BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2343 (Torres) 3
As Amended March 28, 2012
Hearing date: June 12, 2012
Penal Code
MK:dl
CRIMINAL HISTORY INFORMATION
HISTORY
Source: California Attorney General
Prior Legislation: None
Support: Ventura County Board of Supervisors
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUES
SHOULD THE LAW BE CHANGED TO ALLOW THE ATTORNEY GENERAL'S OFFICE TO
PARTICIPATE IN THE NEW FEDERAL SUBSEQUENT ARREST INFORMATION
PROGRAM?
SHOULD THE LAW ALLOW THE ATTORNEY GENERAL TO PROVIDE DISPOSITION
INFORMATION FOR SUBSEQUENT ARREST INFORMATION THAT HAS BEEN SENT TO
ENTITIES WHO REQUIRE BACKGROUND CHECKS?
PURPOSE
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The purpose of this bill is to make changes to the law regarding
background checks to allow California to participate in the FBI
subsequent arrest program which is being created and to allow
the Attorney General to distribute disposition information as a
follow-up to subsequent arrest information that has been sent to
an entity that had requested a background check.
Existing law provides that the DOJ shall maintain state summary
criminal history information. "State summary criminal history
information" is defined as the master record of information
compiled by the Attorney General pertaining to the
identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints,
photographs, date of arrests, arresting agencies and booking
numbers, charges, dispositions, and similar data about the
person. "State summary criminal history information" does not
refer to records and data compiled by criminal justice agencies
other than the Attorney General, nor does it refer to records of
complaints to or investigations conducted by, or records of
intelligence information or security procedures of, the office
of the Attorney General and the DOJ. (Penal Code � 11105(a).)
Existing law states that the Attorney General shall furnish
state summary criminal history information to any of the
following, if needed in the course of their duties, provided
that when information is furnished to assist an agency, officer,
or official of state or local government, a public utility, or
any other entity, in fulfilling employment, certification, or
licensing duties, Chapter 1321, Statutes of 1974, and Labor Code
Section 432.7 shall apply:
The courts of California;
Peace officers of California, as defined;
District attorneys of California;
Prosecuting city attorneys of any city within
California;
City attorneys pursuing civil gang injunctions or drug
abatement actions;
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Probation officers of California;
Parole officers of California;
A public defender or attorney of record when
representing a person in proceedings upon a petition for a
certificate of rehabilitation and pardon;
A public defender or attorney of record when
representing a person in a criminal case, or parole
revocation or revocation extension proceeding, and if
authorized access by statutory or decisional law;
Any agency, officer, or official of the state if the
criminal history information is required to implement a
statute or regulation that expressly refers to specific
criminal conduct applicable to the subject person of the
state summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to
receive state summary criminal history information may also
transmit fingerprint images and related information to DOJ
to be transmitted to the FBI;
Any city or county, city and county, district, or any
officer or official thereof if access is needed in order to
assist that agency, officer, or official in fulfilling
employment, certification, or licensing duties, and if the
access is specifically authorized by the city council,
board of supervisors, or governing board of the city,
county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation
that expressly refers to specific criminal conduct
applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified
criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by
this paragraph may also transmit fingerprint images and
related information to DOJ to be transmitted to the FBI;
The subject of the state summary criminal history
information;
Any person or entity when access is expressly authorized
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by statute if the criminal history information is required
to implement a statute or regulation that expressly refers
to specific criminal conduct applicable to the subject
person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly
based upon that specified criminal conduct;
Health officers of a city, county, city and county, or
district when in the performance of their official duties
in the prevention of communicable diseases;
Any managing or supervising correctional officer of a
county jail or other county correctional facility;
Any humane society, or society for the prevention of
cruelty to animals, for the specific purpose of complying
with existing provisions of law relating to the appointment
of humane officers;
Local child support agencies. When a local child
support agency closes a support enforcement case containing
summary criminal history information, the agency shall
delete or purge from the file and destroy any documents or
information concerning or arising from offenses for or of
which the parent has been arrested, charged, or convicted,
other than for offenses related to the parent's having
failed to provide support for minor children;
County child welfare agency personnel who have been
delegated the authority of county probation officers to
access state summary criminal history information pursuant
to the Welfare and Institutions Code (WIC) for the purposes
of investigating child abuse, locating a parent, or
assessing the appropriateness and safety of a child's
placement. When an agency obtains records obtained both on
the basis of name checks and fingerprint checks, final
placement decisions shall be based only on the records
obtained pursuant to the fingerprint check;
The court of a tribe, or court of a consortium of
tribes, that has entered into an agreement with California
for the purposes of investigating child abuse, locating a
parent, or assessing the appropriateness and safety of a
child's placement, and for tribal approval or tribal
licensing of foster care or adoptive homes;
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An officer providing conservatorship investigations;
A court investigator providing investigations or reviews
in conservatorships;
A person authorized to conduct a guardianship
investigation; and
A humane officer for the purposes of performing his or
her duties. (Penal Code �11105(b).)
