BILL ANALYSIS �
AB 1695
Page 1
Date of Hearing: March 20, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1695 (Cook) - As Amended: February 29, 2012
SUMMARY : Creates a misdemeanor for specified sex offenders to
be outside his or her domicile without a state-issued
identification card. Specifically, this bill :
1)States that any person convicted of a crime committed against
a minor under the age of 14 who is required to register as a
sex offender shall carry a state-issued identification card at
all times when he or she is outside of his or her domicile.
2)States any person who has been adjudicated a sexually violent
predator and required to register as a sex offender shall
carry a state-issued identification card at all times when he
or she is outside of his or her domicile.
3)Defines "state-issued identification card" as any
identification card issued by a state department or agency,
including a driver's license.
EXISTING LAW :
1)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 the Department of
Justice (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;
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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
rent or utility receipt or any other information that the
registering official believes is reliable.
2)States every person who is required to register, as specified,
who is living as a transient shall be required to register for
the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
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in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form, including the information.
d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30-day period, he
or she does not need to report the new place or places
until the next required re-registration. �Penal Code
Section 290.011(a) to (d).]
3)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).]
4)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).]
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5)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, "Requiring the
most dangerous sex offenders to carry a form of identification
is the most effective way for law enforcement to determine a
suspect's registration status. Too many of these sex offenders
reoffend, which means we have to take a proactive approach
when dealing with the worst of the worst."
2)Constitutionality : The Supreme Court of the United States has
recognized a constitutional right to travel dating back to
1849. (Smith v. Turner, 48 U.S. 283.) This right is rooted
in the privileges or immunities clause in the Fourteenth
Amendment. �Edwards v. California, 314 U.S. 160 (1941).]
This right is a fundamental right, and any law restricting the
right to travel must meet strict scrutiny. �Saenz v. Roe, 526
U.S. 489 (1999).] The restriction must be narrowly tailored
to achieve a compelling state interest. "Neither mere
rationality nor some intermediate standard of review should be
used to judge the constitutionality of a state rule that
discriminates against some of its citizens." (Id. at 504.)
Requiring a registrant to carry a government identification at
all times must be narrowly tailored to meet a compelling
governmental interest (the most strict test for constitutional
standards). In this case, this bill requires any registrant
who has committed offenses against minors under the age of 14
to carry a government issued identification card at all times
he or she is outside of his or her domicile. California has
lifetime registration. Therefore, an individual who has not
committed an offense in decades will be required, under
penalty of a misdemeanor, to comply with this law.
Furthermore, what happens if a registrant who must comply with
this provision loses his or her identification? It seems
unlikely that the Department of Motor Vehicles will make a
house call. Therefore, a registrant cannot legally leave his
or her home, for the rest of his or her life, if his or her
AB 1695
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identification is lost or destroyed. The provisions proposed
in this law are not even close to meeting strict scrutiny and
are not narrowly tailored to meet a compelling governmental
interest.
As a matter of policy, Californians are not required to carry
identification wherever they go. Not only is that
inconsistent with the nation's concepts of personal liberty,
but is also presumptively unconstitutional. �Kolender v.
Lawson, (1983) 461 US 352.]
Furthermore, the requirement that a person carry identification
outside of his or her "domicile" likely leaves the proposed
law subject to arbitrary enforcement because "domicile" is not
defined. It is well known that a large number of registrants
are transient. What happens when a transient offender takes a
shower in a homeless shelter? If his or her identification is
not present in the shower is he or she in violation of this
proposed new law?
3)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 v. Superior Court (1997)
15 Cal.4th 521, 526; Pleau, Review of Selected 2007 California
Legislation: Closing a Loophole in California's Sex Offender
Registration Laws (2007) 38 McGeorge L. Rev. 276, 277; Hatton
v. Bonner (2004) 365 F. 3rd 955, 961.] Penal Code Section 290
requires life-time registration by persons convicted of
specified sex crimes that reside in, attend school, or work in
California. �Penal Code Section 290(b).] A sex offender is
required to register annually within five working days of his
or her birthday. (Penal Code Section 290.012.) 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 290.013.) 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 law also requires a sex offender
registrant who applies for or accept a position as an employee
or volunteer with any person, group, or organization where the
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registrant would be working directly and in an unaccompanied
setting with minor children on more than an incidental and
occasional basis or have supervision or disciplinary power
over minor children to disclose his or her status as a
registrant, upon application or acceptance of a position, to
that person, group, or organization. �Penal Code Section
290.95(a).] A violation of the aforementioned is a
misdemeanor punishable by imprisonment in a county jail for
not exceeding six months, by a fine exceeding $1,000, or by
both that imprisonment and fine. �Penal Code Section
290.95(e).]
In 2006, California enacted "Jessica's Law" which prohibited sex
offenders from residing within 2,000 feet of any public or
private school, or park where children regularly gather
regardless of whether or not their underlying crime involved a
minor victim. �Penal Code Section 3003.5(b).] Municipal
jurisdictions were also afforded the ability to adopt any
additional local ordinances which further restrict the
residency of any person for whom registration as a sex
offender is required. �Penal Code Section 3003.5(c).]
4)Do Sex Offender Registration Laws Work ? Current sex offender
restrictions affect one's residence, employment, family, and
even freedom if he or she fails to register accordingly.
Understanding the costs and benefits of a law is crucial to
determining its rationality. The benefits of residency
restrictions are two-fold. At one level, communities benefit
from knowing that they do not have sex offenders living in
specified areas. This provides security. Theoretically, the
second benefit of residency laws would be that they prevent
some sex offenses from occurring. However, empirical evidence
demonstrates that these laws do not prevent a majority of sex
crimes. "Ninety percent of child victims know their offender,
with almost half of the offenders being a family member. Of
sexual assaults against people age 12 and up, approximately
80% of the victims know the offender." �Office of the
Attorney General, Facts About Sex Offenders
(as
Jan. 7, 2010).] These findings not only undermine the stated
purpose of residency and sensitive-site boundary laws, but
also render false the sense of security.
