BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 552 (Solorio)
As Amended March 15, 2010
Hearing date: March 23, 2010
Government and Penal Codes (URGENCY)
AA:mc
PRISON CONSTRUCTION:
AB 900 REVISIONS
HISTORY
Source: California Department of Corrections and Rehabilitation
Prior Legislation: SBx2 4 (Cogdill) - Ch. 2, Stats. 2009
SBx3 14 (Ducheny) - Ch. 16, Stats. 2009
SB 81 (Committee on Budget and Fiscal Review) - Ch.
175, Stats. 2007
AB 900 (Solorio) - Ch. 7, Stats. 2007
Support: Unknown
Opposition:SEIU, Local 1000
Assembly Floor Vote: N/A
KEY ISSUE
SHOULD AB 900 OF 2007, WHICH authorized $6.2 billion in
lease-revenue bond financing for construction of new state prison
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beds and $1.2 billion for new county jail beds, BE REVISED AS
SPECIFIED?
PURPOSE
The purposes of this bill are to make the following changes to
the funding authority for new state prison beds pursuant to AB
900 of 2007: 1) expressly include the development of medical and
mental health beds and treatment space, as specified; 2)
expressly include the renovation of existing buildings and any
necessary ancillary improvements to provide dental, medical and
mental health treatment, as specified; 3) expressly include
design-build cross-references, as specified; 4) expressly
provide that reentry facility projects may include land
acquisition, design, construction and renovation, as specified;
and 5) revise the Phase II conditional language requiring that
at least 4,000 beds from Phase I be "under construction" to
instead require that at least 4,000 beds be "established by the
by State Public Works Board."
Current law , as enacted in 2007 by AB 900 (Solorio, Statutes of
2007), generally authorizes $6.2 billion in lease-revenue bond
financing for construction of 40,000 new state prison beds and
$1.2 billion for an estimated 13,000 new county jail beds,
phased-in over time and contingent upon a series of construction
and rehabilitation program implementation benchmarks.
(Government Code 15819.40 et seq.)
Current law specifically authorizes the Department of
Corrections and Rehabilitation ("CDCR") to "design, construct,
or renovate housing units, support buildings, and programming
space in order to add up to 12,000 beds at facilities under its
jurisdiction." (Government Code 15819.40(a)(1)(A).) CDCR is
required to "complete site assessments at facilities at which it
intends to construct or renovate additional housing units,
support buildings, and programming space. The department may
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use the funding provided . . . to complete these site
assessments. After completing these site assessments, the
department shall define the scope and cost of each project (as
specified) . . . ." (Id.)
Current law provides that the authority described above "may be
used to develop new beds including appropriate programmatic
space (as specified) . . . . (Id, para.(a)(1)(B).)
Current law further requires that any new beds constructed
pursuant to the provisions described above "shall be supported
by rehabilitative programming for inmates, including, but not
limited to, education, vocational programs, substance abuse
treatment programs, employment programs, and prerelease
planning." (Id, para.(a)(2).)
Current law further provides that the purpose of beds
constructed pursuant to the provisions described above "is to
replace the temporary beds currently in use, and they are not
intended to house additional inmates. For the purposes of this
section, 'temporary beds' shall be defined as those that are
placed in gymnasiums, classrooms, hallways, or other public
spaces that were
not constructed for the purpose of housing inmates." (Id,
para.(a)(3).)
This bill would expressly include medical and mental health beds
in infill authority enacted by AB 900. Specifically, this bill
would amend this subdivision to provide that notwithstanding its
requirements for rehabilitative programming and its purpose to
replace the use of temporary beds, "the authority contained in
this subdivision may be used to develop beds and treatment space
to serve inmates requiring mental health or medical services.
Any beds developed with a medical or mental health purpose shall
be supported with rehabilitative programming to the extent it is
consistent with the medical or mental health services to be
delivered."
Current law provides design-build authority for not more than
five state office facilities, prison facilities, or court
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facilities as specified. (Government Code 14661.1.)
This bill adds cross-references to an existing design-build
statutory provision.
Current law , as enacted by AB 900, authorizes CDCR "to design,
construct, and establish new buildings at facilities under the
jurisdiction of the department to provide medical, dental,
and mental health treatment or housing for up to 6,000 inmates,
. . . " (Government Code 15819.40(c) (emphasis added).)
