BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 3 6 AB 1369 (Davis) 9 As Amended May 26, 2010 Hearing date: June 29, 2010 Penal Code JM:mc ELECTRONIC MONITORING ON HOME DETENTION: INMATES HELD IN JAIL IN LIEU OF BAIL HISTORY Source: Los Angeles County Sheriff Prior Legislation: SB 959 (Romero) - Ch.252, Stats. 2007 SB 963 (Ashburn) - Ch. 488, Stats. 2005 Support: Los Angeles County Board of Supervisors; Crime Victims United of California; California Bail Agents Association (as proposed to be amended); Golden State Bail Agents Association (as proposed to be amended) Opposition:Taxpayers for Improving Public Safety Assembly Floor Vote: No longer relevant (NOTE: See Comment #4 for explanation of proposed author amendments to be taken in Committee.) KEY ISSUES (More) AB 1369 (Davis) PageB SHOULD ANY COUNTY BOARD OF SUPERVISORS BE AUTHORIZED TO ALLOW THE COUNTY CORRECTIONAL ADMINISTRATOR TO PLACE COUNTY JAIL INMATES HELD IN LIEU OF BAIL IN A PROGRAM OF HOME DETENTION, INCLUDING ELECTRONIC MONITORING, AS SPECIFIED? PURPOSE The purpose of this bill is to enact home detention programs for qualified persons held in county jail in lieu of bail, as specified. Existing law provides that the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which minimum security inmates and low-risk offenders committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate in a home detention program during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer, as specified. (Penal Code 1203.016(a).) Existing law authorizes counties to participate in Community-Based Punishment Programs which are partnerships between the state and local entities to offer alternatives for nonviolent, prison-bound offenders. Among the intermediate sanctions allowed is "home detention with electronic monitoring." A chief correctional administrator (the county sheriff, chief probation officer, or director of the county department of corrections) shall be designated to play a lead role locally. (Pen. Code 8050 et seq.) Existing law permits a county board of supervisors to authorize a county correctional administrator to require that county inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program participate in involuntary home detention, that includes electronic monitoring, when the administrator has determined that conditions in a jail facility warrant the necessity of releasing (More) AB 1369 (Davis) PageC sentenced misdemeanor inmates prior to them serving the full amount of a given sentence due to lack of jail space. (Pen. Code 1203.017, subd. (a).) Existing law provides that, under this program, one day of participation shall be in lieu of one day of incarceration and participants in the program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility. (Pen. Code 1203.017, subd. (a).) Existing law provides that the board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall be informed in writing that he or she shall comply with the rules and regulations of the program. (Pen. Code 1203.017, subd. (b).) Home Detention for Persons held Jail in Lieu of Bail as Defined by this Bill This bill permits a county board of supervisors to authorize a county correctional administrator to place county jail inmates held in lieu of bail to participate in a program of voluntary or involuntary home detention when specified conditions are met. Such a program shall include electronic monitoring, as specified. This bill provides that the program of home detention for inmates held in lieu of bail shall only apply if the correctional administrator makes a determination that conditions in a jail facility required the release of inmates due to a lack of space, or due to a current or pending court-ordered population cap. This bill provides that the programs of voluntary and involuntary home detention are essentially equivalent, with these major exceptions: An involuntary inmate cannot be required to pay a program fee. A voluntary participant must, in writing, agree to participate in, and comply with the rules and regulations of the program. (More) AB 1369 (Davis) PageD This bill provides that inmates in home detention programs for sentenced misdemeanants or persons held in lieu of bail shall be credited with time served on home detention against any mandatory term. This bill provides that an eligible inmate must be a minimum security inmate with not outstanding holds or warrants and one of the following apply: A magistrate has approved the release following a request by the inmate or designated person, as specified. The inmate has been held in custody for at least 30 days from the day of arraignment on misdemeanor charges. The inmate has been held in custody for at least 60 days from the day of arraignment on felony charges. This bill provides that all participants shall be subject to discretionary review by the correctional administrator. This bill provides that the board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall comply with the rules and regulations of the program, including, but not limited to, the following rules: A voluntary inmate must, in writing, agree to participate and to comply with program rules. The participant shall remain within the interior premises of his or her residence during the hours designated by the correctional administrator. The participant shall admit any person or agent designated by the correctional administrator into his or her residence at any time for purposes of verifying the participant's compliance with the conditions of his or her detention. If the person has been placed on home detention in combination for such release with greatly reduced bail, the person shall post bond prior to release. The use of electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify his or her compliance with the rules and (More) AB 1369 (Davis) PageE regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification. The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the place of detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria. This bill would provide that where the peace officer supervising a participant has reasonable cause to believe the participant is not complying with the rules or conditions