BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
3
2
5
SB 325 (Alquist)
As Introduced February 25, 2009
Hearing date: April 21, 2009
Penal and Welfare and Institutions Codes
AA:mc
SEX OFFENDERS:
RISK ASSESSMENTS
HISTORY
Source: SARATSO Review Committee
Prior Legislation: SB 1253 (Alquist) - 2008, vetoed
SB 1128 (Alquist) - Ch. 337, Stats. 2006
Support: Los Angeles District Attorney's Office; Chief Probation
Officers of California; Crime
Victims United of California; Peace Officers Research
Association of California (PORAC)
Opposition:None known
KEY ISSUES
SHOULD SPECIFIED, LARGELY TECHNICAL AND OPERATIONAL CHANGES BE MADE
TO THE "STATE-AUTHORIZED RISK ASSESSMENT TOOL FOR SEX OFFENDERS"
("SARATSO") REVIEW AND TRAINING COMMITTEES?
SHOULD AN EXPLICIT PROCESS FOR RISK ASSESSING REGISTERED SEX
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OFFENDERS WHO PREVIOUSLY HAVE NOT BEEN ASSESSED BE ESTABLISHED?
SHOULD AN APPROPRIATE SARATSO INSTRUMENT BE APPLIED TO JUVENILE SEX
OFFENDERS RECOMMENDED FOR COMMITMENT TO THE DIVISION OF JUVENILE
JUSTICE?
PURPOSE
The purpose of this bill is to make the following revisions to
the state-authorized sex offender risk assessment ("SARATSO")
laws: 1) provide for individuated reviews where a SARATSO
scoring agency believes an individual score is too high or too
low, as specified; 2) clarify that sex offender parolees are to
be assessed only if they have not been assessed previously, as
specified; 3) require the Department of Mental Health ("DMH")
to record in a database risk assessment scores, including any
submitted by a probation officer, as specified; 4) require that
beginning on January 1, 2010, California Department of
Corrections and Rehabilitation ("CDCR") and DMH send assessment
scores to the Department of Justice ("DOJ") Sex Offender
Tracking Program within 30 days of the assessment, and that the
risk assessment score of an offender be made part of his or her
file maintained by the DOJ Sex Offender Tracking Program as soon
as possible without financial impact, but no later than January
1, 2012; 5) establish a process for risk assessing registered
sex offenders who previously have not been assessed, as
specified; 6) broaden the definition of sex offenders eligible
for risk assessment, as specified; 7) provide immunity for
persons who perform authorized risk assessments in good faith,
as specified; 8) expand the existing records access by the
SARATSO Review Committee to experts it retains, as specified; 9)
clarify that probation reports include SARATSO results for
persons recommended for sex offender registration by a probation
officer, as specified; and 10) authorize the use of an
appropriate SARATSO instrument for juvenile sex offenders where
probation recommends commitment to the Division of Juvenile
Justice, as specified.
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Background: The "SARATSO" Review Committee
Current law generally authorizes the use of a "State-Authorized
Risk Assessment Tool for Sex Offenders" ("SARATSO") pursuant to
the legislative finding that "a comprehensive system of risk
assessment, supervision, monitoring and containment for
registered sex offenders residing in California communities is
necessary to enhance public safety and reduce the risk of
recidivism posed by these offenders." (Penal Code 290.03;
290.04.)
Current law establishes a "SARATSO Review Committee," comprised
of a representative of the State Department of Mental Health, in
consultation with a representative of the Department of
Corrections and Rehabilitation and a representative of the
Attorney General's office. (Penal Code 290.04(a)(2).) The
purpose of the SARATSO Review Committee is to "ensure that the
SARATSO reflects the most reliable, objective and
well-established protocols for predicting sex offender risk of
recidivism, has been scientifically validated and cross
validated, and is, or is reasonably likely to be, widely
accepted by the courts. The committee shall consult with
experts in the fields of risk assessment and the use of
actuarial instruments in predicting sex offender risk, sex
offending, sex offender treatment, mental health, and law, as it
deems appropriate." (Id.)
The SARATSO Training and Review Committees
Current law establishes the "SARATSO Training Committee,"
comprised of a representative of the State Department of Mental
Health, a representative of the Department of Corrections and
Rehabilitation, a representative of the Attorney General's
Office, a representative of the Chief Probation Officers of
California, and generally tasked with the development of a
training program for the administration of the SARATSO, as
specified. (Penal Code 290.05.)
