BILL ANALYSIS                                                                                                                                                                                                    







                      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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