BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1445 (Mitchell) 5
As Amended May 17, 2012
Hearing date: June 12, 2012
Penal Code
SM:mc
COUNTY INMATE WELFARE FUNDS
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation: AB 2574 (Emmerson) - Chapter 16, Statutes of
2008
SB 718 (Scott) - Chapter 251, Statutes of 2007
Support: California Council of Community Mental Health Agencies;
California Communities United Institute; California
Narcotic Officers' Association; California Peace
Officers' Association; California Police Chiefs
Association; California Public Defenders Association;
California State Sheriffs' Association; Crime Victims
Action Alliance; Drug Policy Alliance; Mental Health
America of California; Napa County Board of
Supervisors; National Association of Social Workers,
California Chapter; Sacramento County Sheriff's
Department; Ventura County Board of Supervisors
Opposition:Friends Committee on Legislation; Legal Services for
Prisoners with Children
Assembly Floor Vote: Ayes 71 - Noes 0
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KEY ISSUE
SHOULD A PILOT PROGRAM BE EXTENDED AND EXPANDED THAT ALLOWS SHERIFFS
TO USE INMATE WELFARE FUND MONEY TO PROVIDE REENTRY SERVICES FOR
FORMER COUNTY JAIL INMATES?
PURPOSE
The purpose of this bill is to (1) extend the operative period
for two years to January 1, 2015, for a pilot program allowing
specified county sheriffs to use inmate welfare fund money to
provide former county jail inmates with reentry services upon
their release; (2) add the counties of Marin, Napa, San Luis
Obispo, and Ventura to this pilot program to extend the period
of time in which inmate welfare fund money could be used for
these purposes from 14 to 30 days after the inmate's release;
and (3) provide that, for purposes of this pilot program, inmate
welfare fund money may not be used to provide services required
to be provided by the county or sheriff and may not supplant any
existing funding for services provided by the county or sheriff.
Existing law authorizes a county sheriff to establish, maintain
and operate a store in connection with the county jail and for
this purpose may purchase confectionary, tobacco and tobacco
users' supplies, postage and writing materials, and toilet
articles and supplies and sell these goods, articles, and
supplies for cash to inmates. (Penal Code § 4025(a).)
Existing law provides that the sale prices of the articles
offered for sale at the store shall be fixed by the sheriff.
Any profit shall be deposited in the inmate welfare fund to be
kept in the treasury of the county. (Penal Code § 4025(b).)
Existing law provides that any money, refund, rebate, or
commission received from a telephone company or pay telephone
provider shall be deposited in the inmate welfare fund when the
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money, refund, rebate, or commission is attributable to the use
of pay telephones which are primarily used by inmates while
incarcerated. (Penal Code § 4025(d).)
Existing law provides that the money and property deposited in
the inmate welfare fund shall be expended by the sheriff
primarily for the benefit, education, and welfare of the inmates
confined within the jail. Any funds that are not needed for the
welfare of the inmates may be expended for the maintenance of
county jail facilities. Maintenance of county jail facilities
may include, but is not limited to the salary and benefits of
personnel used in the programs to benefit the inmates including,
but not limited to, education, drug and alcohol treatment,
welfare, library, accounting, and other programs deemed
appropriate by the sheriff. Inmate welfare funds shall not be
used to pay required county expenses of confining inmates in a
local detention system, such as meals, clothing, housing, or
medical services or expenses, except that inmate welfare funds
may be used to augment those required county expenses as
determined by the sheriff to be in the best interests of
inmates. An itemized report of these expenditures shall be
submitted annually to the board of supervisors. (Penal Code §
4025(e).)
Existing law authorizes the sheriff to expend money from the
inmate welfare fund to provide indigent inmates prior to the
release from the county jail or other adult correctional
facility under the sheriff's jurisdiction with essential
clothing and transportation expenses. (Penal Code § 4025(i).)
