BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 538 Hearing Date: June 30, 2015
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|Author: |Campos |
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|Version: |May 13, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Actions for Damages: Felony Offenses: Victim
Notification
HISTORY
Source: Crime Victims United of California
Prior Legislation:SB 1565 (Schiff) - Ch. 226, Stats. 2000
SB 1330 (Calderon - Ch. 556, Stats. 1994
Support: California Police Chiefs Association; California
State Sheriffs' Association
Opposition:Association of American Publishers; California
Broadcasters Association; Legal Services for Prisoners
with Children; Motion Picture Association of America
Assembly Floor Vote: 75 - 0
PURPOSE
The purpose of this bill is to 1) extend the statute of
limitations for a civil suit by the victim against a criminal
offender who was convicted of any of a list of serious felonies
from 10 years to 15 years from the date that the offender is
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discharged from parole; and 2) require any person or entity that
contracts with a criminal offender for the offender's story
about any of a list of serious felonies to inform the Office of
Victim and Survivor Rights and Services in the Department of
Corrections and Rehabilitation.
Existing law:
Provides that all crime victims have the right under the
California Constitution to seek and secure restitution from the
perpetrators of these crimes. Restitution must be ordered in
every case without exception. Where a defendant has been
ordered to pay restitution, all money, or property collected
from the defendant must be first applied to satisfy restitution
orders. (Cal. Const. Art. 1 § 28, subd. (b)(13)(A)-(C).)
Includes a statutory requirement for the sentencing court to
order the defendant to pay the victim or victims full
restitution for all economic damages. A restitution order is
enforceable as a civil judgment. There is no statutory limit on
the amount of a restitution order. (Pen. Code §§ 1202.4,
subds. (a)(B), (f) and (i).)
Requires a defendant, in addition to direct restitution to the
victim, to pay a restitution fine of between $300 and $10,000
for a felony and $150 and $1,000 for a misdemeanor. This money
is deposited in the Victims of Crime Fund, not provided to the
victim in a particular crime. (Pen. Code § 1202.4, subd.
(b)(1).)
Requires a defendant who has been ordered to pay restitution to
"prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a
present or future interest as of the date of the defendant's
arrest. The financial disclosure statements shall be made
available to the victim and the [Victims Compensation and
Government Claims Board] pursuant to Section 1214. (Pen. Code §
1202.4, subd. (f)(5).)
Provides that, unless a longer period is prescribed, the time
for commencement of any civil action for damages against a
defendant based upon that person's commission of a felony
offense for which the defendant has been convicted is within one
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year after judgment is pronounced. (Code of Civ. Proc. § 340.3,
subd. (a).)
Provides that the time for commencement of an action for damages
against a defendant based upon the defendant's commission of
specified felony offenses for which the defendant has been
convicted is within 10 years of the date on which the defendant
is discharged from parole. Specified offenses include: murder
or attempted murder, mayhem, rape and other specified sexual
assault crimes, any felony punishable by death or imprisonment
in the state prison for life, or an attempt to commit such a
crime, exploding a destructive device so as to cause bodily
injury, mayhem, exploding a destructive device with intent to
commit murder, or kidnapping. (Code of Civ. Proc. § 340.3,
subd. (b)(1).)
Provides that the extended statute of limitations for a civil
action against a convicted criminal defendant does not apply if:
The defendant has received a certificate of rehabilitation or
a pardon;
The defendant has been paroled, following a conviction for
murder or attempted murder, based on evidence presented to the
Board of Prison Terms that the defendant committed the crime
because he or she was the victim of intimate partner
battering; or
The defendant was convicted of murder or attempted murder in
the second degree in a trial at which substantial evidence was
presented that the defendant committed the crime because he or
she was the victim of intimate partner battering. (Code of
Civ. Proc. § 340.3, subd. (b)(2).)
Requires that any restitution paid by the defendant to the
victim shall be credited against any civil judgment, award or
settlement based on the defendant's criminal conduct. (Code of
Civ. Proc. § 340.3(e).)
Provides that the Department of Corrections and Rehabilitation
(CDCR) or Board of Parole Hearings (BPH) shall, at least 60 days
prior to release of an inmate imprisoned for a violent felony,
notify the sheriff or chief of police and the district attorney
of the community of conviction and in the community in which the
person is scheduled to be released. (Pen. Code § 3058.6, subd.
