QUESTION
You asked us to provide an update on California’s law permitting civil confinement
of sexually dangerous persons beyond the completion of a criminal sentence.
SHORT ANSWER
California law permits the civil confinement of individuals identified as sexually
violent predators (SVPs) beyond the completion of a criminal sentence. Accordingly,
Section 202(x)(1)(A)(iii) of the Social Security Act (Act) may be applied to suspend
the benefits of SVPs in California who otherwise meet the criteria of the Act and
the corresponding POMS sections. See Act § 202 (x)(1)(A)(iii); POMS GN 02607.340, GN 02607.350, & GN 02607.360.
BACKGROUND
Section 202(x)(1)(A)(iii) of the Social Security Act provides that no title II monthly
benefits shall be paid to an individual who “immediately upon completion of confinement
as described in clause (i) [relating to imprisonment] pursuant to conviction of a
criminal offense an element of which is sexual activity, is confined by court order
in an institution at public expense pursuant to a finding that the individual is a
sexually dangerous person or a sexual predator or a similar finding.” Act § 202 (x)(1)(A)(iii).
[1] Such an individual shall be treated as remaining so confined until (1) he or she
is released from the care and supervision of the institution, and (2) such institution
ceases to meet the individual’s basic living needs. Act § 202(x)(1)(B)(ii).
Section 202(x)(3)(A) of the Act requires federal and state agencies (or political
subdivisions thereof) to make the names, social security numbers, dates of birth,
confinement commencement dates, and any other identifying information of confined
individuals available to the Commissioner of Social Security if the confinement is
under the jurisdiction of such agency, and the Commissioner makes a written request
because he requires such information to carry out the provisions of Section 202(x)(1)(A).
SSA will enforce the non-payment provision only in those states that have formal laws
expressly providing for courtordered confinement of sexually dangerous individuals.
See POMS GN 02607.360.A.1; see also GN PHI 02607.360.A.3 (explaining that the state must have enabling legislation providing
for the continued confinement of sexually dangerous persons upon completion of their
sentence).
DISCUSSION
California’s Sexually Violent Predator Act (SVPA) allows for civil confinement of
sexually dangerous persons upon completion of a criminal sentence. Cal. Welf. & Inst.
Code § 6600, et.seq. [2] [3] Originally enacted in 1996, it was most recently amended in 2012.[4] The SVPA defines a sexually violent predator as: “a person who has been convicted
of a sexually violent offense against one 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 criminal behavior.” Cal. Welf. & Inst. Code § 6600(a). This definition is
consistent with the POMS definition of sexually dangerous persons. GN 02607.350A(1)(a);
see also GN 02607.340A(1)(a) (applying same definitions for confinements between December
17, 2009 through March 31, 2000).
As contemplated by POMS GN 02607.350A(1)(a), California requires a complex medical
and legal evaluation prior to the designation of an individual as an SVP. Under the
2012 version of the law, at least six months prior to release from prison custody,
the California Department of Corrections (CDCR) would refer inmates who have committed
sexually violent offenses to the Department of Mental Health (Department) for an evaluation.
Cal. Welf. & Inst. Code § 6601(a)(1). The Department would obtain independent evaluations
from two mental health clinicians (psychiatrists and/or psychologists). Cal. Welf.
& Inst. Code § 6601(c) & (d). If both clinicians determined that the inmate had a
mental disorder that made him likely to reoffend without appropriate treatment or
custody, [5] the Department would make a recommendation for SVP commitment to the county in which
the inmate was convicted of the qualifying offense. Cal. Welf. & Inst. § 6601(d).
