[Title]

Senate Committee: Judiciary (HB 4934 and 4937, SB 606 and 607)

Families and Human Services (SB 615, HB 4936 and 4958)

House Committee: Judiciary

Second Analysis (8-22-06)

BRIEF SUMMARY: The bills would amend various acts to do the following:

· Require a criminal history check and criminal records check on child care center and day care center licensees.

· Require a background check on employees and contract workers of child care centers and day care centers.

· Require a criminal history check and criminal records check on family day care home registrants and group day care home licensees.

· Require a background check on persons 18 years of age and older who reside in those day care homes.

· Revise the penalties for violating certain reporting duties imposed on a registered sex offender.

· Allow evidence of prior sex crimes against a minor to be admissible as evidence in criminal cases alleging another sex crime against a minor.

· Provide penalties for violations.

· Place the maximum term of imprisonment for felony violations in the corresponding sections of the sentencing guidelines.

FISCAL IMPACT: The bills pertaining to sentencing guidelines would not have any fiscal implications. The other bills could result in indeterminate correctional costs for the state and local governments. See Fiscal Information for further explanation.

THE APPARENT PROBLEM:

Fueled by tragic events in Florida in the Spring of 2005 involving the murder of two young girls by convicted sex offenders and a series of stories by the Detroit News exploring the number of convicted sex offenders working in the state's schools, Governor Granholm, as well as members of the legislature, called for the enactment of strong, meaningful laws to deny convicted sex offenders access to children in the state. In response, both chambers of the legislature introduced bills to address some of the problems identified, such as requiring background checks of people working in child care centers.

THE CONTENT OF THE BILLS:

The bills are part of a multi-package, bicameral initiative amending various laws to protect children from persons convicted of certain crimes. The bills have an effective date of January 1, 2006.

House Bill 4934 and Senate Bill 607

Senate Bill 607 would amend Section 5 of the Sex Offenders Registration Act and House Bill 4934 would amend Sections 5 and 9 (MCL 28.725 and 28.729) to revise the penalties for violating certain duties imposed on an offender.

Under the act, a person convicted of a listed offense (a crime that requires registration as a sex offender) must adhere to the act's reporting and registration requirements. Section 5a requires a sex offender convicted of a misdemeanor offense to report in person to the local law enforcement agency once a year and an offender convicted of a felony four times a year. It also requires an offender to maintain a current state driver's license or state identification card, to pay certain fees, and to have a digital photo taken (which is available for use by the Department of State Police) at a Secretary of State office. Currently, it is a misdemeanor punishable by imprisonment for not more than 93 days and/or a fine of not more than $1,000 to violate Section 5a of the act.

House Bill 4934 would instead specify that a violation of Section 5a, other than failure to pay the fee, would be a crime punishable as follows:

· For no prior convictions (1^st offense) for a violation of the act, a misdemeanor punishable by up to 93 days imprisonment and/or a fine of not more than $1,000.

· For one prior conviction (2^nd offense) for a violation of the act, a misdemeanor punishable by imprisonment for not more than one year and/or a fine of not more than $2,000.

· For two or more prior convictions (3^rd or subsequent offense) for a violation of the act, a felony punishable by imprisonment for not more than four years and/or a fine of not more than $2,500.

In addition, the act requires an individual required to be registered to notify the local law enforcement agency within 10 days of being paroled; final release from prison; or changing his or her place of residence, domicile, or place of work or education. House Bill 4934 and Senate Bill 607 would also require a notification if the individual vacated the residence, domicile, or place of work or education.

Senate Bill 606

The bill would amend the sentencing guidelines portion of the Code of Criminal Procedure (MCL 777.11b) to specify that failure to update sex offender registration information – third or subsequent offense – would be a Class F felony against the public order with a maximum term of imprisonment of four years. The bill is tie-barred to House Bill 4934.

