BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1201 (DeSaulnier) 1
As Amended April 5, 2010
Hearing date: April 13, 2010
Penal Code
AA:mc
SEX OFFENDERS PAROLEES:
RISK ASSESSMENTS
HISTORY
Source: Author
Prior Legislation: SB 325 (Alquist) - Ch. 582, Stats. 2009
SB 1253 (Alquist) - vetoed, 2008
SB 1128 (Alquist) - Ch. 337, Stats. 2006
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD the California Department of Corrections and Rehabilitation
BE EXPRESSLY REQUIRED TO RISK ASSESS sex offender parolees WHO HAVE
BEEN transferred from other jurisdictions, AS SPECIFIED?
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PURPOSE
The purpose of this bill is to expressly require that sex
offender parolees transferred from other jurisdictions to the
California Department of Corrections and Rehabilitation be risk
assessed pursuant to the requirements of the California
"State-Authorized Risk Assessment Tool for Sex Offenders"
("SARATSO"), as specified.
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 requires that the SARATSO be administered as
follows:
The Department of Corrections and Rehabilitation
("CDCR") shall assess every eligible person who is
incarcerated in state prison. Whenever possible, the
assessment shall take place at least four months, but no
sooner than 10 months, prior to release from incarceration.
CDCR shall assess every eligible person who is on parole
if the person was not assessed prior to release from state
prison. Whenever possible, the assessment shall take place
at least four months, but no sooner than 10 months, prior
to termination of parole. The department shall record in a
database the risk assessment scores of assessed persons, as
specified.
The State Department of Mental Health shall assess every
eligible person who is committed to that department.
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Whenever possible, the assessment shall take place at least
four months, but no sooner than 10 months, prior to release
from commitment. The State Department of Mental Health
shall record in a database the risk assessment scores of
assessed persons, as specified.
Commencing January 1, 2010, CDCR and the State
Department of Mental Health shall send SARATSO scores 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.
Each probation department shall assess every eligible
person for whom it prepares a report, as specified.
Each probation department shall assess every eligible
person under its supervision who was not assessed
previously, as specified. The assessment shall take place
prior to the termination of probation, but no later than
January 1, 2010.
Eligible persons not assessed, as specified, may be
assessed as specified in the law.
"Eligible person" means a person who was convicted of an
offense that requires him or her to register as a sex
offender and who is eligible for assessment, as specified.
Persons authorized to perform risk assessments are
immune from liability for good faith conduct under this
act. (Penal Code 290.06.)
This bill would revise this provision to expressly require that
CDCR also assess every person on parole transferred from any
other state or by the federal government to this state who has
been, or is hereafter convicted in any other court, including
any state, federal, or military court, of any offense that, if
committed or attempted in this state, would have been punishable
as a registerable sex offense, as specified.
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This bill also would revise this bill to cross-reference the
"Sex Offender Registration Act" in the provisions of this
section describing persons eligible for SARATSO assessments.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
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. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Author's Amendment in Committee
The author intends to amend this bill in Committee to require
that the risk assessment of sex offenders transferred from other
jurisdictions occur no later than two months from the placement
of the person under the jurisdiction of CDCR.
2. Stated Need for This Bill
The author states:
Under current law when a parolee is transferred from
another state or by the federal government to
California, they are not required to undergo the same
risk assessment that all sex offenders who are
convicted in California must undergo. This loophole in
current law was brought to light through the arrest of
Phillip Garrido who allegedly kidnapped and held
Jaycee Duggard captive for 18 years. When Phillip
Garrido's parole supervision was transferred to the
California Department of Corrections and
Rehabilitation from Nevada he did not receive any type
of risk assessment. If Phillip Garrido would have
been provided a risk assessment, which was finally
done after his arrest, his parole agent would have
known that he was at a high-risk of re-offending and
the agent would have been able to treat him
accordingly. This would have included putting him on
a high-risk sex offender caseload.
Unfortunately, because of this loophole in current
law, Phillip Garrido was able to continue holding
Jaycee Duggard captive while under the supervision of
the California Department of Corrections and
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Rehabilitation for over 10 years.