Existing law provides that the state and federal summary
criminal history information furnished by the DOJ as the result
of an application by an authorized agency or organization shall
include convictions rendered against the applicant, arrests for
which the applicant is presently awaiting trial, and every
arrest or detention unless the applicant was exonerated or
completed diversion. If DOJ's records do not contain a
disposition for an arrest, the DOJ shall first make a genuine
effort to determine the disposition of the arrest prior to
dissemination. DOJ must provide additional information for
applications submitted by specified authorized agencies. (Penal
Code � 11105(k), (l), (m), (n), (o) and (p).)
Existing law states that DOJ may provide subsequent arrest
notification to any agency authorized by Penal Code Section
11105 to receive state summary criminal history information to
assist in fulfilling employment, licensing, certification
duties, or the duties of approving relative caregivers and
nonrelative extended family members, upon the arrest of any
person whose fingerprints are maintained on file at the DOJ as
the result of an application for licensing, employment,
certification, or approval. The notification shall consist of a
current copy of the person's state summary criminal history
transcript. (Penal Code � 11105.2(a).)
Existing law provides that any agency which submits the
fingerprints of an applicant for employment, licensing,
certification, or approval to the DOJ for the purpose of
establishing a record at the DOJ to receive notification of
subsequent arrest shall immediately notify the DOJ if the
applicant is not subsequently employed, or if the applicant is
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denied licensing certification, or approval. (Penal Code �
11105.2(f).)
Existing law prohibits an employer, whether a public agency or
private individual or corporation, from asking an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not
result in conviction, or information concerning a referral to,
and participation in, any pretrial or post-trial diversion
program. An employer shall not seek from any source whatsoever,
or utilize, as a factor in determining any condition of
employment including hiring, promotion, termination, or any
apprenticeship training program or any other training program
leading to employment, any record of arrest or detention that
did not result in conviction, or any record regarding a referral
to, and participation in, any pretrial or post-trial diversion
program. As used in this section, a conviction shall include a
plea, verdict, or finding of guilt regardless of whether
sentence is imposed by the court. Nothing in this section shall
prevent an employer from asking an employee or applicant for
employment about an arrest for which the employee or applicant
is out on bail or on his or her own recognizance pending trial.
Exceptions are as follows:
This section does not prohibit the disclosure of the
information authorized for release under existing
provisions of law to a government agency employing a peace
officer. However, the employer shall not determine any
condition of employment other than paid administrative
leave based solely on an arrest report. The information
contained in an arrest report may be used as the starting
point for an independent, internal investigation of a peace
officer;
Persons seeking employment or persons already employed
as peace officers or persons seeking employment for
positions in the DOJ or other criminal justice agencies as
defined are not covered by this section;
This section does not prohibit an employer at a health
facility, as defined, from asking an applicant for
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employment either of the following:
o With regard to an applicant for a position
with regular access to patients, to disclose an arrest
for a registerable sex offense, or
o With regard to an applicant for a position
with access to drugs and medication, to disclose an
arrest for a registerable offense involving controlled
substances. (Labor Code � 432.7(a), (b), (e) and
(f).)