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This bill would establish an individuated override process for
SARATSO scoring, providing that, if "the agency responsible for
scoring the SARATSO believes an individual score does not
represent the person's true risk level, based on factors in the
offender's record, the agency may submit the case to the experts
retained by the SARATSO Review Committee to monitor the scoring
of the SARATSO. Those experts shall be guided by empirical
research in determining whether to raise or lower the risk
level. Agencies that score the SARATSO shall develop a protocol
for submission of risk level override requests to the experts
retained in accordance with this subdivision."
Assessment Implementation
Current law provides a schedule for the assessment of sex
offenders using SARATSO, as specified. (Penal Code 290.06.)
Current law requires the Department of Corrections and
Rehabilitation to assess every eligible person on parole, as
specified. (Penal Code 290.06(a)(2).)
This bill would revise this provision to apply only if the
person was not assessed prior to release from state prison.
Current law requires the Department of Mental Health to assess
every eligible person committed to that department, as
specified. (Penal Code 290.06(a)(3).)
This bill would require DMH to "record in a database the risk
assessment scores of persons assessed . . . , and any risk
assessment score that was submitted to the department by a
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probation officer," as specified, and make technical corrections
to clarify that this provision applies to the state Department
of Mental Health.
This bill would require that, "(c)ommencing January 1, 2010,
(CDCR) and (DMH) shall send the scores obtained (as specified),
to the Department of Justice Sex Offender Tracking Program not
later than 30 days after the date of the assessment. The risk
assessment score of an offender shall be made part of his or her
file maintained by the Department of Justice Sex Offender
Tracking Program as soon as possible without financial impact,
but no later than January 1, 2012."
Current law provides, "if a person required to be assessed . . .
was assessed . . . within the previous five years, a
reassessment is permissible but not required. (Penal Code
290.06(b).)
Current law requires the SARATSO Review Committee, in
consultation with local law enforcement agencies, to establish a
plan and a schedule for assessing eligible persons not assessed,
as specified. "The plan shall provide for adult males to be
assessed on or before January 1, 2012, and for females and
juveniles to be assessed on or before January 1, 2013, and it
shall give priority to assessing those persons most recently
convicted of an offense requiring registration as a sex
offender. On or before January 15, 2008, the committee shall
introduce legislation to implement the plan." (Penal Code
290.06(c).)
This bill would delete these provisions, and provide the
following with respect to assessing persons eligible for
assessment who have not been assessed under SARATSO:
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Upon request of the law enforcement agency in the
jurisdiction in which the person is registered as a sex
offender, as specified, the person shall be assessed. The
law enforcement agency would be authorized to enter into a
memorandum of understanding with a probation department to
perform the assessment, or may arrange to have personnel
trained to perform the risk assessment, as specified.
Eligible persons not assessed upon request of the
registering law enforcement agency may request that a risk
assessment be performed, as follows:
o a request form shall be available at
registering law enforcement agencies;
o the person requesting the assessment shall pay
a fee for the assessment that shall be sufficient to
cover the cost of the assessment;
o the risk assessment so requested shall be
performed either by the probation department or by
trained personnel, as specified.
Current law provides that "eligible person" in this context
"means a person who was convicted of an offense that requires
him or her to register as a sex offender pursuant to Section 290
and who has not been assessed with the SARATSO within the
previous five years." (Penal Code 290.06(c)(emphasis added).)
This bill would strike the italicized language above and replace
it with, "is eligible for assessment, pursuant to the official
Coding Rules designated for use with the risk assessment
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instrument by the author of any risk assessment instrument
(SARATSO) selected by the SARATSO Review Committee."
This bill would provide that "(p)ersons authorized to perform
risk assessments pursuant to this section, Section 1203, and
Section 706 of the Welfare and Institutions Code shall be immune
from liability for good faith conduct under this act."
Access to Records
Current law grants access by any person authorized by statute to
administer SARATSO to all relevant records pertaining to a
registered sex offender, as specified. (Penal Code 290.07.)
