BILL ANALYSIS AB 2333 Page 1 Date of Hearing: April 6, 2010 Counsel: Nicole J. Hanson ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2333 (Emmerson) - As Introduced: February 19, 2010 SUMMARY : Prohibits county probation officers from placing an individual under his or her supervision, who is believed to be undocumented, in a residential facility in another county. Specifically, this bill : 1)Mandates that a county probation officer shall not place a person subject to his or her supervision, who the officer has reason to believe may be in the county illegally, in a work furlough facility, halfway house, rehabilitation facility, or similar residential facility located in any other county if the person is subject to probation supervision because of an offense that occurred in the probation officer's county. 2)Allows placement of a person suspected of being in the county illegally if he or she is a resident of that county. 3)Provides that if the person is a minor, the aforementioned does not apply to the placement of the minor in a county if one of the minor's parents or legal guardians is a resident of that county. EXISTING LAW : 1)Provides that probation services are an essential element in the administration of criminal justice. The safety of the public, which shall be a primary goal through the enforcement of court-ordered conditions of probation; the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant shall be the primary considerations in the granting of probation. (Penal Code Section 1202.7.) 2)States that persons placed on probation by a court shall be AB 2333 Page 2 under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court ordered conditions of probation. [Penal Code Section 1202.8(a).] 3)Mandates that if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment. [Penal Code Section 1203(b)(1).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author of this bill, "Sanctuary cities are municipalities that do not use its resources or funds to assist federal authorities with immigration laws. In California, a few cities have adopted varying sanctuary city polices that protect suspected illegal immigrants from being reported to the Immigration and Customs Enforcement (ICE) agency. This bill would prohibit these sanctuary cities, whose policies are in direct violation of federal law, from releasing suspected illegal immigrants who have committed a crime to other counties. "San Francisco has a sanctuary city policy that extends to suspected illegal immigrants who are accused of committing serious crimes. At one time, San Francisco's juvenile probation officials were flying illegal juvenile offenders back to their homeland, rather then sending them to federal authorities where they would face deportation and be banned from ever coming back to the United States. After federal authorities learned of these flights, San Francisco discontinued this practice and instead sent these illegal youth offenders to group homes in different counties throughout the state. "In 2008, San Francisco sent eight young Honduran crack dealers to an unlocked group home in San Bernardino County. Within days, all eight illegal offenders escaped from the group home, causing a public safety hazard in San Bernardino. The AB 2333 Page 3 previous year, San Francisco sent four illegal offenders to the same group home, where they also escaped shortly after their arrival. As of late 2008, many of these offenders were still at large. "AB 2333 is a measure that would protect counties throughout California by not allowing sanctuary cities to place suspected illegal immigrant offenders in group homes or other similar residential facilities outside of its jurisdiction. This bill will also ensure that law enforcement doesn't have to expend its valuable resources on illegal offenders that were arrested outside of their county." 2)Federal Preemption : Case law has recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. [See, e.g., Mathews v. Diaz (1976) 426 U.S. 67; Graham v. Richardson (1971) 403 U.S. 365, 377-380; Takahashi v. Fish & Game Comm'n (1948) 334 U.S. 410, 418-420 (1948); Hines v. Davidowitz (1948) 312 U.S. 52, 62-68; Truax v. Raich (1915) 239 U.S. 33, 42.] Federal authority to regulate the status of aliens derives from various sources, including the Federal Government's power "[to] establish [a] uniform Rule of Naturalization" (U.S. Const., Art. I, 8, cl. 4), its power "[to] regulate Commerce with foreign Nations" (Id., cl. 3), and its broad authority over foreign affairs. [See United States v. Curtiss-Wright Export Corp. (1936) 299 U.S. 304, 318; Mathews v. Diaz, supra, at 81, n. 17; Harisiades v. Shaughnessy (1952) 342 U.S. 580, 588-589.] "The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." [Takahashi v. Fish & Game Comm'n, supra, 334 U.S. at 419.] Despite the fact that the power to regulate immigration is AB 2333 Page 4 exclusively federal, the fact that a state statute simply pertains to aliens does not render it, per se, preempted by federal immigration law. [De Canas v. Bica (1976) 424 U.S. 351, 354-356.] In De Canas, the United States Supreme Court held that a state statute related to immigration is preempted by federal law if it is a regulation of immigration, which is essentially a "determination of who should or should not be admitted into the country . . . " or if it attempts to regulate a subject matter with respect to which Congress has intended to completely oust state power. (Id. at 