BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 125 (Benoit)
As Amended March 23, 2009
Hearing date: April 21, 2009
Penal Code
MK:br
UNDOCUMENTED CRIMINAL ALIENS: COSTS OF INCARCERATION :
COLLECTION OF DATA
HISTORY
Source: Author
Prior Legislation: SB 1608 (Karnette) Ch. 924, Stats. 2004
SB 300 (Karnette) - 2003, failed on Assembly Floor,
provisions subsequently deleted
SB 1544 (Karnette) - vetoed September 29, 2002
AJR (Firebaugh and Aanestad) Res. Ch. 108, Stats.
2001
SJR 40 (Polanco) - 2000, held in Assembly
SB 1314 (Johanessen) Ch. 567, Stats. 1994
SB 1878 (Torres) Ch. 565, Stats. 1994
AB 1874 (Epple) Ch. 566, Stats. 1994
AB 2519 (Nolan) - Ch. 1322, Stats. 1992
Support: CCPOA; County of San Diego; Riverside Sheriffs'
Association; Association for Los Angeles Deputy
Sheriffs; Howard Jarvis Taxpayers Association
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Opposition:California Immigrant Policy Center; ACLU; Taxpayers
for Improving Public Safety; Coalition for Humane
Immigrant Rights of Los Angeles
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION BE REQUIRED
TO ANNUALLY BILL THE FEDERAL GOVERNMENT IN WRITING FOR THE FULL COST
OF INCARCERATING ANY UNDOCUMENTED CRIMINAL ALIEN WITHIN CALIFORNIA'S
CORRECTIONAL SYSTEM?
SHOULD THE LAW PROVIDE THAT IF THE FEDERAL GOVERNMENT DOES NOT PAY
THE FULL COST OF INCARCERATING UNDOCUMENTED CRIMINAL ALIENS IN
CALIFORNIA, THE ATTORNEY GENERAL SHALL UTILIZE ALL AVAILABLE LEGAL
RESOURCES TO OBTAIN COMPLIANCE WITH PAYMENT OF THE WRITTEN BILL?
SHOULD THE LAW REQUIRE THE DEPARTMENT OF JUSTICE TO COLLECT DATA ON
THE TOTAL NUMBER AND PERCENTAGE OF UNDOCUMENTED ALIEN INMATES IN ALL
STATE AND LOCAL FACILITIES AND PUBLISH THAT DATA ON THE INTERNET WEB
SITE OF THE DEPARTMENT?
PURPOSE
The purpose of this bill is to require the Department of
Corrections and Rehabilitation to bill the federal government
for the incarceration of all undocumented inmates in California
prisons; to require the Attorney General to use all legal means
to obtain compliance with the request for reimbursement; and to
require the Department of Justice to collect data on the number
of incarcerated undocumented aliens in California and publish
that data on the Web site of the DOJ.
Existing law requires that the Department of Corrections and
Rehabilitation ("CDCR") do the following:
Upon the entry of any person who is currently or was
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previously a foreign national into a facility operated by
the CDCR, and at least every year thereafter, the Secretary
of CDCR shall inform the person that he or she may apply to
be transferred to serve the remainder of his or her prison
term in his or her country of origin and that he or she may
contact his or her consulate.
Upon the request of a foreign consulate representing a
nation that requires mandatory notification under the
Vienna Convention provide the foreign consulate with a list
of the names and locations of all inmates in its custody
that have self-identified that nation as his or her place
of birth.
Implement and maintain procedures to process
applications for the transfer of prisoners to their
countries of origin and forward the applications to the
Board of Parole Hearings for appropriate action. (Penal
Code 5028.)
Existing law requires that CDCR shall implement and maintain
procedures to identify, within 90 days of assuming custody,
inmates or wards who are undocumented felons subject to
deportation and sets forth specified things that the procedures
must include. (Penal Code 5025.)
Existing law provides that CDCR shall refer to the United States
Immigration and Naturalization Service the name and location of
any inmate or ward who may be an undocumented alien ward who may
be subject to deportation for a determination of whether the
inmate or ward is undocumented. The case files should be made
available to the Immigration and Naturalization Service for
purposes of investigation. (Penal Code 5025)
Existing federal law provides that the State Criminal Alien
Assistance Program (SCAAP) provides federal payments to states
and localities that incurred correctional officer salary costs
for incarcerating undocumented criminal aliens with at least
one felony or two misdemeanor convictions for violations of
state or local law, and incarcerated for at least 4
consecutive days during the reporting period. (Section 241(i)
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of the Immigration and Nationality Act, 8 U.S.C. 1231(i), as
amended, and Title II, Subtitle C, Section 20301, Violent
Crime Control and Law Enforcement Act of 1994, Public Law
103-322.)
