BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                              UNFINISHED BUSINESS


          Bill No:  SB 1266
          Author:   Liu (D), et al
          Amended:  8/18/10
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  5-2, 4/13/10
          AYES:  Leno, Cedillo, Hancock, Steinberg, Wright
          NOES:  Cogdill, Huff

           SENATE APPROPRIATIONS COMMITTEE  :  6-4, 5/17/10
          AYES:  Kehoe, Alquist, Corbett, Leno, Wolk, Yee
          NOES:  Cox, Denham, Walters, Wyland
          NO VOTE RECORDED:  Price

           SENATE FLOOR  :  22-6, 5/28/10
          AYES:  Alquist, Calderon, Cedillo, Corbett, DeSaulnier,  
            Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal,  
            Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian,  
            Steinberg, Wolk, Wright, Yee
          NOES:  Dutton, Hollingsworth, Huff, Runner, Strickland,  
            Wyland
          NO VOTE RECORDED:  Aanestad, Ashburn, Cogdill, Correa, Cox,  
            Denham, Harman, Oropeza, Walters, Wiggins, Vacancy,  
            Vacancy

           ASSEMBLY FLOOR  :  42-28, 8/26/10 - See last page for vote


           SUBJECT  :    Inmates:  alternative custody

           SOURCE  :     Author

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           DIGEST  :    This bill establishes an alternative custody  
          program within the Department of Corrections and  
          Rehabilitation under which eligible female inmates,  
          pregnant inmates, or inmates who were the primary  
          caregivers of dependent children would be allowed to  
          participate in lieu of their confinement in state prison,  
          as specified.

           Assembly Amendments  make technical and clarifying changes,  
          and add double-jointing language.

           ANALYSIS  :    Existing law provides a system of prisons  
          under the Department of Corrections and Rehabilitation  
          (CDCR) to house inmates committed to state prison for  
          felonies.

          This bill provides the Secretary of CDCR with the statutory  
          authority to offer a program with the following  
          requirements and features:

          1.  Eligibility; Statutorily Ineligible Inmates
           
             This bill authorizes the Secretary of CDCR to "offer a  
             program under which female inmates, pregnant inmates, or  
             inmates who were primary caregivers of dependent  
             children immediately prior to incarceration," as  
             specified and limited.  

             This bill provides that "primary caregivers of dependent  
             children" means:

             A.    The child is the inmate's son, daughter, step  
                child, adopted child, or foster child.

             B.    The child is 17 years of age or less at the time  
                of the inmate's placement into the alternative  
                custody program.

             C.    The child resided with the inmate for the majority  
                of the year preceding the inmate's arrest.

                D.       At the time the inmate was arrested, the  
                   inmate had physical custody of the child and was  

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                   primarily responsible for the care and upbringing  
                   of the child.  

             This bill applies this program to "female inmates,  
             pregnant inmates, or inmates who were primary caregivers  
             of dependent children immediately prior to incarceration  
             sentenced to state prison for a determinate term of  
             imprisonment ?"

             This bill prohibits an inmate who meets any of the  
             following criteria from being eligible for the program:

             A.    The person has a current or prior conviction for a  
                violent felony as defined in Section 667.5 of the  
                Penal Code.

             B.    The person has a current or prior conviction for a  
                serious felony as defined in Section 1192.7 and  
                1192.8 of the Penal Code.

             C.    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 of the Penal  
                Code.

             D.    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.

             E.    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 explicitly provides 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  

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             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."  

             This bill provides 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."  A risk and  
             needs assessment must be completed on each inmate to  
             assist in the determination of eligibility for  
             participation and the type of alternative custody.

             This bill requires 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."

             This bill requires CDCR to retain responsibility for the  
             medical and mental health needs of individual's  
             participating in the alternative custody program.

          2.  Nature of Program

              This bill authorizes 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 provides 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 provides that 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  

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                department.

             (3)   Confinement to a transitional care facility that  
                offers appropriate services."

             This bill requires CDCR to "permit program participants  
             to seek and retain employment in the community, attend  
             psychological counseling sessions or educational or  
             vocational training classes, participate in life skills  
             or parenting training, utilize substance abuse treatment  
             services, or seek medical and dental assistance.   
             Participation in other rehabilitative services and  
             programs may be approved by the case manager if it is  
             specified as a requirement of the inmate's  
             individualized treatment and rehabilitative case plan."

          3.  Supervision of Participants

              This bill requires 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."

          4.  Credits  

             This bill provides 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 . ? "

          5.  Sanctions
           
             This bill provides that the "(w)illful failure of the  
             program participant to return to the place of detention  

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             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 bill, 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 subjects participants to forfeiture of  
             credits or to discipline for violation of rules  
             established by the Secretary.

