BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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1
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AB 2127 (Hernández) 7
As Introduced February 23, 2012
Hearing date: May 8, 2012
Penal Code
SM:mc
WORK RELEASE
HISTORY
Source: San Bernardino Sheriff's Department
Prior Legislation: SB 1549 (Knight) - Chapter 73, Statutes of
1998
AB 2295 (Sweeney) - Chapter 600, Statutes of 1996
AB 381 (Hannigan) - Chapter 381, Statutes of 1993
Support: California Attorneys for Criminal Justice; California
State Sheriffs' Association; Californians United for a
Responsible Budget; Council of California Goodwill;
Drug Policy Alliance; Friends Committee on Legislation;
Legal Services for Prisoners with Children; Los Angeles
County Sheriff's Department; National Association of
Social Workers; California State Association of
Counties; Urban Counties Caucus; Regional Council of
Rural Counties; County Welfare Directors Association of
California; California Public Defenders Association
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 48 - Noes 24
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KEY ISSUES
SHOULD ACTIVELY SEEKING AND ULTIMATELY OBTAINING REGULAR
EMPLOYMENT UPON RELEASE FROM CUSTODY QUALIFY FOR WORK RELEASE
CREDITS?
(CONTINUED)
SHOULD GOING TO WORK AT THE PARTICIPANT'S REGULAR EMPLOYMENT QUALIFY
FOR WORK RELEASE CREDITS?
SHOULD LIFE SKILLS OR PARENTING PROGRAMS QUALIFY FOR WORK RELEASE
CREDITS?
SHOULD THE CURRENT LIMIT ON PROGRAM PARTICIPATION TO ONE-HALF OF ANY
REQUIRED WORK RELEASE CREDITS BE ELIMINATED?
PURPOSE
The purpose of this bill is to recast the work release
provisions for county jail inmates that allow for program
participation in lieu of manual labor to do the following: (1)
add life skills or parenting programs to those programs for
which documented participation may be considered in lieu of
performing labor in a work release program; (2) specify that
participation in educational programs, vocational programs,
substance abuse programs, life skills programs, or parenting
programs shall be considered, with eight work-related hours to
equal to one day of custody credit; (3) authorize the sheriff or
other official to also permit a participant in a work release
program to, upon documented proof of employment and verification
of attendance at the worksite, receive work release credit for
actively seeking and ultimately obtaining regular employment
upon release from custody, specifying that the sheriff or other
official may award up to five days of work release credit for
the job search; and (4) allow the participant's regular
employment to be considered in lieu of performing labor in a
work release program on an hour-for-hour basis, with eight
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work-related hours equal to one day of custody credit.
Current law authorizes the board of supervisors of any county to
authorize the sheriff or other official in charge of county
correctional facilities to offer a voluntary program under which
any person committed to the facility may participate in a work
release program in which one day of participation will be in
lieu of one day of confinement. (Penal Code § 4024.2(a).)
Current law provides that the work release program shall consist
of any of the following:
Manual labor to improve or maintain levees or public
facilities, including, but not limited to, streets, parks
and schools;
Manual labor in support of nonprofit organizations, as
approved by the sheriff or other official in charge of the
correctional facilities. As a condition of assigning
participants of a work release program to perform manual
labor in support of nonprofit organizations pursuant to
this section, the board of supervisors shall obtain
workers' compensation insurance which shall be adequate to
cover work-related injuries incurred by those participants;
Performance of graffiti cleanup for local governmental
entities, including participation in a graffiti abatement
program, as approved by the sheriff or other official in
charge of correctional facilities;
Performance of weed and rubbish abatement on public and
private property, as approved by the sheriff or other
official in charge of the correctional facilities; and
Performance of house repairs or yard services for senior
citizens and the performance of repairs to senior centers
through contact with local senior service organizations, as
approved by the sheriff or other official in charge of the
correctional facilities. Where a work release participant
has been assigned to this task, the sheriff or other
official shall agree upon in advance with the senior
service organization about the type of services to be
rendered by the participant and the extent of contact
permitted between the recipients of the services and the
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participant. (Penal Code § 4024.2(b)(1).)