This bill provides that the Secretary of CDCR shall annually
bill the federal government, in writing, for the full cost of
incarcerating any undocumented criminal alien incarcerated
within California's correctional system.
This bill provides that if the federal government does not make
the payment demanded above the Attorney General shall utilize
all available resources to obtain compliance with payment of the
written bill.
This bill provides that the Department of Justice shall collect
data on the total number and percentage of undocumented alien
inmates in all state and local correctional institutions in the
state and publish this data, on the Internet Web site of the
department. This data shall be initially collected and
published on or before July 1, 2011, and thereafter updated and
published annually on or before July 1 of each year.
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
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<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
1. Need for This Bill
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<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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According to the author:
SB 125 would apply needed pressure on the Federal
Government to fairly compensate California for the
full cost of incarcerating illegal immigrants in
California's prisons.
According to statistics obtained from the United
States Department of Justice, illegal immigrants
comprise 15% of California's prison population. Each
inmate costs California taxpayers an estimated
$35,587. The California Department of Corrections
and Rehabilitation spent $662.4 million housing
illegal immigrants in the 2005-06 fiscal year and
spent almost $800 million in 2008-2009. Overall,
between 2005 and 2008, there was an 11% increase in
the number of illegal immigrants housed in our state
prisons.
Currently, the Federal Government provides only a
partial "take it or leave it" payment to states for
the costs they incur incarcerating illegal immigrants
in state prisons. This payment, administered through
the State Criminal Alien Assistance Program (SCAAP),
means that Californians are currently paying
approximately 89% of the costs to imprison illegal
immigrants, while the Federal Government picks up the
remaining 11%.
In the 2008-09 fiscal year, California's costs are
estimated to be $915 million. The Federal
Government's reimbursement of only $118 million does
not keep pace with the state's rising costs.
United States Code (8 U.S.C. 1231(I)(2)) requires the
United States' Attorney General to either "enter into
a contractual agreement which provides for
compensation to the State . . . with respect to the
incarceration of the undocumented criminal alien; or
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. . . take the undocumented criminal alien into the
custody of the Federal Government and incarcerate the
alien."
If the Federal Attorney General elects to compensate
the State, the federal statute requires him to
determine the compensation based on the "average cost
of incarceration of a prisoner to the relevant
state." The pittance California now receives from
the Federal Government does not even come close to
complying with this law and covering the cost to
California taxpayers.
California prisons are severely overcrowded. SB 125
is a responsible way to help solve the serious
problem of overcrowding that California prisons are
facing without increasing costs to taxpayers or
letting dangerous criminals run free in our
communities.
2. Send Bill to the Federal Government for Undocumented Inmates
Currently, the Department of Corrections and Rehabilitation
(CDCR) applies yearly to the federal government for
reimbursement for the housing of all undocumented immigrant
inmates under the State Criminal Alien Assistance Program
(SCAAP). Under SCAAP, CDCR is actually permitted to apply for
reimbursement for any inmate that is foreign born. Since only
the federal government, not California, can determine whether
someone is in the country illegally, this ability to be
overinclusive gives California the ability to have a greater
chance at higher reimbursement. However, generally the
reimbursement rate runs around ten percent. In fiscal year
2008, according to the SCAAP Web site, the State of California
received $118,030,160 from SCAAP. Fifty-two counties in
California also received money ranging in from $2,024 for
Mariposa County to $14,054,100 for Los Angeles County. Eleven
counties received in the $1 million to $3 million range.
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(http://www.ojp.usdoj.gov/BJA/grant/scaap.html)
This bill requires the Secretary of CDCR to annually bill the
federal government, in writing, for the full cost of
incarcerating any undocumented criminal alien incarcerated
within California's correctional system. As noted above, CDCR
already applies annually for reimbursement by applying for funds
through SCAAP, a process set up for this purpose. Therefore, it
appears that CDCR already is complying with the billing
requirements of this bill. It is unclear that additional
reimbursement from the federal government could be obtained if
an invoice were submitted outside the SCAAP process, and how
such an invoice could be submitted.
