Analysis of the 2007-08 Budget Bill: Judicial and Criminal Justice

Department of Justice (0820)

Under the direction of the Attorney General, the Department of Justice (DOJ) enforces state laws, provides legal services to state and local agencies, and provides support services to local law enforcement agencies. The budget proposes total expenditures of approximately $825 million for support of DOJ in the budget year. This amount is approximately $25 million, or about 3.1 percent, above estimated current-year expenditures. The increase is primarily due to annual adjustments for inflation, as well as various budget change proposals. The requested amount includes $403 million from the General Fund (a decrease of $4 million, or 1 percent), $338 million from special funds, $41 million from federal funds, and $43 million from reimbursements.

The budget also includes a proposal to build a new facility in the Sacramento area that would replace the existing DNA lab in Richmond and other facilities in Sacramento. The administration has indicated that more detailed information about this proposal will be released by March 1 as part of the 2007 Five-Year Infrastructure Plan.

An Update on the Implementation of Proposition 69

Implementing Proposition 69: Progress and Problems

Our review of the Proposition 69 DNA program finds that the program is likely to remain dependent on General Fund support, rather than be self-supporting, if all incoming samples were to be processed in a timely basis. In addition, the department faces difficulties in recruiting and retaining staff at the Department of Justice’s (DOJs) DNA laboratory to handle its workload. The DOJ has taken steps to reduce a backlog of samples that has accumulated. However, the expected increase in samples in 2009 will likely significantly increase the program’s backlog.

In November 2004, California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime, and Innocence Protection Act. Among other changes, the measure increased the number of individuals who were required to have their DNA profiles placed in the state’s DNA data bank. In this analysis, we provide background on the establishment of DNA data banks as a law enforcement tool, summarize the measure, provide an update on its implementation, and discuss some issues relating to Proposition 69 that we believe the Legislature may wish to address in the future.

Background

DNA Data Banks. Deoxyribonucleic Acid (DNA) is the genetic material contained in most living organisms, including human beings, that controls the production of substances needed for the organisms’ development and life activities. The genetic information contained in DNA can be used, like a chemical fingerprint, to identify and differentiate between individuals. Using DNA evidence, law enforcement agencies and district attorneys have been able to effectively identify, arrest, and convict criminals, as well as to exonerate persons wrongly accused or convicted of a crime.

Every state requires that individuals convicted of certain crimes have their DNA profiles placed into state-run data banks. However, the specific crimes that require a DNA sample are different in each state. The DNA profiles are also placed into the FBI data bank, known as the Combined DNA Index System (CODIS), which serves as a national repository of DNA profiles of individuals. When law enforcement officers find DNA evidence at the scene of unsolved crimes, the evidence is compared with profiles in the state’s DNA data bank to look for potential matches.

In California, Chapter 696, Statutes of 1998 (AB 1332, Murray) required DOJ to maintain an offender DNA database, known as the CAL-DNA data bank. The analysis of DNA samples and uploading of information into the data bank is conducted in the state’s DNA Laboratory, located in Richmond. At the time Proposition 69 was adopted, approximately 278,000 profiles had been stored in the data bank. However, at that time, DOJ faced a backlog of 95,094 DNA samples—samples which had been received but had not been uploaded into the DNA data bank.

The backlog resulted in part because of the time-consuming and systematic process DOJ must follow in order to place DNA samples into the data bank. First, the incoming samples are received from the California Department of Corrections and Rehabilitation (CDCR) and local law enforcement agencies. In this part of the process, the incoming samples are logged onto the department’s computer system and electronically tracked through a bar code system. Then a process called “reamplification” enables DOJ staff to develop a DNA profile from a small sample. After the DNA profile has been reviewed for quality control, the profile is uploaded into the state’s DNA data bank and CODIS.

How Proposition 69 Changed State Law

The approval of Proposition 69 made several important changes to the state’s DNA program. The major changes are discussed below.

More Individuals Required to Submit DNA. Proposition 69 greatly expanded the number of individuals who were required to have their DNA placed in the database. Before Proposition 69 went into effect, California law required adults and juveniles convicted of serious felonies to submit a blood sample for the purpose of obtaining a DNA profile of the offender. As Figure 1 shows, under Proposition 69 all convicted felons (adults and juveniles), as well as adults arrested for certain offenses, are required to submit DNA samples. This change has significantly expanded the number of individuals who are in the state’s DNA data bank. Beginning in 2009, the measure also requires that DNA samples be taken from all adults arrested for any felony offense.