House Bill 4937

In general, in a trial of a criminal case, references are not allowed to be made to the fact that the defendant has committed other offenses. However, there are a limited number of statutory and judicial exceptions to this rule. Under Michigan law, for example, evidence of a defendant's other bad acts may be admissible in a criminal trial if it shows the defendant's 1) motive; 2) intent; 3) the absence of a mistake or accident; or 4) a scheme, plan, or system in doing an act.

The bill would add a new section to the Code of Criminal Procedure (MCL 768.27a) to add another exception. Notwithstanding the exceptions detailed above, the bill would allow, in a criminal case in which the defendant was accused of committing a listed offense (crimes which require registration as a sex offender), evidence that the defendant had previously committed another listed offense against a minor to be admissible and to be considered for its bearing on any matter to which it was relevant. A prosecuting attorney intending to offer evidence under the new exception would have to disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown. This would include witness statements or a summary of the substance of any testimony expected to be offered.

"Minor" would be defined as a person less than 18 years of age. "Listed offense" would mean that term as defined in Section 2 of the Sex Offenders Registration Act.

House Bill 4936

The bill would add several new sections to Public Act 116 of 1973 (MCL 722.115 et al.), which pertains to the regulation of child care organizations, to require background checks on those licensed to operate a child care or day care center and on their employees and contract workers. Background checks would also have to be conducted on persons registered or licensed to operate a family day care home or group day care home. In general, the act defines a "child care center" and "day care center" to mean a facility, other than a private residence, that receives more than one preschool or school-age children for care for periods of less than 24 hours a day, and where the parents are not readily immediately available to the child. A "family day care home" is defined in the act as a private home in which one to six children are received for care; a "group day care home" is a private home that can receive seven to eleven children for care.

Child care center or day care center licensees. The bill would prohibit the Department of Human Services (DHS) from issuing or renewing a child care center or day care center license unless the department requested a criminal history check and criminal records check. When an application for a license or renewal is submitted to the DHS, the department would have to request the Michigan State Police (MSP) to conduct a criminal history check on the applicant and conduct a criminal records check through the Federal Bureau of Investigation (FBI). The background check would have to be performed on the person or each partner, officer, or manager of the center. The MSP would have to conduct the checks within a reasonable time after receiving a request from the DHS. A report of the results would then have to be provided to the DHS. A criminal history check would have to include any criminal history record information on the person maintained by the MSP.

If the criminal history check or criminal records check revealed a conviction of a listed offense, the department would have to:

· Deny a license to a license applicant.

· Deny a renewal to an applicant for a license renewal.

· Revoke the license of a current licensee.

Employees and contract workers. Before an offer of employment or before allowing a person to regularly and continuously work under contract at a child care center or day care center, the center must perform a background check on the person using the MSP's Internet Criminal History Access Tool (ICHAT). [ICHAT allows any person to search the state police's Criminal History Record Database, which contains Michigan conviction information on misdemeanor and felony convictions. It does not contain federal arrests or criminal records from other states. Each search is $10.00.]

Not later than one year after the bill's effective date, the center would have to conduct a criminal history check on all current employees. The cost of searching the ICHAT database could be passed on to the employee or applicant on whom the search is being performed.

If the ICHAT search revealed a conviction for a listed offense (a crime that requires registration as a sex offender), the center would be prohibited from 1) offering employment to that person or allowing the person to work under contract; or 2) continuing to employ or contract with a person.

Self-reporting requirement. In addition, a child care or day care center licensee would have to report to the DHS and an employee of a center would have to report to the center within three business days after being arraigned for one or more of the following crimes:

--Any felony.

