BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 760 (Alquist)
As Amended August 20, 2012
Hearing date: In accordance with SR 29.10(d)
Welfare and Institutions Code (URGENCY)
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SEXUALLY VIOLENT PREDATORS
EXPERT EVALUATORS
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation: SB 179 (Pavley) - Ch. 359, Stats. 2011
SB 1201 (DeSaulnier) - Ch. 710. Stats. 2010
SB 1546 (Runner) - Ch. 608, Stats. 2008
SB 2018 (Schiff) - Ch. 420, Stats. 2000
Support: California District Attorneys Association; Santa Clara
County District Attorney's Office; Crime Victims
United of California
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
(NOTE: This bill is before the Committee pursuant to SR
29.10(d).)
KEY ISSUE
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WHERE AN EXPERT WHO HAS EVALUATED AN ALLEGED SEXUALLY VIOLENT
PREDATOR RESIGNS OR RETIRES BEFORE COMPLETION OF THE CASE,
SHOULD A NEW EVALUATOR BE APPOINTED?
PURPOSE
The purpose of this bill is to provide that where an expert
evaluator of an alleged sexually violent predator resigns or
retires, a replacement evaluator shall be appointed upon the
request of the prosecuting attorney.
The Sexually Violent Predator (SVP) law provides for the civil
commitment for psychiatric 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 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 provides that where the Department of Corrections
and Rehabilitation determines that 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).)
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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." If both evaluators concur that the
person meets the criteria for SVP commitment, DMH shall request
a prosecutor to file a commitment petition. (Welf. & Inst. Code
§ 6601, subd. (d).)
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 provides for a hearing procedure to determine
whether there is probable cause to believe that a person who is
the subject of a petition for civil commitment as an SVP is
likely to engage in sexually violent predatory criminal behavior
upon his or her release from prison. (Welf. Inst. Code §
6602.)
Existing law requires a jury trial at the request of either
party with a determination beyond a reasonable doubt that the
person is an SVP. (Welf. & Inst. Code § 6603.)
Existing law provides that if the attorney petitioning for
commitment of an SVP determines that updated evaluations are
necessary in order to properly present the case for commitment,
the attorney may request the Department of Mental Health (now
denominated the Department of State Hospitals - DSH)<1> to
perform updated evaluations.
If one or more of the original evaluators is no longer
available to testify for the prosecution in court
proceedings, the prosecutor may request the DSH to perform
--------------------------
<1> The designation Department of State Hospitals and the
abbreviation "DSH" will be used for the balance of this
analysis.
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replacement evaluations.
DSH shall perform the requested evaluations and forward
them to the prosecutor and counsel for the alleged SVP.
Updated or replacement evaluations shall be ordered only
as necessary to update one or more of the original
evaluations or to replace the evaluation of an evaluator
who is no longer available to testify for the petitioner in
court proceedings.
Updated or replacement evaluations shall include review
of available medical and psychological records, including
treatment records, consultation with current treating
clinicians, and interviews of the alleged SVP.
If an updated or replacement evaluation results in a
split opinion as to whether the alleged SVP meets the
criteria for commitment, DSH shall conduct two additional
evaluations, as specified. (Welf. & Inst. Code § 6603,
subd. (c)(1).)
Existing law defines "no longer able to testify for the
petitioner in court proceedings" as the evaluator is no longer
authorized by DSH to perform evaluations of SVPs as a result of
any of the following:
The evaluator has failed to adhere to the protocol of
the DSH.
The evaluator's license has been suspended or revoked.
The evaluator is legally unavailable, as specified.
(Welf. & Inst. Code § 6603, subd. (c)(2).)
This bill authorizes the prosecutor in an SVP case to request
the Department of State Hospitals (DSH) to perform a replacement
evaluation if the evaluator "is no longer able to testify for
the petitioner in court proceedings" as a result of the
retirement or resignation of the evaluator.
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This bill provides that a new evaluator shall not be appointed
if the resigned or retired evaluator has opined that the
individual named in the petition has not met the criteria for
commitment, as specified.
This bill specifies that authority for the prosecutor to request
a replacement evaluation applies where the resigned or retired
evaluator was a contractor or DSH employee.
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
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.
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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.
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.
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This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
In SVP cases, Welfare and Institutions Code Section
6603(c) allows the district attorney or county counsel
to request a replacement evaluator from the DMH when
the current evaluator is 'unavailable' for certain
reasons. The statute does address replacing an
evaluator who resigns or retires.
