BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 689 (Hollingsworth)
As Amended April 13, 2009
Hearing date: April 28, 2009
Penal Code
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SEXUALLY VIOLENT PREDATORS :
TRACKING THROUGH A PUBLIC INTERNET WEB SITE
HISTORY
Source: Author
Prior Legislation: None
Support: None<1>
Opposition:Taxpayers for Improving Public Safety; California
Attorneys for Criminal Justice; California Public
Defenders Association
KEY ISSUE
SHOULD the Department of Justice BE REQUIRED to develop and
---------------------------
<1> Letters in the Committee's files supporting this bill
pertain to the bill as introduced on February 27, 2009. As
amended April 13, 2009 and as now before the Committee, this
bill is substantively unrelated to its introduced version.
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implement a fully Web-enabled system to provide the public, via an
Internet Web site, with monitoring and mapping information showing
the actual, physical location in real time of sex offenders who have
been declared sexually violent predators?
PURPOSE
The purpose of this bill is to require the Department of Justice
to develop and implement a fully Web-enabled system to provide
the public, via an Internet Web site, with monitoring and
mapping information showing the actual, physical location in
real time of sex offenders who have been declared sexually
violent predators.
Current statute , as enacted by Proposition 83 in 2006, states
that every inmate who has been convicted for any felony
violation of a "registerable sex offense" . . . or any attempt
to commit any (sex offense) who is committed to prison and
released on parole, as specified, shall be monitored by a global
positioning system for the term of his or her parole, or for the
duration or any remaining part thereof, whichever period of time
is less. (Penal Code 3000.07.)
Current statute , as enacted by Proposition 83 in 2006, states
that every "inmate who has been convicted for any felony
violation of a 'registerable sex offense' (as specified) or any
attempt to commit any of the (specified sex offenses) and who is
committed to prison and released on parole . . . shall be
monitored by a global positioning system for life." (Penal Code
3004 (b).)
Under existing law , the Sexually Violent Predator (SVP) law
provides for the civil commitment for psychiatric treatment of a
prison inmate found to be a sexually violent predator after the
person has served his or her prison commitment. (Welf. & Inst.
Code 6600, et seq.)
Existing law defines a sexually violent predator as an inmate
"who has been convicted of a sexually violent offense against
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one or more victims 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." (Welf. & Inst. Code 6600 (a).)
Pursuant to current law , the Department of Justice ("DOJ")
makes information about registered sex offenders available to
the public via an Internet Web site, as specified. (Penal
Code 290.46.) DOJ is required to include on this Web site a
registrant's name and known aliases, a photograph, a physical
description, including gender and race, date of birth,
criminal history, and any other information that the
Department of Justice deems relevant unless expressly excluded
under the statute. (Id.)
This bill would require DOJ to "develop and implement a fully
Web-enabled system to provide the public, via an Internet Web
site, with monitoring and mapping information showing the
actual, physical location in real time of sex offenders who have
been declared sexually violent predators," as defined in current
law.
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.<2>
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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<2> "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.<3>
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. Stated Need for This Bill
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<3> 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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The author states:
In recent years, there has been an increase in public
attention focused on improving ways to monitor
convicted sex offenders released into the community.
Offender registrations can't single handedly track a
sex offender's movements. In order to provide the
public with additional tools so they may protect their
families, this data should be available so that
parents (and other individuals such as child care
providers) can make informed decisions as to where
they take children. If, for example, an SVP frequents
the local fast food establishment and pizza parlor,
this information should be readily available to the
public, so that specific locations can be avoided
while in the company of minors.
2. What This Bill Would Do
As explained above, current law provides a mechanism for civilly
committing persons who have fully served a prison term for a sex
offense but subsequently are found to have been diagnosed with a
mental disorder that makes them a danger to the health and
safety of others in that it is likely that they will engage in
sexually violent criminal behavior. Current statute, as enacted
by Proposition 83 in 2006, also states that every inmate who has
been convicted for any felony violation of a "registerable sex
offense" and who is committed to prison and released on parole
shall be monitored by a global positioning system for life.
This bill would require DOJ to develop and implement a fully
Web-enabled system to provide the public, via an Internet Web
site, with monitoring and mapping information showing the
actual, physical location in real time of sex offenders who have
been declared sexually violent predators."
3. Sex Offender Management to Improve Public Safety; GPS as a
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Tool
The California Sex Offender Management Board (the "Board"),
created with the enactment of AB 1015 (Chu and Spitzer) in 2006,
is tasked generally with assessing the current state of
California's sex offender management practices and recommending
evidence-based practices which can improve public safety. In
its January 2009 Progress Report, the Board stated in part:
The California Sex Offender Management Board has
used the following two values as a guide when
evaluating research, practice and policy related to
the management of adult sex offenders.