(a)-(b).)
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Provides that whenever any person confined to state prison is
serving a term for the conviction of specified child abuse
offenses or any sex offense perpetrated against a minor, as
specified, or as ordered by any court, the BPH or CDCR shall, at
least 45 days prior to release, notify the sheriff or chief of
police, or both, and the district attorney having jurisdiction
over the community in which the person was convicted and the
community in which the person is scheduled to be released on
parole or re-released following a period of confinement pursuant
to a parole revocation without a new commitment. (Pen. Code §
3058.9.)
Provides that the sheriff or the chief of police, when notified
as to the pending release of a violent felon may, without
incurring any liability, notify any person they deem appropriate
of the pending release. (Penal Code § 3058.7(a).)
Requires the CDCR or BPH to send a notice to a victim or witness
who has requested notification that a person convicted of a
violent felony is scheduled to be released. (Penal Code §
3058.8(a).)
Provides that a prison inmate retains those civil rights that
need not be restricted to for penological interests.
Specifically, an inmate may inherit, own, sell real or personal
property, including all written and artistic material produced
or written by the person during the period of imprisonment,
except as provide in Civil Code Section 2225 (Pen. Code §
26001, subd. (a).)
Provides through the decision in Keenan v. Superior Court (2002)
27 Cal.4th 413 that the requirement in Civil Code Section 2225
that any proceeds from convicted criminal's sale of the story of
his crime be placed in an involuntary trust violates the
constitutional guarantees of freedom of speech.
This bill:
Extends the statute of limitations for filing an action for
damages against a defendant, based upon the defendant's
commission of specified felony offenses for which he or she has
been convicted, from within ten years to within 15 years of the
AB 538 (Campos ) PageE
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date on which the defendant is discharged from parole.
Provides that no civil action for damages may be filed against a
person who was unlawfully imprisoned or restrained but has been
released from prison after successfully prosecuting a writ of
habeas corpus (i.e. falsely convicted and later released.)
Provides that any person or entity that enters into a financial
contract with a criminal offender for the sale of the story of a
crime for which the offender was convicted shall notify the
Office of Victim and Survivor Rights and Services (OVS) within
the California Department of Corrections and Rehabilitation
(CDCR) that the parties have entered into such a contract, if
the following are true:
The contract is based on a story about a murder, attempted
murder, mayhem, rape and other specified sexual assault
crimes, any felony punishable by death or imprisonment in the
state prison for life, or an attempt to commit such a crime,
exploding a destructive device so as to cause bodily injury,
mayhem, exploding a destructive device with intent to commit
murder, or kidnapping for which the offender was convicted.
An action for damages against the offender is authorized by
statute. (See, Code of Civ. Proc. § Section 340, subd. (b).)
Requires OVS to notify the victim and members of the victim's
immediate family, as defined, that it has received
notification that a contract has been entered into for the
sale of the offender's story, if the victim or immediate
family member has previously requested to receive
notifications provided by OVS.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
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state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
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Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Violent criminals should not profit from their crimes.
Unfortunately, existing law does not adequately
protect victims and their surviving loved ones from
the commercial exploitation of violent crimes for
entertainment purposes. AB 538 would increase the
statute of limitations from ten years to fifteen to
ensure ample time for the victim to pursue civil
damages.
Additionally, the bill would make use of the existing
victim notification systems under the jurisdiction of
the California Department of Corrections &
Rehabilitation (CDCR) to notify the victim or victim's
next of kin when such contractual agreements are
taking place. This is intended to be modeled after
the media access law whereby the victim or victim's
next of kin should be notified that a media
representative has requested to interview the
individual, but in no way inhibits their ability to
enter in to a contractual agreement with compensation
for the sale of the offender's story about the crime.
With the increased statute of limitations and
notification about the contractual agreement where
financial gain is provided to the offender, a victim
or victim's next of kin can make an informed decision
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about whether to pursue civil damages.
2. First Amendment Issues Generally
The three standards of review for determining the validity of a
law challenged on First Amendment grounds of freedom of speech
are strict scrutiny, intermediate scrutiny and rational basis.
