BILL ANALYSIS SENATE RULES COMMITTEE Office of Senate Floor Analyses 1020 N Street, Suite 524 (916) 445-6614 Fax: (916) 327-4478 . UNFINISHED BUSINESS . Bill No: SB 1143 Author: Mountjoy (R), et al Amended: 9/12/95 Vote: 21 . SENATE CRIMINAL PROCEDURE COMMITTEE: 5-0, 4/25/95 AYES: Beverly, Campbell, Kopp, Polanco, Boatwright NOT VOTING: Watson, Marks SENATE APPROPRIATIONS COMMITTEE: 13-0, 5/25/95 AYES: Johnston, Alquist, Calderon, Dills, Greene, Kelley, Killea, Leonard, Leslie, Lewis, Mello, Mountjoy, Polanco SENATE FLOOR: 32-0, 5/32/95 AYES: Alquist, Ayala, Beverly, Boatwright, Calderon, Campbell, Costa, Dills, Greene, Hayden, Haynes, Hurtt, Johannessen, Johnston, Kelley, Leonard, Leslie, Lewis, Lockyer, Maddy, Mello, Monteith, Mountjoy, O'Connell, Peace, Petris, Polanco, Rogers, Russell, Solis, Thompson, Wright NOT VOTING: Craven, Hughes, Johnson, Killea, Kopp, Marks, Rosenthal, Watson ASSEMBLY FLOOR: Not Available . SUBJECT: Sexually violent predators SOURCE: City of Covina . DIGEST: This bill makes various changes to existing law relative to sexually violent predators. CONTINUED SB 1143 Page 2 Assembly Amendments delete and recast the entire bill and add coauthors. The intent of the bill remains the same. ANALYSIS: Existing law sets forth specified punishments for sex crimes, including, among others, rape, sodomy, oral copulation, penetration with a foreign object, and lewd and lascivious conduct. This bill would provide that whenever the Director of Corrections determines that an individual who is in custody under the jurisdiction of the Department of Corrections, and who is either serving a determinate sentence or whose parole has been revoked, may be a sexually violent predator, he or she shall, at least 6 months prior to that individual's scheduled date for release from prison, refer the person for evaluation 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. The bill would require the Department of Corrections and the Board of Prison Terms to screen the person 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 before referring the person to the State Department of Mental Health for a full evaluation. This bill would set 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, 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. This bill would require a court or jury to determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court would be required to direct that the person be released at the conclusion of the CONTINUED SB 1143 Page 3 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 for 2 years 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 his or her diagnosed mental disorder has so changed that he or she is not likely to commit an act of sexual violence. This bill would require annual evaluations of those individuals committed as sexually violent predators. The bill also would set forth procedures and standards for requesting and hearing petitions for conditional and unconditional release. The bill contains the following definitions: 1."Sexually violent predator" means 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 specified crimes 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. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently 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. 2."Sexually violent offense" means specified acts when committed by force, violence, duress, menace, or fear of CONTINUED SB 1143 Page 4 immediate and unlawful bodily injury on the victim or another person, and that are committed on, before, or after the effective date of this article and result in a conviction and a determinate sentence: specified felonies including, but not limited to, sodomy or oral copulation. 3."Diagnosed mental disorder" includes 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. 4."Danger to the health and safety of others" does not require proof of a recent overt act while the offender is in custody. 5."Predatory" means an act is directed toward a stranger or individual with whom a relationship has been established or promoted for the primary purpose of victimization. 6."Recent overt act" means any criminal act that manifests a likelihood that the actor may engage in sexually violent predatory criminal behavior. Prior Legislation SB 41X (Presley) of 1994 passed the Senate 33-3 (noes: Alquist, Marks and Petris) but failed passage in the Assembly Public Safety Committee. FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No SUPPORT: (Verified 5/30/95) (Unable to reverify Support and Opposition at time of this writing) City of Covina (source) Association for Los Angeles Deputy Sheriffs, Inc. Attorney General Cities of Arcadia, Baldwin Park, Claremont, Duarte , Glendora, LaVerne, LaHabra Heights, Monrovia, and Pasadena Committee on Moral Concerns Doris Tate Crime Victims Bureau CONTINUED SB 1143 Page 5 Justice for Murder Victims Law and Order Committee of the California Peace Officers' Association Los Angeles County Police Chiefs' Association Office of Criminal Justice Planning Police Departments of Claremont, El Monte, Irwindale, Pasadena, Pomona, Redding, San Gabriel, San Marino, West Covina and Whittier Protect Our Children Tyler's Love Continues OPPOSITION: (Verified 5/30/95) American Civil Liberties Union California Attorneys for Criminal Justice ARGUMENTS IN SUPPORT: According to the authoros office, 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. ARGUMENTS IN OPPOSITION: The American Civil Liberties Union state they oppose this bill on both policy and constitutional grounds: "This wide sweeping legislation permits the state to indefinitely confine in mental facilities individuals who have committed sexually motivated crimes based on perceived fears that these persons will commit future crimes. This bill is essentially a preventive detention scheme based on allegations of future dangerousness, and as such violates substantive due process of law. "Pursuant to the U.S. Supreme Court's recent decision in Foucha v. Louisiana, the state must prove an individual is both mentally ill and dangerous before the person can be involuntarily committed. SB 1143 fails to meet this minimal requirement in that a "sexually violent predator" CONTINUED SB 1143 Page 6 as defined in the statute does not apply to a group of persons who are mentally ill. As the Supreme Court noted in Foucha: 'The State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term.'" CONTINUED RJG:lm 9/14/95 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****