Existing law creates a pilot program in the counties of Alameda,
Kern, Los Angeles, Orange, Sacramento, San Bernardino, San
Francisco, San Diego, Santa Barbara, Santa Clara, and
Stanislaus. In each county the sheriff, or, in the County of
Santa Clara, the chief of correction, may expend money from the
inmate welfare fund to provide indigent inmates after release
from the county jail or any other adult detention facility under
the jurisdiction of the sheriff, or, in the County of Santa
Clara, the chief of correction, assistance with the reentry
process within 14 days after the inmate's release. The
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assistance provided may include, but is not limited to, work
placement, counseling, obtaining proper identification,
education, and housing. This pilot program will expire on
January 1, 2013, unless extended.
This bill would add the counties of Marin, Napa, San Luis
Obispo, and Ventura to this pilot program.
This bill would extend the period of time in which inmate
welfare fund money could be used to provide former county jail
inmates with reentry services from 14 days to 30 days from the
date of their release.
This bill would provide that, for purposes of this pilot
program, inmate welfare fund money may not be used to provide
services required to be provided by the county or sheriff and
may not supplant any existing funding for services provided by
the county or sheriff.
This bill would extend the sunset on this program two years to
January 1, 2015.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
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classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
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On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
AB 1445 will extend and expand a pilot program to aid
re-entry of inmates released from county facilities
that will otherwise sunset January 1, 2013. This
program provides that sheriffs in certain counties may
expend monies from their Inmate Welfare Fund to assist
released inmates with re-entry for up to 14 days after
release. Post-release assistance has proven to be
extremely helpful to assist indigent inmates re-enter
society after being incarcerated. Successful re-entry
reduces recidivism rates.
Furthermore, realignment has placed a new felony
population in county jails, and these inmates will be
released without any supervision. To better assist
these individuals, AB 1445 will extend the period of
assistance from 14 days to 30 days.
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2. Use of Inmate Welfare Fund Money for Reentry Services
This pilot program was initiated in 2007 at the request of the
Los Angeles County Sheriff's Department. (SB 718 (Scott) -
Chapter 251, Statutes of 2007.) However, the L.A. County
Sheriff's Department has informed Committee staff that to date,
in Los Angeles County, these funds have not been used for
reentry services, as authorized in this pilot program. This is
due to the fact that community based organizations have been
willing to provide these re-entry services to county jail
inmates in connection with their existing contracts with the
Department of Corrections and Rehabilitation (CDCR) to provide
these services to state parolees. Because the contracts with
CDCR have ended, Los Angeles County would now use this authority
to spend Inmate Welfare Fund money to contract with community
based and faith-based organizations to help newly released
county jail inmates to obtain housing, identification cards,
work placement, counseling, and education.
This bill would extend the period of time that these funds could
be used from 14 days after an inmate's release to 30 days, and
would add language restricting the use of these funds to
services that are not required to be provided by the sheriff or
the county.
3. Sources of Inmate Welfare Fund Money and Its Permissible Uses
Reentry services are essential to helping inmates reestablish
themselves in the community, and stabilizing inmates upon
release from custody can help reduce the chances of their
re-offending. This bill raises the issue of whether providing
certain inmates with re-entry services upon their release is a
legitimate use of inmate welfare funds. The Inmate Welfare Fund
(IWF) is generated from (1) any refunds, rebates, or commissions
received from a telephone company or pay telephone provider of
telephones which are primarily used by inmates while
incarcerated; (2) profit from "commissary" items, i.e.,
confectionery, postage and writing materials, and toiletry
articles and supplies sold to inmates in the jail; and (3) 10%
of all gross sales of inmate hobbycraft. (Penal Code § 4025.)
