PEOPLE v. MOSLEY

Appellant’s Request for Judicial Notice

Cal.January 18, 2012

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) No. $187965 ) V. ) ) STEVEN LLOYD MOSLEY, ) ) Defendant and Appellant. ) ) COPIES OF DOCUMENTS OF WHICH APPELLANT HAS ASKED THE COURT TO TAKE JUDICIAL NOTICE Fourth Appellate District, Division Three, No. G038379 Orange County Superior Court No. 0O5NF4105 Honorable David Hoffer, Judge GEORGE L. SCHRAER Attorney at Law 5173 Waring Road, #247 San Diego, California 92120 Telephone: (619) 582-6047 State Bar Number 51520 Attorney for Appellant SUPREME CQURT FILED JAN 18 2012 Frederick K, Ohirich Clork oigey TABLE OF CONTENTS Document | — the December 2008 publication by the California Sex Offender Management Board (CASOMB)entitled HomelessnessAmongRegisteredSex Offenders in California: The Numbers, the Risks and the Response Document2 — the January 2010 publication of the CASOMB entitled Report and Recommendations Document 3 — the August 2011 publication of the CASOMB entitled Homelessness Among California Registered Sex Offenders, An Update Document4 — the February 18, 2011, Statement ofDecision by the San Diego County Superior Court in Jn re Briley, et al., HC 19612 Document 1] The December 2008 publication by the California Sex Offender Management Board (CASOMB)entitled Homelessness Among Registered Sex Offenders in California: The Numbers, the Risks and the Response GEORGE L. SCHRAER aupRENE COURT Attorney at Law F \ L. E D 5173 Waring Road, #247 San Diego, CA 92120 Telephone: (619) 582-6047 jpN 18 202 State Bar No. 51520 Attorney for Appellant FreRO . —“Beputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, No. $187965 ) ) ) ) Vv. ) (Orange County ) Superior Court No. O5NF4105) ) ) ) ) STEVEN LLOYD MOSLEY, Defendant and Appellant. MOTION TO TAKE JUDICIAL NOTICE Appellant Steven Lloyd Mosley hereby asks the Court to take judicial notice of four documents pursuant to Evidence Code sections 452 and 459 and rule 8.252 of the California Rules of Court. The four documents are: (1) the December 2008 publication by the California Sex Offender Management Board (CASOMB) entitled Homelessness Among Registered Sex Offenders in California: The Numbers, the Risks and the Response; (2) the January 2010 publication of the CASOMB entitled Report and Recommendations; (3) the August 2011 publication of the CASOMB entitled Homelessness Among California Registered Sex Offenders, An Update; and (4) the February 18, 2011, Statement of Decision by the San Diego County Superior Court in In re Briley, et al., HC 19612. The briefs of the parties and amici make reference to and quote from these four documents. (See, e.g., (1) the references to document 1 in Respondent’s Opening Brief on the Merits at p. 24, Appellant’s Answer Brief on the Merits at pp. 24-25, 34-35, and Respondent’s Reply Brief on the Merits at p. 25; (2) references to document 2 in Respondent’s Opening Brief on the Merits at pp. 23- 24, Appellant’s Answer Brief on the Merits at pp. 23-25, and Respondent’s Reply Brief on the Merits at p. 25; (3) the references to document 3 in Respondent’s Reply Brief on the Merits at p. 25, Amicus Curiae Brief of CACJ at p. 19, and Amicus Curiae Brief of CCOSO and ATSA at pp. 7, 15; and (4) the references to document 4 in the Amicus Curiae Brief of CACJ at pp. 11-14.) For the convenience of the Court, concurrently with the filing of this motion appellant is lodging with the Court copies of the four documents and a proposed order. This case involves the interpretation and effect of Jessica’s Law and the constitutional requirements for its application to “discretionary” sex offender registrants under Penal Code section 290.006. The four documents are relevant to this appeal because they contain data showing the effects of Jessica’s Law on registrants, which, in turn, is relevant to whether Jessica’s Law is punitive and therefore subject to the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466. Appellant did not ask the trial court to take judicial notice of the documents, and the documents do not relate to proceedings 2 occurring after the judgment that is the subject to this appeal. The matters to be noticed are not in the record, which is why appellant is filing copies concurrently with this motion. Evidence Code section 459, subdivision (a) provides, in relevant part: “The reviewing court may take judicial notice of any matter specified in Section 452.” CASOMB, which is the agency chat prepared documents 1-3, is a state agency created in 2006 by AB 1015. Its mission is to provide the Governor and Legislature with and assessment of current sex offender management practices. Its reports are official acts of the executive and legislative departments of California and may be judicially noticed pursuant to section 452, subdivision (c). Indeed, this Court made reference to document 1 in In re E.J. (2010) 47 Cal.4th 1258, 1281-1282. Document 4 is an official record of a court of this state and may be judicially notice pursuant to section 452, subdivision (d) (1). Because all four documents are relevant and statutorily subject to judicial notice, appellant respectfully asks the Court to take judicial notice of them. DATED: January 11, 2012 Respectfully submitted LIONA. GEORGE L. SCHRAER Attorney for Appellant PROOF OF SERVICE I, George L. Schraer, declare under penalty of perjury that I am a member of the State Bar of California and not a party to this cause. My business address is 5173 Waring Road, #247, San Diego, California 92120. On January 11, 2012, I served the attached MOTION TO TAKE JUDICIAL NOTICE; PROPOSED ORDER by placing true and correct copies in envelopes addressed to Attorney General State of California P. O. Box 85266 San Diego, CA 92186-5266 and by sealing the envelopes and depositing them, with first class postage fully prepaid, in the United States mail at San Diego, California. wa “GEORGE! L. SCHRAER CALIFORNIA SEX OFFENDER MANAGEMENT BOARD HOMELESSNESS AMONG REGISTERED SEX OFFENDERS IN CALIFORNIA: THE NUMBERS, THE RISKS AND THE RESPONSE DECEMBER 2008 MEMBERS OF THE CALIFORNIA SEX OFFENDER MANAGEMENT BOARD SUZANNE BROWN-MCBRIDE CASOMB CHAIR EXECUTIVE DIRECTOR CALIFORNIA COALITION AGAINST SEXUAL ASSAULT GERRY D. BLASINGAME, MA LICENSED MARRIAGE AND FAMILY THERAPIST CALIFORNIA COALITION ON SEXUAL OFFENDING THE HONORABLE PETER ESPINOZA JUDGE Los ANGELES COUNTY SUPERIOR COURT MICHAEL D. JOHNSON COUNTY ADMINISTRATOR SOLANO COUNTY SOPHIA MCBETH-CHILDS DETECTIVE SACRAMENTO COUNTY SHERIFF’S DEPARTMENT ROBERT AMBROSELLI DEPUTY DIRECTOR DIVISION OF ADULT PAROLE OPERATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION APPOINTMENT PENDING UNDERSECRETARY, OPERATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION ANGELA THOMPSON PROBATION OFFICER Los ANGELES COUNTY PROBATION TOM TOBIN, PH.D. CASOMB VICE-CHAIR CALIFORNIA COALITION ON SEXUAL OFFENDING SHARPER FUTURE CATHERINE M. DUGGAN DIRECTOR CRIME VicTtIMsS' ASSISTANCE PROGRAM VENTURA COUNTY DISTRICT ATTORNEY'S OFFICE DAVID R. GERARD CHIEF, SEX OFFENDER COMMITMENT PROGRAM CALIFORNIA DEPARTMENT OF MENTAL HEALTH JANET NEELEY DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL PAMELA KING SAN BERNARDINO PUBLIC DEFENDER’S OFFICE CRIMINAL DEFENSE ATTORNEYS NANCY O’MALLEY CHIEF ASSISTANT DISTRICT ATTORNEY ALAMEDA COUNTY JERRY POWERS CHIEF PROBATION OFFICER STANISLAUS COUNTY DIANE WEBB DETECTIVE SEX OFFENDER PROGRAM COORDINATOR Los ANGELES PoLic&e DEPARTMENT RESEARCHERS PRINCIPAL INVESTIGATOR RUSSELL LOVING,J.D. ASSOCIATE INVESTIGATORS JENNIE K. SINGER, PH.D. MARY MAGUIRE, PH.D. DIVISION OF CRIMINAL JUSTICE CALIFORNIA STATE UNIVERSITY, SACRAMENTO THE CALIFORNIA SEX OFFENDER MANAGEMENT BOARD In 2006, the California Sex Offender Management Board (CASOMB)wascreated when Assembly Bill (AB) 1015 was passed by the California State Legislature and signed by Governor Arnold Schwarzenegger. CASOMBis comprised of 17 appointed membersrepresenting various agenciesthatplaya critical role in sex offender management. Five of the appointees comefrom state agencies, eight from local government (county orcity) and four from the non-government sector. Under AB 1015, CASOMBhasbeen chargedwith providing the Governor and the California State Legislature with an assessmentof current sex offender managementpractices, a progress report on the Board’s workand final report with recommendations. To accomplish these tasks, CASOMB meets monthly as a full Board and has broken up into Committees that meet during the interim period between Board meetings. The work by CASOMBconnects withits mission and vision. Vision The vision of the CASOMEBis to decrease sexual victimization and increase community safety. Mission This vision will be accomplished by addressing issues, concerns, and problemsrelated to community managementof adult sexual offenders by identifying and developing recommendations to improvepolicies and practices. CASOMB'srole in state governmentis to make recommendations,using evidence based practices as examples, to those who do havethe authority to set policies and determinepractices for the systems that manage sex offenders. CASOMEBalso servesas a resourcefor state legislators and other policymakers. WANT MOREINFORMATION? Monthly CASOMBmeetings are open to the public and time is made available for public comment. CASOMB’s website (www.casomb.org) is the best source for meeting dates, agendas, minutes, and other resourcesincluding Board publications as well as national research. TABLE OF CONTENTS PART I PARTIl PARTIli PART IV APPENDIX A: APPENDIX B: APPENDIX C: EXECUTIVE SUMMARY OVERVIEW AND OUTLINE OF CONTENTS SINCE THE IMPLEMENTAION OF RESIDENCY RESTRICTIONS, THE NUMBER OF SEX OFFENDERS REGISTERING AS TRANSIENT HAS SIGNIFICANTLY INCREASED. HOMELESSNESS INCREASES THE RISK THAT SOMEONE WHO HAS OFFENDED SEXUALLY MAY COMMIT ANOTHER SEX CRIME. THE RESPONSE TO HOMELESSNESS AMONG SEX OFFENDERS REQUIRES A CREATIVE AND COLLABORATIVE EFFORT TO CREATE STABLE AND SUITABLE HOUSING. CONCLUSIONS REFERENCES CALIFORNIA TRANSIENT SEX OFFENDER DISTRIBUTION BY COUNTY LOCAL ORDINANCES REGULATING RESIDENCE AND PRESENCE OF SEX OFFENDERS RESIDENCE RESTRICTIONS: WHAT DOES THE FUTURE HOLD? 1S 21 27 29 33 35 37 HOMELESSNESS AMONG REGISTERED SEX OFFENDERSIN CALIFORNIA: THE NUMBERS,THE RISKS AND THE RESPONSE NOVEMBER 2008 SACRAMENTO, CALIFORNIA EXECUTIVE SUMMARY Why should our community care about issues related to homelessness amongregistered sex offenders? In the wakeof the passageof state law and local ordinancesrestricting the residency of sex offenders, the numberof sex offenders whoregistered as transient has risen significantly. Amongall registered sex offenders (parolees, probationers and unsupervised), the number of sex offenders registering as transient has increased from 2050 in June 2007 to 3,267 by August 2008 — an increase of 60%. The only population of sex offenders wherethe residencyrestrictions of Proposition 83 has been consistently enforced has been parolees. Among parolees (parolees constitute approximately 15% of all registered sex offenders), the numberof sex offenders registering as transient increased from 88 in November 2006 (prior to the passage of Proposition 83) to 1,056 by June 29, 2008 — an increase of over 800%. Currently, only the Departmentof Corrections and Rehabilitation, U.S. Probation and a few counties are enforcing Proposition 83. The Board anticipates that the numberof sex offenders registering as transient will increase to a greater extent should other entities decide to enforce residencyrestriction laws. To better understand the significance ofthis rise in sex offenders registering as transient, the Board examined the events surrounding the increase in homelessness among sex offenders and how that increase may impact community safety. Among all registered sex offenders (parolees, probationers and unsupervised), the numberof sex offenders registering as transient has increased from 2050 in June 2007 to 3,267 by August 2008 — an increase of 60%. The only population of sex offenders where the residencyrestrictions of Proposition 83 has been consistently enforced has been parolees. Among parolees (parolees constitute approximately 15% ofall registered sex offenders), the numberof sex offenders registering as transient increased from 88 in November 2006 (prior to the passage of Proposition 83) to 1,056 by June 29, 2008 — an increase of over 800%. It can be no coincidence that the rise in homelessness among registered sex offenders corresponds with recent changes regarding residencyrestrictions imposed onregistered sex offenders. California imposes variouslimitations on where a registered sex offender maylive depending on whetherthe offenderis a High Risk Sex Offender (HRSO), a sexually violent predator (SVP) or a person required to register under Penal Codesection 290 as the consequence of a conviction for any specified sexual crime. Local governments havealso imposed their own residencyrestrictions, usually directed toward all Penal Code section 290 registrants. In addition, this state’s registration and notification laws have provided communities with the ability to locate sex offenders within their neighborhoods. An unintendedand collateral effect of this state’s registration and community notification laws was the mobilization of neighborhoods to oust sex offenders. As a result, the housing options for sex offenders have diminished significantly. With fewer options available, the numberof sex offenders registering as transient has increased. Commonsense leads to the conclusion that a community cannot be safer whensex offenders are homeless.In this case, the empirical evidence supports commonsense.Lackofstability is a primary contributing factor to an increased risk of reoffending, including sexual reoffending. Residential instability leads to unstable employment and lowerlevels of social support. Unstable employment and Jack of social support lead to emotional and mentalinstability. Emotional and mental instability breaks downthe ability to conform and leadsto a greaterrisk of committing another sex crime. The Boardbelieves that the rise in homelessness among sex offenders needsattention becauseit is so closely associated with an increasedlevel of threat to community safety. Based on its examination of the available evidence, the Board. makes the following findings: ° The evidence shows an unmistakable correlation between the implementation of residency restrictions and the increase in homelessness among registered sex offenders. ° The evidence shows that homelessnessincreases the risk that a sex offender mayreoffend. ° Partnerships betweendifferent levels of governments and between governmentandthe public to make stable and appropriate housing available to sex offenders provide the strongest hope for reducing the transient sex offender population and the associated risk of future sexualvictimization. The following report will examine more closely each of the elements noted in this summary andwill provide information about the research which supports eachof the statements made and conclusions drawn by the Board. OVERVIEW To understand the events leading to the increase in sex offenders registering as transient and the impact this increase may have on community safety, the Board explored the numbers,the risks and the responseto this increase. Part | of this report looks at the numberof sex offenders registering as transient. The data is viewed by examining the increase in homelessness among all registered sex offenders and sex offenders who are on parole.It also sets out the historical events correlating with the rise in sex offenders registering as transient. More importantly, this part identifies the numerous federal, state and local laws limiting where sex offenders maylive. Part Il examinesthe risk that transient sex offenders may pose to community safety. It begins with an exploration of the factors affecting the risk of reoffending, looks at the destabililizing affects of homelessness and reachesthe conclusion that transiency increase the risk of reoffending. Part {Il looks at the response and lack of responseto the increase in transiency among sex offenders.It begins with a look at the methods used by other states to provide housing for sex offenders and concludes with a summary of Governor Schwarzenegger’s “California Summit for Safe Communities.” Part IV gives the conclusions of the Board. The Conclusions section identifies factors that may increase or decrease the level of homelessness among sex offenders. It concludes with specific findings as supported by available evidence. OUTLINE OF CONTENTS Part! SINCE THE IMPLEMENTATION OF RESIDENCY RESTRICTIONS, THE NUMBER OF SEX OFFENDERS REGISTERING AS TRANSIENT HAS SIGNIFICANTLY INCREASED. a. Amongall registered sex offenders, the numberof sex offenders registering as transient has increased by sixty percent. b. Registration and notification laws have impacted where sex offenders maylive. c. The housing options for sex offenders are limited by federal, state and locallaws. Part ll. HOMELESSNESS INCREASES THE RISK THAT SOMEONE WHO HAS OFFENDED SEXUALLY MAY COMMIT ANOTHER SEX CRIME. a. Whatare the factors that increase a sex offender’s risk of committing another sex crime? b. Homelessness, a dynamicrisk factor, destabilizes the sex offender andincreasesthe risk of committing another sex crime. c. Housing helps the sex offenderto stabilize and reducesthe risk of re-offending. d. Housing leads to stable employment and social support, which are factors reducing therisk of re-offending. Part Ill. THE RESPONSE TO HOMELESSNESS AMONG SEX OFFENDERS REQUIRES A CREATIVE AND COLLABORATIVE EFFORT TO CREATE STABLE AND SUITABLE HOUSING. a. Efforts to reduce homelessness among sex offenders have led to innovative approachesto housing. i. Shared Living Arrangements ii. Secure Community Transition Facility for sexually violent predators iii. Mobile trailers as transition housing iv. Leased Unit Model v. Private landlords with informal agreements with the government vi. Funding for construction of homes for the homeless b. The solution to the problem of housing sex offenders begins with examining and developing a state-wide housing policy. Part IV. CONCLUSIONS Partl. SINCE THE IMPLEMENTATION OF RESIDENCY RESTRICTIONS, THE NUMBER OF SEX OFFENDERSREGISTERING AS TRANSIENTHAS SIGNIFICANTLY INCREASED. a. Amongall registered sex offenders, the number of sex offenders registering as transient has increased by sixty percent. Since the implementation of Proposition 83, there has been a surgein the numberof sex offenders whoregister as transient. The most notable increase has been amongparoled sex offenders. Paroled sex offenders are under close supervision and the California Department of Corrections and Rehabilitation (hereafter CDCR) has been the primary agencythat has enforced Proposition 83.' The Board anticipates that, if residency restrictions were enforced against all registered sex offenders, including those on probation and those who are unsupervised, the number of sex offenders registering as transient would further increase. The majority of registered sex offenders are not supervised. The California data base that contains information on those individuals who are required to register as sex offenders under Penal Code 290 is managed and maintained by the California Departmentof Justice (DOJ) under the State Attorney General. Data is submitted to DOJ by the various law enforcement agencies throughout the state who receive suchinformation directly from the registrants. Approximately 70 - 80% ofall sex offendersliving in the community are not under the direct authority of the criminal justice system and are, therefore, under no formal supervision. Selected individuals may be kept under somelevelof observation by local law enforcement, particularly with regard to registration residency information. The other 25% are under the authority of either state parole or county probation. The distribution of supervised and unsupervised registered sex offenders is represented below in Chart 1-1. ‘U.S. Probation and a few counties in California have also enforced Proposition 83. 7 Chart 1-4: Sex Offender Registrants in the Community (Source: CASOMB initial Report 2005} ~ * Penang:eeeennll California voters passed Proposition 83 on November6, 2006. In August 2007, CDCRestablished a procedure for implementing Proposition 83 (CDCR Policy No. 07-36, Aug. 17, 2007). The Memorandum directed unit supervisors to locate the currentlisting of all public and private schools and parks within their communities. Parole agents were then instructed to serve all affected parolees with a “Modified Condition(s) of Parole Addendum” (MCOPA) and/or a Notice to Complyinstructional letter. The MCOPAand Notice to Comply advised the affected parolees of Proposition 83. Parolees were given 45 daysafter service to comply. Parole agents were to advise affected parolees that non-compliancewill result in arrest and referral to the Board of Parole Hearings. Parole agents were to utilize a Global Positioning System (GPS) device to measure the proximity of the primary entrance of the affected parolee’s residence from the exterior boundary of the prohibited school or park. Parole agents were to consider any parolee who abscondsfrom parole supervision to avoid compliance with Proposition 83 as a Parolee-At-Large (PAL) and to request a warrant. Parolees who declare themselvesas transient had to comply with additional requirements. Penal Code section 290.011 provides that “’transient’ means a person whohasno residence. ‘Residence’ means one or more addressesat which a person regularly resides, regardless of the numberof days or nights spent there, such as a shelter or structure that can be located by a street address,including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.” Transient parolees are required to contact their parole agent daily via telephoneorin person. Once each week, they must report in person to the Parole Unit. Therise in the numberof sex offender parolees registering as transient rose significantly after enforcement of Proposition 83. On November6, 2006 (prior to the passage of Proposition 83), 88 sex offenders on parole registered as transient. By June 29, 2008, the number had increased to 1056 — an increase of over 800 percent. Chart 1-2: Changes in Homelessness among Paroled Sex Offenders Data provided by the California Department of Corrections and Rehabilitation June 29. 2008 4066 November §. 2008 88 0 200 400 600 800 1000 1206 Number of sex offenders on parole who registered as trans:ent Whenlookingat ail registered sex offenders (those on parole, those on probation, and those who are unsupervised), a similar pattern of a notable increase can be found.In June 2007, 2050 sex offenders registered as transient. By August 2008, the numberhad risen to 3,267 — an increaseof sixty percent. (See Appendix A for the distribution by county ofall registered sex offenders and ] sex offenders registering as transient.) As noted above,the Board anticipates that, if residency restrictions were enforced against sex offenders on probation and unsupervised sex offenders, the numberof sex offenders registering as transient would further increase. Chart 1-3: Changes in Hometessness among All Registered Sex Offenders Data provided by the California Department of Justice oo S267 2050 1000 Jus? Aag-O7 Sep-07 Oct-G? NowO? Dec-07 Jan-08 Feb-08 Mar-08 Aor-08 May-O8 Jun-08 Jul-08 Aug-08 momenNumber of sex offeriders tegstenng 35 transant b. Registration and notification laws have impacted where sex offenders maylive. Sex offenderregistration is not new. In 1947, California implemented the nation’s first sex offender registry. However, the public’s attention focused on sex offending when the media publicized particular incidents of sex attacks on children. Responding to public outcry, other states enacted sex offender laws. The incentive forall states to pass registration and notification laws came whenthe federal government passed three laws: the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act (1994), Megan's Law (1996) and the Pam Lynchner Sexual Offender Tracking and Identification Act (1996). Collectively, these federal laws required all states to establish registration and notification programs. For example, the Jacob Wetterling Act prohibits states from receiving ten percent of the funds allocated to a state under the Omnibus Crime Control and Safe Streets Act of 1968 should the statefail to 10 implement a notification program. Congress continued to draw attention to sex offenders when,in 2006,it passed the Adam Walsh Child Protection and Safety Act of 2006. Among otherprovisions, the Act establishes a national database of sex offenders and allows public accessto information regarding sex offenders released from prison. In response to public outcry concern as well as federal mandate, California enacted the Child Protection Act of 1994. The Act created a Child MolesterIdentification Line 900 Number, which provided the public with the ability to call and inquire whetheran individual was registered as a sex offender. In support of the Act, the California Legislature declared that sex offenders posed a high risk of re-offending, that there was a “necessary and compelling public interest” for the public to have accessto information regarding sex offenders, and that convicted sex offenders had a reduced expectation of privacy. The system which provides such information to those citizens who take theinitiative to inquire is sometimescalled “passive notification.” Twoyears later, California amended the Child Protection Act of 1994 to include the meansfor “active” community notification. Commonly known as “Megan’s Law,” the amendments authorized local law enforcement to take the initiative to disclose offender information when deemed necessary for public safety. The amendments also provided for registration information to be made available to the public through CD-ROMandotherelectronic media. Membersof the public would need to go in personto a special “kiosk” computerat a local police station to obtain the information. The current version of California’s registration and notification laws is found in the Sex Offender Punishment, Control, and Containment Act of 2006. The Department of Justice is required to make available to the public “via an Internet Website” certain identifying information regarding persons required to register pursuant to Penal Code section 290 (Cal. Penal Code, § 290.46). Megan's Law continues to permit local law enforcement agenciesto notify their communities about the presence of designated registered sex offenders who pose a risk in their area. Local law enforcement may use “whatever meansthe entity deems appropriate, when necessary to ensure the public safety” (Cal. Penal Code,§ 290.45). Notification laws provide communities with the ability to protect themselves by informing them where sex offenders live. However, one of the unintended andcollateral effects of registration and community notification is that neighborhoods mayattempt to oust the offender. For example,earlier this year when they learned from the DOJ website about a “concentration” of 290 registrants in their neighborhood, residents of Long Beach mobilized to move out sex offendersliving at a halfway housein 11 Alamitos Beach (Long Beach, 2008). Similarly, the Riverside Press-Enterprise reported that an angry mob picketed the homeof a sex offender(as cited in Fry- Bowers, 2004). The mob’s intimidating actions forced the offender to move away. In Hayward, CDCRhadplaced seven sex offenders at the Island Motel. However, the managerhad all seven leave after area residents called and said they were outraged that sex offenders wereliving in their neighborhood (Graham, 2006). Last year in Lake County, the Megan’s Law website may haveled to the killing of a sex offender (Megan’s Law, 2007). When a residentof a trailer park learned that a sex offender had movedin, the resident allegedly killed the sex offender becausethe resident was concerned that a child molester had moved into the neighborhood. The resident was wrong. The sex offender had raped an adult. Thus, though not intendedto limit where registered sex offenders maylive, registration and community notifications laws have impacted the availability of housing for registered sex offenders. C. The housing options for sex offenders are limited by federal, state and locallaws. Housing of Known sex offendersis closely regulated. The fundamental statutory requirementfor all parolees is that a parolee shall be returned to the county that wasthe parolee’slast legal residence (Cal. Pen. Code, § 3003, subd. (a)). On rare occasions, the parolee may be returned to another countyif returning to another countyis “in the best interest of the public” (Cal. Pen. Code, § 3003, subd. (b)). When making such a decision, the paroling authority must give the greatest weight to the protection of the victim and the safety of the community. A secondrestriction is imposed on parolees who committed certain enumerated violent crimes (Cal. Pen. Code, § 3003, subd. (f)). The parolee may not reside within 35 miles of the actual residence of the victim or witness to the crime. The enumerated sex crimes are: * Rape (Cal. Pen. Code, §§ 261, subd. (a)(2) & (a)(6) & 262, subd. (a)(1) & (a)(4) ): * Sodomy(Cal. Pen. Code, § 286, subd. (c) & (d)); ¢ Oral copulation (Cal. Pen. Code, § 288a, subd. (c) & (d)); and ¢ Lewdorlascivious act (Cal. Pen. Code, § 288, subd. (a) & (b)) State residencyrestrictions directed specifically to sex offenders fall under two broad categories: (1) Offenders who were released from prison and would be subject to parole supervision, and (2) offenders who were required to register under Penal Code section 290. Regarding the second category, whetherthe offenderis, or is not, under supervision as a parolee or probationer does not matter. Chart 1-4 lists the state statutes that restrict where sex offenders may live. 12 Chart 1-4: State statutes restricting the residency of sex offenders Statute Pen. Code, § Pen. Code, Pen. Code, § Welf & Inst. 3003.5, § 3003.5, 3003, subd. Code, § subd. (b) subd. (a) (g) 6608.5, subd. (f) Restriction 2000 feet of With % mile from % mile from any public or another any any private registered public/private public/private school, or sex offender school, school, park where ina single grades K-12 grades K-12 children family regularly dwelling” gather All registered sex offenders Yes Registered sex offenders Yes Yes who are on parole High Risk Sex Offenders Yes Yes Yes who (1) Are on parole and (2) were convicted of violating either Pen. Code, §§ 288 (Lewd and Lascivious Acts) or 288.5 (Continuous Sexual Abuse of a Child) Sexually Violent Predators Yes Yes Yes who (1) are on parole and (2) either have had (a) a previous conviction for violating Pen. Code, § 288.5, subd. (a) & (b) or Pen. Code, § 288, subd. (c)(1) or (b) a finding by a court that the parolee has a history of improper sexual conductwith children. * Penal Code section 3003.5 provides an exception for personslegally related by blood, marriage or adoption to the parolee. This section also states that a which servessix or fewer persons.” single family dwelling’ shall not include a residential facility Proposition 83 also permits local jurisdictions to enact ordinances restricting sex offender residency (Cal. Pen. Code, 3003.5, subd. (b)). As of October 2008, seventeencities and three counties had enacted ordinances limiting where sex offenders maylive. (See Appendix fora list of the local jurisdiction imposing its own residencyrestrictions.) To the knowledge of the Board, nolocaljurisdiction is enforcing its ordinances limiting where sex offenders maylive. Federal law furtherlimits where sex offenders maylive. 42 U.S.C. §13663 prohibits federally assisted housing from admitting any person who is subjected to lifetime registration under a state sex offenderregistration program. Penal Code section 290 provides that sex offenders mustregisterfor life. As such, registered sex offenders in California cannotlive in low-income subsidized housing. To determine the impact of Proposition 83’s 2,000 foot residency restriction, the San Diego District Attorney's Office used Geographic Information Systems (GIS) to assess the law's impact on San Diego County (Wartell, 2007). The researchers extracted out the residential parcels in San Diego County and overlaid the 2,000 foot buffers extending from schools and parks. The analysis revealed that fewer than 28 percentof the residential parcels were available for housing sex offenders. The analysis did not consider whether any of the housing in the available parcels was affordable to sex offenders. The combined effects of federal, state and local residency restrictions, state registration and notifications laws, and public sentiment have significantly reduced the housing options for sex offenders. One result of these limitations is an increase in the numberof sex offenders registering as transient. 14 Part ll. HOMELESSNESSINCREASESTHE RISK THAT SOMEONE WHO OFFENDED SEXUALLY MAY COMMIT ANOTHER SEX CRIME. a. Whatare the factors that increase a sex offender’s risk of committing another sex crime? There are several empirical risk factors that raise the risk that an offender will re-offend sexually. These include deviant sexual preference (such as a desire for young children); an antisociallifestyle (such as a propensity to violate rules); employmentinstability; and reckless, impulsive behavior (Hanson & Bussiere, 1998; Hanson & Morton-Bourgon, 2004, 2005). Other important factors include young ageat time of offense, numberofprior offenses, single marital status,failure in treatment, a preoccupation with sexual fantasy and poor interpersonalrelationships (Hanson & Morton-Bourgon, 2004, 2005). Dynamic risk factors are extremely important to assess because they are changeable overtime. Static factors (such as age at time of offense and number of prior offenses), while easier to assess empirically, do not change from month to month or day to day. Therefore, monitoring them doesnotyield any helpful information in assessing current risk for re-offending (Harris, 2006). There are empirically-derived questions that can be used. Systems—such as the STABLE 2000 and the ACUTE 2000,which are used for evaluating changes in dynamic risk factors (Craig, Browne, & Beech, 2008)—can be assessedvia a structured dynamic interview by a well-trained practitioner (Cauley, 2007; Harris, 2006). Stable dynamic risk factors may changeovertime, usually months or years (Harris,2006). Key dimensionsare significant negative social influences; intimacy deficit feelings of rejection or loneliness; attitudes supportive of sexual assault or of hostility towards women;lack of cooperation with supervision; poor regulation of deviant sexual interests and generalself-regulation, such as managing impulsive behaviors (Craig, Browne, & Beech, 2008; Hanson, Harris, Scott & Helmus, 2007). Acute dynamicrisk factors may change over morelimited periods of time, such as weeks, days or hours (Harris, 2006). Key dimensions include sexual interests/ frequency of sexual fantasies; cooperation with treatment; clinical symptoms such as negative mood and substance use; and contextual factors suchas isolation, unemployment, poorsocial influences, low levels of social support, relationship problems and accessto potential victims (Craig etal., 2008). Hanson and Harris (2000) reported an increase in acute dynamic factors offenders in the month prior to a sexual re-offense, specifically: 15 ¢ An increase in negative mood or anger ¢ A decreasein physical appearance e A decrease in compliance with supervision. Hanson andHarris (2000) also cite an emotionalcrisis; a collapse of previous social supports; contextual factors such as hostility, substance abuse, and sexual preoccupations; and a uniquetrigger for the offending behavior such as a date or anniversary, health problem or homelessness. Both stable and acute dynamic factors have been found to be reliable predictors of sexual recidivism (Hanson, 2005), although they are most accurately used in a predictive capacity when combinedwith static factors (Hanson,et al., 2007). b. Homelessness, a dynamic risk factor, destabilizes the sex offender and increasesthe risk of committing another sex crime. Levenson and Cotter (2005) surveyed sex offenders in Florida under 1000 foot residencyrestrictions and found that most sex offenders felt that decreased stability and increased financial hardship were the result of not being able to live with or near family members. Mostfelt an increased risk of re-offending due to the resultant isolation. Burchfield and Mingus (2008) interviewed sex offenders and found that sex offenders have limited housing options, and havedifficulty finding landlords who are willing to rent to a registered sex offender. Although there is no known study that empirically examines the risk of homelessness on sexualre-offense, Willis and Grace (2008) examined a group of released sex offenders who had completed a 32-weekprison-based treatment program between 1990 and 2000, and were convicted of a sexual re-offense since February 2001. In evaluating the sample of 81 ex-offenders, Willis and Grace found that accommodation wasa significant predictor of sexual recidivism, even whencontrolling for dynamic risk factors such as anger and other deviant thinking. Despite the lack of large empirical studies, many researchers and policy makers are of the strong opinion that lack of housing in a sex offender population will lead to higherlevels of risk and will decrease public safety. The United Kingdom seesfinding appropriate accommodations for registered sex offenders to be a very high priority in reducing risk, and questions the helpfulness of putting too manyrestrictions on sex offenders with the concern that it could “backfire and encourage sex offendersto hide their activities. The potential for reduction or withdrawalof restrictions on the other hand was seen as a motivator, enabling the sex offender to demonstrate change and achieve targets” (Managing Sex Offenders in the Community, 2005, p. 29). 16 Durling (2006) states: “Low income sex offenders face a severe housing problem whenthey are released from prison becauseresidencyrestrictions can dramatically limit where an offender can live...and prevent offenders from living in the areas closest to jobs and public transit” (p.334). Durling (2006)also states that even thoughresidencyrestrictions are meant to protect communities, they may instead “banish” the sex offender, which may lead to higherlevels of risk (p. 335). Unstable housing has beenlinked with a lack of social support and with difficulty finding employment, both dynamicrisk factors for sexual re-offense (Hanson & Morton-Bourgon, 2004, 2005). Similarly, Levenson, Zgoba, and Tewksbury (2007) argue that helping sex offenders locate stable housing will increase notonly their levels of social support but also their success at finding lasting employment, thereby reducingtheir risk of re-offending. Residency restrictions have the unintended consequenceof increasing homelessness and creating more transient sex offenders, “making them difficult to track and monitor’ (Levensonetal., 2007, p.4). Data from lowain 2006is cited by Levenson and her colleagues, stating that once residencyrestrictions were passed, the number of registered sex offenders who could not be located doubled, putting the sex offenderregistry validity and reliability in doubt, and raising community risk. Additionally, the creators of the COMPAS,a risk assessmentinstrument now being validated for the State of California, found that parolees who have a high score on residential instability are at higher risk of recidivism (Brennan, Dieterich, Ehret & Beate, 2007). Using the COMPASMatrix-R,a secondary assessmentfor parolees once they have been out on parole, Brennanetal. found that California parolees with the highest levels of recidivism had higher scores on residential instability and also had vocational and educational problems. Cc. Housing helps the sex offender to stabilize, and reduces the risk of re-offending. Finding housingis a serious issue; in addition, helping returning offenders find housing can be a way of keeping communities safe (Rodriguez & Brown, 2003). Housing options for returning prisoners who do not stay with family membersorfriends are very limited (Clark, 2007; Returning Home, The Urban Institute, 2008). There are few housing options in general, but options are particularly limited for sex offenders who are unableto receive any federally subsidized housing assistance such as special needs housing through HUD,or to live in groupsituations, commonre-entry housing plans for returning offenders (Returning Home, 2008). Financial challenges may push sex offenders into poorer neighborhoods. Neighborhood characteristics can affect recidivism rates. Kubrin and Stewart 17 (2006) found that for 5,002 released offendersliving in Oregon,living in a disadvantaged neighborhood wasa risk factor for recidivism, while living in a resource rich neighborhood performed an important protective factor in reducing re-offending. “Stable housing is an essential componentof safe reentry and is a key to success’for high-risk sex offenders. Aylward (2006)stated that in the State of Washington, “Stable housingis an essential componentof safe reentry and is a key to success”for high-risk sex offenders (p. 77). Aylward also saw finding stable employment with an adequate wage asa key to maintaining housing, and having a goodrelationship with a significant other as a pro-social influence in keeping sex offenders from re- offending. Other countries see re-entry and homelessness as a growing problem. An Australian report issued by the Department of Family and Community Services (2004) found that housing is a key factor that influences re-offending. In their 2004 report the Department of Family and Community Services reported many specific housing recommendations to prevent ex-offenders from becoming homeless, stating, “Research suggests that the availability of housing with support post-release hasa positive impact on successful reintegration” (p. 20). The report also cites the lack of housing options for ex-offenders as a problem, because surveys and a needsanalysis of ex-offenders found that many offenders attribute repeat offending to unemployment, homelessness, and lack of family support upon release (Department of Family and Community Services, Australian Government, 2004). The United Kingdom is concerned with creating local strategies and protocols in providing housing for high-risk sex offenders, which is seen as an important strategy to decrease community risk (Managing Sex Offenders in the Community, 2005). When examining research focused on offenders who are convicted of a variety of criminal offenses, there have been many studies demonstrating that homelessness and incarceration are factors that are intertwined. Individuals who have been incarcerated tend to be homelessfor longer than those who have not been incarcerated (Phelan & Link, 1999). Metraux and Culhane (2004, 2006) found that a significant portion (about one fourth) of individuals staying at a New York City Shelter had been incarcerated at a New York State prison or New York City Jail in the previous two years. Shelter stays amongrecently released prisoners are morelikely a transitional stage than a long-term pattern of homelessness, and this transition may cause an increasein recidivism (Metraux & Culhane, 2004). In a study by DeLisi (2000), jail inmates who came from one 18 year or more of chronic transiency were more violent and had longercriminal histories than jail inmates who were domiciled in the yearpriorto arrest. In numerousinterviews with 25 repeat offenders ages 15 to 24,a lack of stable housing and accommodation emerged as a key themein their re-offending behaviors (Halsey, 2007). Halsey found that the lack of stable housing increased their stress levels, decreased thelikelihood of a supportive family environment, and decreasedtheirlikelihood of remaining out of prison. Roman andTravis (2004) found that whenprisoners have no place to go uponrelease they are morelikely to violate their parole conditions or to be rearrested. Meredith, Speir, Johnson and Hull (2003) found that each time a parolee moved, his or her likelihood of re-arrest increased by 25%. In California, Williams, McShane, and Doiny (2000) found that having unstable living arrangements was the most important factor in determining whether a large sample of parolees absconded from supervision. d. Housing leads to stable employment and social support, which are factors reducing the risk of re-offending. Unstable employment or unemployment has been seenas an important risk factorforall types of offenders reentering the community. Finding and maintaining employment upon release from prison has been seen as a wayof reducing recidivism (Returning Home, The UrbanInstitute, 2008). Employment and vocational programsboth in and out of prison including job linkage and placementservicesare classified as “what works” in corrections (Aos, Miller & Drake, 2006; TheLittle Hoover Commission Report, 2003; MacKenzie & Hickman, 1998). Tarlow and Nelson (2007) found that released offenders who start work immediately upon leaving prison have lowerrecidivism rates. Released offenders who were unable to find work, and who returned to disadvantaged neighborhoodswith low levels of social support and economic problems, were morelikely to be rearrested (McBrideet al., 2005). Visher (2007) of the Urban Institute states that finding employmentis the single largest concern reported by men and womenbefore they are released from prison. Over 75% of soon-to-be-released prisoners said that finding a job would be an importantfactor in keeping them from returning to prison, and 88% reported that they neededjobtraining or more education (Visher, 2007). Petersilia determined in her report on Governor Schwarzenegger's Rehabilitation Strike Team (2007) that employment causally contributes to successful reentry outcomes, becauseit signals that an individual has embraced a pro-social lifestyle; has money, makespositive social connections, and has social controls that prevent criminal behavior. She estimates that between 60%and 80% of parolees are unemployed oneyearafter release from parole. Petersilia (2007) cites the California Legislative Analyst's 2007 report as stating that parolees who 49 have stable housing and whofind and maintain a steady job are morelikely to avoid re-offense and to successfully complete their parole. Social stability and support is also seen as an importantfactorin reintegrating into society and enhancing public safety (Petersilia, 2003). The Urban Institute’s Returning Home Projectcited family support as the most important factor in ex-offenders keeping out of prison (McBride, Visher, & LaVigne, 2005). Since most returning prisonerslive with a family member, close friend, or significant other,it is a major problem if the offender is unable to live with these supportive individuals due to someconflict or legal restriction (Roman & Travis, 2004). In summary, sex offenders are morelikely to be faced with legal restrictions, preventing them from returning to social supports and homesdueto current residency restriction laws in manystates, including California. Homelessness, unemployment, and lack of social support may end up being factors facing many sex offenders, both those whoare re-entering California communities and those who are continuing registered sex offenders. These factors increase dynamic risk and therefore may increase re-offending behaviors. 20 Part lll. THE RESPONSE TO HOMELESSNESS AMONG SEX OFFENDERS REQUIRES A CREATIVE AND COLLABORATIVE EFFORT TO CREATE STABLE AND SUITABLE HOUSING. a. Efforts to reduce homelessness among sex offenders have led to innovative approachesto housing. States such as Washington and Colorado have employedinnovative housing methods such as (1) shared living arrangements, (2) secure community transition facilities, (3) mobile trailers as transition housing and (4) the leased unit model. Sex offender housing is also provided by private landlords in a special agreement with parole authorities in Washington State. Of these innovative housing methods,only the sharedliving arrangement has been studied to determineits effects on the level of violations by paroled sex offenders. Based on a 2004 study, Colorado has determined that high-risk sex offendersliving in sharedliving arrangements hadsignificantly fewerviolations than thosein otherliving arrangements(living alone or with family or friends). i. Shared Living Arrangements Shared Living Arrangements (“SLA”) are based on the Therapeutic Community Treatment modality (Colorado Dept. of Public Safety, 2004). Therapeutic Community Treatmentdiffers from other treatment approaches principally in its use of a community, comprising of the treatment staff and the recipients of the treatment, as key agents of change.In other words, peer influence is usedto help participants learn and assimilate social norms which include not re-offending sexually. SLAis used exclusively by Colorado. SLA consists of two or three sex offendersliving together. They rent or own the house. The offenders are financially responsible for the housing. The treatment provider incurs no housing costs. Thelocation of the residence must be approved by the supervisingofficer and the treatment provider. The supervising officer ensures that the residenceis not located within sight of a “school, playground, or next-door to a residence that has ‘child-type’ items (for example, a swing set).” The residents hold each other accountable for their actions. They also have a responsibility to report certain high risk behavior such as returning home late or having contact with children. There are no treatment providers or supervising officersliving on the premises. Instead, both the treatment provider and supervising officer conduct frequent site checks. 21 A study of SLA revealed that: * SLA wasoccupied by higherrisk offenders than those notliving in SLA. * Thoseliving in SLA had fewerviolations (reoffended or technical) than thoseliving alone orwith family orfriends * Thoseliving in SLA whoviolated their conditions of parole were caught more quickly than thoseliving alone or with family orfriends (because the roommatesreported the violations). * Proximity of sex offender residency to where children regularly congregate had no impact on recidivism. Based on the study, the Colorado Sex Offender Management Board found that: * SLA functions as an effective containment modality for high risk sex offenders. * Policies restricting a sex offenderfrom living with another sex offender did not enhance community safety. * Restrictions prohibiting sex offenders from residing near where children regularly congregate did not enhance community safety. ii. Secure Community Transition Facility for sexually violent predators A “secure communitytransition facility" (‘“SCTF”) is the Washington State statutory namefor a less restrictive alternative residential facility program operated or contracted by the Department of Social and Health Services. A “less restrictive alternative” placementis defined in the state law as living arrangementthatis less restrictive than total confinement. The SCTF hason-site supervision and lock-down security. It also provides or ensuresthe provision of sex offender treatment services. The program offers 24-hourintensive staffing and line-of-sight supervision by trained escorts when residents leave the facility. SCTF housesonly court-approved, civilly committed sexually violent predators. The offender mustfirst complete his prison term and then successfully complete a rigorous treatment program at the Washington State MacNeil Island’s Special Commitment Center. Only a civil court can decide whetherto transfer the offender from the confinement of the Special Commitment Centerto the less restrictive SCTF. At the SCTF,the resident will continue with treatment and will learn how to reintegrate into society. The residents attend weekly individual and group therapy sessions. The focus of the sessionsis to teach and reinforce positive behavior. 22 Residents are required to maintain a journal and share the journal with their treatment providers. Residents may leave the SCTFfortrips. However, a community corrections officer mustfirst determine that the destination is safe before approving the trip. The resident may then leave the SCTFin the companyof a trained escort. _ To date, no study has been completed to show theeffects of this housing arrangementon reducing re-offending and on increasing community safety. Of significance, SCTF serves a very small community — sexually violent predators transferred by a court. For example, the SCTF in the SODO neighborhood of Seattle is equipped for only six residents. iii. Mobile trailers as transition housing Officials in Suffolk County, New York are experimenting with mobile trailers as transitional housing for sex offenders (Suffolk County, 2007). Each trailer houses eight sex offenders. Thetrailers are parked on county lands away from residential areas. Under countylaw,the trailers cannot be placed within 1,000 feet of schools, churches, daycare centers or nursing homes. A curfew is imposed on the residents from 8 p.m. to 7:30 a.m. Thesetrailers are moved from one part of the county to another part every one to three weeks. The continuous movement“avoids having to burden any single neighborhood with a permanentshelter for [sex offenders]” (Suffolk County, 2007). The movementalso prevents too many sex offenders from settling into the same area. By constantly moving thetrailers, the county distributes the offenders throughout the county. Thetrailers are not intended as permanentresidences. Instead, they serve as transition housing for those sex offenders who haveyetto find permanent housing. To motivate sex offenders to find housing,the trailers have minimum comforts. During the daytime, a van transports the sex offenders to work or to agencies providing referrals for permanent housing and other services. The operating cost is approximately $85 per person pernight. To date, no study has been completed to showtheeffects of this housing arrangementon reducing re-offending and on increasing community safety. The literature suggests thatits primary purpose is to reduce fear in the community and not to reducerecidivism. 23 iv. Leased Unit Model In 2004, the Partnership of Community Safety in Washington State recommendeda pilot project called the “Leased Unit Model” (Restricted Transition Housing, no date). The key concept of a Leased Unit Model (LUM)is that the governmententers into a contract with private landlords to lease to sex offenders. The housing provided in the recommended modelis structured with supervision by corrections officers; participation in treatment by the offenders; assistancefor the offender to find employment, permanent housing and a supportive social network; and coordination with local law enforcement. The participant is expected to pay $400 for monthly rent and program costs. The remainderof the rent is subsidized by the state. Asof this report, it is unknownif the LUM has been adopted by Washington State. As such,its impact on recidivism and on community safetyis unknown. V. Private landlords with informal agreements with the government In Washington State, approximately one dozen landlords have agreed to house sex offenders (Homes, 2003.) The landlords feel safe since corrections officers are constantly visiting the premises. Washington officials believe that housing sex offenders together increases community safety because “They can pick up on signs and behavior” and “are thefirst onesto tell on each other”(pg. 11). The state does not compensate the landlords. Instead, the offenders pay the entire rent. As an example of private landlords providing housing to sex offenders, Linda A. Wolfe-Dawidjan owns and manages the New Washington Apartments. Sherents to 39 sex offenders and 15 other tenants with criminal backgrounds. Because of her reputation, she has a waiting list of sex offenders desiringto live at her apartment. Fourof her tenants work as heroffice managers in exchange for rent. She describes her tenants as timely with rent, quiet in demeanor and stable as renters. Vi. Funding for construction of homes for the homeless Funding to build new homesfor the homeless can comefrom the community. In Minnesota, the McKnight and Blandin Foundations provided $32.5 million to help construct 3,000 units of affordable housing for the homeless (Safe Homes, 2001). 