BILL ANALYSIS AB 888 ASSEMBLY THIRD READING AB 888 (Rogan) - As Amended: May 31, 1995 ASSEMBLY ACTIONS: COMMITTEE PUB. S. VOTE 5-0COMMITTEE APPR.VOTE 15-3 Ayes: Pringle, V. Brown, Aguiar, Bates, Bordonaro, Brewer, Bustamante, Friedman, Goldsmith, Katz, Lee, Olberg, Poochigian, Rogan, Takasugi Nays: Martinez, K. Murray, Villaraigosa DIGEST Existing law provides for the continued treatment of mentally disordered prisoners when they are released to parole. 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 - continued - AB 888 Page 1 AB 888 Penal Code sections 261(a)(2) (forcible rape); 262(a)(1) (forcible spousal rape); 264.1 (rape in concert); 286 (sodomy); 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 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 - continued - AB 888 Page 2 AB 888 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 within 72 hours, 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 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 - continued - AB 888 Page 3 AB 888 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 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 - continued - AB 888 Page 4 AB 888 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. FISCAL EFFECT According to the Assembly Appropriations Committee analysis, major costs to the General Fund for CDC and the Board of Prison Terms to perform evaluations and to the DMH for commitment. Unknown costs to local government for district attorneys or county counsels to file and handle proceedings relating to commitment. Since this bill provides no new or expanded crime, costs incurred by local government would be reimbursable from the State Mandate Claims Fund as determined by the Commission on State Mandates. COMMENTS According to the author, as a result of determinate sentencing, sex offenders are 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. - continued - AB 888 Page 5 AB 888 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 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 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. FN 016043 - continued - AB 888 Page 6