1. In 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.
2. Public safety is one of the fundamental
commitments that state and local governments make
to their community. The best way to honor this
commitment is to adopt practices which have been
demonstrated to be effective.<4>
IS THIS BILL CONSISTENT WITH THE VALUES IDENTIFIED BY THE SEX
OFFENDER MANAGEMENT BOARD?
In January of 2008, the Board published its initial assessment
of current management practices of adult sex offenders in
California. With respect to GPS the board noted the increasing
numbers of high-risk sex offenders on parole wearing GPS
tracking devices. In describing GPS as a tool for sex offender
supervision the Board noted the following with respect to active
GPS units, which presumably would be required for the real-time
tracking contemplated by this bill:
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<4> Available online at
http://www.casomb.org/docs/2009%20Progress%20Report%20V5.pdf.
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Global Positioning System (GPS): Consists of a
monitoring unit carried with the offender at all times
outside of the home, and an ankle bracelet, as in the
RF (radio frequency) system, but it also includes a
home charging and storage base which records and
transmits information such as time and date, path of
travel through points on a map, violations of the
exclusion zone (area determined to be out-of-bounds
for an offender to travel based on probation/parole
requirements), and tampering, removal, stretching, or
low charge of the monitor/bracelet (The Sex Offender
Supervision and Community Notification Study
Committee, 2005).
. . .
Active GPS Units: Records information every 1-10
seconds and transmits the information every few
minutes to the supervising officer or operations
center (Report on New Jersey's GPS Monitoring of Sex
Offenders, 2007). Active GPS units require a cellular
phone for information transmittal. . . .
*Pros:
Officer is alerted almost immediately for
a violation;
Sets up inclusion zones (where the
offender should be, i.e., home, work); and
Exclusion zones (prior victims' houses,
parks, schools) to produce alerts to officers;
Functions as a containment tool;
Officers can see specific activity
patterns;
The device may serve to deter offenders;
Gives officers the ability to prove or
rule out the offenders being in the area at the
time a crime was committed;
Helps build trust between offender and
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officer;
Allows the officer to verify offender is
at home prior to making a home visit;
Allows officers to follow-up with public
complaints about the offenders.
*Cons:
Requires a cellular phone and a signal
with 3 satellites;
Does not obtain a signal in some areas
such as those with mountainous terrain, tunnels,
large buildings, warehouses, or cars (if not
placed in the window, as required);
Officers are alerted if the battery is
running low or for failure of the device, which
is time consuming for the officers;
Officer burnout from constant on-call
status;
Costs more than passive GPS and RF
monitoring;
Must have an electrical outlet to plug
the base into an outlet to recharge;
Offenders must carry and take care of
equipment for proper utility;
Sometimes officers are required to go to
the offender's house at night, which may place
officers in unsafe conditions without backup from
armed officers when responding to alert pages;
Significantly more time is put into
supervising the offender;
Some officers feel they are working more
with the equipment than the offenders;
Some judges and district attorneys have
been reluctant to accept or deny evidence from
GPS tracking;
Not all criminal justice agencies have
information about how GPS works and its abilities
and limitations;
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Offenders may be denied or terminated
from employment due to the GPS equipment;
Sex offender group therapy can end up
being a sounding board for equipment gripes.<5>
These observations were made in the context of active GPS as a
tool of law enforcement supervision of sex offenders,
contemplating parole or probation supervision. This bill,
however, proposes what essentially would be a means of public
supervision for SVPs who may or may not be under supervision.
Some of the issues raised by the Board above nevertheless may
provide useful policy considerations as members review this
bill. Members may wish to consider the following issues raised
by a Web site that discloses the real-time locations of SVPs:
IF AN OFFENDER COULD NOT BE LOCATED BECAUSE OF TECHNOLOGICAL
PROBLEMS (FOR EXAMPLE, A GAP IN SATELITE AVAILABILITY, A SIGNAL
PROBLEM BECAUSE OF THE OFFENDER'S REMOTE LOCATION, OR THE DEVICE
HAS NOT BEEN RECHARGED) WHAT INFORMATION WOULD BE DISPLAYED
ABOUT THE OFFENDER'S LOCATION?
WHAT IS THE INCIDENCE OF ERROR FOR THESE DEVICES, AND HOW MIGHT
ERRORS EFFECT MEMBERS OF THE PUBLIC VIEWING THIS INFORMATION?
WHAT WOULD BE THE COST OF MAINTAINING THIS KIND OF SYSTEM?
WOULD THIS BE A SYSTEM THAT WOULD REQUIRE CONTRACTS WITH OUTSIDE
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<5> An Assessment of Current Management Practices of Adult Sex
Offenders in California, Initial Report (January 2008),
California Sex Offender Management Board, pp. 107-108.
