BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 5 3 5 AB 535 (Quirk) As Amended April 10, 2013 Hearing date: June 4, 2013 Government Code AA:jr EMERGENCY ALERT SYSTEM: CUSTODIAL PARENTS AND GUARDIANS HISTORY Source: Alameda County District Attorney Prior Legislation: AB 415 (Runner) (Ch. 517, Stats. 2002) Support: Alameda County Board of Supervisors; Polly Klaas Foundation; Klaas Kids Foundation; Peace Officers Research Association of California; California Police Chiefs Association; National Assocation of Social Workers, California Chapter; Crime Victims Action Alliance; Child Abuse Prevention Center; Crime Victims United of California; California Association of Highway Patrolmen; Contra Costa County Police Chiefs Association; one individual Opposition:None known Assembly Floor Vote: Ayes 76 - Noes 0 (More) AB 535 (Quirk) PageB KEY ISSUE FOR PURPOSES OF ACTIVATING THE EMERGENCY ALERT SYSTEM, SHOULD "ABDUCTOR" INCLUDE A CUSTODIAL PARENT OR GUARDIAN WHERE THE ABDUCTED CHILD IS IN IMMINENT DANGER OF SERIOUS BODILY INJURY OR DEATH? PURPOSE The purpose of this bill is to provide that for purposes of activating the Emergency Alert System, an abductor may include a custodial parent or guardian where the abducted child is in imminent danger of serious bodily injury or death. Current law provides that if an abduction has been reported to a law enforcement agency and the agency determines that a child 17 years of age or younger, or an individual with a proven mental or physical disability, has been abducted and is in imminent danger of serious bodily injury or death, and there is information available that, if disseminated to the general public, could assist in the safe recovery of the victim, the agency, through a person authorized to activate the Emergency Alert System, shall, absent extenuating investigative needs, request activation of the Emergency Alert System within the appropriate local area. Law enforcement agencies shall only request activation of the Emergency Alert System for an abduction if these requirements are met. (Government Code § 8594(a).) Current law provides that the Emergency Alert System is not intended to be used for abductions resulting from custody disputes that are not reasonably believed to endanger the life or physical health of a child. (Id.) This bill would provide that, for purposes of activation of the Emergency Alert System, an abductor may include a custodial parent or guardian where the abducted child is in imminent danger of serious bodily injury or death. AB 535 (Quirk) PageC RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver AB 535 (Quirk) PageD health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Stated Need for This Bill AB 535 (Quirk) PageE The author states in part: . . . In California, AMBER Alerts are administered by the California Highway Patrol (CHP). In conjunction with criteria established by the DOJ, alerts are issued if the following conditions are met: 1. Investigating law enforcement agency confirms an abduction has occurred; 2. Victim is 17 years of age or younger, or has a mental or physical disability; 3. Victim is in imminent danger of serious injury or death; and 4. There is information, that if provided to the public, could assist in the child's safe recovery. Since 2002, CHP has activated 205 alerts, resulting in the safe return of 244 victims. In an intelligence brief released to the author's office by the Federal Bureau of Investigation (FBI), custodial motivated abductions augment the threat to children. A primary hindrance in recovering a child abducted by a custodial parent is "the perception by law enforcement that a child is not at risk in the physical custody of a parent, even if the parent is the abductor?When a custodial child is reported to law enforcement, the child should be considered to be in danger, especially in cases which the custodial parent has been reported to have previously threatened to abduct or harm their child; are mentally disabled; or are unemployed and are therefore financially unstable." Further, the abduction should be taken more seriously in instances in which the abducting parent has a history of previous threats "to abduct or harm their child; are mentally disabled; or are unemployed and are therefore financially unstable." According to the US Department of Justice, 800,000 children are reported missing every year in the US. An AB 535 (Quirk) PageF estimated 200,000 are abducted by a family member. No parent ever wants to have to report a missing child. However, when such action is needed, quick and coordinated response by law enforcement can help to safely return the child. However, there is ambiguity as to whether or not an AMBER Alert may be activated if the abduction of a child was done by a parent or guardian. . . . According to the DOJ, 75% of children who are abducted and later found murdered were killed within three hours of being abducted. As such, quick response is critical in the safe return of children. . . . The AMBER Alert system has been a powerful tool in helping law enforcement to safely and quickly recover abducted children. However, there is a discrepancy in current law that needs to be addressed. There is disagreement if, all other factors considered, an AMBER Alert can be issued if the abductor is a parent or guardian. The relationship between the child and the abductor should not be an inhibiting factor if there is reason to believe that the child's life is at risk. 2. What This Bill Would Do As explained in detail above, this bill would clearly provide that the Emergency Alert System can be activated in cases where an abductor is believed to be a custodial parent or guardian and the abducted child is in imminent danger of serious bodily injury or death. 3. Background: Amber Alerts; "Abductions" Involving Parents An "Amber Alert" is issued upon the suspicion that a child was abducted. The AMBER Alert system started in 1996 after the abduction and murder of nine-year old Amber Hagerman from Arlington, Texas. Dallas-Fort Worth broadcasters teamed with AB 535 (Quirk) PageG local police to develop an early warning system to help find abducted children. "AMBER" stands for America's Missing Broadcast Emergency Response. The Child Alert Foundation created the first fully automated Alert Notification System (ANS) in 1998 to notify surrounding communities when a child was reported missing or abducted. By 2002, the National Center for Missing and Exploited Children (NCME) expanded its role in promoting the AMBER Alert; the Federal Communications Commission officially endorsed the system; and California established a state-wide AMBER Alert system. By 2005, all 50 states had operational programs. The US Department of Justice (US DOJ) continues to look for ways to improve the AMBER Alert program to increase success in the recovery of abducted children. According to the DOJ, 75% of children who are abducted and later found murdered were killed within three hours of being abducted. As such, quick response is critical in the safe return of children. Since 2002, the CHP has activated 205 alerts, resulting in the safe return of 244 victims. As noted by the author and the Assembly Public Safety Committee's analysis of this bill, there have been at least two cases where AMBER alerts have not been issued for children believed to be at risk after having been "taken," but by a parent with legal custody. No statewide AMBER Alert was issued in 2005, when relatives contacted authorities with grave concerns about Mary Alicia Driscol and her 5 year-old daughter Jineva. Driscol drove her daughter from their home in Contra Costa County to Sonoma County, where mother and daughter ultimately were found dead in the mother's car in an apparent murder-suicide. Although sought by local authorities, no statewide AMBER Alert was issued in this case. The CHP determined that because the mother had sole custody of her daughter, an abduction could not AB 535 (Quirk) PageH have occurred for purposes of issuing an AMBER Alert.<1> Similarly, in 2012 Christopher Maffei appeared at his former girlfriend's home and unexpectedly took their three-year old daughter and six-year old son. The children were safely rescued after the boat Christopher had stolen was spotted by a fisherman about 50 miles off the coast of Pillar Point in Half Moon Bay. An AMBER Alert was not issued because he was a "parent with no legal restrictions against having the children." (See San Francisco Chronicle article, "Kids recovered after abduction, police say.")<2> *************** --------------------------- <1> http://www.sfgate.com/bayarea/article/CONTRA-COSTA-COUNTY-CHP-exp lains-why-Amber-2663110.php. <2> http://www.sfgate.com/crime/article/Kids-recovered-after-abductio n-police-say-3847831.php#photo-3425673.