355-357.) This bill does not encroach upon the exclusivity of federal immigration law. As case law indicates, the exclusive province of the Federal Government to regulate and enforce federal immigration laws lies within the determination of who should or should not be admitted into the United States. This bill does not regulate admission or deportation persons into the United States; this bill simply prohibits county probation officers from placing an individual under his or her supervision who is believed to be undocumented in a residential facility in another county. Although, this bill does not encroach upon federal exclusivity of federal immigration law, with regards to admission or deportation, states are not encouraged to supply the INS with information regarding undocumented persons unless specifically asked to do so. This issue is discussed below. 3)Probation Officers Working as "Immigration Watchdogs" : This bill increases the burden already incurred by overworked probation departments by mandating that they prevent suspected undocumented immigrants from obtaining treatment outside of their jurisdiction. With the increasing number of felons not committed to state prison due to overcrowding and the limitations imposed on commitments made to the Division of Juvenile Justice (DJJ), all probation officers are faced with increasing caseloads. Probation officers play a vital role in the criminal justice process by assisting in the rehabilitation and reintegration of probationers. This bill hampers that goal by preventing suspected undocumented immigrants from receiving the treatment they need. Moreover, immigration laws are extremely complex and the unavoidable mistakes made by ill-prepared law enforcement officials in determining an individual's immigration status AB 2333 Page 5 can be costly, resulting in lawsuits and protracted litigation, especially if an individual is wrongly detained because of assumptions about his or her immigration status. [See, e.g., Soto-Torres v. Johnson (E.D. Cal filed August 30, 1999) CIV S-99-1695 WBS/DAD (County and federal officials paid $100,000 to settle the case after the county probation officer made an erroneous determination regarding plaintiff's deportability which resulted in wrongful arrest and detention of plaintiff by immigration authorities.).] Litigation is also ongoing in the U.S. District Court for the Central District of California in Guzman v. Chertoff (C.D. Cal., filed Feb. 27, 2008) No. 2:08-cv-01327-GHK-SS, a case brought against Los Angeles County Sheriff's employees and federal immigration agents by a U.S. citizen, Pedro Guzman, who was deported upon the advice of a county employee. Mr. Guzman, who is developmentally disabled, was lost in Mexico for three months following the improper deportation and is suing local and federal authorities for damages. Thus, this bill subjects counties to costly lawsuits by forcing probation officers to make judgment outside their expertise, which inevitably leads to erroneous referrals to federal immigration authorities. Lastly, the general policy of Immigration and Naturalization Service (INS) with regard to states supplying information about suspected undocumented aliens seems to discourage the states from asking for that information when the INS does not specifically request such information. In Doe v. Miller (N.D. Ill. 1983) 573 F. Supp. 461, the court invalidated a state policy of demanding information about residency status from undocumented aliens. INS asked for the information only when an applicant could not document his or her residency status for a federal food-stamp program. (Id. at 463.) The legislative history of the statute which required the names of suspected undocumented aliens explicitly stated that INS did not want the state workers acting as "outreach officers of INS." (Id. at 466.) State case workers were informed that: [T]he Committee expects the Secretary and the State agencies to exercise special care to prevent potential human abuse flowing from this reporting requirement. Effective and efficient administration of this reporting requirement demands the utmost in caution and concern for human rights as well as sensitivity to the serious harm caused by subconscious as well as conscious prejudice and discrimination. (Ibid.) AB 2333 Page 6 Hence, the instruction given by Congress stands as a clear statement that the INS does not want the state acting as an "immigration watchdog" for INS. Congress recognized that if the states had free license to report suspected undocumented aliens, any person could fall under a state worker's unwarranted scrutiny. 4)Suspected Undocumented Persons : The Constitution requires that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." [U.S. Const. 