BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 4 5 8 SB 458 (Wright) As Amended April 1, 2013 Hearing date: April 9, 2013 Penal Code JM/NM:mc GANG DATABASES - PARENTAL NOTIFICATION HISTORY Source: Youth Justice Coalition Prior Legislation: SB 296 (Wright) - Vetoed, 2011 AB 177 (Mendoza) - Ch. 258, Stats. 2011 AB 1392 (Tran) - Held in Assembly Appropriations, 2010 AB 1291 (Mendoza) - Ch. 457, Stats. 2007 Support: American Friends Service Committee; American Civil Liberties Union of California; Gay-Straight Alliance Network; National Juvenile Justice Network; Life After Uncivil Ruthless Acts; The W. Haywood Burns Institute; Southern California Cease Fire Committee; Los Angeles Community Action Network; California Families to Abolish Solitary Confinement Opposition:None known KEY ISSUE (More) SB 458 (Wright) PageB BEFORE A MINOR IS DESIGNATED A SUSPECTED GANG MEMBER, ASSOCIATE OR AFFILIATE, SHOULD THE MINOR AND HIS OR HER PARENT OR GUARDIAN BE ADVISED OF THE DESIGNATION AND THE BASIS FOR THE DESIGNATION? PURPOSE The purposes of this bill are to 1) require local law enforcement to notify a minor and the minor's parent or guardian prior to designating that minor as a gang member, associate or affiliate in a shared gang database; 2) require local law enforcement to advise the minor and the minor's parent or guardian of the basis for that designation; 3) define "shared gang database;" and 4) require the Attorney General to update policies and procedures regarding any statewide database it houses every five years. Existing law defines a "criminal street gang" as any ongoing organization, association, or group of three or more persons . . . having as one of its primary activities the commission of one or more enumerated offenses, having a common name or identifying sign or symbol, and whose members engage in a pattern of gang activity. (Pen. Code § 186.22, subd. (f).) Existing law provides that any person who actively participates in a criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who promotes, furthers, or assists in any felonious conduct by members of the gang, is guilty of an alternate felony-misdemeanor. (Pen. Code § 186.22, subd. (a).)<1> Existing law provides that any person who is convicted of a felony committed for the benefit of, at the direction of, or in --------------------------- <1> There is no need for conviction to be in entered into a gang database. See California Gang Node Advisory Committee, Policy and Procedures for the CalGang System, September 27, 2007. (http://oag.ca.gov/sites/all/files/agweb/pdfs/calgang/policy_proc edure.pdf.) (More) SB 458 (Wright) PageC association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall receive a sentence enhancement, as specified immediately below. (Pen. Code § 186.22, subd. (b).) Felony (other than specified) 2, 3, or 4 years Serious felony 5 years Violent felony 10 years Home invasion life, min. 15 years until parole eligibility Carjacking life, min. 15 years Shooting from vehicle life, min. 15 years Extortion or witness intimidation life, min. 7 years Existing law provides that any person who is convicted of either a felony or misdemeanor that is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail for up to one year, or by 1, 2, or 3 years in state prison. (Pen. Code § 186.22, subd. (d).) Existing law defines "pattern of criminal gang activity" as the commission of two or more of enumerated offenses, provided at least one of the offenses occurred after the effective date of the statute and the last of the offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. (Pen. Code § 186.22, subd.(e).) These offenses need not result in a conviction, although prosecutors typically prove the pattern through prior convictions. Existing law provides that any person who is convicted in criminal court or who has a petition sustained in a juvenile court of one of the above noted criminal street gang offenses or enhancements shall register with the local Police Chief or Sheriff within 10 days of release from custody or within 10 (More) SB 458 (Wright) PageD days of his or her arrival in any city, county, or city and county to reside there, whichever is first. (Pen. Code § 186.30, subd. (a) - (b).) Existing law provides that when a minor has been tried as an adult and convicted in a criminal court or has had a petition sustained in a juvenile court for any of the above noted criminal street gang offenses or enhancements, a law enforcement agency shall notify the minor and the minor's parent or guardian that the minor (1) belongs to a gang whose members engage in or have engaged in a pattern of criminal activity as described in subdivision (e) of Section 186.22; and (2) has a duty to register with the local Police Chief or Sherriff within 10 days of release from custody or within 10 days of arrival in that city or county pursuant to Penal Code Section 186.30, subd. (a). (Pen. Code § 186.32, subd. (a)(1)(B).) This bill adds Section 186.34 to the Penal Code, to: require local law enforcement to notify a minor and the minor's parent or