24 b. The solution to the problem of housing sex offenders begins with examining and developing a state-wide housing policy. States are beginningto look at their policies regarding the housing of sex offenders. From 2000 until 2004, a Washington State multidisciplinary group entitled “The Partnership for Community Safety” met to identify the barriers and solutions to housing high risk sex offenders. This partnership was composedof the Washington State Departmentof Corrections, the Washington Coalition of Sexual Assault Programs, the Washington Association of Sheriffs and police Chiefs, state legislators, victim advocacy organizations and others. On March 19, 2007, Governor Schwarzeneggerhosted the “California Summit for Safe Communities.” The summit was “a gathering of state and local stakeholders to discuss the challenges that communities face regarding the release and placementof high risk sex offenders and sexually violent predators” (California Summit). The report from the summit may be foundat www.casomb.org/docs/SUMMIT%20FINAL%20REPORT.pdf. During the brainstorming session, the participants were asked to identify both gaps and solutions related to the housing of HRSOs and SVPs.Theresult of the summit was an extensivelist of suggestions on how to provide housing to sex offenders while maintaining community safety. Oneof the gaps identified was “finding appropriate housing” (p. 39). The . commonality among the many suggested solutions is the need for a collaborative partnership between eachlevel of government(state, county and city), between government and private businesses(landlords, treatmentfacilities), and between government and the public. One focus was to improve communication between the partners. Someof the suggestionsare to: (1) “meet and confer(six monthsprior to anticipated release) between state and local agency,” (pg. 39) (2) “educate the community about housing and plan proactively,” (pg. 40) and (3) “create private-public partnerships to include city and county input on location” (pg. 39). Another focus wasto provide sex offenders with transitional housing. Someof the suggestionsrelated to transitional housing areto: (1) “review [the] halfway house modelof the 1970’s and 1980’s and connect them to day reporting programs,” (pg. 39) (2) changethe “transitional housing setting to include work furlough program,” (pg. 40) and 25 (3) “establish licensed board and care/group homefacilities that provide 24 hour supervision, treatment and vocationaltraining” (pg. 39). The suggested solutions also focus on providing incentivesto local governments andprivate entities to participate in housing sex offenders. “Liability protection for private landlords and possible incentives such as tax break,” “incentives for local government to develop long term/short term housing for sex offenders,” and “state mandate coupled with state funding for housing in each county” were suggested(pg. 39). 26 Part IV. CONCLUSIONS The substantial rise in numbers of transient sex offenders cannot be ignored. Among paroled sex offenders and all registered sex offenders, the numberof sex offenders registering as transient has significantly increased. Thoughit is difficult to predict whether the current increase will continue, the factors affecting the numberof sex offenders registering as transient can be identified: The numberof landlords willing to rent to sex offenders Enactmentof more localordinancesrestricting residency High media coverage of sex crimes Passageof morestate statutesrestricting residency Lack of funding for low-income housing open to sex offenders Low availability of stable employment Mobilization of neighborhoodsto exclude sex offenders (For a list of additional factors that may affect the numberof sex offenders registering as transient, see Appendix C.) Based onits examination of the available evidence, the Board makes the following findings: The evidence shows an unmistakable correlation between the implementation of residency restrictions and the increase in homelessness among sex offenders. o The numberof sex offenders registering as transient has increased 60% amongall registered sex offenders since the implementation of Proposition 83. o The combinedeffects of federal, state and local residency restriction, and neighborhoods mobilizing to exclude sex offenders, have severely limited the housing options for sex offenders. The evidence showsthat homelessness increasesthe risk that a sex offender may re-offend. o Lackof stability is a primary contributing factor to an increasedrisk of re-offending. Residential instability leads to unstable employment and lowerlevels of social support. Unstable employment andlowlevels of social support lead to emotional and mental instability. Emotional and mental instability breaks downthe ability to conform and leads to a greaterrisk of committing another sex crime. o Stable housing fosters stable employment and social support. Stable employment and social support lead to 27 emotional and mental stability and a reducedrisk that the sex offenderwill commit another sex crime. * Partnerships betweendifferent levels of governments and between governmentand the public to make stable and appropriate housing available to sex offenders provide the strongest hope for reducing the transient sex offender population and the associatedrisk of future sexual victimization. o Asidentified during the 2007 California Summit for Safe Communities, improved communications betweenpartners, incentives for local governments and private parties, and innovative thinking on creating stable housing for sex offenders are necessary for an effective housing policy. 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San Diego District Attorney’s Office. Retrieved October 10, 2008, from http//www.ojp.usdoj.gov/nij/events/maps/pittsburgh2007/papers/Wartell2.pdf. Williams, F. P., McShane, M. D., & Dolny, M. (2000). Predicting parole absconders. The Prison Journal, 80(1), 24-38. Willis, G. M., & Grace, R. C. (2008). The quality of community reintegration planning for child molesters: Effects on sexual recidivism. Sexual Abuse: A Journal of Research and Treatment, 20 (2), 218-240. Yee, Linda. (2007). Megan’s Law mayhave led to Lake. Co. man’s murder. Crimewatch. Retrived November 21, 2008 from nttp://cbs5.com/crime/megans|.law.murder.2.609017 html 32 COUNTY ALAMEDA ALPINE AMADOR BUTTE CALAVERAS COLUSA CONTRA COSTA DEL NORTE EL DORADO FRESNO GLENN HUMBOLDT IMPERIAL INYO KERN | KINGS LAKE LASSEN LOS ANGELES MADERA MARIN MARIPOSA MENDOCINO MERCED MODOC MONO MONTEREY NAPA NEVADA ORANGE PLACER APPENDIX A: CALIFORNIA TRANSIENT SEX OFFENDERDISTRIBUTION BY COUNTY Prepared bythe California Coalition on Sex Offending June 2008 SEX REGISTRANTSIN THE COMMUNITY REGISTERED TRANSIENTS 2,453 147 1 0 70 1 33 88 0 52 1 97 0 8 31 3 38 3 3 33 PLUMAS RIVERSIDE SACRAMENTO SAN BENITO SAN BERNARDINO SAN DIEGO SAN FRANCISCO SAN JOAQUIN SAN LUIS OBISPO SAN MATEO SANTA BARBARA SANTA CLARA SANTA CRUZ SHASTA SIERRA SISKIYOU SOLANO SONOMA STANISLAUS SUTTER TEHAMA TRINITY TULARE TUOLUMNE VENTURA YOLO YUBA Totals 34 APPENDIX B: LOCAL ORDINANCES REGULATING RESIDENCE AND PRESENCE OF SEX OFFENDERS AS OF OCTOBER,2008 Prepared by the California Department of Corrections and Rehabilitation . 8 3 2 _ 3Type of 5 = 3 2Restriction 2 5 o D . 5 2 Si Elo 3c = =e - ° = & °2/8 & 6 | & S/F a] e]s =p 3 3 o Ss L 4 a 8 = wn a = uw5 o |< s|/o|/2)/E)eE]| $ &/s|/51)2=/4 >8 g 8 |] elelsisiclzle/ti]ele 2/2 88Q 2p }fleo;el sl si El sl sl ei s/2) e/a] = 885 5 £ =~/e2;al2e]e]4 sla | 4182 @ = 3 a = E oO w KS >] $ 2 < o & 3§ 3 2 {/2/el/BiElalsl/Bl e+e] 2/3 El} >|=e]s]| Pe£ e 3 jelal/slalals)/e}/5/s)/5/5/ 21/8 )2/#) 83 CITY Apple San NONE ; 500 ft. | Y Y Y Y NoValley Bernardino Baidwin : 2000 300 ft. Y NoPark ft. Canyon Riverside NONE 500ft. NoLake Cerritos Los Y Y NoAngeles Chula Visia_| San Diego 500 ft. NONE Y' Y NoEi Centre Imperial 300 ft. | Y Y Y Y Y NoE! Monte Los 300 ft. Y Y Y Y NoAngeles Folsom Sacramento NONE 300ft. Y Y Y Y Y Y NoGalt Sacramento NONE [ 300 ft. Y Y Y Y Y Y Y Y Y. NoGrover San Luis 1000 NONE Y Y Y NoBeach Obispo ft. Hesperia San 4000 500ft. NoBernardino ft. La Mesa San Diego NONE |} 300 ft. Y Y Y Y NoLong Beach Los 2000 300ft. Y7 Jy? Ty Ty Y Y NoAngeles ft. Loomis Placer NONE 300 ft. Y Y Y Y Y Y NoNationai San Diego NONE } 300 ft. Y Y Y Y NoCity Paimdaie Los 3000 300ft. Y Yy.|Y Y Y Y Y Y Y Y Y Y NoAngeles ft. Paso San Luis 1320 | NONE ¥* Y Y |Y Y Y NoRobies Obispo ft. Placerville El Dorado NONE 300ft. Y Y Y Y Y Y Y Y NoPomona Los s NoAngeles Porterville Tulare NONE 300ft. Y Y Y Y NoSan Diego San Diego 2000 300ft. Y Y Y Y No ft. San Marcos | San Diego 300 ft. 300 ft. Y Y Y Y Y NoSanta Ana Orange NONE 300 ft. Y NoSantee San Diego NONE 300ft. Y Y Y Y Y NoShafter Kern 2000 300ft. Y Y Y Y No ft. South Lake El Dorado 2000 300ft. Y Y Y Y Y Y Y Y NoTahoe ft. 35 to £ = 5 2 sType of o "i z s Restriction E S £ | 2 2 c = So = o|2,? 3> o & Ele oija|lxi ele 2e i a o 3 = e 3 a &= 3 |= elsols Z| 3 8; e/a] “5 o |= s{/o/|/o/]2/ Ee] 8 Sielils|sa|a 23 = = =8 8 5 ° eloalslei/clFl x T- = a e WA 5 ea s am r K o u 4 Zz — WW e) D> pS ) O California Sex Offender Management Board Recommendations January 2010 aé Tools such as GPSandparole supervision canfall tragically short when jurisdictions don't work together to develop comprehensivestrategies to share information and communicate about supervision practices. This tragic case [Jaycee Dugard] highlights the need for systemic changes that will promote collaboration between agencies and the community at large. Community safety depends on what we see, what we know and how wetalk to each other. USA Today September3, 2009 Table of Contents Key Recommendations Introduction CASOMBFocus Areas Victim Services Investigation, Prosecution and Disposition Treatment Re-entry, Supervision and Housing Registration and Notification Special Populations Summary of Gaps from Previous CASOMBPublications Summary Recommendations from Previous CASOMBReports Appendices CASOMBPublications 16 24 29 37 50 59 64 79 87 110 California Sex Offender Management Board Members Attorney Janet Neeley, Deputy Attorney General Office of the Attorney General Scott Kernan, Undersecretary-Operations California Department of Corrections and Rehabilitation (CDCR) Robert Ambroselli, Acting Director Division of Adult Parole Operations California Department of Corrections and Rehabilitation (CDCR) Judicial Council The Honorable Peter Espinoza of Temporary Representative: James Rostron Sex Offender Commitment Program California Department of Mental Health i Vv r Sophia McBeth-Childs, Detective Sacramento County Sheriff (Investigative) Diane Webb, Detective III Los Angeles Police Department(Registration) Jerry Powers, Chief Probation Officer Stanislaus County Michael D. Johnson, County Administrator Solano County Suzanne Brown-McBride, Executive Director California Coalition Against Sexual Assault (CALCASA) Catherine Duggan, Director Crime Victims’ Assistance Program - Ventura County District Attorney's Office ' inted by the S te C itt Rul Nancy O’Malley, ChiefAssistant District Attorney Alameda County Tom Tobin Ph D. (Psychologist) California Coalition on Sexual Offending (CCOSO) Gerry Blasingame, MA, Licensed Marriage and Family Therapist California Coalition on Sexual Offending (CCOSO) Angela Thompson, Probation Officer Los Angeles County Probation Pamela King, Public Defender Criminal Defense Attorneys City Manager (Appointment not yet made) Key Recommendations The California Sex Offender Management Board (CASOMB)wascreated to provide the Governor and the State Legislature as well as relevant state and local agencies with an assessmentof current sex offender managementpractices and recommendedareas of improvement. The work of the CASOMBhasbeendivided into several significant committee focus areas. Provided below are the key summary recommendations of each committee. More substantive discussion, data and additional recommendationsare located in the bodyof the report itself. Re-entry, Supervision and Housing - In order to mitigate the potential public safety risk of increased offender transience, California should target the use of residencerestrictions utilizing a hybrid modelof restrictions similar to a 2009 lowa law: « Residencerestrictions should apply to the most serious offenders (SVP, repeat sex offenders, and offenders convicted of violent sex offenses) who have committed an offense againsta child. - Loitering restrictions should apply to designated Penal Code Section 290 registrants in places where children congregate (child safe zones) + California cities and counties should not pass sex offender residencerestriction ordinancesthat are in conflict with or exceed state law. « GPS monitoring should only be utilized in conjunction with some form of community supervision, with the understanding that some high-risk offenders may need to be subject to extended supervision (includinglifetime supervision for exceptionally high-risk offenders). Victim Services « Fundingfor victim service programs should be sufficient and stable so as not to erode the protection of victim rights and accessto services. « Multidisciplinary teams should beinstitutionalized at the state policy level. Investigation, Prosecution, Disposition « Communities should employ best practices that consider the Victim/Survivor’s health and well-being in addition to maximizing evidence gathering, successful prosecution and holding sex offenders legally accountable. These best practices include: Sexual Assault Response Teams (SART), Child Assault Centers (CAC), Multi-Discipline Interview Teams (MDIT) and Family Justice Centers. ¢ Law Enforcement and Prosecution should employ best practices designed to increase the effectiveness of respondingto, investigating and prosecuting sexual assault cases. These bestpractices include: Specialized Sexual Assault Investigative Units and Specialized Sexual Assault Prosecution Units. Treatment « To ensure effective treatment, CASOMBshould be provided resources to develop written policies and standards which should be implemented at the State level for - programming for sexual offenders. Separate standards are needed for adult, developmentally disabled andjuvenile sex offenders. ¢ Risk level-appropriate and evidence-based sex offender specific treatment should be routinely required for all adult and juvenile sex offenders under supervision in California. Registration and Notification « California should concentrate state resources on more closely monitoring high- and-moderate risk sex offenders. A sex offender'srisk of re-offense should be one factor in determining the length of time the person must register as a sex offender and whetherto post the offender on the Internet; other factors that should determine duration of registration and Internet posting include whether the sex offense wasviolent, was against a child, involved sexual or violent recidivism, and whetherthe person wascivilly committed as a sexually violent predator. « Law enforcement should allocate resources to enforce registration law, actively pursue violations, maximize resources and results by devoting moreattention to higher-risk offenders. Special Populations « California should investigate methods of increasing available treatment hours and participation rates for Penal Code Section 290 registrants who are committed or detained as inpatients within the Department of Mental Health. ¢ California should identify a more efficient method of determining when a parole violation is related to reoffense risk and appropriately triggers a clinical re- evaluation versus parole violations not related to risk that should not require an additional evaluation for parolees who have been previously evaluated and rejected for the Sexually Violent Predator Program. KE Y R E C O M M E N D A T I O N S Introduction Policymakers and public safety professionals bear an incredible weight of responsibility to promote the safety of California’s communities. The decisions that they makerelated to either the managementof specific offenders or through broader public safety policies can have sweeping implications that profoundly impactreallives. Vision The vision of the CASOMBis to decrease sexual victimization and increase community safety. Mission This vision will be accomplished by addressing issues, concerns, and problemsrelated to community managementof adult sexual offenders by identifying and developing recommendations to improve policies and practices. ~ In 2006, Governor Schwarzeneggersigned AB 1015, which created the California Sex Offender Management Board (CASOMB). The board was created to provide the Governor, the State Legislature and relevant state and local agencies with an assessmentof current sex offender managementpractices and recommendedareas of improvement. The board is comprised of individuals who serve across the public safety sector and who volunteertheir time and expertise in the service of CASOMB's vision and mission. Appointed by both the executive and legislative branch,or identified as representatives from designated agencies, board membersbring a varied setof skills and professional experiences and hail from jurisdictions as diverse as the state of California itself. The CASOMBtakesseriously its role to provide informed advice to state and local leaders. Overthe last three years, the CASOMBhas ° held monthly public meetings; ° held a series of public hearings across California; . provided consultation to legislators, state and local agencies and; . developed a series of papers and reports on emerging issues in an earnest attemptto identify policies and strategies, based on the best available evidence and professional experience,thatwill aid in the safe and successful managementof California’s population of identified, adult sex offenders. The board’s mandate is ambitious and in 2008 during the CASOMB’sinitial assessment of California’s sex offender management practices, the board observed: California is an exceptional state. Its size, diversity, distribution of resources and variations in practices make any assessmentofpublic safety strategies a complex and expansive challenge. The complexity of this challenge has not diminished overtime. In fact, due to California's economiccrisis and significant changesin state law, the challenge of quantifying, assessing and recommending policy changes that would improve sex offender managementpractices statewide has become both more complex and more fundamentally important. Theinformation regarding any one of the programs, themes, gaps and recommendationsidentified in this report could be significantly expanded upon. In some cases,it was impossible to attain a level of detail that would completely describe dilemmasthat public safety agencies face daily because the required supporting data is simply available or reliable. Also, the structurallimitations of a volunteer board operating with limited dedicated staff forced the board to leave someareasforinquiry open to future discussion and examination. The reality in California is, rather than a coherent and coordinated sex offender managementsystem,the state has multiple sex offender managementstrategies created by variouslegislative, voterinitiative and executive branch actions with varied “mandates”and very different funding requirements and funding assurances. California’s system of sex offender managementwascreated — for the most part — piece by piece through separate and uncoordinatedlegislative and administrative actions. Although various components of the system have learned to work together, the overall system could not be described as coherent, cohesive and coordinated. In many ways the CASOMB’s challenge to understand, map and improve a complex, ever-changing system within the limited confines of time and resources is emblematic of the challenge that local communities and state agencies which manage sex offenders face constantly. Everyday public safety professionals at every level of government, in every community in California, continue to struggle valiantly to address whatis one of the most challenging issues in community safety in an environmentthatis polarized, fraught with complexities and starved for even the most basic resources. “Managing convicted sex offenders in the community poses extremely difficult challenges for policymakers. No other category of criminal evokes more fear and public outrage, and few communities want convicted sex offendersliving in their area.... Inaccurate perceptions have madeit difficult for policymakers to enact research-basedpolicies.” (Managing Convicted Sex Offenders in the Community; National Governors Association - Center for Best Practices; 2007) Sexual crimesrightly outrage communities. The legacy of sexual assault in the lives of victims is often profound and long-lasting. In the aftermath of an assault, communities often demand with great vehemence that policymakers and public safety professionals DO SOMETHING. Theroot of the desire to acknowledge the serious nature of the crimeis difficult to disparage but, when combined with fear, misinformation and the heat of media inquiry, the flame of community outrage can create a political environmentthat rewards swift action over more methodical, effective approaches. On occasion, these swift approaches may addressshort-term community outrage at the cost of directing resources and skilled personnel away from investments in strategies for long-term safety. The CASOMBspenta significant portionofits time surveying at least some of the challengesthat jurisdictions in California face whentrying to effectively manage adult sex offenders, and thelist is far from complete. Despite the myriad of public safety concerns associated with sex crimes, the CASOMBhas concludedthat the high, and still escalating, rate of homelessness among sex offenders in California is one of the most serious issues facing the field of sex offender management. Where, and how, sex offenders should live has becomethe central crisis of sex offender man i lifornia. h ing i has demonstratedthesamepotentialtofrayDeseie the myriad of pubic . . . safety concerns associated with community re-entry collaborations, complicate sex crimes, the CASOMBhas supervision, and underminethe offender's long-term concludedthat the significant stability. The CASOMBbelieves strongly that one of increasein the rate of the most fundamental questions in public safety is homelessness among sex not where sex offenders shouldn't live, but where offenders and lack of appropriate housing in California is the most serious issue facing thefield of sex offender management. should theylive safely. The question of housing is not simply the domain of civil libertarians or those driven by humane concern. Appropriate housing, homelessnessand the instability created by transience are public safety concerns. Every child, woman and manin California deservesto be safe from sexual violence. Even though a knownsex offenderliving near a park may seem like the most obvious threat, far more Californians will be sexually victimized in their own homes by acquaintancesor family members. Thelackof significant in-homeintervention and prevention resources is symptomatic of an approach that fundamentally misunderstands the complete extent and nature of sexual violence. The CASOMBacknowledgesthis broader context of sexual victimization, and recognizesthe limitations of our mandate that is focused on already identified offenders. No two sex offenders pose the samelevelof risk, nor can they be managed or supervisedin identical ways. Laws andpolicies thatfail to take into accountthe real differencesin risk that individual offenders might pose will misallocate valuable resources and misunderstand potential threats. The ultimate success of California's sex offender managementsystem will depend onits ability to understand the myriad of ways that sexual offending occurs and then adjust to intervene and managethatrisk. Similarly, policymakers and the public should be suspicious of any one technology or strategy which promises to solve the problem of sex offenders. Sexual offending is a complex problem that will require a thoughtful, multifaceted approachto effectively address and, ultimately, prevent. Some of our most public and tragic sex offender managementfailures have demonstrated the importance of qualified, trained professionals working in concert with otherdisciplines to identify emergent risks. Tragedies are not averted because of a single data point ortool, they are averted because qualified professionals know how to interpret that data in context, communicate with each other and respond accordingly. In a time of scarce resources, board members agree that approachesthat can demonstrate success should take priority over those that are untested. Furthermore, policymakers should insist on ongoing evaluation of sex offender management strategies to ensure that quality is maintained and that new approachesareeffective. In light of the serious stakes, huge challenges and potentially dire consequences, it has been important to identify principles that can guide California’s communities. The detailed recommendations containedin this report fall under several larger themes: Victims and potential victims of sexual assault should inform andinspireall approachesto sex offender management. The chancesofpositively impacting public safety are improved whenvictims feel encouraged to report their experiences and are able to actively engagein the criminal legal process. The long-term health and healing of victims is aided by ensuring that victims can access supportive services and restitution. There are still too many gapsin California’s sex offender data collection. This state has one ofthe largest identified sex offender populations in the world yetlittle has been doneto ensure that policymakers and public safety professionals have state- specific information that could guide their decision-making. Three fundamental principles should inform sex offender managementstrategy: risk, need, responsivity. The “risk” principle says that the greatest resources and efforts should be directed toward thoseindividuals with the highest risk of reoffending. Changesin California's risk assessment practices have gone a long way to improving the quality and accuracy of offender assessment. Similarly, important statewide efforts such as the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) review committee continue to help California conform to evidence-based practices. 10 The “need”principle says that the focus of intervention should be on those characteristics of offenders that are shownto be associated with the propensity to reoffend and that have the potential to be changed through targeted interventions. Finally, the “responsivity” principle states that interventions must be delivered in ways that best match the learning capacities of the offenders. These principles apply primarily to correctional programming but can also be used to guide various other community safety endeavors. Therefore, in addition to “risk,” successful sex offender management approaches must include an assessmentof offender “needs” andthe identification of strategies that can maximize an offender's “responsivity” to behavior change. Essential to this processis the use of sex offender treatment professionals. There is an extensive body of evidence and research that documentthe positive public safety impact of sex offender treatment, particularly when coupled with supervision and managementstrategies. Coordinated responseswill always be moreeffective than the work of a single agencyor supervisor. Effectively understanding offenderrisk and implementing effective community managementstrategies require a hostof skills and resources. For the managementofindividual offenders, coordinated efforts such as the “Containment Model” and Sexual Assault Felony Enforcement (SAFE) teams emphasize the successofcollaborative information sharing, enforcement, treatment, and supervision activities. Local and statewide systems can benefit from coordinated teams such as sex offender management councils to promote interagency communication and policy improvement. Efforts like those in San Diego and San Francisco County have had lasting and important impacts on community response and could provide similar benefits if implemented elsewhere. Managementactivities are only as good asthe skills of those who are tasked with performing them. The complexity of both the nature of sexual offending and interventions require a specialized body of knowledge andskills. Investmentsin skilled personnel who perform investigation, adjudication, disposition, supervision, treatment and monitoring activities will enhance the overall capacity of the system to appropriately manageoffenders. Effective re-entry is an importantfirst step. The period of time immediately after an offender’s release from prisonorjail is an important indicator of that offender's ultimate success in the community. Maximizing effective supervision and supportive resources (such as housing, treatment, and appropriate employment) during this time can maximize the potential for some offendersto refrain from reoffending. Weare all members of a community safety team. The public will also have to examineits relationship with and understanding of sex offender managementpractices. 11 Community education is key. Policies that reduce the risk of reoffending by managing sex offenders must have a goal that promotes the success of sex offenders. Successful re-entry includesa life without re-offending. Public education efforts that dispel misunderstanding and promote information sharing can enhance the capacity of a community to manageidentified offenders, as well as assist in a response to newincidents and ultimately prevent future victimization. . Similarly, community-based efforts such as Circles of Support and Accountability (COSA)focus on ways that a community can support offenders to remain offense-free. With these principles in mind, the CASOMBhasorganizedits work into a numberof areasofinquiry: Victim Services Investigation, Prosecution and Disposition Treatment Re-entry, Supervision and Housing Registration and Notification The following sections of this report provide a more extensive examination of California's current status in each of these focus areas and offer important recommendations about future directions. Research Gaps As the CASOMBhasbegunto move forwardin its attempts to bring coherence to and maximize the effectiveness of California’s efforts to manage the state’s sex offenders,it has becomeincreasingly clear that important information tools to understand and improve the extremely complex system are lacking. One of CASOMB’s groundingprinciples is that sex offender managementstrategies should be basedonreliable information and on the findings of solid research regarding the effectiveness of various approaches. Such an evidence-based perspective cannot makethe desired progressif the evidence that is soughtis too difficult to obtain oris simply not available. The CASOMBinvested considerable effort into developing a “Dashboard”to track and report key data on California sex offender managementtopics. It has proved very difficult to obtain and maintain the data needed to keepthis reporting system updated. The CASOMEBbelieves that one foundational task is to determine the effectiveness and cost effectiveness of any effort undertaken to manage sex offenders. The availability of key data is crucial to answering questions about the effectiveness — and, subsequently, the cost effectiveness - of various management approaches. 12 It is anticipated that the revision of the Departmentof Justice systems for maintaining the Megan’s Law website — an effort now underway— will eventually be of help in making a widerarray of important information about registered sex offenders available to researchers. Following is an enumeration of some areas where the CASOMBbelievesthat the availability of accurate information would support better policy decision making. Thislist is not intended to be exhaustive. The order and numberingin the followinglist are not intended to reflect order of importance. 1. California needs to make a determination of the numberof convicted sex offenders being handled at the county level, particularly the number on county probation but also the numberserving post-conviction time in countyjails. 2. California should conduct an analysis of the true recidivism rate (arrest or conviction) for sex offenders released from custody after serving a sentence in a CDCRprison. Such an analysis could look at recidivism over three-year, five-year and ten-year periods. To be meaningful, it would need to accountfor actual time atrisk in the community and not include time whenthe individual had been returned to custody and so wasnotactually at risk to re-offend — a method of analysis not readily accomplished with data currently available. The presence or absence of certain management practices should be noted as well, including supervision, Containment, treatment, GPS tracking andothers. 3. Asimilar analysis is needed for the recidivism of sex offenders sentenced to county probation. 4. Since the state is expending substantial resources on GPSfor sex offenders,a large scale me evaluation and cost effectiveness lysis of GPS should be conducted. Such a study should include both CDCR andcounty probation and should take into accountthe risk jevel of the sex offenders included in the study. 5. The assumption that residence restrictions actually contribute to public safety should be evaluated. It seemsclear that residence restrictions are driving up the numbersof homeless sex offenders and so the recidivism of transient versus those who have stable housing should be compared. Research strategies should be developed to answerthe challenging question of whether residencerestrictions actually increase public safety. 6. California should develop an accurate analysis of the projected total costs for GPS tracking if lifetime supervision were implemented. 7. \f California were to come into compliance with the federal Adam WalshAct there would be substantial implementation costs. Although estimates have been generated with regard to some of the AWA requirements, an accurate forecast should be developedto clarify the actual anticipated costs for all aspects of the new AWA requirements. 13 8. Under changes required by Proposition 83, increasing numbersof individuals now must be screened and evaluated to determine whether they meetthe criteria forcivil commitmentas a “sexually violent predator.” These evaluations are very costly. Some careful analysis is needed to determine whether the benefits of such an extensive use of full SVP evaluations are justified by their benefit to community safety or whether there are other, less costly ways to preliminarily screen and determine whethera particular candidateis likely to meetthe criteria for commitment. 9. There is a need to determi e full for requiring lifetime registration an notification for ail PC290 registrants. Elsewherein this report it is recommended that California revise its requirements forlifetime registration. A better knowledgeof the full cost to the state andto localjurisdictions for maintaining and enforcing the lifetime requirementforall sex offenders, no matter whattheir risk level or how long they have lived crime free would furtherclarify the best future direction for California registration requirements. 10. Proposition 83 empoweredcities and counties to enact their own residence restrictions for sex offenders. Not only is there no provision for keeping track of the proliferation of these regulations, but their impact is unknown. Research is needed to determine the impactoflocal ordinances on the housing of sex offenders, their degree of transience and their movement acrossjurisdictional boundaries as a result of such restrictions. 11. California should gather data tracking of the flow of sex offender cases from initial police report to arrest to conviction to disposition (including length of stay in prison) to supervision period to the post-supervision period. Such data would give a much clearer picture of how the larger system works and what impact various changes, such as longer sentences, have had. It would, for example, help planners determine whether the 25-years-to-life sentences are going to stem the flow into the civil commitment program. 12. Information should be gathered regarding how manysex offenders enter treatment programs and how many never do and whether that makesa difference in recidivism - inasmuch as research seems to suggestit may be the only intervention that does. Such research should also include information about the nature, length and quality of treatment programs. Acknowledgements The CASOMBowesa debtof gratitude to the victim / survivors of sexual violence who shared their experiences and provided guidance to the board. Weare also gratefulto victim-serving organizations such as California Crime Victims Assistance Association, California Consortium of Multidisciplinary Centers and Teamsand the California Coalition Against Sexual Assault for supporting the developmentof this report and recommendations. 14 The CASOMBis thankful for the ongoing support of the California Departmentof Corrections and Rehabilitation for our work. In particular, the support of Secretary Cate, the Division of Adult Parole Operations, and Victim Services. This report was also informed by many community members whoprovided commentat public meetings and hearings as well as professionals who agreed to be expert consultants to the of various CASOMB subcommittees. Several local and statewide public safety efforts over the last five years have helped inform and frame our work. Theseinclude the sex offender managementteams in San Diego and San Francisco, Governor Schwarzenegger’s 2006 High Risk Sex Offender Task Force, and theCalifornia Sex Offender Management Task Forcefacilitated by the Center for Sex Offender Management. 15 ictim Services Effects of Sexual Assault and Victim Assistance Sexual assaults are exceptionally threatening traumatic events outside the range of usual human experience. While somevictims exhibit a greater ability to adapt and a higherresiliency, generally, victims of sexual offenses are markedly distressed. Whetherthe effects of sexual offenses are easily visible or not, the stress reaction is generally understood to be a shattered worldview, which leads to profound feelings of VICTIM SERVICES RECOMMENDATIONS: Funding for victim service programs should be sufficient and stable so as not to erode victim rights, services, and ability to participate in offender management systems. * There should be restitution specialist position thatensures direct victim restitution orders are obtained from the court in a determined amount. Muiltidisciplinary teams should be institutionalized at the state policy level. Agenciesthat work with and represent people with disabilities should be a part of and participate routinely in multidisciplinary teams. Policies and procedures should bein place to ensurethe ability to respond sensitively and effectively to victims with disabilities. distrust. A sexual offense shatters the victim’s assumptions about the world because the world is experienced—thatis, after the offense—as unsafe and unjust, which causesa senseofisolation and estrangement from others. Victims may suffer psychological reactions including a disassociation and an intense fearfor their lives. Whenthe offense is perpetrated by an acquaintance,friend or lover, violation of trust can bea life-altering issue for the victim. A victim may lose his or her sense of community and belonging as a result of intense feelings of guilt and devaluation. The traumatic effects of sexual assaults involving child victims can have a lasting impact on the child’s physical and mental health, overwhelming the child’s coping and ego defense mechanismsand threatening the child’s physical integrity. Beyond the immediate consequencesof a sexual assault, the residual effects present problem behaviors in adolescence and adulthood. Childhood victimization is a significant predictor of adult arrests for alcohol and/or drug-related offenses.’ Childhood victimization has been found to be statistically significant predictor of having at least 1 NationalInstitute of Justice, U.S. Department of Justice, Childhood Victimization and Risk for Alcohol and Drug Arrests, November 1995. 16 one alcohol-or drug-related arrest in adulthood. The indirect path between childhood victimization and adult substance abusearrest is well demonstrated. Child victims of sexual offenses are morelikely to have an arrest as a juvenile, and those arrested as juveniles are at greaterrisk for arrests for alcohol or drug offenses as adults. Child victims of sexual assault—female victims, especially—are morelikely to be arrested for property, alcohol, drug, and such misdemeanoroffenses as disorderly conduct and curfew violations.2_ The significance of the offense profoundly harmsthe child’s parents as well. Once the offense is discovered, it is commonfor the child’s parents to experience a deep senseof guilt and failure—which provides but a single glimpse of the impact on widersociety. The significance and scope of sexual assault is an important criminal justice issue. The lasting impact of sexual assault and the rights of the victims should be a central concern to the managementof adult sex offenders. VICTIMS’ CONSTITUTIONALAND STATUTORY RIGHTS At the November 2008 General Election, the people of the state of California adopted by initiative Proposition 9, which became knownasthe Victims’ Bill of Rights Act of 2008: Marsy's Law. The Act of 2008 amendsArticle 1, section 28 of the California Constitution. While the rights enumeratedin the Victims’Bill of Rights Act of 2008 generally existed in California statute, the passage of Proposition 9 makesthe rights part of the constitution. There are special rights for victims of sexual assault in the California Penal Code, Evidence Code, and Health and Safety Code. Fora list of constitutional and statutory rights, please see Appendix A and Appendix B. VICTIM NOTIFICATION The right to participate in the processof justice is important to victims of crime. However, victims cannot participate unless they are informedof their rights and of the time and place of the relevant proceeding that they may exercise those rights. Without notification, victims of sexual assault are also denied the ability to take precautions for their safety. Therefore, the most fundamentalright of a victim is the right to be kept informed. Notifying victims in advance of a proceeding and informing them oftheir rights to participate in that process are prerequisites to the exercise of the victim's rights. Keeping the victim informed should be an important part of the missionof local and state law enforcement agencies, prosecuting agencies and correctional agencies. It should be reflected in the agency’s internal policies and procedures, as well as in the attitudes of agency personnel. 2 NationalInstitute of Justice, An Update on the “Cycle of Violence”, February 2001. 17 VICTIM RESTITUTION Restitution is an important part of an offender’s sentence. It is effectively a rehabilitative penalty in that it increases accountability by holding the offenderfinancially responsible for the crime and compensating the victim for the costs caused by the offender’s actions. In every case where the sexual offender is convicted, the court imposes a restitution fine. The court may determine the amountof the fine as the product of $200 multiplied by the numberof years of imprisonment the offenderis ordered to serve, multiplied by the numberof felony counts of which the offenderis convicted. Misdemeanoroffenses are assessed at a minimum of $100. The offender’s inability to payis not to be considered a compelling reason not to imposea restitution fine. Inability to pay is considered only in increasing the amountof the restitution fine in excess of the minimum fine. Whereverthe victim has suffered economic loss as a result of the offender’s conduct, the court requires the offender make restitution to the victim in an amount established by court order, based on the amountof loss claimed by the victim. If the amountof loss cannot be ascertainedat the time of sentencing, the restitution order includes a provision that the amount shall be determined at the direction of the court. Since a sexual offender’s probation may not be revokedforfailure to pay restitution unless the offenderwillfully failed to pay and had the ability to pay, many sexual offenders reach the end of their probation terms without makingfull restitution. In March 2006,the California Department of Corrections and Rehabilitation, Office of Victim and Survivor Services published the results of a study relating to adult inmate restitution. The study included men and womenat state prisons and camps,but did not include community correctionalfacilities or parolees. The moststriking finding included wasthat only 11 percentofall offenders had direct restitution orders. Of those offenders with direct restitution orders only 19 percent of the victims had requested collection. The study concluded,. . . victims’ constitutional right to receive restitution from their offenders continues not to be honoredor enforcedin California at this time. Since January 2007, the California State Department of Corrections and Rehabilitation automatically collects from offendersin all victim restitution cases whetheror not the victim has ever contacted the department, and in preference to restitution fine collections. This has dramatically increased victim restitution collections, but has also challenged county authorities to provide victim recipients’ contact information to the department. Two out of every three cases cometo the departmentwithout sufficient information to disburse victims’restitution collections. 3 California Department of Corrections and Rehabilitation, Office of Victim and Survivor Services, Prison Restitution Project, 2004 Survey, March 2006. 18 In January 2009,the California Department of Corrections and Rehabilitation was given legislative authority to use the California Franchise Tax Board (FTB)to collect unpaid victim restitution from all offenders who have been underthe department's jurisdiction. it will be necessary to coordinate between agencies,including the Victims Compensation and Government Claims Board to improve restitution collection systems. VICTIM COMPENSATION FOR ECONOMIC LOSSES California’s Victim Compensation Program is the largest in the nation. The program provides compensation forvictims of crimes whoare injured or threatened with injury. Eligible family members or other specified persons mayalso beeligible for compensation underthe program. The program paysfor services such as medical and dental care, mental health services, lost wages or support, funeral or burial expenses, and emergencyrelocation. Crime can leave victims and their families with bills for medical, mental health counseling, funeral services, lost wages and with the financial costs associated with a numberof other consequencesof the crime. The compensation program, whichis a claims-based program, supports direct paymentsto victims and providers for crime-related expenses. However, the program exists to provide help to the victim and family membersafter all other reimbursement sources have beenutilized. In other words, the program is the payerof last resort. Victims are reimbursed only after other available sources have been exhausted. Aspart of its 2008 Budget Analysis, the Legislative Analyst's Office estimated the Victim Compensation Program will becomeinsolvent in approximately 2012-13, when it would _run a deficit of nearly $35 million. The Office described the likelihood that expenditures will grow faster than therelatively stable revenues flowing into the fund. The increased expenditures are due to (1) increased awarenessof the service provided by the program;(2) various changesin the program's compensation of service providers, and (3); the increased use of the fund in recent years to support other new state programs. The California Bureau of State Audits presented its audit report concerning the Victim Compensation Program Dec. 9, 2008. The audit report was requested by the Joint Legislative Audit Committee. The report concludes that program compensation payments sustained a 50 percent decreasefrom fiscal years 2001-02 through 2004-05 asa result of attempts to maintain the fiscal viability of the Restitution Fund. Compensation payments have increased since fiscal year 2004-05, but notto the level they reachedin fiscal year 2001-02. Despite the significant decline in payments,the costs incurred to support the program increased. These costs—ranging from 26 percent to 42 percent annually—accountfor a significant portion of Restitution Fund disbursements. The report went on to say the program hasnot established a comprehensive outreachplanto assistit in appropriately prioritizing its efforts and focusing on those in need of program services. As a recipient of Violence Against WomenAct funds, California is required to provide medical treatment for sexual assault crimes at no charge to the victim. Further, 19 California law prescribes that a sexual assault victim cannotbebilled, either directly or indirectly, for any treatment as a result of a sexual assault crime. Although case law has determined that the Compensation Program is the payerof last resort, unique to sexual assault is the prohibition ofbilling a victim, either directly or indirectly, including that victim’s insurance. Therefore, in compliance with both federal and state law,the victim of sexual assault shall never be financially responsible paying for treatment arising out of his or her sexual assault victimization. JUSTICE-BASED AND NON-GOVERNMENTALVICTIM SERVICES Formal help sourcesfor victims of sexual assault include justice-based and non- governmental victim service programs, as well as other helping agencies that serve victims as part of their larger mission (e.g., healthcare and mental healthcare facilities). The provision and funding of direct victim services is spread across several state departments and agencies that havelittle interaction. These include four Cabinet-level agencies, the Governor's office, two other constitutional offices and at least 11 state departments.* The major sources of funding for victim services include the Victim Compensation and Government Claims Board® and the California Emergency Management Agency (CalEMA)*®. In addition to these entities, other departments play a role in the provision of victim services, including the Attorney General's Office, the Departmentof Corrections and Rehabilitation, the Department of Social Services and the Department of Mental Health. The lack of a single lead agencyat the state level results in limited collaboration, duplication of services, ineffective partnerships and the absence of a statewide strategic approach to funding decisions. Without a statewide strategic approachto funding decisions, or a systematic method for communication and collaboration among the many public and private providers who serve crime victims, collaboration on crosscutting victims’ issues is the exception. The collaboration that does take place is generally ad hoc, haphazard and dependsonindividual personalities and preferences.’ Primary among the professional service providers for sexual assault victims are the Victim/Witness Assistance Programs, Rape Crisis Centers and Child Advocacy Centers. MULTIDISCIPLINARY TEAMS/CHILD ADVOCACY CENTERS Child Advocacy Centers (CACs)play an increasingly significant role in the response to child sexual abuse and otherchild maltreatment in the United States. CACs are 4 California State and ConsumerServices Agency, Strengthening Victim Services in California, A Proposal for Consolidation, Coordination, and Victim-Centered Leadership, November 2003. 5 information about this program can be foundat http:/Avww.boc.ca.gov/ 5 Information about this program can be foundat http://Awww.oes.ca.gov/ under Law Enforcement and Victim Services Division ? California State and Consumer Services Agency, 2003 20 designed to reduce the stress on child abuse victims and families created bytraditional child abuse investigation and prosecution procedures and to improvethe effectiveness of the response. Before the advent of CACs,child victims were subjected to multiple, redundantinterviews about their abuse by different agencies, and were questioned by professionals who had no knowledgeof children's developmentallimitations or experience working with children. Child interviews took place in settings such as police stations that would further stress already frightened children. The multiple agencies involved did not coordinate their investigations, and children's need for services could be neglected. CACscoordinate multidisciplinary investigation teams in a centralized, child-friendly setting; employ forensic interviewers specially trained to work with children; and assist child victims and families in accessing medical, therapeutic, and advocacyservices. Despite the widespread growth and importance of CACs, however, the model had not been rigorously evaluated until until 2001 when the Office of Justice Programs funded a multi-site evaluation of CAC’s. The study was conducted by the Crimes Against Children Research Center at the University of New Hampshire in conjunction with research teamsat each of the CACsparticipating in the study. Researchers enrolled casesin the study between December 2001 and December 2002. Data collection continued through December 2004. Data from more than 1,000 cases of sexual abuse werecollected from four CACs and from communities without CACs.° Whatfollowsis an overviewof the effects that CACs have had on child abuse investigations. * 81 percentof investigations in CACs werejoint police and child protective services investigations compared with 52 percent in communities without a CAC. * 28 percent of CAC cases used team interviewing compared with 6 percent in non-CAC communities. * 55 percent of CAC interviewsinvolved police compared with 43 percent of non-CAC communityinterviews. * 56 percent of CAC cases had multidisciplinary case review, compared with 7 percent in non-CAC communities. * 83 percent of CACsheld interviewsin centerfacilities designed for interviewing children, while 75 percent of interviews in non-CAC communities were conductedin child protective agencies, schools, police stations or children's homes. * 85 percent of cases in CACs and non-CAC communities involved only one child forensic interview. 8 Project Researchers: University of New Hampshire: Theodore P. Cross, Lisa M. Jones, Wendy A. Walsh, Monique Simone; Lowcountry Children’s Center: Arthur Cryns, Polly Sosnowski; Dallas Children’s Advocacy Center: Tonya Lippert-Luikart, Karen Davison; National Children's Advocacy Center: Amy Shadoin, Suzanne Magnuson; Pittsburgh Children's Advocacy Center: David Kolko, Joyce Szczepanski. 