While some laws clearly fall into one category or another -
banning peaceful protests against a military action is clearly
invalid as a content-based restriction - a First Amendment issue
can be layered and difficult to determine, as the issues touch
virtually every facet of government regulation and contact with
citizens. Complicating First Amendment analysis, courts do not
always use consistent terms in describing the applicable
interests and standards.
A regulation based on the content of speech receives strict
scrutiny, regardless of whether the speech is contrary to
accepted standards of morality or propriety. While strict
scrutiny is certainly applied to political speech, protection of
the content of speech is much broader than that. (Kingsley
Corp. v. Regents of the Univ. of the State of N.Y (1959) 360
U.S. 684, 688-889; Citizens United v. FEC (2010) 558 U.S. 310.)
"If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable." (Texas v. Johnson (1989) 491 U.S. 397, 414.) A
restriction on the "content" of expression, must promote a
"compelling state interest" by the "least restrictive means" to
achieve the compelling interest. (Sable Communications v. FCC
(1989) 492 U.S. 115, 126.)
A content-based restriction will be struck down as
unconstitutionally "overbroad if it prohibits clearly protected
speech although the law may also concern conduct that may
validly be prohibited. (U.S. v. Stevens (2010) 130 S.Ct. 1577,
1587.) Stevens considered a federal statute that criminalized
the sale or possession of "depictions of animal cruelty," in
order to prohibit fetishistic "crush videos" of the killing of
animals for sexual gratification. Stevens was prosecuted for
distribution of videos of dog fights and the government argued
that the law was limited in intent to such depictions. The
Supreme Court found that the statute was overbroad in that it
might reach videos depicting hunting, arguably inhumane
AB 538 (Campos ) PageI
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treatment of livestock, or activities legal in some
jurisdictions but not others, such as cockfighting. (Id., at
pp. 1588-1592.) The fact that speech is disturbing cannot be
the determinant of whether it can be restricted or not.
Intermediate scrutiny requires that a law be substantially
related to, or necessary to achieve, an important or substantial
governmental interest. The most common category of speech
subject to intermediate scrutiny is commercial speech.
Commercial speech is protected, but the state can prohibit or
punish false or misleading speech. (Va. Pharmacy Bd. v. Va.
Consumer Council (1976) 425 U.S. 748, 762, 770-773.) In the
Virginia Pharmacy Board case, the court held that the state
could not prohibit pharmacies from advertising the prices of
prescription drugs. Intermediate scrutiny applies to a facially
content neutral regulation (no direct regulation of the content
of speech in the provisions of the law) that has an indirect
impairment of speech. Restrictions on the time, place and
manner of speech are subject to intermediate scrutiny. (United
States v. Obrien (1968) 391 U.S. 367; United States v. Albertini
1985) 472 U.S. 675. Obrien upheld a conviction under a federal
law prohibiting the burning of a draft card and Albertini upheld
the conviction of a man who had entered a military base nine
years after the base commander had barred him from returning
because he had entered the base and destroyed documents in the
first entry.
Complicating First Amendment analysis is the apparently growing
consideration of whether a law targets a particular class of
speakers. Strict scrutiny may be required if the government
distinguishes among classes based on the substance of the speech
by members of the classes. (Turner Broadcasting v. FCC (1994)
512U.S. 622, 658; Citizens United v. FCC (2010) 558 U.S. 310,
340.) If the class is not regulated based on the content of the
speech, it appears that the proper standard of review is
intermediate scrutiny. (Doe v. Harris (2014) 772 F.3d 563,
575-576.)
Unprotected speech or expressive conduct - such as obscenity -
is not protected by the First Amendment. A regulation
concerning unprotected speech will be upheld under any rational
basis. (Miller v. California (1973) 413 U.S. 15.)
3.Public Fascination with Serial Killers and Notorious Criminals
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Criminals who commit bizarre or horrific crimes have long been
the subject of a wide range of books, films and other forms of
popular culture and academic analysis. Jack the Ripper is an
early example of wide public fascination with, and mass media
coverage about, serial killers. Jack the Ripper killed women in
the East End of London in the 1880s. Fascination with this
killer remains today.<1>
The crimes of Charles Manson and his so-called family have
created a virtual sub-genre of crime media. The most notable
book - Helter Skelter - was written by the investigating
detective, but Manson's writings, statements and musical
compositions have been widely distributed. A Manson follower -
Tex Watson - wrote a book about the crimes Manson and his
followers committed and also described his conversion to
Christianity. Richard Chase, the so-called vampire killer of
Sacramento, was reported to have drunk the blood of victims.
