BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
2
4
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AB 2404 (Eggman) 4
As Amended April 29, 2014
Hearing date: June 10, 2014
Penal Code
MK:mc
CRIMINAL HISTORY INFORMATION
HISTORY
Source: Office of the Attorney General
Prior Legislation: None
Support: California District Attorneys Association
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE DEPARTMENT OF JUSTICE DISSEMINATE INFORMATION ON A
PERSON'S SEX OFFENDER STATUS WHEN THEY ARE DISSEMINATING BACKGROUND
INFORMATION IN SPECIFIED CIRCUMSTANCES?
PURPOSE
The purpose of this bill is to have the Department of Justice
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disseminate sex offender status information with background
check information under specified circumstances.
Existing law requires the Department of Justice (DOJ) to
maintain state summary criminal history information. Existing
law defines "state summary criminal history information" 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. Provides that 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 DOJ.
(Penal Code � 11105 (a).)
Existing law requires DOJ to disseminate the following
information whenever it furnishes state or federal summary
criminal history information as the result of an application by
an authorized entity for peace officer employment or
certification purposes: Every conviction rendered against the
applicant; every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated
or has been released on bail or on his or her own recognizance
pending trial; every arrest or detention, except for an arrest or
detention resulting in an exoneration, provided, however, that
where the records of the Department of Justice do not contain a
disposition for the arrest, the Department of Justice first makes
a genuine effort to determine the disposition of the arrest;
every successful diversion; and every date and agency name
associated with all retained peace officer or non-sworn law
enforcement agency employee pre-employment criminal offender
record information search requests. (Penal Code � 11105 (k).)
This bill would also require DOJ to disseminate the sex offender
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status of the applicant.
Existing law requires DOJ to disseminate the following
information whenever it furnishes state or federal summary
criminal history information as the result of an application by
a criminal justice agency, as defined, for criminal justice
employment, licensing or certification purposes: Every
conviction rendered against the applicant; every arrest for an
offense for which the applicant is presently awaiting trial,
whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial; every
arrest for an offense for which DOJ records do not contain a
disposition or did not result in a conviction, provided that DOJ
first makes a genuine effort to determine the disposition of the
arrest. However, information concerning an arrest shall not be
disclosed if DOJ records indicate or if the genuine effort
reveals that the subject was exonerated, successfully completed
a diversion or deferred entry of judgment program, or the arrest
was deemed a detention; every date and agency name associated
with all retained peace officer or non-sworn law enforcement
agency employee pre-employment criminal offender record
information search requests. (Penal Code � 11105(l).)
This bill would also require DOJ to disseminate the sex offender
status of the applicant.
Existing law requires DOJ to disseminate the following
information whenever it furnishes state or federal summary
criminal history information as the result of an application by
an authorized care facility, as described, for employment,
licensing or certification purposes: Every conviction of an
offense rendered against the applicant; every arrest for an
offense for which the applicant is presently awaiting trial,
whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial; and every
arrest for an offense for which the Department of Social
Services is required, as specified, to determine if an applicant
has been arrested. However, if DOJ records do not contain a
disposition for an arrest, DOJ shall first make a genuine effort
to determine the disposition of the arrest. (Penal Code �
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11105(m).)
This bill would also require DOJ to disseminate the sex offender
status of the applicant.
Existing law requires DOJ to disseminate the following
information whenever it furnishes state or federal summary
criminal history information as the result of an application by
an entity not otherwise defined as provided, or by a
transportation company, or as otherwise provided, for
employment, licensing or certification purposes: Every
conviction rendered against the applicant and every arrest for
an offense for which the applicant is presently awaiting trial,
whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial. (Penal
Code � 11105(p).)
This bill would also require DOJ to disseminate the sex offender
status of the applicant.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
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these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
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briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
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Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
The state performs fingerprint background checks for
various regulatory agencies when vetting prospective
volunteers, applicants, or licensees. There are some
situations when an applicant's status as a registered
sex offender is either unclear or simply not reported
at all.
Existing statutory authority, delineated under PC
11105, allows the DOJ to disseminate only arrest and
conviction information to regulatory agencies. This
requires those agencies to be well-versed in
interpreting Criminal Offender Record Information
(CORI) and to be aware of the convictions that require
the individual to register as a sex offender and those
that don't require registration. This information
would be very difficult to assess from the current CORI
dissemination criteria outlined in statute. Because
California's sex registration laws are very complex, it
is unrealistic to expect regulatory agencies to have a
full and adequate understanding of the law.
Additionally, there are approximately 15,000 registered
sex offenders in California whose registrable
conviction is for a non-California (federal, military,
out-of-state) sex offense. For example: an individual
who must register as a sex offender in California due
to an out-of-state conviction. If this individual
applies for a position in California that requires a
fingerprint background check, existing statute would
require the DOJ to release a state-level "no record"
response, as the offense did not occur within
California. The status of this individual as a current
registered sex offender would not be disseminated.
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2. Access to Criminal History Information
Access to summary criminal history information is prohibited
generally, unless otherwise authorized by law. "The state
constitutional right of privacy extends to protect defendants
from unauthorized disclosure of criminal history records.
[Citation.] These records are compiled without the consent of
the subjects and disseminated without their knowledge.
Therefore, ? custodians of the records, have a duty to 'resist
attempts at unauthorized disclosure and the person who is the
subject of the record is entitled to expect that his right will
be thus asserted.'" (Westbrook v. County of Los Angeles (1994)
27 Cal.App.4th 157, 165-66.)
In Central Valley Chapter of the 7th Step Foundation v. Younger,
(Alameda Superior Court No. 497394-6), and the related case,
Gresher v. Deukmejian, plaintiffs filed a lawsuit against DOJ,
its Bureau of Criminal Identification, and various officials
including the Attorney General challenging the policies of
disseminating summary criminal history information to nonexempt
agencies and organizations. The lower court granted in part and
denied in part plaintiffs' requests for declarative and
injunctive relief. Defendants and plaintiffs appealed.
The Court of Appeal found unlawful some of the challenged
policies. The court reasoned that the dissemination of arrest
record information impinges on the fundamental privacy rights of
Californians, thus such dissemination of information must serve
a compelling state interest. (Central Valley v. Younger, supra,
214 Cal.App.3d at p. 151.) The court concluded that
dissemination regarding arrests not resulting in convictions to
nonexempt employers and licensing agents for employment,
licensing, or certification purposes is not justified by a
compelling state interest. Furthermore, there is a substantial
governmental interest in ensuring that the record of an arrest
or detention is complete, therefore DOJ may not disseminate
incomplete information as to an arrest or detention without
first making a genuine attempt to determine if the arrestee
successfully completed diversion or was exonerated. (Id. at p.
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152.) The court also concluded that the exceptions provided in
Labor Code section 432.7 for those seeking employment as peace
officers and other classes of sensitive employment serve a
compelling state interest. ( Id.)
3. Dissemination of Sex Offender Registration Status
This bill permits the DOJ to disseminate sex offender
registration information when background check information is
sought for specified applicants. As noted in the author's
statement, this will be most relevant when a California only
background check is run and a person is required to register
based on an out-of-state conviction.
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