Illegal Monitoring and Recording of Cordless Phone Conversations in Civil Commitment "Hospitals"

[Ed: Please note, exceptions granted [below] to "correctional institutions" DO NOT include California's Department of Mental Health Coalinga State Hospital as this is NOT a correctional facility but a "civil detention facility" not for the purpose of punishing or "correcting" those locked-up within.

California Penal Code Section 632.6

http://law.onecle.com/california/penal/632.6.html

(a) Every person who, maliciously and without the consent of
all parties to the communication, intercepts, receives, or assists
in intercepting or receiving a communication transmitted between
cordless telephones as defined in subdivision (c), between any
cordless telephone and a landline telephone, or between a cordless
telephone and a cellular telephone shall be punished by a fine not
exceeding two thousand five hundred dollars ($2,500), by imprisonment
in the county jail not exceeding one year, or in the state prison,
or by both that fine and imprisonment. If the person has been
convicted previously of a violation of Section 631, 632, 632.5,
632.7, or 636, the person shall be punished by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment in the county jail
not exceeding one year, or in the state prison, or by both that fine
and imprisonment.
(b) This section shall not apply in any of the following
instances:
(1) To any public utility engaged in the business of providing
communications services and facilities, or to the officers,
employees, or agents thereof, where the acts otherwise prohibited are
for the purpose of construction, maintenance, conduct, or operation
of the services and facilities of the public utility.
(2) To the use of any instrument, equipment, facility, or service
furnished and used pursuant to the tariffs of the public utility.
(3) To any telephonic communications system used for communication
exclusively within a state, county, city and county, or city
correctional facility.
(c) As used in this section and in Section 635, "cordless
telephone" means a two-way low power communication system consisting
of two parts--a "base" unit which connects to the public switched
telephone network and a handset or "remote" unit--which are connected
by a radio link and authorized by the Federal Communications
Commission to operate in the frequency bandwidths reserved for
cordless telephones.

Interviews of offenders cut sharply

Critics say the change in policy may be illegal

The mental health experts who help decide whether convicted sex offenders are too dangerous to be released from custody used to rely heavily on face-to-face interviews.

They would travel to the prison, sit across a desk from the inmate in a tiny office and ask deeply personal questions about parents, siblings, puberty, sex. Many say it’s the best way to understand what makes someone tick.

Now the experts are more likely to sit at home and look at an inmate’s records on a computer screen.

That shift in policy may be illegal, critics say. It has prompted a local assemblyman to ask for a government audit and has raised concerns about the effectiveness of a program designed to protect the public from what are known formally as sexually violent predators.

“It’s gone from a very well-functioning program to just a disaster,” said a sex-offender evaluator who has worked on the program since its inception in 1996. She asked to remain anonymous for fear of losing state contracts. “The whole program is in disarray.”

Nancy Kincaid, a spokeswoman for the state Department of Mental Health, which runs the Sex Offender Commitment Program, denied that the new policy is illegal or that it has affected the quality of the evaluations. She said about 40 percent of the inmates refuse to be interviewed anyway.

Questions about the program are mounting in the wake of the slayings of Chelsea King, 17, of Poway and Amber Dubois, 14, of Escondido.

John Albert Gardner III, 30, a convicted sex offender, is charged with raping and killing Chelsea and is a focus of the Amber investigation. He has pleaded not guilty.

Critics say the commitment program is overwhelmed by Jessica’s Law, a crackdown on sex offenders approved by voters in November 2006.

The measure brought a tenfold increase in referrals from the prisons for psychological evaluations. But the number of offenders being sent to mental hospitals rather than being released has gone down, according to a data analysis by The San Diego Union-Tribune.

Now some people want to know why.

“The state’s management of sex offenders has failed countless children over the years. This has to stop,” said Assemblyman Nathan Fletcher, R-San Diego, whose district includes Chelsea’s family. He’s calling for a Bureau of State Audits investigation.

Fletcher’s concerns echo earlier complaints lodged by a San Francisco lawyer representing a group of private-contract psychologists and psychiatrists. They say they’re being pressured by program administrators to do cursory evaluations as a way to save money.

Commitment programs began in Washington state in 1990 and have spread to 20 states. California’s began in 1996.

