BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
4
2
8
AB 428 (Fletcher)
As Amended April 23, 2009
Hearing date: June 16, 2009
Penal Code
MK:br
CRIMINAL HISTORY RECORDS
HISTORY
Source: Department of Justice
Prior Legislation: None
Support: Los Angeles District Attorney's Office; California
Family Council
Opposition:None
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE LAW ALLOW THE DOJ TO RELEASE CRIMINAL HISTORY
INFORMATION, TO A FOREIGN GOVERNMENT IF THE INFORMATION IS REQUESTED
BY THE INDIVIDUAL WHO IS THE SUBJECT OF THE CRIMINAL HISTORY IN
CONNECTION WITH AN ADOPTION?
(More)
AB 428 (Fletcher)
PageB
PURPOSE
The purpose of this bill is to provide for the release of
criminal history information to a foreign government in
connection with an adoption.
Existing law requires the Department of Justice to maintain
state summary criminal history information, as defined, and
authorizes the Attorney General to furnish state summary
criminal history information and, when specifically authorized,
federal level criminal history information upon a showing of a
compelling need, to various entities for a variety of purposes.
(Penal Code 11105.)
This bill would provide that DOJ may release criminal history
information to any foreign government, if requested by the
individual who is the subject of the record requested, if needed
in conjunction with the individual's application to adopt a
minor child who is a citizen of that foreign nation. Requests
for information pursuant to this paragraph shall be in
accordance with the process described in Sections 11122 to
11124, inclusive.
This bill would provide that the response shall be provided to
the foreign government or its designee and to the individual who
requested the information.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
(More)
AB 428 (Fletcher)
PageC
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
AB 428 (Fletcher)
PageD
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
(More)
AB 428 (Fletcher)
PageE
According to the author:
As the statutorily mandated repository for criminal
history records, the DOJ is responsible for providing
CORI to assist regulatory entities in making
suitability determinations of affiliated individuals
per Penal Code Section 11105 and numerous other
sections throughout the codes. Entities must have
explicit statutory authority to request and receive
CORI.
As indicated above, the DOJ does not have the explicit
statutory authority to search for or release CORI to
individuals, foreign governments or entities
representing them to aid the determination of a current
or previous California resident's suitability to adopt
a minor foreign national. Since many foreign
governments require a prospective adoptive parent who
is an expatriate or resident Californian, to produce
evidence of their California CORI,
The DOJ implemented a "workaround" to assist with this
scenario by responding to this type of request via a
broad interpretation of Penal Code Section 11105
(c)(9).
(More)
Penal Code Section 11105 (c)(9) states the DOJ may
furnish state summary criminal information, "To any
individual who is the subject of the record requested
if needed in conjunction with an application to enter
the United States or any foreign nation." However, the
language does not specifically state the information
can be used for the purpose of determining an
individual's suitability to adopt a minor foreign
national. As such, utilizing this authority for
foreign adoption purposes is a broad interpretation of
existing statute and merely represents a DOJ workaround
process.
Additionally, most foreign governments require a
certification of authenticity on a criminal record
check. This certification requires a different format
from all other applicant background checks and must
then be forwarded to the California Secretary of State
for authentication. Because we have no explicit
authority to respond to background checks for foreign
adoption purposes, the applicant must indicate the
background check is for VISA/Immigration purposes and
DOJ often cannot identify it as one which needs the
unique format for foreign adoptions. This leads to
frustration on the part of the applicant who must get a
proper response in order to complete the adoption
process.
Finally, and perhaps most importantly, the very limited
criminal history information released for
VISA/Immigration purposes is inconsistent with the
dissemination criteria utilized by the DOJ when
responding to California licensed adoption agencies,
independent adoption agencies and/or private adoption
agencies. All other background checks for adoption
purposes include the prospective parent's FULL criminal
history, as specified in the California Family Code.
As such, clear, state level CORI search authority for
foreign adoptions is needed in statute, not only in
(More)
AB 428 (Fletcher)
PageG
order to reverse statutory silence, but also to
establish consistency amongst similar CORI request
applicant types.
2. Release of Criminal History Information in a Foreign Adoption
As noted in the author's statement, currently the DOJ does not
have explicit authority to release criminal history information
to a foreign government that is evaluating a California citizen
for purposes of allowing that person to adopt a child who is a
national of the foreign government. This bill would provide DOJ
that authority.
In support the Los Angeles District Attorney's Office states
that they believe that "AB 428 will ensure that all foreign
adoptions go through the same criminal screening process as an
adoption occurring in the United States."
SHOULD THE LAW ALLOW THE DOJ TO RELEASE CRIMINAL HISTORY
INFORMATION, TO ANY FOREIGN GOVERNMENT IF THE INFORMATION IS
REQUESTED BY THE INDIVIDUAL WHO IS THE SUBJECT OF THE CRIMINAL
HISTORY IN CONNECTION WITH AN ADOPTION?
***************