BILL ANALYSIS Ó
AB 1960
Page 1
Date of Hearing: April 1, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1960 (Perea) - As Amended: March 27, 2014
SUMMARY : Requires, notwithstanding any other law, a state
hospital director or clinician to obtain the state summary
criminal history information, and provides a means to access to
this information, whenever a patient is committed to the State
Department of State Hospitals (DSH) to be used as specified.
Specifically, this bill :
1)Requires, notwithstanding any other law, whenever a patient is
committed to DSH, a director of a state hospital or a
clinician, as defined, to obtain the state summary criminal
history information for the patient to be used to assess the
violence risk of a patient, to assess the appropriate
placement of a patient, for treatment purposes of a patient,
for use in preparing periodic reports as required by statute,
or to determine the patient's progress or fitness for release.
Prohibits the use of this information for any purpose other
than those described here.
2)States that the information may be obtained through use of the
California Law Enforcement Telecommunications System (CLETS)
and requires law enforcement personnel to cooperate with
requests for state summary criminal history information
authorized pursuant to this bill and to provide the
information to the requesting entity in a timely manner.
3)Punishes as a misdemeanor a law enforcement officer or person
authorized by this bill to receive state summary criminal
history information who obtains the information in the record
and knowingly provides the information to a person not
authorized by law to receive the information.
4)States that for purposes of this bill, DSH law enforcement
personnel, as specified, may act as the governmental criminal
justice agency as described elsewhere in this bill.
AB 1960
Page 2
5)Defines, for purposes of this bill, "clinician" to mean a
state licensed mental health professional working within DSH.
6)Requires the summary criminal history information to be placed
in the patient's confidential file for the duration of his or
her commitment. Requires this information to remain
confidential and access limited to the director of the state
hospital or the clinician and removed from the patient's file
and destroyed within 30 days of discharge from the state
hospital.
EXISTING LAW :
1)Requires DOJ to furnish state summary criminal history
information to specified entities, if needed in the course of
their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local
government, a public utility, or any other entity in
fulfilling employment, certification, or licensing duties,
specified restrictions listed in the Labor Code are followed.
(Pen. Code, § 11105, subd. (b).)
2)Allows DOJ to furnish state summary criminal history
information to specified entities and, when specifically
authorized, federal-level criminal history information, upon a
showing of a compelling need, provided that when information
is furnished to assist an agency, officer, or official of
state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing
duties, specified restrictions listed in the Labor Code are
followed. (Pen. Code, § 11105, subd. (c).)
3)Allows local law enforcement agencies to provide state
criminal summary history information obtained through CLETS
for the purpose of screening prospective participants and
prospective and current staff of a regional, county, city, or
other local public housing authority, at the request of the
chief executive officer of the authority or his or her
designee, upon a showing by that authority that the authority
manages a Section 8 housing program, operates housing at which
children under the age of 18 years reside, or operates housing
for persons categorized as aged, blind, or disabled. In
releasing the information authorized by this provision, local
law enforcement agencies are subject to all of the following
conditions:
AB 1960
Page 3
a) Prohibits local law enforcement agencies from releasing
any information unless it relates to a conviction for any
of the following offense:
i) a "serious felony," as defined;
ii) specified offenses relative to paying or receiving
money relating to an adoption, interfering with the
exercise of civil rights because of actual or perceived
characteristics of the victim (including hate crimes, as
defined);
iii) an offense concerning firearm access rules relating
to persons convicted of specified offenses;
iv) an offense relating to a "generally prohibited
weapon," as defined;
v) any intentional and knowing violation of a
protective order, as specified;
vi) any felony offense that involves controlled
substances or alcoholic beverages or any felony offense
that involves any activity related to controlled
substances or alcoholic beverages; or,
vii) any offense that involves "domestic violence," as
defined;
b) Prohibits local law enforcement agencies from releasing
information concerning an arrest for an offense that did
not result in a conviction.