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The sheriff is free to establish the cost of commissary items
and negotiate the price of phone calls with the providers and
any "refund, rebate or commission" that will be payable to the
IWF. Therefore, the sheriff is able to raise rates on these
items at will to generate proceeds for the IWF. According to
the Los Angeles County Auditor-Controller, as of June 30, 2010,
the net assets of the IWF were over $45 million.<1>
Inmates are not allowed to handle money in jail but their
families can put money on account with the sheriff for the
inmates to use to buy commissary items. Therefore, in essence,
the money in the IWF comes from inmate's families being charged
over-market rates for phone calls and commissary items. This
bill raises the question, what are justifiable uses of these
funds?
Proponents argue that despite what might be viewed as a tax on
inmate families to raise these funds, re-entry services are a
better use of these funds than many expenditures for which
sheriffs are already authorized to use IWF funds. Current law
gives sheriffs broad authority in spending IWF funds. (Penal
Code § 4025(e).) "The money and property deposited in the
inmate welfare fund shall be expended by the sheriff primarily
for the benefit, education, and welfare of the inmates confined
within the jail. Any funds that are not needed for the welfare
of the inmates may be expended for the maintenance of county
jail facilities." This broad authority has led to questions
being raised over use of these funds in Sacramento County and,
in other counties, it has led to law suits.
"That money is supposed to go for the welfare of the
inmates," said Melanie Morgan, who teaches a domestic
violence awareness class to inmates as part of the
Incarcerated Men's Accountability Program, or IMAP.
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<1> County of Los Angeles- Sheriff's Department Inmate Welfare
Fund - Financial Statement and Independent Auditor's Report for
Year ending June 30, 2010, and transmittal letter to Board of
Supervisors dated October 27, 2011, on file with the Committee.
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California's penal code allows jails to set up stores
where inmates can buy items such as cigarettes,
writing materials and toiletries. Profits go to the
inmate welfare fund. The fund is also fed by proceeds
from inmates' collect calls - often the commissions
paid by telephone companies to the jail.
The money, according to the penal code, "shall be
expended by the sheriff primarily for the benefit,
education and welfare of the inmates confined within
the jail."
This fiscal year, the fund totaled $4.8 million. But
its budgeted expenses included $674,000 for security
cameras at the main jail, $260,000 for a
closed-circuit television system and $175,000 for
construction costs at the Rio Cosumnes Correctional
Center, according to budget documents.
James Lewis, chief deputy and the head of corrections,
said the use of funds was within "the spirit and
letter of the law."
Sheriff John McGinness said the only people who
profited from use of the funds were inmates. "It
unequivocally contributes to the safety of the
facility and therefore to the welfare of the inmates
housed there," McGinness said.
But Morgan said the money should have gone to people
programs, not mortar and brick.
"Those kinds of things should be paid for outside with
a different source of money," she said. "That's
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playing fast and loose with the intent when the
Legislature passed that code section."
The controversy isn't exclusive to Sacramento. Grand
juries in Orange and Los Angeles counties have
questioned how their sheriff's departments used inmate
welfare funds.
A 2005 lawsuit in Santa Clara County accused that
county's department of corrections of improperly using
the inmate welfare fund for expenses the department
should have covered with general fund revenue,
according to a copy of the complaint.
The county settled the suit last year. It agreed to
return $1.5 million to the inmate welfare fund and
changed policies to limit its use, according to the
settlement agreement.
"Part of our settlement is that money absolutely
cannot be used for security," said Kyra Kazantzis,
directing attorney of the Public Interest Law Firm,
which represented inmates in the Santa Clara lawsuit.
Much of the controversy over inmate welfare funds
comes from vague wording that dictates their use,
Kazantzis said.
The penal code says, "Any funds that are not needed
for the welfare of the inmates may be expended for the
maintenance of county jail facilities."
That leaves too much room for interpretation,
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Kazantzis said.
"It's incredibly poorly drafted," she said. "If the
language was crystal clear, we probably wouldn't have
settled. ? We were confident enough in the language
that we filed a lawsuit."
The issues in Santa Clara County arose when that
county was having serious budget problems, Kazantzis
said.