The programs have always been controversial, flying in the face of America’s notion of itself as a land of liberty by locking up people for crimes they might commit.

The programs are expensive, too — roughly four times as costly as prison.

But they’re also popular with a public outraged by repeat offenders, and they’ve withstood legal challenges all the way to the U.S. Supreme Court.

California’s program requires prison officials to red-flag sexually violent inmates when they’re nearing parole and refer them to the Department of Mental Health for an evaluation by two psychologists or psychiatrists.

A traditional evaluation involves a review of case files, an interview with the inmate in prison and a written report — a process that typically takes 20 to 30 hours, evaluators say.

If the evaluators disagree about an inmate’s prognosis, two more clinicians are brought in. If they also disagree, the offender is paroled.

That, in essence, is what happened with Gardner, although under a different program for mentally disordered offenders. Evaluators disagreed about the threat he posed after his 2000 conviction for molesting a 13-year-old neighbor, and he was released.

Inmates found to be a continuing danger are sent to court in the county where they were last convicted.

A judge or jury decides whether an inmate should be hospitalized.

In 2004 through 2006, there were 2,956 referrals from the prison system for Department of Mental Health evaluations, an average of 82 per month. In that same period, there were 71 commitments.

Jessica’s Law widened the net in late 2006. Only one offense was required to qualify for screening, instead of the previous two. And the number of sex crimes that triggered review grew from nine to 35.

As a result, there were 22,976 referrals in 2007 through 2009, an average of 638 per month. During those three years, there were 59 commitments.

Despite the huge increase in prison referrals, then, commitments have gone down. Why? The Union-Tribune data analysis shows that the rate of cases moved forward by prosecutors and judges has stayed the same, with less than 10 percent of cases rejected.

But the rate of rejection by the Department of Mental Health has gone up significantly.

Before Jessica’s Law, 62 percent of referrals were eliminated in an initial screening. Since then, it has been 79 percent.

Before Jessica’s Law, 81 percent of cases were rejected after the next step, a full evaluation including an interview. Since then, it has been 93 percent.

Kincaid said the rejections went up because many of the new referrals don’t have an underlying mental disorder and a propensity for sexual violence that would qualify them for commitment.

But critics say the program is weeding out more cases at the front end, both to better manage the increased workload and to save money.

The initial screening used to include just a check of whether the inmate had committed a qualifying crime. In 2007, deeper record reviews were added. They call for scrutiny of an inmate’s case files, but no face-to-face interviews, and generally take a few hours.

“We were told it was legal, and if we didn’t do it, some evaluations wouldn’t get done at all, and nobody wants that to happen,” the longtime evaluator said. “We figured it was better than nothing.”

Chris Johnson, the San Francisco lawyer who represents some evaluators in a potential whistle-blower lawsuit against the state, questions whether the change is legal.

He pointed to the state code that governs the program, which says that once a referral comes to the Department of Mental Health, two psychologists or psychiatrists are supposed to do a “full evaluation.” For most professionals, a full evaluation includes an interview, Johnson said.

But Kincaid referred to another code section that calls for a review by prison officials of an inmate’s “social, criminal and institutional history.” Because of its expertise, the Department of Mental Health does that, which is where the record reviews come in, she said.

Johnson said evaluators who refuse to do record reviews on ethical grounds face a backlash. The evaluator said there’s pressure from department administrators to find that an inmate isn’t dangerous.

Kincaid called those allegations “patently false.” She said evaluators are encouraged to get whatever records they need to render an opinion and, if in doubt, can pass an inmate along to the next level of scrutiny, which includes interviews.

The evaluator acknowledged that she stands to gain financially if the program returns to more full evaluations and fewer record reviews. Some did very well under the old system.

In the first year after Jessica’s Law passed, the program raised the flat rate for evaluations from $2,000 to $3,500 to entice the 70 private-contract experts who perform them to do more and reduce a backlog.

About a dozen of them ended up making more than $500,000 that year, and at least one made more than $1 million.

The latest contract still pays about $3,000 for clinical evaluations. The flat rate for a record review is $75.

