BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1266 (Liu) 6
As Amended March 23, 2010
Hearing date: April 13, 2010
Penal Code
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DEPARTMENT OF CORRECTIONS AND REHABILITATION:
"ALTERNATIVE CUSTODY" FOR FEMALE INMATES AND INMATES WHO WERE
PRIMARY CAREGIVERS OF DEPENDENT CHILDREN
HISTORY
Source: Author
Prior Legislation: ABx3 14 (Arambula) - died on the Assembly
Floor
Support: Los Angeles Dependency Lawyers, Inc.; California
Catholic Conference, Inc.;
Taxpayers for Improving Public Safety; Drug Policy Alliance;
Planned Parenthood
Affiliates of California
Opposition:Crime Victims United of California; California
District Attorneys Association
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KEY ISSUE
SHOULD AN "ALTERNATIVE CUSTODY" PROGRAM, UNDER WHICH ELIGIBLE
FEMALE INMATES AND INMATES WHO WERE THE PRIMARY CAREGIVERS OF
DEPENDENT CHILDREN WOULD BE ALLOWED TO PARTICIPATE IN LIEU OF
THEIR CONFINEMENT IN STATE PRISON BE AUTHORIZED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to establish an "alternative
custody" program within CDCR under which eligible female inmates
and inmates who were the primary caregivers of dependent
children would be allowed to participate in lieu of their
confinement in state prison, as specified.
Current law creates in state government the Department of
Corrections and Rehabilitation ("CDCR"), headed by a secretary
who is appointed by the Governor, subject to Senate
confirmation, and serves at the pleasure of the Governor. CDCR
consists of Adult Operations, Adult Programs, Juvenile Justice,
the Corrections Standards Authority, the Board of Parole
Hearings, the State Commission on Juvenile Justice, the Prison
Industry Authority, and the Prison Industry Board. (Government
Code 12838 (a).)
Current law provides that "the supervision, management and
control of the state prisons, and the responsibility for the
care, custody, treatment, training, discipline and employment of
persons
confined therein are vested in the Secretary of the Department
of Corrections and Rehabilitation." (Penal Code 5054.)
Current law provides that except "in cases where a different
punishment is prescribed by any law of this state, every offense
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declared to be a felony, or to be punishable by imprisonment in
a state prison, is punishable by imprisonment in any of the
state prisons for 16 months, or two or three years; provided,
however, every offense which is prescribed by any law of the
state to be a felony punishable by imprisonment in any of the
state prisons or by a fine, but without an alternate sentence to
the county jail, may be punishable by imprisonment in the county
jail not exceeding one year or by a fine, or by both." (Penal
Code 18.)
Current law authorizes the secretary of CDCR to enter into an
agreement with a city, county, or city and county, to permit
transfer of prisoners in the custody of CDCR with fixed term
sentences, or parole violators, to a jail or other adult
correctional facility of the city, county, or city and county,
as specified. (Penal Code 2910.) CDCR prisoners so
transferred to a local facility may participate in programs of
the facility, including work furlough rehabilitation programs,
as specified. (Penal Code 2910(c).)
Current law authorizes the secretary of CDCR to "enter into an
agreement consistent with applicable law for a city, county, or
city and county to construct and operate community corrections
programs, restitution centers, halfway houses, work furlough
programs, or other
correctional programs authorized by state law." (Penal Code
2910.6.)
Current law establishes the "Pregnant and Parenting Women's
Alternative Sentencing Program Act," an alternative sentencing
program for women prisoners who are pregnant or are parents of
one or more children under the age of six, who have a history of
substance abuse, have not been convicted of certain specified
crimes, and have been sentenced to prison for a term of not more
than 36 months, as specified. (Penal Code 1174 et seq.)
Current statute requires CDCR to establish and implement, on or
before January 1, 1980, "a community treatment program under
which (determinately sentenced) women inmates who have one or
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more children under the age of six years, . . . shall be
eligible to participate . . . . (Penal Code 3411.) The
community treatment program is required to provide for the
release of the mother and child or children to a public or
private facility in the community suitable to the needs of the
mother and child or children, and which will provide the best
possible care for the mother and child. (Id.) In establishing
and operating such program, the department shall have as a prime
concern the establishment of a safe and wholesome environment
for the participating children. (Id.) "Community" for purposes
of this provision is defined to mean "an environment away from
the prison setting which is in an urban or suburban area.
