BILL ANALYSIS                                                                                                                                                                                                    





               
                                                          AB 888


Date of Hearing:April 18, 1995 
Consultant:       Martin Gonzalez 

                ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                      Paula L. Boland, Chair

           AB 888 (Rogan) - As Amended:  April 17, 1995


 ISSUE:  SHOULD, FOLLOWING A CIVIL COMMITMENT HEARING, SPECIFIED  
SEXUALLY VIOLENT PREDATORS BE TREATED FOR THEIR CONDITION IN A  
SECURE STATE MENTAL FACILITY?

 DIGEST

 Under current law there is a provision for the continued treatment  
of mentally disordered prisoners when they are released to parole.  
 (Penal Code section 2960, et seq.)

 This bill:

1) Creates a civil commitment process for sexually violent  
   predators, as defined.

2) Defines a sexually violent predator as a person who has been  
   convicted of a sexually violent offense and who has a mental  
   abnormality or personality disorder that makes the person a  
   danger to the health and safety of others in that it is likely  
   that he or she will engage in sexually violent predatory  
   criminal behavior.  Conviction of one or more of the crimes  
   enumerated, shall constitute evidence that may support a court  
   or jury determination that the person is a sexually violent  
   predator, but shall not be the sole basis for the treatment.

3) Defines sexually violent offense to mean a felony violation of  
   Penal Code sections 261(a)(2) (forcible rape); 262(a)(1)  
   (forcible spousal rape); 264.1 (rape in concert); 286 (sodomy);  

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   288(a) or (b) (lewd or lascivious act with a child under age  
   14, with or without force); 288a (oral copulation), which  
   results in conviction and a determinate sentence.

4) Provides that whenever the Director of Corrections determines  
   that an individual, who is under the jurisdiction of the  
   California Department of Corrections (CDC), may be a sexually  
   violent predator, the director shall, at least six-months prior  
   to that individual's scheduled date of release from prison or  
   termination of parole, refer that person for evaluation.

5) Provides that the potential sexually violent predator shall be  
   screened by 
the CDC and the Board of Prison Terms based on whether the person  
has committed a sexually violent predatory offense and on a review  
of the person's social, criminal and institutional history.  The  
screening shall be in accordance with a structured screening  
instrument.  If, as a result of this screening, it is determined  
that the person is likely to be a 



















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sexually violent predator, the CDC shall refer the person to the  
Department of Mental Health (DMH) for a full evaluation.

6) Provides that the DMH shall evaluate the person in accordance  
   with a standardized assessment protocol, which shall be  
   developed and updated by the DMH.  This protocol shall require  
   assessment of mental abnormalities and personality disorders,  
   as well as other factors associated with the risk of re-offense  
   among sex offenders.  Specifies evaluation procedure.  Where  
   the DMH determines that the person is a sexually violent  
   predator, the Director of DMH shall initiate the commitment  
   process.  Copies of the evaluation reports and any other  
   supporting documents shall be made available to the attorney  
   designated by the county who may file a petition for  
   commitment.

7) Provides that the petition for commitment shall be filed in the  
   superior court of the county in which the person was convicted  
   of the offense for which he or she is under CDC's jurisdiction.  
    The petition shall be filed, and the proceedings shall be  
   handled, by either the district attorney or the county counsel.

8) Provides that the time limits set forth in Welfare and  
   Institutions Code section 6601 shall not apply during the first  
   year that this article is operative.  

9) Provides that a Superior Court Judge shall review the petition  
   and shall determine whether there is probable cause to believe  
   the individual is likely to engage in sexual violent predatory  
   criminal behavior upon his or her release.  If probable cause  
   exists, then the judge shall order that a trial be conducted.

10)Provides that persons subject to this provision shall be  
   entitled to a trial by jury, the assistance of counsel, the  
   right to retain experts or professional persons to perform an  
   examination on his or her behalf, and have access to all  
   relevant medical and psychological records and reports.   
   Indigents shall have counsel appointed for them, and upon the  

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   person's request, be given assistance in obtaining experts.  

11)Provides that the attorney petitioning for commitment shall  
   have the right to demand a jury trial.  If no demand is made by  
   either party, the trial shall be before the court without a  
   jury.  In any jury trial, a unanimous verdict is required.

