BILL ANALYSIS �
AB 884
Page 1
Date of Hearing: April 12, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 884 (Cook) - As Introduced: February 17, 2011
SUMMARY : Requires law enforcement agencies to notify
enumerated individuals and entities within five days if a person
required to register under the Sex Offender Registration Act for
specified crimes registers in the jurisdiction. Specifically,
this bill :
1)Requires law enforcement to notify enumerate individuals if
the individual registering meets any of the following
criteria:
a) The individual has been adjudicated a sexually violent
predator, as specified;
b) The individual has committed sexually violent crimes, as
specified;
c) The individual has been convicted of a offense requiring
him or her to register as a sex offender, as specified, and
the victim was a child under the age of 14; or,
d) The individual was convicted of specified violent sex
offenses, as specified, where the victim was a child under
the age of 14.
2)Requires law enforcement to notify the following individual
and entities:
a) All persons living within 1,000 feet of the residence of
the specified sex offender;
b) The superintendent of the school district where the sex
offender resides;
c) The hiring officer of each nonpublic school, the
services of which are available to the residents of the
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area where the convicted sex offender resides;
d) The director, head teacher, or principal of every
preschool program available to residents of the area where
the convicted sex offender resides;
e) The administrator of every child day care center, the
services of which are available to residents of the area
where the convicted sex offender resides; and
f) The president or chief administrative officers of each
institution of higher learning, the services of which to
residents of the area where the convicted sex offender
resides.
EXISTING LAW :
1)Provides that notwithstanding any other provision of law, and
except as provided, any designated law enforcement entity may
provide information to the public about a person required to
register as a sex offender, as specified, by whatever means
the entity deems appropriate, when necessary to ensure the
public safety based upon information available to the entity
concerning that specific person. �Penal Code Section
290.45(a)(1).]
2)Requires that community notification by way of an Internet Web
site shall be governed by existing law, and a designated law
enforcement entity may not post on an Internet Web site any
information identifying an individual as a person required to
register as a sex offender except as provided in that section
unless there is a warrant outstanding for that person's
arrest. �Penal Code Section 290.45(a)(3).]
3)Mandates the Department of Justice (DOJ) make available
information concerning persons who are required to register as
a sex offender to the public via an Internet Web site, as
specified. The DOJ shall update the Internet Web site on an
ongoing basis. All information identifying the victim by
name, birth date, address, or relationship to the registrant
shall be excluded from the Internet Web site. The name or
address of the person's employer and the listed person's
criminal history other than the specific crimes for which the
person is required to register shall not be included on the
Internet Web site. The Internet Web site shall be translated
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into languages other than English as determined by the DOJ.
�Penal Code Section 290.46(a)(1).]
4)States that on or before July 1, 2005, with respect to a
person who has been convicted of the commission or the
attempted commission of any of the offenses listed in, or who
is described in, existing law, the DOJ shall make available to
the public via the Internet Web site his or her name and known
aliases, a photograph, a physical description, including
gender and race, date of birth, criminal history, prior
adjudication as a sexually violent predator, the address at
which the person resides, and any other information that DOJ
deems relevant, but not the information excluded, as
specified. On or before January 1, 2013, DOJ shall make
available to the public via the Internet Web site his or her
static SARATSO score and information on an elevated risk level
based on the SARATSO future violence tool. �Penal Code
Section 290.46(b)(1).]
5)Requires persons convicted of specified sex offenses to
register, or reregister if the person has been previously
registered, upon release from incarceration, placement,
commitment, or release on probation. States that the
registration shall consist of all of the following �Penal
Code Section 290.015(a)]:
a) A statement signed in writing by the person, giving
information as shall be required by DOJ and giving the name
and address of the person's employer, and the address of
the person's place of employment, if different from the
employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
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rent or utility receipt or any other information that the
registering official believes is reliable.
6)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. �Penal Code Section 290.018(a)(b).]
7)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. �Penal Code Section 290.015(b).]
8)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
the state prison for 16 months, 2 or 3 years. �Penal Code
Section 290.018(a)(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Informing
parents about the presence of sex offenders is a vital step in
keeping kids safe. This bill will ensure that parents,
schools, and caregivers receive information on local sex
offenders in a timely and efficient manner."
