September 2, 2005
Dear Attorney General Lockyer:
Pursuant to Elections Code Section 9005, we have reviewed the proposed statutory initiative cited as the “Sexual Predator Punishment and Control Act: Jessica’s Law” (File No. SA2005RF0092).
The proposed initiative amends current law related to sex offenses. The measure would (1) increase penalties for some sex offenses, (2) require certain sex offenders to wear global positioning system (GPS) devices for life after release from prison, (3) limit where registered sex offenders can live, and (4) make more offenders subject to commitment to state mental hospitals as Sexually Violent Predators (SVPs). Each of these changes is described in more detail below.
Increase Penalties for Sex Offenses. Current law defines sex-related crimes and specifies the penalties for such offenses. This measure increases the penalties for specified sex offenses. It does this in several ways. In some cases, it broadens the definition of what constitutes certain sex offenses. In other cases, it increases existing penalties for specified sex offenses. In addition, the measure prohibits probation in lieu of prison for some sex offenses, eliminates the ability of some inmates convicted of certain sex offenses to earn early release credits, and extends parole for specified sex offenders. Each of these changes would result in longer prison and parole terms for the affected offenders. This measure would also impose additional fees (through an increase in an existing court-imposed fee and a new fee for parolees) for offenders who are required to register as sex offenders.
Require GPS Devices. Current law requires certain convicted sex offenders to register with local law enforcement officials. Under this measure, all individuals who have been convicted and sent to prison for the commission of, or an attempt to commit, a felony sex offense that requires registration would be monitored by GPS devices for life. The Department of Corrections and Rehabilitation (CDCR) would be authorized to collect fees from affected sex offenders for the costs of GPS monitoring.
Limit Where Registered Sex Offenders May Live. Current law bars anyone convicted of specified sex offenses against a child from residing within one-quarter mile of an elementary or middle school while on parole. This measure would broaden this prohibition to bar any person required to register as a sex offender from living within 2,000 feet (about four-tenths of a mile) of any school or park. In addition, the measure authorizes local governments to further limit these residency restrictions.
Changes in SVP Laws. Under current law, an SVP is defined as “a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent behavior.” Certain inmates who are completing their prison sentences are referred by CDCR to the Department of Mental Health (DMH) for screening and psychiatric evaluation to determine whether they meet the criteria for an SVP. Those offenders who meet the criteria are referred to district attorneys, who determine whether to pursue their commitment by the courts in a civil proceeding as an SVP. Offenders subject to SVP proceedings are often represented by public defenders. While these court proceedings are pending, an offender may be in prison. However, if his prison sentence has been completed, he may be housed either in a county jail or in a state mental hospital. Offenders designated as an SVP by the courts are committed to a state mental hospital for up to two years. An offender can be recommitted by the courts in subsequent court proceedings.
This measure would generally make more sex offenders eligible for an SVP commitment by (1) reducing from two to one the number of prior victims of sexually violent crimes needed to qualify as an offender for an SVP commitment, and (2) making additional prior offenses, such as certain crimes committed by a person while a juvenile, “countable” for purposes of an SVP commitment. Also, SVPs would receive an indeterminate commitment to a state mental hospital from a court rather than the renewable two-year commitment allowed for under existing law. In addition, the measure would change the standard that courts would consider for release of SVPs from a state mental hospital.
This measure would have a number of significant fiscal effects on both state and county governments. The major fiscal effects are discussed below.
Net Prison Operating and Capital Outlay Costs. Several of this measure’s provisions would likely result in a significant, though unknown, increase in prison operating costs due to increased prison population. In particular, the measure’s provisions that increase sentences for sex offenders would result in some sex offenders being sentenced to and remaining in prison for longer periods, resulting in a greater prison population over time. In addition, the provisions requiring some parolees and other registered sex offenders to wear GPS devices could result in an increase in the number of offenders who are identified as (1) violating the conditions of their parole and therefore are returned to prison or (2) committing new crimes. An increase in parolee revocations would also result in an increase in revocation hearing workload. In addition, it is possible that in the longer term this measure could result in unknown, but potentially significant, additional capital outlay costs to accommodate the increase in the inmate population.
There could be some unknown, but potentially significant, offsetting savings in prison and revocation hearing costs to the extent that the GPS requirement reduces the likelihood that sex offenders commit new crimes or violations of parole that return offenders to prison.
As noted above, this measure would likely result in significant costs and some unknown, but potentially significant, savings. These savings are not likely to offset the costs.
Net Parole and Monitoring Costs. The initiative’s provisions requiring GPS devices for some registered sex offenders for life—including additional parole staff to track offenders in the community—would likely result in an increase in state parole operating costs in the several tens of millions of dollars annually within a few years. These costs would grow to about $100 million annually after ten years, with costs continuing to increase significantly in subsequent years. Because the measure does not specify whether the state or local governments would be responsible for monitoring sex offenders who have been discharged from state parole supervision, it is unclear the degree to which local governments would bear some of these long-term costs.
Also, the state may incur initial unknown costs to relocate parolees who currently would be in violation of the 2,000 foot restriction around schools and parks. The initiative could also result in significant, though unknown, parole supervision costs for increases in the parole population. These costs would occur to the extent that the potential deterrent effect of GPS monitoring keeps more parolees under parole supervision instead of being returned to prison for new crimes or violations of parole.