Staff data specialist Danielle Cervantes contributed to this report. John Wilkens: (619) 293-2236 begin_of_the_skype_highlighting (619) 293-2236 end_of_the_skype_highlighting; john.wilkens@uniontrib.com

More mentally ill sex offenders freed on parole

Lawmakers seek audit of mental health agency

The system that decides whether mentally ill sex offenders are too dangerous to be freed when their prison terms end has seen a tenfold increase in cases since the passage of Jessica’s Law in California three years ago.

But the number of inmates who get committed to an institution has barely budged, according to an analysis of state data by The San Diego Union-Tribune.

One reason is the volume of prison referrals rejected by the California Department of Mental Health. In 2005, the agency approved 45 percent of cases on initial review. That number has fallen steadily, to 17 percent last year.

That trend is one of the reasons a state lawmaker on Tuesday asked for an audit of the government agency responsible for screening offenders.

Assemblyman Nathan Fletcher, R-San Diego, said he wants the state Department of Mental Health to explain why so few inmates are ordered into hospitals instead of being released on parole.

“I’ve got serious concerns that (the department) is not fully executing its duty to protect the public from sex offenders,” Fletcher said in a letter sent yesterday to Stephen Mayberg, state mental health director.

Fletcher’s inquiry follows a report in the Union-Tribune on Sunday detailing allegations from child-safety advocate Marc Klaas about the department’s handling of John Albert Gardner III, the convicted sex offender charged with raping and killing Poway teenager Chelsea King.

Klaas, citing department employees who saw Gardner’s psychological evaluations, said prison officials twice recommended Gardner not be released, and twice Department of Mental Health evaluators disagreed.

Placing Gardner in a state hospital rather than releasing him on parole after serving five years for a 2000 conviction for molesting and beating a 13-year-old girl in Rancho Bernardo might have saved Chelsea’s life, Klaas said.

California, like 19 other states, has a civil-commitment procedure that allows officials to keep violent sex offenders in custody past the end of their prison sentences if they have a mental illness that makes them dangerous and requires hospitalization.

When Jessica’s Law passed in November 2006, it changed the criteria for designation as a sexually violent predator from two offenses to one, and lengthened the list of qualifying crimes. The Department of Mental Health caseload exploded.

It went from 636 referrals in 2006 to 6,705 last year, according to the Union-Tribune data analysis.

The referrals originate with prison officials, who evaluate the offenders as they are nearing the end of their terms.

Department of Mental Health psychologists and psychiatrists then look at the cases and decide which ones should get additional screening. That round of screening determines which of those candidates will be sent to local district attorneys for civil-commitment trials.

The number finally placed in hospitals statewide after that process was 23 in 2006, and grew only to 27 last year despite the high number of referrals, the data review found.

A San Francisco attorney who represents a group of current and former Department of Mental Health sex-offender evaluators in a possible whistle-blower suit against the state said the trends are largely due to the state shifting more to “paper screenings” — reviews of written records instead of face-to-face interviews by two separate evaluators.

That has allowed the department to manage the flood of cases and cut costs amid a severe state budget crisis, said the attorney, Chris Johnson. But he believes it’s against the law, which requires a “full evaluation.” To most mental health professionals, doing a full evaluation involves a personal interview, he said.

“Everybody understands the state is having financial difficulties, but if they want to change the law, they should ask Californians to agree, and not do it on the backs of crime victims,” Johnson said. “We already voted on it, with Jessica’s Law.”

A Mental Health department spokeswoman did not respond to phone and e-mail requests for comment yesterday. In response to an earlier story addressing similar concerns, the spokeswoman said the department’s screening process “exceeds all statutory requirements” and the evaluators “always err on the side of caution.”

In his letter yesterday to Mayberg, Fletcher asked how often the department does “paper screenings” and under what statutory authority.

“I am asking you to help me in this process and to be part of the solution to ensure the safety of our children from sexual predators,” Fletcher wrote.

The assemblyman, who last week announced plans for a Chelsea’s Law to crack down on sex offenders, also wants the Bureau of State Audits to examine the Mental Health Department’s practices.

Trula LaCalle, executive director of the California office of the National Alliance on Mental Illness, said she could not speak to Fletcher’s concerns because she has no firsthand knowledge of interactions between prison and mental-health officials.

But “the Department of Mental Health is overwhelmed in all areas,” LaCalle said. “Mental Health has been underfunded in this state for decades. The laws themselves may not be the problem. The problem is implementation.”