5th Amend. (emphasis added).] The Constitution also provides, "nor shall any State. . . Deny to any Person within its jurisdiction the equal protection of the laws." [Id. 14th Amend., 1 (emphasis added).] It seems significant that "person" rather than "citizen" is the beneficiary of these protections, adding weight to the contention that a non-citizen is entitled to equal protection. "[T]he Due Process Clause applies to all 'persons' within the United States, including non-citizens, whether their presence here is lawful, unlawful, temporary, or permanent." [Zadvydas v. Davis (2001) 533 U.S. 678, 693; see also Landon v. Plasencia (1982) 459 U.S. 21, 32-33 (noting that permanent resident aliens are entitled to a high degree of due process, approaching that accorded to citizens); cf. Rest.3d, Foreign Relations Law, 701 (1986) ("A state is obligated to respect the human rights of persons subject to its jurisdiction"); Id. 722 ("An alien in the United States is entitled to the guarantees of the United States Constitution other than those expressly reserved for citizens.").] A statutory classification that does not burden a suspect class or infringe upon the exercise of a fundamental right must be upheld against equal protection challenge "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." [Federal Communications Commission v. Beach Communications, Inc. (1993) 508 U.S. 307.] Strict scrutiny applies where the classification burdens a suspect class or fundamental right. [Ibid.; City of Cleburne, Texas v. Cleburne Living Center Inc. (1985) 473 U.S. 432).] Undocumented or "illegal" aliens are not a suspect class in an equal protection analysis. [Plyler v. Doe (1982) 457 U.S. 202, 219 n.19.] The Supreme Court has observed that "entry AB 2333 Page 7 into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime." (Ibid.) The Court also expressed the view that "those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation." (Id. at 220.) Thus, the government's different treatment of aliens will "be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." [FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313.] In Lizarrago-Lopez v. U.S. (D. Cal.2000) 89 F.Supp. 2d 1166, 1170, non-citizen inmates were not permitted to take part in home or community confinement programs. The court concluded that, under an equal protection analysis, legitimate policy interests provided adequate grounds to uphold differential treatment. That court reasoned, "The United States has no policy interest whatsoever in facilitating the re-introduction of non-citizen convicts into foreign communities." [Id. at 1170 (emphasis added).] Lizarraga-Lopez's status is not "likely to cause a fortuitous increase in the severity of his sentence." (Ibid.) Other courts have held generally that the denial of placement in a halfway house or home detention does not significantly enhance the severity of a defendant's sentence. [Palafox-Barajas (S.D. Cal., Dec. 8, 1999) 1999 WL 1338451, at *2.] This bill is dissimilar from Lizarrago in that this bill prohibits probation officers from placing suspected undocumented probationers in a residential treatment facility in a county outside the officer's county of jurisdiction. Thus, no actual, legal determination of a person's status is made. Instead, this bill invites mass racial profiling as probation officers are not trained or legally competent to determine an individual's federal immigration status. Instead, probation officers would be forced to rely on whether a person looks or sounds "foreign." This bill is silent as to how a determination will be made into whether or not a defendant is within the United States illegally. State officials will be compelled to rely on discriminatory characteristics suggesting that an individual is foreign, i.e., name, accent, language ability, or physical attributes. AB 2333 Page 8 Population projections also show a growing Hispanic population in this country. The Bureau of the Census estimates that by 2050 Hispanics will constitute nearly 25% of the U.S. population. [See U.S. Dep't of Commerce, Current Population Reports: Population Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995 to 2050 (1996) at 13 tbl.J.] Each year, hundreds of thousands of persons of Latin American ancestry are lawfully admitted to this country. In fiscal year 1997 alone, the United States admitted over 146,000 lawful permanent residents from Mexico. (See 1997 INS Statistical Yearbook, supra note 169, at 21 tbl.C.) Over 640,000 Mexican immigrants in 1971-80, about 1.7 million in 1981-90, and over 1.8 million in 1991-97 lawfully immigrated to the United States. (See Id. at 26 tbl.2.) In fiscal years 1988-97, nearly 600,000 Mexican immigrants naturalized and became U.S. citizens. (See Id. at 148 tbl.47.) In California, the southern border is one of the focal points of U.S. immigration enforcement Hispanics comprised over one-quarter of the state's population in 1990. [See Stiles et al., California Latino Demographic Databook (1998) 2-5 tbl.2.1.] Hispanics constitute a large percentage, sometimes even a majority, of the population in many localities on or near California's Mexican border. (See Id. at 2-32, 2-34.) For example, in Imperial County, Hispanics constitute over 70% of the population. [See U.S. Dep't of Commerce, Population Estimates for Counties by Race and Hispanic Origin: July 1, 1999 (1999).] Given the millions of Latinos residing lawfully in the United States, "Hispanic appearance" holds little probative value in determining whether a person lacks proper immigration documentation. In Equal Protection terms, the classification is over-inclusive with respect to the ostensible goal of identifying undocumented persons. Like the proverbial "dragnet," this bill punishes "the innocent bystander, the hapless victim of circumstance or association . . . . Such classifications fly squarely in the face of our traditional antipathy to assertions of mass guilt and guilt by association." [Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment (1999) 74 N.Y.U. L. Rev. 956, 957.] This bill encourages arbitrary and unreasonable enforcement. Under the Equal Protection doctrine, the Supreme Court has AB 2333 Page 9 held that racial classifications are constitutionally suspect and subject to strict scrutiny. [City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469.] This bill treads in murky constitutional water. 