Chase gave a long interview with an FBI investigator who is
credited with coining the term, "serial killer," and became an
author about his cases and serial killers generally.<2> The
fascination with many members of the public with notorious
criminals creates a very large demand for books, movies,
television shows, on-line content. Victims and the family
members of victims are confronted with such material for their
rest of their lives.
4.Background on "Son of Sam" Laws and Related Issues
---------------------------
<1>
http://www.bbc.co.uk/history/historic_figures/ripper_jack_the.sht
ml
<2>
https://books.google.com/books?id=8avgBwAAQBAJ&pg=PA18&dq=Whoever
+Fights+Monsters+richard+chase&hl=en&sa=X&ei=pUKIVaulMMnaoASg04OQ
Aw&ved=0CB4Q6AEwAA#v=onepage&q=Whoever%20Fights%20Monsters%20rich
ard%20chase&f=false
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The "Son of Sam" laws arose in response to the case of notorious
serial killer David Berkowitz. Berkowitz - who was known as the
Son of Sam before his arrest - killed six people, wounded many
more and terrorized New York City in the late 1970s.
Concerns that Berkowitz could profit from his story brought New
York State to enact a statute - commonly called the "Son of Sam"
law. Under the law, a contract for a criminal's story about his
or her crime must have been disclosed to the state. All
proceeds of the contract were placed in an involuntary trust for
the benefit of the criminal's victims. Similar statutes in
other states were also described as Son of Sam laws.
The New York Son of Sam law was overturned in Simon & Schuster
v. New York Crime Victims Board (1991) 502 U.S. 105.<3> The
case concerned Henry Hill, a lifelong mobster who was arrested
on drug trafficking charges in New York in 1980. In exchange
for immunity from prosecution and a new identity, Hill testified
at great length about his former mafia associates.
Subsequently, Hill signed a contract with Simon & Schuster to
publish a book recounting his life as a mobster. The book,
Wiseguy, was a commercial success, and was later made into the
movie Goodfellas, another huge commercial success. The State of
New York moved to place an involuntary trust on Hill's income.
The publisher, Simon & Schuster, filed a lawsuit challenging the
constitutionality of the "Son of Sam" law as an illegal
restraint on speech. The U.S. Supreme Court struck down the law
as an unconstitutional, content-based financial burden on free
speech rights. (Simon & Schuster v. New York Crime Victims
Board, supra, 502 U.S. 105.)
---------------------------
<3> Ironically, the Son of Same law was never applied against
Berkowitz. At the time of his prosecution, the law applied only
to convicted criminals, and Berkowitz was found incompetent to
stand trial. Berkowitz voluntarily paid his share of book
royalties to his victims or their estates. (Simon & Schuster,
supra, 502 U.S. 105, 111.)
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5.The California Son of Sam Laws
California passed its own "Son of Sam" law in 1986 to prevent
those convicted of notorious crimes from profiting by selling
stories about their crimes. The statute did so by imposing an
involuntary trust on the proceeds a felon receives from the sale
of the story of his or her crime. However, the California
Supreme Court, following the U.S. Supreme Court's decision in
Simon & Schuster v. New York Crime Victims Board, invalidated
the law, as amended in 1994 to cover all things of value derived
by the perpetrator from the crime. (Keenan v. Superior Court
(2002) 27 Cal.4th 413). The court in Keenan quoted Simon &
Schuster thus: "[T]he state has a compelling interest in
compensating victims for the fruits of the crime, but little if
any interest in limiting such compensation to the proceeds of
the wrongdoer's speech about the crime." (Simon & Schuster,
supra, 502 U.S. 105, 120-121.)
In Keenan, the court found that the law violated the
constitutional guarantee of free speech; by imposing a
content-based financial penalty on protected speech and that the
law chilled the speech rights of the author or creator and the
right of the public to receive the communications.