On the other hand, the measure could result in reductions in the parole population—and, therefore, parole supervision savings—to the extent that (1) the longer prison sentences and changes to the SVP law result in fewer releases of sex offenders to parole, and (2) the GPS requirement results in more parolees being returned to prison for new crimes or violations of parole.
The measure would result in additional fee revenues that would partially offset the monitoring costs. Specifically, the measure’s provisions that (1) allow the department to collect fees from affected parolees and (2) require some of the increased court penalty fees to go to the department could provide as much as a few million dollars annually, depending in large part on offenders’ ability to pay these costs.
The net fiscal impact on parole operations is likely to be increased costs of several tens of millions of dollars annually for the first few years, probably reaching at least $100 million in about ten years, and increasing significantly thereafter.
State SVP Program Net Costs. This measure is likely to result in an increase in state operating costs in the tens of millions of dollars annually to (1) conduct preliminary screenings of additional sex offenders referred to DMH by CDCR for an SVP commitment, (2) complete full evaluations by psychiatrists or psychologists to ascertain the mental condition of criminal offenders being further considered for an SVP commitment, (3) provide court testimony in SVP commitment proceedings, and (4) reimburse counties for their costs for participation in the SVP commitment process.
This measure would result in increased commitments of SVPs to state mental hospitals. Also, some additional offenders who had completed their prison sentences would be held in state mental hospitals while the courts considered whether they should receive an SVP commitment. The resulting net costs to the state for operating these additional state mental hospital beds could eventually reach $100 million annually after a few years and would continue to grow significantly thereafter. In addition, this measure could result in one-time net capital outlay costs amounting to the low hundreds of millions of dollars for the construction of additional state hospital beds for SVPs.
All of these operating and capital outlay costs would be partly offset in the long term, to the extent that the longer prison sentences required by this measure for certain crimes eventually resulted in fewer SVP referrals and commitments to state mental hospitals. These offsetting savings are unknown but are likely to be significant in the long term. In addition, the state is likely to save on the costs of evaluations and court testimony related to recommitments because of the provisions in this measure that would impose indeterminate commitments for persons found to be SVPs. These state savings would probably be more than $1 million annually.
Taking both the costs and savings identified above into consideration, we believe that the SVP-related provisions of this measure could result in a net increase in state operating costs of at least $100 million after a few years. It is also likely to result in net capital outlay costs within a few years in the low hundreds of millions of dollars.
Fiscal Impact on Court Operations. An increase in the number of DMH referrals to county district attorneys would result in increased court costs related to the commitment process. However, the measure would potentially result in court savings by eliminating recommitment hearings, since it allows for indeterminate commitments instead of the two-year recommitment process currently in place.
In addition, various provisions of this measure could increase or decrease court workload to the extent that they affect the number of sex offenders who are tried for new crimes. For example, the GPS requirements could result in more offenders being caught and tried for new offenses, thereby increasing court workload. On the other hand, to the extent that sex offenders are serving longer terms in prison and mental hospitals because of this measure, those individuals would not be in the community able to commit and be prosecuted for new crimes. Given the potential for these factors to offset each other, the net fiscal impact of this measure on state court costs is indeterminable.
This measure would also likely have a significant, though unknown, net fiscal impact on county governments. Specifically, the provisions of this measure related to increased criminal penalties and GPS monitoring of sex offenders could result in additional savings and costs for counties. The provisions related to the SVP program could also result in county savings and costs, with these costs subsequently being reimbursed by the state.
Changes to Criminal Penalties and Supervision. The provisions of this measure that increase criminal penalties and require GPS monitoring of sex offenders could affect county jail, probation, district attorney, and public defender costs. Several provisions of this measure require stricter penalties for certain sex offenses, making it more likely that some offenders will be housed in state prisons and mental hospitals who would otherwise be in local jails or on probation under current law. To the extent that this occurs, local governments would likely experience some criminal justice system savings. The provisions regarding GPS tracking could affect local government expenditures due primarily to more offenders being prosecuted for crimes, thereby increasing costs.
SVP Program. The provisions of this measure related to the SVP program could increase county costs. The additional SVP commitment petitions that are likely to result from this measure would increase costs for district attorneys and public defenders to handle these civil cases. Also, county jail operating costs would increase to the extent that offenders who have court decisions pending on their SVP cases were held in local jail facilities instead of state mental hospitals. Counties would be reimbursed in full for all of these costs after they had filed and processed claims with the state.
Finally, the provisions in this measure allowing for the indeterminate commitment of SVPs instead of the current two-year recommitment process could reduce county costs for SVP commitment proceedings and the claims that counties would file with the state for reimbursement of such costs.
This measure would have the following net fiscal effects:
Unknown net costs to the state, within a few years, potentially in the low hundreds of millions of dollars annually due primarily to increased state prison, parole supervision, and mental health program costs. These costs would grow significantly in the long term.
Potential one-time state capital outlay costs, within a few years, in the low hundreds of millions of dollars for construction of additional state mental hospital and prison beds.
Unknown but potentially significant net operating costs or savings to counties for jail, probation supervision, district attorneys, and public defenders. The portion of costs related to changes in the Sexual Violent Predators program would be reimbursed by the state.