BILL ANALYSIS                                                                                                                                                                                                    







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

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          AB 1487 (Hill)                                             7
          As Amended June 22, 2009 
          Hearing date:  July 14, 2009
          Penal Code
          SM:mc

                      COUNTY JAIL INMATES: COST OF MEDICAL VISITS  

                                       HISTORY

          Source:  California State Sheriffs' Association; Los Angeles  
          County Sheriff's Department 

          Prior Legislation: SB 163 (Presley) - Chap. 1070, Stats. of 1994

           Support: California State Association of Counties; Regional  
                   Council of Rural Counties; Alameda County Sheriff;  
                   Amador County Sheriff; Association for Los Angeles  
                   Deputy Sheriffs; Butte County Sheriff; Contra Costa  
                   County Sheriff; Del Norte County Sheriff; El Dorado  
                   County Sheriff; Fresno County Sheriff; Glenn County  
                   Sheriff; Humboldt County Sheriff; Mariposa County  
                   Sheriff; Mono County Sheriff; Riverside County  
                   Sheriff's Association; Plumas County Sheriff;  
                   Sacramento County Sheriff's Department; San Bernardino  
                   County Sheriff's Department; Santa Barbara County  
                   Sheriff; Santa Cruz County Sheriff; Shasta County  
                   Sheriff; Tuolumne County Sheriff; Ventura County  
                   Sheriff; Yolo County Sheriff's Department; Kern County  
                   Sheriff

          Opposition:                                             
          Disability Rights California; Legal Services for Prisoners with  




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          Children; Friends Committee on Legislation of California; Public  
          Interest Law Firm (oppose unless                       amended)

          Assembly Floor Vote:  Ayes  74 - Noes  0


                                         KEY ISSUE
           
          SHOULD THE AMOUNT COUNTY JAIL INMATES MUST PAY FOR INMATE-INITIATED  
          MEDICAL VISITS, EXCEPT AS SPECIFIED, BE INCREASED FROM $3 TO $6,  
          WITH ANY AMOUNT CHARGED OVER $3 TO BE DEPOSITED IN THE INMATE  
          WELFARE FUND TO BE EXPENDED AS SPECIFIED?

                                       PURPOSE

          The purpose of this bill is to increase the fee charged to  
          county jail inmates for inmate-initiated medical visits from $3  
          to $6.  The first $3 collected would continue to go to the  
          county or city general fund and any amount over $3 would be  
          deposited in the inmate welfare fund to be expended as  
          specified.  

           Existing law  provides that in [county and city jails and  
          holding] facilities, the facility administrator shall have the  
          responsibility to ensure provision of emergency and basic health  
          care services to all inmates.  Medical, dental, and mental  
          health matters involving clinical judgments are the sole  
          province of the responsible physician, dentist, and psychiatrist  
          or psychologist respectively; however, security regulations  
          applicable to facility personnel also apply to health personnel.  
           (Title 15 Cal. Code of Regs.,  1200.)
           
          Existing law provides that a county or a city is authorized to  
          make claim for and recovery of the costs of necessary hospital,  
          medical, surgical, dental, or optometric care rendered to any  
          prisoner confined in a county or city jail, or any juvenile  
          confined in a detention facility, who would otherwise be  
          entitled to that care under the Medi-Cal Act and who is eligible  
          for that care on the first day of confinement or detention, to  
          the extent that federal financial participation is available, or  




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          under the provisions of any private program or policy for that  
          care, and the county, city or the Department of the Youth  
          Authority shall be liable only for the costs of that care as  
          cannot be recovered pursuant to this section.  (Pen Code   
          4011.1.)
           
          Existing law  provides that, notwithstanding any reimbursement  
          available through section 4011.1, a sheriff, director of  
          corrections, or chief of police is authorized to charge a fee in  
          the amount of $3 for each inmate initiated medical visit of an  
          inmate confined in a county or city jail.  (Penal Code   
          4011.2(a).)

           Existing law  states that the fee shall be charged to the  
          inmate's personal account at the facility.  If the inmate has no  
          money in his or her personal account, there shall be no charge  
          for the medical visit, the inmate shall not be denied medical  
          care because of a lack of funds in his or her personal account  
          at the facility.  (Penal Code  4011.2(b) and (c).)

