BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 447 (Yee)
As Introduced February 26, 2009
Hearing date: April 14, 2009
Penal Code
MK:mc
CRIMINAL RECORDS: CUSTODIAN
HISTORY
Source: Attorney General/Department of Justice
Prior Legislation: None
Support: Los Angeles District Attorney; California Peace
Officers' Association; California Police
Chiefs Association; American Federation of State, County and
Municipal Employees (AFSCME), AFL-CIO
Opposition:None known
KEY ISSUE
SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO ESTABLISH, IMPLEMENT
AND MAINTAIN A CONFIRMATION PROGRAM TO PROCESS FINGERPRINT-BASED
CRIMINAL RECORD BACKGROUND CLEARANCES ON INDIVIDUALS DESIGNATED BY
AN AGENCY AS THE CUSTODIAN OF RECORDS?
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PURPOSE
The purpose of this bill is to require the Department of Justice
to create a process for obtaining background clearances on
custodian of records for agencies whose employees or volunteers
must have a criminal background check.
Existing law provides that criminal offender record information
shall be disseminated, whether directly or through an
intermediary, only to such agencies as are, or may subsequently
be, authorized access to such record by statute. (Penal Code
11076.)
Existing law provides that the Attorney General is responsible
for the security of criminal offender record information.
(Penal Code 11077.)
Existing regulations provides record checks shall be conducted
on all personnel hired after July 1, 1975, who have access to
criminal offender record information. (California Code of
Regulations (CCR), Title 11, Division 1, Chapter 7, Article 1,
section 703 (d).)
Existing law provides that the Department of Justice (DOJ) shall
maintain summary criminal history information and shall furnish
the information to specified persons. (Penal Code 11105.)
This bill provides that commencing January 1, 2011, DOJ shall
establish, implement and maintain a confirmation program to
process fingerprint-based criminal record background clearances
on individuals designated by agencies as custodians of records.
This bill provides that commencing July 1, 2011, no person shall
serve as an agency custodian of records unless confirmed by DOJ,
unless they are criminal justice agency personnel who have
undergone a state and federal background check.
This bill provides that DOJ shall charge a fee of $30 to cover
the costs of the confirmation program in addition to a fee
sufficient to cover the cost of processing the appropriate state
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and federal level criminal record background check.
This bill provides that each agency must designate at least one
custodian of records and submit to DOJ his or her fingerprints
for a state and federal background check. Subsequent arrest
notification shall be given for the designated custodian.
This bill provides that every individual confirmed as a
custodian of records shall be at least 18 years of age and been
determined by DOJ to possess the required honesty, credibility,
truthfulness and integrity to fulfill the responsibilities of
the position.
This bill provides that DOJ shall not confirm as custodian of
records any individual who has been convicted of a felony
offense or any other offense that involves moral turpitude,
dishonesty, or fraud, or that the applicant's ability to perform
the duties or responsibilities of a custodian of records. The
confirmation shall be revoked if, at any time, the individual is
convicted of either a felony offense, or any other offense that
involves moral turpitude, dishonesty, or fraud, or that the
applicant's ability to perform the duties or responsibilities of
a custodian of records.
This bill provides that the DOJ may also refuse to confirm or
revoke or suspend the confirmation of a person as a custodian of
records if the individual has done any of the following:
Made a substantial and material misstatement or omission
in the application to the DOJ.
Been convicted of an offense of a nature incompatible
with the duties of a custodian of records.
Failed to discharge fully and faithfully any of the
duties or responsibilities required of a custodian of
records.
Been adjudged liable for damages in any suit grounded in
fraud, misrepresentation, or in violation of the state
regulatory laws, or in any suit based upon a failure to
discharge fully and faithfully the duties of a custodian of
records.
Committed any act involving dishonesty, fraud, or
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deceit.
Failed to submit any remittance payable upon demand by
DOJ under this section of railed to satisfy any court
ordered money judgment, including restitution.