c) Prohibits local law enforcement agencies from releasing
information concerning an offense committed by a person who
was under 18 years of age at the time he or she committed
the offense.
d) Requires local law enforcement agencies to release any
information concerning any conviction or release from
custody that occurred within 10 years of the date on which
the request for information is submitted to the Attorney
General, except as follows:
AB 1960
Page 4
i) For a conviction that was based upon a felony
offense that involved controlled substances or alcoholic
beverages or a felony offense that involved any activity
related to controlled substances or alcoholic beverages,
local law enforcement agencies are required to release
information concerning these convictions if the
conviction occurred within 5 years of the date on which a
request for information was submitted; or,
ii) If the information reveals a conviction for an
offense listed in 3a above, local law enforcement
agencies are required to release all summary criminal
history information concerning the person whether or not
the information meets this requirement, provided,
however, that the information meets all the other
requirements (3a-3c).
e) Information released to the local public housing
authority also is to be released to parole or probation
officers at the same time. (Pen. Code, § 11105.03, subds.
(a) and (b).)
4)Provides that any information obtained from state summary
criminal history information pursuant to the above provision
is confidential and the recipient public housing authority is
prohibited from disclosing or using the information for any
purpose other than that authorized by the provision. Requires
that the state summary criminal history information in the
possession of the authority and all copies made from it are to
be destroyed not more than 30 days after the authority's final
decision whether to act on the housing status of the
individual to whom the information relates. (Pen. Code, §
11105.03, subd. (f).)
5)Provides that the use of the information allowed by the
provision above (#3) is to be consistent with specified
federal law and the current regulations adopted by the housing
authority using the information. (Pen. Code, § 11105.03,
subd. (h).)
6)Provides that state summary criminal history information is to
be furnished to the director of a state hospital to which a
person is committed for treatment because he or she pleads not
guilty by reason of insanity (NGI); is found mentally
incompetent to stand trial (IST); is found to be, as a result
AB 1960
Page 5
of mental disorder or impairment by chronic alcoholism,
gravely disabled or a danger to himself, herself, or others;
has attempted or inflicted physical harm to another person, or
has made a serious threat of substantial harm against another
person, as a result of mental disorder or defect while
committed for treatment; or is a mentally disordered sex
offender, as specified. (Pen. Code, § 11105.1, subd. (a)(1).)
7)Provides that the criminal history record required to be
furnished to a state hospital director described above shall
be transmitted by the court with the request for evaluation or
with the order committing the person to a treatment facility,
except that the director of a state hospital may receive the
state summary criminal history information from the law
enforcement agency that referred the person for evaluation and
treatment, as specified. Provides that information obtained
under this provision is not to be included in any document
that will become part of a public record. (Pen. Code, §
11105.1, subd. (b).)
8)Punishes as a misdemeanor any person authorized by law to
receive a record or information obtained from a record who
knowingly furnishes the record or information to a person who
is not authorized by law to receive the record or information.
(Pen. Code, § 11142.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently, even
though more than 96 percent of State Hospital new admissions
are committed via the criminal justice system, State Hospital
clinicians do not have comprehensive access to up-to-date
criminal history information for all of these patients.
Assembly Bill 1960 will provide State Hospital clinicians with
the information necessary to perform accurate violence risk
assessments, create patient [sic] better treatment plans, and
provide reports to the court on the patient's progress or
fitness for release. This bill will help decrease the level of
violence in our state hospitals as well as create better
treatment outcomes for patients."
2)Background : According to the Legislative Analyst's Office
(LAO), "The state's five state hospitals-Atascadero, Coalinga,
AB 1960
Page 6
Metropolitan, Napa, and Patton-provide treatment to a combined
patient population of over 5,000. ? State hospitals treat
patients under several forensic commitment classifications,
including [NGI], [IST], [Sexually Violent Predators], and
Mentally Disordered Offenders. State hospitals also treat
mentally ill persons referred by the counties under civil
commitments. Additionally, two psychiatric programs located on
the grounds of state prisons at Vacaville and Salinas Valley
have a combined inmate patient population of less than 700.