Current law states that any person who is not able to perform
manual labor as specified because of a medical condition,
physical disability, or age, may participate in a work release
program involving any other type of public sector work that is
designated and approved by the sheriff or other official in
charge of the correctional facilities. (Penal Code §
4024.2(b)(1)(F).)
Current law provides that a sheriff or other official may permit
a prisoner participating in a work release program to receive
work release credit for participation in education programs,
vocational training, or substance abuse programs in lieu of
performing labor in a work release program on an hour-for-hour
basis. However, credit for that participation may not exceed
one-half of the hours established for the work release program,
and the remaining hours shall consist of manual labor. (Penal
Code § 4024.2(b)(2).)
Current law requires that, as a condition of participating in a
work release program, a person must give his or her promise to
appear for work or assigned activity by signing a notice to
appear before the sheriff or at the education, vocational, or
substance abuse program at a time and place specified in the
notice and shall sign an agreement that the sheriff may
immediately retake the person into custody to serve the balance
of his or her sentence if the person fails to appear for the
program at the time and place agreed to, does not perform the
work or activity assigned, or for any other reason is no longer
a fit subject for release. Any person who willfully violates
his or her written promise to appear at the time and place
specified is guilty of a misdemeanor. (Penal Code § 4024.2(c).)
Current law authorizes the board of supervisors of any county in
which the average daily inmate population is 90 percent of the
county's correctional system's mandated capacity may authorize
the sheriff or other official in charge of county correctional
facilities to operate a program under which any person committed
to the facility is required to participate in a work release
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program pursuant to criteria described in subdivision (b) of
Section 4024.2. Participants in this work release program shall
receive any sentence reduction credits that they would have
received had they served their sentences in a county
correctional facility. Priority for participation in the work
release program shall be given to inmates who volunteer to
participate in the program. (Penal Code § 4024.3(a).)
Current law allows the sheriff, chief of police, or any other
person responsible for a county or city jail to apply to the
presiding judge of the superior court to receive general
authorization for a period of 30 days to accelerate the release,
discharge, or expiration of sentence date of sentenced inmates
up to a maximum of five days. The total number of inmates
released pursuant to this section shall not exceed a number
necessary to balance the inmate count and actual bed capacity.
Inmates closest to their normal release, discharge, or
expiration of sentence date shall be given accelerated release
priority. The number of days that release, discharge, or
expiration of sentence is accelerated shall in no case exceed 10
percent of the particular inmate's original sentence, prior to
the application thereto of any other credits or benefits
authorized by law. (Penal Code § 4024.1.)
Current law provides that county boards of supervisors may
authorize the release jail inmates on work furlough. (Penal
Code § 1208.)
This bill would recast the work release provisions that allow
for program participation in lieu of manual labor to do the
following:
Add life skills or parenting programs to those programs
for which documented participation may be considered in
lieu of performing labor in a work release program;
Specify that participation in educational programs,
vocational programs, substance abuse programs, life skills
programs, or parenting programs shall be considered, with
eight work-related hours to equal to one day of custody
credit;
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Authorize the sheriff or other official to also permit a
participant in a work release program to, upon documented
proof of employment and verification of attendance at the
worksite, receive work release credit for actively seeking
and ultimately obtaining regular employment upon release
from custody, specifying that the sheriff or other official
may award up to five days of work release credit for the
job search;
Allow the participant's regular employment to be
considered in lieu of performing labor in a work release
program on an hour-for-hour basis, with eight work-related
hours equal to one day of custody credit.
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
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
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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.
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);
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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:
Many local county jails are under a federal mandate to
keep their inmate population below full capacity level
in order to prevent jail overcrowding. Currently San
Bernardino County has over 1000 inmates on electronic
monitoring that receive full time credit 24/7. They
are cleared to work away from their home while being
monitored and they get full custody credit. They can
even elect to just pay for the monitoring and get full
custody credits for just staying home instead of
working. As the need arises, the Sheriff can
authorize early releases to control jail population.
We should be able to give a sentenced inmate credit
for working.