System Changed to Buccal Swab Samples. Previously, DNA was collected by taking blood and saliva samples. Proposition 69 required that DNA samples be obtained through the collection of inner cheek cells, known as buccal swab samples. The switch to buccal swab samples decreased the cost of collecting a sample, primarily because a medical professional is not required; law enforcement and correctional officers can collect the samples with minimal training. Blood samples are requested by DOJ only when the buccal swab sample is not enough to produce a DNA profile.

New Fee Created to Offset Costs of Program Expansion. In order to offset the increases in costs for DOJ due to the expansion of the DNA program, Proposition 69 levied a criminal penalty of $1 for every $10 in fines, penalties, and forfeitures collected by the courts for criminal offenses. This funding is split between the state and the counties, with an increasing share going to the counties over time. Proposition 69 required the counties to collect these fines. The state’s portion was to be deposited in the newly created state DNA Identification Fund (the DNA ID Fund). The measure also required the Legislature to loan DOJ $7 million, which was to be repaid within four years using DNA ID Fund revenues. This was intended to provide funding for DOJ’s “start-up” costs associated with the measure.

Analysis Generally Required Within Six Months. If, after six months of receipt by DOJ, certain DNA samples have not been analyzed and uploaded, DOJ is required to contract with public or private labs to ensure the DNA samples are processed in a timely manner.

Program Contingent on the Availability of Funds. Proposition 69 states that the requirements placed on DOJ by the measure are contingent on the availability of funding for the program through the $1 penalty or through any additional funding appropriated by the Legislature. Nothing in the measure requires the Legislature to provide additional funding for the program, beyond the revenues generated by the $1 penalty.

Program Faces Revenue Shortfall and High Staff Turnover

The implementation of Proposition 69 so far has posed significant fiscal and operational challenges for DOJ, although the department has made some progress in addressing these problems and has assisted in a rising number of criminal investigations. We provide a more detailed analysis of the status of the program below.

Revenues Far Below Expectations. Revenues to the DNA ID Fund have been consistently lower than expected, primarily due to problems with the collection of fees at the local level. In 2004-05, only $2 million was transferred to the DNA ID Fund despite estimates by the Department of Finance (DOF) that the state would receive $5 million. In 2005-06, the DNA ID Fund received a total of $8 million in revenues, far less than the $15.9 million assumed in the 2005-06 Budget Act. The 2006-07 Budget Act assumed $17 million in revenues for 2006-07, yet less than $4 million have been received so far in the first six months of the fiscal year.

Although it is not clear exactly what is causing revenue shortfalls, problems with county collections and the law regarding penalty assessments are seen as significant issues. There is evidence that counties have simply failed to collect the $1 penalty assessments. According to DOJ, in the 2005 calendar year a number of large counties did not collect any money from the $1 penalty, a clear sign of problems implementing the new penalty.

However, the complex interactions with other statutes affecting the collection of criminal penalties may also play a role. Currently, there are six different penalty assessments which are added to the base fines that judges may impose on criminals. These revenues are distributed by law to various state and county funds. When an individual does not fully pay the costs of the various fines, fees, and surcharges, a county is required to reimburse the various funds on a priority basis set in law. By law, the DNA ID Fund is low on the list of priorities. This means that in cases when an individual does not fully pay his or her total penalty costs, the DNA ID Fund is not likely to receive any revenues.

General Fund Costs Due to Revenue Shortfall. As Figure 2 shows, the Legislature made up for part of the shortfall in revenues by increasing General Fund support for the DNA program. For example, in 2005-06, DOJ would have required $9.8 million in support from the General Fund to offset the revenue shortfall. However, the Legislature provided $3.2 million for the DNA program. (In addition, the department’s $7 million loan was forgiven.) Because of reduced revenues for the program, the department was unable to process all of the DNA samples it received for processing from law enforcement agencies in a timely manner.

However, to help address these financial problems, the Legislature and Governor also enacted new legislation directing counties to collect an additional $1 penalty for every $10 in fines, penalties, and forfeitures, effective July 2006, to help finance the program. The revenues from this second dollar were allocated entirely to the state for the support of the Proposition 69 program. In anticipation of additional revenues, the 2006-07 budget appropriated $30.3 million for the DNA program—roughly $17 million from the DNA ID Fund and $13 million from the General Fund.

