BILL ANALYSIS
SB 1266
Page 1
Date of Hearing: June 22, 2010
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1266 (Liu) - As Amended: May 19, 2010
SUMMARY : Authorized the Secretary of the California Department
of Corrections and Rehabilitation (CDCR) to create alternative
custody programs for specified inmates, including female
inmates, pregnant inmates, or inmates who were the primary
caregiver immediately prior to incarceration. Specifically,
this bill :
1)Specifies that female inmates, pregnant inmates, or inmates
who were the primary caregiver immediately prior to
incarceration, who have been committed to state prison may be
allowed to participate in a voluntary alternative custody
program. Credits will be awarded and lost in the same manner
as if the inmate were incarcerated in a state prison.
2)Authorized CDCR to contract with county agencies,
not-for-profit organizations, for-profit organizations and
others to promote alternative custody placements.
3)Specifies that alternative custody programs include, but are
not limited to, confinement during specified hours to a
residential home, a residential drug treatment program, or a
transition care facility.
4)States that only inmates sentenced to a determinate sentence,
as specified, are eligible for the alternative custody
program.
5)States that specific inmates are not eligible for the
alternative custody program. Specifically, an inmate is not
eligible if he or she:
a) Has a current or prior conviction for a violent or
serious felony, as specified;
b) Has a current or prior conviction that requires the
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individual to register as a sex offender;
c) Has been screened by CDCR using a validated risk
assessment tool and is determined to pose a high risk to
commit a violent offense; or,
d) Has a history of escape from a facility while under
juvenile or adult custody, within the last 10 years.
6)Specifies that the alternative custody program shall include
the use of global position system (GPS) devices to assisting
in verifying the participants' compliance with the rule and
regulations of the program. The devices shall not be used to
eavesdrop or record any conversation, except between the
participant and the person monitoring the participant, and
then shall only be used for purposed of voice identification.
7)Requires the secretary of CDCR to prescribe reasonable rules
and regulations under which the alternative custody program
shall operate. Rules include, but are not limited to:
a) 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.
b) The participant is subject to search and seizure by a
peace officer at any time with or without cause. The
participant must admit any peace officer into the
participant's residence to ensure the participant's
compliance with the conditions of his or her detention.
These terms must agree to these terms in writing prior to
participation in the alternative custody program.
c) The Secretary or his or her designee may immediately
retake the participant into custody to serve the remainder
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.
8)Specifies that a peace officer may under general or specific
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authorization from the Secretary or his or her designee,
without warning of arrest, may retake the participant into
custody to complete the remainder of his or her original
sentence if the officer has reasonable suspicion that the
participant is not complying with the rule or regulations of
the program, or that the electronic monitoring devices are
unable to function properly in the designated place of
confinement.
9)Clarifies that there is no requirement that the Secretary
allow an inmate to participate in an alternative custody
program is it appears from the record that the inmate has not
satisfactorily complied with reasonable rules and regulations
while in custody.
a) An inmate shall be eligible for participation in the
alternative custody program only if the secretary or his or
her designee concludes that the inmate meets the criteria
for the program, as specified.
b) The rules, regulations, and administrative policies
shall be given to or made available to the program
participant upon his or her assignment to an alternative
custody program.
c) The secretary or his or her designee shall have sole
discretion as to whether to permit program participation as
an alternative to custody in state prison.
10)Specifies that a participant is permitted to seek and retain
employment in the community, attend psychological counseling
sessions, educational or vocational training classes,
participate in life skills or parenting training, or seek
medical or dental assistance. Participation in other
rehabilitative services may also be allowed with approval by
the participant's case manager, if it is specified as a
requirement of the participant's individualized treatment and
rehabilitative plan.
11)Specifies that willful failure to return to the place of
detention after a period where he or she was authorized to
leave; unauthorized departures from the place of detention; or
tampering or disabling, or attempting to do so, shall subject
the participant to a return to custody. Additionally, he or
she may forfeiture credits, as specified.
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12)Requires the Secretary to provide the participant's name,
address, date of birth, offense committed by the participant,
and the period of time the participant will be subject to an
alternative custody program to law enforcement agencies in the
jurisdiction where the participant of the alternative custody
agreement resides. This information may only be used for the
purpose of monitoring the alternative custody program.
13)Allows the Secretary to administer the 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 employ
any person who is in an alternative custody program.
14)Requires an inmate participating in an alternative custody
program agree to all the provisions in writing and shall not
be charged fees or costs for the program.
15)States that CDCR retain primary responsibility for the
participant's medical and mental health needs.
16)Require the Secretary adopt emergency regulations
specifically governing participants in this program.
