BILL NUMBER: SB 1266 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 20, 2010
AMENDED IN SENATE MARCH 23, 2010
INTRODUCED BY Senator Liu
(Principal coauthor: Assembly Member Bonnie Lowenthal)
( Coauthors: Senators Hancock
and Leno )
( Coauthor: Assembly Member
Saldana )
FEBRUARY 19, 2010
An act to add Section 1170.05 to the Penal Code, relating to
inmates.
LEGISLATIVE COUNSEL'S DIGEST
SB 1266, as amended, Liu. Inmates: alternative custody.
Existing law provides a system of prisons under the Department of
Corrections and Rehabilitation to house inmates committed to state
prison for felonies.
This bill would authorize the Secretary of the Department of
Corrections and Rehabilitation to offer a program under which female
inmates, pregnant individuals, and or
inmates who, immediately prior to incarceration, were primary
caregivers of dependent children, as defined, who are committed to
state prison may be allowed to participate in a voluntary alternative
custody program in lieu of confinement in state prison. The bill
would define an alternative custody program to include confinement to
a residential home, a residential drug or treatment program, or a
transitional care facility during the hours designated by the
Department of Corrections and Rehabilitation. The bill would
authorize the department to enter into contracts with county
agencies, not-for-profit organizations, for-profit organizations, and
others in order to promote alternative custody placements. The bill
would, among other things, provide inmate eligibility criteria,
authorize the secretary to prescribe rules and regulations for the
program, including imposing certain inmate participation
requirements, and authorize certain inmate compliance verification
procedures.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The incarceration rate for female offenders has doubled over
the last 20 years. As a result, California now has about 10,000
incarcerated women, which is more than any other state.
(b) Nearly 70 percent of female inmates are nonviolent offenders.
Two-thirds of female inmates were convicted of property or
drug-related crimes.
(c) While over half of the men in prison were incarcerated for
violent crimes, only 30 percent of women were convicted of violence.
(d) Female inmates are more likely to be victims of violent crimes
than to be the perpetrators. Four in 10 female inmates were
physically or sexually abused before 18 years of age.
(e) Over two-thirds of women are classified as low risk by the
prison classification system. However, women are often held in more
secure environments than their custody classifications would warrant.
(f) Approximately 67 percent of incarcerated women are mothers,
and many of them are single parents. Most of California's
incarcerated mothers are the primary care givers of dependent
children and hope to return home to their children. While the vast
majority of children of incarcerated men continue to live with their
mothers, children of incarcerated women are more likely to end up
living with other relatives or in foster care.
(g) Separating mothers parents from
children has a substantial impact on their futures. Children of
inmates are much more likely than their peers to become incarcerated.
Research suggests that mothers who are able to maintain a
relationship with their children are less likely to return to prison.
Research also demonstrates that a father's involvement in his
child's life greatly improves the child's chances for success.
Helping incarcerated fathers foster stronger connections with their
children, where appropriate, can have positive effects for children.
Strong family connections help to ensure that fathers stay out of
prison once they are released.
(h) To break the cycle of incarceration, California must adopt
policies that facilitate parenting and family reunification.
SEC. 2. Section 1170.05 is added to the Penal Code, to read:
1170.05. (a) Notwithstanding any other law, the Secretary of the
Department of Corrections and Rehabilitation is authorized to offer a
program under which female inmates and inmates who were primary
caregivers of dependent children immediately prior to incarceration,
as specified in subdivision (c), who are not precluded by subdivision
(d), and who have been committed to state prison may be allowed to
participate in a voluntary alternative custody program as defined in
subdivision (b) in lieu of their confinement in state prison. In
order to qualify for the program an offender need not be confined in
an institution under the jurisdiction of the Department of
Corrections and Rehabilitation. Under this program, one day of
participation in an alternative custody program shall be in lieu of
one day of incarceration in a state prison. Participants in the
program shall receive any sentence reduction credits that they would
have received had they served their sentence in a state prison, and
shall be subject to denial and loss of credit pursuant to subdivision
(a) of Section 2932. The department may enter into contracts with
county agencies, not-for-profit organizations, for-profit
organizations, and others in order to promote alternative custody
placements.
(b) As used in this section, an alternative custody program shall
include, but not be limited to, the following:
(1) Confinement to a residential home during the hours designated
by the department.
(2) Confinement to a residential drug or treatment program during
the hours designated by the department.
(3) Confinement to a transitional care facility during the hours
designated by the department.
(c) Except as provided by subdivision (d), female inmates,
pregnant individuals, and or inmates
who were primary caregivers of dependent children immediately prior
to incarceration sentenced to state prison for a determinate term of
imprisonment pursuant to Section 1170, and only those persons, shall
be eligible to participate in the alternative custody program
authorized by this section.
(d) An inmate committed to the state prison who meets any of the
following criteria shall not be eligible to participate in the
alternative custody program:
(1) The person has a current or prior conviction for a violent
offense as defined in Section 667.5.
(2) The person has a current or prior conviction for an offense
that requires the person to register as a sex offender as provided in
Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1.