guardian prior to designating that minor as a gang member, associate or affiliate in a shared gang database, or submitting a document to the Attorney General's office for the purpose of designating a person in a shared gang database; require local law enforcement to advise the minor and the minor's parent or guardian of the basis for that designation; define "shared gang database" to mean any database that allows access for more than one local law enforcement agency and contains personal, identifying information in which a person may be designated as a suspected gang member, associate or affiliate; and require that if the Attorney General's office houses a statewide database, the Attorney General's office shall update policies and procedures regarding that database every five years. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION (More) SB 458 (Wright) PageE 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 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 42,000inmates since 2006 . . . ." Plaintiffs, who oppose 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 health care that is constitutionally deficient." (More) SB 458 (Wright) PageF 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. The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unsettled. 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. Need for This Bill According to the author: The CalGang database has continued for 25 years without accountability, notification of the individuals or families watched, release of information or data to the public or policy makers, or internal or independent evaluations as to its (More) SB 458 (Wright) PageG effectiveness. Senate Bill 458 will require local law enforcement departments to notify youth when they are added to the CalGang Database, and also require that their parents or guardians be notified. If we want parents to properly help guide their kids away from a life of crime, they need to be told of the suspicion of law enforcement. There are youth as young as ten years old on the CalGang database. 2. History of Shared Gang Databases In 1987, the Los Angeles County Sheriff's Department developed the Gang Reporting, Evaluation and Tracking System (GREAT), the nation's first gang database. "Before GREAT existed, police departments collected information on gang members in locally maintained files, but could not access information that had been collected by other law enforcement agencies."<2> Using GREAT, local law enforcement could collect, store, centralize, analyze and disperse information about alleged gang members. In 1988, the Legislature passed the Street Terrorism Enforcement and Prevention (STEP) Act, asserting California to be "in a state of crisis? caused by violent street gangs whose members threaten, terrorize and commit a multitude of crimes against the --------------------------- <2> Stacey Leyton, The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases (a chapter in Crime Control and Social Justice: The Delicate Balance, edited by Darnell F. Hawkins, Samuel L. Myers Jr. and Randolph N. Stone, Westport, CT, 2003. The African American Experience, Greenwood Publishing Group, March 27, 2013 (http://testaae.greenwood.com/doc_print.aspx?fileID=GM0790E&chapt erID=GM0790E-643&path=chunkbook), citing: GREAT System Overview, The Eighth Annual Organized Crime and Criminal Intelligence Training Conference, August 23-26, 1994, warns: "Gangs now spread their violence and crime to diverse areas of the state, importing their special brand of terrorism to areas that have never known gang problems." (More) SB 458 (Wright) PageH peaceful citizens of their neighborhoods."<3> The STEP Act, which this bill seeks to amend, established the nation's first definitions of "criminal street gang," "pattern of criminal gang activity," and codified penalties for participation in a criminal street gang. In 1997, less than a decade after the regional GREAT database was first created, the regional GREAT databases were integrated into a new unified statewide database, CalGang, with the goals of making the database easier to use and less expensive to access.<4> CalGang operates pursuant to the 1968 Omnibus Crime Control and Safe Streets Act, which requires that "all criminal intelligence systems ? are utilized in conformance with the privacy and constitutional rights of individuals."<5> 3. Application of Shared Gang Databases Today, the CalGang system is accessed by over 6,000 law enforcement officers in 58 counties. The database tracks 200 data fields including name, address, physical information, social security number and racial makeup, and records all --------------------------- --------------------------- <3> Pen. Code § 186.21, 1988. <4> Leyton, supra, note 2, at 113, citing: Patrick Thibodeau, Cops Wield Database in War on Street Gangs, Computerworld, September 1, 1997, at 4; and Ray Dassault, GangNet: A New Tool in the War on Gangs, California Computer News, January 1997 (http://www.govtech.com/magazines/gt/GangNet-A-New-Tool-in-the.ht ml?page=3), quoting Don Mace, attorney general investigator in charge of CalGang with DOJ: "This system makes it easier and cheaper than we ever imagined. It is all point-and-click and pull-down menus. I can go through an entire demonstration of the system and maybe type two keys. Almost as important is the cost savings it allows. I can put 80 end users on it for what it costs me to put up one under the GREAT system, and the entire implementation has only cost $800,000." <5> Criminal Intelligence Systems, Operating Policies, 28 CFR Part 23, (http://www.iir.com/28CFR_Program/28CFR_Resources/ExecOrder12291_ 28CFRPart23.pdf/). (More) SB 458 (Wright) PageI (More) SB 458 (Wright) PageJ encounters police have with the individual.