             This bill provides that every inmate who is a  
             participant in an alternative custody program who  
             escapes or attempts to escape from the program is guilty  
             of a misdemeanor.

          6.  Local Notification

              This bill requires 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:
           
             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.

             This bill requires 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.

          7.  Miscellaneous Provisions

             This bill authorizes CDCR to enter into contracts with  
             county agencies, not-for-profit organizations,  
             for-profit organizations, and others in order to promote  
             alternative custody placements.


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             This bill authorizes the Secretary of CDCR to prescribe  
             reasonable rules and regulations for this program, as  
             specified.   

             This bill requires that program participants be informed  
             in writing of these rules, as specified, but not limited  
             to the following rules:

             A.    Remaining within the interior premises of his/her  
                residence during the hours designated by the  
                secretary or his/her designee.

             B.    Being subject to search and seizure by a peace  
                officer at any time of the day or night, with or  
                without cause, as specified.
              
             C.    Being retaken into custody to serve the balance of  
                his/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 provides 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 requires that the rules and regulations and  
             administrative policies of the program be in writing, as  
             specified.   

             This bill states 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  

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             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."

          8.  Severability Clause

             This bill provides 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." 

          9.  Legislative Intent Language

             This bill contains legislative intent regarding  
             incarcerated female offenders, and the children of  
             incarcerated mothers, as specified.

          10.  Double-Jointing

             This bill is double-jointed with AB 1369 (Davis).

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions     2010-11      2011-12    2012-13         Fund  

          Alternative custody           Potentially substantial  
          prison cost reduction         General
          50% allocation to CDCR                                 
          Potentially significant cost pressure                  
          General

          If the cost of the program is simply calculated as an  
          average cost per participating inmate and is compared to a  

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          prison-wide average incarceration cost, the savings  
          reflected might not be accurate for the specific  
          individuals being diverted to the program.  If the savings  
          is overestimated, the 50 percent of that calculated number  
          would also be overestimated and allocated back to CDCR.  In  
          that situation, the actual General Fund savings would be  
          substantially eroded.  The inmate average cost is $26,000  
          more than residual cost.  In combination with potential  
          cost shifts to other state funded social services, the  
          possibility exists that the program could result in a net  
          cost to the state if the costs and savings factors are not  
          accurately assessed.  Additionally, because this language  
          provides legislative intent, and not an appropriation, the  
          actual allocation of savings would have to be made in a  
          future bill, which further confuses the issue of how the  
          ultimate savings determination will be made. 

           SUPPORT  :   (Verified  8/26/10)

          California Attorneys for Criminal Justice
          California Catholic Conference, Inc.
          California Coalition for Women Prisoners
          California Commission on the Status of Women
          California Public Defenders Association
          Crossroads, Inc.
          Drug Policy Alliance
          Fathers and Families
          Friends Committee on Legislation
          Friends Outside
          Little Hoover Commission
          Los Angeles Dependency Lawyers, Inc.
          Planned Parenthood Advocacy Project
          Planned Parenthood Affiliates of California
          Taxpayers for Improving Public Safety

           OPPOSITION  :    (Verified  8/26/10)

          California District Attorneys Association
          Crime Victims United of California

           ARGUMENTS IN SUPPORT  :    According to the author:

            "Children of inmates are much more likely than their  
            peers to become

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            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.  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." 

           ARGUMENTS IN OPPOSITION  :    The California District  
          Attorneys Association states, "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  
          policy 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.  And  
          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."  
           

           ASSEMBLY FLOOR  : 
          AYES:  Ammiano, Arambula, Bass, Beall, Blumenfield,  
            Bradford, Brownley, Buchanan, Charles Calderon, Carter,  
            Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,  
            Feuer, Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,  
            Hernandez, Hill, Huffman, Jones, Lieu, Bonnie Lowenthal,  

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            Ma, Mendoza, Monning, Ruskin, Saldana, Skinner, Swanson,  
            Torlakson, Torres, Torrico, Yamada, John A. Perez
          NOES:  Adams, Anderson, Bill Berryhill, Tom Berryhill,  
            Conway, Cook, DeVore, Fletcher, Fuller, Gaines, Garrick,  
            Gatto, Hagman, Harkey, Huber, Jeffries, Knight, Logue,  
            Miller, Nestande, Niello, Nielsen, Norby, Portantino,  
            Silva, Smyth, Audra Strickland, Villines
          NO VOTE RECORDED:  Block, Caballero, Gilmore, Nava, V.  
            Manuel Perez, Salas, Solorio, Tran, Vacancy, Vacancy


          RJG:mw  8/27/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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