This bill would recast this language to extend this authority to
"design and construct new, or renovate existing, buildings and
any necessary ancillary improvements . . ." (emphasis added.)
Current law , as enacted by AB 900, authorizes "Phase II"
construction, including the design, construction, or renovation
of housing units, support buildings, and programming space in
order to add up to 4,000 beds at facilities under its
jurisdiction. (Government Code 15819.41.) "Any new beds
constructed shall be supported by rehabilitative programming for
inmates, including, but not limited to, education, vocational
programs, substance abuse treatment programs, employment
programs, and prerelease planning." (Id.)
This bill additionally would provide that the "authority in this
subdivision may also be used to develop beds and treatment space
to serve inmates requiring mental health or medical services.
Any beds developed with a medical or mental health purpose shall
be supported with rehabilitative programming to the extent it is
consistent with the medical or mental health services to be
delivered."
Current law , as enacted by AB 900, authorizes CDCR in "Phase II"
construction to "design and construct new, or renovate existing,
buildings at facilities under the jurisdiction of the department
to provide medical, dental, and mental health treatment or
housing for up to 2,000 inmates." (Government Code
15819.41(b).)
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This bill would add "any necessary ancillary improvements" to
this authority.
Current law , as enacted by AB 900, authorizes CDCR in "Phase II
to "construct, establish, and operate reentry program
facilities," as specified. (Government Code 15819.41(c).)
This bill would recast this to authorize CDCR to "acquire land,
design, construct, and renovate reentry program facilities," as
specified.
Current law , as enacted by AB 900, specifies that "Phase II"
funding for CDCR construction may not be released by the Public
Works Board until a three-member panel verifies that enumerated
conditions have been met, as specified. (Penal Code 7021.)
One of those conditions is that "at least 4,000 beds authorized
in subdivision (a) of Section
15819.40 of the Government Code (Phase I) are under
construction." (Penal Code 7021(a)(1)(emphasis added).)
This bill would revise this language to instead require that at
least 4,000 beds "have been established by the by State Public
Works Board."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
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. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
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point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The sponsor of this bill, the California Department of
Corrections and Rehabilitation, states in part:
AB 552 is technical cleanup legislation that will
provide consistency between Phase I and Phase II
funding authority and provide conforming changes to
recognize the use of design-build project delivery
authority provided in 2009. Specifically the measure
would:
Provides that funding in the AB 900
Infill appropriation may be used to develop beds
and treatment space serving inmates requiring
medical or mental health services, and that
rehabilitative programming for these beds shall
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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be consistent with the medical or mental health
services being provided to these inmates.
Modifies the authorization by the Public
Works Board, rather than the commencement of
construction, as a pre-requisite to release of
Phase II funding. This will allow Infill,
Reentry and Medical projects funded from Phase II
to begin approximately 12 months (or more) sooner
then would occur under existing law.
Provides consistency between the scope of
AB 900 Phase I and Phase II funding authorities.
Phase I Medical funding should include renovation
(already included in phase II), and both phases
should reference necessary ancillary
improvements. Phase II Reentry funding should
include renovation and land acquisition (already
included in phase I).
Authorizes the Public Works Board to
perform oversight of projects utilizing
design-build authority . . . by referencing
Government Code Section 13332.19.
2. What This Bill Would Do
As explained above, this bill would make the following changes
to the statutory funding authority for new state prison beds
provided by AB 900 of 2007, as specified:
include the development of medical and mental health
beds and treatment space;
include the renovation of existing buildings and any
necessary ancillary improvements to provide dental, medical
and mental health treatment;
include design-build cross-references;
expressly provide that reentry facility projects may
include land acquisition, design, construction and
renovation; and
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revise the Phase II conditional language of AB 900
requiring that at least 4,000 beds from Phase I be "under
construction" to instead require that at least 4,000 beds
be "established by the by State Public Works Board."
AB 900 provided the following purpose for its Phase I funding
authority:
The purpose of beds constructed pursuant to this
section is to replace
the temporary beds currently in use, and they are not
intended to house
additional inmates. For the purposes of this section,
"temporary beds" shall
be defined as those that are placed in gymnasiums,
classrooms, hallways,
or other public spaces that were not constructed for
the purpose of housing
inmates.
IS THIS BILL CONSISTENT WITH THE PURPOSE OF AB 900?