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VENDORS TO MAINTAIN?<6>
IS THE INFORMATION DERIVED FROM ACTIVE GPS RELIABLE ENOUGH TO
PROVIDE TO THE PUBLIC AS SOMETHING REPRESENTED TO THEM AS A
USEABLE TOOL IN PROMOTING COMMUNITY SAFETY?
As currently drafted this bill does not distinguish between SVPs
who currently are confined to secure facilities, and those who
have been released.<7> The author and/or the Committee may wish
to consider whether, to the extent the active GPS system this
bill proposes would promote public safety, the bill's
contemplated benefits would derive from a population of SVPs
currently confined to a state hospital.
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<6> The author's background notes the following: "Currently,
the Department of Corrections and Rehabilitation contracts with
a company that already provides verifiable GPS confirmation of
an offender's movements. Veritracks is a 100 percent
Internet-based tracking application that receives, stores and
distributes monitoring data transmitted by BluTag Active,
BluTag Hybrid and BluTag Passive. VeriTracks 24/7 has the
capacity to be accessed using any computer with a high speed
Internet connection. It also offers mapping that displays and
animates the current or historical tracks of one or more
offenders at the same time. These systems have proven to be an
effective means to monitor the daily movements of a released sex
offender."
<7> In its January 2008 report the Board provided the
following information about SVPs: Coalinga State Hospital
currently has 655 men under commitment or precommitment as a
Sexually Violent Predator (SVP) (including WIC 6604s and WIC
6602s). *Atascadero State Hospital has a total of 63 men
committed as Sexually Violent Predators; *25 sexual offenders
are under a dual commitment of Mentally Disordered Offender
(MDO) and SVP; *Approximately 20-30% of those admitted under
WIC 6604 and/or WIC 6602 are participating in the Sexual
Offender Commitment Program (SOCP) at each state hospital.
SHOULD THIS BILL BE AMENDED TO LIMIT ITS APPLICATION TO SVPS WHO
HAVE BEEN RELEASED FROM CUSTODY?
Members also may wish to discuss the limits of GPS as a tool to
improve public safety. Earlier this year a sex offender wearing
a GPS unit allegedly murdered a 13-year old girl in Washington
State. As illustrated by comments in the following online
article from the CNN Web site, some experts warn that GPS is not
a "magic bullet" for containing sex offenders:
"They can't monitor it live, and even if you could
monitor it live, him being in the field wouldn't have
told you [if] he was murdering the girl," said Evan
Mayo-Wilson, an Oxford University lecturer who has
studied the use of GPS.
There are two types of GPS monitoring: active, in
which the offender's whereabouts are surveyed in
real-time, and passive, in which probation or parole
officers check an offender's movements after the fact.
. . .
Both types of GPS are important tools for law
enforcement, Mayo-Wilson said, but the technology must
be coupled with other efforts to reduce recidivism,
including treatment programs, personal visits and
interviews with neighbors, family members and
employers.
Sex offenders should be assessed on a case-by-case
basis, and supervision programs must be based on fluid
assessments that weigh the likelihood of reoffense,
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said Peter Ibarra, a sociologist at the University of
Illinois-Chicago who studies the use of GPS in
stalking and domestic violence cases.
"You have to use it very responsibly," Ibarra said.
"It's a technology that cannot stand alone, especially
if you're thinking about using it with offenders who
imperil the public."
. . .
Experts say GPS can create a false sense of security
because its capabilities are overestimated. Jill
Levenson, an associate professor of human sciences at
Lynn University in Boca Raton, Florida, said many
people believe it is "some magic bullet or panacea
that prevents crimes."
Levenson also concurs with other experts who say the
technology is used too sweepingly. Twenty-seven states
have some mandatory requirement that the devices be
used on sex offenders, according to the National
Conference of State Legislatures. Only six states
have no specific provisions for such monitoring.
. . .
Added Oxford's Mayo-Wilson, "[GPS] could be used
effectively to help shape behavior, but it's being
used too bluntly."
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GPS is more likely to work with low-level offenders
while the technology's deterrent effect on the most
dangerous perpetrators is limited, Levenson said.
"[GPS] is not necessarily going to deter people from
having sexually deviant intentions," she said. "Many
crimes are more impulsive and opportunistic, and that
level of thinking may not go into it."<8>
WOULD PUBLIC SAFETY BE ENHANCED IF monitoring and mapping
information showing the actual, physical location in real time
of sex offenders who have been declared sexually violent
predators WAS AVAILABLE TO THE PUBLIC ON AN INTERNET WEB SITE?
how would members of the public be expected to use this
information?
does a sex offender's current location necessarily provide
information relevant to public safety?
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<8> Sex Offender Kills Teen While Under GPS Monitoring, Police
Say (March 12, 2009); http://www.cnn.com/
2009/CRIME/03/12/sex.offender.gps/index.html#cnnSTCOther1.