BILL ANALYSIS Ó AB 538 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 538 (Campos) As Amended August 20, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |75-0 |(May 28, 2015 |SENATE: |40-0 |(August 31, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY: Allows victims of specified felonies to be notified that the person who committed the felony has entered into a contract for the sale of the story of the crime. Specifically, this bill: 1)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.) 2)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 AB 538 Page 2 shall notify the California Department of Corrections and Rehabilitation (CDCR) that the parties have entered into such a contract, if the following are true: a) A crime that is the basis of the story sold under the contract is specified in Code of Civil Procedure (CCP) Section 340.3(b) and resulted in the felony conviction of the offender. b) An action for damages against the offender is allowed to be commenced pursuant to CCP Section 340.3(b). 3)Requires CDCR to notify the victim, or if the victim cannot be reasonably notified, a member 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 such notification has previously been requested of CDCR. The Senate amendments: 1)Remove provisions that would have extended by five years (from 10 to 15 years) the statute of limitations for a crime victim to file a civil action for damages against the person convicted of a specified felony. 2)Clarify that under this bill, CDCR's duty is discharged by notifying the victim of the existence of a contract but no other details, and that if the victim cannot be notified, a family member of the victim may instead be notified. 3)Make technical changes by changing references to the Office of Victim and Survivor Rights and Services (an office within CDCR) to simply refer to CDCR. AB 538 Page 3 FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: This bill seeks modest changes to California's so-called "Son of Sam" law. First, this bill allows victims of specified felonies to be notified that the person who committed the felony has entered into a contract for the sale of the story of the crime. This bill also specifically prohibits any such suit from being filed against a person who was falsely convicted of the crime and released from prison upon being exonerated. This bill seeks to help victims be notified when an offender signs a contract to sell the story of the crime to another party. According to proponents, existing law is insufficient in providing a mechanism by which a crime victim is made aware at an early stage that a book or movie may be released portraying the crime in a very public way, leaving the victim or victim's family to discover that fact when the book or movie is released in stores or in theaters. Proponents state that this bill is intended to ensure that the victim or victim's next of kin is made aware that their victimization may be replayed in a public setting, so they can prepare themselves and make an informed and timely decision about whether to pursue the recovery of civil damages. This bill would require CDCR to be notified when a criminal offender enters into a contract with another person for the sale of the story of a crime for which the offender is convicted and other circumstances are satisfied. The notification requirement would apply only when the crime is one of the felonies specified in CCP Section 340.3(b), and when an action for damages against the offender is allowed to be commenced prior to the expiration of the SOL specified under CCP Section 340.3(b). According to the author, this bill seeks to harness the existing victim notification process within CDCR to require anyone who enters into a contract with a criminal offender for the sale of the story about the crime to notify CDCR that the parties have entered into such a contract. This bill then requires CDCR, AB 538 Page 4 within 90 days of receiving such notification, to notify any victim who had previously requested notification of the existence of a contract, or if the victim cannot be notified, an immediate family member of the victim. Proponents assert that these requirements do not restrict the ability of a person or company to enter into a contract for the sale of the offender's story about the crime, but merely require notification to CDCR that the contract exists. Utilizing the existing victim notification program. Currently, crime victims, their family members, and certain witnesses in a criminal matter may fill out a form (known as the "CDCR 1707 form") to provide their contact information to CDCR to request that CDCR notify them in the case of certain future events related to a particular criminal offender. For example, the current CDCR 1707 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 CDCR 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 CDCR 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 is envisioned that this could be accomplished by updating the CDCR 1707 form to allow victims and their immediate family members to request such notification, along with the other types of notifications already offered. It should be noted, however, that the current CDCR victim notification program offers victims only notification of events related to an offender that occur while the offender is still an inmate under custody or supervision of CDCR. Under this bill, CDCR would be responsible for notifying those victims who request notification of a contract for the sale of the perpetrator's story to another party. This contract can only be made after the offender is no AB 538 Page 5 longer an inmate, because current CDCR rules prohibit any inmate from actively engaging in a business or profession. Furthermore, the contract for the sale of the story could potentially be made one day after the perpetrator is discharged from parole, or perhaps several years after parole is terminated. There is no upper limit on the date when that event could occur. Consequently, this bill creates a new responsibility for CDCR that continues past the date of date when the former inmate is discharged from parole, when the former inmate is no longer under CDCR supervision. It should be noted that CDCR notification would only be effective to the extent that victims and their family members maintain updated contact information with CDCR for a period of time that could be many years after the parole of the offender. This bill is also opposed by the Motion Picture Association of America, Inc. (MPAA), who contends that this bill singles out for regulation certain speech that is protected by the First Amendment, and is therefore unconstitutional in its view. MPAA further asserts that, as a result of this bill, "[a] person, organization or company that seeks to enter into a contract with a convicted person may decline to pursue the story because of the disclosure required by this bill. The U.S. Supreme Court has ruled many times that laws that promote self-censorship because of the fear of legal consequences violate the First Amendment as much as laws that directly ban certain speech. [citation omitted.]" Proponents counter that this bill simply requires notification to CDCR when a company enters into a contract with a convicted person for the sale of the story, and does not impose a financial burden on the convicted person because of the content of his or her speech. This bill exempts wrongly convicted persons released from prison from being sued for damages based on the conviction. Existing law specifically exempts from being sued for damages 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 later AB 538 Page 6 rehabilitation. This bill would add an additional category of persons who would be exempted from suit - namely, wrongly convicted persons who have been released from prison for crimes they did not commit. Improvements in DNA technology coupled with increased attention by advocates seeking to identify prisoners with claims of factual innocence have resulted in a number of recent cases of persons being freed from prison for crimes they were shown not to have committed. Because a person who is wrongly convicted of a crime has even less culpability than certain categories of convicted persons who are already exempt from being sued under the current law, it makes sense to also exempt persons who are wrongly convicted from being sued for damages. Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334FN: 0001570