12)Provides for the commitment of a sexually violent predator for  
   two years.  The sexually violent predator is committed to a  
   secure mental state hospital only after a court or jury has  
   found, beyond a reasonable doubt, that he or she is a sexually  
   violent predator.  The sexually violent predator shall be  
   committed to the custody of the DMH.  The person shall not be  
   kept in actual custody longer than two years unless a  
   subsequent extended commitment is obtained from the court  
   incident to the filling of a new petition for commitment.  Time  
   spent on conditional release shall not count toward the  
   two-year term of commitment, unless the person is placed in a  
   locked facility by the conditional release program.  The  
   facility 
shall be located on the grounds of an institution under the  
jurisdiction of the CDC.

13)Provides that a person found to be a sexually violent predator  
   and committed to the custody of the DMH shall have a current  
   examination of his or her mental condition made at least once  
   every year.  The person may retain, or the court may appoint a  
   qualified expert to examine him or her.  
14)Provides that the committed person shall receive an annual  
   written notice of his or her right to petition the court for  
   conditional release.  If the person does not affirmatively  
   waive his or her right to petition the court, the court shall  
   set a show cause hearing to determine whether facts exist that  
   warrant a hearing on whether the person's condition has so  
   changed that he or she would not be a danger to the health and  
   safety of others if discharged.  The committed person has a  
   right to be present and to have an attorney represent him or  
   her at the show cause hearing.  Where the court or jury rules  

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   against the committed person at the show cause hearing, the  
   term of commitment of the person shall run for a period of two  
   years from the date of the ruling.

15)Requires that the person who is committed be provided with  
   programming by the DMH. The DMH shall provide the person with  
   treatment for his or her abnormality or personality disorder.   
   The programming provided by the DMH shall be consistent with  
   current institutional standards for the treatment of sex  
   offenders, and shall be based on a structured treatment  
   protocol developed by the DMH.  The protocol shall describe the  
   treatment components provided, and shall specify how assessment  
   data will be used to determine the course of treatment for each  
   individual offender.  The protocol shall also specify measures  
   that will be used to assess treatment progress and changes with  
   respect to the individual's risk of re-offense.

16)Provides that persons who have been committed as a sexually  
   violent predator may petition the court for conditional release  
   and subsequent unconditional discharge without the  
   recommendation or concurrence of the the Director of DMH.   
   Review of petition shall be undertaken by the court.

17)Specifies that at the end of one year, the court shall hold a  
   hearing to determine if the person should be unconditionally  
   released from commitment on the basis that, by reason of a  
   mental abnormality or personality disorder, he or she is not a  
   danger to the health and safety of others in that it is not  
   likely that he or she will engage in sexually violent criminal  
   behavior.

18)Sets forth legislative findings, as specified.

 COMMENTS

1)   Purpose.  According to the author:

        As a result of determinate sentencing, sex offenders are  

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       now automatically released from prison at the end of their  
       terms.  According to the California Department of  
       Corrections, there are 
approximately 11,000 sex offenders currently in state prison.  The  
law compels the release of about 250 of these inmates a month, or  
3,000 a year.  Predatory child molesters, forcible rapists, and  
repeat violent sex offenders are among them.

        Under current law, there is no legal authority to detain  
       and treat sexually violent offenders who, because of a  
       mental abnormality or personality disorder, are likely to  
       re-offend once released from prison.  Likewise, there is no  
       current way to prevent their release into society.

        California needs a civil commitment procedure to allow the  
       state a means to place and treat sexually violent predators  
       in a secure mental facility following their release from  
       prison.

        This proposal would allow prosecutors to petition the  
       courts to commit sexually violent predators to a secure  
       mental facility after they are released from prison if they  
       are deemed dangerous by a jury.

        This proposal would define a sexually violent predator as  
       an offender who is convicted of a sexually violent offense  
       such as rape or child molestation, committed under one or  
       more specified aggravating circumstances, and who has a  
       mental abnormality or personality disorder that predisposes  
       the individual to commit sexually violent offenses.

        The Director of Corrections may refer inmates or parolees  
       for a clinical evaluation by a mental health specialist at  
       the Department of Corrections and Mental Health to  
       determine if they fit the profile.  If they concur, the  
       district attorney in the county of conviction would  
       petition the supporter court to commit the offender to the  
       custody of the Department of Mental Health.  Upon a finding  

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                                                          AB 888

       of probable cause, the court holds a trial to determine  
       beyond a reasonable doubt whether the offender meets the  
       criteria described above.

        The commitment will last until the person's mental health  
       abnormality or personality disorder has so changed that the  
       person is no longer likely to commit acts of sexual  
       violence.  Either the patient or the Director of Mental  
       Health may petition the court to make this determination.