17)Defines "primary caregiver of a dependent child" as a person
who meets all of the following requirements:
a) The child is the inmate's son, daughter, stepchild,
adopted or foster child;
b) The child is 17 years old or less at the time of the
inmate's placement in the alternative custody program;
c) The child resided with the inmate for the majority of
the year preceding the inmate's arrest; and,
d) At the time of his or her arrest, the inmate had
physical custody of the child and was primarily responsible
for the care and upbringing of the child. Factors in
determining whether the inmate had primary responsibility
for the care and upbringing of the child include, but are
not limited to: supervision of the child's daily
activities, provision of the necessities of life for the
child, responsibility for arranging day care for the child
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when needed, responsibility for the child's medical needs
and arranging doctor appointments or hospital visits if
needed, and responsibility for arranging for the child's
attendance in school.
18)Specifies that escape or attempted escape from the
alternative custody program is a misdemeanor.
EXISTING LAW :
1)Permits the board of supervisors of any county to authorize a
home detention program for low-risk offenders and minimum
security inmates. [Penal Code Section 1203.016(a).]
2)Permits the board of supervisors to prescribe reasonable rules
and regulations under which the home detention program may
operate. These rules must include, but are not limited to:
requiring the participant that he or she must remain within
the interior premises of his or her residence; requiring the
participant to admit any person or agent designated by the
correctional administrator into his or her residence to verify
the participants compliance with the conditions of his or her
detention; requiring the participant to agree to the use of
electronic monitoring to verify compliance with the terms of
detention; and requiring the participant to agree that the
correctional administrator may re-take the individual into
custody, as specified. [Penal Code Section 1203.016(b).]
3)Permits a peace officer to re-take the participant into
custody whenever he or she had reasonable cause to believe
that the participant is not complying with the rules and
regulations of the home detention program or if the electronic
monitoring devices are unable to function properly at the
location of detention. [Penal Code Section 1203.016(c).]
4)States that the correctional administrator is not required to
permit a person to participate in the home detention program
is it appears from the record that the individual has not
satisfactorily complied with reasonable rules and regulations
while in custody. The correctional administrator or his
designee has sole discretionary authority to permit an
individual to participate in the home detention program.
[Penal Code Section 1203.016(d).]
5)Permits the court to recommend or refer an individual to a
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home detention program. The court's recommendation is to be
given great weight in the determination if acceptance or
denial. The court may also restrict or deny access to the
home detention program. [Penal Code Section 1203.016(e).]
6)Permits the participant in the home detention program to seek
and retain employment in the community, attend psychological
counseling sessions or educational or vocational classes, or
to seek medical and dental assistance. [Penal Code Section
1203.016(f).]
7)Permits the board of supervisors to prescribe a program
administration fee to be paid by each home detention
participant that shall be determined according to his or her
ability to pay. The individual's ability to pay shall not
influence the likelihood of participation in the program.
[Penal Code Section 1203.016(g).]
8)Permits the board of supervisors of any county to authorize a
correctional administrator to offer a program under which
inmates committed to a county jail or other county
correctional facility may be required to participate in an
involuntary home detention program where it is determined that
there is a lack of jail space. [Penal Code Section
1203.17(a).]
9)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 Sections 1174 to
1174.9.)
10) 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 more
children under the age of six years . . . shall be eligible to
participate. (Penal Code Section 3411.)
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "This bill
authorizes the Secretary of CDCR to assign women, pregnant
individuals, and primary caregivers of dependent children to
alternative custody arrangements if they are low risk and have
never been convicted of a violent or sex crime.
"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. Alternative custody will allow
families to maintain relationships, and mothers will be less
likely to re-offend.
"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 relatives or in
foster care. Approximately, 67% of incarcerated women are
mothers, and many of them are single parents. In 2005,
approximately 19,000 Californian children had mothers in
prison.
"Less than one-third of women in prison were convicted of
violent crimes compared to over half of the male inmates. 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. More than
two-thirds of women are classified as low risk. However,
women often are held in more secure environments than their
custody classifications would warrant.
"SB 1266 defines 'alternative custody' as confinement to a
residential home, drug or treatment program, transitional care
facility, OR use of electronic monitoring.
"SB 1266 will lower recidivism rates, encourage community and
family involvement, result in fewer children in the child
welfare system, and reduce the likelihood that inmates'
children will embark on a life of crime."
2)Background : According to background provided by the author,
"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
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physically or sexually abused before the age of 18 (Little
Hoover Commission, 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 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 (California Research Bureau,
2000) and many of them are single parents. The National
Council on Crime and Delinquency 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.
"Alternativec 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 rehabilitation within the community, whereas,
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incarceration reinforces negative interactions in prison and
jail, weaken ties to society, and often increases the
likelihood of reoffending.