(Penal Code 3410.) The secretary of CDCR is authorized to
"enter into contracts, with the approval of the Director of
General Services, with appropriate public or private agencies,
to provide housing, sustenance, services . . . (as specified),
and supervision for such inmates as are eligible for placement
in community treatment programs. Prisoners in the care of such
agencies shall be subject to all provisions of law applicable to
them. (Penal Code 3413.) Current law enumerates when female
inmates must be admitted to this program. (Penal Code 3417.)
Current law sets forth the Pregnant and Parenting Women's
Alternative Sentencing Program Act. (Penal Code 1174 et seq.)
The act statutorily authorizes funds for community-based
facilities for programs designed to reduce drug use and
recidivism. (Penal Code 1174.2.) Those eligible for this
alternative sentencing program are women prisoners who are
pregnant or are parents of one or more children under the age of
six, who have a history of substance abuse, have not been
convicted of certain specified crimes, and have been sentenced
to prison for a term of not more than 36 months. (Penal Code
1174.4(a).) For women with children, at least one eligible
child shall reside with the mother at the facility. (Id., subd.
(a)(1) .) Prior to sentencing, the court is to determine not
only whether the woman is eligible and amenable to treatment for
substance abuse, but whether the program is in the best
interests of the child. (Id., subd. (b) .)
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Existing law generally provides that inmates serving a
determinate term of imprisonment shall be released on parole for
a period of three years.<1> (Penal Code 3000, subd. (b)(1).)
Existing law provides that any person released from prison on
parole may be released from parole after 1 year, or 2 years for
violent felonies, unless CDCR recommends to the contrary.
(Penal Code 3001.)
Existing law provides that longer periods of parole apply to
specified crimes, for example lifetime parole for persons
sentenced to life imprisonment with the possibility of parole.
(Penal Code 3000.1.)
Existing law includes these additional provisions:
Prisoners on parole shall remain under the legal custody of
the department and shall be subject at any time to be taken
back within the enclosure of the prison. (Penal Code 3056.)
Any person who has been returned to prison after revocation of
parole may be held for 12 months, and an additional 12 months
for prison misconduct. The person shall then be released on
parole for the balance of the period of parole. (Penal Code
3057.)
That prisoners, with the exception of life prisoners, may earn
custody credits for work and approved programs to reduce the
period of custody following revocation of parole. (Penal Code
3057.)
The parole authority - now the Board of Parole Hearings -
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<1> Sex offenders who have served a determinate term of
imprisonment are released on parole for a period of five years.
Specified sex offenders serving indeterminate (life) terms are
released on parole for a period of 10 years. (Penal Code
3000, subd. (b)(1) and (3).)
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shall have full power to suspend or revoke any parole, and to
order returned to prison any prisoner upon parole. The
written order of the parole authority shall be a sufficient
warrant for any peace or prison officer to return to actual
custody any conditionally released or paroled prisoner.
(Penal Code 3060.)
Parole revocation proceedings and parole revocation extension
proceedings may be conducted by a panel of one person. (Penal
Code 3063.6.)
No parole shall be suspended or revoked without cause, which
cause must be stated in the order suspending or revoking the
parole. (Penal Code 3063.)
Existing law creates the Board of Parole Hearings (BPH) and
makes certain provisions with respect to its powers and duties.
(Penal Code 5075 et seq.)
Under current law , BPH has "full power to suspend or revoke any
parole, and to order returned to prison any prisoner upon
parole. The written order of the parole authority shall be a
sufficient warrant for any peace or prison officer to return to
actual custody any conditionally released or paroled prisoner."
(Penal Code 3060.)
Existing law provides that the board of supervisors of any
county may authorize the correctional administrator, as defined,
to offer a program under which minimum security inmates and
low-risk offenders committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may voluntarily
participate in a home detention program during their sentence in
lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the
probation officer, as specified. (Penal Code 1203.016(a).)
Current law also provides that, upon determination by the
correctional administrator that conditions in a jail facility
warrant the necessity of releasing sentenced misdemeanor inmates
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prior to them serving the full amount of a given sentence due to
lack of jail space, the board of supervisors of any county may
authorize the correctional administrator to offer a program
under which inmates committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may be required to
participate in an involuntary home detention program, which
shall include electronic monitoring, during their sentence in
lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the
probation officer, as specified. (Penal Code 1203.017.)