           Existing law  provides that the medical provider may waive the  
          fee for any inmate-initiated treatment and shall waive the fee  
          for any life-threatening or emergency situation, defined as  
          those health services required for alleviation of severe pain or  
          for immediate diagnosis and treatment of unforeseen medical  
          conditions that if not immediately treated could lead to  
          disability or death.  (Penal Code  4011.2(d).)

           Existing law  requires that all moneys received for inmate  
          initiated medical visits received by a sheriff, director of  
          corrections, or chief of police be transferred to the county or  
          city general fund.  (Penal Code  4011.2(f).)  

           Existing law  authorizes a county sheriff to establish, maintain  
          and operate a store in connection with the county jail and for  
          this purpose may purchase confectionary, tobacco and tobacco  
          users' supplies, postage and writing materials, and toilet  
          articles and supplies and sell these goods, articles, and  
          supplies for cash to inmates.  (Penal Code  4025(a).)





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           Existing law  provides that the sale prices of the articles  
          offered for sale at the store shall be fixed by the sheriff.   
          Any profit shall be deposited in the inmate welfare fund to be  
          kept in the treasury of the county.  (Penal Code  4025(b).)

           Existing law  provides that money and property deposited in the  
          inmate welfare fund shall be expended by the sheriff primarily  
          for the benefit, education, and welfare of the inmates confined  
          within the county jail.  (Penal Code  4025(e).)

           Existing law  authorizes the sheriff to expend money from the  
          inmate welfare fund to provide indigent inmates, prior to the  
          release from the county jail or other adult correctional  
          facility under the sheriff's jurisdiction, with essential  
          clothing and transportation expenses.  (Penal Code  4025(i).)

           This bill  would increase the fee charged to county jail inmates  
          for inmate-initiated medical visits from $3 to $6.  The first $3  
          collected would continue to go to the county or city general  
          fund and any amount over $3 would be deposited in the inmate  
          welfare fund, to be spent as specified.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  











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          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.


                                      COMMENTS

          ---------------------------
          <2>  Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).



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          1.  Need for This Bill  

          According to the author:

               California Penal Code section 4011.2 (a) authorizes a  
               sheriff, chief or director of corrections, or chief of  
               police to charge a fee in the amount of three dollars  
               ($3) for each inmate-initiated medical visit of an  
               inmate confined in a county or city jail.

               The $3 fee that is currently charged for  
               inmate-initiated medical visits has not been increased  
               since 1994. Costs of providing services have  
               subsequently increased since this fee was enacted, yet  
               the fee has not been adjusted to keep in line with  
               those costs.  AB 1487 would help bring the fee in line  
               with the increased costs, while ensuring that inmates  
               are not denied care because of an inability to pay.

               The bill also requires that any fees collected in  
               excess of the current $3 go towards the county Inmate  
               Welfare Fund (IWF).  The IWF is designed to provide  
               services essential to the benefit, welfare, and  
               educational needs of the inmates confined within the  
               detention facilities.  Any funds that are not needed  
               for the welfare of the inmates may be expended for the  
               maintenance of county jail facilities.  The sheriff  
               may also expend money from the inmate welfare fund to  
               provide indigent inmates, upon release from the county  
               jail or any other adult detention facility under the  
               jurisdiction of the sheriff, with essential clothing  
               and transportation expenses.

               AB 1487 is designed to help counties meet the fiscal  
               demands of rising costs of medical expenses while  
               ensuring that additional moneys collected are spent to  
               benefit inmate welfare.

          2.  Raising the Co-Pay for County Jail Inmates
           




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          This bill would, in essence, raise the "co-pay" for county jail  
          inmates to see a nurse or doctor from the current $3 to $6.  The  
          author, sponsors, and supporters point out that the $3 fee that  
          is currently charged for inmate-initiated medical visits has not  
          been increased since 1994 and that the fee has not been adjusted  
          to keep in line with increased medical costs.  However, because  
          the bill proposes to deposit any additional fees generated from  
          the proposed fee increase in the inmate welfare fund, there  
          would be no direct relief to the sheriff's department or the  
          county for their increased health care costs.  Any benefit to  
          the sheriffs' budgets would be indirect.  

