
This bill incorporates by reference the rights set out in
Section 6605, subdivision (d), that apply in a trial conducted
after DMH has determined that an SVP patient is no longer an
SVP. Section 6605, subdivision (d), in turn incorporates by
reference the constitutional rights granted to a person in the
initial SVP trial. These include a right to counsel and the
assistance of experts and the right to jury trial at which proof
of SVP status must be established beyond a reasonable doubt.
The bill also specifically refers to trial by jury in this
regard.
However, the bill does not strike the provision in Section 6608,
subdivision (i), stating that the SVP patient shall have the
burden of proof by a preponderance of evidence in the
conditional release trial. The provisions of the bill as
concerns the rights and procedures applicable in conditional
release trials are arguably inconsistent and confusing. SVP
patients seeking release would likely argue that the state has
the burden of proof in such proceedings. The state would likely
argue that the conditional release trials would proceed as a
commitment trial, with the exception that the SVP would have the
burden of proof by a preponderance of the evidence.
ARE THE PROVISIONS IN THE BILL CONCERNING A JURY TRIAL ON THE
ISSUE OF A PETITION FOR CONDITIONAL RELEASE INCONSISTENT OR
CONFUSING?
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