This bill would expressly include within this provision "any
person acting under authority from the SARATSO Review Committee
as an expert to train, monitor, or review scoring by persons who
administer the SARATSO pursuant to Section 290.05 or 1203 of
this code or Section 706 of the Welfare and Institutions Code, .
. ."
Probation Reports; SARATSO
Current law generally requires probation officers to investigate
and report to the court upon the circumstances surrounding the
crime, the prior history and record of the person, which may be
considered either in aggravation or mitigation of the punishment
for persons convicted of a felony and eligible for probation.
(Penal Code 1203.)
Current law generally requires that these reports include the
results of the SARATSO assessment conducted on the person, as
specified. (Penal Code 1203(b)(2)(c).)
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This bill would revise this language technically to ensure it
applies to persons for whom probation could recommend sex
offender registration, as specified.
Juveniles
Current law provides that after finding that a minor is
delinquent, as specified, "the court shall hear evidence on the
question of the proper disposition to be made of the minor. The
court shall receive in evidence the social study of the minor
made by the probation officer and any other relevant and
material evidence that may be offered, including any written or
oral statement offered by the victim, the parent or guardian of
the victim if the victim is a minor, or if the victim has died
or is incapacitated, the victim's next of kin, (as specified).
In any judgment and order of disposition, the court shall state
that the social study made by the probation officer has been
read and that the social study and any statement has been
considered by the court." (Welfare and Institutions Code
706.)
This bill would provide in addition that, "if the probation
officer has recommended that the minor be transferred to (CDCR),
Division of Juvenile Justice pursuant to an adjudication for an
offense requiring him or her to register as a sex offender (as
specified), the (applicable) SARATSO . . . shall be used to
assess the minor, and the court shall receive that risk
assessment score into evidence."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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.
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California's prison population has increased by 125 percent (an
average of 4 percent 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 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.
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<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 percent
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).)
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. . .
Although the evidence may be less than perfectly
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 aggravate the prison overcrowding crisis
outlined above.
COMMENTS
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<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).
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1. Stated Need for This Bill
The author states:
Current law requires the state and local governments
to assess the risk of all registered sex offenders
prior to sentencing, upon release from prison or jail
and while living anywhere within the state of
California. In order for the state risk assessment
committee to ensure that these assessments are
reliable, SB 325 provides that the State Authorized
Risk Assessment review Committee (SARATSO) will
monitor the consistency and quality of risk
assessments, and retain experts to train those who
will oversee the training of persons who will perform
the risk assessments.
The bill also gives the SARATSO Training Committee the
authority to arrange for experts to monitor scoring
and answer questions from the field about scoring, and
to ensure scores are empirically based and legally
defensible. Since legal challenges to risk
assessments are already being litigated in the
California courts, it is imperative these changes be
made to existing law.
SB 325 sets up the proper checks and balances to
ensure that the law mandating the monitoring of high
risk sex offenders on intensive caseloads, places the
GPS monitoring systems on high risk offenders. By
ensuring these procedures are in place we can depend
on the reliability of the risk assessment and defend
against any legal challenges.
2. What This Bill Would Do
As explained in detail above, this bill would refine
California's law concerning its application of the
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state-authorized risk assessment instrument for sex offenders
("SARATSO"). The major features of the bill are to:
provide for the risk assessment of juvenile sex
offenders recommended for commitment to the state's
Division of Juvenile Facilities;
clarify that probation reports for sex offenders include
SARATSO results, as specified;
provide a process for risk assessing registered sex
offenders, primarily those now in the community, who have
not been risk assessed; and
improve certain database and record-keeping provisions
concerning SARATSO scores.
3. Risk Assessments of Sex Offenders
The value of risk assessments in managing sex offenders is
broadly recognized. For example, in July of 2007 the California
Sex Offender Management Task Force included as a strategic goal
the establishment of "comprehensive standards for assessment of
sex offenders to allow for appropriate allocation of
interventions and resources." The Task Force explained:
One important principle of sex offender management is
that sex offenders are a diverse group of individuals
with widely differing levels of risks and areas of
needs. . . .
Within the past decade, risk assessment has become an
area of increased influence in decision-making with
sex offense cases. Actuarial instruments are
currently the most common method of estimating and
categorizing sex offenders into risk groups. These
instruments are designed to determine a sex offender's
likelihood of being arrested for a new sex crime by
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assessing how he is similar to other groups of sex
offenders for whom the risk of re-offense is known.