2)Background : According to background provided by the author,
"For over 50 years, California has required convicted sex
offenders to register with local law enforcement agencies.
This information was not available to the public, however,
until the 1995 when the Child Molester Identification Line was
established. After California's Megan's Law was signed the
following year, the public could access information on sex
offenders and their whereabouts through a 900 toll line or by
visiting a local police or sheriff's station.
"In 2004, AB 488 created the Megan's Law sex offender locator
website. This site allowed the public for the first time to
view information on sex offenders who are required to register
with local law enforcement under California's Megan's Law from
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home.
"The purpose of Megan's Law was to provide the public with
information on the whereabouts of sex offenders so that
members of our local communities could protect themselves and
their children. There are three problems with the current
approach. First, the current notification system is entirely
passive. Due to offenders constantly moving around the state,
parents essentially have to check the database every day in
order to stay abreast of sex offenders moving into their
neighborhoods. Between working and raising their children,
many parents simply don't have time to monitor the website
with such frequency. Secondly, many parents from low income
families lack regular internet access. Even many of those who
do have internet access are unaware of the Megan's Law
website. Lastly, the current notification system does not
inform local schools and daycares when sex offenders move into
their area. While there are processes in place to screen
potential hires, the system for identifying sex offenders in
the area is not nearly as strong.
"Registered sex offenders are already required to register with
local law enforcement when they change their addresses. Local
law enforcement then notifies the Department of Justice. This
bill would solve the problem of community notification by also
requiring law enforcement agencies to provide written notice
to all neighbors living within 1,000 feet of a sex offender.
This notification would be provided within five days of a sex
offender moving into the neighborhood. The notifications
would also be sent by local law enforcement to nearby school
and daycare officials. This makes it much easier for schools
to identify sex offenders near schools."
3)Purpose and Requirements of Sex Offender Registration :
California was the first state to require sex offender
registration in 1947. The stated purpose for sex offender
registration is to deter offenders from committing future
crimes, provide law enforcement with an additional
investigative tool, and increase public protection. �Wright
vs. Superior Court (1997) 15 Cal.4th 521, 526; Alissa Pleau
(2007) Review of Selected 2007 California Legislation:
Closing a Loophole in California's Sex Offender Registration
Laws, 38 McGeorge L. Rev. 276, 277; Hatton vs. Bonner (2004)
365 F. 3rd 955, 961.] Penal Code Section 290 requires
life-time registration by persons convicted of specified sex
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crimes that reside in, attend school or work in California.
�Penal Code Section 290(a).] Sex offenders are required to
register annually within five working days of his or her
birthday. �Penal Code Section 290(b).] If the offender has
no fixed address, he or she is required to register every 30
days. �Penal Code Section 290.011(a).] A person is also
required to notify law enforcement of any change of address
within five days of moving. (Penal Code Section 290.014.) A
person who fails to register as a sex offender within the
period required by law is guilty of a felony punishable by 16
months, 2 or 3 years. �Penal Code Section 290.018(b).]
The registration statute does not distinguish crimes based on
severity and instead requires all persons convicted of a
listed crime to register annually within five days of his or
her birthday and for the rest of his or her life. �Penal Code
Section 290.012(a).] Although most registerable offenses are
felonies, there some alternate felony/misdemeanor penalties
and a few straight misdemeanors. �See Penal Code Section
243.4 (sexual battery); Penal Code Section 266c (obtaining
sexual consent by fraud); Penal Code Section 311.1, 311.2(c),
311.4, 311.11 (child pornography); Penal Code Section 647.6
(annoying or molesting a child); and, Penal Code Section
314(1)(2) (indecent exposure).]
In 1996, California enacted "Megan's Law" allowing the public to
access an address list of registered sex offenders. Before
2003, members of the public could only obtain the information
on the Megan's Law list by calling a "900" or visiting certain
designated law enforcement agencies and reviewing a CD-ROM.
However, in 2003, California required the DOJ to put the
Megan's Law list of offenders on a public access Web site with
the offender's address, photo and list of offenses. �See
Penal Code Section 290.46(a).] For some offenders with less
serious offenses, only his or her ZIP code is listed. Now, a
citizen can enter his or her address and see if there are
registered sex offenders living in his or her community. This
bill expands the provisions related to law enforcement
notification to include individuals living within 1,000 feet
of the registrant's address, as well as persons responsible
for hiring employees in schools, preschools, day-care centers,
and schools of higher learning.