SB 1201 requires that all parolees who are transferred
from any other state or the federal government be
assessed using the current risk assessment tool that
is currently used for all California sex offenders.
This will ensure that parole agents are aware of the
risk of re-offending by all of their parolees, not
just those released from California prisons.
3. What This Bill Would Do
As explained above, this bill would expressly require that sex
offender parolees transferred from any other state or the
federal government to California and placed on parole under the
California Department of Corrections and Rehabilitation be
assessed pursuant to the requirements of the California
"State-Authorized Risk Assessment Tool for Sex Offenders"
("SARATSO"). This bill would make an additional technical
cross-reference change.
4. Background: 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
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instruments are designed to determine a sex offender's
likelihood of being arrested for a new sex crime by
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. . . .<2>
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
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<2> 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 selecting, a State Authorized Risk Assessment Tool
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.<3>
The Board's January 2009 "Progress Report" underscored that,
"(i)n a time of limited resources the most effective way to
maximize public safety is to allocate resources in a manner that
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<3> 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.)
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ensures that the highest risk populations receive supervision,
management and transition resources that are commensurate with
their risk." The Board noted, "(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."<4>
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<4> Progress Report, January 2009 California Sex Offender
Management Board (see http://www.casomb.org/docs/
2009 %20Progress%20Report%20V5.pdf.)
In January of this year, the Board issued its Recommendations
Report, which included the following information about risk
assessments:
There are twenty states which were using some form of
risk assessment by the end of 2008. (Velasquez, The
Pursuit of Safety: Sex Offender Policy in the United
States, Vera Institute of Justice, Sept. 2008, at
Appendix.) Some, but not all, use empirically based
risk assessment instruments to determine level of
risk. Others use committees to determine risk factors
without basing the factors on empirical research to
verify that the factors correlate to risk of
reoffense. Recent research shows that pure actuarial
analysis using empirically based risk assessment
instruments is more predictive of reoffense than a
combination of unstructured clinical judgment and use
of an empirical instrument. (Hanson, K., et al., The
Accuracy of Recidivism Risk Assessments for Sex
Offenders: A Meta-Analysis, p. 10 (2007).
. . . California currently uses a pure actuarial
approach to risk assessment for purposes of
sentencing, placement on supervision, treatment, and
use of GPS monitoring devices. (Pen. Code,
290.03-08; 1202.8; 1203.) The risk assessment
instrument being used both pre-sentencing and prior to
release on parole for adult sex offenders is the
Static-99. The instrument chosen to assess juvenile
sex offenders is the JSORRAT-II. Both instruments
were chosen by the California risk assessment
committee (SARATSO Committee - see Pen. Code,
290.03-04). As of December 2009, the SARATSO
Committee had not yet chosen a dynamic risk assessment
instrument for California.
. . . The majority of sex offenders released on
parole in California after 2005 have risk assessment
scores under 4 on the Static-99. In December 2009,
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the California Department of Justice determined that
the Static-99 score distribution for the 28,612
registered sex offenders in the DOJ database, whose
risk assessments were done prior to release from
prison or at pre-sentencing, was as follows:
Percentage of Assessed Offenders in
Each Static-99 Score Category:
0 = 12.45%
1 = 18.92%
2 = 19.84%
3 = 17.74%
4 = 13.21%
5 = 7.89%
6+= 9.96%
The California score distribution is consistent with
the percentages of sex offenders found in each score
category in the risk assessment study which was the
basis for the Static-99 risk assessment tool.
(Hanson, Morton, & Harris, "Sexual Offender Recidivism
Risk: What We Know and What We Need to Know," Ann.
N.Y. Acc. Sci. 989:154-166 (2003).)<5>
WILL THIS BILL IMPROVE CALIFORNIA'S STATUTORY SCHEME FOR RISK
ASSESSING KNOWN SEX OFFENDERS?
WILL THIS BILL IMPROVE PUBLIC SAFETY?
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<5> Decrease Victimization, Increase Community Safety
Recommendations Report, California Sex Offender Management Board
(Jan. 2010).