        After the inpatient treatment ends, the offender must  
       participate in a community based supervision program.   
       Unconditional release from the program requires a verdict  
       at trial that the offender is no longer likely to commit a  
       sexually violent offense.

2)   Background.  There are a number of statutory provisions for  
the commitment of mentally disordered and dangerous persons to  
involuntary mental health care.  These statutes are all designed  
to provide the person with necessary treatment and to protect the  
public.

   Many sexual predators, however, do not have a major mental  
   disorder and are therefore not eligible for the Mentally  
   Disordered Offender Program.  They 
typically are neither found incompetent to stand trial nor not  
guilty by reason of insanity.  Further, they are not appropriate  
for the civil commitment system established by the  
Lanterman-Petris-Short Act.

   California previously had a Mentally Disordered Sex Offender  
   (MDSO) law in which people convicted of sex crimes could be  
   diverted from prison to mental health facilities for treatment  
   if they were found to be predisposed to such crimes by "reason  
   of mental defect, disease or disorder."  When this law was  
   operative, up to 1,000 MDSO's were housed in state mental  
   hospitals.  The law was repealed in 1982, largely as a result  
   of the perception that the treatment was ineffective and that  

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   it allowed these offenders to avoid prison.

   The current proposal for civil commitment of sexually violent  
   predators differs significantly from the MDSO commitment.  Most  
   importantly, the proposed commitment would not divert offenders  
   from prison, but would take effect at the end of their prison  
   terms.  Also, the current proposal is intended for a much  
   smaller group of offenders, those who are considered predatory  
   and most dangerous.  A related difference is the fact that,  
   unlike MDSO, the current proposal's commitment criteria involve  
   the offender's dangerousness, not his amenability to treatment.

   The Department of Mental Health has been conducting a clinical  
   research study on the effectiveness of treatment with child  
   molesters and rapists since 1985, at Atascadero State Hospital.  
    Approximately 33 offenders are participating in this program,  
   the Sex Offender Treatment and Evaluation Project.  The project  
   has two goals:  to reduce the number of sex crimes committed by  
   sex offenders who are released, and to provide the Governor and  
   Legislature with valid outcome data on which public policy  
   decision can be based.  In addition to providing information on  
   treatment efficiency and predictors of re-offense, the results  
   of this ongoing research will be used to refine and clarify  
   clinical understanding of the characteristics of sexual  
   predators who present the greatest risk to community safety.   
   The project is currently scheduled to end on June 30, 1995.

3)  History:  Mentally Disordered Sex Offenders.  The Mentally  
   Disordered Sex Offender Act (MSDO), Welfare & Institutions Code  
   (WIC) section 6300 et seq., was enacted in 1967 and repealed in  
   1981, leaving the law intact for those offenders who were  
   already under its auspices.  

   The MSDO provided that upon conviction, the court could order  
   an examination of the person by two to three psychologists.   
   Upon a showing beyond a reasonable doubt that there was a  
   danger and that he or she could benefit by treatment, the  
   person would be moved to a treatment facility.  If the person  

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   was found not to be amenable to treatment, he or she would be  
   returned to the regular sentencing process.  The maximum term  
   to be served in the MDSO program would be a maximum term the  
   person could have served in prison.  A determination by the  
   court that the person be sent to the MDSO program was  
   appealable to a jury, who would answer the question:  "Are you  
   convinced to a moral certainty and beyond a reasonable doubt  
   that the defendant is a mentally disordered sex offender?"

   If the Director of DMH determined that the person continued to  
   present a substantial danger of bodily harm to others, a trial  
   would be set for no less than 30 days from the release date and  
   the person would be provided with full criminal proceeding  
   protections.  The additional commitment would be for up to two  
   years.  A MDSO case could be held indefinitely but a person was  
   entitled to a hearing upon request every six months.

4)  Existing Law.  Existing law provides for the disposition of  
   mentally disordered offenders (MDO) upon discharge.  (Penal  
   Code section 2960 et seq.)  In the MDO program, the CDC is to  
   begin treatment of disordered prisoners during their first year  
   of incarceration.  As a condition of parole, a person with a  
   severe mental disorder that is not in remission and  cannot be  
   kept in remission without treatment may be placed in treatment.  
    Those with personality or adjustment disorders are  
   specifically excluded from the program.