<6> A Web-based intranet system, accessible by local police departments by way of computer, telephone and web browser, allows police to check an individual's CalGang records in "real time."<7> Qualified law enforcement personnel may sign on to the CalGang database from a laptop in their patrol car, for example, and locate a source document regarding a specific individual in the field about whom they seek information.<8> The 2007 California Gang Node Advisory Committee Policy and Procedures handbook on the Attorney General's website makes clear that "the CalGang system is not designed to provide users with information upon which official actions may be taken. Rather its purpose is to provide users with sources of information upon which official action may be taken."<9> When a law enforcement officer requests specific sources of information, the agency is directed to "ensure that information disseminated outside their agency is only to authorized personnel demonstrating a right and need to know."<10> Concerns have been raised regarding the secrecy of the CalGang database and the accuracy of records entered into CalGang. In 1999, Attorney General Bill Lockyer described the database as "mix[ing] verified criminal history and gang affiliations with unverified intelligence and hearsay evidence, including reports --------------------------- --------------------------- <6> Leyton, supra, note 2, at 113. <7> Leyton, supra, note 4, at 113, citing: Thibodeau Cops Wield Database in War on Street Gangs, Computerworld, September 1, 1997, at 4. <8> Phone interview, Sgt. Lauro Cantu, Kern County Sheriff's Department, March 26, 2013. <9> "The fact that a record exists cannot be used to provide probable cause for an arrest or be documented in an affidavit for a search warrant. The facts, which led to the creation of a record, must be used to establish the probable cause in the affidavit. The system can identify the agencies, which must be contacted to obtain and verify those facts." See California Gang Node Advisory Committee, supra, note 1. <10> Id. (More) SB 458 (Wright) PageK (More) SB 458 (Wright) PageL on persons who have committed no crime."<11> "This database," he went on "cannot and should not be used, in California or elsewhere, to decide whether or not a person is dangerous or should be detained."<12> California Supreme Court Justice Chin has also expressed concern about identification tactics, specifically noting the use of self-admission "regardless of the circumstances of their admission."<13> With 201,094 people currently listed on CalGang, community groups have expressed concern about transparency, accountability, notification, release of information to policy makers and the public, and independent evaluations regarding the effectiveness of such shared databases in reducing crime.<14> Youth Justice Coalition states that CalGang "dramatically expands the criminalization of individuals and communities" noting that the database is used routinely to determine who should be served with civil gang injunctions, given gang enhancements during sentencing and targeted for saturation policing. With no notification system, community members say, CalGang has become a "secret surveillance tool," for monitoring children. This system dramatically impacts the way those children are seen and treated by law enforcement without --------------------------- <11> Leyton, supra, note 2, at 115, citing: Bill Lockyer, Letters to the Editor: Lockyer Responds, S.F. Chronicle, August 5, 1999 (http://www.sfgate.com/opinion/letterstoeditor/article/Letters-to -the-Editor-2915623.php). <12> Id. <13> Id, citing: People ex rel. Gallo v. Acuna , 929 P.2d 596, 14 Cal.4th 1090, 1130 (Cal. 1997) noting: "Justice Chin concluded that the evidence against two defendants was insufficient to justify their inclusion in the anti-gang injunction; the only evidence against one was that she claimed gang membership and was in the gang's neighborhood wearing a black top and black jeans (which was consistent with gang attire), and the evidence against the other was his claim of gang involvement and some evidence that he had committed a crime in the gang's neighborhood." <14> Ana Muniz and Kim McGill, Tracked and Trapped: Youth of Color, Gang Databases and Gang Injunctions, Youth Justice Coalition, December 2012 (http://www.youth4justice.org/wp-content/uploads/2012/12/Trackeda ndTrapped.pdf). (More) SB 458 (Wright) PageM notifying families who may wish to intervene, move to a new neighborhood or place their child into an intervention program.