BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1960 (Perea) 0
As Amended April 21, 2014
Hearing date: June 24, 2014
Welfare and Institutions Code
MK:sl
STATE SUMMARY CRIMINAL HISTORY INFORMATION:
STATE HOSPITALS
HISTORY
Source: Department of State Hospitals
Prior Legislation: None
Support: California Police Chiefs Association Inc.; California
State Sheriffs' Association; The National Association
of Social Workers, California Chapter; California
Council of Community Mental Health Agencies; Mental
Health America of California; California Association of
Psychiatric Technicians; California Statewide Law
Enforcement Association; Los Angeles County Sheriff's
Department
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 74 - Noes 2
KEY ISSUE
SHOULD THE LAW REQUIRE THE DIRECTOR OF A STATE HOSPITAL OR A
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CLINICIAN TO GET SUMMARY CRIMINAL HISTORY INFORMATION OF A PATIENT
COMMITTED TO THE STATE HOSPITAL?
PURPOSE
The purpose of this bill is to allow state hospitals to receive
the criminal history information of patients committed to state
hospitals.
Existing law requires the Department of Justice (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. (Penal Code § 11105 (b).)
Existing law 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.
(Penal Code § 11105 (c).)
Existing law 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
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the information authorized by this provision, local law
enforcement agencies are subject to all of the following
conditions:
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
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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:
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. (Penal Code § 11105.03 (a) and
(b).)
Existing law 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. It
also 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
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of the individual to whom the information relates. (Penal Code §
11105.03 (f).)
Existing law 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. (Penal Code § 11105.03 (h).)
Existing law 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 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. (Penal Code § 11105.1 (a)(1).)
Existing law 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. It also provides that
information obtained under this provision is not to be included
in any document that will become part of a public record. (Penal
Code § 11105.1 (b).)
Existing law 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. (Penal Code § 11142.)
This bill provides that whenever a patient is committed to the
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State Department of State Hospitals, a director of a state
hospital or a clinician shall obtain the state summary criminal
history information for the patient.
This bill provides that the state summary criminal history
information shall 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.
This bill provides that the state summary criminal history
information shall be placed in the patient's confidential file
for the duration of his or her commitment.
This bill provides that the state summary criminal history
information may be obtained through the use of the California
Law Enforcement Telecommunications System (CLETS).
This bill provides that a law enforcement officer or a person
authorized by this section to receive the information who
obtains the information in the record and knowingly provides the
information to a person not authorized by law to receive the
information is guilty of a misdemeanor.
This bill defines clinician to mean a state licensed mental
health professional working within the State Department of State
Hospitals who has received, and is current in, CLETS training
that is appropriate for a person who has ongoing access to
information from CLETS and is not a CLETS operator, fooling with
policies on training, compliance and inspection required by the
DOJ.
This bill provides that state criminal history information
secured pursuant to this section shall remain confidential and
access shall be limited to the director of the state hospital or
the clinician. Within 30 days of discharge from the state
hospital, the state summary criminal history information shall
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be removed from the patient's file and destroyed.
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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
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constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
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out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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. Need for the Bill
According to the author:
Under current law, State Hospitals are entitled to
criminal history information for some, but not all,
categories of patients in admissions material received
from a committing court or law enforcement agency.
However, the clinicians who treat these patients in the
State Hospital have limited or no access to this
material and the information cannot be included in the
patient's confidential file.
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The percentage of State Hospital patients admitted
forensically (via the criminal justice system) has
nearly doubled in the past two decades. This has
resulted in a substantial increase in acts of
aggression and violence against State Hospital staff
and patients, including three murders since 2010 (one
of a staff member and two patients). The Department of
State Hospitals (DSH) has taken several steps to reduce
violence and aggression, but one key element is
missing: the ability to access a patient's complete
criminal history information.
State Hospital clinicians require this information in
order to complete an accurate violence risk assessment,
and get the full picture of a patient's history and
tendencies. For example, a patient with a prior
history of drug or alcohol abuse may require substance
abuse treatment. As another example, a State Hospital
may receive a patient with a prior history of gang
affiliations - information which might be key to
properly placing the patient within the State Hospital
system so as to maximize patient and staff safety. In
addition, up-to-date criminal history information is a
critical component of providing quality mental health
treatment, and in providing required reports to
superior courts for certain patients.
2. Access to Summary History Information
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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 NGI for a charged offense; or because he or
she is found mentally IST. According the Assembly Public Safety
Analysis, DSH says 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.
This bill seeks to expand DSH's access to state summary criminal
history information for all patients committed to a 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.
This bill provides a state hospital director or clinician access
to a patient's summary criminal history information 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. This bill provides that this information shall be
used to assess the violence risk to the patient, to assess the
appropriate placement of a patient, for treatment purposes of a
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patient, for use in preparing periodic reports as required by
statute or to determine the patient's progress or fitness for
release. This bill requires that a clinician who accesses the
information must have CLETS training. The information is to be
kept in the patient file and destroyed after the patient is
released.
3. Support
The California Association of Psychiatric Technicians supports
this bill stating:
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. Your
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.
4. Oppose
California Attorneys for Criminal Justice oppose this bill
stating:
CACJ believes the language of the bill is unnecessary
and overly broad. As currently written, the bill
allows the state hospital to access criminal history
information, through CLETS, on anyone that comes into
the hospital. Medical professional should focus on
medically-relevant information. This information is
already provided to the physician.
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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.
AB 1960's language is extremely overbroad and does not
provide enough safeguard to ensure patient
confidentiality.
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