Proposed "Alternative Custody" Program
This bill would provide the secretary of CDCR with the statutory
authority to offer a program with the following requirements and
features:
Eligibility; Statutorily Ineligible Inmates
This bill would authorize the secretary of CDCR to "offer a
program under which female
inmates and inmates who were primary caregivers of dependent
children immediately prior to incarceration," as specified and
limited.
This bill would provide that "primary caregivers of dependent
children" means persons who are those primarily responsible for
the care and upbringing of one or more children.
This bill would apply this program to "female inmates, pregnant
individuals, and inmates who were primary caregivers of
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dependent children immediately prior to incarceration sentenced
to state prison for a determinate term of imprisonment . . . ."
This bill would prohibit an inmate who meets any of the
following criteria from being eligible for the 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.
This bill would explicitly provide that its provisions not 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."
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This bill would provide that 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."
This bill would require an inmate participating in this program
to "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."
Nature of Program
This bill would authorize a program under which eligible inmates
"may be allowed to participate in a voluntary alternative
custody program . . . in lieu of their confinement in state
prison."
This bill would provide that in "order to qualify for the
program an offender need not be confined in an institution under
the jurisdiction of the CDCR."
This bill would provide that an "alternative custody program
shall include, but not be limited to, the following:
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(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."
This bill would require CDCR to "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."
Supervision of Participants
This bill would require that an alternative custody program
"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."
Credits
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This bill would provide that "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 . . . . "
Sanctions
This bill would provide that the "(w)illful 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 . . . ." This
bill additionally would subject participants to forfeiture of
credits or to discipline for violation of rules established by
the secretary.
Local Notification
This bill would require CDCR to provide the following
information 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:
(1) The participant's name, address, and date of birth.
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(2) The offense committed by the participant.
(3) The period of time the participant will be subject
to an alternative custody program.
This bill would require that any information received by a law
enforcement agency be used only for the purpose of monitoring
the impact of an alternative custody program on the community.
Redirection of Savings; Evidence-Based Programming
This bill would provide that it is the intent of the Legislature
that CDCR be allocated in its budget fifty percent of the
savings created by this program, once savings are achieved, to
administer evidence-based practices to participants placed in
alternative custody.
This bill would require that, in order to implement its
alternative custody program, CDCR must "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."
This bill would require CDCR to "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."
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This bill would define "evidence-based practices" to mean
"supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease
supervision."
Miscellaneous Provisions
This bill would authorize CDCR to "may enter into contracts with
county agencies, not-for-profit organizations, for-profit
organizations, and others in order to promote alternative
custody placements.
This bill would authorize the secretary of CDCR to prescribe
reasonable rules and regulations for this program, as specified.
This bill would require that program participants be informed in
writing of these rules, as specified, but not limited to the
following rules:
(1) remaining within the interior premises of his or her
residence during the hours designated by the secretary or
his or her designee;
(2) being subject to search and seizure by a parole
officer or other peace officer at any time of the day or
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night, with or without cause, as specified; and
(3) being retaken 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.
This bill would provide that 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 take the participant into
custody, as specified.
This bill would require that the rules and regulations and
administrative policies of the program be in writing, as
specified.
This bill would state the legislative intent that the program
created by this bill "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."
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Severability Clause
This bill would provide that 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."
Legislative Intent Language
This bill contains legislative intent regarding incarcerated
female offenders, and the children of incarcerated mothers, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
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Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
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this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<2>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The author states in part:
While over half of the men in prison were incarcerated
for violent crimes, just 30% of women were convicted
of violence. In fact, female inmates are more likely
to be victims of violent crimes than to be the
perpetrators. Four in 10 were physically or sexually
abused before the age of 18 (LHC, 2004). Given this,
it is not surprising that over two-thirds of women are
classified as low risk (Level I or II) by the prison
classification system (LHC, 2004). However, women
often are held in more secure environments than their
custody classifications would warrant. According to
CDCR estimates, approximately 4,500 low-level women
offenders who are currently incarcerated could be
eligible for placement in secure, community-based
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<2> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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programs without risking community safety (National
Council on Crime and Delinquency (NCCD), 2006).
Incarcerated women are not the only individuals
negatively impacted by incarceration; families and
communities have been devastated by women's
imprisonment. Approximately, 67% of incarcerated
women are mothers (CRB, 2000) and many of them are
single parents. NCCD estimates that in 2005
approximately 19,000 children had mothers who were
incarcerated in California's state facilities. Most
of California's incarcerated mothers are the primary
caregivers 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 (Powell & Nolan, 2003).