-- Any of the following misdemeanors:

· criminal sexual conduct (CSC) in the fourth degree or an attempt to commit criminal sexual conduct in the fourth degree;

· child abuse (or any attempt) in the third or fourth degree;

· a misdemeanor involving cruelty, torture, or indecent exposure involving a child;

· a misdemeanor violation of Section 7410 of the Public Health Code (which concerns distribution of marihuana to minors near school property);

· a violation of five sections of the Michigan Penal Code (concerning breaking and entering; consumption or possession of alcohol by minors, or controlled substances by anyone, at social gatherings; soliciting a child for immoral purposes; indecent exposure; and damage to or larceny from vacant buildings under construction or having been built);

· a misdemeanor violation of three sections of the Michigan Penal Code (including assault and battery and domestic assault; aggravated assault; and using the Internet to commit crime including CSC against a minor, stalking, and making bomb threats);

· a misdemeanor violation of Section 701 of the Michigan Liquor Control Act concerning the prohibition of liquor sales to minors;

· any misdemeanor that is a listed offense (a crime that requires registration as a sex offender); and,

· a violation of a substantially similar law of another state, of a political subdivision of this state or another state, or of the United States.

Failure to report as required would result in one of the following penalties: 1) if the crime that was not reported was a felony or a misdemeanor that is a listed offense, the person would be guilty of a felony punishable by imprisonment for not more than two years or a fine of not more than $2,000; 2) if the crime that was not reported was a misdemeanor that was not a listed offense, the person would be guilty of a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000.

Not later than 30 days after the bill's effective date, the DHS would have to inform all current registrants and licensees and all applicants for a license of the reporting requirement and the penalties for failure to report the arraignments. Within this same time period, a licensee would have to inform all current employees and contract workers at the center of the reporting requirements and the penalties for failing to report. In addition, the reporting requirements and penalties for failing to report must be given by a center to a person when an offer of employment was made or when a person was allowed to work regularly and continuously under contract.

Record expungement. The DHS would have to delete from a licensee's records and a day care or child care center would have to delete from an employee's records all information relating to an arraignment required to be reported if the department received documentation that the person subsequently was not convicted of any crime after the completion of judicial proceedings resulting from the arraignment.

Registered family day care homes and licensed group day care homes. The DHS could not issue or renew a certificate of registration to a family day care home or a license to a group day care home without requesting a criminal history check and criminal records check or ICHAT check as required under provisions that would be added by Senate Bill 615. If the background check revealed that an applicant for a certificate of registration or license (or a renewal of either) or a person over 18 years of age that resided in the applicant's home had been convicted of a licensed offense, the DHS could not issue or renew a certificate of registration or license to that applicant; in addition, the certification of registration or license of a current registrant or licensee would have to be revoked.

The bill is tie-barred to Senate Bill 615.

Senate Bill 615

The bill would add two new sections to Public Act 116 of 1973, the child care licensing act (MCL 722.115f and 722.115g), to require criminal history checks and criminal records checks on those applying for or renewing certificates of registration for family day care homes or licenses for group day care homes.

Background checks would also be required for all persons over 18 years of age residing in a private home that serves as a family day care home or group day care home when that home applied for a certificate of registration or license.

Not later than one year after the effective date of the bill, criminal history checks and criminal record checks would have to be conducted on all persons currently operating family day care homes and group day care homes and on all persons over 18 years of age living in those private homes.

[The act defines a "family day care home" as a private home in which one to six children are received for care; a "group day care home" is a private home that can receive seven to eleven children for care.]

Licensees and registrants. The bill would prohibit the Department of Human Services (DHS) from issuing or renewing a certificate of registration for a family day care home or license for a group day care home unless the department requested a criminal history check and criminal records check. When an application for a license or registration or renewal for either is submitted to the DHS, the department would have to request the Michigan State Police (MSP) to conduct a criminal history check on the applicant and conduct a criminal records check through the Federal Bureau of Investigation (FBI).

Applicants would have to give written consent, at the time of the application, for the MSP to conduct the background checks and would have to submit their fingerprints to that department. The DHS would have to request the background checks on a form and in a manner prescribed by the MSP. The MSP would have to conduct a criminal history check and provide a report of the results to the DHS within a reasonable time of receiving the request. Within a reasonable time of receiving a request by DHS to perform a criminal records check, the MSP would have to initiate the criminal records check. Results would have to be provided to the DHS after the MSP received the results from the FBI. The MSP could charge the DHS a fee for the criminal history check or criminal records check not to exceed the actual and reasonable cost of conducting the check. However, the DHS could pass along this cost of the criminal history or criminal records check to the applicant, registrant, or licensee.