5)Common Misconception: Immigrants Commit More Crime : In February 2008, the Public Policy Institute of California (PPIC) released a study, "Crime, Corrections, and California: What Does Immigration Have to Do with It?" PPIC is a private, non-profit organization dedicated to informing and improving public policy in California through independent, objective, non-partisan research. The study was statistically based and examined the present institutional population in California. The study found that immigrants are far less likely than the average United States native to commit crime in California. For example, among men ages 18 to 40 (the age group most likely to commit crime), United States-born inmates are 10 times more likely than the foreign-born inmates to be in jail or prison. Even among non-citizen men from Mexico ages 18 to 40 (a group disproportionately likely to have entered the United States illegally), the authors find very low rates of institutionalization. Such findings suggest that longstanding fears of immigration as a threat to public safety are unjustified. The entire study can be found at http://www.ppic.org/content/pubs/cacounts/CC_208KBCC.pdf. 6)Argument in Support : According to the San Bernardino County Sheriff's Department , "San Francisco has a sanctuary city policy that extends to suspected illegal immigrants who are accused of committing serious crimes. In June 2008[,] San Francisco sent eight juvenile Honduran crack dealers to an unlocked group home in San Bernardino County (Yucaipa) without notification. Within days, all eight illegal offenders escaped from the group home, causing a public safety hazard in San Bernardino County. "AB 2333 will also ensure that law enforcement doesn't have to expend its valuable resources on illegal offenders that were arrested outside of their county." 7)Argument in Opposition : According to the Asian Americans for Civil Rights and Equality , "AB 2333 requires that probation officers expend their limited resources investigating the AB 2333 Page 10 immigration status of individuals, thus diverting probation officers from carrying out their core duties of developing and monitoring probation plans for individuals under their supervision to ensure their rehabilitation and community safety. The added responsibility from this ill-conceived policy will undoubtedly hamper the efficiency of probation departments throughout California and exhaust already limited local funds for federal immigration related purposes. In addition, individuals will be fearful of cooperating with probation officers to develop and follow rehabilitation plans if probation officers become de facto immigration officers, thereby jeopardizing public safety. "AB 2333 also is particularly problematic because it requires probation officers to make judgments regarding an individual's immigration status when probation officers are ill-equipped to do so. The International Association of Chiefs of Police (IACP), the leading law enforcement association in the United States, notes that '[i]mmigration law is very detailed and complex . . . with one's immigration status not always being easily ascertained' and therefore, '[s]pecialized training is required to equip state and local officers with the basic ability to determine whether persons they have encountered are legal or illegal immigrants.' (John Firman, IACP, Police Chiefs Guide to Immigration Issues 43-44 (Aug. 3, 2007), available at http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefs Guideto Immigration.pdf.) Accurately determining an individuals immigration status, especially that of a minor's, is a difficult task requiring training and experience in immigration law. "In addition, because the cost and time required for adequate training is likely probative, probation officers will inevitably make mistakes regarding determination of immigration status and thereby subject counties to liability through erroneous referrals. As the IACP notes, '[e]ffective training will likely be lengthy, requiring an extraordinary commitment of agency resources. Failure to train effectively carries significant ramifications, risks and liability.' (Id. at 14.) If AB 2333 were passed, it would open the door for untrained probation officers to infringe on the constitutional rights of individuals lawfully present in the county thereby subjecting local and state agencies to costly lawsuits. [See Soto-Torres v. Johnson, CIV S-99-1695 WBS/DAD (E.D. Cal. filed AB 2333 Page 11 Aug. 30, 1999) (County and federal officials paid $100,000 to settle the case after the County probation officer made an erroneous determination regarding plaintiff's deportability which resulted in wrongful arrest and detention of plaintiff by immigration authorities.)] Litigation is also ongoing in the U.S. District Court for the Central District of California in Guzman v. Chertoff, Case No. CV-08-01327, a case brought against Los Angeles County Sheriff's employees and federal immigration agents by a U.S. citizen who was deported upon the advice of a County employee. Mr. Guzman, who is developmentally disabled, was lost in Mexico for three months following the improper deportation and is suing local and federal authorities for damages. AB 