Report 2010-116 Summary - July 2011

Sex Offender Commitment Program: Streamlining the Process for Identifying Potential Sexually Violent Predators Would Reduce Unnecessary or Duplicative Work

HIGHLIGHTS

Our review of the state's Sex Offender Commitment Program (program) between January 2005 and September 2010 revealed the following:

RESULTS IN BRIEF

The Legislature designed the Sex Offender Commitment Program (program) to target a narrow subpopulation of sex offenders (offenders): those who represent the highest risk to public safety because of mental disorders. However, between 2007 and 2010, very few offenders whom the Department of Mental Health (Mental Health) evaluated as potential sexually violent predators (SVPs) met the criteria necessary for commitment. As a result, the courts ultimately committed only a small percentage as SVPs even though Mental Health received more than 6,000 referrals in each of these years from the Department of Corrections and Rehabilitation (Corrections). Our analysis suggests that Corrections' and Mental Health's processes for identifying and evaluating SVPs are not as efficient as they could be and at times have resulted in the State performing unnecessary work.

The current inefficiencies in the program's process for evaluating potential SVPs are in part the result of Corrections' interpretation of state law. The inefficiencies were compounded by recent changes made by Jessica's Law. Specifically, when California voters passed Jessica's Law (Proposition 83) in 2006, they added more crimes to the list of sexually violent offenses and reduced the number of victims considered for this designation from two to one; therefore, many more offenders became potentially eligible for commitment to the program. Corrections, in consultation with its Board of Parole Hearings (Parole Board), referred all offenders who had committed sexually violent offenses to Mental Health for evaluation as potential SVPs without first considering other factors, as required by law. Consequently, the number of referrals Corrections made to Mental Health increased dramatically, from 1,850 in 2006 to 8,871 in 2007, the first full year that Jessica's Law was effective.

However, Corrections' referral of every offender who has committed a sexually violent crime was not the intent of state law, which specifically mandates that Corrections determine when making referrals whether offenders' crimes were predatory and whether the offenders meet other criteria before referring them as potential SVPs. We believe that if Corrections screened offenders more closely before referring them to Mental Health, the number of Corrections' referrals might drop significantly. For example, in our review, we noted several instances in which Corrections referred offenders whose crimes were not predatory under the law's definition. Further, 45 percent of Corrections' referrals since 2005 involved offenders whom Mental Health had previously screened or evaluated and had found not to meet the criteria to recommend commitment as SVPs (SVP criteria). Although state law does not specifically require Corrections to consider the outcomes of previous screenings or evaluations when making referrals, the law directs Corrections to refer only those offenders it deems likely to be SVPs, and we believe that it is logical and legal for Corrections to take into account Mental Health's previous conclusions about specific offenders when reaching such determinations. Additionally, Corrections failed to refer offenders to Mental Health at least six months before their scheduled release dates, as required by state law. These late referrals shortened the time available for Mental Health to perform reviews and schedule evaluations.

To handle the high number of offenders referred by Corrections, Mental Health put into place processes that enable it to determine whether offenders are possible SVPs before scheduling full evaluations. We believe that these processes are appropriate given that Corrections refers offenders without first determining whether their crimes were predatory and whether the offenders are likely to be SVPs. Specifically, when Mental Health receives a referral from Corrections, it first conducts an administrative review to ensure that it has all of the information necessary to make a determination. It then conducts a clinical screening—a file review by a psychologist—to rule out any offender who is not likely to meet SVP criteria and thus does not warrant a full evaluation. Between February 2008 and June 2010, Mental Health also used administrative reviews to identify offenders whom it had previously screened or evaluated and whose new offenses or violations were unlikely to change the likelihood that they might be SVPs. Mental Health rescinded this policy in June 2010. We also noted that for a short time, Corrections had a similar policy that it also rescinded. Nonetheless, we believe Mental Health should work with Corrections to reduce unnecessary referrals.

After completing the administrative reviews and clinical screenings, Mental Health conducts full evaluations of potential SVPs, a process that involves face-to-face interviews unless offenders decline to participate. Although we found that in general Mental Health's evaluation process appears to have been effective, we noted that for a time it did not always assign to cases the number of evaluators that state law requires. After the passage of Jessica's Law, Mental Health relied on the opinion of one evaluator rather than two when concluding that 161 offenders did not meet SVP criteria. Mental Health's program manager stated that Mental Health temporarily followed this practice of using just one evaluator because it did not have adequate staff to meet its increased workload. She also indicated that Corrections referred 98 of the offenders again, and Mental Health determined during subsequent screenings and evaluations that they did not meet SVP criteria.

A potential challenge that Mental Health faces in meeting its increased workload involves the mental health care professionals who perform its evaluations. Mental Health used between 46 and 77 contractors each year from 2005 through 2010 to perform evaluations and some clinical screenings. However, when the state law that expressly permits Mental Health to use contractors expires in 2012, Mental Health will need to justify its continued use of contractors, which the State Personnel Board has ruled against in the past.1 According to a program manager, Mental Health primarily uses contracted evaluators to perform the evaluations because the staff psychologists are still completing the necessary experience and training. Mental Health stated that it has had difficulty attracting qualified evaluators to state employee positions because the compensation is not competitive for this specialized area of forensic mental health clinical work. To remedy the situation, Mental Health is working to establish a new position that will provide more competitive compensation. If Mental Health has not hired sufficient staff by 2012, the program manager stated that it plans to propose a legislative amendment to extend the authority to use contractors.

Finally, Mental Health did not submit to the Legislature required reports about the department's efforts to hire staff to evaluate offenders and the impact of Jessica's Law on the program. Mental Health did not provide us with a timeline indicating the expected dates for completing these reports, nor did the department explain why it had not submitted them. Without the reports, the Legislature may not have the information necessary for it to provide oversight and make informed decisions.

RECOMMENDATIONS

To increase efficiency, Corrections should not make unnecessary referrals to Mental Health. Corrections and Mental Health should jointly revise the referral process to adhere more closely to the law's intent. For example, Corrections should better leverage the time and work it already conducts by including the following steps in its referral process:

To allow Mental Health sufficient time to complete its screenings and evaluations, Corrections should improve the timeliness of its referrals. If it does not achieve a reduction in referrals from implementing the previous recommendation, Corrections should begin the referral process earlier before each offender's scheduled release date in order to meet its six-month statutory deadline.

To make certain that it will have enough qualified staff to perform evaluations, Mental Health should continue its efforts to obtain approval for a new position classification for evaluators. If the State Personnel Board approves the new classification, Mental Health should take steps to recruit qualified individuals as quickly as possible.

To ensure that the Legislature can provide effective oversight of the program, Mental Health should complete and submit as soon as possible its reports to the Legislature about Mental Health's efforts to hire state employees to conduct evaluations and the impact of Jessica's Law on the program.

AGENCY COMMENTS

Mental Health indicated that it is taking actions that are responsive to each of our recommendations. For example, Mental Health stated it is already working with Corrections to streamline the referral process to eliminate duplicate effort and increase efficiency.

Corrections indicated that it agrees that improvements can be made in streamlining the referral process and that it has already implemented steps to improve the timeliness of its referrals to Mental Health. Corrections stated that it would address the specific recommendations in its corrective action plan at 60-day, six-month, and one-year intervals.

1 State law requires Mental Health to use contractors for third and fourth evaluations when the first two evaluators disagree. The change of law in 2012 will not affect Mental Health's use of contractors for this purpose.