21 ¢ Over 70 percentof children disclosed at forensic interviews in both CACs and non-CAC communities, with statistically significant difference between the two. * 48 percent of children in CAC cases received a forensic medical exam, compared with 21 percent in non-CAC communities. VICTIM SERVICE PROVIDERS AND SEX OFFENDER MANAGEMENT Victim service providers workdirectly with crime victims and comeinto contact with them on a daily basis. Victim service providers are eminently qualified to assist in managing sex offenders from a victim-focused perspective, duetotheir history of working with and on behalf of sexual assault victims. Their knowledge of the needs of victims can enhance sex offender managementpolicy development, professional training initiatives, day-to-day practices, and community notification and education efforts. In addition, victim service providers offer services to victims to respond to issues that may arise whentheir perpetrators are released on probationorparole. Involving victim service providers also assures that community and governmental bodies are responsive to victims' needs and establish policies that condemn and prevent sexualoffenses. If offenders disclose crimes with new victims during supervision or treatment, victim service providers can work with supervision agencies and treatment providers to consider ways to offer assistance to these victims. Victim service providers can help victims achieve their personal goals with the criminaljustice system, instead of goals defined by prosecutors, judges, probation and parole officers, and sex offender treatment providers. Traditionally, the involvementof victim service providers has taperedoff after sentencing. However, victim safety and well-being must continue to be a priority when convicted offenders are released on probation or parole. Although the concept of involving victim service providers in sex offender management is emerging, the Center for Sex Offender Management, a project of the Office of Justice Programs, U.S. Departmentof Justice, suggests that victim service providers can assist victims in the following ways oncea sex offenderis released on probation or parole: 9 * Explaining the community supervision and treatment program to victims; * making sure victims are informed of changesin offenders‘ status and conditions of supervision; * helping victims develop a safety plan; * facilitating victim input regarding supervision and treatmentplans; * ensuring that treatment providers view their responsibility to the victim as equalto their responsibility to the offender with who they are working and; * participating in case review meetings and sharing information that promotesinformed case decisions that promote victim protection. 9 For a detailed discussion of the victim-centered approach to sex offender managementplease see: a publication produced by the Center for Sex Offender Managemententitled: Engaging Advocates and OtherVictims Service Providers in the Community Managementof Sex Offenders www.csom.org 22 Furthermore, the Center promotes a more comprehensive victim-centered approach including: Educating stakeholders about the benefits of a victim-centered approach; identifying promising practices; encouraging victim service providers to take a leadership role in advocating for the needs of victims of sex offenders supervised in the community and new victims identified in the process of sex offender management; encouraging multi-disciplinary training among supervision agencies, sex offender treatment programsand victim service providers; helping agencies build their capacity to collaborate and; supporting the establishment of sex offender supervision units that include a role for victim service providers. 23 : Investigation, Prosecution and Disposition Sexual assault crimes against children, teens and adults are considered someof the most heinous crimeswith the potential for lifelong impact on the victims of sexual assault crimes. More than any physical injuries a victim sustains, the violation of trust that accompanies most sexual assault has been shownto dramatically increase the level of trauma the victim suffers. Emotional and psychological injuries cause harm that can last much longer than physical wounds.'° Withouteffective investigation, prosecution and disposition, no other elements of sex offender management would be possible. INVESTIGATION, PROSECUTION AND DISPOSITION RECOMMENDATIONS: « Communities should employ best practices that consider the victim/survivor's health and well-being in addition to maximizing evidence gathering, including utilization of Sexual Assault Response Teams (SART), Child Assault Centers (CAC), Multidisciplinary Interview Teams (MDIT) and Family Justice Centers. + All law enforcementofficers who are tasked with investigating sexual assault crimes should complete a state certified course for the training of specialists in the investigation of adult sexual assault cases, child sexual exploitation cases, and child sexual assault cases." + Law enforcement should adopt guidelines and proceduresfor the investigation of sexual assault cases and casesinvolving the sexual exploitation or sexual abuse of children, including police response to and treatmentof victims of these crimes.'2 » Law enforcement should employ the best practice of specialized Sexual Assault Investigative units.1° ¢ Prosecutor Offices should employ the best practice of Vertical Prosecution Units and Vertical Prosecutorsutilizing true Vertical prosecution. ¢ The Center for Judicial Education and Research (CJER) should employ the best practice of Judicial Education and Training. 10 For a longer discussion of the effects of sexual violence, please see the January 2008 CASOMB Assessmentof Current ManagementPractices of Adult Sex Offenders in California 35-37 (available at casomb.org) also see the 2007 California Sex Offender Management Task Force Report (available at casomb.org) 11 For suggested training content please see APPENDIX D 12 For suggested guideline elements please see APPENDIX E '3 For a longer discussion see 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offenders in California 88 (available at casomb.org) 24 « Prosecutor Offices should employ the best practice of adopting established guidelines that ensure consistency andintegrity in filing decisions and, wherever possible, designate on experienced sexual assault prosecutor to makefiling decisions." - Prosecutor Offices should employ the best practice of establishing case review and filing guidelines that ensure consistency in plea bargains and dispositions.'® « All Prosecutor Offices should adopt California District Attorneys Association (CDAA) Filing Standards, updated and published annually. « All Prosecutors who are conducting sentencing negotiations and dispositions of sexual assault crimes should attend the CDAA Charging and Sentencing Training Seminar within six months of the assignment or as soonaspractical. - Prosecutor Offices should utilize the best practice of the Sexual Assault Mentor DA Program.'6 ¢ The Legislature may explore a promising practice of enacting statutes that allow sufficient judicial sentencing discretion in individual cases. + Recognition should alwaysbegivento the reality that that sex offenders are a heterogeneouspopulation with different risk profiles and treatment needs. « Allow sentences, where appropriate, to be commensurate with the levelof risk posed by the offender as well as the severity of the offense. - Ensure that Victim impact statements and restitution requirements be included in the sentencing process, as these statements provide insight regarding the impactof the crime on theindividual victim and community at large. + The Legislature and Courts should adopt the promising practice of sentencing practices which support sex offense-specific treatment and community supervision efforts (“Evidence based sentencing”). “Evidence based Sentencing” should include’: Following incarceration, mandates for sex offense specific treatment, sufficient periods of community supervision following incarceration that allow for monitoring, relevant special conditions or restrictions court- leveraged consequencesfor non-compliance with supervision requirements. 14 For a longer discussion see 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offenders in California 87-88 (available at casomb.org) 15 For a longer discussion see 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offenders in California 96 (available at casomb.org) 16 For Mentor DA Program Criteria see APPENDIX F 17 See the 2007 California Sex Offender Management Task Force Report 33 (available at casomb.org) 25 Sexual assault investigation is a complex endeavorthat requires both a collaborative approach and specialized knowledge amongthoseinvolvedin the investigative process. The effective managementof sexual assault offenses begins with a thorough and accurate investigation. The need for implementation of best practices and the openness to explore promising practices in the investigation and prosecution of sexual assault cases are paramount. There currently exist best practices upon which recommendations are based and “promising practices” upon which recommendationsare considered. A best practice is a continuum of practices/programs ranging from promising to evidence-based. Working with “promising practices”is a type of quality movement promoting the conceptof “doing ourbest.” _ Sexual assault victims should always have the choice about when, with whom, and underwhatconditions they wish to discuss their experiences.It is clear that the victim's recovery will be enhancedif she or he feels believed, supported, protected, and if she or he receives counseling following the disclosure that she or he was assaulted. The criminal justice system exists to protect victims of crime and hold perpetrators accountable. Improvementin the effectiveness and successof the criminaljustice system will enhancevictims’ confidence in those systems, which will result in more participation in the systems and better managementof sex offenders. The mannerin which the investigation is conducted, the success with which the cases are prosecuted and the respect, dignity and caring for the victim of sexual assault whoparticipates in the criminal justice system can be key contributors to the healing and recovery of the victim. Holding sex offenders accountable for their crimes, including imposing appropriate punishment and eventual managementof convicted sex offenders in our communities,will also be key in preventing future sexual assault crimes and sexual assault crime victims. In previous reports the CASOMBhas examined and detailed specific issues, gaps and recommendationsrelated to the investigation and prosecution of sex crimes by adult offenders.'® This report builds on that information by examining issuesrelated to the disposition of these cases. Towards the Developmentof Promising Practices in Disposition Overthe last several years, the Legislature has enacted sentencing laws that have significantly reduced the discretion of the Court in imposing post-conviction sentences. With the enactment of the “one-strike sexual assault law” (PC Sect 667.61), more indeterminate sentences are handed down. Through the enactmentofthe “three strikes law” (PC Sect. 1170.12), convicted sex offenders are required to serve 85% oftheir sentences. However, a significant numberof offenders who are convicted of child sexual assault crimes are being placed on probation with conditions. The lack of a centralized database that tracks the sentencesofall sex offendersinhibits the 18 January 2008 CASOMBAssessment of Current ManagementPractices of Adult Sex Offenders in California 85-98 (available at casomb.org) 26 opportunity to establish best practices in sentencing or to develop “evidence-based” sentencing. “Promising Practices” are methods, modesof operation, actions or philosophiesthat maylead to the intended outcomebut have yet to be adequately tested. Developing Promising Practices include measurable objectives. These practices are evolving and include constant improvement. Promising Practices generally reflect theories and beliefs, processes andstrategies thatutilize or reflect relevant evidence. A Promising Practice has an evaluation component/plan in place to move towards demonstration of effectiveness. However, it does not yet have evaluation data available to demonstrate positive outcomes. Promising Practices continually incorporate lessons learned, feedback, and analysis to lead toward improvementofidentified positive outcomes. A Promising Practice must depend onthe collection of validated data in order to move forward. While muchattention is placed on “evidence-based sentencing,” it remains a Promising Practice until the process of testing and identifying the intended outcomes can occur and be reported as successful. Therefore,it is important to create a validated data collection modefor evaluating crimes, convictions, sentencing and successful outcomes of lack of re-offending, protection of the community from future sexual assault crimes and protection of the victim from further victimization. To begin the processof establishing and evaluating a “Promising Practice’ the Legislature should create policy based on the recognition that sex offenders are a heterogeneous population with different risk profiles and treatment needs.'? The Courts, as part of the evaluation of a promising practice, should impose sentences- to the extent possible - that are commensurate with the level of risk posed by the offender, the severity of the offense, and the capacity of the criminal justice system to effectively manageeachoffender. As the evaluation of a “promising practice” often involves the review of the impact on the victim, sentencing should ensure that Victim Impact Statements and restitution requirements are considered in the sentencing process, as these statements provide insight regarding the impactof the crime on the individual victim and community at large. The Legislature and Courts should explore the “promising practice” of adopting sentencing practices which support sex offense-specific treatment and community supervisionefforts (“Evidence based sentencing”) following incarceration. “Evidence based sentencing” should include mandatesfor sex offense specific treatment, sufficient periods of community supervision that allow for monitoring, relevant special conditions or restrictions, and court-leveraged consequences for non-compliance with supervision requirements. There is no question that effective sentencing, establishing and evaluating “promising practices” with the goalof identifying a best practice requires Judges who are engaged in the process. The Judicial Council, the Administrative Office of the Courts and the 19 2007 California Sex Offender Management Task Force Report (available at casomb.org) 37 27 Courts should employ the best practice of strongly encouraging judicial education and training in the area of sexual assault. In order to engage an informed and supportive role, it is important that judges be educated on sentencing and the monitoring practices available that enhancepositive practices of sex offender management. To date, some judicial educators with expertise related to sex offender management have created some resources andtraining materials in the area of sexual assault case management, victimology and victim dynamic, offender managementand sentencing lawsin California”. Those materials should be broadly distributed and used by the Courts throughout California. 20 These resources have been created by the California Judicial Council. More information can be found at: http://www.courtinfo.ca.gov/ic/ 28 Sex offender specific treatment is an important componentof the Containment Model of sexual offender management. Collaboration between treatment providers, parole agents / probation officers, clinical polygraph examiners, and victim advocatesis a key element necessary for the successful re-entry and effective supervision of sex offenders, whether they are on parole, probation or other forms of conditional release from a State Hospital or Developmental Center. Sex offender treatment hashistorically utilized different methodsto train the individual to regulate and manage himself or herself, with victim safety and reduction of recidivism being primary treatment goals. Current research hasidentified that cognitive-behavioral therapy methodologies applied with consideration of the risk, needs and responsivity of participants are the most effective in reducing risk of re-offense. TREATMENT RECOMMENDATIONS: - Risk level-appropriate and evidence-based sex offender specific treatment should be routinely required for all adult and juvenile sex offenders under supervision in California. i. The Containment Model should be a mandatory policy and public safety strategy implemented by California policy makers at the State and County levels. ii. Funding should be allocated to implement the prison-based sex offender treatment programming that was previously approved (but left unfunded). ii. The current implementation of the Sexually Violent Predator (SVP) statute should be reviewed and improved. » To ensureeffective treatment, written policies should be developed that describe standards and regulations which should be implemented at the State level for treatment programming for sexual offenders. Separate standards are neededfor adult sex offenders, individuals with developmentaldisabilities and juvenile sex offenders. iv. Adatabase should be maintained to track and monitor approved treatment programs, treatment outcomesincluding rates of program completion and treatment drop outs, reasonsfor probation or parole revocations, rates of sexual and other criminal recidivism. v. The California Department of Mental Health should likewise collect data for Mentally Disordered Sex Offender (MDSO)and Sexually Violent Predator (SVP) programsto ensure efficacy of intervention and costefficiency. 29 - To ensure effective treatment, written policies and standards should be developed which can be implemented at the State level defining minimum qualifications of education, experience and competencefor sex offender specific evaluators, and treatment providers. i. Such credentialing should leadto listing as an approved provider to whom Courts, Probation Departments, Parole Agents, and other case managerswill refer sex offenders for therapeutic services. ii. As some rural counties or regions do not have sufficient resources or numbersof offenders to receive community based treatment, provider credentialing exceptions should be implemented with ongoing consultation with appropriately credentialed and approved providers. To date, there have beensignificant discussion and extensive recommendations regarding evidence-basedbestpracticesin the field of sex offender treatment and managementin California.”' Little has changed since the January, 2008, CASOMB report regarding the status of sex offender treatment in California. CASOMEBrecognizesthat treatment for sex offenders involves a numberof general clinical competencies as well as specialized strategies that are not typically employedin traditional therapy. One example of how sex offender treatmentis quite different from traditional therapies is that sex offenders are often mandatedto participate and they face morelimits on confidentiality. Specifically, within the Containment Model,22 there are a numberof additional parties who must know whatis occurring in sex offenders’ treatment processes, such as probation officers or parole agents. These specialists have mandates from Courts or Parole Boards to ensure that certain offenders are participating in treatment and are following probation or parole conditions. Another unique aspect of sex offender specific treatment within the Containment Modelis the frequent use of specialized post-conviction polygraph examinationsto verify the veracity of self-report information provided by the offender in treatment andin his communication with his probation officer or parole agent. The distinctive nature of sex offender therapyis alsoillustrated by the fact that sex offender clients do not 21 January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offendersin California 137-156 (available at casomb.org) and also see the 2007 California Sex Offender Management Task Force Report 49-60 (available at casomb.org) and the 2006 California High Risk Sex Offender Task Force 11 (available at casomb.org) 22 For a discussion of the Containment Modelplease see the January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offenders in California 102-104 (available at casomb.org)and 2006 California High Risk Sex Offender Task Force 15-18 (available at casomb.org) 30 independently determine the course and nature of their own treatment, as do clientsin more traditional therapies. Sex offender specific assessment and treatment require significant clinical skill and experience on the part of a competent therapist and require that the therapist have additional knowledge and techniques that are based in empirical evidencefor their use with sex offenderclientele. The ultimate goal of treatmentis to motivate and enable the offender to develop the ability to self regulate his or her behavior and, by doing so, increase safety for children and other potential victims in the community. It is difficult to provide information on the quality or quantity of the sex offender treatment that does exist within California23 Given that there are not yet statewide criteria or qualifications for psychotherapists who provide treatment services to sex offenders, there is not yet a standard by which to compare providers, services, or outcomes.It is not currently even possible to determine how manyproviders or programs exist and how many offenders are in treatment at any time. Other than adult and juvenile prisons, developmental centers, and state hospital facilities, there are currently no locked residential placements for higherrisk offenders nor are there residential facilities for sexual offenders with mental health needs (e.g., housing, moderate to intensive treatment, and physical/mental health services). Treatment approachesvary betweenthesefacilities. CDCR has recently moved forward with a design for an in-prison treatment program but at the present time funding has not materialized. Such a program, while it would be a significant step forward for California, would address only a small proportion of the approximately 22,500 sex offender inmates in CDCRprisons. Previous CASOMBreports have noted that a few California counties have developed their own protocols and practices for Probation Department approval of those who seek to provide specialized treatment services to sex offenders; San Diego, Orange, San Luis Obispo, and San Francisco Counties developed their protocols in collaboration with andutilizing funding from the Center for Sex Offender Management (CSOM). Shasta County previously developed its Containment Model system without such funding. While these five counties may have similar expectations for treatment providers, there remain several differences in protocols between them.In short, California has 58 counties whose Probation Departments each havedifferent protocols and practices.?4 The Department of Mental Health has a highly-developed cognitive behavioral treatment program for men whoarecivilly committed as Sexually Violent Predators under WIC 6604 or are detained pending commitment proceedings under WIC 6602. The individuals committed pursuant to the SVP statute are detained at Coalinga State 23 Additional discussion ofthis issue can be found in the California Sex Offender Management Task Force Report 56-58 (available at casomb.org) 24 January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offendersin California 152 (available at casomb.org) 31 Hospital and are encouraged (though they cannotbe forced)to participate in the treatment program. Approximately 25-30% of those admitted under these circumstances are actually participating in treatment in the Sex Offender Commitment Program (SOCP). The SOCP program is based on cognitive and cognitive-behavioral theories as well as the findings of the Sexual Offender Treatment and Evaluation Project (SOTEP) program andother widely accepted researchliterature. The treatment program includes comprehensive assessments(including penile plethysmography, polygraph examinations, cognitive and psychological assessments), individualized treatment planning and a formal progress review system. The SOCPprogram also provides a tutorial track for cognitively impaired individuals. The SOCP program hasfive phasesof treatment, of which four phasesoccurin the institution and the fifth phase occurs as an essential componentof the transition back to the community. At this time, very few persons have completed the fourinstitutional phases in order to be released into the community; more have been discharged from the program via court appeal processes. At this point there have been approximately 15 persons conditionally released after completion of the five phase program and approximately 130 persons whodid not complete treatment but have been released without any conditions (unconditionally) through the judicial process.?5 Due to concerns about the SVP statute expressed by the community and professionals working with sex offenders in CA, the California Coalition on Sexual Offending recently conducted a thorough analysis of the SVP situation, resulting in the publication: The California SVP Statute: History, Description, and Areas of Improvement. The CCOSO report concludedthat several key areas of the implementation of the statue need to be improved. Improving the implementation of the SVP statute must be a highpriority for the state of California given that the program is allocated more of the state’s resources than any other sex offender services. RECOMMENDATIONS The following recommendations are an attempt to address the concerns and shortcomings noted above. Someof the points explain and expand upon the recommendations alreadystated. A. Statewide Implementation of the Containment Model The CASOMBstrongly recommendsthat the sex offender management strategies collectively known as the Containment Model be implemented statewide.2’” The Containment Model has beenidentified by the CASOMBasthe bestpractice for community supervision of sex offenders. While the Governor’s High-Risk Sex Offender 25 For additional discussion of this issue please see the Special Populations section of this report 26 This publication can be found at the http:/Avww.ccoso.org 27 For a discussion of the Containment Model please see the January 2008 CASOMBAssessmentof - Current ManagementPractices of Adult Sex Offenders in California 102-104 (available at casomb.org)and 2006 California High Risk Sex Offender Task Force 15-18 (available at casomb.org) 32 Task Force and the CASOMBhave endorsed implementation of the Containment Model,it has not been implemented in any uniform or continuous manner. A few counties have their own version of the Containment Model; most counties do not, nor does CDCRusethis model. The Containment Modelcalis for a collaborative effort of sex offender specific treatment providers, law enforcement supervising agents such as probation officers or parole agents, polygraphists providing specialized testing as both a treatment and monitoring tool and victim advocacy participants wheneverpossible. The offender is supervised and overseen within this context. If these aspects of containmentare notin place, efficacy is reduced. CDCR doesnot use the Containment Model; there is no treatment being funded and no polygraph testing being conducted. While CDCRhasa significant amountof funds and energies invested in GPS and supervision, this approachis not the full Containment Model2®. Supervision aloneis not as effective as the full Containment Model. Public safety would be increased if the Containment Model were required throughout the State for all sex offenders, whether on parole or probation. B. Credentialing and Training Requirements for Treatment Providers The CASOMBTreatment Committee strongly recommendsthat the State enact legislation to codify regulations requiring specified training for mental health professionals who provide therapy and treatment services to manage sex offendersin effort to increase public safety while most effectively managing identified sex offenders in the State of California. Establishing authority & regulating referrals: Those who evaluate and treat sex offenders should meet the following minimum criteria for education,training, and experience. Maintaining and demonstrating evidence of one’s scopeof practice and scope of competencein working with adult and/or adolescent sex offenders, such as described below,is a legal and ethical responsibility of each licensed psychotherapist in California serving these populations. Bi-annual documentation of these qualifications should be maintained by a statewide body, which places the evaluator’s or treatment provider’s name on the approved providerlisting. Approved provider status should be established separately for those purporting to be competentwith evaluation, and treatment of juveniles who have offended, treatment of offenders who have developmentaldisabilities, and treatment of adult sexual offenders. Courts, Probation Departments, and CDCR Parole should refer only to providers whoarelisted as approvedproviders. With appropriate funding for infrastructure, the CASOMBcould potentially servein this role. 28 CDCRhasestimated that implementing containment(specifically treatment and polygraph)forall sex offender parolees would cost approximately $45M. Using a similar basis for calculation, the implementing containment for HRSO populations only would be approximately $15M. 33 Education & Licensure: Licensed psychotherapists, psychologists, or psychiatrists whoprovide evaluation and assessmentservices to sexual offenders should have the minimum academic degreein psychology, clinical social work, marriage and family therapy, or psychiatry as well as a California license to practice independently. Registered interns or psychological assistants may provide sex offender specific evaluation or treatment services when functioning under the supervision of a licensed practitioner who meets the established criteria. Such interns or psychological assistants may apply to the regulatory body for approvalandlisting. A one-yearprovisional approval! status level should be offered to those licensed therapists who are pursuing sufficient education, training, and experience and provide a sufficient plan to correct any deficiencies. A provider with provisional approval should not be permitted to supervise interns or psychological assistants in the area of sex offender treatment until becoming qualified as an approved provider. No licensedclinical supervisor should supervise more than four unlicensedinternsor licensed therapists with only provisional approval. Evaluator sex offender specific training: Licensed psychotherapists, psychologists, or psychiatrists who provide evaluation services, including but not limited to pre- sentencing evaluations for the Courts or evaluations for individuals involvedin civil commitment processes should provide their credentials and training as evidence of an appropriate scope of practice and competence,including but notlimited to training with evidence based assessmentprocedures such as the STATIC-99, STATIC-2002, MNSOST-R,the Stable 2007, the Acute 2007, Hare Psychopathy Checklist-Revised, penile plethysmography, sexual interest viewing time measures, or others recommendedby the California SORATSO committee or such organizations as the Association for the Treatment of Sexual Abusers (ATSA)or the California Coalition on Sexual Offending (CCOSO). Those whoevaluate adolescents or persons with intellectual disabilities should documentsimilar training in these specialized areas of evaluation, as defined by the SORATSO Committee or as recommended by ATSAorthe CCOSO.Evaluators with less than two years experience should provide the namesof persons with whom theywill consult when ethically appropriate or required under licensing regulations. Thirty (30) hours oftraining in these assessmenttopics bi- annually is considered the minimum amountoftraining to demonstrate a scope of practice in this area. Treatment provider sex offender specific training: Psychotherapists who provide therapy or treatment services with adult or adolescent sexual offenders should demonstrate their education and training as evidence of an appropriate scope of practice in each of these areas. Thirty hoursoftraining bi-annually is considered the minimum amountof training to demonstrate a scopeof practice in this area.29 Treatment provider sex offender specific experience: Psychotherapists who provide treatment services to adult or adolescent sexual offenders should have a minimum of 29 For specific training content recommendations please see APPENDIX G 34 seven hundredandfifty hours of direct client service experience, inclusive of therapy and case managementactivity, annually to evidence their scope of practice. Those treating both adolescents and adults should provide documentation of experience with both populations. Registered interns or psychological assistants may accumulate hours of experience under the supervision of a licensed psychotherapist who meets these criteria. Interns or psychological assistants should co-facilitate one hundred hours of direct services with an approved licensee before being eligible for approved provider status. Treatment providers who do not meet the hours of service requirement may apply to be listed as approved providersif there are reasonable limitations on experience hours such as working in rural counties with fewerreferrals. Required Programming Structure and Content Approved providers should submit program documentation that evidences utilization of evidence based practices.°° C. Mandatory Treatment and Funding Despite state budgetary fluctuations from year to year, public safety can be increased through implementation of mandatory treatment of sexual offenders under supervision. Sex offender specific treatment has been found - . 31EmergingIssue: to reduce re-offenses byupto forty percent. CDCRwas compelled by the Since convicted and/or adjudicated sex 2008-2009 budgetcrises to offenders are a known and accessible risk erminate or Suspend thei group, treatmentfor these individuals should be contracts tor outpatient Sex . offendertreatment servicesto High mandatedfor all probation and paroled sexual Risk Sex Offender parolees. While offenders. parolee sex offenders are ordered to havevisitsto the Parole Sex offenders who are on probation are Outpatient Clinic in their county or ordinarily on a self-pay basis with limited, if any, region, such services are in no . : way equivalentto the financial support from county probation comprehensive treatment thatis departments. There are approximately 10,000 sex offenders on probation at any given time;it is unknown how manyof these are current participants in treatment in the community.It is unknown how manysex crimesare pled to with a stipulation that the offender does not have mandated treatment. CDCR doesnot currently fund outpatient treatment for the 30 For recommendations related to specific documentation of training content and structure please see APPENDIX H 31 January 2008 CASOMBAssessmentof Current Management Practices of Adult Sex Offendersin California 137-156 (available at casomb.org) 35 approximately 6,788 sex offenders on parole, nor is there a formal treatment program implemented in any State prison in California.52 CDCRsolicited a prison based treatment program design which has been approved but not funded. °° Currently, there is no formal sex offender treatment programming implemented in the adult prison system in California yet the State employs post sentence civil commitment on a class of high risk mentally ill sex offenders (CA SVP Act). The CASOMBstrongly recommendsfunding be allocated to implementthe prison based program as well as post-institutional treatment within structured re-entry processes throughoutthe State. Public safety can be enhanced through treatment and use of the Containment Model with the thousandsof sex offenders released from California prisons each year. Programsthat respondto victims of sexual assault and programsthat assist victims in dealing with the harm andpain of the sexual assault should befully funded. To protect against further victimization, funding for mandatory treatment, with credentialed and approved treatment providers, should be authorized by state governmentto assist sex offendersin their participation in treatment. Sex offenders should participate in paying for their own treatmentto the greatest extent possible based on ability to pay. 32 It should be noted that 2009 CDCRheld a planning summit to examine implementation issues related to establishing an institutional sex offender treatment program. 33 2007 California Sex Offender ManagementTask Force Report (available at casomb.orq) 36 Re-entry, Supervision and Housing The release of individuals from prisons to communities is a practice that has long been fraught with systemic challenges and one which evokesconsiderable public concern.It is even more problematic when the issue involves sex offenders returning to communities. Myths surrounding inflated recidivism rates, ineffective treatment, and the publicity surrounding highly publicized cases involving predatory offenders fuel negative public sentiment and exacerbate concerns by policymakers. For the purposesof this report, re-entry is defined as the period of time during which the offenderis placed under community supervision. For most sex offenders in California, this is commonly 3-5 RE-ENTRY RECOMMENDATIONS: * The most important consideration when evaluating the successof a correctional program is whether the community is safer once the offenderis released from supervision then it was prior to incarceration and community supervision. Therefore,it is recommendedthatall correctional programsutilize recidivism reduction as the primary method of measuring performance. « High risk offenders posethe greatest risk to the community. It is recommended, that the limited resources that are available in this fiscally difficult time be primarily used to monitor and treat the highestrisk offenders. - The risk of re-offense for any type of offender, and especially sex offenders is greatest immediately after release from incarceration. Resources should be front loaded to provide extra monitoring and supervision during this time. + The only modelof supervision that has consistently shownto provide increased public safety is the Containment Model. It is recommended that California follow evidence-based practices and implement a consistent Containment Modelat both the state and countylevel. + The most recent research into treatment program options for sex offenders, has shownthattreating all criminogenic risk and needs factors, and notjust concentrating on sex offense risk factors, has had the greatest impact on lowering recidivism rates. It is recommendedthat all sex offender treatment programs assessand treat criminogenic factors. * Too often in California, we are spending mostof our time and resourcesincreasing surveillance and. supervision while neglecting treatment. Researchis consistently showing that the lowest recidivism is occurring when both treatment and surveillance are more evenly balanced in an individually developed case plan. years for both probation and parole. There is a growing bodyof correctional research and emerging models for improving reentry outcomesthat have recently been developed.** The NationalInstitute of 34 2007 California Sex Offender ManagementTask Force Report 61- 72 (available at casomb.org) 37 Corrections and the Center for Sex Offender Management under the U.S. Department of Justice are examples of organizations which have published national models for supervision of sex offenders in the community. Community supervision agencies haveutilized several different models when evaluating the effectiveness of their sex offender supervision. The most common methodis called a process evaluation. This method entails counting the level of services (drug and alcohol programs, anger managementtreatment, sex offender treatment) and the numbers of contacts. Outcome evaluations that measure increasesin reduction of recidivism and sexual re-offense have been conductedfar less frequently. And whileall sex offenders need close levels of supervision,limited resources can bestbeutilized by evaluating which elements and levels of supervision produce the greatest reduction in recidivism. Therisk of sexual re-offense as well as any other type of serious offense is greatest in the first year following release from custody. This is true in national recidivism studies as well as those conductedin California. CDCR data for sex offender recidivism showed that more new offenses occurredin the first year following release then in the next two years combined. *° Therefore, increasing the intensity of supervision and treatment during the first year seem to provide the greatest opportunity for recidivism reduction. “Tools such as GPS and parole supervision canfall tragically short when jurisdictions don't work together to develop comprehensive strategies to share information and communicate Utilization of a “Containment Approach’*¢ to community supervision is recognized as a best practice approach. This modelrelies on effective communication between local law enforcement, treatment providers, polygraph examiners,interested citizens and community supervision officers to provide a webof protection for the community. To date, there has never been a complete estimate about what implementing the Containment Approachin California would cost. The California Department of Corrections and Rehabilitation has about supervision practices. This tragic case [Jaycee Dugard] highlights the need for systemic changesthat will promote collaboration between agencies and the community at large. Community safety depends on what we see, what we know and how wetalk to each other.” USAToday Editorial September 3, 2009 estimated that implementing the treatment and polygraph elements of the approach 35 January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offendersin California (available at casomb.org) 74 36 For a discussion of the Containment Model please see the January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offendersin California 102-104 (available at casomb.org) and 2006 California High Risk Sex Offender Task Force 15-18 (available at casomb.org) 38 (omitting the community coordination and law enforcementcosts)for the parole population would cost approximately $15,000,000. Studies about the California sex offender population showsusthat it is morelikely that a sex offenderwill re-offend with some othertype of criminal offense than with a new sex offense. Community safety can best be servedif supervision officers are able to assess criminogenic risk and develop program goals thatincludeall criminal violations and not just sex offenses. Community Supervision of Sex Offenders It is estimated that in the United States, 265,000 adult sex offenders are under some form of supervision in the community. (Greenfield 1997) These offenders represent a very heterogeneous population, and the risks that these offenders pose to the community vary tremendously. While many sex offenders are entering prisons each year, large numbersare also being released. Nationally, between 10,000 and 20,000 are estimated to be returning to communities each year. (Center for Sex Offender Management, 2008) There are approximately 66,000 registered sex offenders in California. Of that number, approximately 6,700 are on parole and about 10,000 are supervised by county probation. Most offenders who are convicted of one of more sex crimeswill be supervised in the community at some point either immediately following sentencing or after a period of incarcerationin jail or prison*’. These offenders present unique challenges to the probation and parole departmentsthat are primarily responsible for supervising them. Because of the potential volatile community responses to sex offenders and the severe harm that re-offenses would cause potential new victims, 37 For a longer discussion aboutthe distribution of sex offenders in California see the January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offenders in California 51-66 (available at casomb.org) 39 community supervision of sex offendersis ofcritical importance to criminal justice agencies and the public. (Managing Sex Offenders in the Community: A National Overview, 2001) The primary goal of managing sex offenders in the community is the prevention of future victimization. In order to accomplish the primary goal, there are several key elements within sex offender managementthat need to be accomplished. Collaboration: Collaboration among those agenciesinitiating and implementing effective supervision and treatment practices, as well as other law enforcement and community organizations is an essential piece to providing increased community safety. Due to the secrecy, manipulation and deception that often accompanysex offending behaviors,it is essential that as many eyes aspossible be involved in supporting the goals of effective community supervision and reintegration. Victim-Centered Approach: Since a primary goal of Registered Sex Offenders SUpervision is the protection of victims and the prevention of in California future victimization, supervision agencies should work closely with victim advocacy organizations to ensurethat their policies do not re-traumatize victims of sexual assault, or inadvertently jeopardize the safety of others. Sex Offender Specific Treatment: Mandated specialized treatment as part of probation or parole conditions is and integral and essential componentof effective community supervision. The offense specific treatment that research has shownto be mosteffective holds offenders accountable,is victim-centered, and islimited in its confidentiality. It is based on the notion that when an offender is effectively taught to manage successfully his propensity to sexually abuse, he becomesless of a risk to past and potential future victims. Clear and Consistent Policies: Clear and consistent policies atall levels (state, local, and agency) are crucial components of community supervision. Clear policy defines how caseswill be investigated, prosecuted, and adjudicated. It also defines the method of community supervision, the roles various agencies play in the supervision process, and the responsetoindicationsof risk of relapse. The experiencesof probation and parole agencies across the nation indicate that sole reliance on commonly used supervision practices (e.g., scheduled office visits, periodic phone contact, and community service requirements) does not adequately address the unique challenges andrisks that sex offenders pose to the community. In orderto address these challenges,it is imperative that convicted sex offenders receive,in addition to incarcerative sanctions where appropriate, a period of community 40 supervision. During this period of supervision, the supervising agencyis able to assess an offenders place of residence and employment,restrict contact with minors or other potential victims, select appropriate treatment for the offender, and establish,if necessary, other restrictions that diminish the likelihood of re-offense. Sex offenders must be monitored intensively during community supervision in order to evaluate their level of commitment to and compliancewith all imposed special conditions.*® RE-ENTRY AND SUPERVISION RECOMMENDATIONS: + Local communities (cities or counties) should be required to identify appropriate, affordable, and compliant housing for sex offenders prior to implementationof, orif they presently have,local restrictions for sex offenders. Sex Offender Housing Finding appropriate and affordable housing has always beendifficult for sex offenders under community supervision.22 No one is anxious to have sex offendersliving in close proximity or anywherein their neighborhoods. Landlords have also expressed concern about renting apartments or hotel rooms to sex offenders since their addresses now show up on public websites.4° As a result of community safety concerns, many states and communities have recently passed residencerestriction laws thatlimit where sex offenders maylive.41 Most laws "and ordinancesrestrict sex offenders from living in proximity to schools, parks, and other places children congregate. Presently, 32 states, including California, have passed lawsandordinancesofthis type. As a result, sex offenders nowfind it much moredifficult to find a place to live, and many are now homelessand/or are evading community supervision. The hypothesis that sex offenders wholive in close proximity to schools, parks and other places children congregate have an increasedlikelihood of sexually reoffending 38 For examplesof special conditions of supervision please see APPENDIX | 39 See (2008) Homelessness among Registered Sex Offenders in California: The Numbers, The Risks and The Response (casomb.org) 40 See the proceedings of the California Summit for Safe Communities available at casomb.org 41 For more information about the implementation of residencerestrictions in California see January 2008 CASOMBAssessmentof Current ManagementPractices of Adult Sex Offenders in California 121-133 (available at casomb.org) 41 remains unsupported by research.42 On the contrary, the studies that have been completed showthere is almost no correlation between sex offendersliving near restricted areas and where they commit their offenses. Additionally, there is growing evidence that supports that sex offenders wholacka stable living situation are at increasedrisk of re-offense. Acrossthe nation, different states have conducted researchthat brings into focus specific consequencesthat are the result of residence restrictions. First and foremost, all studies have reported diminished housing options for sex offenders, especially in major metropolitan areas. In Orange County Florida, 95% of all residential properties were located within 1000ft. of schools, parks, child care centers or school busstops. (Zandbergen & Hart, 2006) In Colorado, researchers found that in heavily populated areas, residencesfarther than 1,000ft. were virtually non-existent. (Colorado Departmentof Public Safety, 2004) In Newark, New Jersey, 93% of the city’s territory is located within 2,500ft. of a school and would therefore be unavailable to sex offenders. Geographic Information System (GIS) mapping in San Francisco, California has determined that nearly all possible residential locations in the city and county are within 2,000ft. of a park or school, and therefore unavailable to paroled sex offenders. An issue that has beenparticularly troubling to California cities is the clustering of sex offenders. Whenresidencyrestrictions were enforced, a large percentage of residential properties becameoff limits to sex offenders. The percentageofoff-limits housingin urban areas was usually estimated as somewhere between 50 - 99%.This resultedin many sex offenders scrambling to find a living situation that was both affordable and compliant with the law. Manytimes, dueto thelimited availability of options, sex offenders could only find a small numberof available apartment houses, motels, or otherliving arrangements that were available to them. This caused several apartment complexesor motels to have increased occupancyof sex offenders. Whencitizens discoverthat a particular location in their neighborhood hasa high density of sex offenders they can becomevery concerned. Sucha situation often results in complaints being filed with police and local media being contacted,in an effort to resolve these concerns. In the past, in recognition of the importance of stable housing for both community safety and offenderstability, CDCR provided somelimited subsidies for sex offender parolee housing. Dueto the California budgetcrisis and significant reductions in agency resources the Department issued Policy Number 09-01 in February, 2009, whichlimited the duration and amount of support available for sex offender housing. The following graphic representations show the relationship between funding for housing assistance andthe increasein transient status (homelessness) among sex 42 A Minnesota Departmentof Corrections study of 329 high risk sex offenders revealed that recidivism occurredin only 13 cases, while none of the offenses occurred in school grounds, two of those occurred in parks.In both of these cases, however, the perpetrators lived miles from the crime scene and drove a vehicle to commit the offense. (Minnesota Departmentof Corrections, 2003) 42 offenders on parole. The significant change occurring at the time the new policy went . into effect (February 2009) can be noted. $3,000,000.00 $2,250,000.00 $1,500,000.00 $750,000.00 $0 Aug 2008 Nov2008 Feb2009 May 2009 Aug 2009 Nov 2009 CDCR Funding for PC 290 Parolee Housing 3000 2250 1500 750 0 © Numberof sex offender parolees who received housing assistance Numberof sex offender parolees who registered transient The loss of CDCR housing assistance, when combined with ever-increasing areas of the state that are off-limits for housing seems to have had an adverse impact on offendertransience.*? {t will be important to examinethis trend overtime. Mostcitizens either do not connect the increased density of sex offenders - “clustering”- with limited housing option, or they just don’t care about the reason. They wantto feel safe. Often, the citizens of the neighborhood place pressure on the ownerof the motel or apartment complex or on CDCRto solve this problem. The solution usually results in sex offender parolees being required to find anotherplacetolive. Since the alternatives are so limited, many of these sex offenders required to move, end up becoming homeless andtransient. 43 parolee transient data for June 2009 and July 2009 was unavailable 43 Sex Offender Transience, Homelessnessand Paroleesat Large. As housing options across California becameless available after the residence restrictions of Proposition 83 began to be implemented, homelessnessof sex offenders increased. In 2007, 88 parolees were homeless.“* Now,less than two yearslater, that numberhasrisen to 2,088 parolees whoare registered as transient/homeless,the total numberof sex offenders whoareofficially registered as “transient”(including parolees) has surpassed 5,000. Homelessness, unemployment, and lack of social support may end up being Transience and PAL on the Rise 5000 4500 4000 3500 3000 2500 2000 1500 1000 500 0 Fall-07 Spring-08 Fall-O8 Spring-09 Fall-09 »» PC290 Parolees Transient \ =~ Total PC290 Transient — PC290 Parolees At Large (PAL) J factors facing many sex offenders, both those whoare re-entering California communities and those who are continuing registered sex offenders. Thesefactors increase dynamic risk and therefore may increase re-offending behaviors.