The perceived "benefits" of residency restrictions come with
monetary, psychological, and ethical costs. �See Levenson,
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Sex Offender Residence Restrictions: A Report to the Florida
Legislature (2005).] The obvious costs include those
associated with identifying, monitoring, arresting,
prosecuting, and imprisoning sex offenders who violate broad
residency laws. There are also other less obvious social
costs. Perhaps the most compelling of these costs is that
police resources will be spread thin by voluminous monitoring
obligations, leaving fewer resources. Other costs include a
potential loss of labor from sex registrants unable to obtain
jobs upon disclosing their status as registrants.
Additionally, communities incur other subtle costs by
disenfranchising a substantial sector of their population.
Feelings of disenfranchisement, rejection, hatred, and neglect
negatively affect the mental states of those individuals
forced to live on the fringes of society. �See Pinard &
Thompson, Offender Reentry and the Collateral Consequences of
Criminal Convictions: An Introduction (2006) 30 N.Y.U. Rev.
L. & Soc. Change 585.] This large-scale rejection often
causes the sex offender to harbor reciprocal feelings towards
society, sometimes to the point where the offender's feelings
of civic responsibility - including the duty to follow laws -
dissipate. (Ibid.) When people are denied the rights of
citizens, some may feel like they have proportionally fewer
duties of citizenship. (Ibid.) As sex offenders are forced
farther and farther from densely populated areas and required
to find housing from an increasingly small number of options
that comply with residency restrictions, they are more likely
to become homeless and transient. Homelessness and transience
increase the risks of psychological and treatment problems and
the costs of monitoring and tracking the sex offenders.
(Ibid.)
According to the California Sex Offender Management Board (SOMB)
January 2009 report,
"The vast majority evidence and research conducted to date does
not demonstrate a connection between where an offender lives
and recidivism. Since the expansion of residency restrictions
in California in 2006, the availability of suitable housing
for sex offenders has plummeted. As a result, the number of
sex offenders registering transient has dramatically
increased. The body of literature and research to date
indicates that a lack of stable and appropriate housing can
contribute to recidivism." �SOMB, Progress Report (Jan. 2009)
p. 8 (as of Feb. 19, 2010).]
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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 v. 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 v. 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 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
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 3rd
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
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recorded as being a danger to the community, and the veil of
relative anonymity behind which he might have existed
disappears." �E.B. v. 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 4th District held that
after the residency restrictions in Jessica's Law passed in
November of 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 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." (See State v. Pollard, supra, 886 N.E.2d at p.
74 (residency restriction is punitive); Mikaloff, supra, 2007
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WL 2572268 at pp. 9-10 (same); Leroy, supra, 828 N.E.2d at p.
793 (dis. opn. of Kuehn, J.) (same); Miller, supra, 405 F.3d
at p. 726 (conc. & dis. opn. of Melloy, J.) (same).]
"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. (Apprendi, supra, 530 U.S. at p. 490.) Thus,
the facts required to impose the residency restriction must be
found beyond a reasonable doubt by a jury." (Ibid.) �People
v. 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 in 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)Argument in Support : According to the California Probation,
Parole and Correctional Association , "�a]s required under the
Sex Offender Registration Act, persons who have been convicted
of specified sex offenses have to register with local law
enforcement, and the registration must include the person's
address, fingerprints, current photograph, and license plate
number. Current law further law requires the registrant to
update his or her registration annually, upon moving, or upon
changing his or her name. AB 1695 will assist in deterring
offenders from committing future crimes and provides law
enforcement with an additional investigative tool which will
lead to increased public protection."
7)Argument in Opposition: According to the California Attorneys
for Criminal Justice , "�t]his bill adds Section 290.035 to the
Penal Code and requires any person convicted of a crime
committed against a minor under the age of 14 who because of
that conviction is required to register as a sex offender, to
carry a state issued identification card at all times while
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outside their home. A violation of Section 290.035 would be a
misdemeanor.
"The purpose of this requirement is unclear. Under current law,
a person with such a conviction is on parole, which requires
him to be monitored by a GPS unit. Under current law, if the
person is not on parole or probation it demonstrates that the
person has not reoffended for a significant person of time.
GPA tracking is sufficient oversight and AB 1695 is
unnecessary.
"There is little justification for requiring any person to carry
"papers" at all times. In California a law that required
"credible and reliable" identification was found to be void
for vagueness in Kolender v. Lawson (1983) 461 US 352.
"If an individual needs to be identified based upon probable
cause that a law has been broken, the person can be arrested
and the individual detained. The law allows law enforcement
to detain a person until such time as his or her
identification can be properly made. (See United States v.
Hensley (1985) 469 US 221). AB 1695 adds nothing to the
authority currently possessed by law enforcement to stop a
person for questioning.
"California has lifetime registration. As a result there are
thousands of men and women who are required to register for
offenses that occurred decades ago and have not reoffended.
This law will impose a new requirement upon people who have
not committed a crime for dozens of years. This new
requirement seems overbroad, unjustified, and unnecessary. We
do not need to make innocent conduct criminal for no
justifiable purpose."
8)Related Legislation: AB 1031 (Donnelly) requires an arresting
authority report the presence of an individual to the United
States Immigration and Customs Enforcement if that individual
is arrested for driving under the influence (DUI) or DUI with
injury, as specified, and the individual fails to provide the
arresting authority with the appropriate documentation
demonstrating his or her legal presence in the United States.
AB 1031 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Probation, Parole and Correctional Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744