PRODUCT OF: THE CALIFORNIA STATE SENATE GOPHER SERVICE BILL ANALYSIS SENATE COMMITTEE ON CRIMINAL PROCEDURE Senator Milton Marks, Chair S 1995-96 Regular Session B 2 9 SB 295 (Peace) 5 As amended March 13, 1995 ? Hearing date: April 4, 1995 Health and Safety and Penal Codes ALA:ll REGISTERED SEX OFFENDERS: COMMUNITY CARE FACILITIES HISTORY Source: Author Prior Legislation: None Support: Numerous individuals Opposition: California Attorneys for Criminal Justice ? ? KEY ISSUE SHOULD COMMUNITY CARE FACILITIES BE REQUIRED TO DISCLOSE TO ANY INQUIRING PARTY WHETHER A CLIENT OF THE FACILITY IS A REGISTERED SEX OFFENDER? PURPOSE Current law requires that any person convicted of enumerated (More) SB 295 (Peace) Page 2 sex offenses must register with law enforcement officials in the city, county or city and county where they are domiciled, and with the chief of police on any University of California or California state University where he or she is domiciled. (Penal Code sec. 290.) Current law prohibits individuals who have been convicted of specified sex crimes to reside in a community care facility within one mile of an elementary school. (Health and Safety Code sec. 1564.) Current law further provides that, for any community care facility located within one mile of an elementary school, either the placement agency or the facility must obtain from each client a signed statement that he or she has never been convicted of a sex offense against a minor. (Id.) Current law permits the release of the criminal history of a person to a number of individuals, including any city, county or district officer for employment, licensing or certification purposes under specified circumstances or for screening prospective concessionaires. (Penal Code sec. 11105 et. seq.) Current law also permits human resource agencies or employers to access specified sex crime convictions of any person who applies for a license, employment or volunteer position with supervisory powers over minors. (Penal Code sec. 11105.3.) Banks and credit unions have access to specified criminal records of their employees. (Financial Code sec. 777.5.) Current law also requires day care facilities and child care providers to get the criminal convictions of all persons who have access to the children or reside in the facility. (Health and Safety Code secs. 1596.871; 1597.54; 1597.81.) License-exempt child care providers can initiate a background check through the Department of Justice (oDOJo) for purposes of being added to the statewide trustline registry. Under existing law county, city or special park districts are not permitted to hire anyone for a position with supervisory or disciplinary authority over minors if they have been (More) SB 295 (Peace) Page 3 convicted of specified sex offenses. (Public Resource Code sec. 5164.) Existing law also requires public school districts and private schools to conduct criminal record checks of their teachers and administrators (Penal Code sec. 11145; Education Code secs. 33190 and 44341). Commencing in July of 1995, DOJ will be required to operate a o900o telephone number which members of the public may call to access the list of registered sex offenders, as specified. (Penal Code sec. 290.4.) This bill would require registered sex offenders to disclose this status to the operator of a community care facility upon becoming a client of the facility. This bill also would require specified community care facility operators that accept a registered sex offender as a client to disclose this status and the name of the registered sex offender to oany person who inquires whether any client of the facility is a registered sex offender.o The purpose of this bill is to enable and authorize the disclosure of a registered sex offender residing in a community care facility to any inquiring party. COMMENTS 1. Stated Need for This Bill. The author states that this bill oseeks to make it possible for neighbors to adult residential care facilities to find out if one of the clients to such facility is a registered sex offender.o 2. How This Bill Would Change Current Law. As noted in the Purpose section above, registered sex (More) SB 295 (Peace) Page 4 offenders already must disclose their status to community care facilities located within one mile of an elementary school, and are prohibited from residing in such facilities. (Health and Safety Code sec. 1564.) Beginning in July of this year, members of the public will be able to call a o900o number operated by DOJ to inquire about registered sex offenders. (Penal Code sec. 290.4.) Callers must furnish their full name, and must include: (A) an exact street address, social security number, California driveros license or identification number or birth date along with additional information that may include any of the following: name, hair color, eye color, height, weight, distinctive markings, ethnicity; or (B) any combination of at least six of the above listed characteristics if an exact birth date or address is not available. If three of the characteristics provided include ethnicity, hair color, and eye color, a seventh identifying characteristic shall be provided. (Id.) DOJ cannot disclose the address or criminal history of a registered person except to describe the specific crimes for which registration was required. The o900o number must include a warning that it is illegal to use information obtained through the o900o number to commit a crime against any registrant or to engage in illegal discrimination or harassment against any registrant,o and that the caller oshould have a reasonable suspicion that a child is at risk.o (Id.) Information disclosed by the o900o number and used to commit a felony is subject to a 5-year penalty enhancement; for a misdemeanor, the penalty is a fine between $500 and $1000. This bill would require community care facility operators to disclose to any inquiring party the name of any resident who is a registered sex offender. The facilities this requirement would apply to include group homes, which care for minors; adult residential facilities; foster homes; small (More) SB 295 (Peace) Page 5 family homes; and adult day care facilities. Because this bill would disclose, in effect, both the name and the address of a registered sex offender without a requesting party having to identify any information about a particular person or have any basis for suspecting that a person poses a risk to a child, its scope is broader than the o900o statute, which prohibits DOJ from disclosing a registrantos address. With respect to targeted population, the bill is more limited than the o900o statute in that it specified community care facilities. This bill also does not include the wrongful use penalty provisions contained in the o900o statute. 