          The Los Angeles County Sheriff's Department has informed  
          Committee staff that legislation regarding nursing practices  
          enacted in 2000 has made such inmate medical visits more  
          time-consuming and expensive by requiring an assessment and  
          documentation to take place for each visit.  In many cases,  
          after seeing the doctor or nurse, the inmate ends up just being  
          given an over-the-counter remedy.  The proposed increase in the  
          inmates' "co-pay" is intended to encourage inmates to use  
          over-the-counter remedies that are made available in vending  
          machines in lieu of the more expensive and time-consuming  
          medical visit.  Whether all inmates have access via vending  
          machines to over-the-counter remedies at the LA County Jail is  
          not clear.  Whether inmates at other, smaller jails have any  
          such access to over-the-counter remedies is doubtful.

          One issue this proposal raises is that the increased  
          disincentive to seek medical care might convince some inmates  
          who may have a more serious disease, perhaps a communicable one,  
          as well as to those with just a cold, to forego seeking medical  
          treatment.  Under existing law, and under the bill, "[i]f the  
          inmate has no money in his or her personal account, there shall  
          be no charge for the medical visit."  (Penal Code  4011.2(b).)   
          And, "[a]n inmate shall not be denied medical care because of a  
          lack of funds in his or her personal account at the facility."   
          (Penal Code  4011.2(c).)  Nonetheless, many inmates may have  
          only $10 or $20 dollars on their books.  If the inmate starts  
          experiencing symptoms of illness, he or she may then be faced  
          with a choice between buying something to eat from the  




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          commissary or seeing the nurse.  It is conceivable that an  
          inmate faced with that choice might forego the medical visit in  
          favor of a cup of Top Ramen noodles.  

          If inmates showing the first symptoms of infectious disease like  
          the flu are discouraged from seeing the doctor in favor of  
          getting something to eat, this could have the unintended adverse  
          consequence of allowing the disease to spread throughout the  
          jail.  The existing law, which the bill does not change, states:

               The medical provider may waive the fee for any  
               inmate-initiated treatment and shall waive the fee in  
               any life-threatening or emergency situation, defined  
               as those health services required for alleviation of  
               severe pain or for immediate diagnosis and treatment  
               of unforeseen medical conditions that if not  
               immediately diagnosed and treated could lead to  
               disability or death.  (Penal Code  4011.2(d).)

          The problem with this provision is that, in many instances, the  
          inmate may not know when they put in the request for a medical  
          visit, whether their symptoms are related to a condition that  
          would result in a fee waiver.  The Los Angeles Sheriff's  
          Department states that inmates are told which ailments they may  
          seek medical attention for at no charge and this would help  
          address this issue.  As with the vending machines, it is not  
          clear that this practice extends to all jails statewide.

          COULD THIS INCREASED CO-PAY DISCOURAGE INMATES WITH COMMUNICABLE  
          DISEASES FROM SEEKING MEDICAL ATTENTION?

          ARE CURRENT POLICIES IN PLACE THAT WOULD EFFECTIVELY ADDRESS  
          THAT ISSUE?

          ARE THOSE POLICIES IN EFFECT AT ALL JAILS STATEWIDE?



          3.  Use of the Inmate Welfare Fund  





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          Recently, questions have been raised about use of money  
          deposited into the Inmate Welfare Fund.  Exactly what uses this  
          money may be put to have been interpreted quite broadly by some  
          sheriffs departments.  In March of this year, the Sacramento Bee  
          reported allegations that the Sacramento County Sheriff's  
          Department spent over $1 million from the inmate welfare fund to  
          pay for additional jail security and a detention center remodel.


               "That money is supposed to go for the welfare of the  
               inmates," said Melanie Morgan, who teaches a domestic  
               violence awareness class to inmates as part of the  
               Incarcerated Men's Accountability Program, or IMAP. 


               California's penal code allows jails to set up stores  
               where inmates can buy items such as cigarettes,  
               writing materials and toiletries.  Profits go to the  
               inmate welfare fund.  The fund is also fed by proceeds  
               from inmates' collect calls - often the commissions  
               paid by telephone companies to the jail.


               The money, according to the penal code, "shall be  
               expended by the sheriff primarily for the benefit,  
               education and welfare of the inmates confined within  
               the jail."


               This fiscal year, the fund totaled $4.8 million.  But  
               its budgeted expenses included $674,000 for security  
               cameras at the main jail, $260,000 for a  
               closed-circuit television system and $175,000 for  
               construction costs at the Rio Cosumnes Correctional  
               Center, according to budget documents.