Although this additional penalty is expected to increase revenues to support expansion of the DNA program, the state would likely have to continue to provide a significant amount of funding for its operation from the General Fund if the program is to keep up with its ongoing workload. The department has estimated that DNA ID Fund revenues will reach $20 million in 2008-09 and remain constant thereafter, well below the $30 million that the department estimates would be needed to operate the program at current levels in 2008-09. Meanwhile, our analysis indicates that the number of incoming samples will continue to increase, particularly in 2009 when, as we discuss later in this analysis, all adults arrested for a felony will be required to provide DNA samples. If it chooses to provide sufficient resources for the DNA Program to process all of its incoming samples in a timely manner, the Legislature would probably have to provide the program an additional $10 million to $20 million in General Fund annually for every year in the near future.

Problems Recruiting and Retaining Criminalist Staff. Another factor contributing to the backlog of DNA workload is the difficulty that DOJ has encountered in hiring and retaining criminalists, the type of staff involved in all aspects of converting buccal swab samples into a DNA profile. Of the 74 positions authorized for the DNA program, 53 are criminalist positions. At the time this analysis was prepared, 21 of these positions (41 percent) remained vacant. In addition, only two of the eight criminalist manager and supervisor positions have been filled.

The department has cited a number of reasons for the high staff vacancy rates. Criminalists employed at the DNA lab must have a bachelor’s degree in biology or physical science and are required to have taken certain courses, such as genetics, to qualify for work for the DNA program. Yet, DOJ criminalists are paid much lower salaries than staff employed at local and private labs. For example, a report by the Bureau of State Audits found that in 2004-05 entry-level salaries for criminalists at local county DNA labs were up to 72 percent higher than salaries paid by DOJ. Also, because criminalists spend a significant amount of time on tasks such as data entry, their work is often viewed as tedious. In addition, because criminalists must handle DNA materials, which are considered evidence and confidential information, applicants for these jobs are subject to an extensive background check, including a criminal check, financial check, and drug test. It is likely that some individuals have accepted other jobs by the time their background checks are completed and they can be offered a position at DOJ.

The high vacancy and turnover rates for criminalists have made it difficult to efficiently operate the DNA lab. The department indicates that it can take up to six months to fully train a criminalist. High turnover has forced the department to spend a significant amount of program resources on training on an ongoing basis.

In response to these problems, DOJ has redirected the salary savings from the many vacant positions to pay overtime and provide additional pay incentives to the criminalists on staff. This approach has helped to increase the productivity of the DNA lab. However, the heavy use of overtime could eventually lead to “burnout” of staff members and higher turnover, thus further increasing the vacancy rate for criminalists.

The DOJ Making Progress on Backlog. In addition to the fiscal issues faced by the DNA program, several other operational issues led to the creation of a significant backlog of 296,000 samples that existed by the end of 2005-06. For example, the CDCR collected samples from prison inmates at a much faster rate than anticipated by DOJ, providing a combined 131,000 samples to DOJ in 2004-05 and 2005-06. Although the total number of samples submitted by CDCR was not much higher than expected, they were received at a much earlier date than anticipated. In addition, local law enforcement agencies provided an additional 312,000 samples in the first two fiscal years. Because of the large workload increase, DOJ was not able to process the samples in a timely manner.

The program was also slowed by the shift from blood samples to buccal swabs samples, which required changes in the DNA lab’s techniques for analyzing samples and creating DNA profiles. Because of these problems, as well as the significant revenue shortfalls, samples have not been analyzed within the six-month timeline provided under Proposition 69.

However, DOJ has been taking steps to reduce the backlog by improving its productivity, such as through the use of improved equipment and software and the implementation of a more efficient procedure for analyzing DNA samples. By the end of 2006-07, the department projects that the backlog of DNA samples will be reduced to about 171,000, as shown in Figure 3. DOJ officials expect to further reduce the backlog during the following two years.

As Proposition 69 requires, DOJ has also contracted with three private laboratories that have analyzed a total of 210,000 samples. This represents 31 percent of all samples received by the department since 2004-05.