In the last decade, state hospitals have seen a shift in their
population-with the forensic population[, that is, those with
mental illness who are involved in the court system,]
increasing steadily and the civil commitments in decline. The
[Department of Mental Health] reports the forensic population
[was] approximately 92 percent of the state-wide hospital
system [in 2012]." (LAO, The 2012-13 Budget: Oversight and
Accountability at State Hospitals (Mar. 1, 2012).) According
to the DHS, the forensic population of the state hospitals has
increased to over 96 percent in 2013.
Coinciding with the shift of the patient population in the
state hospitals, incidences of violence towards patients and
staff have increased. Since the death of a psychiatric
technician at the Napa State Hospital in October 2010, much
attention has been focused on the level of assaults on state
hospital staff and patients. (See Lee Romney, California
mental hospitals are dangerous, legislators told, L.A. Times
(Aug. 24, 2011).) According to data that the Department of
Mental Health (DMH) reported to the Assembly Budget
Subcommittee on Health and Human Services, patients at the
Napa State Hospital committed 75 physically-aggressive acts
against staff in 2010-11, and there were nearly four times as
many patient-on-staff assaults and twice as many
patient-on-patient aggressive incidents than in 2009. DMH
reports that, in 2010, there were almost 4,600 aggressive acts
against staff and nearly 9,400 aggressive acts against others
system-wide. Consequently, DSH has implemented measures, such
as personal duress alarm systems and pre-admission violence
risk assessments, in attempts to stem the violence taking
place in these facilities.
3)State Summary Criminal History Information : State "summary
criminal history information" is the master record of
information compiled by DOJ pertaining to the identification
and criminal history of any person, such as name, date of
AB 1960
Page 7
birth, physical description, fingerprints, photographs,
arrests, dispositions and similar data. (Pen. Code, § 11105,
subd. (a).) State summary criminal history information
commonly is referred to by the acronym "RAP sheet," which is
short for Record of Arrests and Prosecutions.
4)Criminal Records and Healthcare Utilization : A
recently-released evaluation studied the effects of a known
criminal past on receiving healthcare and whether there was a
discriminatory impact. (Frank et al., Discrimination based on
criminal record and healthcare utilization among men recently
released from prison: a descriptive study (2014) 2:6 Health &
Justice.) The study revealed the following findings:
Overall, 42% of participants reported a lifetime
history of criminal record discrimination by
healthcare workers (Table 1). Among those reporting
criminal record discrimination by healthcare workers,
68% also attributed racial/ethnic discrimination to
healthcare workers (p < .001). Individuals reporting
criminal record discrimination by healthcare workers
were significantly older (mean age, 42.3 vs. 38.6, p =
0.01), more likely to have obtained postsecondary
education (26% vs. 11%, p = 0.03) and had a more
extensive incarceration history (median years
incarcerated, 16 vs. 9, p = 0.002) compared with
individuals reporting no criminal record
discrimination. Criminal record discrimination varied
across racial/ethnic groups as 56% of White
participants reported discrimination based on criminal
record compared to 41% of Black participants and 39%
of those of other race/ethnicities, respectively (p =
0.48). Finally, individuals reporting criminal record
discrimination by healthcare workers were more likely
to report a psychiatric diagnosis (45% vs. 38%, p =
0.43) and to report a healthcare visit during their
most recent incarceration (75% vs. 62%, p = 0.07)
though these associations were not statistically
significant.
?