3. Background: AB 900<2>
Nearly three years ago the Legislature approved legislation to
authorize additional prison and jail bed capacity. (AB 900
(Solorio) (Ch. 7, Stats. of 2007.) AB 900 authorized $7.4
billion in lease-revenue bonds and appropriated $350 million
from the General Fund to implement its provisions. The bill was
structured to phase-in the funding for the construction of new
prison beds and jail beds as CDCR achieved various benchmarks.
The legislation also contained significant new legislative
directives related to rehabilitative programming in CDCR.
AB 900 contains three main components, two of which pertain to
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<2> Much of the substance of this review of AB 900 is derived
from the agenda materials prepared by Subcommittee No. 4 of the
Senate Budget and Fiscal Review Committee for its April 14th,
2008 hearing.
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prisons:<3>
Prison Bed Construction.
? Phase I - Prison Bed Construction. The
legislation authorized $3.6 billion in lease revenue
bonds to construct: (1) 12,000 infill beds at existing
prisons ($1.8 billion); (2) 6,000 re-entry beds, which
are smaller secure facilities of up to 500 beds with
concentrated rehabilitative services ($975 million);
and (3) 6,000 medical and mental health beds ($857
million). The legislation also appropriated $300
million General Fund for infrastructure improvements
at existing prisons.
? Phase II - Prison Bed Construction. The
legislation also authorized an additional $2.5 billion
in lease-revenue bonds to construct: (1) 4,000 infill
beds at existing prisons ($600 million); (2) 10,000
re-entry beds ($1.6 billion); and (3) 2,000 medical
and mental health beds ($286 million). Funding is to
be made available for Phase II only if certain
conditions and benchmarks are met and verified by a
three-member panel comprising of the State Auditor,
the Inspector General, and an appointee of the
Judicial Council.
Recidivism Reduction and Rehabilitation . AB 900 also
required CDCR to implement various reforms to reduce
recidivism and increase rehabilitation efforts.
AB 900 contained the following provisions specifically
applicable to medical and mental health care:
6,000 medical and mental health beds ($857 million) in
Phase I; and
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<3> The third component relates to jails.
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2,000 medical and mental health beds ($286 million) in
Phase II.
SBx3 14 (Ducheny), enacted in February of last year, revised
some AB 900 provisions to address largely technical issues
relating to the issuance of the bond authorized by the bill. In
addition, SBx3 14 revised Phase I of AB 900 to delete references
to specified prison facilities, and to clarify the authority for
up to 12,000 new beds under Phase I.
4. Background: Plata v. Schwarzenegger: The Establishment of a
Federal Receiver for the Delivery of Medical Services to
California Prison Inmates
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California ruled from the bench that it would
establish a Receivership to take control of the delivery of
medical services to all California state prisoners confined by
the California Department of Corrections and Rehabilitation. In
the Findings of Fact and Conclusions of Law Re: Appointment of
Receiver, United States District Judge Thelton E. Henderson
stated in part:
By all accounts, the California prison medical
care system is broken beyond repair. The harm
already done in this case to California's prison
inmate population could not be more grave and the
threat of future injury and death is virtually
guaranteed in the absence of drastic action. . . .
(I)t is an uncontested fact that, on average, an
inmate in one of California's prisons needlessly
dies every six to seven days due to constitutional
deficiencies in the CDCR's medical delivery
system. . . .
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It is clear to the Court that this unconscionable
degree of suffering and death is sure to continue
if the system is not dramatically overhauled.
Decades of neglecting medical care while vastly
expanding the size of the prison system has led to
a state of institutional paralysis. The prison
system is unable to function effectively and
suffers a lack of will with respect to prisoner
medical care.<4>
On February 14, 2006, Judge Henderson appointed Robert Sillen to
serve as receiver in this case. In its order, the Court set
forth comprehensive duties for the Receiver, including
leadership and executive management of the California prison
medical health care delivery system. The Court stated in part:
(T)he Receiver shall have the duty to control,
oversee, supervise, and direct all administrative,
personnel, financial, accounting, contractual,
legal, and other operational functions of the
medical delivery component of the CDCR. <5>
The Court additionally ordered the Receiver to develop a
detailed plan of action to effectuate the restructuring and
development of a constitutionally adequate medical health care
delivery system, as specified; to determine the annual CDCR
medical health care budgets and implement an accounting system
that meets professional standards; and to provide the Court with
bimonthly progress reports, as specified.<6>
The Court expressly ordered the Receiver to "exercise all powers
vested by law in the Secretary of the CDCR as they relate to the
administration, control, management, operation, and financing of
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<4> Findings of Fact and Conclusions of Law Re: Appointment of
Receiver, Oct. 3, 2005, Marciano Plata v. Schwarzenegger, No.