Specifically, the law, in seeking to compensate victims,
impermissibly went beyond confiscating the proceeds of the crime
to reach all income from speech of the criminal that included
the story of the crime. (Id., at pp. 417-418.) However, the
opinion in Keenan is so wide-ranging that it is difficult to
summarize.
6.Factors for Analyzing Laws that Affect a Contract for a
Convicted Criminal's Story
Simon & Schuster, Keenan and other cases demonstrated the
extreme constitutional barriers to drafting a law that directly
targets the profits made by a felon from selling the story of
his or her crime. This bill does not impose an involuntary
trust and directly take the profits from convicted criminals who
have sold their stories to publishers and other media entities.
Rather, this bill requires any person or entity that enters into
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a contract for a convicted criminal's story to inform the Office
of Victim and Survivor Services in the Department of Corrections
and Rehabilitation of the contract.
If enacted, defenders of the law defined by this bill would
likely first argue that the bill simply does not regulate or
prohibit speech or expressive conduct. The bill only allows
victims and the state to discover sources of income for a
convicted criminal who owes restitution or to the victims or has
been found civilly liable for those crimes and ordered to pay
damages to the victim
Opponents would likely argue that the bill does target the
content of speech. That is, the bill targets a contract about a
certain kind of speech. If the bill is found to regulate or
limit the content of speech, the bill would be subject to strict
scrutiny. The bill could only withstand challenge if it upheld
a compelling state interest. In light of the history of
challenges to content- based speech, the state could have great
difficulty establishing the validity of the law. The decisions
in Simon and Schuster and Keenan struck down laws that imposed a
"financial burden" or "direct financial disincentive" on speech
about the perpetrator's crime. (See, Keenan at p. 427.)
An argument that the bill only seeks to discover sources of
income due a convicted criminal, not to limit speech, face
challenges. The bill only applies to contracts involving a
convicted criminal's story about his or her crime. It does not
apply to any other contract under which he or she is due money -
the sale of a house, for example. As in this bill, the New York
law required a media entity to report any contract with a
criminal for his or her story to the New York Crime Victims
Board, but New York took the extra step of requiring that money
due under the contract be placed in an escrow account for the
benefit of victims. (See, Keenan at p. 423.)
Opponents would likely argue that the bill simply breaks the
process of paying the proceeds of a convicted criminal's speech
into steps, rather than requiring the money due under the
contract to be directly paid to a trust to benefit the victim.
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In most cases, the victim will hold the equivalent of a civil
judgment in an award or order of restitution. This bill also
extends the statute of limitation for a civil action against the
convicted criminal based on specified serious and violent
crimes. Thus, it can be argued that the bill essentially
funnels the proceeds of a contract for the speech or expression
of a perpetrator to the victim of his or her crime.
7.Prior Restraint Issues
Persons and entities subject to reporting requirements will also
argue that the bill is an unconstitutional prior restraint on
speech, as the bill requires disclosure of a contract for a
story or account about a crime incident by the perpetrator
before the story is stated or written. Prior restraint is a
companion concept to that of a "chilling effect" on expressive
conduct because of a regulation or limitation concerning
speech.<4>
The Motion Picture Association of America, Association of
American Publishers and California Broadcasters Association have
argued that the bill will have a chilling effect on protected
speech. Arguably, publications and other forms of media could
forgo seeking the story of a convicted offender to avoid
negative publicity and criticism when it is revealed that the
entity contracted with a notorious criminal's story. The bill
also raises the issue of the speech and contracting rights of a
publisher, audio-visual media entity, or agent. That is, the
contract that must be reported includes the speech of the other
party to a contract with the criminal. The contract would
likely otherwise remain confidential from competitors. The
resolution of this issue is not clear.
8.Intermediate Scrutiny if the Bill is Content-Neutral; and
Requirement that Laws that affect Speech be Tailored or
---------------------------
<4>
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=37
61&context=fss_papers
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Necessary to Advance an Important Government Interest
The bill could also be found to be content-neutral on its face,
but nevertheless imposes a burden on speech. The bill would
enter the rather slippery and uncertain world of intermediate
scrutiny. In this context, the state would need to show that it
advances an important state interest in a way that is narrowly
tailored to do so. As noted, courts will review any law that
prohibits burdens or regulates speech to determine if the law is
narrowly tailored to promote the state's interest.