Visitation policies and the distance to prisons make
it difficult for children to visit. Seventy-nine
percent of incarcerated mothers in California never
receive a visit during their incarceration (Powell &
Nolan, 2003). Separating mothers 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 (WPA,
2009). To break the cycle of incarceration,
California must adopt policies that facilitate
parenting and family reunification.
Alternative Custody assignments, such as electronic
monitoring, are a significant hindrance to further
criminal activity, however, unlike prison, electronic
monitoring allows prisoners a connection with their
families, communities, and employment (NCCD, 2010).
Electronic monitoring provides the potential for
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rehabilitation within the community, whereas,
incarceration reinforces negative interactions in
prison and jail, weaken ties to society, and often
increases the likelihood of reoffending. The aim of
this bill is to lower recidivism rates, encourage
community and family involvement, hold fewer children
in Child Welfare System, and reduce the likelihood
that an inmate's children will embark on a life of
crime.
Possible concerns raised by other Alternative Custody
proposals are not applicable for this bill. People
have criticized these proposals for lacking inmate
transition plans. This bill requires the department
to create, and the participant to 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.
There have also been concerns about the ability to
treat these individuals, given current financial
constraints. This bill states that CDCR shall
dedicate 50% of the savings created to administer
evidence-based practices to participants placed in
Alternative Custody.
2. What This Bill Would Do; Similarity to Certain Existing Jail
Home Detention Authority
As explained in detail above, this bill would establish an
"alternative custody" program within CDCR under which eligible
inmates would be allowed to participate in a voluntary
alternative custody program in lieu of their confinement in
state prison. Features of the program would include:
Limiting the program to female inmates and inmates who
were primary caregivers of dependent children immediately
prior to incarceration - that is, persons who are those
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primarily responsible for the care and upbringing of one or
more children;
Excluding from the program any inmate with a current or
prior violent or sex offense, an inmate found to be a high
risk for commission of a violent offense, or an inmate with
a history of escape within the prior 10 years;
Requiring use of electronic monitoring to verify
compliance; and
Redirecting half of the savings from this program to
evidence-based practices for program participants, as
specified.
Under current law, local correctional administrators -
typically, sheriffs - have the authority to put minimum security
inmates and low-risk offenders into a voluntary home detention
program in lieu of confinement in a county jail. The
alternative custody program proposed by this bill is generally
modeled on this existing authority. <3>
SHOULD THE SECRETARY OF CDCR HAVE AUTHORITY SIMILAR TO THE
EXISTING VOLUNTARY "HOME DETENTION" AUTHORITY OF SHERIFFS?
ARE THE ELIGIBILITY LIMITATIONS OF THIS BILL SUFFICIENTLY NARROW
TO ENSURE THIS NEW PROGRAM WOULD BE CONSISTENT WITH PUBLIC
SAFETY?
3. Prior Legislation
Last year, the Senate passed ABx3 14 (Arambula), which contained
a version of alternative custody similar to that proposed by
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<3> Existing law also authorizes nonvoluntary home detention
for jails that are overcrowded. (Penal Code 1203.017.) The
program proposed by this bill is more analogous to the voluntary
home detention authority contained in Penal Code section
1203.016, which is not predicated upon overcrowded facilities.
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this bill but with broader eligibility requirements. That
measure would have applied to the following inmates unless, like
this bill, they were ineligible because of their escape or
criminal history:
Inmates who have 12 months or less to serve on their
term of confinement.
Inmates who are 60 years of age or older.
Inmates who are permanently medically incapacitated
with a medical condition that renders him or her
permanently unable to perform activities of basic daily
living.
That bill, for which $120.5 million in state savings was
estimated as a result of its alternative custody provisions,
failed in the Assembly.
4. Similar Existing Programs for Prison Inmates
As noted above, current statute authorizes two programs for
inmate mothers, the Pregnant and Parenting Women's Alternative
Sentencing Program Act ("PPWASPA") and a community treatment
program for women inmates sentenced to state prison who have one
or more children under the age of six. According to information
from the administration, the state funds the Prison Mother
Program and the Family Foundations Program (SB 519 - Chapter 63,
statutes of 1994). Currently, CDCR operates and funds 71
contract beds for the Prisoner Mother Program (23 beds in Region
I, 24 in Region II, and 24 beds in Region III) and 105 contract
beds for the Family Foundations Program (SB 519) (35 beds in
Santa Fe Springs, 35 beds in San Diego, and 35 beds in Fresno).