These instruments are moderately effective at
predicting the re-offense rate of a group of similarly
defined offenders, but cannot identify whether a
particular individual offender within a specific "risk
group" will or will not re-offend. . . .
Actuarial risk assessments have been developed in two
distinct areas. Static risk assessments use primarily
static or unchangeable risk factors (e.g., number of
prior sex offenses, age of the offender, gender of
victims, and relationship to victims). They are
historical in nature and research has identified them
to be moderately predictive of future sexual offending
behavior. More recently, researchers have begun to
focus on dynamic or changeable risk factors believed
to be associated with sexual recidivism. (e.g.,
negative mood, substance abuse, anger, victim access,
intimacy deficits, poor social supports, antisocial
lifestyle or behaviors). Some risk assessment tools
contain both static and dynamic risk factors, while
others exclusively examine one or the other. . . .<3>
As summarized in a January 2008 report issued by the California
Sex Offender Management Board:
By statute effective September 2006, the Legislature
established a statutory scheme for assessing all
persons required to register as sex offenders in
California for risk of reoffending. For each
population of sex offenders-adult males, adult
females, juvenile males, and juvenile females-the
Legislature either selected, or established a means
for selecting, a State Authorized Risk Assessment Tool
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<3> Making California Communities Safer: Evidence-Based
Strategies for Effective Sex Offender Management (July 2007)
California Sex Offender Management Task Force (see
http://www.casomb.org/docs/CSOM%20Full%20 Report.pdf.)
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for Sex Offenders, or SARATSO. By statute, the
SARATSO selected for adult males is the Static-99 risk
assessment instrument. The continued use of this
instrument for adult males, and the selection of
instruments for the other populations, will be
determined by the SARATSO Review Committee. The
Committee, which is composed of representatives from
the California Department of Corrections and
Rehabilitation, the Department of Mental Health, and
the Attorney General's Office, is working in
consultation with experts in a variety of disciplines
to ensure that, for each population, the SARATSO is
"the most reliable, objective, and well-established
protocol[] for predicting sex offender risk of
recidivism."
The law contemplates that, as of January 1, 2013, each
person required to register as a sex offender in
California will have been assessed for his or her risk
of reoffending. This information will be available to
probation offices, courts, correctional facilities,
and law enforcement.
. . .
Through the efforts of the SARATSO Committee (State
Authorized Risk Assessment Tool for Sex Offenders)
established by the legislature and Governor in 2006,
California is on a path to identify and implement the
best possible available instruments for the assessment
of "static" as well as "dynamic" risk.<4>
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<4> An Assessment of Current Management Practices of Adult Sex
Offenders in California (January 2008), California Sex Offender
Management Board (see
http://www.casomb.org/docs/SOMBReport1.pdf.)
The Board's January 2009 "Progress Report" underscores that,
"(i)n a time of limited resources the most effective way to
maximize public safety is to allocate resources in a manner that
ensures that the highest risk populations receive supervision,
management and transition resources that are commensurate with
their risk." The Board notes, "(t)he Static-99 is a sex
offender risk assessment instrument that is used to help
determine the risk of recidivism for male adult offenders. It
is the only recognized risk assessment tool utilized for this
population in California. The committee intends to examine the
challenges in training and administering the Static-99
instrument. Also, there are challenges being presented in the
court process with the exam itself; the committee would like to
look at how to prepare these findings for the most useful
presentation in court."<5>
4. Veto
The author carried a very similar bill last session, SB 1253,
which was vetoed by the Governor. However, the veto was
accompanied by a standard message relating to the late budget
which the Governor used for a number of bills, and did not on
its face indicate any substantive concerns about the bill.<6>
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<5> Progress Report, January 2009, California Sex Offender
Management Board (see http://www.casomb.org/docs/
2009 %20Progress%20Report%20V5.pdf.)
<6> Specifically, the veto message read: "I am returning Senate
Bill 1253 without my signature. (P) The historic delay in
passing the 2008-2009 State Budget has forced me to prioritize
the bills sent to my desk at the end of the year's legislative
session. Given the delay, I am only signing bills that are the
highest priority for California. This bill does not meet that
standard and I cannot sign it at this time."
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