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); - continued - AB 888 Page 1 AB 888 288(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 - continued - AB 888 Page 2 AB 888 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 - continued - AB 888 Page 3 AB 888 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 - continued - AB 888 Page 4 AB 888 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 - continued - AB 888 Page 5 AB 888 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 - continued - AB 888 Page 6 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 - continued - AB 888 Page 7 AB 888 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 - continued - AB 888 Page 8 AB 888 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 - continued - AB 888 Page 9 AB 888 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 - continued - AB 888 Page 10 AB 888 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. - continued - AB 888 Page 11 AB 888 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 - continued - AB 888 Page 12