BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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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)
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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.
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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
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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
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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
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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
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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
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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>
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<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.