This bill clarifies that the state and federal summary criminal
history information initially furnished by the Department of
Justice (DOJ) as the result of an application by an authorized
agency or organization shall include certain specified
information as required under existing provisions of law.
This bill requires whenever state or federal summary criminal
history information is furnished by the DOJ as the result of an
application by an authorized agency, organization, or individual
as defined, and the information is to be used for employment,
licensing, or certification purposes, the authorized agency,
organization, or individual to expeditiously furnish a copy of
the information to the person to whom the information relates if
the information is a basis for an adverse employment, licensing,
or certification decision.
This bill states that the DOJ may provide subsequent state or
federal arrest or disposition notification to any entity
authorized by state or federal law to receive state or federal
summary criminal history information to assist in fulfilling
employment, licensing, certification duties, or the duties of
approving relative caregivers and nonrelative extended family
members, upon the arrest or disposition of any person whose
fingerprints are maintained on file at the DOJ or the Federal
Bureau of Investigations (FBI) as the result of an application
for licensing, employment, certification, or approval.
This bill provides that when the DOJ supplies subsequent arrest
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or disposition notification to a receiving entity, the entity,
at the same time, shall expeditiously furnish a copy of the
information to the person to whom it relates if the information
is the basis for an adverse employment, licensing, or
certification decision.
This bill states that nothing in the provisions of this bill
shall authorize the notification of a subsequent disposition
pertaining to a disposition that does not result in a
conviction, unless DOJ has previously received notification of
the arrest and has previously lawfully notified a receiving
entity of the pending status of that arrest.
This bill declares legislative intent that this act is not
intended to and does not overrule the decisions, orders, or
judgments in Central Valley v. Younger (1989) 214 Cal.App.3d
145, or the related case of Gresher v. Deukmejian (Alameda
Superior Court No. 524298-6), including the verification
provisions of the judgments in those cases. In addition,
nothing in this act shall be construed as an implied amendment
or lessen the protections provided in existing provisions of the
Labor Code.
This bill makes other technical, non-substantive changes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
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length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
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bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
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167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Under current law, employing and licensing entities in
California face a laborious process to find out the
disposition of a subsequent arrest of a person whom
they have already employed or licensed.
Assembly Bill (AB) 2343 has two intentions: provide
subsequent disposition information to California
regulatory entities and provide authority to
participate in the Federal Bureau of Investigation's
(FBI) subsequent notification service offering for
regulatory entities.
2. FBI Rapback
Under current law when Attorney General's Office does a state
and federal background check on a person, subsequent arrest
information is available for the state check but not the federal
check. The FBI is creating the Next Generation identification
Rapback process which will allow the DOJ to notify an employer
or licensing agency of a subsequent federal arrest. This bill
is the codification necessary to provide:
California with the opportunity to participate in the
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Federal Bureau of Investigations' (FBI) Next Generation
identification Rapback process. The Rapback process is
similar to the subsequent notice process detailed in
Penal Code section 11105.2. The Rapback process would
have the FBI retain the applicant's fingerprints in
order to provide notice of subsequent activity logged
at the federal level. With the Rapback process, a
federal level CORI search would remain fresh beyond the
date of the initial search. Currently, regulatory
purpose, federal level CORI searches are executed "in
the moment," and immediately thereafter become stale.
The FBI has not yet finalized the implementation plan,
cost or details surrounding the Rapback process, which
is scheduled to be available in 2014. (Attorney
General's letter in support)
3. Subsequent Arrest Disposition Information
Under existing law the Attorney General's Office may only
provide subsequent arrest information about a person who has
been background checked, however they do not have the authority
to provide the disposition to the arrest. The agency conducting
the background check must currently do the follow-up on any
subsequent arrest information to determine whether or not the
arrest will affect the employment of the individual. This bill
will allow the Attorney General's Office subsequent dispositions
and thus will reduce the investigative burden on entities
conducting the background check, and will help protect employees
by providing reliable information regarding the outcome of their
case. It should also help law enforcement by reducing the
number of contacts by other agencies to determine these
outcomes.
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