BILL ANALYSIS SB 1143 Page 1 SENATE THIRD READING SB 1143 (Mountjoy) - As Amended: September 12, 1995 SENATE VOTE: 32-0 ASSEMBLY ACTIONS: COMMITTEE: PUB. S. VOTE: 5-3 COMMITTEE: APPR. VOTE: 10-9 Ayes: Setencich, Rogan, Boland, Ayes: Poochigian, Aguiar, Bordonaro, Bowler, Rainey Brewer, Conroy, Frusetta, Goldsmith, Olberg, Rogan, Takasugi Nays: Villaraigosa, Kuehl, Nays: V. Brown, Baca, Bates, Burton, K. Murray Bustamante, Friedman, Lee, K. Murray, Villaraigosa DIGEST Existing law provides for the continued treatment of mentally disordered prisoners when they are released to parole. This bill: 1) Deletes the provisions of this bill, and instead inserts the language of AB 888 (Rogan), pending in the Senate. 2) Creates a civil commitment process for sexually violent predators, as defined. 3) Defines a sexually violent predator as a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental 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 criminal behavior. Conviction of one or more of the crimes enumerated, SB 1143 Page 2 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 determination. 4) Defines sexually violent offense to mean the following offenses when committed by force, violence, duress, menace or fear of immediate and unlawful bodily injury: 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. 5) 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, as specified. 6) Provides that the potential sexually violent predator shall be screened by the CDC and the Board of Prison Terms (BPT) 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. 7) 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 SB 1143 Page 3 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. 8) 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. 9) 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. 10)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. 11)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. 12)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. 13)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 SB 1143 Page 4 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. 14)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. 15)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. If the court or the jury rules for the committed person, he or she shall be unconditionally released and unconditionally discharged. 16)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 diagnosed 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. 17)Provides that the Director of DMH can recommend conditional release upon determination that the person's diagnosed mental SB 1143 Page 5 disorder has so changed that he or she is not likely to commit acts of predatory sexual violence. Also, 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. 18)Sets forth legislative findings, as specified. 19)Amends the 1995 Budget Bill to restore the Assembly and Senate budgets to the levels approved by the conference committee on the budget. SB 1143 Page 6 FISCAL EFFECT According to the Assembly Appropriations Committee analysis, undeterminable major General Fund costs for CDC and BPT to perform evaluations and to the DMH for commitment. Unknown cost to local government for district attorneys or county counsel 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 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. This bill establishes civil commitment procedures for the placement and treatment of sexually violent offenders in a secure mental health facility following their release from prison. According to CDC, there are approximately 11,000 sex offenders currently in prison. Approximately 3,000 of these offenders are released per year; and under current law, there is no legal authority to postpone these releases when there is a likelihood that the offender will commit another violent crime. As amended, this bill is identical to AB 888. For the analysis of the substantive issues raised by this civil commitment process see the Assembly Public Safety Committee analysis on AB 888. Analysis prepared by: Martin Gonzalez / apubs / 445-3268 SB 1143 Page 7 FN 020145