Recently, the Federal 9th Circuit Court of Appeals ruled on the
constitutionality of the California law that requires each
registered sex offender to disclose his internet identifiers as
part of registration information. The court held that the law
does not directly regulate the content of speech, but is subject
to intermediate scrutiny because is affects the First Amendment
rights of the class of persons:
Although California clearly has a legitimate interest,
the more difficult question is whether the means
California has chosen "'burden[s] substantially more
speech than is necessary to further the government's
legitimate interests.'" Turner, 512 U.S. at 662<5>
(quoting Ward, 491 U.S. at 799). "The Constitution
gives significant protection from overbroad laws that
chill speech within the First Amendment's vast and
privileged sphere." Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 244, 122 S. Ct. 1389, 152 L.
Ed. 2d 403 (2002). The concern that an overbroad
statute deters protected speech is especially strong
where, as here, the statute imposes criminal
sanctions. See Virginia v. Hicks, 539 U.S. 113, 119,
123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003). (Doe v.
Harris (2014) 722 F.3d 563, 578.)
The sponsor argues that the bill is narrowly and reasonably
focused or tailored to serve the substantial governmental
interest in assisting crime victims in obtaining recompense from
criminal offenders. In particular, before a crime victim files
a civil suit against the perpetrator of the crime, he or she
---------------------------
<5> Turner Broadcasting v. FCC (1994) 512 U.S. 92,)
AB 538 (Campos ) PageP
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would generally need to know whether the perpetrator has any
assets or source of income. A judgment against someone who is
judgment proof is of little economic value and the process of
the lawsuit could be very emotionally painful. The lawsuit
would examine the crime again and likely require the victim to
engage in depositions about the crime and the harm it caused the
victim or the victim's family.
A crime perpetrator who was convicted of one of the crimes
covered by the civil action statute - and covered by the notice
requirement in this bill - likely served a long prison term. He
or she would not likely have any assets or income, except
perhaps a contract for a story about the crime the perpetrator
committed. This bill would require notice that the perpetrator
has made such a contract, informing the victim that there could
be a assets to seize from the perpetrator through a judgment in
a civil suit. It appears unlikely that a victim or a victim's
family would exercise the right to sue without some expectation
of collecting any judgment. Thus, it can be argued that the
bill does not provide for notice of other sources of income or
assets because they are not likely to exist.
9.Extent of Required Disclosure of a Contract for a Convicted
Criminal's Story
This bill requires a person or entity that enters into a
contract with a criminal offender convicted of specified serious
felonies for the story of the crime to notify the Office of
Victim and Survivor Rights and Services within CDCR "that the
parties "have entered into a contract for the sale of the
offender's story." It is not entirely clear what must be
disclosed. Does an agreement to pay a relatively small fee for
a limited-time option on a story about the crime constitute a
contract for the story? Does an agreement by the offender to
discuss the crime with a publisher or media entity, without a
promise that the offender would control the content of the
story, constitute a contract for the story? Could CDCR demand
to view the contract to determine the nature of the agreement.
Further, as noted above, there is no enforcement mechanism for
the requirement that a person or entity disclose that a contract
has been made with the offender has been made. Arguably, the
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requirement simply serves as a disincentive for a publisher or
media entity to enter into a contract to avoid the negative
publicity or notice that could come with the disclosure.
10. This Bill Extends The Statute Of Limitations For a Suit
against a Convicted Criminal for the Harm caused by
Specified Serious Felonies From Ten Years To 15 Years
Simon & Schuster, Keenan and other cases demonstrated the
daunting constitutional barriers to drafting a law that
directly targets the profits made by a felon from selling the
story of his or her crime. In 2002, the Legislature took an
alternative approach and extended the statute of limitations to
allow a victim more time to file a tort action against a
defendant seeking damages based on the commission of the crime.
SB 1887 (McPherson), Ch. 633, Stats. 2002, greatly extended the
statute of limitations for a civil action brought by a crime
victim (which had been within one year of conviction of the
crime), allowing the victim to bring a civil action any time up
to ten years after the defendant is discharged from parole if
the conviction is one of a number of specified offenses. The
specific offenses include murder or attempted murder, mayhem,
rape, kidnapping, any felony punishable by death or imprisonment
in the state prison for life, and any attempt to commit such a
felony.
