BILL ANALYSIS                                                                                                                                                                                                    







                      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







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                                                             AB 535 (Quirk)
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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.





                                                                           







                                                             AB 535 (Quirk)
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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  




                                                                           







                                                             AB 535 (Quirk)
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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





                                                                           







                                                             AB 535 (Quirk)
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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  




                                                                           







                                                             AB 535 (Quirk)
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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  




                                                                           







                                                             AB 535 (Quirk)
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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  





                                                                           







                                                             AB 535 (Quirk)
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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.