A number of SVP evaluators have recently resigned from
the DMH panel and will not contract with the DMH to
finish their pending cases throughout the state. In
those cases, some trial courts have not allowed the
prosecutor to request a replacement evaluator from the
DMH; and some courts are considering denying the
prosecutor the opportunity to present the testimony of
the replacement evaluator at trial. The issue centers
on whether the evaluator is considered 'unavailable'
by the current definition.
It is essential to the prosecution of SVP cases that
the opinion of at least one evaluator is presented at
a probable cause hearing or trial through the
testimony of the evaluator. It is preferable to
proceed to trial with two evaluations since the
prosecution's burden of proof in an SVP petition is
beyond a reasonable doubt.
SB 760 seeks to amend Welfare and Institutions Code
Section 6603(c)(2) by adding retired or resigned
evaluators to the list of circumstances that permit a
prosecutor to request DMH to perform a replacement
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evaluation.
2. Data on SVP Evaluations, Pending Cases and Commitments
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As of July 2011, 45,539 offenders have been referred to DSH for
SVP evaluation since enactment of the law in 1995. Of this
number, 1,820 met the clinical evaluation requirement and were
referred to district attorneys; 1,274 were found to have
probable cause; 358 have a trial pending; and 717 have been
committed to the program.
The criteria for SVP evaluation has broadened significantly
since 1996, largely through Proposition 83 (2006), also known as
Jessica's Law. Most sex offenders in state prison are subject
to the initial evaluation by CDCR. The expansion of the class
of inmates subject to SVP evaluation, however, has essentially
resulted in no increase in the number of offenders ultimately
found to be SVPs.
3. Evaluation Issues: Workload, Labor Board Decision Requiring
Evaluations by DSH Employees, Compensation Claim changes for
Private Evaluators on Contract with DSH
The governing statute directs DSH to appoint two experts to
evaluate an alleged SVP. The experts may be psychiatrists or
psychologists. If the experts agree that the person is an SVP,
the case is forwarded to a county prosecutor for litigation. If
the experts agree that the person is not an SVP, the case ends.
If the experts do not agree, the statute requires appointment of
two private evaluators for additional evaluations. If these
experts agree that the person is an SVP, the case proceeds. If
one or both of the experts opine that the person is not an SVP,
the case ends.
DSH had found that the number of evaluations it was required to
perform exceeded what department employees could handle,
especially after Proposition 83 in 2006 greatly expanded the
class of inmates subject to SVP evaluation. To handle the
workload, the department appointed private contractors to
perform the initial evaluations.
The California Labor Board ruled in March of 2008 that DSH must
use department employees for initial evaluations of alleged
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SVPs. In response, the Legislature enacted SB 1546 (Runner),
Ch. 608, Stats. 2008, to authorize DSH to continue contracting
with private psychologists and psychiatrists for initial SVP
evaluation. This authorization was repeated in SB 1201
(DeSaulnier), Ch. 710, Statutes of 2010, and SB 179 (Pavley),
Ch. 359, Statutes of 2011. The authority for DSH to hire
contract evaluators for initial evaluation expires on January 1,
2013.
According to DSH representatives, the department has recently
had more success recruiting employee evaluators because a new
and better-paid classification of SVP evaluator was created.
There are approximately 35 DSH-SVP evaluators. DSH is
negotiating with union representatives for authority to use
contract evaluators when DSH experiences a sudden increase in
SVP evaluation referrals from CDCR.
DSH notes that the group of DSH-SVP evaluators is stable.
However, the number of inmates subject to SVP evaluation will
likely remain substantial, providing a heavy work load for DSH
evaluators.
This bill is largely intended to allow appointment of a new
evaluator in a case where the contract evaluator retired or
resigned from the panel of evaluators during pendency of the
case. In this regard, it should be noted that compensation for
contract evaluators has been reduced and the rules for claims
have been tightened. DSH instituted a competitive bid process,
under which evaluation contracts are awarded first to the low
bidders. One appointed evaluator noted that his compensation
has been reduced from $3,500 to $2,000 per evaluation. The
reduction in compensation appears to have been a significant
factor in the decision of contract evaluators to resign from the
panel. It thus appears that finding sufficient numbers of SVP
evaluators, both civil service and private experts, will
continue to be a challenge for DSH.
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