BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 2569 (Melendez) - Registered sex offenders ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 2, 2016 |Policy Vote: PUB. S. 4 - 3 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 8, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 2569 would provide that before certain intra-familial sex offenders who have been granted probation can be excluded from public disclosure on the Megan's Law website, (1) the defendant must have served probation for at least one year, and, (2) the local victim-witness assistance center (VWAC) is required to speak to the victim and make a determination, to be submitted to the Department of Justice (DOJ) within 60 days, of whether granting an exemption would be in the best interest of the victim. Fiscal Impact: California Sex and Arson Registry (CSAR) : Potential costs of $280,000 in FY 2016-17, $450,000 in FY 2017-18, and $450,000 in FY 2018-19 (General Fund) to the DOJ for necessary programming and system modifications to the CSAR database, validation clocks, and graphical user interface. DOJ workload : Potential increase in costs (General Fund) to the Appeals, Writs, and Trials (AWT) Unit of the Criminal Law Division of the DOJ to address the potential increase in AB 2569 (Melendez) Page 1 of ? workload generated from a greater number of sex offender applications for disclosure exclusions being denied, and a potential increase in workload to rescind exclusions that were previously granted under prior provisions of law (those applications approved that had not served a full year of probation prior to the granting of the exclusion). While the projected number of applicants impacted prospectively is estimated to be minor, the number of offenders already granted exclusions that may be impacted is unknown. Victim-witness assistance centers (VWACs) : Potentially significant one-time and ongoing increase in costs (Special Fund*/Federal Fund/other state/private funds) to local VWACs to establish the new process, locate and meet with victims once contacted by the DOJ, and make determinations within 60 days of DOJ contact on the best interests of victims. In the absence of additional funding, the mandate to establish and implement this process could potentially result in the redirection of funds to support direct services that otherwise would be provided to victims of crimes including domestic violence, sexual assault, and human trafficking. Although the receipt of state funding by a VWAC is permissive, in the absence of clarifying language, the provisions of this bill may create a reimbursable state mandate on county VWACs to provide a higher level of service, potentially requiring reimbursement by the state (General Fund). *Victim-Witness Assistance (VWA) Fund - staff notes the VWA Fund is insolvent, with a projected FY 2016-17 year-end balance of $49,000. In order to address the VWA Fund's operating shortfall, one of the state's short-term solutions has been to shift costs to other state funds such as the Restitution Fund. Background: Existing law generally requires persons convicted of specified sex offenses to register with law enforcement where they reside for the rest of their lives, as specified. (Penal Code (PC) § 290 et seq.) Under existing law, the Department of Justice (DOJ) is required to make available specified information about registered sex offenders via an internet website, which is more commonly known as the Megan's Law website. (PC § 290.46.) Existing law authorizes an offender who has been convicted of specified offenses to file an application with the DOJ for exclusion from disclosure on the internet website, but provides that exclusion from the website does not relieve the offender AB 2569 (Melendez) Page 2 of ? from the duty to register as a sex offender or other applicable provisions of law. Existing law additionally authorizes an exclusion from disclosure on the Megan's Law website after application by an offender for certain intra-familial crimes, as follows: The offender was the victim's parent, stepparent, sibling, or grandparent, the crime did not involve specified acts, and the offender successfully completed probation, as clearly demonstrated by a certified copy of an official document, as specified; or The offender was the victim's parent, stepparent, sibling, or grandparent, the crime did not involve specified acts, and the offender is on probation at the time of his or her application, as clearly demonstrated by a certified copy of official documents, as specified. (PC 290.46(e)(2)(D).) This bill seeks to impose additional requirements to be met prior to an application being granted by the DOJ for exclusion from disclosure on the Megan's Law website for specified intra-familial sex offenders. Proposed Law: This bill would provide for the following requirements to be met before certain intra-familial sex offenders who have been granted probation can be excluded from public disclosure on the Megan's Law website: For an offender who is on probation at the time of his or her application, the defendant must have served probation for at least one year prior to the granting of his or her application. Prior to granting an application for an offender who has completed probation or is currently serving probation, requires a local victim-witness assistance center (VWAC) to AB 2569 (Melendez) Page 3 of ? speak to the victim and make a determination, to be submitted to the Department of Justice (DOJ) within 60 days of being contacted by the DOJ, of whether granting an exemption would be in the best interest of the victim. o Provides that if the victim cannot be located by the VWAC, declines to speak with a representative of the VWAC, or if the VWAC does not otherwise speak with the victim and submit its determination within 60 days of being contacted by the DOJ, the DOJ shall grant the exclusion if all other requirements