4)Community Notification : Existing law authorizes law
enforcement to notify the general public when a sex offender
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is returned to that community. Penal Code Section 290.45(a)
states, "Any designated law enforcement entity may provide
information to the public a person required to register as a
sex offender, as specified, by whatever means the entity deems
appropriate, when necessary to ensure the public safety based
upon information available to the entity concerning that
specific person." �Penal Code Section 290.46(a)(1).] As noted
above, DOJ maintains a publically accessible Internet Web site
where any person may simply enter an address and see where
registered sex offenders reside within a specified distance
from that address. �Penal Code Section 290.46(a).] This bill
requires local law enforcement to notify members specified
members of the public of information about registered sex
offenders
5)Constitutionality of Sex Offender Registration : Both the
California and the United States Supreme Court have ruled
that, generally, sex offender registration laws do not run
afoul of constitutional prohibitions against ex post facto,
double jeopardy and cruel and unusual punishment. �In re Leon
Casey Alva (2004) 33 Cal. 4th 254; Smith vs. Doe (2003) 538
U.S. 84.] In making such a finding, both courts applied the
Mendoza-Martinez test which outlines several guiding factors
in determining whether a law is punitive. The factors include
whether the "regulatory scheme" has been regarded in history
and tradition as punitive, imposes an affirmative disability
or restraint, promotes the traditional aims of punishment, has
a rational connection to a non-punitive purpose, or is
excessive with respect to its purpose. The state may not make
publicity and stigma an integral part of the objective of such
regulation. �Kennedy vs. Mendoza-Martinez (1963) 372 U.S.
144.] Sex offender registration has been viewed as a
non-punitive regulatory scheme because it is designed only to
keep law enforcement and, to some extent, the public aware of
dangers.
For the most part, Megan's Law has been remarkably resilient to
constitutional challenges. While a few courts have held that
retroactive community-notification provisions are punitive and
thus violate the Ex Post Facto Clause, the overall legal trend
has been to find community notification regulatory and not
punitive in nature. However, several courts have enjoined
community-notification provisions under the Fourteenth
Amendment, holding that states must provide minimum
due-process protections, such as hearings and a state burden
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of clear-and-convincing evidence for those hearings, before
infringing upon either state privacy rights or the right not
to be defamed by the government. The courts generally
recognized that the increased burden on the state was
necessitated by the relatively serious liberty interest of the
registrant when compared to the insubstantial value of
community notification to the state. As stated by the Third
Circuit:
"An erroneous underestimation of an individual's dangerousness
will not necessarily result in harm to protected groups . . .
. On the other hand, an overestimation of an individual's
dangerousness will lead to immediate and irreparable harm to
the offender: his conviction becomes public, he is officially
recorded as being a danger to the community, and the veil of
relative anonymity behind which he might have existed
disappears." �E.B. vs. Verniero (1997) 119 F.3rd 1077;
Garfinkle, COMMENT: Coming of Age in America: The
Misapplication of Sex-Offender Registration and Community -
Notification Laws to Juveniles, (2003) 91 Calif. L. Rev. 163,
202.]
The California Court of Appeals for the Fourth District held
that after the residency restrictions in Jessica's Law passed
in November 2006 sex offender registration may no longer a
regulatory scheme but instead a form of punishment. The court
stated:
"We conclude, based on our analysis of the salient
Mendoza-Martinez factors, Jessica's Law's residency
restriction has an overwhelming punitive effect. It
effectuates traditional banishment under a different name,
interferes with the right to use and enjoy real property near
schools and parks, and subjects housing choices to government
approval like parole or probation. It affirmatively restrains
the right to choose a home and limits the right to live with
one's family. It deters recidivism and comes close to
imposing retribution on offenders. While it has a
non-punitive of protecting children, it is excessive with
regard to that purpose. It would oust a person never
convicted of any offense against a child from his family home
near a school or park, forcing him to leave his family or
consigning the family to perpetually threatened transience.
