BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
1
3
0
SB 1307 (Cannella) 7
As Amended April 11, 2012
Hearing date: April 24, 2012
Penal Code
JM:mc
GANGS: REGISTRATION
HISTORY
Source: Author
Prior Legislation: None Directly on Point
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD THE DEPARTMENT OF JUSTICE BE DIRECTED TO ESTABLISH AND
MAINTAIN A REGISTRY OF PERSONS CONVICTED OF GANG OFFENSES AND SHOULD
THE REGISTRY BE ORGANIZED BY COUNTY OF CONVICTION?
PURPOSE
The purposes of this bill are to 1) require the Department of
Justice, no later than July 30, 2013, to establish and maintain
a California Criminal Gang Register, which shall be available
through the California Law Enforcement Telecommunications System
(More)
SB 1307 (Cannella)
PageB
(CLETS) to law enforcement agencies and authorized personnel;
and 2) provide that the register shall include the following: a)
the name, birth date, conviction date, and, if applicable,
prison identification number of every person convicted of a gang
offense; and b) a breakdown of this data by county of
conviction.
This bill directs the Department of Justice to establish and
maintain a register of persons convicted of gang offenses, as
follows:
The register shall be made available to law enforcement
agencies and authorized personnel through the California
Law Enforcement Telecommunications System (CLETS).
Each person included in the register shall be identified
by the following:
o Name, date of birth;
o Date of each conviction; and
o Prison identification number, if applicable.
The persons included in the register shall be organized
by county of conviction.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
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,
(More)
SB 1307 (Cannella)
PageC
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.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 1307 will provide that the California Department of
Justice shall establish and maintain a Criminal Gang
Register accessible within the existing criminal
history database. This bill seeks to take existing
information regarding gang related convictions and
break the information up on a per county basis. The
point of this bill is to serve as a tool to local law
enforcement at a time when there is an additional
burden to house, parole and track felons. DOJ had
(More)
SB 1307 (Cannella)
PageD
previously stated that they should be able to provide
the information on a by county basis within their
current budget.
While California has enjoyed some success in
containing crime in recent years, gangs remain a
persistent problem. Gangs do not recognize municipal
or even international borders. This bill creates a
simple statewide gang registry which will better
enable local law enforcement to keep track of
convicted gang members within both immediate and
surrounding jurisdictions.
SB 1307 will not create any new crimes or add any
additional regulations or requirements.
2. Existing CalGang Database of Gang Information
CalGang<1> is a database funded by the state and maintained by
local law enforcement. CalGang includes information beyond
conviction records, including validated photographs. CalGang
access is limited to trained law enforcement officers and
support staff. The information can be accessed for specified,
relevant purposes. CalGang is subject to oversight and
evaluation. The Policies and Procedures Manual states that
information on CalGang is not meant to be the basis of an
official action, but as a source of information that must be
investigated. A subject cannot be entered into CalGangs unless
two gang profile criteria have been established, such as an
admission of gang membership and a conviction for a gang related
crime. Material from CalGang should be printed only upon a
showing of compelling need. Perhaps most important, a records
of a person in CalGang shall be purged if the record has not
been modified with new criteria in the past five years.
(CalGang Policies and Procedures, Sept. 2007.)<2>
---------------------------
<1> http://oag.ca.gov/calgang
<2>
http://oag.ca.gov/sites/all/files/pdfs/calgang/policy_procedure.p
df?
(More)
SB 1307 (Cannella)
PageE
(More)
Nevertheless, CalGang has been criticized as being inaccurate
and subject to abuse. CalGang critics have included Connie
Rice, of the Advancement Project in Los Angeles. Advancement
was hired by Los Angeles for the City Council to do a
comprehensive study of gang programs in that city.<3> Rice's
Advancement study was endorsed by Sheriff Baca and former Police
Chief Bratton.<4>
3. Database Based on Conviction of Crime Listed in the Gang
Statutes
The database that would be created pursuant to this bill would
include any person convicted of a crime listed in Penal Code
Section 186.22. Section 186.22 includes an alternate
felony-misdemeanor for "active participation" in a gang and
enhancements or special sentences imposed on any defendant who
commits a crime in connection with or for the benefit of a gang.
Being a gang member is not a crime and is not an element of a
gang offense. The prosecution is required to prove that gang
members have committed specified crimes, but often these "gang
predicate" crimes were convicted by persons other than the
defendant.
To receive a gang sentence under Section 186.22, one need not be
a member of a gang. One could be convicted of a gang related
offense without being engaged in substantial gang activity. One
need only have committed a single crime with gang members. The
fact of a conviction would not provide information about the
person's gang affiliation, if any, and associates. As such, the
information in the database could be of very little use to law
enforcement. The database could be unfair to a person with very
little connection to gangs, except a single crime committed with
gang members.
Unlike the CalGang database, no training or qualifications would
be required for access to the information in the database
---------------------------
<3> http://www.npr.org/templates/story/story.php?storyId=1147872
<4>
http://www.advanceproj.com/index.php?q=/c/resource/sc/up_call_to_
action
(More)
SB 1307 (Cannella)
PageG
created pursuant to this bill. It is unclear for what purpose
law enforcement officers would use the database. If the purpose
of the information is to inform an officer who makes a stop of a
suspect that the suspect has been convicted of a gang-related
offense, the suspect's prior convictions are included in CLETS
information now. If the purpose of the information is research
and investigation apart from a detention or arrest, more
complete information would be available in CalGang or the gang
information and information kept by local law enforcement
agencies. (See Comment # 3, below.)
Also, unlike the CalGang database, there is no procedure for
removing a person from the gang database in this bill. Gang
researchers have concluded that most gang members age out of
gang activity quite quickly, with gang participation highest at
ages 14 and 15. (Klein and Maxson, Street Gang Patterns and
Polices, Oxford Univ. Press, 2006, pp, 42-46.) Klein and Maxson
also reviewed numerous studies and concluded that youth who join
gangs leave after about a year. (Id, at pp. 153-154.) Perhaps
amendments should be considered that would require purging of
records if no new conviction is entered within five years' time.
AS A PERSON CAN BE CONVICTED OF A GANG-RELATED OFFENSE WITHOUT
BEING A GANG MEMBER, OR WITHOUT HAVING ANY SIGNIFICANT
CONNECTIONS TO A GANG, WOULD A DATABASE SIMPLY LISTING
CONVICTIONS PROVIDE MUCH VALUABLE INFORMATION ABOUT A PERSON
LISTED IN THE DATABASE?
HOW WOULD LAW ENFORCEMENT ACTUALLY USE THE DATABASE, AS MORE
DETAILED, ORGANIZED AND RELEVANT INFORMATION WOULD BE FOUND IN
THE CALGANG DATABASE OR THE DATA HELD BY LOCAL AGENCIES?
SHOULD RECORDS IN THE GANG DATABASE CREATED PURSUANT TO THIS
BILL BE PURGED WITHIN A SET PERIOD OF TIME?
4. Gang Information Assembled and Maintained by Local Agencies
Many jurisdictions collect and maintain extensive data and other
information - photographs, interview cards for example - about
gangs in the area. Attorneys familiar with practice in Los
SB 1307 (Cannella)
PageH
Angeles note that the law enforcement agencies employ gang
intelligence officers who collect information in the community
about gang members and gang activity.<5> The information is
organized and made available for investigations and for
testimony to establish gang allegations at trial. This
information would be much more extensive and commonly used than
the database created pursuant to this bill.
***************
---------------------------
<5> http://www.lapdonline.org/assets/pdf/GED.pdf;
http://www.lapdonline.org/special_operations_support_division/conten
t_basic_view/1013