"This bill authorizes the Secretary of CDCR to assign
alternative custody arrangements to individuals on a voluntary
basis that meet the following criteria:
a) "No current or prior convictions of a violent, serious
or sex crime;
b) "Determined by an assessment to be low risk; and,
c) "Women, pregnant inmates, and primary caregivers of
dependent children.
"Alternative Custody includes:
a) "Confinement to a residential home.
b) "Confinement to a residential drug or treatment program.
c) "Confinement to a transitional care facility.
d) "Use of electronic monitoring, GPS, or other supervising
devices.
"Possible concerns raised by other alternative custody
proposals are not applicable for this bill. This bill is
unique because it is particularly narrow if effort to ensure
public safety. It excludes inmates from participating if they
have ever been convicted or a serious crime. Additionally, in
order to be eligible for the program the inmate has to be
determined to be low-risk by a validated assessment tool.
Individuals who may have had a history of serious offenses
(even if it was not a conviction) would not fall into this
category. Similar proposal have lacked inmate transition
plans. This bill requires CDCR 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. 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."
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3)Concerns for Prison Overcrowding : The California Policy
Research Center (CPRC) issued a report on the status of
California's prisons. The report stated, "California has the
largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." [Petersilia, Understanding California
Corrections, CPRC (May 2006).] California's prison population
will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of law passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
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"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out (2007), pg. 1, 2.]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] This order is stayed
pending appeal to the United States Supreme Court.
The creation of an alternative custody program would help to
alleviate the overcrowding crisis in the state prison, by
allowing non-violent low-risk inmates remain at home with
their families.
4)Argument in Support : According to the Friends Committee on
Legislation of California , "The war on drug has been
particularly hard on women and there are now over 10,000 women
incarcerated in California. When the father is incarcerated,
children are usually raised in their homes by their mother,
but when the mother is sent to prison, the children may live
with another relative or wind up in foster care. This has had
a devastating impact on the children, who are much more likely
to wind up in the criminal justice system. Research has
consistently emphasized that maintaining strong familial bonds
is key to reducing recidivism. Despite participation in
criminal activity, children still need their mother.
"Furthermore, the overwhelming majority of incarcerated women
were convicted of nonviolent offenses and are serving their
sentences in Chowchilla, far away from the state's population
centers. This is excessive in lieu of their low security
risks and makes family visits extremely difficult.
"The family is our basic social unit. When possible we should
attempt to minimize the destructive impacts on the children of
the incarcerated who have committed no crime and promote
family-friendly and family reunification policies. SB 1266 is
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carefully crafted so that only those women prisoners who pose
little risk to public safety are eligible for alternative
custody."
5)Argument in Opposition : According to the California District
Attorneys Association , "Central to our criminal justice system
is the tenet that criminal activity carries consequences.
Those consequences should not be mitigated by factors that are
irrelevant to the relationship between the crime and the
penalty. As such, we must object to the police espoused by
this bill inasmuch as it would allow a large number of
offenders to potentially avoid a commitment to state prison
simply by virtue of the fact that they are female, pregnant,
or caregivers. The simple state of being a female inmate
should not make a person any less culpable for her actions,
and yet this bill would allow thousands of inmates to "serve
their time" from their homes or non-secure facilities instead
of state prison. Any notwithstanding the family issues that
arise when a primary caregiver is incarcerated, having a child
in and of itself should not be enough to excuse a convict from
the punishment of a prison sentence."
6)Related Legislation : ABx3 14 (Arambula) would have created a
similar alternative custody program. ABx3 14 died in the
Assembly, pending concurrence in Senate amendments.
7)Previous Legislation :
a) AB 76 (Lieber), Chapter 706, Statutes of 2007, requires
CDCR to undertake various tasks related to female
offenders, including creating a Female Offender Reform
Master Plan; creating policies and practices designed to
ensure a safe and productive institutional environment for
female offenders; contracting for specified services
related to female offenders; creating a gender-responsive
female classification system and staffing pattern;
designing and implementing evidence-based, gender-specific
rehabilitative programs; and establishing a family service
coordinator at each female prison.
b) AB 2066 (Lieber), of the 2005-06 Legislative session,
was substantially similar to AB 76. AB 2066 was never heard
by the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Attorneys for Criminal Justice
California Catholic Conference, Inc.
California Coalition for Women Prisoners
California Commission on the Status of Women
California Public Defender's Association
Crossroads, Inc.
Drug Policy Alliance
Fathers & Families
Friends Committee on Legislation of California
Friends Outside
Little Hoover Commission
Planned Parenthood Advocacy Project
Planned Parenthood Affiliates of California, Inc.
Taxpayers for Improving Public Safety
One private individual
Opposition
California District Attorneys Association
Crime Victims United of California
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744