(3) The person was screened by the department using a validated
risk assessment tool and determined to pose a high risk to commit a
violent offense.
(4) The person has a history, within the last 10 years, of escape
from a facility while under juvenile or adult custody, including, but
not limited to, any detention facility, camp, jail, or state prison
facility.
(e) An alternative custody program shall include the use of
electronic monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant's compliance with the rules and regulations of the
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, in which case the recording of
such a conversation is to be used solely for the purposes of voice
identification.
(f) (1) It is the intent of the Legislature that the department
shall be allocated in its budget 50 percent of the savings created by
Section 1170.5 the enactment of this section
, once savings are achieved, to administer evidence-based
practices to participants placed in alternative custody. In order to
implement alternative custody for the population specified in
subdivision (c), the department shall create, and the participant
shall agree to and fully participate in, a plan of evidence-based
programs and services that will aid in the successful reentry into
society while participating in alternative custody.
(2) The department shall collaborate with local law enforcement
and community-based programs that administer evidence-based practices
in order to prevent recidivism among individuals placed in
alternative custody and assist in reentry into society.
(3) For purposes of this section, "evidence-based practices" means
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease supervision.
(g) The secretary shall prescribe reasonable rules and regulations
under which the alternative custody program shall operate. The
department shall adopt regulations necessary to effectuate this
section, including emergency regulations as provided under Section
5058.3 and adopted pursuant to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code). The participant shall be informed
in writing that he or she shall comply with the rules and
regulations of the program, including, but not limited to, the
following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the secretary or
his or her designee.
(2) The participant shall be subject to search and seizure by a
parole officer or other peace officer at any time of the day or
night, with or without cause. In addition, the participant shall
admit any peace officer designated by the secretary or his or her
designee into the participant's residence at any time for purposes of
verifying the participant's compliance with the conditions of his or
her detention. Prior to participation in the alternative custody
program, all participants shall agree in writing to these terms and
conditions.
(3) The secretary or his or her designee may immediately retake
the participant into custody to serve the balance of his or her
sentence if the electronic monitoring or supervising devices are
unable for any reason to properly perform their function at the
designated place of detention, if the participant fails to remain
within the place of detention as stipulated in the agreement, or if
the participant for any other reason no longer meets the established
criteria under this section.
(h) Whenever a peace officer supervising a participant has
reasonable suspicion to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the secretary or his or her designee, and
without a warrant of arrest, retake the participant into custody to
complete the remainder of the original sentence.
(i) Nothing in this section shall be construed to require the
secretary or his or her designee to allow an inmate to participate in
this program if it appears from the record that the inmate has not
satisfactorily complied with reasonable rules and regulations while
in custody. An inmate shall be eligible for participation in an
alternative custody program only if the secretary or his or her
designee concludes that the inmate meets the criteria for program
participation established under this section and that the inmate's
participation is consistent with any reasonable rules and regulations
prescribed by the secretary.
(1) The rules and regulations and administrative policies of the
program shall be written and shall be given or made available to any
participant upon request.
(2) The secretary or his or her designee shall have the sole
discretion concerning whether to permit program participation as an
alternative to custody in state prison.
(j) The secretary or his or her designee shall permit 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. Willful
failure of the program participant to return to the place of
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 detention
pursuant to this section, unauthorized departures from the place of
detention, or tampering with or disabling, or attempting to tamper
with or disable, an electronic monitoring device shall subject the
participant to a return to custody pursuant to subdivisions (g) and
(h). In addition, participants may be subject to forfeiture of
credits pursuant to the provisions of Section 2932, or to discipline
for violation of rules established by the secretary.
(k) (1) Notwithstanding any other law, the secretary or his or her
designee shall provide the information specified in paragraph (2)
regarding participants in an alternative custody program to the law
enforcement agencies of the jurisdiction in which persons
participating in an alternative custody program reside.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be subject to an
alternative custody program.
(3) Any information received by a law enforcement agency pursuant
to this subdivision shall be used only for the purpose of monitoring
the impact of an alternative custody program on the community.
(l) It is the intent of the Legislature that the alternative
custody program established under this section maintain the highest
public confidence, credibility, and public safety. In the furtherance
of these standards, the secretary may administer an alternative
custody program pursuant to written contracts with appropriate public
agencies or entities to provide specified program services. No
public agency or entity entering into a contract may itself employ
any person who is in an alternative custody program.
(m) An inmate participating in this program must voluntarily agree
to all of the provisions of the program in writing, including that
he or she may be returned to confinement at any time with or without
cause, and shall not be charged fees or costs for the program.
(n) The secretary shall adopt emergency regulations specifically
governing participants in this program.
(o) For purposes of this section, "primary caregivers of dependent
children" means persons who are those primarily responsible for the
care and upbringing of one or more children.
(p) If any phrase, clause, sentence, or provision of this section
or application thereof to any person or circumstance is held invalid,
such invalidity shall not affect any other phrase, clause, sentence,
or provision or application of this section, which can be given
effect without the invalid phrase, clause, sentence, or provision or
application and to this end the provisions of this section are
declared to be severable.