The program proposed by this bill would be broader than the
existing PPWASPA. Depending upon offense and risk-based
eligibility, this bill would reach female inmates who are not
necessarily mothers, as well as mothers with children over the
age of six. In addition, this bill would authorize home
confinement - similar to the existing jail inmate authority -
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which is not contemplated in the PPWASPA.
5. County Impact
In a memorandum dated August 19, 2009, the California State
Association of Counties (CSAC) and a number of other
county-related organizations raised a number of concerns
regarding the alternative custody provision contained in ABx3
14. These issues would appear to be equally relevant to the
alternative custody proposal contained in this bill. For
example:
The proposal lacks any provisions for an inmate
transition plan, including application for public
programs. In order for this proposal to be
successfully implemented, CDCR must begin implementing
a transition plan for these individuals now. This
effort would include applying for any public
assistance program for which an inmate might be
eligible: Medi-Cal, Medicare, and Supplemental
Security Income (SSI). The process of applying for
public assistance and being granted eligibility for
these programs is complicated, particularly in cases
with medical disabilities, and can take months.
Without upfront work before discharge on eligibility
determinations, elderly and medically infirm inmates
could go without health care. Additionally, inmates
should receive assistance in obtaining identification
and social security cards.
CDCR needs to work with counties and local health
systems in developing processes for determining and
processing eligibility for public programs before
inmates are released.
Community capacity for the provision of medical and
mental health care as well as alcohol and drug
treatment is at or above capacity; there should be no
assumptions about community care options. CDCR should
be engaged with counties and local health systems
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before releasing inmates. . . .
Most counties have existing waiting lists for alcohol
and drug treatment and mental health services. It is
unrealistic to assume that continuity of care is
viable for this population once they are released back
in their communities when it is presently not
available to current residents. . . .
The author and/or the Committee may wish to discuss the
extent to which it is contemplated that inmates who
participate in the alternative custody program proposed by
this bill would receive programming or medical or mental
health care treatment paid for by CDCR or by public
assistance and, depending upon the intent, the effect of
this bill on local systems and state savings.
WHO WILL PAY FOR PROGRAM AND TREATMENT SERVICES FOR INMATES
IN THE ALTERNATIVE CUSTODY PROGRAM?
The memo additionally states:
Several legal and jurisdictional questions emerge from
this proposal that operationally will make
implementation difficult. . . . Ultimately, who
will have legal authority for these inmates? If the
state maintains some version of alternate custody, are
these individuals considered incarcerated? How will
the definition of status impact their access to
medical care? Who will make medical decisions for
those individuals who are incapacitated and unable to
make their own medical decisions? Does this become a
responsibility of the public guardian? County public
guardians currently manage high caseloads and do not
have the capacity to assume additional cases without
negatively impacting their ability to perform legally
mandated functions.
The author and/or the Committee may wish to discuss these issues
and seek to clarify the intent and effect of the bill.
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6. Constitutional Considerations - Equal Protection
Based on recent case law, it appears the program proposed by
this bill would not violate the Constitution on equal protection
grounds. Two existing statutorily authorized programs for
inmate mothers, the Pregnant and Parenting Women's Alternative
Sentencing Program Act ("PPWASPA") and a community treatment
program for women inmates sentenced to state prison who have one
or more children under the age of six, were recently upheld
against an equal protection challenge by the court of appeals.
The court in Woods v. Horton (2008, 3rd Appellate District) 167
Cal. App. 4th 658, explained in part:
Wendy Still, associate director of CDCR, declared that
prison programs recognized the differences between
male and female inmates. Most female inmates were
convicted of drug or property crimes, were often
victims of abuse, and were more likely to be single
parents. The programs were gender responsive. There
was only a small percentage of male primary
caretakers. There were other programs for men, such
as a third-day visitation program. Still declared the
PPWASPA (Pen. Code, 1174 et seq.) was adopted as a
counterpart for male offenders to the California
Alternative Sentencing Program.
. . . The PPWASPA (Pen. Code, 1174 et seq.)
currently had two facilities, each housing up to 35
women and 40 children, and offered a highly structured
substance abuse program, including parenting training,
and education, employment and life skills training.