C01-1351 TEH (U.S. Dist. Court for the Northern District of
California). Hereafter all references to the Court pertain to
this case.
<5> Order Appointing Receiver, Feb. 14, 2006.
<6> Id.
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the California Medical health care system." The Court suspended
the Secretary's exercise of these powers for the duration of the
Receivership.
The Receiver has the power to:
hire, fire, suspend, supervise, promote, transfer,
discipline, and take all other personnel actions regarding
CDCR employees or contract employees who perform services
related to medical health care;
establish personnel policies and to create, abolish, or
transfer positions, as specified;
negotiate new contracts and renegotiate existing
contracts; and
acquire, dispose of, modernize, repair, and lease
property, equipment, and other tangible goods to carry out
his duties.<7>
The Court's order expressly provides that, "(a)ll costs incurred
in the implementation of the policies, plans, and decisions of
the Receiver relating to the fulfillment of his duties under
this Order shall be borne by (the state). (The state) shall
also bear all costs of establishing and maintaining the Office
of Receiver, including the compensation of the Receiver and his
staff."<8>
In an order dated January 23, 2008, the Court terminated its
appointment of Robert Sillen and appointed J. Clark Kelso as the
new Receiver.<9> In its order the Court made clear its intent
to transact the implementation of long-term and sustainable
reform:
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<7> Id.
<8> Id.
<9> Order Appointing New Receiver, January 23, 2008.
The Receivership has reached a critical juncture at
which it must now move from a primarily investigative
and evaluative phase, during which the Receivership
analyzed the current system to determine what reforms
were necessary and worked to create the infrastructure
required to effectuate such reforms, into an
implementation phase, during which the Receivership
must translate the conceptualized reforms into
reality. . . . (T)he Receivership's focus can and
must now shift towards long-term reform that will
achieve the implementation of a sustainable,
constitutionally adequate system of delivering medical
care to Plaintiffs - and, not inconsequentially, a
system that must ultimately be transitioned back to
the State of California's control. Put another way,
the Receivership's overarching goal should be working
itself out of existence once delivery of medical care
to California's inmates has been brought up to
constitutional standards.
. . . The Receivership must continue to maintain its
independence as an arm of the federal courts
established to take over state operations, but it also
must work more closely at this stage with all
stakeholders, including State officials, to ensure
that the system developed and implemented by the
Receivership can be transferred back to the State in a
reasonable time frame. Such collaboration appears to
be more important now than ever, given the current
budget crisis faced by the State of California.<10>
The Receiver's Thirteenth Tri-Annual Report of the Federal
Receiver's Turnaround Plan of Action dated January 15, 2010,
states in part:
After a brief period of litigation between state
officials and the Receivership (which is still pending
before the Ninth Circuit), and with the collapse of
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<10> Id.
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the national economy and California's budget, the
Receiver began working collaboratively with Secretary
Matt Cate and other CDCR staff to attempt to scale
back construction plans to a level more consistent
with available resources. These discussions
ultimately resulted in CDCR submitting a long-term bed
plan to the Coleman court which provides approximately
$2.34 billion in funding for healthcare-related
construction to be financed from the sale of bonds
previously authorized by AB 900. Instead of 7
facilities and 10,000 new beds to be operated by the
Receivership, the new plan envisions only 1 new
facility of approximately 1,600 beds for inmates with
medical and mental health problems, the use of three
juvenile justice facilities which would be converted
to hold approximately 3,200 inmates with medical and
mental health conditions, and allocation of $700
million for improvements to existing facilities.
Although the current plan is likely to fall short of
actual needs in some material respects, the Receiver
believes it is the most that can be accomplished at
this time given the state's serious financial problems
and the amount of funding available under AB 900.
As of this date, although there is a plan to build,
the state still has not provided access to any funding
to implement this plan, it remains uncertain whether
funding will ever be made available for these
purposes, and it is unclear whether the State will
significantly reduce its prison population. (p. 58)
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