BILL ANALYSIS
SB 1143
Page 1
Date of Hearing: July 11, 1995
Counsel: Martin Gonzalez
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
SB 1143 (Mountjoy) - As Amended: May 30, 1994
ISSUE: SHOULD SPECIFIED SEXUAL OFFENDERS WHO HAVE COMPLETED THEIR
SENTENCES BE SUBJECT TO INDETERMINATE CIVIL COMMITMENTS?
DIGEST
Current law provides for the continued treatment of mentally
disordered prisoners when they are released to parole. (Penal
Code Section 2960, et seq.)
This bill:
1) Authorizes the California Department of Corrections (CDC) to
refer any person who has been convicted of a sexually violent
offense and who has completed a separate prior prison sentence
for a sexually violent offense at the time of receipt for
evaluation to determine whether he or she is a sexually
violent predator and, under specified circumstances, request
that a petition for commitment be filed, and the proceedings
be handled, by either the district attorney or the county
counsel of the county in which the person was convicted of the
offense for which he or she is under the jurisdiction of the
Department of Corrections.
2) Sets forth procedures and standards for the review of the
petition for commitment and would provide that a person who is
the subject of the petition is entitled to a trial by jury
with a unanimous verdict, the assistance of counsel, the right
to retain experts or professional persons to perform an
examination on his or her behalf, and access to all relevant
medical and psychological records and reports.
3) Requires a court or jury to determine, by clear and convincing
evidence, whether the person is a sexually violent predator.
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If the court or jury is not satisfied by clear and convincing
evidence that the person is a sexually violent predator, the
court would be required to direct that the person released at
the conclusion of the term for which he or she was initially
sentenced, or that the person be unconditionally released at
the end of parole. If the court or jury determines that the
person is a sexually violent predator, the person would be
committed to the custody of the State Department of Mental
Health for appropriate treatment and confinement in a secure
facility designated by the Director of Mental Health that is
located on the grounds of an institution under the
jurisdiction of the Department of Corrections until the
conclusion of the term for which he or she was initially
sentenced or until his or her mental abnormality or
personality disorder has so changed that he or she is not
likely to commit an act of sexual violence, whichever occurs
later.
4) Requires biennial evaluations of those individuals committed
as sexually violent predators.
5) Sets forth procedures and standards for requesting and hearing
petitions for conditional and unconditional release.
6) Makes legislative findings and declarations.
COMMENTS
1) Purpose. According to the author:
Under current law, there is no legal authority to detain
and treat sexually violent offenders who are likely to
commit new offenses because of their mental abnormality and
defects. There is no procedure to prevent the release into
unsuspecting communities of sexually violent offenders who
have completed their prison sentences. SB 1143 establishes
civil commitment procedures for the placement and treatment
of sexually violent offenders in a secure mental health
facility following their release from prison.
2) Statement Of Legislative Intent. The Legislature finds and
declares the following:
[T]hat a small but extremely dangerous group of
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sexually violent predators that generally have
personality disorders can be identified while they
are incarcerated. These persons are not safe to be
at large and if released represent a danger to the
health and safety of others in that they are likely
to engage in acts of sexual violence. The
Legislature further finds and declares that it is in
the interest of society to identify these
individuals prior to the expiration of their terms
of imprisonment. It is the intent of the
Legislature that once identified, these individuals,
if found to be likely to commit acts of sexually
violent criminal behavior by clear and convincing
evidence, be confined and treated until such time
that it can be determined that they no longer
present a threat to society.
The Legislature further finds and declares that the
treatment needs of this population are very long
term and the treatment modalities that are
appropriate for this population are substantially
different from those persons currently receiving
mental health treatment under the
Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and
Institutions Code) and, accordingly, a new civil
commitment needs to be established to address the
treatment needs of this population.
3) History: Mentally Disordered Sex Offenders. The Mentally
Disordered Sex Offender Act (MDSO), Welfare and Institutions Code
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.
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That Act 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 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
the 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 Mental Health 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. An MDSO case could be held indefinitely but
was entitled to a hearing upon request every six months.
4) Existing Law: Mentally Disordered Offenders. Existing law
provides for the disposition of mentally disordered offenders (MDO)
upon discharge. (Penal Code Section 2960 et seq.) In the MDO
program, the Department of Corrections 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 (the subjects of this bill) 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 in-patient or
out-patient. The finding by the Board of Prison Terms is
appealable to the court, with the right to an attorney, proof
beyond a reasonable doubt, and an unanimous jury verdict.
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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 Department of Corrections.
5) Definitions. This bill provides the following definitions:
a) Sexually Violent Predator means a person who has been
convicted of a sexually violent offense which occurred on or
after January 1, 1996, who has completed a separate prior
prison sentence for 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 other in that it
is likely that he or she will engage in sexually violent
criminal behavior.