of the program, or that the electronic monitoring device is unable to function properly, the officer may, without an arrest warrant and under the general or specific authorization of the administrator, retake the person into custody. This bill would provide that the correctional administrator need not allow a person to participate in this program if the record shows that the person has not satisfactorily complied with rules and regulations while in custody. A person shall be eligible for participation only if the administrator concludes that the person meets the criteria in this section and participation is consistent with rules and regulations prescribed by the board of supervisors or the correctional administrator's policies. This bill provides that the correctional administrator, or his or her designee, shall have discretionary authority to permit inmates to participate in the program. All persons approved by the court to participate in the program under reduced bail, and all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participant's appeal rights, as established by program administrative policy. (More) AB 1369 (Davis) PageF This bill provides that the rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to, or made available to, any participant upon request. This bill provides that the correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. This bill provides that willful failure of a program participant to return to the place of home detention not later than the expiration of any period of time during which he or she is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000 or both. This bill provides that the board of supervisors may set a program administrative fee to be paid by each participant or the designated bail agent, or both, if the release is made pursuant to a request for greatly reduced bail. This bill provides the following definitions for purposes of this program: "Correctional administrator" means the sheriff, probation officer, or director of the county department of corrections. "Electronic monitoring program" includes, but is not limited to, home detention, work furlough, and work release programs. "Minimum security inmate" means an inmate who is eligible for placement in a "Type IV" local detention facility, as described in Title 15 of the California Code of Regulations. This bill provides that, upon request of the Corrections Standards Authority or local law enforcement agency with (More) AB 1369 (Davis) PageG jurisdiction over the location of the participant, the correctional administrator shall provide the following information: The participant's name, address, and date of birth. The offense committed by the participant. The period of time the participant will be placed on home detention. Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for that return. The gender and ethnicity of the participant. Any information received by a police department pursuant to this provision shall be used only for the purpose of monitoring the impact of home detention programs on the community. (Pen. Code 1203.017, subd. (h).) This bill states that it is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies, as specified. This bill provides that the correctional administrator, with approval from the board of supervisors, may contract with public or private entities to provide program services. This bill provides that inmates in the program shall undergo normal booking procedures. This bill provides that all private contractors shall be under the jurisdiction of, and subject to the contract with, the correctional administrator. The contract shall include the following: The contractor must agree to comply with standards promulgated by state correctional agencies, all statutory provisions (More) AB 1369 (Davis) PageH applicable to the program. The contract must clearly define responsibilities and liability of the parties. The contractor must demonstrate financial responsibility, approved by the board, sufficient to indemnify the county. The contract must allow the correctional administrator authority to terminate the contract if the contractor fails to demonstrate financial responsibility. The administrator may terminate the contract if the private entity does not comply with statutory provisions or contract standards. The administrator shall give 60-days' notice of non-compliance. Shorter notice may be given if non-compliance presents a serious threat to public safety. This bill provides that a person who is arrested without a warrant for a bailable offense may, either personally or through counsel, a family member or friend, apply for release on bail reduce up to 75% of the set amount of bail if the person agrees to be placed on electronic monitoring under this program under the following circumstances and consequences: The application can be made 10 or more court days after arraignment. The court may reduce a defendant's bail under this provision only if the defendant is placed on the voluntary electronic monitoring program created by this bill and the court and county correctional administrator determine that the defendant is eligible for the program. The reduced bail provision shall not affect the provisions of Penal Code section 1305 (concerning exoneration and forfeiture of bail). This bill provides that a person may not be denied entry into the program because of an inability to pay a fee. This bill provides that program participants shall receive jail sentencing credits, as specified. This bill provides that a person who participates in the home (More) AB 1369 (Davis) PageI detention program created by this bill and who willfully fails to comply with program rules and regulations is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000 or both. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION 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. . . . (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.) (More) AB 1369 (Davis) PageJ . . . 