Not later than one year after the bill's effective date, the DHS would have to conduct a criminal history check and criminal records check on all persons currently issued a certificate of registration to operate a family day care home or a license to operate a group day care home.

Persons residing in a family day care home or group day care home. Under the bill, when a person applied for a certificate of registration to operate a family day care home or a license to operate a group day care home, the DHS would have to perform a background check on any person over the age of 18 residing in the home in which the day care will be provided. The background check would use the MSP's Internet Criminal History Access Tool (ICHAT). [ICHAT allows any person to search the state police's Criminal History Record Database, which contains Michigan conviction information on misdemeanor and felony convictions. It does not contain federal arrests or criminal records from other states. Each search is $10.00.] If the ICHAT search revealed a conviction for a listed offense (a crime that requires registration as a sex offender), the DHS could not issue a certificate of registration to the applicant, could not renew a certificate of registration or license, and would have to revoke a current certificate of registration or license.

Not later than one year after the bill's effective date, the DHS would have to conduct a criminal history check on all persons over 18 of age residing in a home in which a family day care home or group day care home currently operates.

(The background check requirement would not apply to a person residing in a family or group day care home for 14 days or less.)

Self-reporting requirement. Licensees and registrants would be required to report to the DHS within three business days after being arraigned for any of the crimes listed below. They would also be required to report, within the same time frame, if they knew or should have reasonably known that a person over 18 years of age that lived in the home had been arraigned for one or more of these crimes. This applies to the following crimes:

--Any felony.

-- Any of the following misdemeanors:

· criminal sexual conduct (CSC) in the fourth degree or an attempt to commit criminal sexual conduct in the fourth degree;

· child abuse (or any attempt) in the third or fourth degree;

· a misdemeanor involving cruelty, torture, or indecent exposure involving a child;

· a misdemeanor violation of Section 7410 of the Public Health Code (which concerns distribution of marihuana to minors near school property);

· a misdemeanor violation of Section 701 of the Michigan Liquor Control Act concerning the prohibition of liquor sales to minors;

· any misdemeanor that is a listed offense (a crime that requires registration as a sex offender); and,

· a violation of a substantially similar law of another state, of a political subdivision of this state or another state, or of the United States.

Not later than 30 days after the bill's effective date, the DHS would have to inform all current registrants and licensees and all applicants for a certificate of registration or a license of the reporting requirement and the penalties for failure to report the arraignments. The DHS would also have to notify the registrant or licensee at the time it issues a certificate of registration or license of the requirement to report an arraignment for certain crimes and the penalties for failure to report those arraignments.

Record expungement. The DHS would have to delete from a registrant's or licensee's record all information relating to an arraignment required to be reported if the department received documentation that the person subsequently was not convicted of any crime after the completion of judicial proceedings resulting from the arraignment.

The bill is tie-barred to House Bill 4936.

House Bill 4958

The bill would amend the sentencing guidelines portion of the Code of Criminal Procedure (MCL 777.15g) to specify that failure to report an arraignment for criminal charges for family day care homes, group day care homes, child care centers, day care centers, and employees of a child care or day care center would be a Class G felony against the public safety with a maximum term of imprisonment of two years.

The bill is tie-barred to House Bill 4936 and Senate Bill 615.

FISCAL INFORMATION:

House Bill 4934 and Senate Bills 606 and 607: By providing for felony penalties and one-year misdemeanor penalties, the bills could increase correctional costs for the state and local units of government.

In general, felony incarceration and felony probation supervision are the responsibility of the state, which could experience increased costs of prison incarceration (which averages about $29,000 per prisoner per year) or probation supervision (which averages $1,977 per supervised offender per year). Costs of incarcerating felony or misdemeanor offenders in jails would fall to counties; costs vary by county. Local units of government also could incur increased costs if the numbers of offenders under misdemeanor probation supervision increased. Increases in penal fine revenues could benefit local libraries, which are the constitutionally-designated recipients of such revenue.