Conviction of one or more of the crimes enumerated shall
constitute
evidence that may support a court or jury determination that a
person is a sexually violent predator, but shall not be the sole
basis for the determination.
b) Sexually Violent Offense means to include a felony violation
of rape, spousal rape, sex crime in concert, sodomy or oral
copulation or foreign object penetration offenses as listed
below, lewd act on a child under 14, continuous sexual
abuse, or anal penetration by undetermined means, when the
violation is forcible or is committed against a child under
14, whenever one or more of the following circumstances is
true:
i. There is a previous conviction of forcible rape,
spousal rape, sex crime in concert, sodomy, oral
copulation, foreign object penetration, copulation or
foreign object penetration offenses as listed above,
continuous sexual abuse, or anal penetration by
undetermined means;
ii. The person kidnaped the victim;
iii. The person inflicted great bodily injury on the
victim or another person during the offense;
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iv. The offense was committed during the commission of a
burglary;
v. The person used a deadly or dangerous weapon or used
a deadly or dangerous weapon or firearm;
c) Mental Abnormality means a congenital or acquired
condition affecting the emotional or volitional capacity
that predisposes the person to the commission of criminal
sexual acts in a degree constituting the person a menace
to the health and safety of others.
d) For the purposes of the sexually violent predator article,
commitment to the State Department of Mental Health a as
mentally disordered sex offender following a conviction of
a felony, which commitment exceeds one year in duration,
shall be deemed a prior prison sentence.
e) The provisions of this article shall not apply unless the
completion of the prior prison sentence is charged in the
accusatory pleading and admitted by the defendant or found
to be true by a trier of fact.
f) Danger to the health and safety of others does not require
proof of a recent overt act.
6) Procedure. This bill provides that any person who has been
convicted of a sexually violent offense and who has completed a
separate prior prison sentence for a sexually violent offense
shall be notified by the judge at the time of sentencing that he
or she may be evaluated by the Department of Corrections at the
time of receipt to determine if he or she is a sexually violent
predator. Any person who has been convicted of a sexually violent
offense and who has completed a separate prior prison sentence for
a sexually violent offense, upon receipt by the Department of
Corrections, may be referred for evaluation in accordance with
this section.
Once identified, the person would be evaluated by two
psychiatrists or psychologists, or one practicing
psychiatrists or psychologists, designated by the Director of
Mental Health. If both evaluators concur that the person has
a mental abnormality or personality disorder such that he or
she is likely to engage in acts of sexual violence without
appropriate treatment and custody, the Director of Mental
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Health would forward a request for a petition for commitment
to the county where the person was committed. Copies of the
evaluation reports and any other supporting documents shall be
made available to the attorney designated by the county, as
designated, who may file a petition for commitment.
If the evaluators do not agree, the Director of Mental Health
would arrange for a new examination. The person would be told
that the purpose of the examination is not treatment but to
determine if the person meets certain criteria to be
involuntarily committed pursuant to this article. It would
not be required that the person appreciate or understand that
information. A person on parole could be placed in custody
pending the examination.
A 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 the jurisdiction of the CDC. The
petition shall be filed, and the proceedings shall be handled,
by either the district attorney or the county counsel of that
county.
A superior court judge would review the petition and would
determine whether there is probable cause to believe that the
person is likely to engage in sexually violent criminal
behavior upon his or her release. If the judge determines
that there is probable cause, the judge would order that a
trial be conducted to determine whether the person is, by
reason of mental abnormality or personality disorder, a danger
to the health and safety of others in that the person is
likely to engage in acts of sexual violence upon his or her
release from the jurisdiction of the Department of
Corrections.
A person subject to this procedure would 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 relevant medical and
psychological records and reports. In the case of a person
who is indigent, the court would appoint counsel and, upon the
person's request, assist the person in obtaining an expert or
professional person to perform an examination or participate
in the trial on the person's behalf.
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At the commitment hearing, the state could present as evidence
the facts of any proved or unproved crime committed by the
person. In the case of an unproved crime, proof would be by
preponderance of the evidence. The state could also present
as evidence the person's lack of remorse, denial or failure to
accept responsibility for the crime, antisocial behavior, and
acts of violence committed by the person. The court would
then determine whether, by clear and convincing evidence, the
person is a sexually violent predator.
Upon a finding that the person is a sexually violent predator,
he or she would be committed to the custody of the State
Department of Mental Health for appropriate treatment and
confinement in a prison facility
until his or her mental abnormality or personality disorder has so
changed that he or she is not likely to commit an act of sexual
violence.
A person found to be a sexual violent predator and committed
to the custody of the State Department of Mental Health would have
a current examination of his or her mental condition made at least
once every year. The person could retain or have appointed an
expert or professional person to examine him or her, and the
expert or professional person would have access to all records
concerning the person.