Increase in Workload Looms in 2009. As noted earlier, beginning in the 2009 calendar year, Proposition 69 requires that all adults arrested for a felony offense be required to have their DNA profiles placed on the state’s DNA data bank. This will significantly increase the number of samples that will be collected in 2009 and 2010. However, it is now uncertain whether requiring all adult felony arrestees to submit samples will lead to a permanent increase in workload. Since many felony arrestees have either been previously convicted of or arrested for a felony, our analysis indicates that it is likely that, in future years, an increasing number of arrestees will have already provided DNA samples due to a previous arrest or incarceration. Over time, therefore, the number of incoming samples should be much lower than those coming in 2009. However, given the difficulty DOJ has been experiencing in hiring staff, we expect that increases in incoming samples in 2009 will again lead to increases in the backlog.

DNA Profiles Have Led to “Cold Hits.” Despite the revenue shortfalls and backlogs experienced by the department, the DNA program has been successful in obtaining cold hits through its data bank. Local law enforcement with DNA evidence from an unsolved crime can scan the DNA data bank to look for potential matches. When a match is found, it is referred to as a cold hit. Since the establishment of the DNA data bank, DOJ has had 3,566 cold hits, which have aided various criminal investigations.

Issues for Legislative Consideration

In light of the significant problems faced so far by DOJ in implementing the Proposition 69 DNA program, the Legislature may wish to consider some key issues pertaining to the operation of this program in the future. We outline these matters below.

Improving Revenue Collections. The Legislature may wish to consider how it could increase the amount of revenues received by the DNA ID Fund for the support of this program. Specifically, should DNA ID Fund revenues continue to fall short, the Joint Legislative Audit Committee may wish to consider requesting that the Bureau of State Audits investigate the collection and management of the various penalty assessment funds at the county level. Such an investigation could help to determine the cause of this problem and ensure that all revenues owed to the state are being collected and transferred to the DNA ID Fund.

In the past, we have also proposed that local law enforcement agencies pay fees to offset part of the costs of services, such as these, provided by DOJ’s crime laboratories. For more information on this option, please see our discussion of the Department of Justice budget in our Analysis of the 1999-00 Budget Bill.

However, we do not recommend at this time that the Legislature enact additional criminal penalties, such as the $1 additional charge established as of this year, as a strategy to increase revenues. Given the numerous penalties already added to court fines, additional penalties could reduce the ability of the individuals subject to such charges to pay them, and possibly result in a net reduction of revenues available to the fund. In addition, an increase in the number of individuals who were unable to pay the fines could reduce revenues for the other state and county funds that depend upon revenues from criminal penalties.

Providing General Fund Support. As discussed earlier, our analysis indicates that the Proposition 69 DNA program is likely to require additional General Fund support on an ongoing basis, particularly during 2008-09 and 2009-10. Given the limited resources available to the state, the Legislature must decide whether providing $10 million to $20 million in General Fund support to fund this program is a priority and preferable to providing additional resources to other criminal justice programs (as well as other state programs) that could also benefit from increased funding.

Staff Recruitment and Retention. In order to address the recruitment and retention issues of the DNA Program, and to be prepared for the expected increase in samples coming in 2009, the Legislature may wish to consider establishing additional incentives to attract and retain the criminalist staff members who are critical to its implementation. Conversely, the Legislature could seek to address the issue by requiring the department to further automate the process of analyzing and uploading DNA profiles on the data bank, thereby reducing the number of staff who would otherwise be needed for the program overall.

The administration proposes several changes to the DNA Program that we discuss below.

Proposition 69 Program: The Governor’s 2007-08 Budget Plan

The Governor’s proposal for the DNA Program relies on unrealistic revenue estimates and would inappropriately delegate the Legislature’s authority over General Fund resources. We recommend that the Legislature appropriate in the budget the amount of General Fund dollars it is willing to provide to the DNA Program given other competing priorities and strike proposed budget bill language that would inappropriately delegate the authority to increase General Fund spending for the program to the Department of Finance.

Budget Proposal

No General Fund Dollars Provided. The Governor’s budget provides no General Fund support for the DNA Program in 2007-08. Instead, the $32 million estimated to be needed to support the program would be provided entirely from the DNA ID Fund. In so doing, the administration budget plan assumes that DNA ID fund revenues will be significantly higher than previously anticipated for both the current year and the budget year.