House Bill 4937: The bill would have no direct fiscal impact on the judiciary or on state or local correctional systems. However, if increased numbers of felony or misdemeanor convictions were obtained as a result of the bill, state or local correctional costs could increase accordingly.

House Bill 4958: The bill would have no fiscal impact.

House Bill 4936 and Senate Bill 615: As the bills' requirements pertain to the Michigan State Police, there would be minimal administrative costs to the MSP with processing the criminal and ICHAT checks.

The bills would require applicants for an original license/registration or license/registration renewal for a child care center, a family day care home or a group day care home to submit fingerprints to the Department of State Police (DSP) for a criminal history check and a criminal records check. It also requires the DHS to request an Internet-based background check using the Department of State Police's ICHAT system for all persons over 18 years of age residing in day care and group homes applying for a registration or license. Finally, day care centers would be required to request ICHAT checks on all applicants for employment or contract work within day care centers and would be responsible within one year of the effective date of the bill for ensuring that ICHAT checks are conducted for all current employees (but not current contract workers).

The current cost of a fingerprint-based check is $54, while an ICHAT check costs $10 unless the entity is public or non-profit. For FY 2004, the DHS processed just over 2,300 original and renewal licenses for day care centers and another 6,100 for homes. It is not known how many applicants for employment or adult residents within a day care home might also be affected by the bills. The bill allows the DHS to pass costs related to the required criminal checks along to the licensee. It also allows licensees to pass the cost of relevant criminal checks on to employees or employment applicants. If the DHS exercises its authority to pass on costs, the criminal checks would have no direct impact on state-funded costs.

However, the DHS would still be responsible for tracking the results of the required checks, taking licensing actions when necessary, and notifying licensees and registrants of these new requirements. This would indirectly increase administrative costs to the department by an indeterminate amount.

ARGUMENTS:

For:

The bills would add many new protections to state law to increase the safety of children. All new hires and contract workers and, eventually, even current employees of child care centers will be subject to a criminal background check. Operators of home-based child care, as well as residents in the homes over 18 years of age, will also have to undergo background checks.

Sex offenders who did not comply with reporting requirements under the Sex Offender Registration Act would also face new criminal charges. This should help reduce the numbers of offenders who fail to report address changes or to verify their addresses (currently about 44 percent of those required to report).

And House Bill 4937 would allow prior convictions for listed sex offenses committed against a minor to be admissible as evidence in a current criminal case involving a charge of a listed offense committed against a minor. This is not new, but actually a clarification and codification of current legal practice and would not deprive a defendant of any due process protections.

The bills may not protect every child in every situation, but represent an important first step in keeping known offenders away from children.

Against:

The bill package, as well as a separate package addressing schools, seeks to make children safer by excluding registered sex offenders from various work positions that would bring them into contact with children and by increasing the criminal penalties for a sex offender who failed to report a new address. Unfortunately, critics say, this legislative initiative is built on a foundation of sand. The Sex Offenders Registration Act is fraught with problems and long overdue for a serious look at how to make it more effective. Currently, the registry is bogged down by people who pose no threat to children and who pose no threat to anyone! Most of the people listed on the registry show no predatory behavior, many were convicted as youths after engaging in sexual activities with boyfriends or girlfriends, and many youthful offenders (and adult, too) have been successfully rehabilitated and pose no further risk of reoffending. And, the state police are woefully behind in enforcing compliance with reporting address changes or verifying their addresses; at present, approximately 44 percent of offenders are not in compliance.

The bills would seriously impact the approximately 39,000 people registered. For example, a person convicted in his or her early 20s of fourth-degree criminal sexual conduct (which involves contact only) or convicted of engaging in three or more incidents of indecent or obscene conduct in a public place couldn't work 20, 30, 40, or more years after their convictions in or at child care centers, child care homes, or schools that would put them into contact with children, even though their crime did not involve children and even though they had become trustworthy, law-abiding citizens. Simply put, the bills are ineffective in truly increasing the safety of children because they implicate people who pose no threat (which then draws attention away from those who do). They would punish people who have already paid their debt to society and could actually increase the risk of recidivism by denying many types of employment or meaningful volunteer work to people on the registry and even to those who no longer are listed on the public registry.

