BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AJR 38
                                                                  Page  1

          Date of Hearing:   June 12, 2012
          Counsel:                Milena Blake


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AJR 38 (Donnelly) - As Introduced:  May 7, 2012
           

          SUMMARY  :   Urges the President and Congress of the United States 
          to restore full funding for the State Criminal Alien Assistance 
          Program (SCAAP) and to fully reimburse states for the cost of 
          incarcerating undocumented criminals.  Specifically,  this bill  :  


          1)States that the federal government has a legal and moral 
            obligation to keep our borders secure and, if it does not, it 
            should pay the state the full cost of incarcerating 
            undocumented criminals.

          2)States that Federal law states that when a chief executive 
            officer of a state submits a written request to the United 
            States Attorney General for reimbursement the Attorney General 
            will either enter into a contractual arrangement that provides 
            for compensation to the state to incarcerate the undocumented 
            criminals or take the undocumented criminals into the custody 
            of the federal government (8 U.S.C. Sec. 1231).

          3)States that the federal State Criminal Alien Assistance 
            Program was created in 1994 for the purpose of reimbursing 
            states for the costs of incarcerating undocumented criminals.

          4)States that Federal law provides that the State Criminal Alien 
            Assistance Program provide federal payments to states and 
            localities that incur costs for incarcerating undocumented 
            criminals.

          5)States that there are almost 16,250 self-reported undocumented 
            criminals in the California prison system.

          6)States that in the 2010-11 fiscal year, the cost per 
            incarcerated individual in California was $56,000 each year.

          7)States that in the 2010-11 fiscal year, it cost the State of 








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            California over $910 million to house these undocumented 
            criminals.

          8)States that in the 2010-11 fiscal year, the State of 
            California was reimbursed from the State Criminal Alien 
            Assistance Program in an amount equal to only 10 cents for 
            every dollar spent to house these undocumented criminals.

          9)Requires that the Speaker of the Assembly to transmit copies 
            of this resolution to the President and Vice President of the 
            United States, to the Speaker of the House of Representatives, 
            to the Majority Leader of the Senate, and to each Senator and 
            Representative from California in the Congress of the United 
            States.  

           EXISTING LAW  :

          1)Defines the term "alien" as "any person not a citizen or 
            national of the United States."  Ý8 U.S.C. Section 
            1101(a)(3).]

          2)Specifies that the Attorney General (AG) may not remove an 
            alien who is sentenced to imprisonment until the alien is 
            released from imprisonment.  Directs that parole, supervised 
            release, probation, or the possibility of arrest or further 
            imprisonment is not a reason to defer removal.  Ý8 U.S.C. 
            Section 1231(a)(4)(A).]

          3)States that no cause or claim may be asserted under 8 U.S.C. 
            Section 1231(a)(4) against an official of the United States or 
            of a state to compel the release, removal, or consideration 
            for release or removal of an alien.  Ý8 U.S.C. Section 
            1231(a)(4)(D).]

          4)States that for purposes of this subsection, "undocumented 
            criminal alien" is defined as an alien who has been convicted 
            of a felony or two or more misdemeanors; and Ý8 U.S.C. Section 
            1231(i)(3)]:

             a)   Entered the United States without inspection at any time 
               or place other than as designated by the AG;

             b)   Was the subject of exclusion or deportation proceedings 
               at the time he or she was taken into custody by the state; 
               or,








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             c)   Was admitted as a nonimmigrant and, at the time he or 
               she was taken into custody by the state, has failed to 
               maintain the nonimmigrant status in which the alien was 
               admitted, or to which it was changed, as specified, or to 
               comply with the conditions of such a status.

          5)Declares that if the chief executive officer of a state, or a 
            political subdivision of the state, exercising authority with 
            respect to the incarceration of an undocumented criminal 
            alien, submits a written request to the AG, the AG shall, as 
            determined by the AG Ý8 U.S.C. Section 1231(i)(1)]:

             a)   Enter into a contractual arrangement that provides for 
               compensation to the state or political subdivision with 
               respect to incarceration of the undocumented criminal 
               alien; or 

             b)   Take the undocumented criminal alien into the custody of 
               the Federal Government and incarcerate the alien.

          6)Directs that the compensation to be provided, as specified, 
            shall be the average cost of the incarceration of a prisoner 
            in the relevant state, as determined by the AG.  Ý8 U.S.C. 
            Section 1231(i)(2).]

          7)Provides for the arrest and detention of an alien pending a 
            decision on whether the alien is to be removed from the United 
            States.  Ý8 U.S.C. Section 1226(a).]