               James Lewis, chief deputy and the head of corrections,  
               said the use of funds was within "the spirit and  
               letter of the law."




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               Sheriff John McGinness said the only people who  
               profited from use of the funds were inmates.  "It  
               unequivocally contributes to the safety of the  
               facility and therefore to the welfare of the inmates  
               housed there," McGinness said.


               But Morgan said the money should have gone to people  
               programs, not mortar and brick.


               "Those kinds of things should be paid for outside with  
               a different source of money," she said. "That's  
               playing fast and loose with the intent when the  
               Legislature passed that code section."


               The controversy isn't exclusive to Sacramento.  Grand  
               juries in Orange and Los Angeles counties have  
               questioned how their sheriff's departments used inmate  
               welfare funds.


               A 2005 lawsuit in Santa Clara County accused that  
               county's department of corrections of improperly using  
               the inmate welfare fund for expenses the department  
               should have covered with general fund revenue,  
               according to a copy of the complaint.


               The county settled the suit last year.  It agreed to  
               return $1.5 million to the inmate welfare fund and  
               changed policies to limit its use, according to the  
               settlement agreement.


               "Part of our settlement is that money absolutely  
               cannot be used for security," said Kyra Kazantzis,  




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               directing attorney of the Public Interest Law Firm,  
               which represented inmates in the Santa Clara lawsuit.


               Much of the controversy over inmate welfare funds  
               comes from vague wording that dictates their use,  
               Kazantzis said.


               The penal code says, "Any funds that are not needed  
               for the welfare of the inmates may be expended for the  
               maintenance of county jail facilities."
                                                     

               That leaves too much room for interpretation,  
               Kazantzis said.


               "It's incredibly poorly drafted," she said.  "If the  
               language was crystal clear, we probably wouldn't have  
               settled. ? We were confident enough in the language  
               that we filed a lawsuit."


               The issues in Santa Clara County arose when that  
               county was having serious budget problems, Kazantzis  
               said.


               Similarly, Sacramento County is grappling with a  
               projected general fund shortfall of almost $170  
               million in the fiscal year starting July 1.


               In tough times, sheriff's departments need to find  
               ways to cover costs, McGinness said.


               "I'd clearly accept general fund money if it was  
               available," he said. "As budgets get more challenged,  




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               the potential for creativity is something we have to  
               be real careful about."


               The inmate welfare fund is an important pot of money  
               that should help rehabilitate inmates, not pay for  
               equipment or construction costs, said Mark  
               Throckmorton, director of Manalive-Sacramento Inc., an  
               anti-violence program for inmates and probationers.


               "The programs this fund is intended to provide for  
               greatly increase public safety," Throckmorton said.


               And it's not taxpayers' money, he added.


               "This is money that literally comes from the inmates  
               and their families," Throckmorton said.


               Morgan said she fears the Sheriff's Department might  
               shutter her IMAP program and HALT, the Housing  
               Alternatives and Living in Transition program at Rio  
               Cosumnes.  The inmate fund pays for HALT and IMAP and  
               other rehabilitation and recreational programs.  The  
               department already shut down the Center for  
               Corrections Alternative Programs last fall because of  
               a state-funding shortfall.


               Sheriff's officials, however, said there are no plans  
               to shut down Morgan's program or HALT.


               Morgan said she plans to contact the state attorney  
               general's office about the sheriff's use of inmate  
               welfare money.





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               "All we really want is someone to look into it,"  
               Morgan said. (Misuse of Fund to Help Inmates Alleged,  
               Sacramento Bee, Mar. 16, 2009,  
               http://www.sacbee.com/302/story/1702175.html.)


          This bill would actually create a fund within a fund by  
          specifying that, while the existing $3 co-pay will still go to  
          the county general fund, any money raised by charging inmates  
          this additional $3 co-pay will be deposited in the inmate  
          welfare fund to be spent "by the sheriff only for the benefit  
          and education of the inmates confined within the jail.  These  
          services and programs may include education, drug and alcohol  
          treatment, library and other service oriented or educational  
          programs deemed appropriate by the sheriff, including reentry  
          services pursuant to Section 4025.5."

          One issue this raises is whether the cost of administering this  
          sequestered fund within the inmate welfare fund will exceed any  
          proceeds raised.  It is also not clear whether this language  
          will be subject to the same broad interpretation as the inmate  
          welfare fund as a whole.