*° Transience posessignificant challenges for supervision. Even with GPS monitoring, without a stable residenceit is difficult to ensure that offenders are complying with their terms of supervision. Even though transience among sex offenders in California has increased significantly, the numberof ParoleesAt Large (PAL) has not increasedat the samerate. (Note: A paroleeatlargeis one whohasfailed to report his parole agent and has “disappeared.”) It would seem that despite an escalating rate of homelessness among California parolees, manyarestill managing to remain in compliance with their parole supervison requirements. At this time there is no definitive understanding about why PAL numbersin California have not increased at the same “4 2007 wasthefirst year that CDCR beganactive enforcement of Proposition 83 residencerestrictions 45 See (2008) Homelessness among Registered Sex Offenders in California: The Numbers, The Risks and The Response (casomb.org) rate.46 Some speculation points to thesomewhat unique nature of California's law that allows offenders to legally registerin a transient status. Others point to the state's GPS requirement. City and County Residence Ordinances HOUSING RECOMMENDATIONS: * Cities and counties should not pass sex offender residency ordinancesthatare in conflict with or exceed state law + Cities and counties should determine a process for notifying CDCR and/or probation when they have passed a sex offenderrestriction ordinance - In order to mitigate the potential public safety risk of increased offender transience, California should target the use of residencerestrictionsutilizing a ‘hybrid’ modelofrestrictions similar to a 2009 lowalaw: « Residencerestrictions (2000ft.) apply to the most serious offenders (SVP, repeat sex offenders, and offenders convicted of violent sex offenses) who have committed an offense against a child. - Loitering restrictions apply to designated Pen. Code, § 290 registrants in places where children congregate (child safe zones) At least ten states have enacted local residence and/orloitering restrictions for sex offenders. In a few states there are local ordinances but no state lawsin this area, while otherstates,like California, have both. In several states there are over one hundred local ordinances, while others have just a few. What seems to be a common characteristic of these ordinances is that once a community passesa residency/loitering ordinance, surrounding communities feel compelled to pass one also. Policymakers and the public are often fearful that if they do not follow suite, all of the sex offenderswill relocate into their community. In 2008, the National Governors Association noted: These restrictions are forcing offenders out of urban and suburban centers into isolated rural areas where providing close supervision is much more difficult. A survey of 135 sex offenders in Florida found housing restrictions increased isolation and decreasedstability, making it more likely that they would reoffend. The study, published in the International Journal of Offender Therapy and Comparative Criminology, also found that sex offenders reported these restrictions actually increased “triggers for re-offense.” These restrictions also maycontribute to sex offenders becoming indigent and homeless, makingit nearly impossible to monitor them and supervise their behavior. 46 jn lowa, oneof the first states in the United States to widely implement residencerestrictions, within six months of implementation the numberof sex offenders who werein violation of that state’s registration statute had doubled -Des Moines Register (2006) 45 Very recently, (May 2009) the New Jersey Supreme Court struck down sex offender residencerestrictions in over 100 communities. This wasthefirst time that an appealof residencerestrictions had reached the state Supreme Court level. The Court held that sex offender monitoring fell under the purview of Megan’s Law anddid notfall to the level of the local communities. In California, PC 3003.5 (c) allows municipal jurisdictions to enact local ordinancesthat mayfurther restrict the residence of any person required to register as a sex offender. This Penal Code section was enacted aspart of the Jessica’s Law statute in 2006. Since that time, approximately 50 California cities and 6 counties have enactedlocal ordinances.Ail of them have either expanded the distance of the residencerestriction (up to 3000ft.) or have added additional restricted locations, such as child care centers, libraries, arcades, school bus stops, and otherplaces children might congregate. Some have doneboth.In addition, several of the ordinances have created what have been called “child safe zones”. These are locations where sex offenders may not enter or loiter about within a specified distance, usually about 300 ft. Several of the ordinances have limited the density of sex offender residences. They have prevented more than one sex offenderfrom living in any motel, hotel, mobile home park, or apartment complex. One of the most notable ordinances prohibited a sex offender from residing within 1000ft. of another sex offender. Mostoften, failure to adhere to local ordinances is deemed to be a misdemeanor. Evenwith the rapid expansion of local residence ordinances,very few if anyjurisdictions in California are actually enforcing these laws, leaving community members unclear about the scope and The California Sex Offender Management Board ultimate utility of these approaches. recommendsthat the California State Legislature, Governor, and local governments reconsider residencyrestrictions to create an offender housing and supervision solution that balances three essential concerns: Public safety - Community sex offender managementstrategies should promote proven public safety strategies. Residencyrestrictions that preclude or eliminate appropriate offender housing can threaten public safety instead of enhancingit. Fair Share - Offender populations should, as dictated by statute, return to their county of conviction. No jurisdiction, county orcity, should be forced to accommodatea significantly disproportionate numberof offenders due to the residencyrestrictions in adjoiningjurisdictions. Local Control - Local governments,in collaboration with state agencies, should collaboratively identify not only areas where offenders should not reside or loiter but also a sufficient numberof areas that are suitable and appropriate for offendersto live. (CASOMB 2009 Progress Report) Presently, there has been no protocol for local municipalities to notify CDCR whena local sex offender ordinance has been enacted. Therefore, it has not been possible for CDCR parole agents to proactively support these ordinances oncethey are passed. Parole agents generally become aware of ordinances when a paroleeis in violation of an ordinanceand it comesto the attention of local law enforcement or elected officials. Parole agents do warn paroleesthat thereis a chancethat a local community has a residence ordinance andthatit is eachparolee’s duty to know the terms of and abide by anylocal ordinance. 46 In November2009, the California Supreme Court heard arguments in the cases of four parolees who claimed the residencerestriction enacted in Jessica's Law did not apply to them. The argument wasthat the law was intended to be prospective only and, since the petitioners were released on parole after Jessica’s Law was enacted,it did not apply to them. At the time of this writing, an opinion had not been issued. Global Position Satellite Tracking and Monitoring Law enforcementofficials, especially probation officers and parole agents, are increasingly utilizing electronic monitoring through the use of Global Positioning Satellites (GPS). This technology is now being utilized in at least 42 states. Many states require certain offenders to be monitored for the length of their probation or parole, while other states designate certain high risk and/or child victim offenders to register for specified amounts of time up to and includinglifetime. California is one of only two states that mandatesthat all registered sex offenders be monitoredforlife - a requirementcreated by Jessica’s Law. GPS MONITORING RECOMMENDATIONS: + Utilize GPS monitoring only in conjunction with some form of community supervision, with the understanding that some high-risk offenders may need to be subject to extended supervision (includinglifetime supervision for exceptionally high-risk offenders) - Prioritize the use of GPS monitoring primarily for serious and high risk sex offenders « Allow GPS monitoring to be minimized or eliminated after a defined period oftimeif there have been no new offenses and there has been satisfactory compliance with all terms of registration and parole conditions, to be determined by the supervising In June, 2005, CDCRDivision of Adult Parole Operations (DAPO)launched a pilot GPS program byplacing electronic akle bracelets on 80 high risk sex offenders in San Diego County. Soon after, GPS monitoring programs were begun in Orange County, San Bernardino County, Fresno County and Kern County.All of the funded GPS units were scheduledto be in use by July 1, 2006. On November7, 2006 California passed Proposition 83, known as Jessica’s Law. This proposition required, amongotherthings,that all registered sex offenders released on parole be monitoredforlife, by using Global Positioning Satellite (GPS) technologyin the form of a satellite-tracked ankle bracelet. The law was passedwithlittle information about how it would be implemented or evidence of whether GPS technology would protect Californians from sex offenders. According to a survey conducted by the Interstate Commission on Adult Supervision in April of 2007, California was already among the most extensive users of GPS for the monitoring of sex offender parolees prior to the passage of Proposition 83. Only Florida and Texas had programs of comparable size. (Turner & Jannetta 2008) 47 The passage of Proposition 83 hasled to over 6,788 sex offender parolees being placed on GPS monitoring. This is by far the largest use of GPS monitoring anywherein _ the world. It is conservatively estimated that the use of GPSin the state of Californiais presently costing approximately $65,000,000.00 per year.*” The effectiveness and cost effectiveness of widespread use of GPS with sex offenders in California has not been evaluated. To date, it remains unclear whatstate orlocal jurisdiction will be responsible for the lifetime post-supervision GPS monitoring described in Proposition 83. In fact, many of the challengesthatlocalities identified in 2007-when the CASOMB examinedthis issue- exist today. A numberof significant questions and concerns have beenraised about California’s use of GPS with sex offenders. They include the following: Current supervising authorities (such as CDCRorlocal probation) maintain that they have neither the jurisdiction nor authority to supervise (or monitor) individuals beyondtheir term of supervision. * Local law enforcement agencies have also been identified as potential monitoring authorities for the post-supervision GPS portion of Proposition 83. While many these agencies have experience andtraining related to peacekeeping activities, generally few local law enforcement agencies have resourcesorthe infrastructure for GPS monitoring. * Locally based agencies would also face implementation challenges with GPS monitoring post-supervision becauseof the transitory nature of most post supervision sex offenders. County probation, sheriff's and police chiefs have a proscribedjurisdiction in which they conducttheir activities and lack the capacity to monitor offenders if they move between cities, counties and states. * Evenifpost-supervision GPS monitoring wereto be fully funded, local agencies would still face fundamental challenges with managing multi-jurisdictional monitoring and information sharing. Local governments and law enforcement agencies have repeatedly stressed the importance of issues such as: equipment interoperability, compatible mapping platforms for crime scene correlation, and a common understanding of what datawill be collected via GPS technology. * Itis possible to imagine that a state law enforcement agency might also be tasked with post-supervision GPS. While a state-level law enforcement agency would avoid the multi-jurisdictional challenges that local law enforcement agencies would face with post-supervision GPS, role confusion and a lack of monitoring tools would remain. * All agencies examined(both state and local) have indicated that they lack the financial resources to implement this new program. Agenciesat the local level, in particular, stressed the potentially severe economic consequencesofadding post-supervision GPS monitoring duties to already stressed workloads (CASOMBLetter to Secretary, 2007). 4” CDCR 2009testimonyto the California Legislature. Additionally, according to CDCR active GPS monitoring costs approximately $26 per day / per offender ($9,490 per year). Passive GPS monitoring costs $17 per day per offender ($6,025) 48 Although manystates are now reporting the use of GPS technology to monitor sex offenders,there are still very few evaluationsof their usefulness in providing public safety and lowering of recidivism rates. There seems to be some anecdotal sentiment that is supportive of the usage of GPS monitoring, but very little statistical data to support its effectiveness in preventing re-offense. Individual state evaluations have shown mixed results In terms of the ultimate efficacy of GPS on recidivism and criminal behavior.4® The consensus of the GPS evaluations seem to bethat this tool is most effective when utilized as part of an overall “containment model” of supervision and whenused with high risk offenders.*9 48 For a summary of several state GPS evaluation studies see APPENDIX J 49 For an extended analysis of the efficacy of GPS in the context of supervision see CASOMBGPSletter to Secretary Tilton (casomb.org) 49 Registration and Notification California presently has the largest numberof registered sex offenders of anystate in the United States. The state have about 90, 000 registered sex offenders, about 68,000 of whom are in the community. The rest are currently incarcerated. This large numberis due to the large overail population of the state, the length of time California have been registering sex offenders (since 1947, retroactive to 1944), the length of time that registration(lifetime) is required for all registrants, and the large numberof offenses that require mandatory sex offender registration. California is one of the few states that haslifetime registration for all sex offenders. On the positive side, this allows the public to be aware of the majority of sex offendersliving in their neighborhoods. On the negative side, the public and local law enforcement agencies have no wayofdifferentiating between higher and lowerrisk sex offenders. In this one-size-fits-all system of registration, law enforcement cannot concentrateits scarce resources on close supervision of the more dangerousoffenders or on those whoareat higherrisk of committing another sex crime. 50 Recommendations « Not all California sex offenders need to registerforlife in order to safeguard the public and so a risk-based system ofdifferentiated registration requirements should be created » Focusing resources on registering and monitoring moderate to high risk sex offenders makes a community safer than trying to monitorall offenders forlife - Asex offender'srisk of re-offense should be one factor in determining the length of time the person must register as a sex offender and whetherto post the offender on the Internet. Other factors which should determine duration of registration and Internet posting include: Whetherthe sex offense was violent Whetherthe sex offense was against a child Whetherthe offender was convicted of a new sex offense or violent offense after the first sex offense conviction Whetherthe person wascivilly committed as a sexually violent predator - Monitoring of registered sex offenders once they are no longer underany form of formal community supervisionis critical to public safety. Therefore, the following recommendations are made regarding local law enforcement. - There should be continued and additional funding for Sexual Assault Felony Enforcement (SAFE) teamsin California - There should be mandated and designated resources which would enable law enforcementto verify the information supplied by the registrant at the time of registration - Law enforcement should allocate resources to enforce registration law and actively pursue violations * Training should be madeavailable to district attorneys, judges and law enforcement on registration and community notification laws - Registering agencies should participate in multi-disciplinary teams and the containment model when monitoring registrants on formal supervision - Law enforcement should maximize resources and results by devoting more attention to higherrisk offenders 51 Sex Offender Registration Risk Assessment Sinceit is being recommendedthat a revised system of registration be developed based largely onrisk of reoffending, a review of key information about the history and methodsof risk assessmentis in order. A. Risk Assessment in Other States There are twenty states which were using someform of risk assessmentby the endof 2008. (Velasquez, The Pursuit of Safety: Sex Offender Policy in the United States, Vera institute of Justice, Sept. 2008, at Appendix.) Some,butnotall, use empirically based risk assessment instruments to determinelevel of risk. Others use committees to determine risk factors without basing the factors on empirical research to verify that the factors correlate to risk of reoffense. Recent research showsthat pure actuarial analysis using empirically based risk assessmentinstruments is more predictive of re- offense than a combination of unstructured clinical judgment and use of an empirical instrument. (Hanson,K., et al., The Accuracy of Recidivism Risk Assessments for Sex Offenders: A Meta-Analysis, p. 10 (2007). B. Risk Assessmentin California California currently uses a pure actuarial approachto risk assessment for purposesof sentencing, placement on supervision, treatment, and use of GPS monitoring devices. (Pen. Code, § 290.03-08; 1202.8; 1203.) The risk assessment instrument being used both pre-sentencing andprior to release on parole for adult sex offendersis the Static-99. The instrument chosen to assessjuvenile sex offenders is the JSORRAT-II. Both instruments were chosenbythe California risk assessment committee (SARATSO Committee - see Pen. Code, § 290.03-04).5° As of December 2009, the SARATSO Committee had not yet chosen a dynamic risk assessmentinstrumentfor California. However, the assessedrisk of re-offense today plays no role underCalifornia law in determining the needto register, the duration of registration, or the extentof community notification. California adult offenders mustregisterforlife for most sex offenses. (Pen. Code, §§ 290, 290.5.) Nor does risk assessment determine which juvenile sex offenders are required to register. However,it is not within the statutory mandate ofthis Board to recommend changesto laws pertaining to juvenile sex offenders. Somesex offenders are eligible to petition thecourt for a certificate of rehabilitation, usually 10 years after release from custody. Whethera certificate of rehabilitation is 5° the SARATSOwebsite is found at http:/jWwww.dmh.ca.gov/Services_and Programs/Forensic Services/ Sex Offender Commitment_Program/SARATSO.asp[http:/Awww.dmh.ca.gov/]) The web site for the SARATSO Committee is moving to www.cder.ca.gov in 2010. 52 grantedis a discretionary decision by a trial court. (Pen. Code, §§ 4852.01, et seq.) Until 1996, registered sex offenders who obtained a certificate of rehabilitation were no longer required to register. In 1996, Penal Code section 290.5 was amendedto prohibit mostsex offenders, including offenders whose offense was consensual sexualactivity with teens age 14-17, from obtaining relief from registration even when a court grants a certificate of rehabilitation. Some sex offenders are barred from applying for certificates of rehabilitation, even if the offense was a consensual! one with a peer. (Pen. Code, § 4852.01.) For example, a boy age 18 who has consensual sex with a girl age 13 and whois convicted of lewd and lascivious actswith a child under 14 (Pen. Code, section 288), can neverobtain a certificate of rehabilitation, nor can he ever be released from the duty to register as a sex offender (absent a governor’s pardon). The purposesof sex offenderregistration are to assist law enforcementwith investigating new sex crimes and keeping track of the whereabouts of convicted sex offenders as well as to deter individuals from committing new sex offenses. (U.S. DOJ, CSOM,Legislative Trends in Sex Offender Management, Nov. 2008,at p. 4.) Trial courts are given nodiscretion in most decisions about sex offender registration in California. While courts may,in their discretion, order registration for offenses that are sexually motivated after making specified findings at sentencing (Pen. Code, § 290.006), the same courts may not terminate the duty to register of a sex offender who presents credible proof of rehabilitation 10, 15, or even 25 yearslater. This is true whetheror not the offenderis at low risk to re-offend, as determined by empirically based risk assessment. The fact that there is no less-stringent alternative to the California requirementfor lifetime registration may actually decrease court orders for sex offenderregistration, in cases whereregistration is discretionary, because there are no options for a lesser duration, which a court may deem fairer to a particular defendant. Lifetime registration mayalso distort the plea bargaining process. Charges are modified and offenders plead to inappropriate offenses to avoid the consequenceoflifetime registration. Distortion of the plea processresults in pleas to offenses which do not require sex offender registration, despite the need for at least some period of registration and monitoring. Lack of less-than-lifetime options sometimes also leadsto illegal orders shortening the period of registration. Although the cost of registering and monitoring registered sex offenders statewide has not been quantified, there is a fiscal burden associated with these functions at both the state and local levels. Focusing onlifetime registration for offenders who are higher risk, more violent, or who are repeat offenders allows cost savings while at the same time permitting more intensive monitoring of those offenders mostlikely to re-offend. Duration of Registration and Community Notification A. Duration of Registration in Other States Other states use varying combinations of years required for registration, often 53 dependingonrisk level or offense: * Half of the states require 10 years for the majority of registrants, and life for the rest, using either risk assessmentor offense-based classifications to determine whoregistersforlife. * Somestates allow registrants to petition the courts for termination of registration, often after 10 years of registration. * Five states require registration for 15 years, 25 years, orlife, depending on the offenseortier level. * Other states use a combination of 15/life; 20/life; 25/life; 5/10/20/life, 10/25/ life; 10/15/25/life; or 10/15/20/life, depending onrisk or offenseclassifications. * Four states (California, Alabama, Florida, and South Carolina) requirelifetime registration for all registrants, and one state requires 15 yearsforall registrants. Usually,lifetime registration is predicated either on the offenseitself being classified as aggravated, the offender being classified as high risk (determined either by empirical risk assessmentor offense-basedclassifications), or a statutorily defined sexual predator, or being classified as a sexualrecidivist. In moststates, the duration of the registration period is shorter for juveniles and nonviolent sex offenders. (Velasquez, The Pursuit of Safety: Sex Offender Policy in the United States, Vera Institute of Justice, Sept. 2008.) B. Application to California The majority of sex offenders released on parole in California after 2005 have risk assessment scores under 4 on the Static-99. In December 2009, the California Departmentof Justice determined that the Static-99 score distribution for the 28,612 registered sex offenders in the DOJ database, whoserisk assessments were done prior to release from prison or at pre-sentencing, was asfollows: Percentage of Assessed Offendersin EachStatic-99 Score Category: H o a ou o o t a h W D N M = © 7.89% 6+= 9.96% 54 The California score distribution is consistent with the percentages of sex offenders found in each score category in the risk assessment study which wasthe basis for the Static-99 risk assessmenttool. (Hanson, Morton, & Harris, “Sexual Offender Recidivism Risk: What We Know and What We Needto Know,” Ann. N.Y. Acc. Sci. 989:154-166 (2003).) The CASOMBrecommendsa three-tier system of registration, which will assign a tier level to each sex offender depending,in part, on individual risk assessment, history of violent convictions, and sexual offense recidivism.it is also recommended, based on the tier determination, that sex offenders in tiers 2 and 3 be posted on the public Megan’s Law Internet web site (www.meganslaw.ca.gov). C. Community Notification Community notification (Megan’s laws) were enacted in the 1990's to raise public awarenessof sex offenders in the community. California has two forms of community notification. Notification at the local level is risk-based, although not necessarily informed by empirically based risk assessment. If law enforcement determinesthat a registered sex offender posesa risk to the public, notification can be made as broadly as necessary to control the risk posed. (Pen. Code, § 290.45, subd. (a).) However, notification via the state’s Megan’s LawInternet website is currently “offense- based,” rather than risk-based. Sex offenders with designated offenses are displayed on the site with disclosure of either full home address or only ZIP code, depending on offense. Others are not displayed on the public web site, as the Legislature did not deem their offenses serious enoughto merit Internet disclosure. (Pen. Code, § 290.46.) Offense-based Classification systems may not target the most dangerous sex offenders or thoseat highestrisk of re-offending. Of the states that do not postall registered sex offenders on their public website, fourteen (14) use risk assessments and restrict public Internet access to information about only those offenders determined to pose a risk of re-offending. (Norman-Eady, Sex Offender Registry, Sept. 2008, Doc. 2008-R-0500.) Other states postall offenders without regard to risk. Still others post offenders with designated offenses, muchlike California’s current statute. Posting all offenders except those in the CASOMB’s recommended®' Tier 1 would ensure that posting on the Internet relates to risk of re- offense and dangerousnessof the offender. The majority of registered sex offendersin California will fall into Tiers 2 and 3, including all offenders convicted of child molestation, so that for the duration of registration (20 years or more for child molesters), they will be posted with full address on the state’s Internet website, as they are undercurrent law. 51 See Appendix| 55 Supervised and Unsupervised i i ti t allSex Offenders It s a common misconcept on that a registered sex offenders are under some form of rigorous, formal supervision through either a state level, or local correctional agency.It is also commonly believed that such supervision continuesfor their entire lifetime term of registration. This is quite untrue and highlights the needfor local law enforcement and specialized multi-agency teams(suchas the state funded Sexual Assault Felony Enforcement (SAFE) teams) to continue to track and monitor registrants oncetheir term of formal supervision concludes. Statewide, at any given time, 70-75%of registrants are not under formal supervision. All types of formal supervision last for only a specified length of time, and thenit is up to local jurisdictions to verify registration and pursueregistration violation charges whenthe registrant fails to comply with the law. Enforcementof sex offender registration laws by California law enforcement agencies varies andis often affected by personnel and resourcelimitations. Multi-agency teams such as SAFEteamsare few, and recently whatlittle funding has been available in the past has beencut. Local law enforcement agencies—which mustdirectly answerto their residents’ concerns about community safety—do not receive anytype of additional funding to monitor sex offenderregistrants or enforce registration laws. Survey of Law Enforcement Agencies In February, 2009 CASOMBsenta survey regarding sex offender registration and enforcement to 428 law enforcement agencies in California. Included were agenciesof all sizes, including campuspolice departments. The numberofregistrants within each jurisdiction ranged from noneto over 5,200. Statistics requested included the numberof registrants in each area, numberof those under formal supervision, if the agency had investigators assigned to sex offender tracking and monitoring andif the agency participated in a multi-agency approach to monitoring registrants. Ninety-five agencies (22%) respondedto the survey. The responses accounted for 26,014 total registrants. Agencies responding represented a geographiccross section ofjurisdictions, including: + Five large Sheriff's Departments and Police Departments ( responsible for 2,000-5,200 registrants each) * Thirteen agencies with mid-sized registrant populations (250-1400 registrants each) 56 * Seventy-seven agencies with small registrant populations (under 250 registrants), including seven college campuses While all localjurisdictions (and college campusesthat have a police department) are required to conduct sex offenderregistration, enforcement of registration law is not mandatory. Of the responding agencies: * 67% of the agencies had investigators assigned to sex offenderregistrant tracking and monitoring; most included swornofficers as well ascivilian personnel * 63% of the agencies had filed criminal casesfor failure to register in 2007 * 13%received funding allowing them to participate in a Sexual Assault Felony Enforcement (SAFE) task force * 34% reported utilizing a multi-disciplinary team approach( local law enforcement, parole, probation, treatment providers, victim advocates) to monitoring sex offenders Regarding addressverifications of the whereabouts ofregistrants: * 84% of responding agencies wentto the registrants’ residence locationsin orderto verify that the registrant actually lived there * Of the agencies which do the in-person checks, 41% conducted those checks accompaniedbyparole agents or probation officers when applicable Regarding public notifications on the presence of registered sex offendersin the community, 39% of responding agencies conducted proactive notifications and supplied information to the community above and beyond what already appears onthe public website, www.megansiaw.ca.gov. Six of the agencies which conducted notifications held public meetings in 2007. Other agencies had conducted notifications by distributing flyers at schools or door-to-door, or at community events such as a Halloween event booth. One agency reported using a combination of notification to the media, flyers, and e-mails and notifications to subscribers via their own agency information website. Public notifications are often discussed among law enforcementofficers who are tasked with registration and registration enforcement. Often cited, especially in areas that have a large numberof registrants is “Where to start, and when to stop?” As the majority of offenders have not been administered a risk assessment, law enforcement must evaluate the offender’s presentrisk of re-offending. In addition, the preparation that goesinto a notification (including gathering documentation on a registrant's crimes, residence and employmentareas, who the registrantis likely to encounter) takes a significant amountof investigative time by law enforcementofficers whoare already tasked with other duties. In many jurisdictions, law enforcement resources are pushed to the limit in keeping up with registration updates alone. Often, after a public 57 notification, the offenderis likely to move, creating a new question of notification in a newlocation. Allocation of Resources Even though local law enforcement monitoring of Captain Terry, who heads sex registrants requires carving a program from the Sheriff's Department’s existing resources, the necessity remains.In investigative division, said September, 2007, the International Association of Contra Costa County has Chiefs of Police identified desired objectives for about 1,700 registered sex sex offender monitoring which included: offenders.Hisstation is responsible for about350, “349 more than the number of detectives I have . . dedicated to monitoring * Verify compliance these people.” * Registration ~ Los Angeles Times (August 31, 2009) * Pursue cases of noncompliance ¢ Public notification and education Departments that have allocated resources to sex offender registration, monitoring and tracking have included the Los Angeles Police Department, which currently fields seven investigative teams to monitorthe city's 5,200 registrants. In addition to managing registration and enforcing registration laws, the agency handles enforcement of DNAcollection from all sex offender registrants. This effort recently resulted in the identification of a registrant linked to a series of sexual assaults and homicides. Withoutlocal law enforcement’s active pursuit of registration compliance andverification of information supplied by registrants, the information that the public sees on the Megan's Law website is inaccurate. Yet, given the huge numberofCalifornia registrants and limited resources available, the task is overwhelming. At any giventime, thousandsofregistrants are in violation of registration laws52. 52 For a county by countylist of registration violations see APPENDIX 58 Of the various special population subgroups amongCalifornia’s sex offenders,this report focused its attention on those involved in the state’s civil commitment program - | sometimes called the sexual violent predator (SVP) program. Less than two percent of the sex offender registrants in California are either presently subject to civil commitment, SPECIAL POPULATIONS RECOMMENDATIONS * California should investigate methods of increasing available treatment hours and participation rates for those sex offenders who are committed or detained as inpatients within the Department of Mental Health. ¢ California should identify a more efficient screening process for determining whenparole violations are related to reoffense risk and should beclinically re-evaluated versusparole violations not related to risk that should not require an additional costly evaluation for parolees who have been previously evaluated for the Sexually Violent Predator Program. or have civil commitment proceedings pending against them. However, significant portions of the limited resources devoted to the managementof sex offendersin California. Registrants are allocated to civil commitment proceedings and the treatment of civil committees in this “special population.” Approximately, 1,300 sex offender registrants are committed or detained as inpatients within the Department of Mental Health,53 and 85 are on conditional release in the community under supervision.** Over 60% ofthe inpatient population is at Coalinga State Hospital pursuant to the Sexually Violent Predator commitment program at a cost of approximately $170,000 per year per patient. The remaining 40% are subject to commitment at Atascadero, Metropolitan, Napa and Patton State Hospitals at a cost of approximately $130,000 per year per patient; 21% are committed as Mentally Disordered Offenders (MDO), 11% are committed as Not Guilty by Reason of Insanity (NGI), 6% are committed as Incompetent to Stand Trial and 2% are committed as Mentally Disordered Sex Offenders (MDSO). Of the sex offender registrants within 33 As of 9/2009 4 As of July 25, 2009 59 conditional release programs, 35% are committed as NGI, 30% MDO, 27% MDSO and 13% SVP. The most significant policy changein - 1,500 recent years affecting the managementof this special population was Jessica’s Law (Proposition 83), enacted in Novemberof 2006. Proposition 83 significantly expanded the registrant population potentially subject to civil commitment under the SVPAct. It increased the numberof penal code violations that can qualify a registrant for possible SVPcivil commitment, decreased the minimum numberofvictims from two to one, and perpetuatedthe indeterminate term of commitment, enacted by SB 1128 on Civil Commitment ““ - September 20, 2006.55 : Conditional Release 1,250° 1,000 750 500 250 0 With the enactmentof Proposition 83, the numberof registrants referred by CDCRto DMHfor processing for possible SVP HE Sexually Violent Predator commitment increased 1254%, from 48 on Mentally Disordered Sex Offenders (MDSO) average per month, to 650 per month.** Prior Incompetent to Stand Trial to Jessica's Law, 48% of the cases referred Not Guilty by Reasonof Insanity (NGI)‘by CDCR monthly required clinical Mentally Disordered Offenders (MDO) evaluations to be conducted by DMH(23 per month). After the passage of Proposition 83, only 24% of the cases referred by CDCR required clinical evaluations, but because of the drastic increase in the overall total numberof cases referred, there was a 465% increase in the number of cases for which clinical evaluations needed to be conducted (from 23 per month on average, to 156 per month). Each personclinically evaluated by DMH costs a minimum of $7,000, plus travel expensesfor the evaluators, and up to $14,000, plus expenses.5” With the numberof Pen. Code, § 290registrants beingclinically evaluated for possible SVP commitment by DMHincreasing from 23 per month on average to 153 per month,the average cost of clinical evaluations alone increased from $161,000to at least $1,071,000 monthly. 55 Prior to SB 1128, an SVP commitmentwasfor two years. 56 January 1999 to October 2006, as opposed to November 2006 to June of 2009. °’ Welfare & Institutions Code Section 6601(e),if first two evaluatorssplit, two additional evaluations must be conducted. 60 Prior to Proposition 83, 35% (8 per month) of the cases for which clinical evaluations were conducted resulted in a positive finding by DMH.58 By expanding the potential reach of the SVP commitment process,rather than clinically evaluating 15 persons per month, DMH wasrequiredto clinically evaluate 142 persons per month. However,after the implementation of Proposition 83, only 7% (11) of the cases for whichclinical evaluations were conducted resulted in a “positive finding” by DMH. Between January, 4999, and October, 2006, 7 petitions for commitment under the SVP Act werefiled monthly; between November 2006 and June of 2009, 10 petitions for SVP commitment werefiled on average per month. Two years and eight monthsinto the implementation of Proposition 83, the number of persons committed on average dropped from approximately 4 per month, to 3 per month. °9 $200K 30000 Denes $1.5 Cost PerIndividual # of Offenders Total Expenditure $150K 22500 $1.1 $100K 15000 $75C $50K 7500 $375 $0K 0 $0K |. Atascadero, Metroplitan, Napa and Patton State Hospitals [2 Coalinga State Hospital Mi Departmentof Corrections and Rehabilitation Essentially by increasing the qualifying convictions for SVP commitment and decreasing the minimum numberofvictims from two to one, Proposition 83 shifted the winnowing process from the record review stage to the much morecostly, clinical evaluation stage. The record review burden upon CDCRand DMHincreaseddrastically following 58 A “positive finding” means that DMH mayrefer to a District Attorney for possiblefiling of a SVP commitmentpetition. 59 Mayreflect two year term of commitment being changedto an indeterminate term, to some degree. 61 Proposition 83,°° but far more significant was the increase in the numberof persons Clinically evaluated, with very little increase in potential committees. The numberof people clinically evaluated per month that resulted in negative findings, went from 15 per month to 142 per month on average. In addition to the significant increase in the numberofinitial SVP screenings there has also been a significant increase in the numberof individuals who,after beinginitially assessed and determined to not meetthe criteria for SVP, are ‘re-screened’ due to a subsequentparole violation - whether or not there is any reasonsto believe hat the new violation actually contributes to that offender’s risk to re-offend. \n order to reduce repetitive, unnecessary re-evaluations and focus resources on evaluating violation behaviorrelated to risk, the Department of Mental Health, the Departmentof Corrections and Board of Parole Hearings (through the “Three Agency Meeting process) should identify a screeningcriteria that prioritizes risk-related violations. It can fairly be inferred that the two victim requirementpriorto Proposition 83 correlated with the duration of behavior over at least 6 months, required for purposesof substantiating the requisite paraphillic diagnosis under the SVP Act. The Sexually Violent Predator Act dictates that DMH hasanaffirmative obligation to treat the SVP population and to try to obtain the cooperation of the patients in the treatment program. °' The Sex Offender Commitment Program (SOCP)is a five Phase treatment program. Thefirst four phases are conducted on aninpatient basis at Coalinga State Hospital. Phase 5 is a conditional release program in the community. In January of 2009, approximately 24%of the patients were participating in the SOCP. As of August 2009,of the 791 patients either committed®2 or detained pending commitment,® 211 patients were in PhaseII, 30 in PhaseII! and 4 in Phase IV. Eleven patients were underconditional release supervision,“ and five were awaiting placement in conditional release. Sinceits inception in 1996, only 18 patients have completed PhaseIV, and only 2 of those have completed PhaseV. On August 31, 2009, an anonymous,voluntary survey of CSH patients was conducted. Two hundredandsix patients participated, of whom 40% were presently in treatment, 10%had previously been in treatment and 50% had never beenin treatment. The thrust of the survey wasaninquiry as to what it would take to get more patients to participate in treatment and how the treatment program could be improved. The most common response recommendedthat the program incorporate a definitive time frame so as to establish a viable exit strategy. Another common recommendation was to 6° CDCR monthly referrals to DMH wentfrom 48 to 650 per month. ' Welfare & Institutions Code Section 6606. 62 Welfare & Institutions Code Section 6604. 83 Welfare & Institutions Code Section 6602. 64 As of August 2009. 62 increase the hours of treatment per week, from the present 3 hours. Respondents indicated that such an increase would give them increased hopeof being able to complete the program andthusincrease their motivation to participate. 63 Summary Gapsfrom Previous CASOMBPublications Key: we Item has remained essentially unchanged there have been improvementsin practice, capacity or statute there have been reductions in capacity or funding Investigation, Prosecution Disposition In the prosecution of both adult and juvenile offenders thereis a failure to consult with victims prior to finalizing plea agreements, and a failure to seek and obtain protective orders regarding sensitive materials. A large numberof the counties fail to keep the adequate data to allow the evaluation of prosecution CASOM 2007 ae practices, particularly in the caseof juvenile offenses. , Prosecutors handling sexual assault cases do not routinely receive specialized training CASOfoo ae 2008 CASOM 2007 64 Summary Gaps from Previous CASOMBPublications assessment during intake, or prior to release to the community. Thefailure to have guidelines in place that assist in determining the appropriate plea may lead to CASOM 2007 s, inconsistent treatment and sentencing of offenders. — . Sex offense specific psychological evaluations that can be usedto identify relevant risk factors are CASOM2007 ,,.. not generally used to assist in sentencing decisions. . Training programs designed to educate judges on how to enhancesex offender managementare CASOM 2007 4s, not widely available. . Sex offense specific psychological assessment tools are not generally used in sentencing decisions. CASOM 2007 ae Specialized Units are not available in all counties CASOMB v Only a small numberof communities that have developed eas ae collaborative teams, such as SARTs, MDICs, FJCs and SAFE Task Forces. Lack of Funding for Vertical Prosecution and Specialized Units. CASOMB v CASOMB 2009 ASSESSMENT Thereis no protocolfor institutional staff at either the state or county level to conduct a risk CASOM 2007 Institutional staff at the state level have not been trained to conduct sex offender risk assessments. CASOM 2007 65 Summary Gaps from Previous CASOMBPublications factors and ongoing criminogenicfactors. 70%of surveyed counties respondedthat they did not use empirically validated actuarial tools to CASOM 2007 conduct risk assessments. Thereis no validated risk assessment instrument for use with female offenders. CASOM 2007 4 Very few counties have training and/or experience requirements in place to conductrisk CASOM 2007 assessments. There are very few protocolsin place at either the state or county level for conducting risk CASOM 2007 assessments for juvenile sex offenders prior to their release into the community. Almost no counties are conducting risk assessments with juvenile offenders. Outpatient providers CASOM 2007 are morelikely to use a risk assessmentas part of their assessmentprotocol, but there is no identified standard risk assessmenttool. In most of the counties surveyed, policies or standards do not require the incorporation of a sex CASOM 2007 ae offender-specific or psychosexual evaluation that is incorporated into the PSI report. In most of the counties surveyed, disposition recommendations in PSI reports do not address family CASOM 2007 we reunification issues. Formalrisk assessments are conducted less then 50% of the time during the PSI Report, during CASOM 2007 classification, and during re-entry. PSI reports are infrequently shared with or providedto victim advocates in cases wherevictims are CASOM 2007 ae actively involved in the sex offender managementprocess. In only 50%of the counties surveyed do community supervision officers assess the dynamicrisk CASOM 2007 66 Summary Gaps from Previous CASOMBPublications Adult and juvenile re-entry plans are not currently in place for sex offenders at the county level. CASOM 2007 ae q Adult sex offenders in the CDCRdonotreceive a sex offender specific clinical assessment during CASOM2007 | intake/classification. hd Most adult sex offenders do not receive a sex offender specific clinical assessment/evaluation CASOM 2007 4s, during their period of incarceration. . The CDCRdoesnot utilize any psychophysiological instrumentsin their adult institutions. CASOM 2007 ae Most adult offenders do not receive a sex offender-specific evaluation prior to their placementin CASOM 2007 ae community-based sex offender treatment programs. Mostof the surveyed counties do notutilize any tool to assess for the presence of (and changes in) CASOM 2007 ae offenderrisk or criminogenicfactors. Although some counties assess for changesin risk, this information is rarely shared with other CASOM 2007 we representatives of the supervision system. TREATMENT Assessment components are not uniformly defined across programs. CASOM 2007 ae Not all programs use the same assessmentor data collection procedures. Programsare also not CASO. ae evaluated. 2008 67 Summary Gaps from Previous CASOMBPublications Few programsusepolygraphyin the course of treatment and supervision,indicating a weakened CASOM2007 application of the containment model. oe Program completion rates vary widely from program to program. CASOM 2007 Most counties do not have sex offender treatment programmingavailable for sex offenders who are CASOM 2007 in custody, i.e. juvenile hall. Documentation practices are inconsistent from program to program and may not meetfederal CASOM 2007 HIPAA requirements. Not all programs have structuresin place to ensure that collaboration occurs between treatment CASOM 2007 providers and probation officers. Victim advocates are conspicuously absentfrom thelist of collaborators in sex offender CASOM 2007 management teams. Community stakeholders, including law enforcement and victim advocacy organizations are not CASOM 2007 sufficiently informed about the nature, quality and existence of sex offender treatment resourcesin the community. California does not have a sex offender treatment provider or program certification process. CASOMooo" 2008 Many counties either do not have known treatment providers who are members of the professional Soon associations that focus on sex offender treatment and management, or do not have enough treatment providers to treat those who are on probation. Summary Gapsfrom Previous CASOMBPublications No sex offendertreatmentis available for the over 23,000 sex offenders incarcerated in CDCR nye ae institutions. California is one of few states that does not provide any sex offender treatmentin prison. REENTRY / SUPERVISION Sex offender specific treatment is not being provided to adult sex offenders held at either the state CASOM 2007 or countylevel. Discretionary release is not an available option for adult sex offenders held bythestate. CASOM 2007 ae Pre-release plans are not prepared for adult sex offenders by either the state or the county. nace.oe, Supervision officers are rarely involved in release planning for adult sex offenders at both the state tineaoos and countylevel. Haif of counties surveyed do not review sex offenderregistration and community notification CASOM 2007 ae requirements with adult sex offenders prior to release. On both the state and local level there are no policies and practicesfor identifying suitable housing CASOM 2007 for adult sex offenders. Transitional housing services are not available upon release from state orlocalinstitutions. CASOM2007 v 2008 69 Summary Gapsfrom Previous CASOMBPublications No funds are appropriated for adult sex offender housing onthe state level. CASOM 2007 Most counties do not have supervision officers maintain contact with the employers of adult sex offenders. CASOM 2007 offender managementtraining. Mostof the counties releasing adult sex offenders do not havea processin place to provide them CASOM 2007 ae with identification prior to release. Onthelocallevelthere is almost no funding,with the exception of one county, to meet the housing CASOM 2007 needsof indigent adult offenders. Specialized supervision strategies such as the polygraph are seldom usedin the supervision of sex CASOMgoer offenders. 2008 The useof multidisciplinary sex offender management teamsis not commonpractice for the CASOM 2007 ae supervision of either adult or juvenile sex offenders. There is an absenceof specialized case loads for supervision of both adult and juvenile sex Sor offenders at the countylevel. CASOMB 2008 On both the state and local levels there is a dearth of policies and practices that involve community CASOM 2007 support networksin the adult sex offender reentry process. Trainingin utilization of GPS and enforcementof residency restrictions has replaced specialized sex soon 70 Summary Gaps from Previous CASOMBPublications inadequate planning for victim services and fragmented funding. Each county probation department appears to have different resources and methodsfor supervising ile ae sex offenders. One uniform model throughout the state would be the most evidence-based method of ensuring that the containment model waspracticed in a consistent manner Offenders registering as “transient” may have other options then being homeless. The offender may soo ae stay sporadically in an exclusion zone while on transient status, performing functions normally associated with a residence. The law limits “where theylive”, not “where they go.” The numberof affected sex offenders statewide, and paroleesin particular who declared sone themselvesastransient since the implementation of Jessica’s Law has increased dramatically The effect of residency restrictions on probationers is unknown, dueto lack of implementation and se ae no central data collection process. Jessica’s Law doesnotidentify who is responsible for enforcing residency restrictions after the sex CASOMB oe ; ; 2008 ~ offenderis released from probation or parole, and provides no fundingforit. Proposition 83 does not impose a penalty for violators of residency CASOMB ofe ae : 2008 o restrictions who have been released from probation or parole. VICTIMS A significant number counties do not inform victims of either adult and juvenile sex offenders as to CASOM 2007 |v, whenthe offenderis released from countyinstitutions. Most counties do not provide referrals for services to family members and victimsif the offense CASOM 2007 ae occurred within the home. Lack of a statewide strategic plan for victim assistance resulting in song ae 71 Summary Gaps from Previous CASOMBPublications Length of registration period is not currently linked to individual risk assessment, only to the type of offense (Under current California law, length of registration is life for all offenses without regard to an offender’s assessed risk. About 20% of registrants are eligible, based on their convicted sex offense, to apply for a certificate of rehabilitation). Lack of funding fora victim advocate as part of Vertical Prosecution CASOMB ae team. 2008 “ Lack of coordination among governmentagencies resulting in conflicting and duplicative policies. on . a%e ‘ Ci Lack of communication with and amongservice providers onsignificant policy issues poe oe a Uncertainty in funding from year-to-year. ScOMB v COMMUNITY EDUCATION Currently there is no public education and outreach work going on to prepare communities for the CASOM 2007 ae return of sex offenders after their period of incarceration. The Megan’s Law website is available to educate the public about sex offenderrecidivism, CASOM 2007 ae including statistics on age/gender, but is underutilized for this purpose. The web site should be utilized as an educational tool and the educational materials should be required reading for the public before allowing them to enter the search screens. Theregistration law is not easily understood by the public or translated into common language. CASOM 2007 ae REGISTRATION / NOTIFICATION CASOM 2007 72 Summary Gapsfrom Previous CASOMBPublications Extending the registration period (by lengthening the waiting period for a certificate of rehabilitation) by 3-5 years is not currently required for each conviction for violation of the registration laws. Registration for consensual sex offenses wherethereis less than a 10-year age difference between CASOM 2007 |, offender and victim is currently not tied to whetheror not the court finds that the offender poses a . risk of re-offending or is sexually dangerous. Courts need discretion to impose less-than-lifetime registration terms in these cases. Although the Adam Walsh Actrequires registration for kidnapping of children (non-parental) without CASOM 2007 |, required findings of sexual intent, this is not required by current California law. bd The risk assessment which determines whetherthe registrant poses a risk of recidivism is not used CASOM2007 ,,, to determine the duration of the duty to register. . The statute does not provide a court hearing regarding whetherregistration should continue after CASOM 2007 4s, 10-20 years for offenders with low risk assessment scores. ad Driver’s licenses suspension and otherrelevantrestrictions are not currently implementedin CASOM 2007 ae response to noncompliantregistrants. Current California law requires the prosecution to prove a willful violation of the registration laws, CASOM 2007 ae which entails proving the offender had actual knowledgeof the provision of the registration law he violated. The statute should be changedto provide that an offender whois notified of his registration duty andfails to comply is held accountable. The goalof investigations of registrants whofail to register should be to arrest violators. CASOM 2007 ae CASOM 2007 73 Summary Gaps from Previous CASOMBPublications There is no state mandate for establishing regional sex offender management teams that work closely together on the managementof specific cases under community supervision. (Current California law provideslimiting funding, on a grant basis, for SAFE teams, but such teamsare not mandatory. Ongoing funding is necessary for such teamsto function effectively.) CASOM 2007 There is no mandatedtraining for law enforcement, District Attorneys or judges on registration and community notification laws; such training should be mandatory and the law should require Peace Officers Standards Training (POST) reimbursementfor such training. CASOM 2007 Currently there is no required time line for entry of registration data by local law enforcementinto sex offender registration database (e.g., 3 days). CASOM 2007 Current California law requires the courts, DOJ, and district attorneys to retain files on registered sex offenders, but does not require law enforcement, probation or parole to maintain sex offender registration records, leading to problemsin obtaining documentsvital to proving knowledgeof the duty to register (and obtaining convictionsfor violations of the registration laws). CASOM 2007 There is no law requiring law enforcement agenciesto verify the offender's registered address, utilizing field compliance and mail-in verifications on an ongoing basis. CASOM 2007 Courts which reverse, vacate or dismiss a sex offense conviction are not required to notify the DOJ Sex Offender Tracking Program in writing. The only notification goes to DOJ’s Automated Criminal History System (these two software systems havenointerface, so reversals may not be communicated to the sex offenderregistration database). CASOM 2007 There is no system which enableslocal law enforcementto coordinate monitoring registrants with parole/probation. CASOM2007 There is no law requiring or encouraging vertical prosecution or the use of Penal Code section 290 prosecution teamsin District Attorney's offices for prosecution of misdemeanoror felony 290 cases. CASOM2007 74 Summary Gapsfrom Previous CASOMBPublications The law authorizing active and passive notification does not require consideration of the offender’s assessedrisk level to determine the appropriateness and scopeofnotification. CASOM 2007 CASOMB 2008 No state law provides for a court hearing, upon registrant request, to determine whetherthe risk posed to public safety by the registrant should continue to require Internet posting after 10-25 years. Current California law permitting exclusion from the Megan’s LawInternet website is very limited; it permits exclusion from the Internet for persons convicted of felony sexual battery, misdemeanor child molestation, and certain incest offenses against a child which did not involve penetration/oral copulation, without regard to length of time since release or the assessed sex offender’s risk of recidivism (Pen. Code, § 290.46, subd.