This bill provides that that the agency shall immediately notify
the DOJ when the designated custodian of records no longer
serves in that capacity. By March 1, 2012, and by March 1 each
year thereafter, the agency shall notify DOJ, using a form
provided by DOJ, of the individuals currently serving in the
capacity of custodian of records.
This bill defines "custodian of records" as an individual
designated by an agency as responsible for the security,
storage, dissemination, and destruction of the criminal records
furnished to the agency and who serves as the primary contact
for DOJ for any related issues.
This bill defines "agency" as any public or private entity that
receives criminal history information from the DOJ.
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.
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
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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
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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% 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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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
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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. Need for This Bill
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According to the sponsor:
Agencies that apply to the Department of Justice (DOJ)
for access to state summary criminal offender record
information (CORI) are required by the DOJ to designate
a person to function as the "Custodian of Records." The
Custodian of Records is responsible to ensure compliance
with statutory and regulatory requirements regarding the
security, storage, dissemination, and destruction of the
criminal records furnished to the agency. The Custodian
of Records also serves as the primary contact for DOJ
for any criminal record related issues.
The laws requiring fingerprint-based CORI searches have
long been based on the premise that persons with certain
convictions shall not be placed in specified positions
of trust. Currently, the CORI response to determine the
eligibility of the agency's Custodian of Records
position is being returned to the Custodian of Records
applicant. Potentially, an applicant for a Custodian of
Records position could be convicted of a violent crime
or crimes against children and approve him or herself
for the Custodian of Records position, while others in
the agency are unaware of the applicant's criminal
history. The Custodian of Records would be able to
access the COR for other individuals applying to serve
in positions of trust within the organization. In this
example, the Custodian of Records is a benefactor of an
undeserved public trust, and those impacted may be the
children served by the agency.
2. Confirmation Process for Custodian of Records
Under existing law, if specified employees of a public or
private entity must obtain a criminal background check through
the Department of Justice, those records are sent to the
designated custodian of records at that entity. The law does
not provide, however, for a process to make sure that the
custodian of records is an appropriate person to have access to
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such sensitive criminal history information and to be
responsible for its storage, dissemination and destruction.
This bill requires DOJ to establish, implement, and maintain a
confirmation program for the custodian of records of entities
that require DOJ background checks. The custodian of records
will have to have a federal and state background check. The
person will not be confirmed as the custodian of records, or
will have his or her confirmation revoked, if he or she has been
convicted of a felony or any other offense that involves moral
turpitude, dishonesty, or fraud, or that impacts the applicant's
ability to do the job of custodian of records. The person may
also not be confirmed, or have his or her confirmation revoked
if he or she made a substantial and material omission in the
application, has been convicted of an offense that is not
compatible with his or her duties, failed to fully discharge his
or her duties as custodian of records, been adjudged liable for
damages in any suit grounded in fraud, misrepresentation, etc.,
or in violation of any state regulatory laws or a suit based on
a failure to discharge his or her duties as custodian of
records, committed any act involving dishonesty, fraud, etc.,
failed to submit any remittance payable upon demand by the DOJ
or any court ordered money judgment.
The bill provides for a process where the entity, starting in
March of 2012, shall notify the DOJ yearly of whom the custodian
of records will be and also notify DOJ when a person ceases to
be the custodian of records.
SHOULD A PROCESS BE CREATED FOR THE CONFIRMATION OF CUSTODIAN OF
RECORDS FOR AGENCIES THAT RECEIVE CRIMINAL HISTORY INFORMATION
FROM THE DEPARTMENT OF JUSTICE?
3. Technical Amendments
A few technical amendment need to be made to this bill:
The bill adds its provisions to the wrong code section
and should read Penal Code Section "11102.2" not "1102.2".
Page 3, lines 10-11, the word "impacts" should be
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asserted between "that" and "the."
Page 3, line 33, the word "of" should be deleted.
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