Relocation would be limited to the few outskirts of town
lacking a school or park. Yet the residency restriction would
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allow a convicted child molester to stroll past the school,
eat ice cream in the park, and live next door to small
children-as long as he retreats at night to housing far from a
school or park. Building exclusion zones around all schools
and parks for all registered sex offenders is excessively
punitive.
"The severe punitive effect of Jessica's Law's residency
requirement clearly outweighs the proclaimed lack of
regulatory, non-punitive intent. �See Smith, supra, 538 U.S.
at p. 92 ('clearest proof' of punitive effect outweighs lack
of punitive intent).] We are not the first jurists to
recognize the overwhelming punitive effect of a residency
restriction. (internal citation omitted.]
"Because the residency restriction is punitive, its imposition
by the court increases the penalty for a nonsexual offense
beyond the prescribed statutory maximum based upon the jury
verdict alone. (internal citation omitted.) Thus, the facts
required to impose the residency restriction must be found
beyond a reasonable doubt by a jury." (Ibid.) �People vs.
Mosley (2008) 168 Cal.App.4th 512, 533, cert. granted by the
California Supreme Court.] The lower court did not directly
rule on the constitutionality of Jessica's Law or sex offender
registration and the California Supreme Court is expected to
rule on this issue this month.
By placing greater requirements on those who are required to
register as sex offenders, it would be more likely seen as
punitive by the courts. If the scheme is designed to gravely
disable the offender or is seen as a way to further punish sex
offenders, courts may re-examine sex offender registration
with the attitude that it is all designed to further the
punish the offender and require it be proven to the jury as an
additional penalty. This may result in some offenders
escaping registration.
6)Vagueness : The Supreme Court of the United States has held
that a law must be sufficiently clear and precise for a
reasonable person to know whether behavior is prohibited or
permitted. In Connally v. General Construction Co., the court
said that criminal statutes "must be so clearly expressed that
the ordinary person can intelligently choose, in advance, what
course it is lawful for him to pursue." 269 U.S. 385, 393.
This specificity ensures that individuals are not punished for
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behavior that they could not know was prohibited, and prevents
selective prosecution.
This bill may suffer from vagueness issues. The bill requires
law enforcement agencies to notify the individual responsible
for making hiring decisions at any nonpublic school, preschool
program, day care center, or institution of higher learning,
"the services of which are available to the residents of the
area" where the convicted sex offender lives. Unlike the
provisions which require notification to the public school
district in which the sex offender lives, "the area" the sex
offender lives in, is not a clearly defined geographical area.
7)Argument in Opposition : According to the California Public
Defenders Association , "Under this bill, the law enforcement
agency would be mandated to do a full community notification
within days of each and every time a 290 registers. There
are presently over 90,000 Penal Code 290 registrants in
California. This bill requires notice of the registration of
the sex offender to be given to: all persons living within
1,000 feet of his/her residence, the superintendent of the
school district, the hiring officer of each nonpublic school,
the director of every preschool available to residents of the
area, the administrator of each day care center, the present
of each institution of higher learning, the services of which
are available to the residents of the area.
"To implement this bill would not only be extremely costly, it
would interject fear and hysteria in communities and incite
vigilantism. Anyone interested in learning of the location of
290 registrants can easily check the website."
8)Related Legislation :
a) AB 755 (Galgiani) requires every registered sex offender
to inform the law enforcement agency with which he or she
last registered of all Internet identifiers or service
providers and must sign a statement acknowledging this
responsibility. AB 755 is pending hearing by this
Committee.
b) AB 757 (Blumenfield) authorizes any law enforcement
agency to re-include a registered sex offender granted an
exclusion from DOJ's Internet Web site where the agency
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believes that public safety may be compromised by the
continued exclusion from DOJ's Web site. Upon receiving
notice from a law enforcement agency requesting
re-inclusion, DOJ shall notify the offender and thereafter
make information about the offender available to the public
on the Web site within 30 days. AB 757 is pending hearing
by this Committee
c) AB 1022 (Fletcher) authorizes local law enforcement to
provide information available on the Department of Justice
website of sex offenders, as specified, upon requires, by
email or other electronic notification. AB 1022 is
scheduled to be heard by Committee today.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744