(e)]. Additionally, 20%of California registered sex offenders are not posted onthe Internet website, because the Legislature deemedthe offenses not serious enoughto be so disclosed—without regard to the assessedrisk of the individual offender. CASOM 2007 Current California law does not require notification of a victim [who could be authorized by statute to elect such notification] before a local registering law enforcement agencyactively discloses information about a sex offender to the community. CASOM 2007 Althoughit is mandated that an individual risk assessment be completed by parole, probation and possibly local law enforcement agencies (the law is unclear on whowill assess registrants no longer on supervision), no direct oversight for quality review of the agencies performing the risk assessments has been established. CASOM 2007 No law authorizes offenders to request re-assessmentofrisk after specified time periods (e.g., once every 5-10 years). CASOM 2007 There is no current requirement for counties to establish collaborative teams and allocate funding for actively monitoring registrants and reviewing community notification decisions. Laws should require including law enforcement, parole, probation, DA's offices, DOJ SPAT teams,treatment providers, and victim advocates on such teams. CASOM 2007 There is no established state curriculum for community meetings which could be used in conjunction with active notification about registered sex offenders. CASOM2007 75 Summary Gaps from Previous CASOMBPublications offender's registered address,either by utilizing field compliance and/or mail-in verifications on an ongoing basis. Law enforcement agencies that currently have registration verification and enforcement teams are generally unfunded and are pulled together from existing, limited resources. There is no required timeline for entry of registration data by local law CASOMB oN; ; «mt eeti 2008 -enforcementinto the state’s sex offenderregistration database. There is no law requiring law enforcement agenciesto verify the soon a%e qe NUMBERS No entity in California - whether state agency, academicinstitution or other — has assumed or been appointed to provide leadership responsibility for conducting key research on topics related to the managementof the state’s sex offenders. California has consistently been a “consumer”of policy research and other research materials produced elsewhere, frequently by much smaller states, agencies, and/or foreign countries. CDCRdoesnot have a system of electronic record keeping (casefiles) for those underits authority and so is unable to provide much flexibility in assembling new sets of data or retrieving information from older records. Data collection regarding sex offenders on county probation varies considerably from county to county. Consistency is neededto allow the information to be gathered and analyzed at a statewidelevel. Some counties have been unable to provide data needed even for the basic overview providedin this section of the Report. 76 Summary Gapsfrom Previous CASOMBPublications The “metrics” used to classify sex offenders, sex offenses, recidivism and similar important dimensions are not consistent across systems, making it hard to reach and state clear conclusions. RECIDIVISM There is no broadly researched and replicated body of data about the recidivism of California sex offenders that would provide baseline measuresto guide policy and evaluate the successof any newefforts to reducerecidivism Noinformation is available at this time regarding sexual recidivism for sex offenders on probation in California. Policy makers haveinsufficient resources for obtaining reliable information about recidivism nor do they have ready accessto expert assistancein interpreting the complex recidivism data available from multiple sources. The operational definition of “sex offender recidivism” used in any future California recidivism studies needs to be standardized to improve the accuracy and comparability of the data. Little is known about the extent to which recidivism rates climb after the period of formal supervision and control under the authority of the criminal justice system (parole and probation) ends and sex offenders are simply living in the community as “free” citizens. Research about postsupervision recidivism should be undertaken. SPECIAL POPULATIONS 77 Summary Gaps from Previous CASOMBPublications The state hospitals provide the Sex Offender Commitment Programto all sex offenders but only 20-30%participate in this treatment program. Many more offenders participate in general treatment groups and vocationalofferings. 78 Summary Recommendations from Previous CASOMB Reports Key: Item has remained essentially unchanged there have been improvementsin practice, capacity or statute there have been reductions in capacity or funding The State of California should have a uniform definition for an HRSO asfollows: An HRSOis a convicted sex offender who has been deemed by the CDCRto pose a higherrisk to commit a new sex offense in the community. APC 290parolee will be designated as an HRSO for purposes of adult parole based on the score from a validated risk assessmenttool(s), and/or the known criminal history, and/or other relevantcriteria established by the CDCR. HRSO| All California adult PC 290 sex offender registrants underthejurisdiction of the CDCR must be HRSO| ale assessedto determine whether based onvalidated risk assessmenttool(s) and/or known criminal CASOM 2007 . history,and/or other relevantcriteria, they should be designated as HRSOs. The assessmentshall take place as soon aspractical, but no later than 120 daysprior to release on parole with continued assessments while on parole. All California inmates required to register as sex offenders that are designated as HRSOs should HRSO| ate be required to receive appropriate specialized sex offender treatment as warranted while incarcerated. 79 Summary Recommendations from Previous CASOMBReports Notification of Release of HRSOs:» The Task Force recommendsthat CDCR be required to notify victims 90 daysprior to the anticipated release of an HRSOinrelation toPC 3003(c). Victims should have a minimum of 21 days to challenge the HRSOresidential placement in accordance with established CDCR procedures.» The CDCRshould be required to provide notice of the release and recommended placement ofHRSOsatleast 60 days before release using mail service as required by law and an additional reliable method such as email, fax, or telephoneto list of designated law enforcementrecipients.» Local law enforcement should be required to provide timely and sufficient notice to the receiving communities of the residential placement of HRSOs. HRSO| The parole supervision of HRSOs should follow the“Containment Model,” which recognizesthe risk that sex offenders poseto the community, and thus provides a focus on “containing” offenders in a tight supervision and treatment network with active monitoring and enforcementofrules. This'Containment Model’ is formed by four components:The supervision componentsled by the specialized parole agent and his team; the treatment componentdirected by a qualified therapist who uses an evidence-based approach in conformity with recognized guidelines and standards: the polygraph component to be performedby qualified postconviction polygrapher(s); and the victim advocacy component focused on whatis bestfor the victim.In addition, all HRSOs should be placed on GPS monitoring (the Task Force recognized the value of more intensive supervision and GPS monitoring forall paroled sex offenders, but acknowledgethatit is beyond the scopeofthe Executive Order). HRSO| Progress Report 2009 CASOMB 2008 The CDCRandlocal law enforcement should partnerto create a viable program for community education and communication specific to HRSOissues. HRSO| The Task Force recommendslegislative changes to the Megan’s Law Websiteto specifically identify HRSOs whoare on parole and those that are being monitored by GPS. HRSO | The CDCRshould be required to assessthe fiscal and programmatic impact of the Task Force recommendations within 90 days and work with theAdministration and the Legislature to secure funding and/orlegislative changesin order to implement recommendations. In the event the CDCR cannot meetthe timeframe on any recommendation,a public letter should be sent to the Governor explaining the reasons why the Department cannot comply with the recommendations. HRSO| 80 Summary Recommendations from Previous CASOMBReports governmentto find appropriate and equitable housing solutions for placement of HRSOs. The Task Force recommendsthat a committee of appropriate stakeholders, such as this Task Force, continue to conveneto addressthesecritical issues. The CDCRshould be required to establish a permanent Sex Offender ManagementBoardthat will HRSO | review practices of the CDCR regarding the stated goals of the California High Risk Sex Offender TaskForce. Stakeholders such assheriffs and police chiefs,district attorneys, county probation chiefs and line parole officers should have permanentpositions on this Board. The CDCRshould be required to continue working with local law enforcement and local HRSO |! INVESTIGATION PROSECUTION DISPOSITION Specialized training should be providedto all individuals responsible for the investigation, CASOM2007 prosecution and disposition of sexual offenses with a particular focus on cultural differences, and Progress differences between adult and juveniles, both as victims and as offenders. Report 2009 All sexual assault cases, adult and juvenile, should be handled by specially trained prosecutors CASOM 2007 Se assigned to a vertical prosecution unit. Progress . Report 2009 Every jurisdiction should have a Multidisciplinary Team (MDT)to facilitate the investigation and CASOM 2007 Se prosecution of sexualoffenses. Progress . Report 2009 Statewide protocols should be developedfor the investigation of sexual offenses, including CASOM 2007 Se protocols for the collection, packaging and preservation of evidence. . California should establish filing guidelines that ensure consistency and integrity in filing decisions CASOM 2007 Se and, whereverpossible, designate one experienced prosecutor to makefiling decisions. . California should establish guidelines to ensure consistency in plea bargains and dispositions. CASOM 2007 81 Summary Recommendations from Previous CASOMBReports Judicial officers need accessto training on sentencing alternatives that enhance sex offender managementto ensure that they understand the dynamics of sexual offenses, the heterogeneity of the sexualoffender population, research on recidivism and the impact of offenses onvictims. The training should be multi-disciplinary and involve a collaboration between the Center for Judicial Education and Research and the National Center for Sex Offender Management. CASOM2007 Investigation and prosecution of sexual offenses should consider the needs ofvictims including suchissuesasfair accessto the judicial process, early notification regarding victim rights, assignmentof a victim advocate, protection of sensitive information, and communication with victimsatall stages regarding the progressofthe investigation, prosecution and disposition CASOM 2007 District attorneyoffices, in collaboration with law enforcement, should prepare anddistribute a brochureto inform the sexual assault victim of his/her rights, and compile a checklist of the steps that can be taken to protect those rights. These brochures should also bedistributed by victim advocate organizations and medical providers. CASOM 2007 TREATMENT/ ASSESSMENT Written policies should be developedfor the assessmentof sex offenders including specific guidelines regarding the components of the assessment as well as policies regarding the frequency andtiming of such assessments duringinvestigation, incarceration and the period of community supervision. CASOM 2007 Appropriate and evidence based treatment should beroutinely offered to all adult and juvenile sex offendersin California. There should be a continuum of care that guaranteesavailability of appropriate treatmentatall stages of the criminal justice process through arrest, incarceration, community supervision, and beyond. CASOM 2007 Written policies should be developedfor the treatment of sex offenders including specific guidelines regarding appropriate treatment protocols that follow evidence-based standards of care and implementation of the containment model. CASOM 2007 82 Summary Recommendations from Previous CASOMB Reports Written policies should be developed regarding the minimum qualifications, experience and certification of professionals authorized to conduct the treatment of sex offenders in California. CASOM 2007 Further research is needed to ascertain the availability of qualified offender-specific treatment providersin California. This is necessary to ensure developmentof sufficient numbers of qualified treatment providers and programs throughout California. CASOM 2007 In regions where there are currently inadequateorlimited resources for the treatment of sex offenders, available treatment should be targeted towardsthe highest risk sex offenders. CASOM 2007 California should maintain a data base to monitor treatment outcomes and rates of sexual and general recidivism of sex offenders who complete treatment programs. CASOM 2007 There should be adequate funding to ensure that all sex offenders in California have the option of receiving appropriate sex offender treatment CASOM 2007 Policies should be developed regarding in-custody segregation and therapeutic communities. Treatment should be provided in environments that assure physical and emotional safety, whether in institutional or community based settings. CASOM 2007 REENTRY Case managementplans based on a comprehensive needs assessment should be developed early in the confinement period focusing on treatment, with the specific objective of preparing the offender for release and addressing those issues that research has demonstrated to be associated with future criminal behavior. CASOM 2007 Policies should be developed regarding the needfor a written re-entry plan that is based onclinical assessment, response to treatment and institutional services, and includes input from the community supervision officer. This collaboratively developed pian should befinalized at least 6 months prior to release and should explicitly address housing and other community stabilization needs, as well as victim issues, including procedures that enable victims to exercise their rights around placement CASOM 2007 83 Summary Recommendations from Previous CASOMB Reports The written re-entry plan should follow the sex offender throughthe different phasesof the period of confinement andat the time of release into the community so asto facilitate continuity of care and enhancedpublic safety. CASOM 2007 Every community has an obligation to identify permanent, stable housing for sex offenders, to facilitate reintegration and reducethelikelihood of recidivism. CASOM 2007 The California Sex Offender Management Board recommendsthat the California State Legislature, Governor, and local governments reconsider residency restrictions to create an offender housing and supervision solution that balances three essential concerns: Public safety — Community sex offender managementstrategies should promote proven public safety strategies. Residencyrestrictions that preclude or eliminate appropriate offender housing can threaten public safety instead of enhancingit. Fair Share - Offender populations should, as dictated by statute, return to their county of conviction. No jurisdiction, countyorcity, should be forced to accommodatea significantly disproportionate numberof offenders dueto the residencyrestrictions in adjoining jurisdictions. - Local Control- local governments,in collaboration with state agencies, should collaboratively identify not only areas where offenders should not reside orloiter but also a sufficient numberof areas that are suitable and appropriate for offendersto live. PUBLIC EDUCATION public education and outreach campaign should be implemented to educate and prepare communities for the return of sex offenders following incarceration. CASOM 2007 SUPERVISION Effective, written evidence-based practice parameters should be developed to guide the community supervision of sex offenders in California. CASOM 2007 84 Summary Recommendations from Previous CASOMBReports Community supervision policies should adopt a containment model that also incorporates a collaborative team-based approach. CASOM 2007 Case loads for community supervision should be specialized and adopt recognized guidelines regarding the maximum numberof cases that can be effectively supervised by oneindividual. CASOM 2007 Intensity of community supervision and allocation of resources should be guided by the sex offender risk assessment and specific needsof the individual offender. CASOM 2007 REGISTRATION / COMMUNITY NOTIFICATION Low to moderate risk sex offenders should be provided with the opportunity to petition for a hearing, after 10 years of compliance with the registration law, for termination of the duty to register. At the hearing, the sex offender should be required to show by a preponderance of evidencethat he or sheis notlikely to pose a threat to public safety and has not been convicted of a new sex offense. Courts should be given discretion to reducelifetime registration requirements in certain cases based on the lower assessedrisk of individual sex offenders. CASOM 2007 California should mandate ongoing state funding for multidisciplinary regional sex offender managementteams,including for enforcement and compliance work by those teams, and provide ongoing state funding to establish mandatedtraining for such multidisciplinary sex offender management team members.California should also require Peace Officer Standards and Training (POST) reimbursement for suchtraining. CASOM 2007 85 Summary Recommendations from Previous CASOMB Reports Law enforcement agencies should be required to consider, as one factor, the sex offender's risk assessment score or scores to determine the appropriateness and scope of notification. CASOM 2007 86 Appendices APPENDIX A—ADDITIONAL RIGHTS FOR SEXUAL ASSAULT VICTIMS Evidence Code section 352.1—-Exclusion of rape victim’s address and telephone number. Evidence Code section 782——-Procedure to determine relevance of sexual conduct evidence proposedto attack credibility of complaining witness. Health & Safety Code section 1491—Examinations without charge,testing for venereal disease and pregnancy. Health & Safety Code section 1492—Indemnification of Victims; Information; Victim Compensation Claim Forms Penal Code section 264.2—Right to have a Crisis Center notified before medical examination. Penal Code section 293—Notice to sex offense victim that victim’s namewill becomepublic record unless victim requests otherwise; disclosure of victim’s addressprohibited. Penal Code section 293.5—ldentity of sex offense victim; court may grant anonymity. Penal Code section 679.04—Right to have an advocate present at examination or interview; “advocate”defined. Penal Codesection 1127d-——Jury instructions regarding rape victim’s previous consensual intercourse with defendant. Penal Code section 1203.1g—Restitution for medical or psychological treatmentof minor sexual assault victim. Penal Code section 1347—Useof closed-circuit television to communicate testimonyif victim of certain sexual offenses is age 13 orless. Penal Code section 13823.95—-Costs incurred by emergency medicalfacilities for examination of sexual assault victims. Penal Code section 637.4—Prohibition on use of polygraph examination as prerequisite to accusatory pleading. PenalCode section 1112—No psychiatric examination necessary for sexual assault victim Penal Code section 680—Sexual assault victims’ DNABill of Rights. Penal Code section 667.6(f)—Provides that the court may impose a fine not to exceed twenty thousand dollars ($20,000) for anyone sentenced for the following offenses: Rape Spousal rape Rape, spousal rape, or sexual penetration, in concert 87 Sodomy Lewdorlascivious act Continuous sexual abuseof a child Oral copulation Sexual penetration APPENDIX B — VICTIMS’ BILL OF RIGHTS ACT OF 2008 To be treated with fairness and respectfor his or her privacy anddignity, and to be free from intimidation, harassment, and abuse, throughoutthe criminal or juvenile justice process. To be reasonably protected from the defendant and personsacting on behalf of the defendant. To have the safety of the victim andthe victim's family considered in fixing the amountof bail and release conditions for the defendant. To prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications madein the course of medical or counseling treatment, or which are otherwise privileged or confidential by law. To refuse an interview, deposition, or discovery request by the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents. To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the chargesfiled, the determination whetherto extradite the defendant, and, upon request, to be notified of an informed before anypretrial disposition of the case. To reasonable notice of ail public proceedings,including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present andof all parole or other post-conviction release proceedings, andto be presentat all such proceedings. 88 To be heard, upon request, at any proceeding,including any delinquency proceeding,involving a post-arrest release decision, plea, sentencing, post- conviction release decision, or any proceeding in which a right of the victim is at issue to a speedytrial and a promptandfinal conclusion of the case and any related post-judgment proceedings. To provide information to probation departmentofficial conducting a pre- sentence investigation concerning the impact of the offense on the victim and the victim's family and any sentencing recommendations before the sentencing of the defendant. To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law. To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody. To restitution. A. It is the unequivocalintention of the People of the State of California that all persons whosuffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. B. Restitution shall be ordered from the convicted wrongdoerin every case, regardless of the sentenceordisposition imposed, in which a crime victim suffers a loss. C. All monetary payments, monies, and property collected from any person who has beenordered to makerestitution shall be first applied to pay the amounts ordered asrestitution to the victim. To the prompt return of property when no longer needed as evidence. To be informedofall parole procedures,to participate in the parole process, to provide information to the parole authority to be consideredbefore the parole of the offender, and to be notified, upon request, of the parole or other release of the offender. To have the safety of the victim, the victim's family, and the general public considered before any parole or other post-judgmentrelease decision is made 89 APPENDIX C ¢ Training should include modern investigative procedures, proper methodsfor interviewing victims, witnesses, and suspects; ¢ Training should include: * The impact of sexual assault crimes on victims; * Meeting the mental health needs of sexual assault victims in the criminal justice system; - The effective role of multi-discipline centers, especially for interviewing victims of suspected sexual assault crimes; + The effective role of Sexual Assault Response Teams (SART); * The effective, comprehensive and collaborative Family Justice Centers created in communities throughout the state as a best practice in the response,investigation, prosecution and prevention of sexual assault; + The developmentofforensic, scientific tools, most significantly in DNA, the evolution of criminal justice databases, particularly CODIS and the Departmentof Justice (DOJ) DNA database ~ cold hit program; + Changesin the law that require those arrested for felony crimes to submit biological samples~DNAprofiles to DOJ; + Recent developments and updatesin the law and bestpractices. APPENDIX D - Suggested Guidelines Criteria + The responsibility of the law enforcement personne! receiving the initial report of an offense. « The responsibility of the responding officer. + Evidence documentation and collection procedures, particularly for DNA and/or drug facilitated analysis. + Sexual Assault Response Teams (SARTs) and other “team” response structures. ¢ Crime scene preservation. ¢ Victim notification regarding investigative procedures « Confidential Communication protections. 90 « Victim interviewing. « Suspectinterview / interrogation. « Mandatory notifications. ¢ Follow-up investigative procedures. « Case management. « Officer wellness; APPENDIX E - Mentor DA programcriteria * Identify Expert Sexual Assault Prosecutors; *« Commit to 1 year (at a minimum) as a Mentor; ¢ Identify area(s) of expertise; « Identify methods of mentoring; ¢ General Mentoravailable for consultation and technical assistance; ¢ Provide individualized & directed training to an office or group of prosecutors; « Provide one-on-one Mentoring during trial. APPENDIX F - Suggested treatment providertraining content Documentation of training obtained should include, but not be limited to, the following topics oftraining. « Assessment and treatment of deviant sexual arousal, interest, or behavior ¢ Overcoming denial or minimization by offenders « Identifying and correcting cognitive distortions used by sexual offenders ¢ Effects of abuse on victims and enhancing victim empathy « Understanding howto addressthe effects of the offenders’ own childhood victimization experiences as a research based method to enhance offender empathyfor their victims ¢ Identifying antecedent patterns or offense cycles 91 « Developing self monitoring and relapse prevention skills « Accountability strategies including use of polygraphy, global positioning satellite systems, monitoring community involvement, offender registration requirements, alcohol and other drug testing within the context of sex offendertreatment * Enhancing pro-social skills i.e. assertivenesstraining, relationshipskills, anger management,affect regulation skills, pro-social goal attainment strategies * Treatment of mentalillness and/or substance abusewithin the context of sex offender treatment « Evidence based practices applied to sex offender treatment, such as the risk, needs, and treatment responsivity strategies and cognitive behavioral therapies + Age, gender, or developmental level appropriate interventions, e.g. for adolescents, learning disabled, female, or persons with intellectual disabilities + Neurodevelopmental aspects of human developmentand sexuality * Use of psychotropic medications in treatment of sexual deviance or dysfunction * Collaboration with other Containment Modelprofessionals including probation or parole, victim advocates, polygraph examiners,andcircle of support and accountability members « Interaction with the criminal justice system + Mandatory reporting of suspected child or dependent/elder abuse + Other topics related to sex offender treatment and management APPENDIX G - Suggested Treatment documentation and structure Such documentation should include, but are notlimited to, the following: + Astatementof the programs’ philosophy of change,potential risks & benefits from participation in sex offender specific treatment, and what strategies will be used in support of the changeprocess, + Discussion of assessment tools and evaluative processesto be implementedincluding defining howre-offenserisk level, criminogenic 92 needs, and treatment responsivity will be considered in designing treatment, case management, and completion plansfor individual participants, ¢ Adescription of the cognitive-behavioral rationale and methodologies to be utilized including but not limited to accepting responsibility for the criminal acts, cognitive restructuring, relapse prevention training, self regulation and affect regulation training, and life skills that may improve the offenders likelihood of successful living with no morevictims, Modelinformed consent forms for treatment, testing, release of information, and treatment contract that defines the limitations of confidentiality, the nature of the treatment providers’ relationship with Probation or Parole,i.e. the Containment Model, the rules and expectations of the program, and how records will be secured, « Discuss methodsof offender accountability including, but not limited to, use of polygraphy, self-report methods, drug testing, and community supervision by Probation Officers and/or Parole agents, ¢ Howviolations of treatment program, Probation, or Parole rules and conditions will be handled as well as how client data is protected, used in research,or secured, « Discuss how decisions will be made regarding modalities of treatment,i.e. individual therapy, group therapy, a combination of therapies, and use of adjunct services such as twelve step programsor use of psychotropic medications, and ¢ Discussion of the Program Director’s training, education, and experience, status of CASOMBapproval, and that of staff therapists who may workwith the offender. APPENDIX G- Special Conditions of Supervision This supervision typically should include: « Ensuring that the offenderis actively engaged in and consistently attending an approved community-based treatment program; * Verifying the suitability of the offender’s residence and place of employment; ¢ Monitoring the offender’s activities by conducting frequent, unannounced field visits at the offender’s home, at his place of employment, and during his leisure time (e.g., is he engaging is inappropriate, high risk behavior such as collecting items that depict or are attractive to children?); and * Helping the offender to develop a community support system-including friends, family members, and employers who are aware of the offenders 93 criminalhistory, are supportive of the community supervision plan, and can recognize the sex offendersrisk factors. APPENDIX H - Summary of GPS Studies Listed below are the states who have conducted somelevel of evaluation of their GPS programs: California The University of California, Irvine, Center for Evidence-Based Corrections completed an evaluation of CDCR sex offender parolees. This evaluation coveredthe time period of June — November, 2005.In this study, 94 parolees comprised the experimental group and 91 parolees werein the control group. The results and/or recommendations were as follows: Parole Agents found the GPS program very time consuming. Reviewing the GPStracks as well as respondingto false alarms took up a great deal of time. Sharing of data with police departmentsin order to solve sex offense crimes proved to be moredifficult then expected. GPSparole agents hadsignificantly higherindividual parolee contacts then HRSO parole agents with out GPS. GPS monitoring hadlittle effect on parolee recidivism. The only significant difference between the experimental and control groups wasonrates of absconding. GPSparoleeswerelesslikely to be found guilty of a parole violation for this behavior. Just over 50 % of both the experimental and control groups had a parole violation during the evaluation period. Most were for technicalviolations. Tennessee In July, 2004, Tennessee enacted the Serious and Violent Sex Offender Monitoring Pilot Project Act. This authorized the Tennessee Board of Probation and Parole (BOPP)to monitor sex offenders using Global positioning systems technology on a pilot basis. The statute specifically enabled BOPP to use GPS as a mandatory condition of release for certain offenders, as deemed appropriate by BOPP. Middle Tennessee State University (MTSU) evaluated the results of the pilot program (based on an experimental group of 493 sex offenders) and cameto the following conclusions: 94 Whenthetreatment and control groups werestatistically compared by their first year of supervision and by the same yearof supervision, no statistically significant differences were found in the numberofviolations, new charges,or in the numberof days beforethefirst violation. Although the empirical analysis did not yield definitive support for satellite- based monitoring, BOPP’spilot project indicates that GPS provides officers with a unique supervision tool and has potential in aiding officers. New Jersey New Jersey’s Sex Offender Monitoring Pilot Project Act became law in 2005 and authorized the New Jersey State Parole Board to subject up to 250 of the State’s most dangerous sex offenders to round-the-clock Global Positioning System (GPS) monitoring. The project was evaluated by the State Parole Board with the following conclusions: The use of GPS technology wasan essential too! when being utilized as a componentof the “containment model” being utilized in New Jersey. The use of intensive supervision, law enforcementinformation sharing, and sex offender specific treatment are targeted to most effectively use external law enforcement controls and internal psychological controls, to preventfurther sexualvictimization. The State Parole Boards GPS monitoring has contributed (when used with the rest of the containment model) to a significantly lower recidivism rate than nationwide data indicates for high-risk sex offenders. The monitoring also provides anin valuable resource for investigations, by providing data that can be compared with the times and place of new sex crimes. North Carolina North Carolina completed a short term evaluation of the sex offenders being monitored by GPS.This evaluation covered a 6 month period of time and included 83 offenders who were being monitored at somepoint during the evaluation period. The evaluation reported lower then normal violations and revocations. They also had no newcriminal offenses reported during the reporting period. Maryland The Maryland Task Force to Study Criminal Offender Monitoring by Global Positioning Systems completed an evaluation of the efficacy of using GPS 95 monitoring in Maryland and made recommendations to the Governor. Among those recommendations were: Authority for the usage of GPS for monitoring offenders would be given to the Division of Probation and Parole. Extensions of probation and parole should be given to appropriate offenders. GPS monitoring should beutilized on high risk offenders whenlocation is a primary concern. GPS monitoring should be part of comprehensive case planning, which mayinclude treatment, intensive supervision, polygraph exams and other elements. GPS monitoring should be part of a supervision modality using Standardized risk assessmentinstruments. GPS,like other supervision tools, should not be applied en masstoall offenders or categories of offenders. Appendix | Recommended Changesto California Law On Sex Offender Registration and Internet Notification It's recommendedthat California amendits law on duration of registration, which should dependonindividual risk assessment,history of violent convictions, and sex offense recidivism The proposed changesto California law take into consideration the seriousness of the offender'scriminal history, the empirically assessedrisk level of the offender, and whetherthe offenderis a recidivist or has violated California’s sex offenderregistration law. Duration of registration would range from ten (10) yearsto lifetime (10/20/life). For purposesofthe tiering scheme, Penal Code section 667.5 lists violent offenses, including violent sexual offenses. (Appendix B). Tier 1: Register for 10 years Low to moderate risk score on the Static-99 (score 0-3); sex offense was not a violent offense ora violation of Penal Code section 647.6; no new sex offense or any violent offense was committed within 10 years of release from custody or after release on probation on the registrable sex offense; no conviction for violation of the Sex Offender Registration Act (“SORA”- Pen. Code, §§ 290-290.023). Tier 2: Register for 20 years 96 Moderate to high risk (score 4-5), or person who committed a violent sex offense or violation of Penal Code section 647.6, and has been released from custody or released on probation for 20 years; no new violent sex offense was committed within 20 years of release from custody or release on probation on the registrable offense; no conviction for violation of the Sex Offender Registration Act (“SORA”- Pen. Code, §§ 290-290.023). Tier 3: Register for Life High risk score on the Static-99 (6 and above), or a person whois a recidivist, defined as a person who has two or more convictions, brought and tried separately, for violent sex offenses; or a person who was ever committed as a sexually violent predator pursuant to Welfare and Institutions Code section 6600, et seq. Petition for Tier 1 Status for Romeo and Juliet Offenders Low to moderate risk offenders (Static-99 scores 0-3) convicted of registrable sex offenses against no more than one minorvictim age 13-17, who were no more than seven (7) years older than the minorat the time of the offenses, can petition the court for tier 1 status. The offender must show that the offense was consensualin order to be granted tier 1 status. NOTE:S.B. 325, pending in the 2009 legislative session, would allow registered sex offenders to request a Static-99 score by submitting a request to the registering agency. The score musteither be determined by Probation, or by qualified law enforcement personnel who havereceived training from a SARATSOtrainer. Risk assessment research on sex offenderstells us that successful completion of a specific sex offender treatment program indicates the offenderis at lowerrisk to re-offend; and cooperation on supervision is a dynamic risk assessmentfactor indicating less risk of re-offense. However, today there is no sex offender treatment being offered in California prisons, and there are differing opportunities for treatment for offenders on probation and parole. Fiscal problems have ended a numberof treatment options at the time of this report. Further, at this time California has no statute requiring credentialing of sex offender treatment providers, meaning that when treatmentis offered the state has no wayof verifying that the treatment methods used are appropriate and the treatment provider is competent and well-trained. At’somefuture date, when California offers sex offender treatmentto all sex offenders, and when sex offender treatment providers are required to be credentialed by the state, policy makers may want to consider making successful completion of treatment a factor in determining duration of registration. Similarly, if information on supervision cooperation is incorporated in the state sex offender registry at somefuture date, policy makers may want to consider whether 97 successful completion of probation or parole should also factorinto the duration of registration requirements. The committee recommendsthat changesto California law on registration apply prospectively. Probation did not begin to score all sex offenders pre-sentencing until July 1, 2008. Parole beganto scoreall sex offendersprior to release from prison in 2006. For purposesoftier determinations, the pre-sentencing Static-99 score must be used—-re-scoring will not be available. However, registrants who do not have Static-99 score which was computed pre-sentencing on orafter July 1, 2008, mayuse a Static-99 score which was doneby Parole prior to release from prison onor after January 1, 2006. Other registered sex offenders, who do not have a pre-sentencing score or a score doneprior to release on Parole after 2005, may request to be scored throughtheir registering law enforcement agency for purposesof determining tier level. Those offenders who were not scored pre-sentencing or on release from prison in 2006 or afterward, and who do not request a score, will remain in thelifetime registration tier. Since no SARATSOinstrumentis currently available for scoring female sex offenders,tier level will be determinedbyutilizing the other factors in each tier, without regard to risk assessment scores. Wealso recommendposting all offenders in Tiers 2 and 3 on the public Megan's LawInternet website, and that California eliminate its current law permitting designated sex offenders to apply for exclusion from the Internet web site (Pen. Code, § 290.46, subd. (e).) Appendix J Violent Offenses Thefollowing are the offenses which are deemedviolent for purposesofthis proposedlegislation, as defined in Penal Code section 667.5: (1) Murderor voluntary manslaughter (2) Mayhem (3) Rape (Pen. Code, section 261(a)(2), (6); 262(a)(1), (4)) (4) Sodomy(Pen. Code section 286(c), (d)) (5) Oral copulation (Pen. Code, section 288a(c), (d)) (6) Lewd orlascivious act as defined in subdivision (a) or (b) of Section 288 (7) Any felony punishable by death or imprisonmentin the state prisonforlife (8) Any felony in which the defendantinflicts great bodily injury, as defined 98 (9) Robbery (10) Arson (Pen. Code, section 451(a), (b)) (11) Foreign object penetration (Pen. Code, section 289(a), (j)) (12) Attempted murder (13) Explosion to commit murder, mayhem, or great bodily injury (Pen. Code, §12308, 12309, 12310) (14) Kidnapping (15) Assault with intent to commit a felony (Pen. Code, section 220) (16) Continuous sexual abuse of a child (Pen. Code, section 288.5) (17) Carjacking (Pen. Code, section 215(a)) (18) Rape, spousal rape, or sexual penetration, in concert, (Pen. Code, section 264.1) (19) Extortion (Pen. Code, section 518) (20) Threats to victims or witnesses (Pen. Code, section 136.1) (21) First degree burglary whereit is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary (Pen. Code, section 460(a)) (22) Use of a firearm in the commission of specified serious felonies (Pen. Code, section 12022.53) (23) Sending or possession of weaponsof mass destruction (Pen. Code, section 11418) Appendix K Summary of Lawsin Risk AssessmentStates Arizona Levels 1-3, as determined by the Department of Public Safety. A risk assessment screening profile is completed for each sex offender. This instrument evaluates 19 criteria hat are considered to be significant factors contributing to sex offender recidivism. Each criterion is given a score, whichis then totaled to arrive at the recommendedrisklevel. All criminal justice agencies must use the standardized Arizona Risk Assessment; however, occasionally law enforcement discovers 99 information which can affect an offender’s risk level. As such, law enforcementis given the discretion to either accept the recommendedrisk levelor complete another risk assessment. Notification: Based onlevelof risk. Mandatory localnotification and Internet notification on levels 2-3. Review: Offender can request court review ofrisk level; courts have discretion to terminate registration in some circumstances. Unclearif circs. are statutorily defined. Duration: 1st offense, 10 years; 2d offense,life. Comments: Unclearif 19-factor assessmentinstrumentis empirically based. Arkansas Levels 1-3, determined by Sex Offender Assessment Committee. Guidelinesin Statutes and Committee's policies and procedures. Level 1, no prior history; level 2, history of offending and notification inside homeis insufficient: level 3, violent, predatory, antisocial offenders. All offenders are required to submitto a risk assessment to be completed by the Department of Correction Sex Offender Screening and Risk Assessment Program (SOSRA). Theoffenderis notified by certified mail of the location, date and time of the assessment.It is a Class C Felonyto fail to appear for assessmentorto not fully submit to the assessment process. The offender is assessed as a default Level 3 should this occur. Community Notification Assessments mayinclude, but are notlimited to, the following: - A review of the sex offender's criminal history, with particular attention given to any offense that was sexualor violent in nature. * An interviewof the sex offender completed by SOSRA staff. * A polygraph examination or a Voice Stress Analysis in cases in which SOSRA Staff do not believe that they have adequate information to accurately assess the offender. * A thorough review of any mental health records available to SOSRA staff at the time of assessment that may be relevantto the offender’s risk to the community. * Psychological testing when deemed necessary by SOSRA psychologists. * Other information that is relevant to the offender's offense history and/or pattern. 100 * Completion of appropriate actuarial instruments designed to assessindividuals convicted of sexual offenses. At the SOSRA assessment, state law protects any admissions made by the offender during the assessmentinterview from usein a criminal proceeding. In this way, the individual’s Fifth Amendmentrights are protected. Therefore, the offender may not avoid answering questions by claiming protection underthe 5th Amendmentright to avoid self-incrimination. The interviewer completes the actuarial instruments deemed appropriate by SOSRA psychologists. The actuarial instruments are only one componentof the assessment(see above). (See Arkansas Sex Offender Assessment Committee Guidelines and Procedures 2007,http://www.acic.org/Registration/SOAC%20GL%202007.pdf.) Notification: Guidelines in statute and policies and procedures govern community notification assessments to determine appropriate level of notification. Internet: Determinedbylevelof risk assessed andif offender was over 18, and victim was age 14 orless. Juveniles: registration is based on adjudication for certain more serious offenses. Duration: Sexually violent predator, aggravated, recidivist: Lifetime. Others: 15 years, after which application for termination from registry can be made. Notification: Based onrisk level. Registration: Offense based: courts must designated whetheran offense qualifies as an “aggravated sex offense,” depending on defined circumstances;triggers lifetime registration. Review: Yes, appealable to the SOAC,on groundsthat procedures of SOSRA were not properly followed; or documents or information was not available at the time of the assessmentthat are relevantto risk; or assessmentis not supported by substantial evidence. Reviewing member of SOAC decides whetherto submit to full committee to modify the notification level; majority vote of SOAC required to change level. Offender may appeal administrative decision denying modification of notification level. Overrides to empirical risk assessment: Increased notification level: Prior juvenile or adult sex offenses; multiple victims or offenses, evenif not resulting in conviction. Can use knownorself-admitted molestations, offenses that were reported and investigated, even if not prosecuted, and offenses primarily sexual in nature but pled down to non-sexual offenses. 101 Historical data or offender statements suggesting psychological abnormalities predisposing offender to sexual offending; addiction or other issues reducing ability to control sexual impulses,or increases potential for sexual violence; other data suggesting higherrisk than the actuarial modelpredicts. If offense involved great bodily injury or death, no less than a level 3 may be assigned. If the offender has provided information on the record orin the interview that he is likely to commit subsequent sex offenses, no less than level 3 may be assigned; and may wantto considerfor level 4 evaluation (SVP). Offender’s offense history, behavior or victim characteristics (e.g., very young victim, strangervictim, extra-familial victim) suggests higher notification level than actuarialrisk level would support. Decreasednotification level: Offender demonstrates,after treatment, significantly enhanced impulse control ability and decreased predisposition to reoffend. (not applied to level 4’s) If evidence offense was temporary aberration or unlikely to recur, may lower community notification level from risk level set by actuarial instrument. Victim recantations may permit adjustmentof risk level used for notification. (Editorial comment: this is not a good idea unless a court found the recantation credible). Statutory sex offenses not involving violence, deviance, or coercion, as long as | there is no pattern of such offenses, mayjustify a lower levelof community notification than suggested by the actuarial instruments. Colorado The Colorado Sex Offender Management Board doesrisk assessment to determine sentencing and treatment; risk level does not affect registration or notification obligations. Unclear what risk assessment instrument(s) are used. Probation does a pre-sentencing risk assessment on sex offenders. Probation officers assessing sex offenders during the pre-sentence investigation must have successfully completed required training. A pre-sentence investigation must addressthe following: Criminal history Education/employment Financial status 102 Residence Leisure/recreation Companions Alcohol/drug problems Victim impact Emotional/personal problems Attitude/orientation Family, marital and relationship issues Offense patterns and victim grooming behaviors Sex offense-specific evaluation report Risk factors, risk level, and amenability to treatment The potential impact of the sentencing recommendation on the victim Sexually Violent Predator (SVP) assessment Whenreferring an offender for a sex offense-specific evaluation, pre-sentence investigators should send to the evaluator, as part of the referral packet: Police reports The victim impact statement Child protection reports A criminal history Any available risk assessment materials Prior evaluations and treatment reports Prior supervision records,if available Any otherinformation requested by the evaluator 103 Duration: Dependsonoffense, 20 years for some, 10 yearsfor less serious; 5 years for misdemeanors,life for specified offenses. All offenders can petition court for termination after a minimum periodfor their offense, except those requiredforlife. Notification: Offense-based, not risk-based. Connecticut Risk Assessment Board determinesrisk levels, but these do notaffect registration or notification requirements. Duration: 10 years; persons under19 at time of offense or who committed a nonviolent offense can apply for exemption, following victim notification and comment, and a determination that registration is not required for public safety. Delaware Sex Offender ManagementBoard determinesrisktier levelsI-Ill. These apply to registration and community notification. By Jan. 2009 the Board was to approve a risk assessmentinstrumentto assist any sentencing authority in determining risk of recidivism. Board wasto consider risk assessment researchin carrying out this duty. This was changing the system from an offense-basedto a risk- based system. Current tiers are offense-based though. Duration: Life for TierIII and othertiers if recidivists. Tier II- 25 years. Tier! - 15 years. Notification: Dependsontierlevel. Georgia Idaho Sexual Offender Registration Review Board determines likelihood offenderwill re-offend against a child or with a sexually dangerousoffense. Levels 1-3: unclearif risk based or offense based. Duration: Life Notification: All. Sex Offender Classification Bd. determines whois a high risk offender or sexual predatory; criteria unclear. 104 lowa Duration: 10 years, after which offenders who qualify for this registration period can apply for termination; recidivist, violent or aggravated offenders register for life. Aggravated offenses are offense-basedclassification. Risk assessment determines whetherthere is community notification; lowa uses low-high risk levels, but it is unclearif the levels are offense or risk-based. Internet displays moderate andhigh risk offenders; at neighborhood meetings, law enforcement can disclose on high risk offenders. Massachusetts Sex Offender Registry Board assesseslevels 1-3. Criteria are unclear. Notification on request on levels 2 & 3; based on whethera citizenis likely to encounterthe offender, disclosure is permitted as to level 3’s only;Internet site displays level 3’s only. Minnesota Dept. of Corrections assesses Levels I-Ill. The Department of Corrections was required to consult with others to develop a risk assessment scale. The state developed and uses the MnSOST-R,a risk assessment tool normed on a Minnesota sex offender-*// population. Duration of registration depends on whetherthe offender is deemedrecidivist, murdered the victim, or is a sexual psychopath or sexually dangerous person. Registration is for10 years,orlife if recidivist, etc. Notification: Internet, tier II! only; for groups deemedlikely to be victimized, notification ontiers II or Ill are permitted to groups or individuals; for a person likely to encounter - can disclose ontierIII only. Montana Dept. of Corrections assignsrisk levels, which apply to registration and notification provisions. Dept. or evaluator provides court with sexual offender evaluation report recommendinga tier level. Notification: Internet, level 3 only; other types of notification depends on offense andtierlevel. Nebraska Psych. Dept. of Univ. of Neb. developed risk assessment tool, used by Nebraska State Patrol to classify sex offenders. Notification: Level 2’s in certain circumstances; Level 3 on Internet. 