Unless the registry statute is overhauled to weed out those who do not pose a threat to society, unless the state police are aware of the residences of persons required to be on the registry, and unless the bills are amended to exclude those on the registry who did not commit a crime against children, the bills will give a false sense of security to the public and overly burden many who are have worked hard to turn their lives around.

Against:

House Bill 4936 is problematic for several reasons:

· Only licensees would be fingerprinted, even though a licensee may never or only occasionally be onsite. The employees and contract workers (janitors, lawn care workers, etc.), who are the ones with the most contact with the children and the most opportunities to be alone with children would only receive a name check through ICHAT. Name checks are only as good as the name the worker gives; in some studies, close to 20 percent of people gave aliases. Also, a person who committed a sex offense in another state would not be in the ICHAT database. Only a fingerprint check of the national criminal database can accurately inform an employer to a person's status as a sex offender.

· By January 1, 2007, all current employees of commercial day care centers will have to be screened through ICHAT, but only new contract workers after that date would be screened. Since contract workers also have access to the children, shouldn't current contract workers also be subject to the ICHAT check?

· All employees of centers are required to report if they are charged with certain crimes, but not contract workers. Shouldn't they also be required to report to those entities that they contract with?

For:

Sex offenders who did not comply with reporting requirements under the Sex Offender Registration Act would face new criminal charges under Senate Bill 607. This should help reduce the numbers of offenders who fail to report address changes or to verify their addresses (currently about 44 percent of those required to report). Violating the reporting requirements just three times would result in a felony that could send a sex offender back to prison for up to four years.

Response:

Considering that one of the girls killed earlier this year in Florida was murdered by a sex offender who had failed to report his current address, increasing the penalty for reporting violations as Senate Bill 607 proposes to do would do nothing to deter truly sociopathic, predatory individuals. Critics say that the legislature should be looking at initiatives that would protect society, not just give an illusion of protection. Those individuals who have demonstrated predatory behavior, especially in attacks on children, should be required to be tethered for as long as they are required to be on the sex offender registry. Even tethering is not foolproof, but it will make it harder for dangerous individuals to slip away unnoticed.

Rebuttal:

Another legislative package that was signed into law earlier in 2006 addressed some of these issues. House Bills 5531 and 5532 required adult offenders whose victims were under 13 years of age to be sentenced to lifetime electronic monitoring and established a lifetime monitoring program in the Department of Corrections, respectively. Other bills in the package increased penalties for persons who committed certain sex crimes against children and allowed the parole board to require, as a condition of parole, electronic monitoring for certain sex crimes against children even if the provisions added by House Bills 5531 and 5532 didn't require it.

For:

Many people rely on home-based child care service providers to care for their children while they are at work. Though a person must be registered with or licensed by the state, many do not know that a criminal background check using a fingerprint search of the national crime data bases is not done on applicants. Also, no screening is done on the adults, such as adult children, spouses, boyfriends or girlfriends, relatives, or friends that live in the home where the day care is provided. Senate Bill 615 would address this concern. Within a year of taking effect, every new applicant for a certificate of registration or license and all current registrants and licensees, along with the adults who live in their homes, will be screened for past criminal activities that would make the home unsuitable for providing day care services for children.

Response:

The bill would require the Department of Human Services to deny an applicant a certificate of registration to operate a family day care home or a license to operate a group day care home, and to revoke a registration or license of a current registrant or licensee, if a resident of the home was found to have been convicted of a sexual offense requiring inclusion on the sex offender registry. However, what if the licensee or registrant has the resident move out and ensures that the person will not be on the premises when the children are present? Would their license or certificate of registration be restored?

Legislative Analyst: Susan Stutzky

Fiscal Analyst: Marilyn Peterson

Robert Schneider

Jan Wisniewski

■ This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.