If the two clinicians performing the evaluation do not agree whether the inmate meets
the SVP criteria, the Director of Mental Health shall arrange for further examination
by two independent professionals. Cal. Welf. & Inst. Code § 6601(e). In the event
that additional evaluations are needed, an SVP petition shall only be filed if both
independent evaluators agree that the inmate meets the SVP criteria. Cal. Welf. &
Inst. Code § 6601(f). In 2008, the law was amended, in part by the California legislature,
and in part by ballot initiative, to create the Sex Offender Commitment Program (SOCP)
within the State Department of Mental Health to implement the provisions of the sexually
violent predator civil commitment program (beginning with Section 6600). Cal. Welf.
& Inst. Code 6601(a). In 2012, the law was amended to further require that the above-mentioned
mental evaluations should be performed at least four months, but no sooner than 10
months prior to an inmate’s scheduled release from prison custody. The law was further
amended to provide that the Board of Parole Hearings may order an evaluation and,
upon a showing of good cause, determine that a person remain in custody no more than
45 days beyond the scheduled release date for a full SVP evaluation. Cal. Welf. &
Inst. Code § 6601.3(a).
Since January 1, 2010, the Department of Corrections and Rehabilitation and the State
Department of Mental Health is required to send the scores taken to the Department
of Justice Sex Offender Tracking Program no later than 30 days after the date of the
assessment. If the person is otherwise subject to parole, a finding that the petition
on its face supports a finding of probable cause to believe that the individual is
likely to engage in violent predatory criminal behavior upon his or her release, it
shall toll that person’s parole if that individual is determined to be an SVP. Cal.
Welf. & Inst. Code 6601(k).
Either the county counsel or the district attorney may file a superior court petition
seeking civil commitment as an SVP. Cal. Welf. & Inst. Code § 6601(i). The superior
court determines whether there is sufficient probable cause to hold a trial on the
SVP question. Cal. Welf. & Inst. Code § 6602(a). The individual remains in custody
pending the completion of the probable cause hearing and through the conclusion of
the trial. Id. In the absence of probable cause, the court must dismiss the petition, and the individual
may be released to parole.
To be convicted as an SVP, the factfinder (judge or jury) must make a finding beyond
a reasonable doubt. Cal. Welf. & Inst. Code § 6604; see also Cal. Welf. & Inst. Code § 6603(d) & (f). A person found to be an SVP is committed
to Department custody for an indeterminate term for appropriate treatment and confinement
in a secure facility designated by the Director of Mental Health. Cal. Welf. & Inst.
Code § 6604. [6] The SVP requirements of court-ordered, indefinite confinement in a public institution
following adjudication as an SVP is exactly the type of procedure set out in POMS
GN 02607.350A(1)(a).
In California, both the Coalinga State Hospital and Atascadero State Hospital have
admitted SVPs. Their addresses are:
Coalinga State Hospital
Physical Address: 24511
West Jayne Avenue
Mailing Address: P.O. Box 5000
Coalinga, CA 93210-5000
Facility Identification Code (FID): ~
Atascadero State Hospital
Physical Address: 10333 El Camino Real, Atascadero, CA 93422
Mailing Address: P.O. Box 7001, Atascadero, CA 93423-7001
Facility Identification Code (FID): ~
We note that California law neither explicitly requires nor prohibits the Department
from disclosing the identity of its patients as SVPs to SSA. [7] However, the Act requires a state agency to disclose an SVP’s name and social security
account number status to the Commissioner on written request in order to carry out
the SVP non-payment provisions. Act § 202 (x)(3)(A). Thus, the POMS procedures for
obtaining identifying information on suspected SVPs in California should be followed
when contacting these institutions. See POMS GN 02607.360.
CONCLUSION
Section 202(x)(1)(A)(iii) of the Act and the corresponding POMS sections may be applied
to suspend the benefits or payments of individuals judged to be SVPs under California’s
Sexually Violent Predator Act where, immediately upon completion of confinement, the
SVP is confined by court order in an institution at public expense.[8] Such an individual shall be treated as remaining so confined until (1) he or she
is released from the care and supervision of the institution, and (2) such institution
ceases to meet the individual’s basic living needs. Act § 202(x)(1)(B)(ii).