BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1266| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 1266 Page 2 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 CONTINUED SB 1266 Page 3 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 CONTINUED SB 1266 Page 4 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 CONTINUED SB 1266 Page 5 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 CONTINUED SB 1266 Page 6 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. CONTINUED SB 1266 Page 7 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 CONTINUED SB 1266 Page 8 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 CONTINUED SB 1266 Page 9 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 CONTINUED SB 1266 Page 10 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, CONTINUED SB 1266 Page 11 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 **** END **** CONTINUED