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 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. On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear the state's appeal in this case. --------------------------- <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). (More) AB 1369 (Davis) PageK This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: Based on the lack of space in the Los Angeles County jail system, the jail operates under court-ordered mandatory cap on the number of inmates in the system. To adhere to the cap, the Sheriff's Department has reduced the percentage of time served by inmates committed to county jail. The department offered the voluntary electronic monitoring program and in 2007 sponsored Senate Bill 959 (Romero and Runner) to create an involuntary home detention electronic monitoring program, which has been very successful. Approximately 1,500 inmates are currently on some form of Home Electronic Monitoring, up from 437 in 2007. Prior to SB 959, inmates were spending an average of 10% of their sentence in jail before being released early due to overcrowding. Now, male inmates are doing approximately 75% of their sentence. Under current law, California Penal Code Section 1203.017 allows involuntary participation by qualified, minimum-security, low-risk inmates in a home detention electronic monitoring program in lieu of confinement in the county jail. By giving the Sheriff's Department the discretion and the option to put an inmate on the involuntary home detention electronic monitoring program, the Department has been able to better manage and control the jail population. If sentenced qualified, low-risk felony county jail commitments are added to this section, we can better (More) AB 1369 (Davis) PageL control our population and create much needed room for the more serious offenders. 2. This Bill is Modeled on SB 959 (Romero) Chapter 252, Statutes of 2007 In 2007, a program of home detention was created by SB 959 under which a county board of supervisors could authorize the county correctional administrator to place sentenced jail inmates in a program of home detention. The main purpose of the law was to reduce overcrowding in jails, particularly in Los Angeles County. The analysis of SB 959 noted that many jail inmates in Los Angeles were released after only serving a small fraction of the sentence imposed by the court. In a letter of support of this bill, the Los Angeles County Board of Supervisors states that SB 959 has been helpful in alleviating some of the jail overcrowding in that county. This bill addresses similar overcrowding concerns, but the jail inmates placed on home detention would be persons held in lieu of bail. Essentially, these inmates are awaiting trial or other disposition of their cases, but they were unable to post bail. Representatives of the sponsor and the Los Angeles County District Attorney have seen a substantial increase the amount of bail set out in the bail schedules published by the courts. More inmates than in the past are unable to post bond. This exacerbates jail overcrowding generally, and specifically reduces the jail capacity for defendants who have been sentenced. The sponsor of this bill - the Los Angeles County Sheriff - closely modeled this bill on the home detention program created by SB 959. It would appear that jail authorities would be familiar with the procedures prescribed by this bill. (More) WOULD COUNTIES THAT USE THE HOME DETENTION PROGRAM FOR SENTENCED INMATES BE ABLE TO READILY IMPLEMENT THE PROGRAM IN THIS BILL FOR HOME DETENTION OF JAIL INMATES WHO ARE BEING HELD PENDING RESOLUTION AND DISPOSITION OF THEIR CASES? 3. Ambiguous or Unclear Provision Concerning Payment of Fee - Additional Amendment Suggestion According to the sponsor, voluntary participants in the home detention program shall pay an administrative fee while involuntary participants will not. (No voluntary participant would be turned away from the program because of an inability to pay, however.) The provision in this bill on the fee payment is somewhat unclear. The provision can be interpreted to mean that only jail inmates released on home detention pursuant to Penal Code Section 1269d must pay the fee. Section 1269d allows a jail inmate to apply to a judge for release on reduced bail (reduced up to 75% of the set amount of bail) within the terms of the home detention program. The provision states: The board ? may prescribe a[n] ? administrative fee to be paid by each electronic monitoring participant or the designated bail agent, or both, if the release is authorized pursuant to Section 1269d. To realize the intent of the sponsor, it is suggested that the bill be amended as follows: The board ? may prescribe a[n] ? administrative fee to be paid by each electronic monitoring participant. If the participant's release is authorized pursuant to Section 1269d, the participant or the designated bail agent, or both, shall pay any authorized fee. SHOULD THE BILL BE AMENDED TO CLARIFY THE FEE PROVISIONS FOR (More) AB 1369 (Davis) PageN VOLUNTARY PARTICIPANTS? 4. Explanation of Pending, Proposed Amendments Interested parties have met, discussed, and agreed upon a few amendments to make the bill consistent with existing law and to clarify some provisions. This bill is analyzed to reflect the amendments proposed by the author and to be taken in Committee. These amendments are described below: Clarify that the time that must pass before a defendant held in lieu of bail is eligible for home detention runs from the date of arraignment. This will provide uniformity and ensure that a defendant will have a court appearance before release. Clarify that a defendant may be released on home detention under greatly reduced bail only where the defendant is placed in the home detention release program for person held in lieu of bail and the court and jail administrator determine that the defendant is eligible for such release. The defendant may make a request for release under this provision 10 court days following arraignment. Clarify that where a defendant, pursuant to request to the court, is released on home detention under greatly reduced bail, existing and standard procedures for exoneration and forfeiture of bail shall apply. These substantive and procedural rules apply where a defendant fails to appear in court. ***************