According to the author, the current ten-year statute of
limitations does not provide sufficient time for a crime victim
to pursue damages from an offender who may be compensated by a
book, movie or other arrangement for the sale of the story of
the crime they committed more than ten years after they are
paroled.
Opponents of the bill, including Legal Services for Prisoners
with Children (LSPC), contend that there is no need to extend
the statute of limitations because crime victims already have
the entire time of trial, incarceration, and parole to file
suit-plus an extra ten years, because the statute of limitations
does not start running until the date when the offender is
discharged from parole.
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It is not known how many occasions arise each year in which a
crime victim is barred by the current ten-year statute of
limitations from filing a civil action for damages against the
person who committed the crime for the sale of a story about the
crime. Because of the long opportunity that the victim or
family already have to file a suit before the statute of
limitations bars such an action, it is thought that the vast
majority of cases are likely served by the current limitation's
period of ten years from the date of perpetrator's discharge
from parole.
11.This Bill Exempts Persons Released from Prison pursuant to a
Habeas Corpus Petition From Being Sued For Damages Based On
the Person's Conviction
Existing law specifically exempts from suit any defendant who
has been pardoned or received a certificate of rehabilitation,
as well as victims of domestic violence who killed or attempt to
kill their abusers. This reflects the Legislature's deliberate
decision to exempt groups from liability because of their
reduced culpability or rehabilitation. This bill would also
exempt from suit any person who was "unlawfully imprisoned or
restrained but has been released after successfully prosecuting
a writ of habeas corpus pursuant to" Penal Code Section 1473 and
related statutes.
While this provision would apply to innocent persons who were
wrongly convicted, it would appear to apply in other cases.
Penal Code Section 1473 specifically refers to cases where false
evidence was used against a defendant at trial. However, the
writ is not limited to such cases. It appears that a person
could prevail in a habeas corpus action because he or she was
held beyond the maximum sentence for the crime of conviction,
not that the person was innocent. The granting of the writ
would not affect the conviction itself, and thus the grounds for
suit against the offender based on the crime.
Further, the fact that false evidence was used at trial or some
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other factor requires reversal of a conviction through a habeas
corpus petition does not establish a person's innocence. An
inmate could prevail in a habeas corpus petition, have the
conviction reversed and then be retried and convicted. It is
not entirely clear how the civil action statute would be applied
in such a case, as the statute arguably contains conflicting
provisions. The bill could provide that an innocent person who
was wrongly convicted is immune from suit, regardless of whether
the victim accepts that the person is innocent, while still
allowing suit in circumstances where a habeas corpus petition
was granted on grounds other than innocence.
12.Utilizing the Existing Victim Notification Program for Notice
that an Offender has Contracted to tell His or Her Story of
the Crime
Currently, crime victims, their family members, and certain
witnesses in a criminal matter may provide their contact
information to OVS and request that OVS notify them in the case
of certain future events related to criminal offender. For
example, one form allows a person to be notified of the release,
escape, or death of the offender; a criminal appeal by the
offender; the parole hearing date for an offender sentenced to
life imprisonment; and the scheduled execution of an offender
sentenced to death. The form is also used to inform OVS about
the existence of a restitution order, as well as any request for
special conditions of parole or community supervision when the
offender is released from incarceration.
According to the author, this bill would simply require OVS to
modify its current victim notification process to provide
notification of an additional event related to the criminal
offender-namely, a contractual relationship with another party
for the sale of the story of the crime for which he or she was
convicted.
It has been asserted that an inmate could not enter into a
contract to sell his or her story about the crime of conviction
because an inmate cannot conduct a business or profession in
prison. However, there appears to be no statutory bar to an
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inmate entering into contracts, including for the sale of his or
her story. Penal Code Section 2600 provides that inmates lose
only those civil rights necessary for legitimate penological
purposes. Penal Code Section 2601 specifically provides that an
inmate may sell?all written and artistic material produced or
created by the person during the period of imprisonment. The
only exceptions to this specific rule appear to be the
provisions in Civil Code Section 2225 concerning sale of an
inmate's story about his or her crime. Those provisions were
found to be unconstitutional in the Keenan case.
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