Similarly, Sacramento County is grappling with a
projected general fund shortfall of almost $170
million in the fiscal year starting July 1.
In tough times, sheriff's departments need to find
ways to cover costs, McGinness said.
"I'd clearly accept general fund money if it was
available," he said. "As budgets get more challenged,
the potential for creativity is something we have to
be real careful about."
The inmate welfare fund is an important pot of money
that should help rehabilitate inmates, not pay for
equipment or construction costs, said Mark
Throckmorton, director of Manalive-Sacramento Inc., an
anti-violence program for inmates and probationers.
"The programs this fund is intended to provide for
greatly increase public safety," Throckmorton said.
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And it's not taxpayers' money, he added.
"This is money that literally comes from the inmates
and their families," Throckmorton said.
Morgan said she fears the Sheriff's Department might
shutter her IMAP program and HALT, the Housing
Alternatives and Living in Transition program at Rio
Cosumnes. The inmate fund pays for HALT and IMAP and
other rehabilitation and recreational programs. The
department already shut down the Center for
Corrections Alternative Programs last fall because of
a state-funding shortfall.
Sheriff's officials, however, said there are no plans
to shut down Morgan's program or HALT.
Morgan said she plans to contact the state attorney
general's office about the sheriff's use of inmate
welfare money.
"All we really want is someone to look into it,"
Morgan said. (Misuse of Fund to Help Inmates Alleged,
Sacramento Bee, Mar. 16, 2009,
http://www.sacbee.com/302/story/1702175.html.)
4. Argument in Support
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The California Public Defenders Association states:
The inmate welfare fund re-entry pilot project
operating in 11 counties under Penal Code section
4025.5 was created to provide post-release assistance
to indigent inmates the areas of work placement,
counseling, education, housing and obtaining
identification cards. Such areas are absolutely
essential to paving the way for formerly incarcerated
persons to become self-sufficient and contributing
members of the community. Helping an indigent inmate
obtain an identification card prior to or shortly
after release makes smart fiscal sense and will
enhance public safety. The extension of inmate
welfare fund use from 14 days post-release to 30 days
increases the likelihood of a seamless transition in
crucial areas of housing and employment thereby
reducing the risk of homelessness.
Many job applications and public benefits, including
SSI, Medi-Cal and Medi-Caid, as well as CalFRESH,
CalWorks and public housing vouchers, all require
presentation of a valid California ID in order to
process requests. The process of obtaining an
identification card in custody is cumbersome and does
not happen on a regular basis prior to release. Even
when forms are filled out properly, the processing of
applications for a California ID can take months.
Many other applications for identification cards are
kicked back months later because a certain space was
not filled out or is illegible. The risk of
homelessness is reduced if a formerly imprisoned
person is able to present identification when seeking
to rent an apartment, reside in a sober living home,
or participate in a residential drug treatment
program.
5. Argument in Opposition
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The Friends Committee on Legislation states:
While we are very supportive of assisting indigent
prisoners with re-entry, we think that funding these
services from the Inmate Welfare Fund is
inappropriate. As incarceration first and foremost
involves the deprivation of personal liberty, we
believe there is a moral and ethical obligation for
local jails to fund these essential services. Monies
deposited into the Inmate Welfare Fund derive from the
disenfranchised and economically disadvantaged family
members of the incarcerated in the form of
exorbitantly expensive rates they pay on collect phone
calls from their incarcerated loved ones.
If county Inmate Welfare Funds are enjoying large cash
surpluses, we should consider reducing the costs of
these collect calls. Under realignment some local
prisoners will be serving lengthy jail sentences.
Therefore, there is certain to be considerable need
for those modest amenities that make life in jail a
little less unbearable.
AB 1445 presents a slippery slope. We are in essence
privatizing the provision of re-entry services and
creating the expectation that the Inmate Welfare Fund
is a potential funding source for a whole range of
services.
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