Language Authorizing General Fund Spending. The proposed 2007-08 Budget Bill contains statutory language granting the DOF the authority to provide additional General Fund revenues to the DNA Program if penalty revenues fall short of the $32 million appropriated in the budget. Also, complementary language would allow DOF to increase appropriation authority for the DNA ID Fund (and reduce General Fund spending by the same magnitude) should revenues be higher than expected. The language in the 2007-08 Budget Bill provides for advance notice to the Legislature before either of these actions could occur.

New DNA Lab Proposed. The Governor also proposes to build a new facility in the Sacramento area that would replace the existing DNA lab in Richmond and DOJ’s other Sacramento facilities. According to the administration, more details on this proposal will be provided in March as part of the Five-Year Infrastructure Plan.

DNA Live Scan Project. The Governor’s budget also proposes to appropriate $2 million from the DNA ID Fund for the implementation of the DNA Live Scan Automation project, which would provide additional resources to streamline the process of inputting offender information into the DNA database. The DNA Live Scan would allow agencies to electronically submit offender information and thumbprints so that staff at the DNA lab would no longer need to spend time on basic data entry. This would allow DOJ to redirect existing staff to other tasks and speed up the process of analyzing samples. The department has projected that this new technology could be fully operational by July 2008.

Proposal Has Unrealistic Estimates and Delegates Legislative Authority

We have identified two major concerns with the administration’s 2007-08 budget proposal, which we discuss below.

Revenue Estimates Unrealistic. The administration budget plan assumes that the existing criminal penalties would generate $28 million in revenues to the DNA ID Fund in the budget year. We believe this estimate is unrealistically high for several reasons. First, DOJ, as recently as November, estimated revenues of only $18 million for the fund for the budget year. Moreover, according to DOJ, revenues to the DNA ID Fund in the first six months of 2006-07 have been significantly lower than expected. The state has received $3.5 million from the first dollar penalty, but only $234,000 in revenue from the second dollar penalty, which was expected to provide the majority of revenue to the DNA ID Fund. Given these below-average revenues, it appears risky at this time to assume, as does the Governor’s budget plan, that annual revenues will be $10 million above previous estimates.

Budget Bill Language Inappropriately Delegates Legislative Authority. We have concerns about the proposed Budget Bill language that would in effect delegate the Legislature’s authority to appropriate state funds to the administration. This language means that, if the amount budgeted for DOJ’s Proposition 69 programs from penalty revenues do prove to be unrealistic, that the administration can proceed during the budget year to file notice with the Legislature and then transfer additional General Fund for the support of the program.

We acknowledge that there are appropriate circumstances, such as emergencies, in which the Legislature has chosen to delegate authority to the administration to undertake spending not anticipated in the budget plan. However, we believe these circumstances are much different. In this case, the authority to spend state funds would be delegated for a discretionary program that the state is not legally obligated to support from the General Fund. In addition, given the unrealistic estimates of revenues assumed in the 2007-08 budget plan, the expenditures from the General Fund would be highly likely, not an unanticipated event.

We do not have concerns about the proposed Budget Bill language allowing a reduction in General Fund spending in the event that unexpected penalty revenues would provide additional protection for the General Fund. Under the Governor’s budget plan, however, this language is essentially meaningless, in that the administration proposes to initially budget no money from the General Fund.

Analyst’s Recommendations

Funding the DNA Program. The key question for the Legislature to decide, in our view, is the level of support it wishes to provide for the support of Proposition 69 programs, and whether it is willing to subsidize the revenues from criminal penalties that will be available with additional General Fund resources for these law enforcement activities. In making this judgment, we believe it would be more appropriate and fiscally sound to provide funding for DNA program using more realistic penalty revenue estimates than those assumed in the DOJ budget proposal.

We estimate that, if the DNA program were to operate at its current level of service, the Legislature would have to augment the budget plan by $14 million or more from the General Fund to supplement the revenues we believe are likely to be available in 2007-08 from criminal penalties. Whether this program is a high priority that warrants this commitment of General Fund support is a decision for the Legislature to make. As noted earlier, the Legislature is not required under the terms of Proposition 69 to provide any General Fund support for this program. As we have also noted, other approaches are available, such as fees on counties and audits of county collections of penalties, to obtain additional non-General Fund support for these activities.