Current law does not allow for the Sheriff to give
work credits for sentenced inmates who are gainfully
employed, or spend the majority of a day searching for
employment. The whole direction of this effort would
be to encourage and reward positive behavior and
actively seeking or obtaining employment would seem to
qualify. AB 2127 will serve as an incentive for
people convicted of low-level misdemeanors to do their
best to fully reintegrate into the general society by
receiving release credit for working.
2. Work Release Programs and the Effect of This Bill
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Two statutes authorize the creation of work release programs for
county jail inmates. Penal Code section 4024.2 allows county
boards of supervisors to authorize the sheriff to offer a
voluntary program whereas section 4024.3 allows boards of
supervisors to authorize the sheriff to create a program to
which inmates may be assigned without their consent. The Fifth
District Court of appeal explains:
ÝT]he primary purpose behind section 4024.2 is to
allow appropriate candidates an opportunity to avoid
jail time (and hence confer a benefit on themselves)
by volunteering to participate in a work release
program. The primary purpose behind section 4024.3 is
to force participation in work release programs to
avoid inmate overcrowding (and hence confer a benefit
on the county.) (People v. Richter, 128 Cal.App. 4th
575, 583 (2005).)
One difference between these two programs is that inmates who
volunteer for work release under section 4024.2 do not receive
"custody credit" for the time they spend in the program, which
would reduce the overall amount of time they would be required
to serve. Inmates who are involuntarily assigned to a work
program to relieve jail overcrowding, under section 4024.3, are
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entitled to such credits. (Penal Code § 4024.3; People v.
Richter, supra, at 579.) The provisions of this bill would
apply to county jail inmates in both voluntary and involuntary
work release programs.<1>
Currently, whether the offender is participating in work release
voluntarily or not, participation in educational, vocational
training or substance abuse programs may substitute for a
maximum of one-half of the hours the offender is required to
serve under the work release program. One significant aspect of
this bill is that it eliminates this limitation so that such
program participation could be used to satisfy the offender's
entire work release obligation.
3. Statement in Support
The California State Sheriffs' Association states:
Existing law allows the board of supervisors of any
county to authorize the sheriff or other official in
charge of county correctional facilities to offer a
voluntary program under which any person committed to
the facility may participate in a work release program
pursuant to certain criteria as outlined in statute.
However, current law does not allow for the sheriff to
give work credits for sentenced inmates who are
gainfully employed, or spend a majority of a day
searching for employment.
Due to a federal mandate to keep inmate population
below full capacity level in order to prevent jail
overcrowding in county jails, every step should be
taken to ensure that the policy goals set forth by
enactment of realignment are successfully implemented.
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<1> Although this bill only amends subdivision (b) of Penal Code
section 4024.2, section 4024.3(a) states that work release
programs instituted under that section shall be operated
"pursuant to criteria described in subdivision (b) of Section
4024.2."
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The whole direction of this effort would be to
encourage and reward positive behavior and actively
seeking or obtaining employment is a positive move
toward that purpose.
4. Statement in Opposition
The California District Attorneys Association states:
Unfortunately, this bill represents another way for
offenders to serve less custody time. Inmates should
take advantage of these programs, as available, if for
no other reason than to help insure that they do not
return to incarceration, not because they can get out
of jail faster. Even more troubling is the fact that,
in many instances, AB 2127 will provide custody
credits to inmates for participation in programs that
they have already agreed to do as a condition of
probation. Participating in educational or vocational
programs, seeking employment and being employed, and
participating in a substance abuse program as
appropriate
are all typical probation conditions. The bottom line
is that this bill creates a benefit for jail inmates
for doing something they should be doing or are
required to do. The manual labor part of the work
release program is important and should not be
eliminated.
While we understand sheriffs' desire and need to be
able to effectively manage their populations, we are
concerned that bills of this nature limiting custody
time are becoming the weapon of choice to deal with
the obvious outcroppings of the policies espoused by
realignment. Prisons are being emptied of
"nonserious" and "nonviolent" offenders and our jails
are becoming overcrowded with offenders who would have
otherwise been in prison. At some point, there have
to be consequences for criminality and this bill
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diminishes that notion.
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