          8)States that the AG shall take into custody specified 
            inadmissible and deportable aliens who have committed 
            specified crimes, when the alien is released, without regard 
            to whether the alien is released on parole, supervised release 
            or probation, and without regard to whether the alien may be 
            arrested or imprisoned again for the same offense.  Ý8 U.S.C. 
            Section 1226(c)(1).]

          9)Allows the AG to release criminal aliens from custody only 
            under specific circumstances, and states that a decision to 
            release such an alien shall take place in accordance with a 
            procedure that considers the severity of the offense committed 
            by the alien.  Ý8 U.S.C. Section 1226(c)(2).]

          10)Declares that the AG's discretionary judgment regarding 








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            custody of criminal aliens shall not be subject to review.  
            Provides that no court may set aside an action or decision by 
            the AG regarding the detention or release of an alien or the 
            grant, revocation, or denial of bond or parole.  Ý8 U.S.C. 
            Section 1226(e).]

          11)Creates an exception for removal of nonviolent offenders 
            prior to completion of a sentence of imprisonment if, in the 
            case of an alien in the custody of a state or political 
            subdivision of a state, the chief state official exercising 
            authority with respect to the incarceration of the alien 
            determines that the alien is confined for a non-violent 
            offense (with specified exceptions), that the removal is in 
            the best interest of the state, and submits a written request 
            to the AG that such alien be removed.  Ý8 U.S.C. Section 
            1231(a)(4)(B)(ii).]

          12)Provides that an alien who has been denied admission to the 
            United States, excluded, deported or removed, or who has 
            departed the United States while an order of exclusion, 
            deportation or removal is outstanding, and thereafter enters 
            or attempts to enter the United States, or except as 
            specified, is found in the United States, shall be fined, 
            imprisoned for not more than two years or both.  Ý8 U.S.C. 
            Section 1326(a).]

           FISCAL EFFECT  :   Unknown.

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AJR 38 would 
            request that the Federal government restore full funding to 
            the State Criminal Alien Assistance Program and that the 
            Federal government fully reimburses the State for all money 
            spent to incarcerate undocumented criminals within the 
            California State Prison System."

           2)Law Re-Authorizing Appropriations for SCAAP  :  In Public Law 
            109-162, January 5, 2006, funds were appropriated to "carry 
            out this subsection."  The subsection included a required 
            report on whether states or localities that received SCAAP 
            funds were fully cooperating with the Department of Homeland 
            Security's (DHS) efforts to remove undocumented criminal 
            aliens from the United States.  The law also required the 
            Inspector General to include a list of the states, or 








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            political subdivisions of a state, that are not fully 
            cooperating or have, in effect, violated the policy of 8 
            U.S.C. Section 1373 which states, "Notwithstanding any other 
            provision of Federal, State, or local law, a Federal, State, 
            or local government entity or official may not prohibit, or in 
            any way restrict, any government entity or official from 
            sending to, or receiving from, the Immigration and 
            Naturalization Service information regarding the citizenship 
            or immigration status, lawful or unlawful, of any individual."

           3)Background - SCAAP  :  California receives more money under the 
            SCAAP program than any other applying entity.  According to a 
            report, issued in January 2007 by the Office of the Inspector 
            General, Audit Division, United States Department of Justice, 
            Audit Report 07-07, "SCAAP is a payment program administered 
            by Ýthe United States Department of Justice, Office of Justice 
            Programs (OJP)], through the Bureau of Justice Assistance 
            (BJA) and in conjunction with the Immigration and Customs 
            Enforcement (ICE) bureau within DHS.  SCAAP was authorized by 
            the Violent Crime Control and Law Enforcement Act of 1994 to 
            provide federal assistance to states and localities for the 
            costs of incarcerating certain criminal aliens who are in 
            custody based on state or local charges or convictions."  
            (United States Department of Justice, Office of the Inspector 
            General, Audit Division, Cooperation of SCAAP Recipients in 
            the Removal of Criminal Aliens from the United States, Audit 
            Report 07-07, January 2007, p. 1-2.)

          In the 2005 fiscal year, BJA distributed $287.1 million in SCAAP 
            payments to 752 state, county and local jurisdictions.  The 
            top 10 SCAAP recipients for 2005 were:

             a)   State of California - $85,953,191.

             b)   State of New York - $24,022,356.

             c)   State of Texas - $18,582,484.

             d)   City of New York - $15,893,255.

             e)   State of Florida - $12,806,110.

             f)   Los Angeles County - $12,530,034.

             g)   State of Arizona - $12,139,791.








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             h)   Orange County - $6,562,437.

             i)   State of Illinois - $4,728,549.

             j)   State of Massachusetts - $4,728,549.