The director shall, at least once every two years, provide the
committed person with a written notice of his or her right to
petition the court for release, which would include a waiver of
rights. The director would forward the notice and waiver form to
the court with the report. If the person did not affirmatively
waive the right to petition, the court must set a "show cause"
hearing.
At the show cause hearing, it is determined 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 a danger to the
health and safety of others if discharged. Where probable cause
exists to believe that the committed person's abnormality or
personality disorder has changed for the better, a hearing shall
be set. At this hearing, the committed sexually violent predator
would have the same rights referred to above at this hearing as he
or she would have at the initial commitment proceeding.
The burden of proof at the full hearing is on the state to
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prove by clear and convincing evidence that the committed person's
mental abnormality or personality disorder remains such that he or
she is a danger to the health and safety of others and is likely
to engage in sexually violent criminal behavior if discharged.
7) Treatment. A person committed under this bill would be
provided with programming by the State Department of Mental Health
which shall afford the person with treatment for the underlying
causes of his or her mental abnormality or personality disorder.
However, amenability to treatment is not required for a finding
that any person is a sexually violent predator, nor is it required
for treatment of that person. Treatment does not mean that the
treatment be successful or potentially successful, nor does it
mean that the person must recognize his or her problem and
willingly participate in the treatment program.
8) Release. If the Director of Mental Health determines that
the person's mental abnormality or personality disorder has so
changed that the person is not likely to commit acts of sexual
violence while under supervision and treatment in the community,
the director would forward to the county attorney a request for
the attorney to petition the court for conditional release.
The committed sexually violent predator could also petition
the court for conditional release and subsequent unconditional
discharge without the recommendation or concurrence of the
Director of Mental Health. If the person has previously filed
a petition for conditional release without the concurrence of
the director, and the court, upon review of the petition or
following a hearing, determined that the petition was
frivolous or that the condition of the petitioner had not so
changed that
he or she would not be a danger to others if placed under
supervision and treatment in the community, the court would deny
the subsequent petition unless it sets forth facts upon which a
court could find that the condition of the petitioner had so
changed that a hearing was warranted.
A person could not be unconditionally released from commitment
until he or she had been placed in the community under
supervision and observation for at least one year and no
hearing could be held until the person had been in the program
for at least one year.
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The purpose of the hearing would be to determine whether the
person petitioning for conditional release would be a danger
to the health and safety of others due to his or her mental
abnormality or personality disorder if under supervision and
treatment in the community. If the court at the hearing
determined that the petitioner would not be a danger to others
due to his or her mental abnormality or personality disorder
while under supervision and treatment in the community, the
court would order placement with an appropriate forensic
conditional release program operated by the state, which would
include outpatient supervision and treatment, for one year.
The court would retain jurisdiction of the person throughout
the course of the program. At the end of one year, the court
would 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.
If the court ruled against the petitioner at the trial for
unconditional release from commitment, the court could place
him or her on outpatient status.
If the court denied the petition to place the person in an
appropriate forensic conditional release program, or if the
petition for unconditional discharge was denied, the person
could not file a new application for another year.
Time spent in a conditional release program would not count
toward the term of commitment unless the person was confined
in a locked facility during a portion of the conditional
release program.
9) 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)).
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10) 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 and 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.
11) 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
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
afforded the right to counsel, the right to cross-examination,
and access to reports and records, and to experts. Further,
the sexually violent predator is afforded a biennial review.
It appears then that procedural due process is satisfied.
12) 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 United States Supreme Court, the state
may confine mentally ill persons if it shows by clear and
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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.
13) Prior Legislation. SBx1 41 (Presley) was substantially
similar to this bill now before the Committee. SBx1 41 failed
passage in the Committee on Public Safety on August 16, 1994.
14) Other Legislation. AB 888 (Rogan) is similar to this bill and
is now before the Committee. AB 888 passed the Assembly
Committee on Public Safety on April 18, 1995 by a vote of 5-0.
15) 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.
SOURCE: City of Covina
SUPPORT: Los Angeles Deputy Sheriffs
San Bernardino County Sheriff's Department
California Peace Officers' Association
California Police Chiefs' Association
City of Arcadia
City of Baldwin Park
City of Claremont
City of Covina
City of Duarte
City of Glendora
City of La Habra Heights
City of La Verne
City of Pasadena
City of El Monte
City of Irwindale
City of Monrovia
City of Pomona
City of Redding
City of San Gabriel
City of San Marino
City of West Covina
Committee on Moral Concerns
Doris Tate Crime Victims Bureau
Justice for Murder Victims
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Los Angeles County Police Chiefs' Association
Protect Our Children
Whittier Police Department
Office of Criminal Justice Planning (OCJP)
OPPOSITION:American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis prepared by: Martin Gonzalez / apubs / 445-3268