are otherwise met. o Provides that if the application for exclusion is denied due the VWAC process, the application may not be reconsidered until after three months from the denial. o Provides that notwithstanding the existing provision of law that provides for the rescission of an exclusion granted under prior law, an exclusion application already granted prior to the effective date of this measure shall not be subject to rescission pursuant to the clause establishing the VWAC determination process. Related Legislation: AB 1844 (Fletcher) Chapter 219/2010 enacted "Chelsea's Law," which increased penalties for forcible sex acts against minors, created a penalty of life without the possibility of parole for specified sex acts against minors, created safe zones around parks, and mandated lifetime parole for specified sex offenses. AB 1323 (Vargas) Chapter 722/2005 updated provisions of "Megan's Law" in order to conform to provisions requiring the DOJ to post sex offender registration information on the internet. AB 1323 modified provisions of law that allow specified registered sex offenders who have successfully completed probation to apply AB 2569 (Melendez) Page 4 of ? for, and be granted, exclusion from the DOJ Megan's Law website in specified instances of intra-familial sexual abuse and added a provision that specified sex offenders who are currently on probation may apply for exclusion provided the offender submit to the DOJ a certified copy of specified documents. AB 488 (Parra) Chapter 745/2004 required the DOJ, on or before July 1, 2005, to make specified information about certain sex offenders available to the public via the internet website and to update that information on an ongoing basis, which would include the home address of specified offenders. Staff Comments: The DOJ has indicated one-time costs of $280,000 in FY 2016-17, $450,000 in FY 2017-18, and $450,000 in FY 2018-19 for necessary programming and system modifications to the CSAR database, validation clocks, and graphical user interface. The costs would be paid from the General Fund. The DOJ will also potentially incur an increase in workload due to a greater number of sex offender applications for exclusion from disclosure being denied due to the VWAC determination process, and the potential requirement to rescind exclusions previously granted under prior provisions of law that did not at that time require a minimum of one full year of probation to be served prior to the granting of an application for exclusion. Although the bill specifies no exclusions already granted will be rescinded due to the new provision of law requiring a VWAC to speak with the victim to determine whether granting an exemption would be in the best interests of the victim, a similar provision is not provided for the new requirement that imposes a minimum of one year served of probation for an offender who is on probation at the time of his or her application. As a result all exclusions granted to date for offenders who were on probation at the time of their application but who had not been on probation for at least one year could potentially have their exclusions rescinded. The number of prospective applicants is projected to be minor (less than 50 annually, based on an annual applicant caseload of about 500 offenders), however, the number AB 2569 (Melendez) Page 5 of ? of offenders that have been granted an exclusion to date that may be impacted by this measure is unknown but could be significant. This bill imposes new activities on local VWACs, potentially resulting in significant one-time and ongoing costs to establish the new process, conduct training, locate and meet with victims once contacted by the DOJ, and make determinations within 60 days of DOJ contact on the best interests of victims. VWACs are supported by numerous funds sources including the Victim-Witness Assistance (VWA) Fund, Federal Funds, and other state, local, and private funds. Staff notes the VWA Fund is insolvent, with a projected year-end reserve balance of only $49,000. In the absence of adequate funding from alternative fund sources such as federal VOCA Funds or other local or private funds, the mandate to establish and implement this process could potentially result in the redirection of existing funds available to support direct services that otherwise would be provided to victims of crimes including domestic violence, sexual assault, and human trafficking. Although the receipt of state funding by a VWAC is permissive, and it appears the establishment of a VWAC is optional, in the absence of clarifying language, the provisions of this bill may create a reimbursable state mandate on county VWACs to provide a higher level of service, potentially requirement reimbursement by the state (General Fund). Recommended Amendments: 1. To address the potential increase in workload to the DOJ associated with the possible rescission of exclusions granted for offenders on probation at the time of their applications but who had not served a minimum of one year, the author may wish to consider an amendment as follows: On page 7, in line 39, after (ii) insert "(I)". On page 8, between lines 10 and 11, insert the following: AB 2569 (Melendez) Page 6 of ? (II) Notwithstanding paragraph (3), an exclusion application already granted prior to the effective date of this measure that modifies this clause shall not be subject to rescission pursuant to this clause. 2. Staff also recommends the following technical amendment: On page 8, in line 39, strike "recision" and insert "rescission". 3. To avoid the creation of a potential reimbursable state mandate, the author may wish to consider an amendment to clarify that the operation of a local VWAC is permissive. On page 8, after line 39, insert: (V) Nothing in this clause is intended to require a local agency to operate a local assistance center for victims and witnesses. -- END --