Budget Bill Provisions. Once it determines the level of General Fund support it is willing to provide for the DNA program, we recommend that the Legislature strike the budget bill language that authorizes DOF to provide additional General Fund revenues for support if DNA ID revenues are lower than anticipated. The administration could seek separate deficiency funding legislation if it wished to obtain additional funding for the program during the budget year. If such additional funding were not provided, the DOJ would be obligated to operate the program within the resources it was budgeted—just as is the case for most state programs.

DNA Lab. We will provide our recommendations regarding the proposal for a new DNA lab after we have had an opportunity to review the administration’s proposal this spring.

Administrative Budget Issues

Reducing Pay Differentials Could Create Recruitment and Cost Issues

We recommend rejection of a proposal to narrow the pay differential between the high-level attorneys and supervisors at the Department of Justice (DOJ) from the existing 5 percent to 2.5 percent. A reduced pay differential could make it more difficult for the state to recruit and retain supervisors and would set a bad precedent that could eventually result in expensive additional pay raises for other state attorneys. (Reduce 0820-001-0001 by $951,000 and various other DOJ budget items by a combined total of $755,000.)

Current Attorney-Supervisor Pay Differential Is 5 percent. The DOJ currently employs 444 attorneys under the Deputy Attorney General IV (DAG IV) classification. The DAG IVs are DOJ’s most experienced litigators, with a minimum of ten years of experience. On July 1, 2006, DAG IV attorneys on average received pay increases of about 9 percent, placing their base salary range from $8,486 to $10,477 per month. The DAG IV attorneys are represented by a labor organization for state attorneys whose memorandum of understanding is scheduled to expire on June 30, 2007, unless a new labor agreement is reached with the state.

As part of the 2006-07 Budget Act, the Legislature approved a request on behalf of DOJ to create a new Supervising Deputy Attorney General (SDAG) classification to serve as supervisors to DAG IV attorneys. To establish an appropriate ratio of supervisors to attorneys, the department converted 100 DAG IV positions and 30 DAG III positions to the new SDAG classification. In order to provide an incentive for attorneys to become supervisors, the department requested that SDAGs be compensated at a rate that provides a 5 percent pay differential above the salary received by DAG IVs. The Legislature approved this request to increase the range of the base salary of SDAGs to be from $8,909 to $11,002 per month.

Proposal Counter to State Policy and Could Further Increase State Costs. The Governor’s budget proposes to increase pay for DAG IVs in order to reduce the pay differential between DAG IVs and SDAGs to 2.5 percent. The administration claims that this is necessary to provide an incentive for the department’s most experienced litigators to remain attorneys rather than become supervisors. The budget plan provides $1.7 million (including $951,000 from the General Fund) for DOJ to offset the cost of the proposed increase in DAG IV salaries.

However, the proposed 2.5 percent differential runs counter to Department of Personnel Administration (DPA) policy under which base pay levels for supervisors are generally at least 5 percent above those of the senior rank-and-file employees they supervise. These pay differentials exist in part to provide an incentive for qualified individuals to apply for supervisory positions. We believe the basis of the DPA policy is sound. Narrowing the pay differential between rank-and-file employees and supervisors from 5 percent to 2.5 percent would result in an annual salary difference of $3,000. We do not believe that such a salary difference would provide a sufficient incentive for rank-and-file employees to take on supervisory roles that require additional work and responsibility. In addition, providing this pay increase for DAG IV attorneys could provide an incentive for attorneys in other state departments to apply for positions in DOJ.

The adoption of this proposal would also set a bad precedent that could eventually require the state to increase pay for senior attorneys and their supervisors across all state agencies. This could create additional costs in the millions of dollars above and beyond the $1.7 million requested in this proposal.

Pay Raises Should Occur Through Collective Bargaining Process. The Ralph C. Dills Act establishes the procedures for collective bargaining with units representing state civil service personnel. Offers of salary increases to address recruitment and retention and other problems can be discussed at the bargaining table, where the costs of these offers might be offset by financial or other concessions from employee representatives. Under the Dills Act’s structure, the bargaining table is the most appropriate place to settle compensation issues. Given that the memorandum of understanding for attorney salaries is set to expire on June 30, 2007, we believe it would be more appropriate to consider the pay raises proposed for DAG IVs through the normal collective bargaining process.

Analyst’s Recommendation. We recommend the Legislature reject the proposal to narrow the difference in pay between DAG IVs and their supervisors because it would reduce the incentive for qualified individuals to apply for supervisory positions and could compel the state to provide pay raises for senior attorneys in other state agencies. It also runs contrary to legislative actions in 2006 to approve this pay differential. Moreover, we believe any such pay raises should be established through the give-and-take of the collective bargaining process.