<15> Although the exact number of minors designated is unknown, approximately 10% of those listed on the CalGang database are 19 years of age or younger (23,789).<16> Law enforcement representatives, however, have emphasized that any records which are not modified by the addition of new criteria for five years will be purged. Thus, a person need only avoid gang-qualifying criteria for five years to ensure that he or she will be stricken from the database. However, as a practical matter, it may be difficult for a minor living in a gang-heavy community to avoid qualifying criteria when the list of behaviors includes items such as "is in a photograph with known gang members," "name is on a gang document, hit list or gang-related graffiti" or "corresponds with known gang members or writes and/or receives correspondence." In a media-heavy environment, replete with camera phones and social network comments, it may be challenging for a teenager aware of the exact parameters to avoid such criteria, let alone a teenager unaware of he or she is being held to such standards. 4. Required Parental Notification of a Minor's Duty to Register as a Gang Member (More) --------------------------- <15> Id. <16> Id. Under existing law, if a minor is convicted when tried as an adult, or has had a petition sustained in a juvenile court, his or her parent or guardian must be notified of a requirement to register with a local sheriff's office upon release from custody or moving to a new city or county, pursuant to Penal Code section 186.32(a)(1)(B). However, where a minor is included in CalGang, parents are not notified. Although a conviction or declaration of wardship is not required for a CalGang listing, serious consequences to the minor can flow from that action. This bill would require a local law enforcement entity to notify any person under 18 years of age and his or her parents of the minor's designation in a shared gang database and the basis for the designation before the minor is designated as a suspected gang member, associate or affiliate in a shared gang database, regardless of conviction status. 5. Scope of This Bill a. Databases To Which This Bill Applies As currently drafted, this bill would appear to apply only to a database which allows access for more than one local law enforcement agency. CalGang, accessible by officers in 58 counties, allows access for more than one local law enforcement agency and contains personal, identifying information used for the purpose of designating an individual as a suspected gang member, associate or affiliate. Therefore, CalGang falls under the scope of this bill. According to the California Attorney General's website, in addition to CalGang, there are eleven regional databases (More) SB 458 (Wright) PageO maintained by local law enforcement agencies.<17> Although it is possible, individual regional databases are accessible by more than one local law enforcement agency, as neighboring counties may wish to share information, it is unclear whether these regional databases would fall under the scope of this bill. The author may wish to refine the scope of the bill to ensure this bill's provisions apply to any gang database accessible to any law enforcement agency. THIS BILL ONLY IMPACTS A DESIGNATION ON A "SHARED" GANG DATABASE ACCESSIBLE TO "MORE THAN ONE LOCAL LAW ENFORCEMENT AGENCY." SHOULD THIS BILL'S REQUIREMENTS ALSO APPLY TO A REGIONAL DATABASE ACCESSIBLE TO ONE LAW ENFORCEMENT AGENCY? b. Basis For the Designation This bill requires the local law enforcement agency to notify the minor and his or her parent or guardian of the basis for the minor's designation in a shared gang database. Evidence of the basis for each individual designation would conceivably be found in what local law enforcement officials refer to as "source documents," documents indicating whether requisite gang-qualifying criteria have been met. Given the aforementioned community concerns regarding unverified intelligence and hearsay evidence, a policy which provides affected parties with the basis for a designation will likely lead to inquiries regarding methods of appeal, clarification and removal. The author may wish to address this issue at a later date. --------------------------- <17> According to the California Attorney General's website, regional databases are maintained by: Los Angeles County Sheriff's Department; Los Angeles Police Department; San Bernardino County Sheriff's Department; Riverside County Sheriff's Department; Riverside Police Department; Riverside County District Attorney's Office; Orange County District Attorney's Office; Sonoma County Sheriff's Department; San Diego Police Department; Kern County Sheriff's Department; Fresno County Sheriff's Department; San Jose Police Department; and Santa Barbara Police Department (http://oag.ca.gov/calgang.) SB 458 (Wright) PageP ***************