In conclusion, in a sample of 172 recently released
male prisoners, we found that self-reported criminal
record discrimination by healthcare workers was
AB 1960
Page 8
associated with increased ED utilization after
adjusting for reported racial/ethnic discrimination
and other potential confounders. We also identified a
non-significant trend toward an association between
this experience of discrimination and decreased
utilization of primary care services. We believe our
findings may have implications for both providers as
well as for policy makers. ? More than 40% of
ex-prisoners in this study reported a history of
healthcare discrimination based on criminal record,
and patterns of healthcare utilization varied based on
participants' experiences with discrimination. For
healthcare workers and policymakers alike, greater
understanding of criminal record discrimination may
offer opportunities to increase patient engagement and
improve access for this vulnerable population.
(Ibid.)
While this study focused on use of primary healthcare
services, it may serve to shed light on possible
discriminatory impact people's criminal record have on a
person receiving psychiatric treatment or other forms of
healthcare services.
5)Practical Considerations : Current law already requires that
the courts furnish to the director of a state hospital a
person's state summary criminal history information when that
person has been committed to that facility for treatment for
specified reasons, including if the person is committed for
being dangerous to himself, herself, or others; for pleading
not guilty by reason of insanity for a charged offense; or
because he or she is found mentally incompetent to stand
trial. According to DSH, the requirement to furnish the
information is not always met, as sometimes the criminal
history information is not submitted with the commitment order
or the information is incomplete. (Interview with the Asst.
Director, Office of Legislation, Dept. of State Hospitals
(Mar. 7, 2014).) This committee may wish to examine if an
administrative or other non-legislative remedy was explored,
and whether that would be more appropriate, to resolve this
issue.
This bill seeks to expand DSH's access to state summary
criminal history information for all patients committed to a
AB 1960
Page 9
state hospital, regardless of whether there is a finding that
a patient poses a risk of violence. When accessing state
summary criminal history information in other situations like
participation in youth sports, employment, licensing, and
housing-practically, all situations not involving criminal
investigation or prosecution-the subject of the criminal
history information gives his or her voluntary consent to have
the information furnished to the requesting entity. Patients
at state hospitals, however, are committed to the institution
over any objections they may have about the placement.
Therefore, it is argued that there should be, at the very
least, a suspicion that patients placed in these involuntary
commitments pose a risk of violence before this sensitive
information is examined, because, as discussed above, of the
possible negative effect that the release of this information
will have on the patient accessing services.
Moreover, this bill provides a state hospital director or
clinician access to a patient's summary criminal history
information in an unrestricted manner, what is known as a "raw
rap sheet" among those familiar with this area, which includes
arrests that did not lead to charges being filed let alone a
conviction, charges that were dropped for a lack of evidence,
and court dispositions that did not result in a conviction.
Consequently, this committee may wish to explore how
clinicians are going handle these types of entries in the
summary criminal history information and what type of bearing
they would have in determining the appropriate treatment or
security level, as some of these entries could be decades old
or irrelevant. Another concern raised by providing patient
summary criminal history information to all DSH clinicians,
who as licensed mental health professionals do not necessarily
have law enforcement or related experience or training, is
whether they are trained to understand the nuances within the
information, as data in summary criminal history information
is formatted for the specific purpose of law enforcement
record keeping and consequently contains specific jargon that
is likely not familiar to individuals without the appropriate
background.
In discussion with the author's office and representatives
from DSH, they have agreed to continue fine tuning this bill
if it advanced out of this committee to address the issue of
who within DSH has access to state summary criminal history
information and limit it to a select few individuals who have
AB 1960
Page 10
the proper training and understanding of how to read this
information and be able to use it to formulate a risk
assessment that other DSH clinicians and personnel could use
to establish appropriate treatment and security measures
without direct access to the summary criminal history
information.
6)Drafting issue : In subdivision (e) of this bill, it states
that DSH law enforcement personnel may act as the
"governmental criminal justice agency" described in
subdivision (a). Subdivision (a), however, does not describe
or make mention of a governmental criminal justice agency.
Subdivision (b), on the other hand, makes reference to "law
enforcement personnel." The author may wish to address this
drafting issue to correct this confusion.