Correctional Writs and Appeals Workload Overstated

We recommend a reduction in the proposed increase in staffing for federal habeas corpus litigation. Based on our review, the department will need fewer attorneys than requested to address a projected increase in workload. (Reduce Item 0820-001-0001 by $1.4 million.)

Background. The DOJ’s Correctional Writs and Appeals section represents CDCR in court proceedings related to the confinement of state prison inmates. The section primarily represents CDCR in state and federal habeas corpus cases filed by prison inmates. These cases typically include challenges to the denial of parole to “lifer” inmates as well as issues related to parole revocation and conditions of confinement within prisons. The department reports that it has experienced significant increases in habeas corpus workload as a result of the increase in prison inmates and a ruling issued by the U.S. Ninth Circuit Court of Appeals (Rosas v. Neilsen) which changed court procedures to make it easier for inmates to file federal habeas corpus appeals.

Fewer Attorneys Needed. Citing an increase in workload, the department requests $4.8 million in General Fund support and 31 positions (14 attorneys and the remainder clerical and paralegal staff) for the Correctional Writs and Appeals section. This would provide the section with a total of 65 positions (including 41 attorneys) to address workload related to habeas corpus cases. However, based on our review of the estimated number of attorney hours required for federal habeas litigation, as well as the current number of attorneys working in the section, the department would only require an additional ten attorneys—four fewer than requested—and related staff to meet the expected workload from federal habeas corpus cases.

Analyst’s Recommendation. Based on our analysis of the budget request and the projected correctional habeas corpus workload, we recommend reduction of the proposal by nine positions (including four attorneys) for a total General Fund savings of $1.4 million.

Department of Mental Health Workload Estimate Could Change

We withhold recommendation on the proposal for a $517,000 increase in General Fund support for the Department of Justice to respond to statutory changes in state laws for the civil commitment of sexually violent predators (SVPs) because it is based on caseload estimates from the Department of Mental Health (DMH) which are subject to change. We recommend that the proposal be reevaluated when updated estimates of the number of additional SVP commitments are provided by DMH at the time of the May Revision.

Background. Chapter 337, Statutes of 2006 (SB 1128, Alquist), and Proposition 83 (titled “Jessica’s Law” by its proponents), an initiative approved by voters in the November 2006 statewide election, enacted a series of changes to state laws affecting sex offenders. Among other provisions, the new laws expanded the eligibility criteria for the civil commitment of certain sex offenders as SVPs to state mental hospitals operated by DMH.

Budget Proposal. The 2007-08 budget plan provides a $517,000 General Fund augmentation to address increased workload for DOJ expected to result from the implementation of Chapter 337. The proposal does not specifically request additional resources to address any additional workload resulting from implementation of Proposition 83. However, we note that requests for additional resources to implement both Chapter 337 and Proposition 83 are included in the DMH budget proposal for 2006-07 and 2007-08.

The DMH currently estimates a 25 percent increase in the number of SVPs housed in DMH facilities as a result of Chapter 337. Based on the DMH caseload projection, the DOJ budget request assumes a 25 percent increase in its workload related to SVPs who are held in state hospitals. Specifically, the DOJ represents DMH in court proceedings when SVPs (as well as other state hospital patients) file complaints with the courts related to their confinement. In anticipation of the projected increase in SVPs, the department has requested 1.3 additional attorney positions to address an anticipated increase in complaints filed by DMH patients.

LAO Concerns. Because Chapter 337 took effect only recently, the number of additional SVP commitments that will result from these changes in state SVP laws are unknown. The DMH will provide revised estimates of the number of SVP commitments at the time of the May Revision, based in part on the state’s early caseload impacts from the new SVP laws. Thus, additional information will be available later in the budget process to evaluate the resources DOJ would need based upon revised projections about the potential increase in the DMH state hospital population.

Analyst’s Recommendation. We withhold recommendation on this request at this time because SVP caseload estimates are subject to change, potentially affecting the resources that DOJ might need as a result of an increased population in state mental hospitals. Accordingly, we recommend that this proposal for additional funding for DOJ be reevaluated at the May Revision when new DMH estimates on SVP caseload will be available.

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