2333 subjects counties to costly lawsuits by forcing probation officers to make judgment outside their expertise, which inevitably leads to erroneous referrals to federal immigration authorities. "Finally, AB 2333 seeks to institute restrictions on probation officers over a matter which they may have little or no control. Specifically, it requires that no individual who is believed to be unlawfully present be placed in a residential facility in another county. Due to increasingly tight budgets, many counties may not have the resources or capacity to house individuals within their county, but rather must place the individuals in other counties. This practice is not uncommon in a state with increasingly limited resources. Governor Schwarzenegger, for example, under emergency proclamation due to the prison overcrowding crisis, has subjected some California prison inmates to involuntary out of state transfers to serve the remainder of their sentences in other states. In addition, while probation officers may make recommendations regarding placement of individuals in residential facilities, in most cases, the court ultimately makes the decision regarding placement based on availability and suitability of the placement. As a result, AB 2333 places a heavy burden on probation officers that they cannot meet." 8)Prior Legislation : a) AB 1081 (Garrick), of the 2007-08 Legislative Session, would required the Secretary of California Department of Corrections and Rehabilitation (CDCR) to enter into an agreement with the United States Department of Homeland Security for ICE to train and authorize certain CDCR personnel to perform functions relating to the AB 2333 Page 12 investigation and processing of inmates who are illegally within the United States. AB 1081 failed passage in this Committee. b) AB 1882 (Garrick), of the 2007-08 Legislative Session, would have required an arresting agency to report to ICE if the arresting agency has reason to believe a person arrested for driving under the influence of alcohol or drugs is an illegal alien. AB 1882 failed passage in this Committee. c) AB 2141 (Tran), of the 2007-08 Legislative Session, would have required CDCR to verify the immigration status of any new prisoner under CDCR's custody. AB 2141 also demanded that correctional officers to cooperate with ICE in the verification and any deportation process for these prisoners, and would provide that correctional officers shall be trained in cooperation with ICE to conform with laws and regulations pertaining to immigration and customs. AB 2141 failed passage in this Committee. d) AB 2418 (Huff), of the 2007-08 Legislative Session, would have prohibited persons charged with specified violent or gang-related felonies to be eligible for bail or released on his or her own recognizance pending trial, if at the time of the alleged offense, he or she was illegally within the United States. AB 2418 failed passage in this Committee. e) AB 2420 (Huff), of the 2007-08 Legislative Session, would have prohibited law enforcement or any local governing body from adopting an ordinance or rule, or otherwise implement a policy, that prohibits law enforcement officers from initiating action to discover a person's alien status or that prohibits a law enforcement officer from arresting or booking a person for entering the United States illegally. AB 2420 failed passage in this Committee. f) AB 2422 (Huff), of the 2007-08 Legislative Session, required CDCR to implement and maintain procedures to identify inmates serving terms in state prison or wards of the Division of Juvenile Facilities who are undocumented aliens subject to deportation. The CDCR shall refer to ICE the name and location of any inmate or ward who has AB 2333 Page 13 committed a violent felony or a gang-related felony, and who may be an undocumented alien and who may be subject to deportation. AB 2422 failed passage in this Committee. g) AB 332 (Bogh), of the 2005-06 Legislative Session, would have provided that it would be the policy of California that no law enforcement entity or any local governing body may adopt any ordinance, rule, regulation or order, or otherwise implement a policy that prohibits law enforcement officers from initiating action to discover a person's immigration status, or that prohibits a law enforcement officer from arresting or booking a person for entering the United States illegally. AB 332 failed passage in this Committee. h) SB 1314 (Johannessen), Chapter 567, Statutes of 1994, required state correctional agencies, within 48 hours of establishing identifying information, to transfer undocumented felons to the custody of the Attorney General of the United States and required that evaluation and classification procedures cease once identity as undocumented felons has been established. This law was contingent upon enactment of federal legislation requiring the United States government to imprison any undocumented alien convicted of a felony in California in the federal prison system. REGISTERED SUPPORT / OPPOSITION : Support California State Sheriffs' Association Californians for Population Stabilization Peace Officers Research Association of California San Bernardino County Sheriff's Department Opposition American Civil Liberties Union Asian Americans for Civil Rights and Equality California Immigrant Policy Center California Public Defenders Association Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916) AB 2333 Page 14 319-3744