105 New Jersey Attorney General (AG)classifies risk level in consultation with Notification Advisory Council. Tiers I-{Il. AG guidelines for factors relevant to reoffense. Notification based on AG procedures and degreeofrisk of reoffense. Notificationis tier II for organizations/people likely to encounterthe SO, and Tier IIl for Internet posting. New York Board of Examiners of Sex Offenders and Sentencing Court assesseslevel 1-3; Board develops guidelines and procedures to assess risk and makes recommendation to sentencing court as to whetherthe offenderis a sexual predator, sexually violent offender, or predicate sex offender, and on whatrisk level to assign. Notification: Internet, levels 2-3 only. Discretionary community notification on level 1, can’t post or disseminate exact address. North Dakota Risk assessment by AG’s office, in conjunction with Corrections, LEAs, victims’ services, juvenile services, and other professionals. Review criminal history, evaluations, and otherpertinent documents. High, moderate and low risk, scored on actuarialtools. Notification: Internet: all offenders; mandatory community notification, on moderate and high risk offenders to agencies serving children and vulnerable populations. Oklahoma Committee selects an existing sex offender screening tool, which must use an objective point system under which a personis assigned a designated numberof points for each of the various factors and the offense for which the personis convicted. Low -high (1-3). Notification: Internet- all. Local: anyone deemed appropriate can be notified abouthabitual or aggravated offenders. RhodeIsland Risk Assessment Board of Review selects instruments for determiningrisk, and assigns low, moderateor high risk level. Only those found SVPs,i.e., likely to reoffend by looking at offense, risk assessmenttool, and psych. eval. are subject to notification. Internet: levels Il, Ill, and notification to schools, day care on theselevels; others discretionary if necessary for public safety. 106 Texas Risk Assessment Review Committee, w/n Dept. of Crim. Justice, selects risk assessmenttool or develops own. No appealofrisk level. Levels 1-3. Texas uses the Static-99, the Stable/Acute 2007, the Level of Service Inventory - R (LSI-R), and the Hare Psychopathy Checklist Revised (PCL-R) to complete a risk needs assessment on sex offenders sent to prison. There is a records review andinterview bya licensed sex offender treatment provider within the Department of Corrections, which is done prior to release from prison. The risk levels assigned depend on the combination of scores the offender has on the Static-99, LSI-R, and PCL-R. Then a release plan is formulated by the treatment provider for community supervision and treatment. The provideridentifies the inmate’s risk level; specifies the community treatment correspondingto the risk level; specifies which dynamic needsare to receive priority in supervision; and specifies a level of polygraph services that correspondsto the risk level. Low risk offenders report to parole or probation once a month; medium risk, to a more frequent schedule for sex offenders; and highrisk, to an intensive schedule that includes GPS monitoring. Additionally, probation officers participated in a 5-yearpilot project to assess offenders who had 5-10 years probation terms. Probation officers were trained to conduct the PCL-R, Static, and LSI-R. Treatment providers conduct the PPGs and VRT and polygraph examiners provide the sexual history polygraph. The offender must payforall risk assessment on probation, unless indigent. The goal in Texasis to eventually do risk assessment pre-sentencing on all sex offenders, to save costs to the state. By identifying high risk sex offenders by risk assessment,it saves the state money(i.e. $2.17/day for probation vs. $47/dayin prison in Texas). Notification: Internet: All. Discretionary: level 3. Vermont Combines use of risk assessmenttools and clinical assessments. Internet: High risk sex offenders, recidivists, those w/ offenses for aggravated sexual assault, those in violation; no one under 18. Community notification if necesary for public safety, on any. Washington End of Sentence Review Committee assignsrisk levels, Tiers I-Ill, reviews release plans. 107 Notification dependsontier levels. Internet: TiersII-III, and Tier | if out of compliance. APPENDIX J - Registration Violations -California’s Sex Offender Registrants:In Violation, by County, as of November2009 | TOTALINTHE | TOTALIN | PERCENTINCOUNTY | COMMUNITY | VIOLATION. VIOLATION~ ALAMEDA 2373 640 27.0% ALPINE 2 ] 50.0% AMADOR 62 4 6.5% BUTTE 719 57 7.9% CALAVERAS 100 10 10.0% COLUSA 45 14 31.1% CONTRA COSTA 1357 197 14.5% DEL NORTE 143 22 15.4% EL DORADO 343 33 9.6% FRESNO 2367 314 13.3% GLENN 74 4 5.4% HUMBOLDT 481 42 8.7% IMPERIAL 222 74 33.3% INYO 53 10 18.9% KERN 2148 376 17.5% KINGS 350 60 17.1% LAKE 267 9 3.4% LASSEN 81 13 16.0% LOS ANGELES 15461 4263 27.6% MADERA 376 46 12.2% MARIN 157 14 8.9% MARIPOSA 65 3 4.6% MENDOCINO 262 17 6.5% MERCED 727 135 18.6% MODOC 47 3 6.4% MONO 14 3 21.4% MONTEREY 692 137 19.8% NAPA 202 19 9.4% NEVADA 181 1] 6.1% ORANGE 2987 512 17.1% PLACER 543 43 79% PLUMAS 42 8 19.0% RIVERSIDE 3367 237 7.0% SACRAMENTO 5176 1649 31.9% SAN BENITO 112 10 8.9% SAN BERNARDINO 3816 304 8.0% SAN DIEGO 3887 201 5.2% SAN FRANCISCO 1092 170 15.6% 108 SAN JOAQUIN 1790 251 14.0% SAN LUIS OBISPO 438 27 6.2% SAN MATEO 805 131 16.3% SANTA BARBARA 636 89 14.0% SANTA CLARA 3517 594 16.9% SANTA CRUZ 425 46 10.8% SHASTA 771 35 4.5% SIERRA 10 0 0.0% SISKIYOU 194 21 10.8% SOLANO 843 89 10.6% SONOMA 810 68 8.4% STANISLAUS 1307 177 13.5% SUTTER 245 28 11.4% TEHAMA 27] 1] 4.1% TRINITY 62 4 6.5% TULARE 1071 185 17.3% TUOLUMNE 156 12 7.7% VENTURA 1126 193 17.1% YOLO 411 33 12.9% YUBA 289 42 14.5% TOTAL 65570 11721 17.9% 109 Publications Available at www.casomb.org High Risk Sex Offender Task Force 2006 California Sex Offender ManagementTask Force 2007 GPSLetter to Secretary Tilton 2008 CaLiromin Seu Orran DER MANAGEMENT BEANE AN ASSESSMENT OF CURRENT MANAGEMENT PRACTICES OF ADULT SEK OFFENDERS IN CALIFORNIA INITIAL REPORT CASOMBAssessment 2008 CALIFORNIA SEX OFFENDER MANAGEMENT BOARD HOMELESSNESS AMONG REGISTERED SEK OFFENDERS IN CALIFORNIA: THE NUMBERS, THE RISKS AND THE RESPONSE CASOMBHousing Paper 2009 CALIFORNIA SEX OFFENDER MANAGEMENT BOARD. PROGRESS REPORT sanuarr 2008) CAOMEBProgress Report 2009 110 Document3 The August 2011 publication ofthe CASOMB entitled Homelessness Among California Registered SexOffenders, An Update “Collateral consequence statutes and policies impose additional burdens on people who have served their sentences, including denial of employment and housing opportunities, without increasing public safety in essential ways. However,[...] research reveals that gainful employment and stable housing are key factors that enable people with criminal convictions to avoid future arrests and incarceration. | encourage you to evaluate the collateral consequencesin your state - and to determine whether those that impose burdens on individuals convicted of crimes without increasing public safety should be eliminated. Public safety requires us to carefully tailor laws and policies to genuine risks while reducing or eliminating those that impede successful reentry without community benefit. Failed reentry policies impose high social and economic costs including increased crime, increased victimization, increased family distress, and increased pressure on already-strained state and municipal budgets.” U.S. Attorney General Eric Holder Letter to ail state Governors and Attorney Generals April 18, 2011 “Should you think that | am soft on violent and sexual crime, let me assure you that there is a dark painful part of my soul that wants people who hurt other people to never take another comfortable breath. However let us be intelligent. Given that we are a society of law, let us demandthat the laws we do enact achieve their intended mission. Let us stop creating a false sense of security and wasting our precious resources on lawsthat simply do not work.” Andrea Casanova Founding Director of the ALLY Foundation Motherof Alexandra (Ally) Zapp, who was sexually assaulted and murdered hitp://www.theallyfoundation.org/ Reconsidering California’s Sex Offender Residence Restriction Policies i RECONSIDERING CALIFORNIA’S SEX OFFENDER RESIDENCE RESTRICTIONS POLICIES EXECUTIVE SUMMARY The California Sex Offender Management Board (CASOMB)has,after reviewing the evidence, once again cometo the conclusion that the reality reflected by the high andstil! escalating rate of homelessness among registered sex offenders in California is the single greatest obstacle to the effective managementof sex offenders in California. The Board believes that the rise in homelessness among sex offenders needs attention becauseit is so closely associated with an increasedlevel of threat to community safety. CASOMB continues to believe that the issue is primarily about where sex offenders should live in our communities and under what conditions - concerns that are not addressed by dictating where they may not live. While there are numerous opinions and many impassioned arguments, pro and con, regarding the value, importance and efficacy of residence restrictions, the arguments offered in this paper will be primarily based uponthe best available scientific research evidence rather than relying on emotion- based arguments. The four central questions addressing this issue are: e Whatis the current California reality with respect to the impact of residence restrictions for sex offenders? e Is there any evidence to support the belief that residence restrictions increase community safety? e Is there any evidence which suggests that residence restrictions are actually counterproductive with regard to increasing community safety? e Finally, are there any other considerations worth noting in evaluating the effectiveness of California’s current residencerestrictions and thevalidity of the assumptions upon which these policies appear to be based? The answers provided in the following report to these four questions will only represent summaries of the available knowledgein the field of sex offender management and not a comprehensive review ofall the available information. Based onall that is known about sex offenderrecidivism and about the nature of most sex offensesinvolving children, there is no evidence that residence restrictions are related to preventing or deterring sex crimes against children. To the contrary, the evidence strongly suggests that residence restrictions are likely to have the unintended effect of increasing the likelihood of sexual re-offense. Analysis of the situation in California shows that residence restrictions have led to dramatically escalating levels of homelessness among sex offenders,particularly those on parole, of whom nearly one in three are now homeless. In addition, sex offender homelessness is likely to be exacerbated by local ordinances, which continue to proliferate. It is extremely difficult to keep track of these ordinances and to evaluate their contribution to the problem. In conclusion, CASOMBstrongly recommends,onceagain,that policy makers take action to review this situation and revise the state’s residence restriction policies. Reconsidering California’s Sex Offender Residence Restriction Policies 1 RECONSIDERING CALIFORNIA’S SEX OFFENDER RESIDENCE RESTRICTION POLICIES Introduction In its Recommendations Report, issued in January of 2010, the California Sex Offender Management Board (CASOMB)stated the following: CASOMB has concluded that the high, and still escalating, rate of homelessness among sex offenders in California is one of the most serious issues facing the field of sex offender management. Where, and how, sex offenders should live has become the central crisis of sex offender managementin California. No other emerging issue has demonstrated the same potential to fray community re-entry collaborations, complicate supervision, and undermine the offender's long-term stability... Appropriate housing, homelessness and the instability created by transience are public safety concerns. Despite the myriad of public safety concerns associated with sex crimes, the CASOMB has concluded that the significant increase in the rate of homelessness among sex offenders and lack of appropriate housing in California is the most serious issue facing the field of sex offender management. (p. 9) In December of 2008, CASOMB published a Report: Homelessness Among Registered Sex Offenders in California — The Numbers, the Risks and the Response. This Report reviewedthe situation in California at that time and stated: “The Board believes that the rise in homelessness among sex offenders needs attention because it is so closely associated with an increasedlevel of threat to community safety.” (p 2) In the Fall of 2010, as it became apparent that conditions were worsening, CASOMBdecided that it was necessary to prepare and issue another update on the status of homelessness among sex offenders in California and to review the reasons why the Board is so concerned. The present paper represents such an update. Although the focus here is primarily the worsening situation in California, the larger question, CASOMB continues to believe, is not about where in California communities sex offenders should not live. Ratherit is about where in our communities they should live and under what conditions. The following sections of this Report will pose and answer four broad questions which are central to the issue at hand. That issue is the impact of sex offender residence restrictions in California and the sources of CASOMB’s concern that 2 Reconsidering Califomia’s Sex Offender Residence Restriction Policies they make California citizens actually less safe. The answers provided to the four questions will only represent summaries of the available knowledge. In every case, much morecould be stated and explained about each topic addressed and additional supporting resources could be cited. While there are numerous opinions and many impassioned arguments, pro and con, regarding the value, importance and efficacy of residence restrictions, the arguments offered here will be primarily based upon the best available scientific research evidence rather than relying in any substantial way on emotion-based arguments, on the statements of various types of commentators and stakeholders or on ad hominem argumentation. THE FOUR CENTRAL QUESTIONS ARE As FOLLows: QUESTION ONE: Whatis the current California reality with respect to the impact of residence restrictions for sex offenders? QUESTION Two: Is there any evidence to support the belief that residence restrictions increase community safety? QUESTION THREE: Is there any evidence which suggests that residencerestrictions are actually counterproductive with regard to increasing community safety? QUESTION Four: Are there any other considerations worth noting in evaluating the effectiveness of California’s current residencerestrictions and the validity of the assumptions upon whichthese policies appear to be based? EACH QUESTION WILL BE ADDRESSEDIN TURN QUESTION ONE: Whatis the current California reality with respect to residence restrictions for sex offenders? This Report will not attempt to provide an exhaustive review of the currentsituation in California regarding residence restrictions for sex offenders. (More complete information is available in previous CASOMBpublications.) Some of the more salient and more recent and, perhaps, less well-known information will be reviewed here. Although there are a numberof laws and policies which control where convicted sex offenders maylive in this state, by far the greatest impact to date has come from the residencerestrictions imposed by Proposition 83 (Jessica’s Law). This extensive measure, which addressed many issues in addition to residence Reconsidering California's Sex Offender Residence Restriction Policies 3 restrictions, was passed as a Ballot Initiative and becameeffective on the date it was adopted bythe voters - November 7, 2006. The requirements of the new law were gradually implemented through agencypolicies in the following months. The restriction forbids those affected from living within 2000 feet of any public or private school or park where children regularly gather. The language of Prop 83 was very unclear with regard to which sex offenders fall under the jurisdiction of the law — all 66,000 registered sex offenders living in California communities, no matter when they were convicted, or only certain subgroups, such as those on state parole or only those convicted after a certain date. Although the question concerning which categories of sex offenders are affected by the law has remained without a definitive answer, it has been applied most directly to PC290 Registrants who are on state parole and who were released(or re-released) from custody subsequent to the date that Proposition 83 became state law -— a number that gradually grew and that now represents nearly all parolees. Individuals on state parole make up approximately 6,600 of the roughly 70,000 registered sex offenders living in California communities. The other primary categories of registered sex offenders not currently in some form of custody are the estimated 10,000 on county probation and the approximately 50,000+ who are no longer under any formal criminal justice system supervision. Data is not available to indicate whether, and to what extent, each of these categories, considered separately, is affected by the residence restrictions. While some county probation departments are enforcing the restrictions, other counties are partially enforcing them, and other counties appear to be waiting for clarification and direction through the courts or some other authority before they start implementing residencyrestrictions. The mostreliable data on the consequencesof enforcing residencerestrictions is that made available regarding parolees. Statistics reported by the California Department of Corrections and Rehabilitation (CDCR) at the monthly meetings of CASOMBindicate that as of March, 2011, there were 6,376 sex offenders on active parole in the community. Of those, 1,986 were listed as transient (homeless). Nearly 32%, almost one-third, of sex offenders on parole are homeless due to Jessica’s Law. WhenProposition 83 was passed on November7, 2006, there were only 88 sex offenders on parole statewide who were registered as transient. In August of 2007, CDCRputin place a setof policies to implement the provisions of the law as they applied to paroleeliving locations. In September of 2007, about the time that the residence restrictions of Prop 83 began to be enforced by the Parole Division of CDCR and the grace period for finding compliant housing was ending, there were 178 paroled sex offenders identified as transient. The law wasinterpreted as applying to parolees released from prison after November 7, 2006. The numberof sex offenders released on parole after that date has, of course, gradually grown so 4 Reconsidering California's Sex Offender Residence Restriction Policies eee that now nearly all paroled sex offenders are subject to the residencerestrictions.' As the number has grown, so has the proportion of transient/homeless sex offender parolees. Thus in December of 2007 there were 750. In Septemberof 2008, one year after enforcement began, there were 1,279. The steady increase resulted in 2,178 in September of 2009. The Report of the CDCR Sex Offender Supervision and GPS Monitoring Task Force, released on November 12, 2010, Stated the following with respect to what has happened since Proposition 83 began to be enforced: “Now, almost three years later, over 2,100 parolees are registered as transient. That is an increase by approximately 24 times.” (p. 17) Mean Numberof Transient Sex Offender Parolees Per Six-Month Period - oy e» Y WS » ws It is quite clear that the Department of Corrections and Rehabilitation is actively enforcing the residencerestrictions enacted by Proposition 83 andit is clear what the impact is on homelessness amongparolees. No information has been collected regarding the impact on the rates of homelessness of sex offenders on probation who have been the targets of such enforcement. As noted, it is not even clear to what extent California’s 58 county adult probation departments are enforcing these restrictions on the sex offenders they supervise. ' Thetransient registration figures may have been affected by court decisions in several counties, including San Diego and Los Angeles. In San Diego County the court stayed application of the residency restriction pendinglitigation, and on February 18, 2011, ruled that enforcement of the residencyrestriction in San Diego County is unconstitutional. In Los Angeles County the court stayed the residency restriction pendinglitigation, although the stay order was reversed on May 16, 2011 in in re Pham (2 DCA 2011)__Cal.App.__. CDCR data showsthat the drop in the numbers oftransient parolees is, in fact, accounted for by decreasesin the Parole Regions where these court decisions tookeffect. Reconsidering Califomia’s Sex Offender Residence Restriction Policies 5 The terms “transient” and “homeless” are used interchangeably in this Report. “Transient” refers more accurately tothe legal classification under which homeless sex offenders are required to register under Megan’s Law. “Homeless” better reflects the lived reality. Some “transient” sex offenders may be using an RV or van as their “home.” Some sex offenders maybeliving in an RV or van but may not be required to register as “transient” because they regularly park at an identifiable street location and are permitted to register using that address. It is also of interest to note the increase in the numbers of those sex offenders who may or may not be currently on parole or probation but who are required to register under the provisions of Penal Code 290 and whose registration information is tracked by the California Department of Justice in conjunction with DOJ’s management of the Megan’s Law website. Although the following data includes parolees,it clearly indicates a rise in homelessness among sex offenders considerably beyond whatcan be accounted for by the parolee numbers. There are currently 71,803 PC290 registered sex offenders living in California communities. As of April, 2011, 6,012 of the 71,803 PC290 registrants are currently registered as “Transient.” It is noteworthy that approximately 1,211 of these “transient” individuals were in violation of their Registration requirements in some way — usually because of a failure to renew their registration in a timely manner. When tracked over the last few years, these transient numbersreflect the following changes: e 8.25% increase in transience since September 2010 e 22% increase since Novemberof 2009 e 66% increase since November 2008 e 101% increase since November of 2007 — a point about one year after Prop 83 was passed. Although a considerable proportion of these registrants are parolees. (n = 2,080), there are clearly many other transient sex offenders who are not on parole. The claim has been madethat, if they only tried hard enough, many of the homeless parolees could find a place to live which would comply with the residencerestrictions. This is clearly not the case. That an eagerness to deliberately choose transient status has grown exponentially just at the time residence restrictions became law is simply incredible. Reconsidering California's Sex Offender Residence Restriction Policies eee Total Numberof Transient Registered Sex Offendersin California by Month © © 9 °\ N A A NX D we @ wo opo NDee a RY o=f A numberof metropolitan areas have developed maps showing the areas where, according to the language of Prop 83, affected sex offenders may notlive. Observers agree that the vast majority of potential housing locations in urban areas are nowincludedin the off-limits territory. San Francisco, for example, has virtually no realistic places where a paroled sex offender may legally live. Other dense urbanareasin the state present a similar picture. State law requires, with a few specific exceptions, that CDCR inmates, when released from prison, be returned to the county of last legal residence, so there is no option to have affected parolees, who might be forced to be transient becausethereislittle or no available housing in the county to which they have been released on parole, relocate and live elsewhere. Other counties have done similar analyses. San Diego County, for example, appears to have about 28% ofits territory available for compliant housing. Of course a question must also be asked about how many actually available residence locations there are where a paroled sex offender could reasonably afford to live and would be accepted as a tenant. Most housing that would be realistic for these individuals is likely to be in more densely populated areas and therefore unlikely to be compliant because of the accompanying density of schools and parks. A research project, reported in a February 18, 2011 San Diego Superior Court decision, attempted to answerthis question for San Diego County. The research determined that only 3% of the residential parcels in the county which were outside of the 2000 foot zones were “residential multi-family” parcels. All other properties were single family homes — settings that would not be within the price range of almost any parolee to purchaseorrent. Reconsidering California’s Sex Offender Residence Restriction Policies 7 The subsequent issue addressed was whether any of this compliant multi-family housing could actually be rented by an affected parolee. An exhaustive door-to- door research effort concluded that only a handful of locations were financially feasible, did not require a background criminal check and did not automatically exclude parolees. After these criteria were applied, only five possible rental units remained. Not one of them wasactually vacant and available to rent. There is little reason to believe that similar research efforts in other urban areas would,if conducted, have substantially different outcomes. The claim has been made that, if they only tried hard enough, many of the transient (homeless) parolees could find a place to live which would comply with the residence restrictions. This is clearly not the case in San Diego County. In addition, those closer to the reality believe that this is not so. That a steadily increasing number of paroled sex offenders would chooseto live on the streets and submit to the increased check-in and other onerous requirements with parole agents whenthereis the possibility of having a placeto live and sleep is simply an incredible claim and is at variance with the reports of parole agents and others. That an eagerness to deliberately choose transient status has arisen and grown exponentially just at the time residence restrictions became law and began to be enforced is simply incredible. The overall impact of residence restrictions in California is delivered not only by the 2000 foot limit set directly by Proposition 83 but also as a result of its carte blanchinvitation to local jurisdictions to add their own restrictions. Consequently, another aspect of the current residence restriction reality in California is local ordinances. Prop 83 gave explicit permission for local jurisdictions to create additional restrictions on where sex offenders may live — restrictions that go beyond the restrictions imposed in the language of the Proposition itself. Unfortunately, but not surprisingly, no one really seems to have an authoritative picture of how many suchordinances there are, what they say, who they apply to or to what extent they are enforced. CDCR makesefforts to track the new restrictions through web searches, which often lead to reports of new ordinances in the local popular press. At present, such an approach appears to be the best — perhaps the only — way to obtain the desired information. As of late 2010, this effort had identified at least 87 separate city or county ordinances across the state — each of which uses different definitions, distances and exclusion targets. A recent effort by the Los Angeles County Public Defender’s office identified 37 different local ordinances within Los Angeles County, all with different requirements. Some, for example, do not permit a sex offenderto live within 1,000 feet of another sex offender. Among the few things that are clear about local ordinances are the following: they appear to frequently trigger “self-defensive” responsesin the form of similar ordinances from adjacent communities; they are very difficult to understand and abide by; they are likely to continue to be enacted and to proliferate; they are not easy to learn about and, most important for this statement, they are, consequently, likely to add considerably to the growing level of homelessness among sex offenders. 8 Reconsidering California's Sex Offender Residence Restriction Policies The future picture is impossible to predict. Given the political realities discussed later in this Report, it is hard to imagine what could ever set a limit to the local ordinancesandrestrictions or bring an endto their proliferation. QUESTION Two: Is there any evidence to support the belief that residence restrictions increase community safety? The most direct and succinct answer that can be made to Question Twois the following: No, there is no evidence to support the assumption that residence restrictions are or would be effective in reducing sexual offending and thereby making communities actually safer. There is no evidence to support that residence restrictions are effective in reducing sexual offending [or] making communities safer. There does not seem to have ever been any attempt on the part of those who advocate for and create policies establishing residence restrictions to identify, conduct, sponsor, fund, promote orin any way establish a scientific research basis for such policies. An absence ofscientific support for residence restriction policies does not seem to have hampered their creation and proliferation. The general fear, misunderstanding, and antipathy toward sex offenders makesit easy to persuade the general public that things must be doneto protect children from their attacks. In such a cultural climate, the question about whetherthere is sufficient reason to believe that such “things” will accomplish the task is seldom seriously asked, much less answered. The focus of residence restrictions is on the sexual abuse of children. No one seems to make a claim that residence restrictions will do anything to reduce sexual assault against adults. The belief that residence restrictions would be effective in reducing the sexual victimization of children seems to be based on a set of underlying beliefs and assumptions about how sexual offenses against children occur. These assumptionsinclude: 1. The belief that lurking strangers, who are scheming to assault children whom they grab near schools or in parks, are the perpetrators of many sexual assaults. This concept is sometimes referred to as “stranger danger.” 2. The belief that already identified (i.e. convicted and “registered”) sex offenders are the greatest dangerto children because they commit most of the new sex crimes that occur and because they can’t be “cured” and so will always re-offend. Reconsidering California’s Sex Offender Residence Restriction Policies 9 3. The belief that sex offenses frequently occur in some sort of public place where thereis accessto children. 4. The belief that registered sex offenders will deliberately try to find a place to live that is near a school or park. It is assumedthat, if they will only choose to, they can just find somewhereelseto live that is at least 2000 feet from schools or parks. If they choose to live closer, they do so to create opportunities to find potential new victims against whom to commit new offenses. 5. The belief that all registered sex offenders are alike and all pose the same degree and type of risk and should, therefore,all be treated alike. Each of these assumptionsis far from an accurate representation of the reality. Each will be addressedin turn. 1. Stranger-danger represents the major threat to children. The extent of “stranger danger’ is much less than is often believed. The US Bureau of Justice Statistics stated that only 7% of perpetrators of sexual assault against juveniles were identified as strangers to the victim. In fact, 25% of the offenders were family members and an additional 60% were acquaintancesalready knownto the victim. 2. Registered sex offenders commit most of the new sex crimes. With respect to sex offender recidivism, the apparent assumptions about high levels of recidivism are simply inaccurate. Although there is a wide range of risk among identified sex offenders and some mayindeed beat high risk of re-offending, the general rate of sex offenderrecidivism is lower than that for any other crime, with the exception of murder. A recent report on parolee recidivism from the California Department of Corrections and Rehabilitation indicates that only 3.25% of paroled sex offenders are convicted of a new sex offense while on parole. Andit is not true that previously identified sex offenders are responsible for anywhere near a substantial portion of new sex crimes. A. US Bureau of Justice Statistics Report published in 2003 declared that after analyzing the records of nearly 10,000 convicted sex offenders, only 4.6% of them were found to have had a previous conviction involving a sex crime against a child victim. Thus over 95% of new sex crimes against children are committed by someone who has no previous record of being convicted of a sex offense against a child. The vast preponderance of risk comes from individuals in the community at large, not from previously identified sex offenders, including individuals on parole. The same research recognizes that sex offenders who re-offend do so by committing a subsequent sex crime more often than other types of offenders re-offend by committing a sex crime. 10 Reconsidering Califomia’s Sex Offender Residence Restriction Policies a This unsurprising finding is sometimes misinterpreted to say that sex offenders have the highest re-offense rates — which is simply not what this research and other research has found. What is true is that those few sex offenders who do commit a new sex crime are very likely to make headline news. And the popularpressis often the primary source for generating and sustaining assumptions about sexual offending — both for the general population and for some of those who make public policy in this realm. 3. Sex offenses are commonly committed or initiated in public places. Although there is a belief that children are most at risk when they are in public places such as schools orparks, this is not the case. Sex offenders make initial contact with their victims or actually commit the offense in “public places” such as around schools or parksrelatively infrequently. A 2009 study lookedat the location of sex offenses and found that, consistent with similar previous research, only 6.8% of offenders met their victim in some public location which would have been included in most residence restriction laws. Of the total, in 3.6% of the cases the initial contact betweenthe victim and the perpetrator occurred at a school and 2.0% ina park. These can be compared with a 2.4% figure for a bar or restaurant and a 12.1% figure for a first meeting on a street or in a neighborhood and a 67.2% figure for meetings in a homeor residential area. (Even this finding, of course, does not address the issue of whether there was any relationship between where the offender lived and where he or she met the victim. And analysis found that someof the offenders who metthe victim at a school had a reasonto be there, such as employmentat the school.) The study also found that just over 82% of all sex offenses took place in a “private” setting. In fact, over 73% of sex offenses studied occurred in the home of the offender, the home of the victim or a home shared by both. Only 1.2% of the offenses occurred at a park or playground and only 1% actually occurred at a school. The study concludes, unsurprisingly, that “sex offenders do not meet or perpetrate offenses in public or semi-public locations with great frequency.” Given these realities, it is not surprising that the previously-cited recent Report of the CDCR Sex Offender Supervision and GPS Monitoring Task Force states: “Blanket residence restrictions have not improved public Safety and have compromised the effective monitoring and supervision of sex offender parolees.” (p. 17) “Blanket residence restrictions have not improved public safety and have compromised the effective monitoring and supervision of sex offender parolees.” — CDCR Sex Offender Supervision & GPS Monitoring Task Force Many of those whocontributed to developing the CDCRreport were in-the- field parole agents or law enforcement officials who work daily with sex offenders and seefirst-hand the fallout of residence restrictions. Reconsidering California’s Sex Offender Residence Restriction Policies 11 y Descriptive data about the patterns seen in the crimes that involve the sexual victimization of children offer very little reason to think that blanket restrictions on where registered sex offenders live would be atall likely to reduce future victimization. The design of a study that might shed light on this subject and provide support for the belief that where a sex offenderlives is important would involve a research strategy that looks at the actual recidivistic sex crimes of convicted sex offenders released to the community and then asks whether there is somerelationship between where that offender lived and the new offense he or she committed. If some hypothetical set of residence restrictions would have deterred a significant number of such new crimes, then such restrictions might be seen to make the community safer. Such a study would offer some scientific research support for enacting residence restrictions. There is, in fact, one study which meets that description. It was conducted by the Minnesota Department of Corrections in 2007 and looked at the sexual recidivism of 224 sex offenders released from prison between 1990 and 2005. After analysis of each case, the study concluded that not one of the re-offenses would have been prevented by residencerestrictions. Only - 12% of the offenders established contact with the victim within one mile of the offender’s homeand in none of the crimes was contact established near a school, park or playground. The research provides absolutely no support for the efficacy of residence restrictions. To the contrary, it strongly supports the position that they are ineffective in preventing recidivistic sex offenses. Of 224 sex offenders released fromprison over a 15 year period in Minnesota who re-offended, not one of the re-offenses would have been prevented by residencerestrictions. A very similar study was conducted in 2008 under the auspices of the California Sex Offender Management Board. This study has yet to be officially completed and published due to lack of funding. Nevertheless, the data indicate that of the 190 sex offenders who had been released from California state prisons and who committed a new — recidivistic - sex offense (and who could, therefore, be included in the study), only one met his victim at a park. And that park was more than 2,000 feet from where he resided. Again, there is absolutely no support for the belief that residence restrictions, had they been in place at the time, would have reduced the risk of sex offending among known sex offenders and would have made California communities one bit more safe. 12 Reconsidering California’s Sex Offender Residence Restriction Policies eee Of the 190 sex offenders who have been released from California state prisons and who committed a new — recidivistic — sex offense, only one methis victim at a park, and that park was more than 2,000 feet from where heresided. 4. All sex offenders are alike and so should be treated the same. Oneof the foundational principles of correctional programming and sex offender managementis the “risk principle,” which states that a greater proportion of resources and attention should be focused on those individuals who pose the higher risk of reoffending. It has become increasingly possible to differentiate sex offenders and separate them into various risk categories and California has beenlegislatively mandated to determine the best ways to do so and has made considerable progress under the direction of the California “State Authorized Risk Assessment Tool for Sex Offenders” (SARATSO) committee. This risk-level approach is similar to strategies used bylife insurance and automobile insurance companies to determine what makesindividuals higher and lowerrisk and to then adjust insurance costs accordingly. Putting aside the question of whether residence restrictions actually achieve any desirable goals, it would be much more productive to impose them on those individuals whoserisk levels and previous offense patterns indicated that they posed greater risks and whose victims had been children. Hpowever, that is not the approach taken by Prop 83, which imposes the samerestrictions on all sex offenders, no matter how long agotheir offense occurred, no matter what risk level they have been assessed to be, no matter whether their offense victimized a child or an adult and no matter what individual conditions — including medical status — they might be experiencing. Seldom acknowledgedin discussions about residence restrictions resulting from Prop 83is the fact that even beforeits passage, California already had laws on the books that prevented parolees with child victims from living within a considerable distances of schools and parks. Prior to the passage of Proposition 83, California already had laws that prevented sex offenders with child victims from living within either 1% or ‘4 mile (depending onrisk) from schools and parks. Treating all sex offenders alike ignores the reality that they are very different in many important ways and almostinevitably results in unhelpful policies. Reconsidering California's Sex Offender Residence Restriction Policies 13 e QUESTION THREE: Is there any evidence which suggests that residencerestrictions are actually counterproductive with regardto increasing community safety? There is compelling evidence which suggests that residence restrictions are actually counterproductive with regard to increasing community safety. To begin with, a substantial body of research nowlinks criminality to life stability — an inverse relationship. An unstable life leads to increased problems with the law and with increased criminal recidivism. Of course life instability is unavoidably linked with housinginstability. “Numerous studies show that a parolee who finds and maintains a steady job — and whoalso has stable housing and avoids substance abuse — is less likely to re-offend.” - Governor's Rehabilitation Strike Team, Meeting the Challenges of Rehabilitation in California’s Prison and Parole System, 2007 A concise statement about the relationship between stable housing and criminal recidivism for general prison inmates was provided in a report on the issue from Massachusetts: “For the returning prisoner, the search for permanent, sustainable housing is more than simply a disagreeable experience. It is a daunting challenge - one that portends success orfailure for the entire reintegration process. Housing is the linchpin that holds the reintegration process together. Without a stable residence, continuity in substance abuse and mental health treatment is compromised. Employment is often contingent upon a fixed living arrangement. And, in the end, a polity that does not concern itself with the housing needs of returning prisoners finds that it has done so at the expense of its own public safety.” (2001 Massachusetts Report, as cited in Petersilia: When Prisoners Come Home. 2003) U.S. Attorney General Eric Holder has stated: “People who have been incarcerated are often barred from housing, shunned by potential employers and surrounded by others in similar circumstances. This is a recipe for high recidivism.” (Corrections Forum, July/August 2010) Almost every one of the scholarly papers published recently about sex offender residence restrictions emphasizesthis very point: the general criminology research is unanimous in associating criminal recidivism with an unstable lifestyle that includes housing instability or homelessness along with accompanying unemployment. The combination represents a majorrisk factor for re-offending. 14 Reconsidering California's Sex Offender Residence Restriction Policies Caenee er rc r ee ET Helping people released from prisonsorjails to find safe placesto live is critical to reducing homelessness and recidivism and to ensuring stable housing situations for the children, families, and communities. Research has shownthat people who do notfind stable housing in the community are at higherrisk to recidivate. According to a qualitative study by the Vera Institute of Justice, people released from prison andjail to parole that entered homeless shelters in New York City were seven times morelikely to abscond during the first month after release than those who had someform of housing. - nationalreentryresourcecenter.org A project of the Council of State Governments Justice Center It is also true that, to date, there is no specific study that looks exclusively at sex offenders and studies the association between sex offender homelessness and sex crime recidivism. One of the factors that makes this a formidable research undertaking is that sex offender recidivism for a new sex crime is quite low — lower for any othertype of crime except murder. As a result, such a study would need to look at thousands of offenders over a period of many years to have any confidence in producing outcomes that were Statistically significant and scientifically well-founded. (An example of how low the recidivism rate for sex offenders actually is can be seen in recent research from the California Departmentof Corrections and Rehabilitation which determined that the sex crime recidivism of sex offenders on parole in California is approximately 3.25% during the period of parole.) There is one study which showsthat criminal justice system “case planning” to increase thelikelihood that individual sex offenders would be ableto find suitable housing after release from prison did actually result in lower recidivism rates than the comparable rates for inmates who did not have such planning assistance. This study posed an interesting question whose answer would shed light on the role of appropriate housing versus homelessness for sex offenders, namely: Do sex offenders who are helped to obtain appropriate housing re-offend less than those who do notreceive such assistance? Two comparable, carefully matched groups of child sex offenders were tracked. One group had received a significant amount of assistance in developing a prison release plan which included finding appropriate housing accommodations. The other group had not received such assistance. There wasa significantly higherlevel of recidivism among the group that had received no assistance and the “accommodations” factor was a major contributor to the differences. This study is unusualin thatit actually gave some focus to the housing issue and, in its outcomes, lends strong support to the hypothesis that the ability of sex offenders to secure stable housing for is a factor which contributes to lowering the risk of recidivism. Reconsidering California’s Sex Offender Residence Restriction Policies 15 Caeneee e The study did not look at the actual housing situations in which the offenders eventually lived. And there were no residencerestrictions in the jurisdiction where the study was done. The only intervention in use for the community managementof sex offenders that — has been demonstrated by research to be effective in reducing sex offender recidivism is sex offender-specific treatment. Sex offender-specific treatment is the only intervention currently in use for the community management of sex offenders that has been demonstrated by research to be effective in reducing sex offender recidivism. This piece of information is introduced here because there is a relationship between the ability of sex offenders to participate meaningfully in specialized treatment programs and their ability to, first, remain in the community and, second, bring to treatment the focus, effort and attention needed for meaningful participation. Paroled sex offenders who are being repeatedly returned to custody for various reasons — reasons that are often directly related to their homeless status and associatedlife instability — cannot maintain continuity of participation in the specialized treatment programs (when these are available to them). The Governors CDCR Rehabilitation Strike Team (RST), referring to all types of parolees, stated: “Moreover, parolees who were enrolled in treatment programs, are constantly having that treatment disrupted for what, in many treatment providers’ views, are predictable and minorrule violations.... The RST heard muchfrustration from treatment providers who say that parolees are often yanked out of programs, sent backto prison for a few weeks or months, and then re-released - and CDCR expects treatment providers to adapt to these constant breaksin the treatment regimen.” CDCRhasyet to analyze data to determine whether homeless sex offenders are more likely to be returned to custody for infractions than those who have stable housing, but many observers believethis is the case. With respect to readiness to participate meaningfully in specialized treatment, those treatment providers who work with homeless sex offenders confirm the predictable reality that these individuals are unable to focus on treatment, are preoccupied with issues of survival on the streets, often cannot stay awake during treatment sessions, have no place to save handouts or do homework assignments, sometimes hamper the efforts of other group members to address significant issues and, overall, are handicapped by their homeless status in ways that severely interfere with the one meaningful intervention that has been shownto reducerecidivism risk. 16 Reconsidering California’s Sex Offender Residence Restriction Policies eee The goal of sex offender managementpolicies is to reduce the risk that identified sex offenderswill re-offend. Sex offender treatment does this by addressing and promoting change in areas of cognitive and interpersonal functioning that have beenidentified as correlated with reoffending. Overthelast ten orfifteen years, a substantial body of research has been developed to accurately assign risk levels to knownsex offenders. A significant driver for the developmentof instruments to assess risk has been the need for states, such as California, which operate Civil Commitment programs for sex offenders, to provide evidence to judges and juries that a particular offender is “morelikely than not”or“likely” to commit another sex offense. The utilization of research-based instruments to determine risk level proceeds somewhatlike the methods used by actuaries to assign “risk of death” for life insurance companies or “risk of accident’ by automobile insurance providers. Actuaries mathematically evaluate the relative likelihood of future events. Studies of large numbers of individuals are conducted to sort out which factors are associated with particular outcomes. These factors are called risk factors and the approach is called actuarially-based risk assessment. Over the last ten or so years, these methods have been increasingly applied to sex offenders. Two types of risk factors are now able to be identified and quantified. One is called a “static” risk factor becauseit is based on past history and, for the most _ part, does not change. The numberof past sex offense convictions might be a good example of a static risk factor. Though that numbercould possibly increase, it will never decrease. California has adopted, as the static “State Authorized Risk Assessment Tool for Sex Offenders” (SARATSO), a ten-item instrument called the “Static 99.” Anothertype ofrisk factor, as differentiated from a static factor, is the dynamic risk factor. These are also factors or characteristics of a particular sex offender which have been shownto be associated with the risk for future sex offending. Whatis different about dynamic factors is that they can change over time. Examples of dynamic factors would be social isolation, attitudes toward women or chronic anger. There are a numberof instruments that have been shownby research to be effective in identifying the key dynamic risk factors and California is now in the processof selecting one amongthe top three of these to be the “State Authorized Risk Assessment Tool for Sex Offenders” (SARATSO)for assessing dynamicrisk. The selected instrument will be required for doing risk assessments for ail California sex offenders.* Not only is a dynamic risk instrument useful, along with the static instrument, in determining risk level for re-offense,it is also a very useful tool for community management, including treatment and supervision. Research showsthat sex offenders whose dynamicrisk factors change in desired directions as a result of treatment or other interventions have reduced risk of re-offending. 