            (United States Department of Justice, Office of the Inspector 
            General, Audit Division, Cooperation of SCAAP Recipients in 
            the Removal of Criminal Aliens from the United States, Audit 
            Report 07-07, January 2007, p. 5.)  The top 10 recipients 
            received a total of $197,949,476.  Although 752 jurisdictions 
            received SCAAP payments for the 2005 fiscal year, the vast 
            majority received relatively small amounts.  For example, 306 
            local jurisdictions received less than $10,000 each, and 230 
            jurisdictions received between $10,000 and $49,999.

            "The ÝSCAAP] program reimburses states and localities that 
            incur correctional officer salary costs for incarcerating 
            undocumented criminal aliens who:  (1) have at least one 
            felony or two misdemeanor convictions for violations of state 
            or local law, and (2) are incarcerated for at least four 
            consecutive days during the established reporting period.  
            Applicants for funding are required to provide correctional 
            officer salary costs, the total of all inmate days, and 
            details about eligible inmates housed in their correctional 
            facilities during that period."  (United States Department of 
            Justice, Office of the Inspector General, Audit Division, 
            Cooperation of SCAAP Recipients in the Removal of Criminal 
            Aliens from the United States, Audit Report 07-07, January 
            2007, p. 2.) 

            "Historically, congressional appropriations for SCAAP have 
            been less than the total amount sought by all the 
            jurisdictions applying for SCAAP payments.  As a result, BJA 
            pays a pro rata amount of a jurisdiction's submitted expenses. 
             In April 2005, the Government Accountability Office (GAO) 
            issued a report stating that 80 percent of the SCAAP aliens 
            were incarcerated in the 5 states of Arizona, California, 
            Florida, New York, and Texas in FY 2003, but payments to 4 of 
            those states were less than 25 percent of the estimated cost 
            to incarcerate SCAAP criminal aliens."  (United States 
            Department of Justice, Office of the Inspector General, Audit 
            Division, Cooperation of SCAAP Recipients in the Removal of 
            Criminal Aliens from the United States, Audit Report 07-07, 








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            January 2007, p. 2-3.)  
             
           4)Level of Cooperation of SCAAP Recipients with ICE  :  One of the 
            purposes of the Inspector General's 2007 audit was to 
            determine SCAAP recipients' level of cooperation with ICE.  
            The report states, "ICE officials commented favorably with 
            respect to the entities' cooperation about every jurisdiction 
            except the City and County of San Francisco.  . . .  According 
            to an agent working at ICE Headquarters, the ICE San Francisco 
            Field Office has encountered difficulties, which they 
            attributed to a 'bare minimum' of cooperation.  Specifically, 
            we were told that ICE agents are not permitted to access San 
            Francisco County jail records without the authorization and 
            approval of the Sheriff.  . . .  Despite these views expressed 
            by ICE officials, San Francisco officials believe they are 
            cooperating sufficiently with ICE."  (United States Department 
            of Justice, Office of the Inspector General, Audit Division, 
            Cooperation of SCAAP Recipients in the Removal of Criminal 
            Aliens from the United States, Audit Report 07-07, January 
            2007, p. iv.)

          The audit report details a San Francisco city and county 
            ordinance, Chapter 12H of the City Administrative Code, which 
            provides that "no department, agency . . . shall use any City 
            funds or resources to assist in the enforcement of federal 
            immigration law or to gather or disseminate information 
            regarding the immigration status . . . unless such assistance 
            is required by federal or state statute, regulation, or court 
            decision."  The audit report also indicated that Oregon and 
            the City of New York, in addition to San Francisco, had 
            problems freely exchanging information with ICE.  (United 
            States Department of Justice, Office of the Inspector General, 
            Audit Division, Cooperation of SCAAP Recipients in the Removal 
            of Criminal Aliens from the United States, Audit Report 07-07, 
            January 2007, p. x-xi, 23.)

          The BJA's annual guidelines alert potential SCAAP applicants of 
            the deadline to apply for SCAAP funding and describe the 
            application procedure, which requires applicants to furnish 
            detailed information, as specified.  (United States Department 
            of Justice, Office of the Inspector General, Audit Division, 
            Cooperation of SCAAP Recipients in the Removal of Criminal 
            Aliens from the United States, Audit Report 07-07, January 
            2007, p. 4.)  









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          An audit of the 1996 fiscal year found that OJP's compensation 
            methodology was over-inclusive in the degree to which OJP paid 
            SCAAP applicants for inmates whose immigration status was 
            "unknown."  (United States Department of Justice, Office of 
            the Inspector General, Office of Justice Programs State 
            Criminal Alien Assistance Program, 00-13, May 2000; United 
            States Department of Justice, Office of the Inspector General, 
            Audit Division, Cooperation of SCAAP Recipients in the Removal 
            of Criminal Aliens from the United States, Audit Report 07-07, 
            January 2007, p. 6.)  