          WOULD ANY ADDITIONAL FUNDS GENERATED BY RAISING THE CO-PAY TO  
          JAIL INMATES FOR MEDICAL VISITS BE SPENT ON INMATE WELFARE?

          4. Argument in Support  

          The Los Angeles County Sheriff's Department states:

               California Penal Code section 4011.2(a) authorizes a  
               sheriff, chief or director of corrections, or chief of  
               police to charge a fee in the amount of three dollars  
               ($3) for each inmate-initiated medical visit of an  
               inmate confined in a county jail or city jail.  This  
               amount is insufficient to off-set the expenses  
               incurred for inmate medical care.

               The Los Angeles County Sheriff's Department  




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               expenditures for inmate medical services are  
               approximately $170 million per year.  The Sheriff's  
               Department operates 13 medical facilities and a 196  
               bed, licensed sub-acute medical facility which  
               provides basic medical, psychiatric, pharmaceutical,  
               and nursing services to prisoners in the county jail.   
               They respond to more than 7,000 inmate sick calls  
               every day and distribute prescribed medication to more  
               than 6,000 inmates every day.  This Correctional  
               Treatment Center (CTC) is the only advanced medical  
               facility in any jail facility in California.  We are a  
               model for the current federal receiver of the state  
               prison system, which has sent a team of people to  
               examine and make recommendations on how the state  
               could implement such systems and procedures.





























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               Raising the fee to six dollars ($6) and depositing the  
               additional three dollars ($3) into the inmate welfare  
               fund would enhance funds used to help inmates while in  
               county jail and for a period of time after they are  
               released. 

          5.  Argument in Opposition  

          Legal Services for Prisoners with Children writes:

               Similar to the county jails, CDCR requires state  
               prisoners to pay $5 for each inmate initiated medical  
               visit which is not related to an acute medical  
               emergency or an ongoing chronic illness.  All CDCR  
               prisoners must pay this fee unless they are determined  
               to be indigent, i.e., having less than $5 (or in some  
               cases only $1) in one's inmate account.  Our  
               organization has interviewed literally hundreds of  
               state prisoners who report that the $5 co-pay  
               frequently represents a barrier to medical care and  
               discourages utilization of services for poor  
               prisoners.  Prisoners often must choose between  
               accessing health care or, for example, purchasing  
               needed hygiene supplies such as soap and toothpaste.   
               As a result of this financial burden, prisoner  
               patients may delay treatment of a condition until it  
               is in a much more acute state, thus risking more  
               extensive and costly care.  Given California's current  
               severe budget crisis, it would seem fiscally prudent  
               to encourage early medical interventions among  
               prisoners in order to potentially save significant  
               money in the long run.

               Additionally, a January 2000 Bureau of State Audits  
               report concluded that CDCR's co-payment program failed  
               to generate the expected revenue anticipated, created  
               an undue bureaucratic burden to administrate and  
               raised questions about how collected funds were being  
               tracked and used.  The report revealed that the  




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               program cost $3.2 million per year to operate but only  
               averaged a collection of $654,000 per year.   
               Ultimately, the state auditor recommended the  
               elimination of the state's prison co-pay program. 

               Our organization has several other concerns regarding  
               AB 1487.  Unlike prisoners in the state correctional  
               system who are sometimes able to generate income  
               through their participation in a paid prison work  
               assignment, people incarcerated in county jails lack  
               the ability to work and earn money.  They are totally  
               dependent on their own existing financial resources or  
               from the support of loved ones.  We suspect the  
               existing $3 fee already poses a great challenge for  
               many county jail prisoners.  

               AB 1487 states that the additional $3 collected will  
               go towards the Inmate Welfare Fund (IWF).  Under  
               California Penal Code Section 4025, the Inmate Welfare  
               Fund "is mandated to provide services essential to the  
               benefit, welfare, and educational needs of the inmates  
               confined in detention facilities."  In recent years,  
               several County Sheriff's Departments (including  
               Sacramento, Orange County, Los Angeles and Santa  
               Clara) have come under fire for diverting funds from  
               the IWF in order to pay for expenses which should have  
               been covered with general fund revenues, such as  
               additional jail security and a detention center  
               remodel.  As a result, our organization is deeply  
               concerned that AB 1487 will not fulfill its promise to  
               help prisoners.


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