The ACLU argues that SCAAP would preempt this new requirement
stating:
While in recent years there has been much political
debate as to whether the federal government is
fulfilling its obligations to fund the states for
costs associated with incarcerating undocumented
immigrants, the federal government's enactment of law
establishing the SCAAP program and its general
regulation and enforcement of immigration matters is
likely to preempt state regulation and enforcement in
this area. See, e.g. League of United Latin American
Citizens v. Wilson 908 F. Supp. 755, 771, 776 (C.D.
Cal. 1995); subsequently reaffirmed, 997 F. Supp.
1244, 1250, 1252, 1261 (C.D. Cal 1997).
SINCE CDCR ALREADY APPLIES ANNUALLY FOR REIMBURSEMENT OF
UNDOCUMENTED PERSONS WHEN IT APPLIES FOR SCAAP MONEY, WHAT IS
CONTEMPLATED BY THIS BILL?
DOES SCAAP PREEMPT ANY STATE LAW REQUIRING A DEMAND FOR
REIMBURSEMENT?
3. Attorney General to Utilize Legal Sources to Obtain Compliance
This bill provides that if the federal government does not fully
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reimburse California for the costs requested by CDCR, then the
Attorney General shall utilize all available legal resources to
obtain compliance with payment of the bill. The idea of trying
to force the federal government to pay for the costs of
undocumented immigrants incurred by California is not new. The
Wilson administration brought a lawsuit to collect not only
costs of incarceration but also costs of education and other
costs. The lawsuit was unsuccessful and the court found that
there was no standing for the state to bring the suit.
Specifically, the court dismissed the argument relating to
incarceration stating:
California also contends in Count IX that the United
States has violated the Tenth Amendment because
federal immigration policy causes the State to incur
the costs of incarcerating those illegal aliens who
commit crimes within the State. California reasons
that because the United States has failed to
effectively enforce its immigration policies, the
Federal Government has essentially "commandeered" the
State's legislative process by forcing California to
allocate money and human resources to both
incarcerate illegal alien felons and supervise their
parole.
The Court concludes that California has failed to
allege a Tenth Amendment violation because no federal
mandate requires California to pursue a penal policy
resulting in these costs. See Padavan, 82 F.3d at
28-29 (reaching same result); New Jersey, 91 F.3d at
467 (reaching same result). (California v. United
States, 104 F.3d 1086, 1092-1093 (9th Cir. Cal.
1997).)
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SINCE A LAWSUIT HAS ALREADY BEEN BROUGHT AGAINST THE FEDERAL
GOVERNMENT AND CALIFORNIA LOST, WHAT LEGAL MEANS ARE
INTENDED BY THIS BILL?
4. Data Collection
This bill requires that the Department of Justice collect data
on the total number of, and percentage of, undocumented alien
inmates in all state and local correctional institutions in the
state and publish the data on CDCR's Web site by July 1, 2011.
CDCR cannot determine whether or not a person is an undocumented
immigrant. They can determine that a person is foreign born or
that a person has a Immigration and Customs Enforcement(ICE)
hold but neither of these are determinative on whether a person
is in the country legally or not. As noted above, the SCAAP
application gives CDCR much leeway in their determination so
they rely solely on the fact that a person is foreign born,
knowing that this is not a final determination of their status.
The California immigrant Policy Center and the ACLU argue that
not only are ICE holds an unreliable determination on a person's
legal status, but mistakes based on reliance can be expensive:
While some people with "ICE holds" are in the United
States without authorization, many others are lawful
permanent residents, and a smaller number are actually
U.S. citizens. The unavoidable mistakes made by
ill-prepared states and local officials in determining
an individual's immigration status can be costly,
resulting in lawsuits and protracted litigation. See,
e.g. Soto-Torres v. Johnson, CIV S-99-16595 WBS/DAD
(E.D. Cal. Filed 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.)
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SINCE IT IS NOT POSSIBLE FOR CDCR TO MAKE A DETERMINATION AS TO
SOMEONE'S IMMIGRATION STATUS, WHAT INFORMATION ARE THEY SUPPOSED
TO USE?
SINCE ONLY THE FEDERAL GOVERNMENT CAN DETERMINE IMMIGRATION
STATUS, WHAT RELEVANCE AND HOW USEFUL WOULD ANY DATA CDCR COMES
UP WITH BE?
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