          An April 2006 report by the DHS Inspector General estimated that 
            in the 2007 fiscal year, 605,000 foreign-born individuals 
            would be admitted to state correctional facilities and local 
            jails for committing crimes in the United States.  Of this 
            number, it estimated that one-half (302,500) would be 
            removable aliens.  "Most of these incarcerated aliens are 
            being released into the U.S. at the conclusion of their 
            respective sentences because the ÝDetention and Removal 
            Operations (DRO)] unit does not have the resources to 
            identify, detain, and remove these aliens under its Criminal 
            Alien Program (CAP).  It is estimated that DRO would need an 
            additional 34,653 detention beds, at an estimated cost of $1.1 
            billion, to detain and remove Ýthem]."  (Department of 
            Homeland Security, Office of the Inspector General, Detention 
            and Removal of Illegal Aliens:  U.S Immigration and Customs 
            Enforcement (ICE), OIG-06-033, April 2006, p. 2.; United 
            States Department of Justice, Office of the Inspector General, 
            Audit Division, Cooperation of SCAAP Recipients in the Removal 
            of Criminal Aliens from the United States, Audit Report 07-07, 
            January 2007, p. 32.)

          The DHS Inspector General further stated, "DRO's ability to 
            detain and remove illegal aliens with final orders of removal 
            is impacted by: (1) the propensity of illegal aliens to 
            disobey orders to appear in immigration court; (2) the 
            penchant of released illegal aliens to abscond;
          (3) the practice of some countries to block the repatriation of 
            its citizens; and (4) two recent U.S. Supreme Court decisions 
            which mandate the release of criminal and high-risk aliens 180 
            days after the issuance of the final removal order except in 
            'Special Circumstances.' Collectively, the bed space, 
            personnel and funding shortages coupled with other factors, 
            has created an unofficial 'mini-amnesty' program for criminal 
            and other high-risk aliens."  (United States Department of 








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            Justice, Office of the Inspector General, Audit Division, 
            Cooperation of SCAAP Recipients in the Removal of Criminal 
            Aliens from the United States, Audit Report 07-07, January 
            2007, p. 32.)

           5)Projection of Current and Future SCAAP Funding  :  The 
            President's 2011 budget allocates $330 million in funds for 
            SCAAP.  As discussed, this will not be sufficient to cover the 
            entirety of California's costs for imprisoning undocumented 
            criminal aliens.  Furthermore, the President's 2012 budget 
            proposes to reduce SCAAP funding to $136 million.  Thus SCAAP 
            reimbursements may become even more problematic and inadequate 
            in the future.

          In their 2003 review, the Office of Management and Budget (OMB) 
            found that SCAAP lacked performance goals and could not 
            demonstrate results, thus earning a rating of "results not 
            demonstrated."  It does not appear that SCAAP has changed its 
            goals or design since this review or that OMB has changed 
            their recommendation that SCAAP be terminated.  
            (.)  
           
           6)Related Legislation  :

             a)   AJR 1 (Donnelly), was substantially similar to this 
               resolution.  AJR 1 failed passage on the Assembly floor.

             b)   AJR 17 (Solorio), Resolution Chapter 124, Statutes of 
               2011, urged Congress and the President of the United States 
               to increase funding for various law enforcement and crime 
               prevention programs and to fully reimburse states for the 
               cost of incarcerating undocumented criminals.  

           7)Previous Legislation  :

             a)   ACR 140 (Adams), Resolution Chapter 49, Statutes of 
               2010, urged the Governor to demand that BJA reimburse the 
               State of California for all costs of incarcerating 
               undocumented foreign nationals.

             b)   SJR 12 (Benoit), of the 2009-10 Legislative Session, 
               would have urged Congress and the President to restore 
               funding for SCAAP.  SJR 12 was never heard by this 
               Committee.








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             c)   ACR 24 (Blakeslee), Resolution Chapter 88, Statutes of 
               2008, urged the Governor to demand that BJA reimburse the 
               State of California for all costs of incarcerating 
               undocumented foreign nationals. 

             d)   AB 39 (Benoit), of the 2007-08 Legislative Session, 
               would have required California Department of Corrections 
               and Rehabilitation to annually bill the Federal Government 
               for the costs of incarcerating undocumented criminal 
               aliens.  AB 39 would have required the California AG to 
               utilize all available legal resources to obtain 
               reimbursement if the Federal Government failed to make 
               payment.  Additionally, AB 39 would have required the 
               California Department of Justice to collect data on the 
               total number of and percentage of undocumented alien 
               inmates in all state and local correctional institutions 
               and to publish the data on its Web site, providing annual 
               updates.  AB 39 failed passage in this Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

          Support 
           
          None

           Opposition 
           
          None
           
          Analysis Prepared by  :    Milena Blake / PUB. S. / (916) 319-3744