7)Arguments in Support :
a) According to the California Association of Psychiatric
Technicians , "Clinicians seeking to provide the best and
safest care possible currently are missing a massive piece
of the treatment puzzle: full, up-to-date access to
patients' criminal-history information. To truly perform
valid assessments of patients' risks of future violence,
clinicians need in-depth access to their pasts. [This]
legislation would make a real difference by allowing state
hospitals and their professional staff-under specific
guidelines-access to state summary criminal history
information throughout the duration of commitment for all
patients admitted through the California state-hospital
system, helping these patients receive more complete
diagnoses and the most appropriate treatments."
b) As stated by the California Psychiatric Association ,
summary criminal history information "[i]n intake unit
evaluations within hours or days of admission to a state
hospital could identify inmates with histories that
indicate that they may need specialized treatment or
security measures. In many cases without this sort of
information staff evaluate an inmate, develop a treatment
plan, place the inmate in particular housing units, only to
uncover later that they were missing key information in
their criminal histories that would have potentially
altered diagnosis, treatment planning or unit placement.
The stakes are high with so much violence in state
AB 1960
Page 11
hospitals."
8)Arguments in Opposition :
a) The American Civil Liberties Union of California argues
"Current law already requires a state hospital to obtain
the state summary criminal history information (aka rap
sheet) when an individual is committed as not guilty by
reason of insanity, incompetent to stand trial, and when
there is a finding of 'danger to others' when placed on a
Lanterman-Petris-Short (LPS) Act conservatorship (Cal. Welf
& Inst. Code, sec 5000 et seq.)
"We believe that AB 1960 takes an overly broad approach by
requiring that the Department of Justice provide rap sheets
for every patient committed to the facility for treatment
regardless of whether the person is violent or the
information is necessary for his or her treatment.
"We suggest narrowing the bill to allow state hospitals to
request a Department of Justice rap sheet for individual
patients when:
Need for a rap sheet : the person is known to be
violent or has acted violently in the facility or
there is a specific need for the information for the
individual's treatment;
Limit access to rap sheet : the access to the rap
sheet should be limited to people who have been
trained on understanding the rap sheets, and who are
directing the treatment of the patient;
Destruction of rap sheet : the rap sheet should be
destroyed after the risk has been assessed and
placement and treatment have been determined. (It
does not seem necessary for the Hospital to hold the
rap sheets until after the person has been
discharged.)
"We also suggest that the state hospital be required to
document compliance with those requirements in such a way
that state regulators can verify compliance."
b) According to California Attorneys for Criminal Justice ,
"Medical professional[s] should focus on medically-relevant
information. This information is already provided to the
AB 1960
Page 12
physician. AB 1960 would increase the likelihood of a
medical determination being influenced by a prior arrest
record, even if the facts of the case do not provide any
insight into the medical condition of the patient.
Furthermore, this ability to access a patient's criminal
history information can go back years and years.
Theoretically, a crime that occurred multiple years ago can
be unnecessarily considered without any reason for violence
risk assessment."
9)Current Legislation :
a) AB 1511 (Beth Gaines) would allow DOJ and local criminal
justice agencies to furnish state and local summary
criminal history information to an animal control officer,
as specified, upon a showing of a compelling need. AB 1511
is pending in the Assembly Committee on Appropriations.
b) SB 1136 (Huff) would require DOJ to provide county child
welfare agency personnel state summary criminal history
information to monitor the health and safety of persons
receiving care, treatment, or services from state licensed
foster homes, foster family agencies, and group homes. SB
1136 is pending in the Senate Committee on Human Services.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Psychiatric Technicians
California Council of Community Mental Health Agencies
California Psychiatric Association
California Statewide Law Enforcement Association
Department of State Hospitals
Los Angeles County Sheriff's Department
National Association of Social Workers
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
AB 1960
Page 13