The Community Prisoner Mother Program (Pen. Code,
3411 et seq.) had been in existence since 1985 and
currently had 71 inmates in three facilities. Its
primary purpose was to strengthen the family unit and
it addressed substance abuse, emotional, stability,
self-esteem and employment issues.
. . .
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The declaration of the associate director of CDCR
states the programs are gender responsive, "taking
into account the ways in which women prisoners present
differently from men prisoners." The declaration
reports different programs are developed to address
the prisoners' needs, such as third-day visiting for
male inmate fathers and transportation services for
families of female inmates. Plaintiffs have failed to
show the needs of inmate fathers are not met.
Given the absence of a showing of any inmate father
who qualifies for a program and was denied its
benefits, the deference accorded prison officials in
developing such programs, the separation of powers
concerns in encroaching on executive and legislative
determinations, and the differences between male and
female inmates, the trial court did not err in finding
male and female inmates are not similarly situated for
the purposes of the programs for inmate mothers. (See
Women Prisoners of D.C. Correct. v. D.C. (D.C. Cir.
1996) 320 U.S. App. D.C. 247 [93 F.3d 910, 927]
[rejecting equal protection claim based on differences
in treatment of male and female inmates].)<4>
7. Constitutional and Voter-Enacted Statutory Considerations:
"Marsy's Law"
On November 4, 2008, the voters of the State of California
approved Proposition 9, the Victims' Bill of Rights Act of 2008:
Marsy's Law. That initiative contained a number of provisions,
including the following:
"(5) Victims of crime have a collectively shared right
to expect that persons convicted of committing
criminal acts are sufficiently punished in both the
manner and the length of the sentences imposed by the
courts of the State of California. This right
includes the right to expect that the punitive and
----------------------
<4> Footnotes omitted.
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deterrent effect of custodial sentences imposed by the
courts will not be undercut or diminished by the
granting of rights and privileges to prisoners that
are not required by any provision of the United States
Constitution or by the laws of this State to be
granted to any person incarcerated in a penal or other
custodial facility in this State as a punishment or
correction for the commission of a crime." (Cal.
Const. 28, Art. I (a)(5).)
. . .
". . . Sentences that are individually imposed upon
convicted criminal wrongdoers based upon the facts and
circumstances surrounding their cases shall be carried
out in compliance with the courts' sentencing orders,
and shall not be substantially diminished by early
release policies intended to alleviate overcrowding in
custodial facilities. The legislative branch shall
ensure sufficient funding to adequately house inmates
for the full terms of their sentences, except for
statutorily authorized credits which reduce those
sentences." (Cal. Const. 28, Art. I(f)(5).)
. . .
"Notwithstanding any other law, the Board of Parole
Hearings or its successor in interest shall be the
state's parole authority and shall be responsible for
protecting victims' rights in the parole process. . .
. " (Penal Code 3044(a).)
Committee counsel is aware of no case law that might illuminate
whether any of the provisions of Marsy's Law are affected by
this bill.
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8. Children With Incarcerated Parents
The program proposed by this bill would include primary
caregivers for dependent children. There is a significant body
of research concerning the incidence and effect of incarcerated
parents with respect to their children and families. In
February of 2009 the Sentencing Project reported:
In 2007 there were 1.7 million children in America
with a parent in prison, more than 70% of whom were
children of color. Children of incarcerated parents
live in a variety of circumstances. Some were
previously in homes of two-parent families, where the
non-incarcerated parent can assume primary
responsibility for the children. Many children,
especially in cases of women's incarceration, were in
single-parent homes and are then cared for by a
grandparent or other relative, if not in foster care.
And in some cases, due to substance abuse and other
factors, incarcerated parents had either not lived
with their children or not provided a secure
environment for them. Following release from prison
both parents and children face challenges in reuniting
their families. Parents have to cope with the
difficulty of finding employment and stable housing
while also reestablishing a relationship with their
children.
The increasing incarceration of women means that more
mothers are being incarcerated than ever before.
There is some evidence that maternal incarceration can
be more damaging to a child than paternal
incarceration, which results in more children now
suffering negative consequences. The number of
incarcerated mothers has more than doubled (122%) from
29,500 in 1991 to 65,600 in 2007.<5>
---------------------------
<5> Incarcerated Parents and their Children, Trends 1991-2007
(The Sentencing Project)(Feb. 2009).
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WOULD THE PROGRAM PROPOSED BY THIS BILL HELP CHILDREN OF
INCARCERATED PARENTS?
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