2 Shortly before the publication of this Report, the SARATSO committee announced that the Structured Risk Assessment — Forensic Version (SRA-FV) had been selected as the dynamicrisk instrument to be used in California. Reconsidering California’s Sex Offender Residence Restriction Policies 17 e r Reducing such risk is, of course, the hoped-for outcome of all sex offender managementinterventions. Research on the “dynamic risk factors” which have been shown to be associated with increasesin recidivism fevels among sex offenders brings another important perspective to the discussion of the ways in which sex offender homelessness decreases community safety. Many studies have demonstrated that sex offender specific treatment is effective in reducing re-offending to the extent that it addresses and brings about changes in key dynamic risk factors for each offender. Thus the identified dynamic risk factors — sometimes also referred to as “criminogenic need factors” — are the targets for treatment. If they can be changedin the desired direction, risk of re- offending will be lowered. Two additional questions must be raised and answered in order to provide a meaningful connection to the question about the potential counter productivity of residence restrictions. The first question is: What are the relevant dynamic risk factors of interest? The second question is: Are these factors likely to be improved or exacerbated by the previously-noted effects of residence restrictions — the dramatically increasing rate of homelessness among paroled California sex offenders as a result of the enactment and enforcement of Proposition 83? Each of the three leading research-supported dynamic risk assessment instruments for sex offenders contains a dozen or more dimensions or factors. Among these, many appearto be related to the condition of homelessness. The ones that seem to be related, such that homelessness seemslikely to cause them to be exacerbated, are noted andbriefly described in the following paragraphs. (A more extensivelisting of the factors is provided at the end of this paper.) The cluster of dynamic risk factors which appears to be most evidently linked with homelessness has been labeled “Social Engagement andLifestyle Stability Factors.” The research clearly shows that offenders who have more “positive” social influencesin their lives and more engagementwith pro-social adults are less likely to re-offend. Treatment efforts necessarily address and attempt to remedy the ways in which offenders lack the skills to develop and maintain such relationships and lack the resources to find opportunities in their lives to do so. A closely associated factor is the experience of general social rejection — feeling like an outcast. Whatis true about the importance of broader social interactions is also true for emotionally intimate interactions and relationships. Chronic isolation and emotional loneliness are associated with re-offending. Intimacy deficits and an impaired capacity for relationship stability are important treatment targets for this reason. 18 Reconsidering California's Sex Offender Residence Restriction Policies Caeneee ee A factor closely related to social instability is employment instability. No one would contest the assertion that being homeless substantially decreasestheability of an individualto find and retain employment. Not everyone whois unemployed is homeless, but persons who are homelessare almost certain to be unemployed and to have very low chances of becoming employed, particularly at a time whenjobs are very difficult to find and competition for them is intense. Being able to show up consistently, be appropriately groomed, be awake and alert and be able to focus on the assigned tasks are nearly insurmountable challenges for someone who has nowhere tosleepor take care of personal needs. It is inconceivable to imagine that a condition of homelessness would not exacerbate manyorall of these “Lifestyle Stability” factors — the very factors that, when addressed and ameliorated by effective treatment — have been shownto actually reduce risk and recidivism. It hardly seems necessary to spell out how homelessness would move eachof these factors in a direction thatis the opposite of what is needed and desired to reduce the risk of reoffending and thereby enhance community safety. A second cluster of dynamic risk factors for sex offenders includes factors which have to do with “Self-Regulation Impairments.” These include factors such as inclinations toward impulsivity and recklessness. Also includedin this cluster are the dimensions of poor coping and poor problem solving skills. Poor coping specifically includes attention to a tendency to make use of “sexualized coping” — using sexual fantasies and behaviors as a means of escape from unpleasantrealities. Such escape can certainly be one of the desired benefits of sexual activity for any individual, but can become a problem whenusedin excess. It is not hard to imagine that a homeless and destitute sex offender, bereft of most other sourcesofself-soothing available to those with a place tolive, a job, a social network anda relatively stablelifestyle, would return to patterns of using sex as a means to escapehis unpleasant reality. First would come fantasies, reinforced by masturbation and followed, in some cases,by actualvictimizing behaviors. While treatment seeks to reduce the chronic and inappropriate use of “sex as coping,”.a condition of homelessness could only be seenaslikely to increaseit. Finally, also included in this cluster, are three factors which are clearly associated with being homeless: negative emotionality, dysfunctional self-evaluation and substance abuse. Once again, these are characteristics or behaviors which, when improved bytreatment, lead to reduced risk but which, when made worse by homelessness,lead to increasedrisk. A third cluster which must be included in the list is termed “Offense-Supporting Attitudes, Beliefs and Cognitive Distortions.” Within this group are included dimensions such as lack_of concern for others and general_ callousness. These mental states are known to be associated with tendencies toward interpersonal aggression, which could certainly include an inclination toward Reconsidering California’s Sex Offender Residence Restriction Policies 19 enerrreeeer aggressive sexual behaviors. Treatment works at changing these perspectives on the world. Forced homelessness can only be seenaslikely to deepen and confirm them. Also grouped here are factors described as grievance thinking and pervasive hostility toward others. Treatment aims to reduce them; homelessness would be likely to amplify them. Thefinal cluster of dynamic risk factors which deservesattention here is described as “Resistance to Rules including Supervision and Treatment Non- cooperation.” While treatment attempts to support values related to compliance with community norms, chronic homelessness would hardly lead to pro-social values and attitudes. For a sex offender on parole, compliance with the parole conditions required for community supervision is the most obvious manifestation of such attitudes. For many, homelessness would be unlikely to work in favor of supporting such compliance but rather is likely to make it increasingly difficult. Compliance with treatment requirements, including consistent attendance and diligence about homework assignments, is also likely to suffer for an individual with nowhereto live. Onefinal identified dynamic risk factor which does notfit readily into any of the above clusters and which is more a characteristic of an offender’s situation than of his inner qualities — but which is known to be associated with sex offender re- offending — is labeled “Release to high risk situations.” Given what has been noted elsewhere about the importance of residential and lifestyle stability for desistance,it is hard to characterize homelessness as anything but such a release to a high risk situation. The research and the science, then, tell us which characteristics of sex offenders need to change in order for risk to be reduced. “External” societal-imposed controls are important, but only the development of “internal” controls will ultimately lead to changed behaviors in the long term. Residencerestrictions lead to homelessness. Homelessness leads to an exacerbation of many of the very “internal control” factors which are known to be associated with increased risk for re-offending. It is impossible to escape the conclusion that residence restrictions are actually counterproductive with regard to increasing community safety. It is correspondingly difficult to see how anyone whovalues scientific knowledge could claim that there is any reasonable basis for thinking that a policy which, according to the evidence, is almost certain to create increased risk is congruent with its presumed purpose of making communities safer. It is impossible to escape the conclusion that residence restrictions are actually counterproductive with regard to increasing community safety. 20 Reconsidering California's Sex Offender Residence Restriction Policies QUESTION Four: Are there any other considerations worth noting in evaluating the effectiveness and value of California’s current residence restrictions? CONSIDERATION ONE: Sex Offenders Re-Offend at_a Lower Rate Than Other Types of Offenders. Residence restrictions purport to reduce sexual victimization by limiting where previously convicted sex offenders maylive. Clarity about the actual risk posed by these individuals relative to the overall risk of sexual abuse and assault is important. The evidence is clear that the majority of previously convicted sex offenders do not go on to commit a new sex offense. Headline stories calling attention to sex offenders who havelong histories of offending and multiple victims — exemplified recently by the media attention to pedophile priests with chronic offending histories — help perpetuate such false beliefs. Certainly some sex offenders are quite dangerous and at considerable risk to re-offend. But most are not. Arecently published report from the California Department of Corrections and Rehabilitation (2010 Adult Institutions Outcome Evaluation Report) indicates that sex offenders released on parole are sent backto prison at a rate that is actually lower than that of other parolees. The study finds that 65% are returned to prison before they complete parole as opposed to a 68% rate for non-sex offender parolees. Andthis is despite that fact that sex offenders are generally supervised more intensively, held to a higher standard, regulated by more requirements and conditions (including maintaining their GPS systems) and violated for even minor infractions. Of those returned to custody, only 5% are returned for a new sex crime, while 9% are returned for some other crime and 86% are returned as the result of a parole violation. (pages 24-25). CONSIDERATION TWO: Most ProfessionalOrganizations Who Study the Issue of Residence Restrictions Do Not Support Them. The views of professionals who workin the field of sex offender management and who vaiue and help produce the body of scientific knowledge which should be used to guide public policy are certainly worth noting here. The largest and most respected international organization of professionals who conduct research on and provide treatment and other management services to sex offenders, the Association for the Treatment of Sexual Abusers (ATSA) has issued a policy statement on the subject of residencerestrictions. It reads, in part, as follows: “The Association for the Treatment of Sexual Abusers (ATSA) believes that whenever possible, development and implementation of social policies should be based on research. It should be noted that to date, few research studies about the effectiveness of residence restrictions have been conducted. The research that has been completed does not support the hypothesis that sex offenders living in closer proximity to places where children congregate are morelikely to re-offend.” “There is no research to support that adult sex offenders’ proximity to schools or Reconsidering California’s Sex Offender Residence Restriction Policies 21 parks leads to recidivism.” (Sexual Offender Residence Restrictions - Adopted by the ATSA Executive Board of Directors on April 5, 2010) The “National Alliance to End Sexual Assault” an organization whose purpose is to work to end sexual violence and ensure services for victims, had this to — say about residencerestrictions in their 2011 Newsletter. “In fact, those states that have studied the issue carefully have found no relationship between sex offense recidivism and sex offenders’ proximity to schools or other places children congregate”. “Moreover, residency restrictions are having the unintended consequences that decrease public safety. Sex Offenders who continually move or become homeless as a result of residency restrictions are moredifficult to supervise and monitor, thereby increasing risk of re-offense. Research has shownthat sex offenders with domestic stability (stable housing and social support) are less likely to commit new sex offenses compared to those offenders who lack stability. Because residency restrictions cause instability, which may increase the risk of re-offense, the NAESV opposes residencyrestrictions”. Because residency restrictions cause instability which may increase the risk re-offense, the National Alliance to End Sexual Assault opposesresidencyrestrictions. - The National Alliance to End Sexual Violence CONSIDERATION THREE: Politicians Who Oppose any Laws That Create Restrictions On Sex Offenders Run the Risk Of Being Labeled “Soft On Crime”. Some observers who have reflected on the situation created by residence restriction laws and other problematic sex offender managementpolicies have noted that, as a result of the intensity of public sentiment about these issues, many elected officials and policy makers feel paralyzed and unable to take any action that might be viewed by constituents or portrayed by rivals as “soft on sex offenders.” The consequence is that sex offender laws and policies can only “ratchet up” and can never be reconsidered or eased, even when such action makes good sense. Anyelected official who steps forward and expresses a desire to reconsider any of these policies runs the distinct risk of seeing himself or herself targeted for that action in every subsequent election campaign. The lowa legislature, pressured by the state’s prosecutors and law enforcement agencies, finally took action and repealed their residence restrictions. As it turned out, the legislature's decision to undo the residence restrictions was almost — but not quite — unanimous and bipartisan. The vote was 93to 3. 22 Reconsidering California’s Sex Offender Residence Restriction Policies ee In California, a Ballot Initiative passed by the voters can only be changed by returning to the voters, in which case a simple majority is required, or by the legislature with a two-thirds majority. CONSIDERATION FOUR: Residence Restrictions Tend to Drive Sex Offenders Into Rural Areas, Where Services and Treatment are More Difficult to Obtain. Residence restrictions tend to make the most densely populated areas — which are, of course, the state’s urban areas where most of the population lives — off limits for sex offender housing. Usually these are the areas where low cost housing is more readily available. The less dense suburban areas are frequently unavailable because of housing costs and availability. Therefore it is a county's rural areas where sex offenders — at least those who canfind and afford housing — are morelikely to find unrestricted housing opportunities. But these areas tend to have fewer services andlittle public transportation. So the urban areas have pushed their unwanted sex offenders into rural areas and,in doing so, have- if the touted dangers of proximity are to be believed - disproportionately increased the risk for the children in these areas. In addition, the one management approach for reducing risk shown to be effective — specialized sex offender treatment programming — tendsto be not readily available or nonexistent in such areas. CONSIDERATIONFIVE:Other States are Either Voluntarily or Being Ordered by the Courts to Limit Residence Restrictions. It should be noted that the state of lowa, one of the earliest to adopt residence restrictions, found that their law created a chaotic and counterproductive situation endangering public safety. After prolonged problems and under considerable . pressure from the state’s prosecutors and law enforcement officials, the lowa policy makerstook stepsto roll back their restrictions. More recently, the state of Georgia, reportedly responding to an anticipated court decision invalidating their onerous residence restriction policies and the untenable situation that ensued, took a similar retrenching action. CONSIDERATION SIX: There are Direct and Indirect Costs That Come as a Result of California’s Current Form of Residence Restrictions. Housing costs are incurred by CDCR because parolees cannotlive with family or in places that would otherwise be available to them. Over many years, CDCR has consistently made efforts to avoid a situation of having transient parolee sex offenders by paying someorall of the housing costs, but has not been able to continue to do so. Now the housing payments arelimited to a 60 day period after release. The laws of supply and demand have driven up the costs of the few legally compliant housingfacilities still available. Transient parolees mustreport in to their parole agents more frequently and must re-register as PC290 sex offenders more frequently, burdening both CDCR personnel and law enforcementstaff with additional duties. Transient parolees and other transient sex offenders appear to be out of compliance with registration Reconsidering California’s Sex Offender Residence Restriction Policies 23 s requirements (i.e. missing) at an increasing rate, thereby incurring costs related to locating them and returning them to court and to prison if they are located. The substantial expenses now being incurred and anticipated as the result of hundreds of cases seeking redress through the courts with respect to somelegally questionable aspect of residence restrictions must be addedto thelist. Some unknown numberof paroled sex offenders might have been able to obtain employment and become contributors to society and taxpayers were they not homeless. Instead, many of them and, in some cases,the families whom they are unable to support, need to seek public and private-sector assistance andfinancial support. There are undoubtedly additional costs not specifically noted here. No one seems to be tracking the cumulative costs of implementing this policy. CONSIDERATION SEVEN: Residence Restrictions Have Created the “Clustering” of Sex Offenders into Those Few Urban Areas Where Compliant Housing is Located. Many local communities became very alarmed when they realized that some apartment complexes and hotels/motels had large numbers of sex offendersliving there. The surrounding neighborhoods were concerned both about the safety of their children as well as potential declining property values. They became incensed that CDCR had allowed this to occur. What they failed to realize is that the real culprit (residence restrictions) had made most multi-family units ineligible to house sex offenders. Therefore, the sex offenders had gravitated to the only housing that was both affordable and compliant with the law. The response of most communities to this problem was to pass local ordinances which limited the number of sex offenders who could reside in apartment complexes and motels/hotels. Many jurisdictions prohibit more then one sex offender from living in a multi-family building or complex. Otherjurisdictions use some type of percentage formula to prevent clustering. In either case, these attempted solutions have increased homelessness among sex offenders, due to decreasing housingavailability. CONSIDERATION EIGHT: There _is No Scientific Evidence to Support Residence Restrictions. When what is put forward as “commonsense’is in conflict with the findings of scientific inquiry, an enlightened policy will follow the scientific knowledge. It would not be reasonable to create policies based on, for example, the long-held “common sense” observations that the earth is flat or that the sun revolves around the earth or that illness comes from “humours”or from the "evil eye." No evidence- based arguments have ever been put forward to support residence restrictions as a means of reducing sex offender recidivism. However, once such policies have been introduced as a plausible way for policy makers and elected officials to “do 24 Reconsidering California's Sex Offender Residence Restriction Policies Ceeeereeee eeeeeeeeeeeer r ee something” to protect children, they spread from jurisdiction to jurisdiction with little visible resistance or debate. Opposing them has been and continues to be perceived as simply too politically dangerous. CONSIDERATIONNINE: There is No Rational Basis that Supports 2000 Feet as a Distance Measurethat Increases the Safety of Children. While it may be quite true that certain sex offenders should notlive in a place where they can readily observe a school or a playground from their home, setting a distance of 2,000 feet cannot be said to be based on any available evidence or logic. It takes a normal, physically-fit adult just over seven minutes to walk 2,000 feet without any stops or delays. 2,000 feet is the length of 6.6 football fields. Evenif there were an unbrokenline of sight, a 2,000 foot distance is too great to be able to see anything or anyone in a meaningful way. Sometimes the rhetoric associated with residencerestrictions takes the form of outrage about thinking of a child molester “living across the street from a grade schoo!”or a rapist living “next doorto” a high schoolor college. This is a distorted characterization of the reality actually brought into existence bya 2,000 foot residencerestriction, which extends the limit so far beyond “across thestreet” that the emotional argument becomes — or should become- meaningless. CONSIDERATION TEN: Exclusion Zones are a Better Alternative Than Residence Restrictions. A much more rational and non-counterproductive alternative to residence restrictions is possible, one which addresses the “across the street” concerns. The creation of what are called “exclusion zones” from which sex offenders are bannedatall times unless granted a specific exception makes much more sense and has been proposedby the California Sex Offender Management Board as an alternative to residence restrictions which would make a great deal more policy sense. A set of much morelimited exclusion zones around schools and some parks make considerably more policy sense than restrictions on where someone can sleep — presumably at night, a time when schools are closed and no children are present anyway. CASOMBhasbeen quite clear in recommending strongly that “exclusion zones,”if adopted, should not be imposedin addition to residence restrictions but should be an alternative approach which would replace the 2000 foot restrictions imposed by Prop 83. CASOMB doesnotclaim that exclusion zones have anysolid research support, simply that implementing them mayoffer a viable way to replace a form of external control which clearly is ineffective and counterproductive with one which, while it may not be effective, would not create an increased risk to community safety as do the current residencerestrictions. CONSIDERATION ELEVEN:Solutions May Have to Be Court Ordered. Somebelieve that the inevitable and even preferable resolution to the problems created by residence restrictions can and should and will come through the courts. The California Supreme Court has heard a case which someobservers thought might have resulted in a definitive decision about residencerestrictions. However the actual decision only went so far as to affirm that there could be merit in the Reconsidering Califoria’s Sex Offender Residence Restriction Policies 25 objections of individual petitioners with respect to residence restrictions but that each case would need to be decided on its own merits. At this point, as a result, hundredsof petitions have been filed and local courts face an immense burdenin responding to the situation. The costs that taxpayers incur as the result of these many legal actions are not easily estimated but undoubtedly have already been substantial and are likely to continue to mount. CONCLUSIONS Based on all that is known about sex offender recidivism and the nature of most sex offenses involving children, there is no evidence that residencerestrictions are related to preventing or deterring sex crimes against children. To the contrary, the evidence strongly suggests that residence restrictions are likely to have the unintended effect of increasing the likelihood of sexual re-offense. Such increase in risk level is due to the destabilizing effect residence restrictions have on offenders and the way they are likely to exacerbate rather than reduce the psychological states which are known to be associated with re-offending. Analysis of the situation in California shows that residence restrictions have led to dramatically escalating levels of homelessness among sex offenders, particularly those on parole. In addition, sex offender homelessness is likely to be exacerbated by local ordinances, which continue to proliferate. It is extremely difficult to keep track of these ordinances and to evaluate their contribution to the problem. The California Sex Offender Management Board must strongly recommend, once again, that policy makers review this situation and take action to revise the state’s residencerestriction policies. 26 Reconsidering California’s Sex Offender Residence Restriction Policies a LIST OF SELECTED DYNAMIC RISK FACTORS DEEMED RELEVANT TO THIS REPORT - CLUSTERED BY GENERAL TOPIC AND SOURCES oe — _ . Offense-Supporting Attitudes, Beliefs and Cognitive Distortions Lack of Concern for Others (STABLE 07); Callousness/lack concern for others (MHT-SRA) e Interpersonal aggression (VRS-SO); Adversarial SexualAttitudes (SRA) e Externalizing (MHT) e Grievance/hostility (MHT); Grievance Thinking (SRA) 2. Self-Regulation Impairments e Lifestyle Impulsiveness (SRA); Impulsivity (VRS-SO); Impulsive (STABLE 07); impulsivity, recklessness (MHT) e Dysfunctional coping (MHT); Dysfunctional Coping (SRA); Sexualized coping (MHT); Sex as Coping (STABLE 07) « Poor Problem Solving Skills (STABLE 07); Poor cognitive problem solving (MHT) e¢ Emotional control (VRS-SO) e Negative Emotionality (STABLE 07); Dysfunctional Self-Evaluation (SRA) e Substance abuse (VRS-SO) o w . Sexual Propensities and Sexual Deviance Sexual Preoccupation (SRA); Sexual compulsivity (VRS-SO); Sexual preoccupation (MHT) Sex Drive - Sex Preoccupation (STABLE 07): 4. Social EngagementandLifestyle Stability e Significant Social Influences (STABLE 07); DIO Community support (VRS-SO); Relationships with Adults (SRA); Negative social influences (MHT); General Social Rejection (STABLE 07) . e Lack of Emotionally Intimate Relationships with Adults “LEIRA” (SRA); Lack of emotionally intimate relationships with adults (MHT); Intimacy deficits (VRS- SO); Capacity for Relationship Stability (STABLE 07) e EmploymentInstability (MHT) 5. Resistance to Rules including Supervision and Treatment Non- cooperation e Co-operation with Supervision (STABLE 07); Compliance with community supervision (VRS-SO); Resistance to rules and supervision (MHT); Treatment compliance (VRS-SO) [Doesnotfit major categories: Release to high risk situations (VRS-SO)] Reconsidering California’s Sex Offender Residence Restriction Policies 27 Ceeeeeeeeeeeeeerrrrn na SOURCES STABLE07refers to the Stable 2007, a dynamic risk assessment instrument for sex offenders SRArefers to the Structured Risk Assessment, a dynamic risk assessment instrument for sex offenders VRS-SO refers to the Violence Risk Scale — Sex Offender version, a dynamic risk assessmentinstrumentfor sex offenders *“MHT” Refers to a major dynamic risk factor review article by Mann, Hanson and Thornton published in 2010 in Sexual Abuse: A Journal of Research and Treatment 28 Reconsidering California's Sex Offender Residence Restriction Policies Document4 The February 18, 2011, Statement of Decision by the San Diego County Superior Court in In re Briley, et al., HC 19612 o O C O S N D N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L E Clerk of the Superior Court FEB 18 2011 By: D. ZOLEZZI, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OFSAN DIEGO On Habeas Corpus In re: ) ) JULIE BRILEY ) HC 19612 JEFFREY GLYNN ) HC 19731 WILLIAM TAYLOR ) HC 19742 STEPHEN TODD, ) HC 19743 Petitioners. ) ) STATEMENT OF DECISION ) ) l. STATEMENT OF THE CASE Thesepetitioners are four of well over a hundred who have filed petitions for writs of habeas corpus in this court in the wake of the California Supreme Court’s decision in In re E.J. (2010) 47 C4th 1258. That case featured a broad-based attack on Penal Code section 3003.5(b),’ one of several statutory changes enacted November8, 2006, by Proposition 83, otherwise knownas Jessica's Law. Section 3003.5(b) provides, “Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.” The California Department of Corrections and Rehabilitation (CDCR) and the Division of Adult Parole Operations (DAPO) have issued policy statements (Policy "All statutory referenceswill be to the Penal Code unless otherwise stated. STATEMENTOF DECISION- 1 Nos. 07-36, 07-48, 09-11) and revised the California Code of Regulations (section 2626 of title 15) to implement Penal Code section 3003.5(b) as a parole condition. In E.J., four parolees alleged that section 3003.5(b) is an impermissibly retroactive statute that violates the ex post facto clauses of both the United States and California Constitutions. They also argued that it is “an unreasonable, vague, and overbroad parole condition that infringes on various federal and state constitutional rights including their privacy rights, property rights, right to intrastate travel, and substantive due process rights under the federal constitution.” (In re E.J. supra, at 1264.) While the Supreme Court ruled againstpetitioners on the retroactivity and ex post facto issues, it did not decide the remaining claims. Calling them “as applied” challenges, the court remanded the remaining issues to the trial courts to hold evidentiary hearings that could establish a factual basis for rulings. Two of the petitioners in that case (J.S., S157633, and K.T., S157634) were parolees from San Diego and were remandedto this court for further proceedings. As the newsof the issues in E.J. spread among parolees in San Diego County, additional parolees beganfiling petitions for relief making the same allegations and requesting temporary stays of the enforcement of section 3003.5(a) pending final disposition, such as had been granted by the Supreme Court to petitioners in E./. The San Diego County Public Defender assumed responsibility for all indigent petitioners raising these issues and the Attorney General has been counsel for respondent Matthew Cate, Secretary of the California Department of Dorrections and Rehabilitation. All of these related cases have been assigned to a single judge for coordinated resolution. On May 12, 2010, an agreement was reached between the parties for the management of these cases. The two cases actually remanded from the Supreme Court (in re J.S., 157633, and In re K.T., S157634) had become mootbyvirtue of the petitioners having been discharged from parole. Those petitions were dismissed on the petitioners’ motion. The present four cases were selected to be the “lead” cases and to STATEMENTOF DECISION- 2 i] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be the subjects of an evidentiary hearing addressing the issues left unansweredin EJ. Orders to Show Cause were issued for each of the four lead cases and it was agreed that all other petitions raising these issues would be Stayed pending hearing and decision on the lead cases. Understanding that the purpose of the lead cases was to establish a factual basis for ruling on these issues, it was also agreed that the record created by the lead cases would be admissible asto all of the stayed cases, augmented by whateveradditional relevant evidence may be offered whenthey are heard. With regard to the requests for emergencyinjunctive relief from the application of section 3003.5(b), it was agreed that the court would rule ex parte on the applications as they were filed, with Respondent having the opportunity, within two weeks of any such order, to object andset the matter for hearing. As of the time of the evidentiary hearing in these cases,it was stipulated that the court has granted stays in 132 pending cases. Injunctive relief has been denied in a handful of cases where the showing was deemed inadequate. A request for a countywide blanket stay of the application of section 3003.5(b) was heard and denied by this court on December 17, 2010. i]. FINDINGS OF FACT Evidentiary hearings were conducted on these lead cases over eight days between January 25, 2011, and February 3, 2011. The principal objectives of the hearings were the issues set out by the California Supreme Court in In re E.J., that is (1) the current parole status of each petitioner, (2) each petitioner's current residence and its proximity to any “school” or “park where children regularly gather,” (3) a factual assessment of the housing available to registered sex offender parolees in San Diego County, (4) an assessment of the way the 2000 foot residency restriction is being enforced in San Diego County, and (5) a complete record of the protocol CDCRis currently following to enforce the residencyrestriction in San Diego County. A. The Status of the Lead Petitioners With the exception of Stephen Todd, each petitioner is currently on parole. Mr. Todd has been returned to prison for a new drug conviction. However, in light of the STATEMENTOFDECISION- 3 original agreementto hearall four cases as a representative range of cases, the parties have agreed thathis petition should not be dismissed as moot. The court has agreedto accept evidence andrule in his case along with the others. All petitioners had temporary injunctions granted, temporarily barring the application of section 3003.5(b) against them. Each has secured housing. According to the uncontradicted evidence, their status is as follows. Petitioner Briley is on parole after being convicted of failing to register as a sex offender. She is required to register as a result of her 1988 conviction under Penal Code section 288(a), a crime committed in her own home against her natural daughter. She has been convicted of no additional sex offenses of any kind since then. On release from prison and subject to the residency restriction, she was homeless for approximately a year and a half, sleeping in the alley behind the parole office. Opportunities to live with her sister or in a women's shelter were denied her as noncompliant with the housing restriction. Fifteen to twenty others slept in the alley with her, plus approximately fifteen others sleeping in their cars nearby. She is 53 yearsold, has hepatitis C, high blood pressure, thyroid problems and osteoarthritis which is exacerbated by exposure to the cold. She was granted a temporary injunction in July 2009, butfor financial reasons was unableto find housing, even in a noncompliant location, until November 2010. She now lives in a recreational vehicle in a noncompliant location in return for five hours of work each week, She currently has two other part-time jobs which pay her approximately $250 a monthintotal. Petitioner Glynn is on parole following his conviction in a theft related case. He has beenin and out of countyjail and state prison since 1997 ona variety of theft, drug | and Vehicle Code violations. He is required to register as a sex offender because of his 1989 conviction of misdemeanor sexual battery committed against an adult woman he was dating at the time. At the time of his plea to that charge, it did not carry a requirement that he register as a sex offender, but later revisions to the Penal Code applied the requirement to him. He has been convicted of no other sexual offenses of STATEMENTOF DECISION- 4 G o N n W N & 10 i. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any kind. He had been paroled several times before the passage of Jessica’s Law without any residential restrictions, but when he was paroled in 1988, the 2000 foot restriction of section 3003.5(b) was imposed. He has been marriedfor twelve years and has three children. He intended to return to his family, but the family apartment was noncompliant. Unwilling to move his children to a new schoolor his wife from proximity to her job and parents, and unableto find compliant housing in the area, he bought a van andlived in it as a transient. He applied for and obtained a temporary injunction against the housing restriction in December 2009. Unfortunately, this was just a week after he committed a burglary that ultimately sent him back to prison. Paroled again in August 2010, and byvirtue of the previously issued injunction, he is now living with his wife and children in their noncompliant apartment. Petitioner Taylor is on parole following his conviction for failing to register as a sex offender. He is required to register as a sex offender by virtue of his 1991 conviction in Arizona of kidnapping for the purpose of sexual assault in an incident involving an adult woman. He has never been convicted of a sex crime involving children. He suffers from a long list of medical and psychiatric conditions: AIDS,throat cancer, paranoid schizophrenia, scleroderma, peripheral neuropathy, type 1 diabetes, chronic hypertension, sciatica, a torn anterior cruciate ligament, kidney stones, glaucoma and sleep apnea. He has hadthree strokes and one heart attack. He has no ability to pay for housing. He had intendedto live with his nephew, whosewife is a health care professional. He was invited to do so by them, but their home is noncompliant. For a month, he slept outside near the parole office in a place pointed out to him by his parole officer, but he was arrested for cocaine use and sent back to prison. He has been addicted to cocaine for ten years. Re-released on parole, he gained admission to a drug treatment program knownasthe Etheridge Center which is affiliated with a respected AIDSclinic. !t was noncompliant, but he was allowed to stay there pending his effort to get a waiver of the 2000 foot restriction. His request for a waiver was denied and he was ordered to vacate the Etheridge Center. He then STATEMENT OF DECISION - 5 O o O o S s D W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 obtained an injunction from this court allowing him to stay, but was then suspended by the Etheridge Center and returned to prison. Paroled again, he was placed in a boarding house in thecity of Vista in northern San Diego County, paid for by CDCR. That location was three hours or more by bus from the parole office and outpatientclinic he must attend, as well as other essential locations, such as the clinic that has agreed to provide his medical care. in the Vista facility, he collapsed twice and was hospitalized. While in the intensive care unit of the hospital, he was warnedthat, pursuantto section 290, he would have to changehis registered addressto the hospital within five days or he would be revoked and returned to prison. Ultimately he was returned to prison, in part for failing to re-register at the hospital and in part for possession of drug paraphernalia. On re-release on parole, petitioner is now in a compliant hotel, paid for by CDCR for 60 days. At the end of that period he will be homeless. Petitioner Todd is in prison on a drug conviction. He has been in and out of prison since 1981. He must register as a sex offender as a result of a Juvenile Court true finding when he wasfifteen years old that he violated Penal Code section 288(a) with his ten-year-old sister. At the time he committed the crime, the law required him to register only until his twenty-fifth birthday, but the law was subsequently changed to requirelifetime registration. He is nowforty-four years old and has not been convicted of any other sex crimes of any kind. He has been diagnosed with bipolar disorder since he wasfifteen years old. He is also diabetic and subject to seizures which are worse whenhe is homeless. During previous periods on parole and subject to the 2000 foot residency restriction, petitioner was unable to find compliant housing and, on the suggestion of his parole agent, lived in the San Diego river bed, earning money “illegally.” He has had spinal surgery as a consequenceofinjuries twice. After one of these operations, following release from the hospital, he received financial assistance from DAPOallowing him to spend 10 nights in a hotel. He subsequently obtained a temporary injunction from this court allowing him to live in noncompliant housing, but his STATEMENTOF DECISION- 6 o C O S s D H 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parole was revoked and he was returned to prison before he could moveinto available housing. When released on parole again, he moved in with a friend in noncompliant housing, during which time he went to school and stayed drug-free for an extended period — until being convicted for his current drug offense. B. Compliant Housing Available to Petitioners in San Diego County At the heart of the constitutional claims in this case is the argument that section 3003.5(b) is constitutionally unreasonable as a parole condition because it reduces the supply of available housing to the point that it is practically impossible for parolees to find. It is argued that this forces parolees into homelessness under circumstances which are the practical equivalent of banishment,in violation of various state and federal constitutional rights. As will be seen, getting a precise picture of San Diego County's inventory of housing available to parolees required to register under section 290 is not an easy proposition. Petitioners have employed multiple strategies in attempting to paint a realistic picture of the housing market available to parolees. While each individual method is subjectto criticism that it is imprecise in several specific ways, the court is satisfied that when all are viewed together, a reasonably accurate approximation of the relevant housing market can be seen. Thefirst method employed wasto create an extraordinarily detailed map with the intention of tracking the impact of the exclusion zones on available housing. The map, which was admitted into evidence as Exhibit 47, is in a book format which, at least superficially, looks like the ubiquitous Thomas Brothers maps widely available throughout California. The map covers all of San Diego County in 288 pages and has an extensive index. It was prepared under the supervision of Julie Wartell, a contract crime analyst for the County of San Diego, who worked cooperatively with both the San ? Unless otherwise specified, references to exhibits in this opinion refer to exhibits marked during the evidentiary hearingin this case, not to exhibits attached to the various pleadings. STATEMENTOF DECISION- 7 s D N 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Diego District Attorney’s office and the San Diego Public Defender’s office in an attempt to provide evidence of the housing available outside the exclusion zones of section 3003.5(b). This is a project she has worked on since 2006 and has updated for the presentlitigation with the assistance of two analysts from the County Departmentof Planning and Land Use(see Exhibits 2 and3). The map graphically shows 2000 foot circles drawn around each identifiable school or park and shades the areas within thosecircles. It also shows land parcels based on tax assessorrecords and distinguishes between residential and nonresidential as well as between single family and multi-family parcels. Among multi-family parcels,it distinguishes between parcels on the basis of how manyindividual units are authorized in an individual parcel. The project runs into unavoidable complications at the outset regarding the definitions of “public or private school’ and “park where children regularly gather.” Neither the statute nor CDCR has provided a definition for either of those broad phrases. Working definitions were adopted for purposes of the map. “Public or private school” was defined as any kindergarten through twelfth grade school, as identified by data from the California Department of Education. “Park where children regularly gather” wasdefined as any “active use” park. This definition arises from the San Diego County Code section 810.102(a)* and, like the chosen definition of “school,” it is amenable to mapping through the County Geographic Information Systems. This definition does not include such large locations as the beaches, Legoland, the San Diego Zoo or Sea World. It is unclear whether they would be included by DAPO 3 San Diego County Code section 810.102(a) provides “Active Recreational Uses’ means recreation facilities occurring on level or gently sloping land (maximum 10%) restricted for park and recreation purposes in a planned development which are designed to provide individual or group activities of an active nature common to local parks in San Diego County, including, but not limited to, open lawn, sports fields, court games, swimming pools, children's play areas, picnic areas, recreation buildings, dance slabs, and recreational community gardening. Active Recreational Uses do not include natural open space, nature study areas, open space for buffer areas, steep slopes, golf courses, riding and hiking trails,scenic overlooks, water courses, drainage areas, water bodies (lakes, ponds, reservoirs), marinas and boating areas, parking areas, and archaeology areas.” STATEMENT OF DECISION- 8 practice. The relevant statute is silent. Including such locations would, obviously, increase the reach of the exclusion zones. An additional layer of imprecision is imposed in defining the location of potential residences. DAPO measures from the school or park to the entrance door of a residence. The mapping system cannot locate the front door of a residence, only the outside of the parcel. Thus the map shows, as excluded, parcels whose boundaries enter the exclusion zone,evenif the front dooris outside the exclusion zone. Finally, the number and location of schools or parks is not a static matter. Schools and parks can be added orclosed. (See, e.g., Exhibit 6) Notwithstanding these potential uncertainties, the map appears to be the most accurate assessment of housing reasonably available. While the bulk of the mapis rich in close-up detail, it is the first several pages that present the most striking impression of the impact of the exclusion zones. These pages depict broad overviewsof large areas of San Diego County with the 2000 foot exclusioncircles still visible. These pages graphically show huge swaths of urban and suburban San Diego,including virtually all of the downtown area, completely consumed by the restrictions. From the detail captured by the map, Ms. Wartell then extracted numerical data regarding how many and whatkinds of parcels exist outside the exclusion zones. Once again, some caution is required. While it is possible to count parcels in compliant zones, andto tell how many units are authorized for those parcels, the data does not show how manyindividualliving units are actually constructed in a particular parcel. A given parcel could contain anywhere from zero to sixty individualliving units or more. Acknowledging these limitations, Ms. Wartell prepared a chart which was received in evidence as Exhibit 1. The chart purports to capture several details both community by community and in total for the entire county. It shows (1) the total number of tax assessor parcels for each locale, (2) the number that are considered “residential,” (3) the number of “residential” parcels outside the exclusion zones and STATEMENT OF DECISION- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 (4) the numberof “residential” parcels considered “multi-family” that are outside the exclusion zones. From these numbers,it was possible to determine the percentage of “residential” parcels which were outside the exclusion zones (24.5%) and the percentage of “residential multi-family” parcels which are outside the exclusion zones (2.9%).° Petitioner argues that parolees subject to registration under Penal Code section 290 are overwhelmingly indigent, difficult to employ, and burdened by conditions of parole that further interfere with employability. The testimony of petitioners, parole agents, local police officials, and DAPO staff at this hearing largely supports that generalization. From this conclusion, petitioner argues that such parolees are only rarely candidates to buy or rent single family homes. If they are to find housing,it is mostlikely to be in apartments or low-cost residential hotels. The testimony of Parole Agents Ruben Hernandez and Maria Dominguez, as well as that of San Diego Police Detective James Ryan persuasively supports this conclusion. It is also supported by the testimony of Jack Chamberlin and Michael Feer who provide treatment for sex offenders on parole, almostall of whom are required to register under section 290. This evidence leads the court to conclude that a parolee required to register under section 290 is, by virtue of the residency restriction alone, barred from accessto approximately 97% of the existing rental property that would otherwise be available to him. “ “Multi-Family” parcels include apartments, condominiums, mobile home parks, and retirement/ independentlivingfacilities. 5 At the end of the hearing, Ms. Wartell was recalled to the stand by respondentto testify to a reworking of this chart using land usefiles instead of tax assessorfiles. The differences in percentages were mixed and small. Using land use data the percentage of “residential” parcels outside the exclusion zones became 25% (rather than 24.5%) and the percentage of residential “multi-family” parcels became 0.7% (instead of 2.9%). (Exhibit 33.) After the close of evidence, Petitioners filed a written request to submit a third version of the chart based on a new reworking of the data by Ms. Wartell. A copy of the proposed new chart is attached to the request. Respondenthasfiled a written objection. Both sides have rested, and the figures in the new chart are insignificantly different than those in the first two charts and do not justify reopening the evidence. The requestis denied. STATEMENTOFDECISION- 10 This does not mean that the 3 percent outside the exclusion zones are actually available to parolees subject to section 3003.5(b). Anotherline of evidence presented by petitioners attempts to show, from practical experience, what barriers face parolees attempting to locate compliant housing. Using investigators from the Public Defender's Office and volunteer professors from a local university, petitioners attempted to recreate the process of searching for compliant housing that could actually be rented by a parolee sex offenderregistrant. Aron Hershkowitz, an investigator for the San Diego County Public Defender’s Office, working with other investigators, began the practical exercise by using the map (Exhibit 4) and the internet to target a reasonable segment of potential housing for further investigation. Each investigator invoived took a portion of the map. The exercise began bylocating compliant multi-family parcels which could contain five or more units each. Parcels which could contain less than five units were excluded as a way to keep the project reasonably manageable, and 278parcels were identified this way. Then, by seeking information about the parcels on the internet, he excluded properties with rents higher than $850° a month and properties that required criminal backgroundor credit checks. Hershkowitz spent approximately 70 hours on his portion of the work and doubts he could have completed it without the map and accessto the internet. His group’s data was then turned overto others to take the searchto the streets. Dr. Thomas Green, a professor at National University with a background in criminaljustice, along with a colleague, Dr. Kelso, continued the project from there. To get to a manageable number, they pared Hershkowitz’s list down to include only parcels with 16 units or more, with rent of $850 a month or less, no criminal background check and a required deposit of less than one month's rent plus $500. This resultedin a list of 61 parcels. At that point, Green and Kelso split the list between them and took to the phones andto the street in pursuit of actual available rentals. Green alone spent 25 * $850 a month was chosen as a cutoff becauseit reflects the average Social Security income for parolees receiving such income, according to Dr. Thomas Green and Michael Feer. STATEMENTOF DECISION- 11 - O o C O 2 DB D W A 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to 30 hours on the phoneinquiring about these rentals and about 60 hours driving to them. He drove hundredsof miles in this search. Of the 61 locations Green and Kelso started with, they were able to make actual contact with only 45. Green often found no building of any kind on arrival at the target parcel. The rest simply would not answeror return calls. To the 45, three were added whenthey were discovered while pursuing other rentals. Of that total of 48, manyflatly refused to rent to sex offenders. Only two werein the target price range and required no criminal background check. Three others in the target price range required a criminal background check, but did not automatically exclude parolees. However, of these five possible rentals, not a single one actually had a unit vacant and available to rent. Thus, a team of investigators and a pair of university professors who spent literally hundreds of hours looking for housing actually available to parolee registered sex offenders came up empty handed. While this certainly doesn’t prove there is no compliant housing, it makes the task facing any recently released parolee look quite daunting. It also provides a deeper understanding of the statistics Julie Wartell came up with in Exhibit 1. According to that chart, 2.9 %’ of the residential multi-family parcels are compliant with section 3003.5(b). However, as previously noted, that does not meanthat 2.9% are actually available for rent. David Estrella, Director of the County Department of Housing and Community Developmenttestified that San Diego County's vacancyrate for rental housing generally runs at approximately 5-8%. These figures apply to low cost “affordable” housing as well. He testified that the demand for low cost housing in San Diego has more than doubled in recent years. Thus, of the 2.9% of multi-family parcels shown to be compliant in Exhibit 1, only 5-8% of that number can be expected to be actually 7 Or 0.7 % based on the land use data in Exhibit 33. STATEMENTOF DECISION- 12 p e o O O o S N D N F R Y H L Y available for rent. Then, of that reduced number, the experiences of Aron Hershkowitz and Dr. Green suggest a significant number will be too expensive, or managed by persons unwilling to rent to parolees who are registered sex offenders. C. CDCR’S PROTOCOL FOR ENFORCING SECTION 3003.5(b) The official protocol for enforcing the residency restrictions of section 3003.5(b) resides largely in a series of policies issued by CDCR and DAPObetween August 2007 and January 2011.8 In addition to these policies, Title 15 of the California Code of Regulations, section 2616(a)(15), was revised to make any violation of the section 3003.5(b) residency restriction a mandatorily reportable parole violation. The written policies reflect an evolving approach toward managementofthe restrictions. Policy No. 07-36, issued August 17, 2007, as subsequently modified by Policy Nos. 07-48, 08-35, 09-11 and 11-01, set out the heart of the official policies. As they exist at the time of this hearing, they provide as follows: The 2000 foot residency restriction applies to all parolees required to register pursuant to section 290 who were released on parole on or after November 8, 2006, the effective date of Jessica’s Law. (Policy No. 07-36.) The responsibility for locating and maintaining compliant housingis placed on the parolee. (Policy No. 07-36.) The condition of parole implementing the residential restriction is to be included in a pre-parole packet given to the parolee prior to release from custody. (Policy No. 07-48.) At the parolee’s initial interview with his parole agent, the parolee is required to identify his intended residence. This is to occur within one dayof his release. Heis not allowed to moveinto that residence until it has been verified by the parole agent with a portable GPS device. The parole agentis allowed six working days to conduct the verification. If the residence is noncompliant, the parolee must immediately either provide a compliant address or declare himself ® Received as Exhibit 24 is a complete setof the relevant policies; 07-36, 07-48, 08-14, 08-35, 09-01, 09- O1a, 09-11, 10-21, and 11-01. Section 3003.5(b) is not the only residency restriction for some sex offenders. Therefore, the policies also address the requirements, both legal and administrative, for parolees underotherrestrictions such as that in section 3003(g). STATEMENT OF DECISION- 13 transient. If the parolee remains in noncompliant housing, he must be immediately arrested and reported for a parole violation. (Policy No. 07-48.) “Transient” and “residence” have been defined by Policy No 07-36 as modified by Policies No. 08-35 and 09-11. “Transient” is defined as a registered sex offender parolee “who has no residence.” “Residence” is defined as an “address” where a person “regularly resides” and can include traditional homes, apartments, hotels and shelters as well as “recreational and other vehicles.’ Policy No. 09-11 defines “regularly” (as in “regularly resides”) at some substantial length. This is a matter of considerable concern since a transient parolee who “regularly resides” at an “address” is in violation of parole and must be arrested and reported. While the definition of “regularly” in Policy No. 09-11 is very broad, there are four exceptions made. The parolee may bein a residencefor as long asit takes to charge his GPS device, but no more than two hours “per charging occurrence.””° The paroleeis also allowed to beina | “residence” for the purpose of approved employment, conducting legitimate business, or obtaining care and treatmentfrom licensed providers. It is interesting to note that a “residence” may not be within 2000 feet of a school or park, but the location where a transient sets up camp maybe. This is because, as a matter of definition, the parolee’s encampment is not a “residence” barred by section 3003.5(b). (Policy No. 09-11.) The parole agent, of course, retains his traditional authority to control and restrict such proximity with a special condition of parole. (Policy No. 09-11.) Although there is no such express authorization in section 3003.5(b), CDCR has set up a process for parolees to apply for and receive waivers of the residency restriction. These are limited to situations where the parolee is mentally ill and is housedin a licensed mental health facility or where the parolee is in need of medical ° The definitions of “transient” and “residence” are derived from Penal Code section 290.011(g). 0 According to the testimonyofpetitioner Glynn and Agent Guerrero,this allows the parolee two two-hour periods a day (one a.m., one p.m.) inside a structure evenifit is noncompliant. STATEMENTOF DECISION- 14 O o o O ~~ ] B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 care in a licensed medicalfacility with 24-hour care. The process for obtaining such waivers is strict and must be approved by the DAPO Director. (Policy No. 07-36, as amendedby Policy No. 11-1.) While it places the responsibility for finding compliant housing on the parolee, Policy 07-36 also assigns a role for the parole authorities in locating compliant housing for sex offender parolees. Specifically, it provides that, “Unit Supervisors (US) ortheir designee shall utilize all available resources to obtain a currentlisting of all public and private schools and parks within their communities. Updated information will be made available for PAs [Parole Agents] no less than once a month.” It furthermore provides that, “The US shall continue to collaborate with community-based programs and focal law enforcement to facilitate the identification of compliant housing for sex offender parolees.” Finally, there is an express policy regarding financial assistance for parolees not otherwise able to afford compliant housing. Policies No. 09-10 and 10-21 provide the possibility of financial assistance in cases of immediate need where no other resources are available. Any such assistance is limited to 60 days (absent extenuating circumstances), limited to a maximum of $1500, and is considered a loan. D. PRACTICAL ENFORCEMENTOF SECTION 3003.5(b) IN SAN DIEGO The hearing in this case featured testimony from parolees, parole staff, parole agents and a unit supervisor on the issue of how the enforcementof section 3003.5(b) is actually being implemented in San Diego County. That testimony established that, in many respects, the written policies are being followed, but notin all respects. Parole Agent Il Manuel Guerrero is the unit supervisor for one of the two San Diego units supervising registered sex offenders on parole. He testified that parolees often get their special condition of parole implementing the residencyrestriction while in pre-parole status before release from prison. They must then meet with their parole agent within one day of release, where they are given the special conditions if that was STATEMENTOF DECISION- 15 & s N G N 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not accomplishedin prison. While the parolee is informed at this point about a variety of community resources, parole agents are instructed, as a matter of policy, not to provide the parolee with any specific compliant addressesto look at. Instead, there is a large map at the parole office which shows some general areas of possibly compliant housing. He is not sure how it was created, or by whom."' The processis that the parolee brings in a potential address and the agent then verifies whetherit is compliant. This is usually done with a GPS device, though agents have come to be aware of specific addresses that have been proven compliant. If one of those addressesis proposed, the agents may not bother with a GPS check. Agents share information about compliant addresses among themselves, but they do not share it with parolees becauseof the perceived policy against providing such information. Agent Guerrero testified he was unaware of the requirementin Policy No. 07-36 that he (as the unit supervisor) “continue to collaborate with community-based programs and local law enforcementto facilitate the identification of compliant housing for sex offender parolees.” He acknowledged that he did not do this. Furthermore, he was unaware of the requirement of Policy No. 07-36 that the unit supervisor or his designee maintain a currentlisting of local schools and parks and make the updated information available to the parole agents at least monthly. He acknowledged he did not dothis, and that his information regarding new parks and schools cameinformally from his agents based on their experiences. In addition to the policy preventing parole agents from providing specific information about the location of compliant housing, there was evidenceof instances in which the parole authorities took affirmative steps to prevent parolees from being given this information. Both Jack Chamberlin and Michael Feer are sex offender treatment providers at parole outpatient clinics. Both testified as to the prevalence of homelessness among the parolees they treat and how significantly homelessness "' Parole Agent Maria Dominguez referred to a map used to show parolees general areas of housing. She said the map had not been updated since 2006. STATEMENT OF DECISION- 16 O o O o N N D W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hinders sex offender treatment. Becauseof this, both madeefforts to get information to their parolees about the locations of compliant housing. Mr. Chamberlin became aware that Deputy Public Defender Laura Arnold was involved in the presentlitigation and had developed information about the location of compliant housing. That information was data that became the map marked as Exhibit 4 in this case. He invited Ms. Arnoid to make a presentation to one of his groups on available housing and he intended to invite her to speak to his other sex offender groups. After the first presentation, he was instructed by his supervisor not to doit again. Mr. Feer had been making efforts since 2007 to assist his parolees in finding housing. He used Google Earth, which was onhis office computer, to locate compliant areas. In addition to his parolees, he shared this information with parole agents who, he believed, also had Google Earth on their computers. In October of 2010, as part of a systemic change in the CDCR computers, Google Earth was removed from all CDCR computers and he was told only CDCR authorized programs would be allowed on CDCR computers. After that, he got an e-mail from the sex offender supervisor which he understoodas instructing him not to help paroleesfind housing.” Testimony was consistent amongall witnesses that there is no official or even consistently applied definition of “public or private school” or “park where children regularly gather.” Special conditions of parole for several parolees subject to the restriction were introduced into evidence, showing that sometimes “daycare center” was included along with “public or private school,” and sometimes it was not. (Exhibit Nos. 17, 19, 20, 21, 22.) Petitioners, parole staff, and parole agents testified they had either no instruction or widely different definitions as to what constituted a school or park ? The particulars of this e-mail and the circumstances surrounding it are somewhat murky. Mr. Feer testified that he later attempted to re-open andprint the e-mail but was unable to because his account had been terminated. Hetestified that he was subsequently asked to resign. But apparently this was becauseofhis failure to obtain licensure which CDCR had expected him to obtain, even though he had been working withoutit for four and a half years. STATEMENT OF DECISION- 17 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 underthe statute. If a parolee disagrees with the parole agent's decision about whatis a schoolor park, he may pursue an administrative appeal of that decision, although they are not specifically advised of that right at the time the determination is made. None of the petitioners in these lead cases raised such an objection at the time proposed properties were found to be noncompliant. Agent Guerrero confirmed that “waivers” of the residence restrictions are possible under the terms of Policy Nos. 07-36 and 11-01 for mentally ill and medically needy parolees in licensed facilities under limited circumstances. He also confirmed that, as demonstrated in the casesofpetitioners Taylor and Todd, on a showingofreal need and an absence of other resources, DAPO can and sometimes will provide financial assistancefor a limited period of time. E. IMPACT ON HOMELESSNESS AMONG AFFECTED PAROLEES As part of their argument that the residency restriction of section 3003.5(b) is being implemented as an unreasonable and unconstitutional parole condition, petitioners argue that available, affordable and compliant housing is so hard to find that most affected parolees are forced to choose between homelessness and returning to state prison. The parties attempted in several ways to demonstrate the impact of the residencyrestriction on homelessness among affected parolees. This court took judicial notice of the statistics in a report from the California Sex Offender Management Board dated December 2008 and entitled “Homelessness Among Registered Sex Offenders in California: The Numbers, The Risks and the Response.” It reveals that between June 2007 and August 2008, the number of registered sex offenders registering as transient increased from 2,050 to 3,267, an increase of 60%. But amongregistered sex offenders who werealso parolees, between 13 This court was asked to take judicial notice of many documents. This court did so in several instances and declined, for legal reasons,to do so in others. So that a complete record could be preserved,all of the documentsthe court was requestedto take judicial notice of have been made part of the record. (Exhibit 31.) STATEMENTOF DECISION- 18 O o O o NA N A 10 11 12 13 14 | 15 16 17 18 19 20 21 22 23 24 25 26 27 28 November 2006 and June 2008, the numberregistering as transient increased from 88 to 1056, an increase of over 800%. Dr. Thomas Tobin testified as an expert witness. Dr. Tobin is a licensed clinical psychologist with a significant history of clinical and research work with sex offenders. Amongother associations, he is the current Vice Chair of the California Sex Offender Management Board and has been an invited participant in the Governor's High Risk Sex Offender Task Force. He offered his opinion that since the implementation of the residency restriction, the increase in homelessness among parolees who mustregister as sex offenders is “staggering.” He based that opinion on data from CDCR showing that between September 2007 and September 2010, the numberof parolees who must register as sex offenders whoregister as transient grew from 178 to 1081, an increase of 1236%. These statistics were supported on an anecdotal basis by testimony from parole agents and a police detective. Ruben Hernandez is a parole agent with DAPO. He was assigned to a High Risk Sex Offender caseload from 1999 to 2008,typically supervising forty such parolees at a time. During this time, none of his parolees were homeless. He had all of them living within a 16 block area of downtown San Diego — some of them subsidized with housing funds from DAPO. With the passage of Jessica’s Law, he asked to be reassigned to a different caseload becauseit appeared to him that the High Risk Sex Offender caseload would becomelargely homeless, significantly undercutting his ability to properly supervise them. Maria Dominguez is also a parole agent, currently managing a sex offender caseload. Before Jessica’s Law, she “didn’t allow them [sex offender parolees] to live on the street.” They lived in residential programs or in hotels downtown where they were much easier to supervise. Now, her parolees live all over the county. Initially, after implementation of the residency restriction, about 45% of her caseload was homeless. That number has shrunk now because of the number of temporary injunctions issued by this court. STATEMENTOF DECISION - 19 Manuel Guerrero is a unit supervisor over one of the two San Diego units supervising sex offender parolees. Utilizing CALPAROLE,a statewide parole database used by agents and law enforcement, he prepared a report designed to identify the number of San Diego registered sex offender parolees whoare transient versus those whoare residing in compliant housing. According to this report (Exhibit 16)'*, there are currently (as of January 28, 2011) 498 registered sex offenders on active parole in San Diego County. Subtracting 16 who are either in local or federal custody or are in Parolee-at-Large status, the numberis reduced to 482. Based on various clues in the CALPAROLE report, Agent Guerrero concluded that 165 of the 482 are currently transient. When this number is subtracted, 317 remain.'° Exactly what this 317 represents is not clear, however. If it were not for the numberof injunctions temporarily staying the impact of section 3003.5(b) issued by this court over the last eight months,it might roughly show the numberof affected parolees in compliant housing. However, as the parties stipulated at the hearing, this court has issued 132 such injunctions. Neither Agent Guerrero nor this court can determine how manyof them arestill transient and how many are in noncompliant, but authorized, housing. Finally, the court took judicial notice of a CDCR report issued in October 2010 by the Department's Sex Offender Supervision and GPS Monitoring Task Force. (See Exhibit 31, Appendix M.) The Task Force was a multi-disciplinary group of CDCRstaff and outside participants created by the Secretary of CDCR for the purpose of making recommendations to the Secretary on a broad range of sex offender topics. One of them was the residence restrictions of section 3003.5(b). The task force reported that between 2007 and 2010 the number of homeless sex offender parolees rose from 88 to over 2100, “an increase of approximately 24 times.” The task force expressed alarm at "4 Exhibit 16 was redacted to remove anyidentifying data as to which parolees were counted. Atthe requestof petitioners, an unredacted version was created and marked as Exhibit 16a. it was available to petitioner's counsel during the hearing and then sealed. ** When Agent Guerrero subtracted 165 from 482 he came up with 154. This appears to be a simple math error. STATEMENTOF DECISION- 20 e e W w O o O o S Y D W W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this development. Its findings included, “Homeless sex offenders put the public atrisk. These offenders are unstable and more difficult to supervise for a myriad of reasons.” The task force also concluded that homelessness weakens the GPS tracking system, making it more difficult to monitor and less effective. Their bottom-line recommendation wasthat “residencerestrictions as set forth in Penal Code section 3003.5(b) should be repealedin favor of targeted residencerestrictions.” ill. LEGAL ANALYSIS Petitioners raise a variety of statutory and constitutional issues challenging the validity of section 3003.5(b). Before addressing the issues,it is important to note the context of the challenges. Section 3003.5(b) broadly declares it to be “unlawful” for anyone required to register pursuant to section 290 to “reside” within the identified exclusion zone. CDCR has chosen to makethis the subject of a specific condition of parole and to enforceit, in part, by making a violation of it a mandatorily reportable violation of parole. (Title 15, California Code of Regulations, section 2616(a){15).) As wasso in /n re E.J., supra, what is challenged here is “CDCR’s attempts to enforce the newstatutory residencyrestrictions against [them] as a ground for revocation of . . . parole.” (In re E.J., supra, at 1271, emphasis added.) The Supreme Court in E.J. emphasized that the question of “whether section 3003.5(b) also created a separate new misdemeanoroffense” was not before the court as there were no allegations or evidence of anyone being separately charged with such an offense. Likewise, and for the same reasons,it is not before this court. A. RETROACTIVITY AND EX POST FACTO ISSUES Each petitioner here committed the crimes requiring them to register under section 290 before the enactment of Jessica’s Law, and each was paroled (or re- paroled after revocation) following the enactment of Jessica's law. Each has a specific parole condition, coextensive with section 3003.5(b), barring them from residing within STATEMENT OF DECISION- 21 a a y H R S N 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the 2000 foot exclusion zone. Each argues that application of section 300 3.5(b)’s residency restriction against him or her as a condition of parole violates constitut ional proscriptions against ex post facto laws. Petitioners Briley, Glynn and Todd further argue that the residencyrestriction is being applied retroactively, in violation of P enal Codesection 3. Respondent correctly notes that these issues were addressed and rejected by the California Supreme Court in /n re E.J., supra, at 1279-1280. There it was ruled tha t the behavior prohibited by section 3003.5(b) is the act of establishing residence inside an exclusion zone. Since CDCRonly prohibits such acts taking place after the effecti ve date of Jessica’s Law, such enforcementis neither retroactive under section 3 nor e x post facto in violation of either the state or federal constitutions. The rulings o f the Supreme Court are, of course, binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 C2d 450, 455.) Petitioner Glynn raises an ex post facto issue he argues to be distinguishable from the one decided in In re E.J. He argues that he did not “take up” or “establish” residency in an exclusion zone after Jessica's Law. Rather, he argues that he and his family lived there before Jessica’s Law andthat on his parole he only “returned” to what had already been his residence. Whatever may be said for this legal argument,it is unsupported by evidence. At the hearing, petitioner Glynntestified that the City Height s apartment his family lived in at the time of his parole was not the one he hadlived i n before his imprisonment. Therefore, there is no basis to distinguish his circumstanc es from those addressedin In re E.J. Petitioner Todd also raises an ex post facto issue argued to be distinct from those decided by: /n re E.J. It is his juvenile court true finding from 1981 that now requires him to register under section 290 and therefore be subject to the residency restriction of section 3003.5(b). He argues that in the years since his juvenile adjudication, the requirements of section 290 have grown exponentially, to the point that Ml STATEMENTOF DECISION- 22 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 application of those accumulated changes to him must now be seen as “punitive” for ex post facto purposes, especially in light of the fact that section 290 now triggers the application of section 3003.5(b). This issue has been examined previously. People v. Castellanos (1999) 21 C4th 785, 788, 796 rejected an ex post facto challenge to section 290, finding that Statute neither punitive in intent, nor so severe that it must be regarded as punitive. People v. Allen (1999) 76 CA4th 999, 1001 specifically examined the application of section 290 retroactively to juvenile adjudications such as the one which qualifies petitioner Todd for a lifetime registration requirement. That case also found the registration requirementnot to be “punitive” for constitutional purposes. While it is unquestionable that section 290’s requirements are unpleasant and extremely burdensome, it does not appear to this court that the changes to section 290’s consequences since the Castellanos and Allen decisions alter the analyses or conclusions of those cases. All petitioners’ retroactivity and ex post facto claims are denied. B. UNREASONABLE PAROLECONDITIONS All petitioners argue that the residencyrestriction of section 3003.5(b), imposed as a parole condition, is unreasonably vague and overbroad and infringes on various state and federal constitutionalrights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights under the federal constitution. These questions do not arise out of a legal vacuum. In fact they must be considered in the context of a reasonably well-developed set of legal principles, most of which were expressly outlined by our Supreme Court in In re EJ. Parolees are not completely free citizens. Parole is a part oftheir prison sentence, and they remain in the constructive custody of CDCR throughouttheir parole terms. (Sections 3000(a)(1), 3056; In re E.J. supra, at 1282, fn. 9.) As such, CDCR STATEMENTOFDECISION- 23 Y A WA BB Ww W bw o o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and DAPO have considerable authority to establish and enforce general rules and regulations concerning parole and impose any parole conditions deemed proper. (Sections 3052, 3053; In re E.J. supra, at 1282, fn. 10.) Conditions of parole may generally govern a parolee’s residence, his associatesorliving companions,his travel and other aspects of his life. (In re E.J. supra, at 1282, fn. 10; Terhune v. Superior Court (1998) 65 CA4th 864, 874.) Parolees simply have fewerconstitutionalrights than do ordinary persons. (Morrissey v. Brewer (1972) 408 U.S. 471, 482.) Parolees, however, are not totally without rights. The conditions of parole “must be reasonable, since parolees retain constitutional protection against arbitrary and oppressiveofficial action.” (In re E.J. supra, at 1282, fn. 10; Terhunev. Superior Court, supra.) Furthermore, California cases have consistently held that a condition of parole or probation will be declaredinvalid if it forbids conduct whichis not illegal in itself and | . the condition (1) bears no relationship to the crime of which the offender was convicted and (2) is not reasonably related to prevention of future criminality. (People v. Lent (1975) 15 C3d 481, 486; People v. Bauer (1989) 211 CA3d 937, 942; People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) These cases are based on a construction of the statutory authorization for such conditions and represent a conclusion that any conditions that cannot meet these standards are simply not authorized by statute. (People v. Dominguez, supra.)"° Petitioners’ reliance on the Dominguez/Lent line of cases encounters fatal problems. First, that test begins with the assumption the conduct prohibited is otherwise legal. But taking up residence within the exclusion zone is made expressly unlawful under the very statute examined here, section 3003.5(b). While it remains unclear whether section 3003.5(b) creates a new crime (see, /n re E.J. supra, at 1271, fn. 5), whatever kind of proscription it is, the statutory language expressly makesit 6 Throughoutthis discussion, cases arecited that arise in the context of probation conditions. While the present condition involvesa parole condition, the cases have judged parole and probation conditions using the same standards.(In re Stevens (2004) 119 CA4th 1228, 1233-1234.) STATEMENT OF DECISION- 24 “unlawful” for a registered sex offender to reside within the exclusion zone. This fact alone seems to make the Dominguez/Lent analysis inapplicable here. The remaining two elements of the Dominguez/Lentanalysis yield mixed results. These elements ask whether the challenged condition bears a relationship to the crimes committed or is reasonably related to future criminality. On these points, petitioners’ arguments have substantial appeal as they relate to petitioners Glynn and Taylor, who have never been convicted of a crime involving a child. No evidence is offered to suggest they are any more dangerousto children than any other parolee. But these arguments are of less avail with regard to petitioners Briley and Todd, who did commit sex crimes against children, even though they wereisolated incidents and decades ago. Ultimately, whatever maybe said of these issues, the Dominguez/Lent argument is unavailing for a simple reason. Those cases are interpretations of the statutory authority. When a condition is declared invalid under those cases,it is becauseit is deemed unauthorized by statute. (People v. Dominguez, supra, at 627.) But section 3003.5(b) provides independent and express statutory authority. In the ballot pamphlet for Jessica’s Law, the Legislative Analyst told the voters that a violation of proposed section 3003.5(b) by a registered sex offender parolee would constitute a parole violation. (/n re E.J., supra, at 1271.) In light of this, it becomes very difficult to find the residency restriction as a parole condition to be in excess of statutory authority. This, however, is not the end of the analysis. Whatever the result under the Dominguez/Lent statutory test, the case law establishes a different analysis under constitutional principles when parole conditions may conflict with fundamental constitutional rights. As the Supreme Court noted in /n re E.J., supra, at 1282, fn. 10, “conditions [of parole] must be reasonable, since parolees retain constitutional protection against arbitrary and oppressive official action” (quoting Terhune v. Superior Court, supra, at 874.) It has been well settled that a more stringent analysis applies if a condition of parole impinges on a constitutionally protected right. (People v. Pointer (1984) 151 CA3d 1128, 1139; In re White (1979) 97 CA3d 141, 146.) STATEMENTOF DECISION- 25 o O 7 S N N DB D W A e t o c 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 it is this analysis that the California Supreme Court has expressly commended to our attention here, observing, “the threshold question commonto ail of petitioners’ remaining as-applied challenges to section 3003.5(b) is whether the section, when enforced as a statutory parole condition against registered sex offenders, constitutes an unreasonable parole condition to the extentit infringes on such parolees’ fundamental rights.” (in re E.J., supra, at 1282, fn. 10, emphasisin original.) This constitutional “reasonableness” analysis has been described in various waysin the cases. "There is an overall requirement of reasonablenessin relation to the seriousnessof the offense for which a defendantis convicted . . . . ‘The Constitution, the statute, all case law, demand and authorize only ‘reasonable’ conditions, not just conditions 'reasonably related’ to the crime committed." (White, supra, at 146, quoting People v. Keller (1978) 76 CA3d 827, 839-40.) “Careful scrutiny of an unusual and severe probation condition is appropriate.” (White, supra, at 146.) “[WJhere a condition of probation impinges upon the exercise of a fundamental right and is challenged on constitutional grounds we must additionally determine whether the condition is impermissibly overbroad.” (People v. Pointer, supra.) This tension between the need to supervise parolees and the desire to protect their reduced constitutional rights from unnecessary intrusion was perhaps best articulated in In re Babak S. (1993) 18 CA4th 1077, 1084-1085. There the court concluded that, “in order to survive constitutional scrutiny, such conditions not only must be reasonably related to present or future criminality, but also must be narrowly drawn and specifically tailored to the individual probationer.” (Emphasis added.) There do appear to be fundamental constitutional rights which are infringed by the residency restriction of section 3003.5(b). The constitutionalright to travel has been well established under both the state and federal constitutions. (Shapiro v. Thompson (1969) 394 U.S. 618; In re White, supra, at 148, 149; People v. Smith (2007) 152 CA4th 1245, 1250.) This constitutional right to travel secures more than just the right to move about the country and to decide where one wishes to reside. It also implies a STATEMENTOF DECISION- 26 correlative right to travel within a state. (In re King (1970) 3 C3d 226; In re White, supra.) It has been found to be infringed by conditions which forbid a probationer from entering specific areas of a city. (in re White, supra, at 147-151.) It has also been found to be infringed by probation conditions ordering a defendant to move from her home and community. (People v. Beach (1983) 147 CA3d 612, 621-623,) In People v. Bauer (1989) 211 CA3d 937, a condition of probation gave the probation officer the authority to order defendant to move out of the home he had always sharedwith his parents. The Court of Appeal found the condition invalid, and “all the more disturbing becauseit impinges on constitutional entitlements -- the right to travel and freedom of association. Rather than being narrowlytailored to interfere aslittle as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents -- that is, the powerto banish him.” (People v. Bauer, supra, at 944.) While section 3003.5(b)’s residency restriction does not order a parolee to move to a foreign country (such as in In re Babak S., supra) or to completely stay away from specified areas of a city (such as in /n re White, supra),it is closely akin to the condition in People v. Bauer, supra, which impermissibly authorized banishment of a defendant from his family home. Furthermore, the right to establish a home has beenheld to be one oftheliberty interests protected by the Fourteenth Amendment to the United States Constitution. (Meyer v. Nebraska (1923) 262 U.S. 390, 399). Further, the right to privacy under the California Constitution (Article |, section 1) also appears implicated. That right has been held to protect a “diverse range of personal freedoms” (Robbins v. Superior Court (1985) 38 C3d 199, 213) including the right to choose the people with whom onelives. (Robbins, supra; City of Santa Barbara v. Adamson (1980) 27 C3d 123, 130, 134.) In Robbins v. Superior Court, supra, the Supreme Court found an infringement on the right to privacy where a person was required to moveto a particular location, having to give STATEMENT OF DECISION- 27 up his home andtheability to choose his associates,in return for “in-kind” benefits from the county. There can belittle doubt that these rights are infringed upon by section 3003.5(b) whenit is enforced as a parole condition. Petitioner Taylor was paroled with a lengthy list of dire medical conditions. He wasinvited to, and intended to, make his home with his nephew whosewife is a health care professional. He was denied this opportunity because that homeis within an exclusion zone. Taylor became homeless, sleeping in the streets near the parole office where his parole officer had directed him. Petitioner Glynn has been married for twelve years and has three children. On parole he wished to move backin with his family, but the apartment was within an exclusion zone. Tolive with them would thus require uprooting his children from their schools and his wife from a home convenient to her work and her parents. Unwilling to do this, he ultimately bought a van andlived in it as a transient. Petitioner Briley was denied the opportunity to live with her sister because the home was too close to a school. She was also precluded from living in a local women’s shelter and other homeless centers because they were within the exclusion zones. She turned to the streets, sleeping in the alley with numbers of other homeless parolees. These are clearly not isolated instances. Evidence at the hearing showed that homelessness among sex offender parolees has increased at a rate of between 800% and 1200% since the implementation of the residencyrestrictions. Of course, such infringements on fundamental rights may be perfectly permissible in many circumstances. As previously noted, the constitutional rights of parolees are necessarily limited by the fact they continue to be in the constructive custody of CDCR and are subject to reasonable rules and conditions covering a wide range of topics, including housing and associations. Those conditions may properly limit even fundamental liberty rights; but, as the foregoing cases make clear, interference with such fundamental rights is permissible only to the extent it is STATEMENTOF DECISION- 28 “reasonable” and is “narrowly drawn andspecifically tailored to the individual . . .” (/n re Babak S., supra.) Herein lies the fundamental vice of section 3003.5(b) as a parole condition. It is not narrowly drawn, much less specifically tailored to the individual. It applies as a blanket proscription, blindly applied to all registered sex offenders on parole without consideration of the circumstances or history of the individual case. The evidence in this case provides good examples of the wide range of circumstances to which this residencerestriction is currently applied. While the purpose andjustification for the restriction is a desire to protect children from sexual predators, it is applied to anyone required to register under section 290, irrespective of any basis to see them as a threat to children. Petitioners Glynn and Taylor have never been convicted of crimes involving children. Glynn must register because of a 1989 misdemeanor conviction of sexual battery on an adult womanhe was dating. While his record contains a variety of drug and theft convictions, there is no basis offered to suggest that he is any greater threat to children than any other parolee. But section 3003.5(b) bars the experienced parole officer from giving any consideration to the relative degree of danger the parolee may present. Before Jessica’s Law, such tailoring to the circumstances of the case was routine. For example, Glynn has been on parole several times prior to Jessica's law without any residential restrictions. At one point, he was given a condition of parole forbidding contact with children, but his parole agent made an express exception for Glynn’s own children and the entire condition was ultimately stricken in an administrative appeal. Taylor must register because of a 1991 Arizona conviction of kidnap for the purposesof sexual assault in an incident involving an adult woman. In the ensuing twenty years he has had many contacts with law enforcement, but not a single one involving sexual misconduct and none involving children. Again there has been no basis offered to support the conclusion that he presents any greater threat to children than any other parolee. Furthermore, his grave medical condition and the availability of a supportive STATEMENTOF DECISION- 29 O o C O w T D N 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 family home for him are factors that would be’ considered in any decision attempting to narrowly tailor parole conditions to his circumstances. Parole Agents have always had discretion to impose residential restrictions on parolees which were tailored to the supervision needs of the individual case. This discretion worked not just to protect the rights of parolee, but also to maximize the parole agent's ability to supervise the parolee for the protection of the public. Agents Hernandez and Dominguez both testified that before Jessica’s Law they supervised'sex offenders and exercised contro! over their housing as needed. They madesuretheir parolees were in appropriate housing, not on the streets. Indoor housing was chosen, in part based on the human needsofthe parolee, but.also to support the agent's ability to effectively supervise him. Agent Hernandez emphasized the value of managers, superintendents, and other residents of apartments and long term hotels as “eyes and ears” on the parolee, allowing the agent to keep better track of the parolee than is possible if he lives on the street. Agent Guerrero also agreed that placing such parolees in hotels led to better supervision. These concerns have been echoed by CDCR’s Sex Offender Supervision and GPS Monitoring Task Force. (See Exhibit 31, Appendix M.) The rigid application of section 3003.5(b) has removedthis ability to tailor the conditions to the demandsofthe individual case. As applied, the 2000 footrestriction invites anomalies that smack of arbitrariness. For example, testimony established that the restriction zones bar parolees from indoor accommodations in virtually all of downtown San Diego, but they are allowed, as “transients,” to sleep in alleys and doorwaysin that same area. Also, situations will inevitably arise where the parolee has an opportunity to live in a supportive family or rehabilitation environment but is prohibited because the front door is a few feet inside the 2000 foot exclusion zone.'’ This would be even more anomalous given that the parolee could register as transient andlive in a tent near a school or park in complete v Although no suchinstances are presentedin anyof the four lead cases,allegationsto this effect have been madein the growing numberof petitions being stayed pending the conclusion ofthis case. STATEMENTOF DECISION- 30 “ S N D c o 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compliance with the residential restriction since the tent is not, by definition, a “residence.” (Policy No. 09-11.) Theseintrusions on fundamental rights are not simply minor inconveniences to parolees. The data derived from the mapping process presented in this case (Exhibits 1, 4, 33) suggests that parolees subject to the residency restriction are legally barred from 97% of the “multi-family” housing mostlikely to be otherwise available to them. Other data showing that homelessness among sex offender parolees has increased from 800% to 1200%in the wake of Jessica’s Law is striking. The evidence in this case shows that the rigid application of the residency restriction results in large groups of parolees having to sleep in alleys and riverbeds, a circumstance that did not exist prior to Jessica’s Law. It would be unreasonable not to concludethis is the result of the section 3003.5(b) being applied as a parole condition. The burdens this places on parolees are disruptive in a way that hinders their treatment, jeopardizes their health and undercuts their ability to find and maintain employment, significantly undermining any effort at rehabilitation. They are imposed without any consideration of the degree of restriction justified by the circumstances andhistory ofthe individual parolee. For all these reasons, section 3003.5(b) is unconstitutionally “unreasonable” under established case law. This is so because it oppressively infringes on fundamental constitutional rights, causing significant harm without justifying that infringement by narrowly tailoring the intrusion to the needs of the individual case. At least with regard to the four petitioners currently before the court, CDCR and DAPO must cease applying this strict residency restriction as a condition of parole. This does not mean, however, that parolees are constitutionally entitled to live wherever or with whomever they choose. Parole Agents continue to have all the discretion they have always had to regulate where and with whom paroleelives, as well asall the other aspects of a parolee’slife. In the proper case, this may well justify a special condition that has an effect just as restrictive or even more restrictive than section 3003.5(b) provides, but this may only be done,as has always beenthe case,in STATEMENTOF DECISION- 31 O o n N D N C o ~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consideration of the needs of the specific case and narrowly tailored to those needs. Petitioners further argue section 3003.5(b) is unconstitutionally unreasonable because sex offender research shows that the assumptions underlying Jessica’s Law are demonstrably wrong. They offer statistical studies and expert testimony that: sex offenders do not reoffend at a greater rate than other offenders, the overwhelming number of sex offenses are committed by people not previously identified as sex offenders, such crimes are only rarely committed in public places, and they are committed by people already knownto the victim rather than strangers. From thisit is argued there is no rational relationship between residency restrictions and reduction of sexualvictimization of children. The court has received this evidence and includedit in the record. However, this argument primarily appears to address the wisdom and efficacy of the legislative choice in section 3003.5(b), a matter the courts are not generally authorized to review. (Nebbia v. New York (1934) 291 U.S. 502, 537-538.) In any event, in light of this court’s ruling invalidating the residency restriction as a condition of parole on other grounds, this issue appears moot and this court declines to resolveit. C. VOID FOR VAGUENESS In a supplemental petition, petitioners argue that section 3003.5(b) is unconstitutionally vague because the key phrases “public or private school” and “park where children regularly gather’ are not adequately defined. The evidencein this case demonstrates that both phrases have beenill-defined or contradictorily defined in the statute and in practice. Indeed, this presented considerable difficulty in the effort to map the exclusion zonesin this case. The vagueness doctrine asserts a constitutional demand that the citizens be given adequate notice of whatis illegal. (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453.) Thus, a statute that forbids behavior in language so vague that persons of ordinary intelligence must necessarily guess at its meaning anddiffer in its application STATEMENTOF DECISION- 32 “violates the first essential of due processof law.” (Connally v. General Construction Co. (1926) 269 U.S. 385, 391.) Such laws “impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Grayned, v. City of Rockford (1972) 408 U.S. 104, 108-109.) However, it has been held that, except in cases involving the First Amendmentto the U.S. Constitution, vagueness challenges must be assessed “as applied” in the individual case before the court. (Cranston v. Richmond (1985) 40 C3d 755, 764; U.S. v. Mazurie (1975) 419 U.S. 544, 550.) Therefore, a law will not be voided for vaguenessunless it is shown either that the law is vague in the specific circumstances before the court or is “impermissibly vague in all of its applications.” (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 497-498.) While it is true that a great deal of uncertainty is possible about the meaning of the phrases “public or private school” or “park where children regularly gather,” that uncertainty has not produced any factual disagreement in the cases before the court. Not one instance is cited where DAPO has found a residence noncompliant because of the location of an ambiguous schoolor park. The administrative process requires the parolee to get approval prior to moving into a residence. This requirement,if followed, eliminates the possibility of ignorant violation. Further, if there is a dispute, there is an administrative appeal process available to challenge the definition. There is no evidence such a dispute haseverarisen, at least among these petitioners. This makes it impossible to find the language vague asto petitioners here or to find that it is vague in all of its applications. - D. THE ADMINISTRATIVE PROCEDURES ACT Petitioners challenge several of the written policies enacted by CDCR and DAPO intended to implement section 3003.5(b). Specifically, it is argued that Policy Nos. 07-36, 07-48, 08-35 and 09-11 qualify as “regulations” which are invalid for failure STATEMENT OF DECISION- 33 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to comply with the requirements of the Administrative Procedures Act (APA). (Government Code sections 11340 et seq.) The APA requires agency regulationsto be submitted to a process which includes procedural safeguards such as notice to the public, an opportunity for response, and approval by the Office of Administrative Law. Respondent does notallege that these policies have complied with the APA process. Rather, respondent argues they do not constitute “regulations,” or are subject to statutory exemptions from the APA process. In any event, respondent argues the question may not be reachedin this case becausepetitioners have not exhaustedtheir administrative remedies. This court does not believe the lack of an administrative appeal in these cases bars the issue now. The court entertains substantial doubt that the exhaustion requirementis applicable to a decision by the head of the agency to enact regulations without going through the APA process. Perhaps the most practical reason for this | doubt lies in the exception to the exhaustion requirement that applies when it is a foregone conclusion what the agency’s decision would be on the issue. (/n re Strick (1983) 148 CA3d 906, 911-912.) The challenged policies were issued and signed by the Secretary of CDCR (07-36), the Chief Deputy Secretary of CDCR (07-48), and the Director of DAPO (08-35, 09-11.) The decision to proceed outside the APA process was madeatthe highestlevels and it would beunrealistic to imagine the decision would be overturned by the administrative appeal process. The issue may beraised here.'® The APA defines “regulation” very broadly to include “every rule, regulation, order, or standard of general application or the amendment, supplement or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret or make specific the law enforced or administered by it, or to govern its 18 At various points in the briefing process respondent has argued petitioners’ challenges havebecome moot as a result of a policy either being amended by or superseded by anotherone. ile Policy No. 07- 48 amended 07-36it did not supersede it. The court will examinethe portions of these policies as they are now applicable. Policy No. 09-11 superseded 08-35. Therefore, the court will address the issues as they relate to Policy No. 09-17. STATEMENTOF DECISION- 34 S D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 procedure.” (Government Code section 11342.600.) A regulation subject to the APA has two defining characteristics. First, the agency must intend it to apply generally, rather thanin a specific case. Second, the agency must adoptit to implement,interpret, or make specific the law enforced by the agency, or to govern the agency's procedures. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 C4th 557, 571.) The policies at issue clearly meet these requirements. Respondent, however, argues the policies fall within statutory exceptions to the APA process. The APA doesnot apply to regulations whichrelate “only to the internal management of the state agency” or which embody “the only legally tenable interpretation of a provision of law.” (Government Code section 11340.9(d)(f).) Application of these exceptions to the challenged policies yields mixed results. . Policy No. 07-36, as amendedby Policy No. 07-48, clearly attempts to implement section 3003.5(b). Large portions ofit can be fairly described as mattersrelating only to the agency’s internal management. However, there are specific portions of these policies that govern specific behavior by parolees and prescribe consequences for failure to comply. For example, Policy No. 07-36 places the responsibility for finding compliant housing on the parolee. It.also provides an exception to the housing restriction for parolees with specific mental health or medical needs. Policy Nos. 07-36 and 07-48, taken together, establish specific timelines for parolees to find compliant housing, specify methods for determining compliance, and order a return to custody for paroleesfailing to meet the requirements. They also set specific reporting requirements on parolees whoregister as transient. These provisions do not relate only to the internal management of the agency and they clearly do not constitute the “only legally tenable interpretation” of section 3003.5(b). To this extent, these provisions are “regulations” and are subject to the APA. Failure to comply with the APA makes them subject to being judicially declared invalid. Policy No. 09-11 (which amends Policy No. 07-36 and supersedes Policy No. 08-35) addresses reporting requirements for parolees registered as transient. It too STATEMENT OFDECISION- 35 a S s a H D A N 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contains provisions relating to internal management of the agency. Further, the detailed listing of the transient registration requirements under section 290 appears to be a straightforward recounting of those statutory requirements. But this policy also imposes specific requirements on transient sex offender parolees as to the manner and frequency of their reporting to their parole agents. It also defines the words “transient,” “residence,” and the phrase “regularly resides” in some detail. These provisions do not relate only to internal management and do not constitute the “only legally tenable interpretation” of the related concepts in section 3003.5(b). To this extent these provisions are “regulations” subject to the APA. Failure to comply with the APA process makes them subject to being judicially declared invalid. (California Advocates for Nursing Home Reform v. Bonta (2003) 106 CA4th 498, 507.) What order should be entered as a result of these conclusions is less obvious. While all petitioners, at one point or another, were subject to these regulations,it is unclear that any of them are impacted by them now, particularly in light of this court's conclusion invalidating section 3003.5 as a parole condition. Given this ruling, the APA arguments as they relate solely to regulations directly implementing the residency restriction appear moot. However, the arguments relating to the transient reporting requirements of parolees (Policy Nos. 07-36, 09-11) are not moot. Even without section 3003.5(b), it is likely there will be sometransient parolees required to register as sex offenders. This court has authority to permit the regulations in question to remain in effect pending the agency's compliance with the APA. (Morning Star Co. v. State Bd. of Equalization (2006) 38 C4th 324, 341-342.) in order to ensure continuity of supervision, it appears appropriate for the court to allow respondent to continue to utilize the challenged transient reporting policies for a period of 120 days, during which *? The court notesthatthe APAitself providesfor the interim use of emergency regulations for period not exceeding 120 days. (Government Codesection 11346.1; California Advocates for Nursing Home Reform v. Bonta (2003) 106 CA4th 498, 507.) STATEMENTOF DECISION- 36 time they may take the steps necessary to comply with the APA. After 120 days, these policies, to the extent they have been found hereto bein violation of the APA, shall be invalid and unenforceable. E. CRUEL AND UNUSUAL PUNISHMENT Petitioner Taylor argues that. in light of the fact he has AIDS, the application of section 3003.5(b) to remove him from the Etheridge Center, a drug rehabilitation center affiliated with a respected AIDS clinic, constitutes cruel and unusual punishment in violation of the Eighth Amendmentto the U.S. Constitution. It appears to the court that the passage of time and this court’s ruling on the central constitutional issue have rendered this issue moot. The passage of time resulted in an order from the Superior Court on October 2, 2009, allowing petitioner to stay in the Etheridge Center for a specified period. According to Mr. Taylor's testimony at the hearing, before the expiration of that period he was suspended from the Etheridge Center for non-sexually related misconduct. His parole was subsequently revoked. Since then he has been released on parole two more times. Thefirst time he lived at a boarding housein the City of Vista, paid for by CDCR. Onhis current release,heis living in a motel, also paid for by CDCR on a short-term basis. It is not clear whether he is welcome to return to the Etheridge Center. It appears from his testimony that his current wishis to live with his nephew. This court’s ruling, supra, regarding the central constitutional issue will have the consequence of giving his parole agent the discretion to allow him to return to the Etheridge Center, if he is still welcome there, or to his nephew’s home. Subject to appellate review of this court’s decision, section 3003.5(b) does not bar either option. The issue is moot. If //l STATEMENT OF DECISION- 37 THEREFORE: It is ordered that the California Department of Corrections and Rehabilitation and the Division of Adult Parole Operations cease application of Penal Code section 3003.5(b) as a parole condition against the four petitioners in this case. The California Department of Corrections and Rehabilitation and the Division of Adult Parole Operations shall have 120 days from the date of this order to continue using the transient reporting regulations present in Policy Nos. 07-36 and 09-11. During that time they may take the steps necessary to comply with the Administrative Procedures Act. After the expiration of that 120 days, the portions of Policy Nos. 07-36 and 09-11 identified in this opinion as being subject to the Administrative Procedures Act shall be invalid and unenforceable. A copy of this Order shall be served on the Public Defender and the San Diego Office of the Attorney General. IT 1S SO ORDERED. Dated: 2(081 LP)Paceecug MICHAEL D. WELLINGTON Judge of the Superior Court, Ret. STATEMENTOFDECISION- 38 PROOF OF SERVICE I, George L. Schraer, declare under penalty of perjury that I am a member of the State Bar of California and not a party to this cause. My business address is 5173 Waring Road, #247, San Diego, California 92120. On January 11, 2012, I served the attached COPIES OF DOCUMENTS OF WHICH APPELLANT HAS ASKED THE COURT TO TAKE JUDICIAL NOTICE by placing true and correct copies in envelopes addressed to Attorney General State of California P. O. Box 85266 San Diego, CA 92186-5266 and by sealing the envelopes and depositing them, with first class postage fully prepaid, in the United States mail at San Diego, California. Ze GEORGE L. SCHRAER