3. Constitutionality. An ex post facto law is a retrospective criminal statute that applies to crimes committed before its enactment, and substantially injures the accused by punishing an act innocent when done or increasing the punishment or taking away a defense. Ex post facto laws are prohibited both by the federal Constitution (Art. I, secs. 9, 10) and the California Constitution (Art. I, sec. 9). A United States District Court in New Jersey recently found that certain public notification requirements in a New Jersey sex offender statute constituted unconstitutional ex post facto laws. In Artway v. Attorney General of New Jersey (1995 U.S. Dist. LEXIS 2403), the court found unconstitutional certain provisions of oMeganos Law,o named after a brutally murdered young girl, which required prosecutors to notify schools, licensed day care centers, summer camps and others of moderate-risk offenders and, for high-risk offenders, to notify members of the public olikely to encounter the registrant.o (Id. at 7, 92.) Mindful of the opotential for hysteria inherent in any castigation by a community of one of its members,o (Id. at 74) the court quoted both from Nathaniel Hawthorneos The Scarlet Letter, in which a woman who had committed adultery (More) SB 295 (Peace) Page 6 was forced to wear an oAo on her clothing, and from Harper Leeos To Kill a Mockingbird (oInside the house lived a malevolent phantom.o [speaking of oBooo Radley].) The court concluded some of the notification provisions of Meganos Law, oin relation to the purpose of facilitating effective law enforcement, . . . (are) an excessive intrusion into the realm of punishment sufficient to lend credence to a finding that its effect, if not its purpose, is punitive. . . . This court is satisfied that the public notification provisions of Meganos Law constitute more a form of punishment than a regulatory scheme and is an unconstitutional violation of the United States Constitution in its retroactive application.o (Id. at 91.) The penalty question raised by this bill is that its limitless public notification provisions -- anyone, without limitation, could ask any community care facility to disclose the name of any resident who is a registered sex offender -- may expose registered sex offenders to a perpetual public animus -- regardless of their post-conviction conduct -- sufficient to constitute punishment. (More) SB 295 (Peace) Page 7 WOULD THE DISCLOSURE PROPOSED BY THIS BILL BE UNCONSTITUTIONAL IN ITS RETROACTIVE APPLICATION? IF THIS MEASURE IS CONSTITUTIONAL, WOULD THE BENEFIT OF PROVIDING THE DISCLOSURE OF REGISTERED SEX OFFENDERS PROPOSED BY THIS BILL OUTWEIGH THE RISK OF HARM FROM SUCH DISCLOSURES? WOULD THIS BILL CAUSE, IN EFFECT, A SIGNIFICANT SOCIAL OSTRACISM OF REGISTERED SEX OFFENDERS, REGARDLESS OF THEIR CONDUCT? 4. Operatorso Responsibilities. This bill would require community care facility operators to receive and compile information concerning a clientos status as a sex offender. Under current law, these facilities conceivably can have registered sex offenders as clients, although it apparently is unknown how many registered sex offenders actually reside in such facilities. Facility operators also may know of certain sex crimes committed by residents to the extent these crimes relate to the basis for a placement; for example, if a minor is placed in a group home because he has been adjudicated to be delinquent by reason of the commission of a sex crime, the group home operator will know of that crime. Under this bill, operators would have an affirmative duty to disclose registered sex offender status to any inquiring party. This duty potentially could expose operators to liability for wrongful disclosure and wrongful nondisclosure of information derived solely from clients. It is unclear whether the author intends for operators to be exposed to civil liability and licensing consequences for allegedly wrongful acts committed under the provisions of this bill. The author may wish to consider amending this bill to clarify this issue. 5. Consequences of This Bill. (More) SB 295 (Peace) Page 8 One opponent warns that the disclosure of registered sex offenders proposed by this bill could lead to harassment and vigilantism. Because anyone could discover an individualos sex offender status, regardless of that personos conduct in the facility or a neighborhood, unlawful conduct, in forms ranging from disruption of the peace to acts of violence, could occur as a result of this bill. For example, in January of this year Associated Press reported that two men in New Jersey broke into a home and beat a man they believed -- in error -- to be a registered sex offender. The crime was linked to New Jerseyos oMeganos Law,o discussed in Comment 3 above. (More) Supporters of the bill argue its provisions would give members of the public information they need to protect their families and children. One supporter states that, with a community care facility across the street from her home and next door to a day care facility for children, she fears that stares from patients at the facility directed towards children omay lead to an abduction, a molestation, or even a murder.o She adds that it owould be a great comforto to learn that none of the residents are sex offenders. Without knowing statistically how many registered sex offenders actually reside in or attend the facilities targeted by this bill, it is impossible to know if there is a greater, lesser or equal likelihood that a registered sex offender might be in one of these facilities rather than in a non-institutional neighborhood home. Thus, it is difficult to measure the efficacy of targeting the clients of these facilities for the heightened scrutiny proposed by this bill. WOULD THE DISCLOSURE PROPOSED BY THIS BILL ENHANCE A NEIGHBORHOODoS ABILITY TO PROTECT ITSELF FROM SEXUAL PREDATORS? WOULD THIS BILL RESULT IN UNLAWFUL ACTS SUCH AS HARASSMENT AND oVIGILANTISMo? *************** (More) (Problems/Comments mail to: Gopher.Admin@SEN.CA.GOV) .