   Prerequisite findings by the Board of Prison Terms for  
   placement in the program include that the disorder was related  
   to the crime, that the prisoner has been in treatment, that the  
   person used force or violence or caused serious bodily injury  
   in committing the crime, that he or she represents a  
   substantial danger of physical harm to others, and that the  
   disorder cannot be kept in remission without treatment.

   The MDO patient may be treated either as an inpatient or  
   outpatient.  The finding by the Board of Prison Terms is  
   appealable to the court, with the right to an attorney, proof  

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   beyond a reasonable doubt, and a unanimous jury verdict.

   A district attorney may petition the court for an extension of  
   one year.  A person who is gravely disabled within the meaning  
   of the Lanterman-Petris-Short Act may be committed civilly upon  
   release from custody of the CDC.

5)  Ex Post Facto Law.  The Constitution prevents both the federal  
   and state governments from enacting ex post facto laws; see  
   Article I, sections 9 and 10, respectively.  An ex post facto  
   law is one which has a retroactive punitive effect, that is,  
   which punishes conduct which, at the time it occurred, was not  
   punishable.  The ban on ex post facto laws applies only to  
   measures which are criminal or penal.  Because this bill is  
   civil rather than criminal in nature, the constitutional  
   prohibition against ex post facto laws is not violated.  The  
   Washington statute also survived an ex post facto attack for  
   this very same reason.  (See  In re Young, 857 P.2d 989 (Wash.  
   1993)).

6)  Substantive Due Process.  Where the Court finds that a  
   fundamental right is impaired by a statute, it has applied  
   strict scrutiny.  For a statute to pass muster, the state's  
   objective must be compelling not merely legitimate, and the  
   relations between that objective and the means must be very  
   close, so that the means can be said to be necessary to achieve  
   the end.  This statue implicates a fundamental right (liberty).  
    It also has an objective that involves a compelling interest,  
   i.e. treating sexually violent predators and protecting society  
   from these dangerous individuals.  
Moreover, the commitment of these dangerous sexually violent  
predators is necessary to achieve the end sought.  Consequently,  
substantive due process concerns should be assuaged.

7)  Procedural Due Process.  The requirement that the state  
   government act with procedural due process derives from the  
   Fourteenth Amendment.  It is crucial to understand that the Due  
   Process Clause does not bar the government from procedural  

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   irregularities per se.  Only when life, liberty or property are  
   being taken is the government required to act with procedural  
   correctness.  When one of these interests is implicated, the  
   government may not act arbitrarily or unfairly.  Here, because  
   we are dealing with a liberty interest, the sexually violent  
   predator must be accorded due process.  The statute takes  
   adequate measures to assure that due process is served.  An  
   evidentiary hearings is required.  If necessary, a trial is  
   granted.  At the trial, the person is afford, the right to  
   counsel, the right to cross examination, access to reports and  
   records, and to experts.  Further, the sexually violent  
   predator is afforded a yearly review.  It appears then that  
   procedural due process is satisfied.

8)  Foucha v. Louisiana.  The United States Supreme Court in  Foucha  
   v.  Louisiana (1992) 112 S.Ct. 1780 states that "in civil  
   commitment proceedings the State must establish the grounds of  
   insanity and dangerousness permitting confinement by clear and  
   convincing evidence.  Similarly, the state must establish  
   insanity and dangerousness by clear and convincing evidence in  
   order to confine an insane convict beyond his original  
   confinement no longer exists.  [Citations omitted.]"  Thus,  
   according to the U.S. Supreme Court, the state may confine  
   mentally ill persons if it shows by clear and convincing  
   evidence that the individual is mentally ill and dangerous.   
   Clearly, sexually violent predators are mentally ill and  
   dangerous, all that is required is for the state to show this  
   prior to committing that individual.

9)  Prior Legislation.  SBX1 41 (Presely) was substantially similar  
   to this bill now before the Committee.  SBX1 41 failed passage  
   in the Committee on Public Safety on August 16, 1994.

10) Potential Effect.  Removes sexually violent predators from  
   society at large.  Provides for their commitment to a secure  
   mental health facility where they will be provided with  
   treatment. 


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  SOURCE:    Office of Criminal Justice and Planning

  SUPPORT:   Women Prosecutors of California
            Committee On Moral Concerns
            California Correctional Peace Officers Association
            California State Sheriffs' Association
            Doris Tate Crime Victims Bureau

  OPPOSITION:  California Attorneys for Criminal Justice
            American Civil Liberties Union




























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