BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair             A 
                             2009-2010 Regular Session               B

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          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
           




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                                                            AB 1369 (Davis)
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          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  




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                                                            AB 1369 (Davis)
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          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.





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                                                            AB 1369 (Davis)
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           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  




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            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.  




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                                                            AB 1369 (Davis)
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           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  




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                                                            AB 1369 (Davis)
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          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  




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            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  




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          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.)




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               . . .

               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).




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           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  




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               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. 










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          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  




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          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.


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