BILL ANALYSIS �
AB 68
Page 1
Date of Hearing: April 2, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 68 (Maienschein) - As Amended: April 1, 2013
SUMMARY : Requires the California Department of Corrections and
Rehabilitation (CDCR) to provide notice to the county of
commitment, the county of last legal residence, and the county
of proposed release of any medical parole release or of any
medical parole release. Provides that notice shall be made at
least 30 days prior to the time any medical parole hearing or
medical parole release is scheduled for an inmate receiving
medical parole consideration, regardless of whether the inmate
is sentenced either determinately or indeterminately.
EXISTING LAW :
1)Establishes the medical parole program whereby any prisoner
who the head physician of the institution where the prisoner
is located determines is permanently medically incapacitated
with a medical condition that renders him or her permanently
unable to perform activities of basic daily living, and
results in the prisoner requiring 24-hour care, and that
incapacitation did not exist at the time of sentencing, shall
be granted medical parole if the Board of Parole Hearings
(BPH) determines that the conditions under which the prisoner
would be released would not reasonably pose a threat to public
safety. [Penal Code Section 3550(a).]
a) States that medical parole shall not apply to any
prisoner sentenced to death or life in prison without
possibility of parole or to any inmate who is serving a
sentence for which medical parole is prohibited by any
initiative statute. [Penal Code Section 3550(b).]
b) States that when a physician employed by CDCR who is the
primary care provider for an inmate identifies an inmate
that he or she believes meets the medical criteria for
medical parole, the primary care physician shall recommend
to the head physician of the institution where the prisoner
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is located that the prisoner be referred to the BPH for
consideration for medical parole. Within 30 days of
receiving that recommendation, if the head physician of the
institution concurs in the recommendation of the primary
care physician, he or she shall refer the matter to BPH
using a standardized form and format developed by the
department, and if the head physician of the institution
does not concur in the recommendation, he or she shall
provide the primary care physician with a written
explanation of the reasons for denying the referral.
[Penal Code Section 3550(c).]
c) Allows the prisoner or his or her family member or
designee to independently request consideration for medical
parole by contacting the head physician at the prison or
CDCR. Within 30 days of receiving the request, the head
physician of the institution shall, in consultation with
the prisoner's primary care physician, make a determination
regarding whether the prisoner meets the criteria for
medical parole as specified and, if the head physician of
the institution determines that the prisoner satisfies the
criteria, he or she shall refer the matter to BPH using a
standardized form and format developed by CDCR. If the
head physician of the institution does not concur in the
recommendation, he or she shall provide the prisoner or his
or her family member or designee with a written explanation
of the reasons for denying the application. [Penal Code
Section 3550(d).]
d) Requires CDCR to complete parole plans for inmates
referred BPH for medical parole consideration. The parole
plans shall include, but not be limited to, the inmate's
plan for residency and medical care. [Penal Code Section
3550(e).]
e) Provides, notwithstanding any other law, that medical
parole hearings shall be conducted by two-person panels
consisting of at least one commissioner. In the event of a
tie vote, the matter shall be referred to the full board
for a decision. Medical parole hearings may be heard in
absentia. [Penal Code Section 3550(f).]
f) Requires BPH, upon receiving a recommendation from the
head physician of the institution where a prisoner is
located for the prisoner to be granted medical parole, to
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make an independent judgment regarding whether the
conditions under which the inmate would be released pose a
reasonable threat to public safety, and make written
findings related thereto. [Penal Code Section 3550(g).]
g) Authorizes the board or the Division of Adult Parole
Operations to impose any reasonable conditions on prisoners
subject to medical parole supervision, including, but not
limited to, the requirement that the parolee submit to
electronic monitoring. As a further condition of medical
parole, the parolee may be required to submit to an
examination by a physician selected by the board for the
purpose of diagnosing the parolee's current medical
condition. In the event such an examination takes place, a
report of the examination and diagnosis shall be submitted
to the board by the examining physician. If the board
determines, based on that medical examination, that the
person's medical condition has improved to the extent that
the person no longer qualifies for medical parole, the
board shall return the person to the custody of the
department. [Penal Code Section 3550(h).]
h) Requires CDCR, at the time a prisoner is placed on
medical parole supervision, to ensure that the prisoner has
applied for any federal entitlement programs for which the
prisoner is eligible, and has in his or her possession a
discharge medical summary, full medical records, parole
medications, and all property belonging to the prisoner
that was under the control of the department. Any
additional records shall be sent to the prisoner's
forwarding address after release to health care-related
parole supervision. [Penal Code Section 3550(i).]
2)States that a representative of the district attorney of the
county from which a life prisoner was committed may
participate in any parole consideration or rescission hearing
for that prisoner. If the Attorney General prosecuted the
case for the county, or if the district attorney cannot appear
because of a conflict, the Attorney General may appear and
participate in the hearing for the district attorney. [Title
15 CCR 2030(a)(3).]
3)Requires notice that a hearing will be held to be given to the
prosecutor at least 30 days before the hearing. If the
prosecutor wishes to participate in the hearing he shall, at
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least two weeks before the hearing, notify the institution
hearing coordinator that a representative will attend. The
prisoner's attorney shall be notified that a prosecutor will
attend. [Title 15 CCR 2030(b).]
4)Requires, at least 30 days before the board meets to review or
consider the parole suitability or the setting of a parole
date for any prisoner sentenced to a life sentence, the board
to send written notice thereof to each of the following
persons: the judge of the superior court before whom the
prisoner was tried and convicted, the attorney who represented
the defendant at trial, the district attorney of the county in
which the offense was committed, the law enforcement agency
that investigated the case, and where the prisoner was
convicted of the murder of a peace officer, the law
enforcement agency which had employed that peace officer at
the time of the murder. [Penal Code Section 3042(a).]
5)States that upon request to CDCR and verification of the
identity of the requester, notice of any hearing to review or
consider the parole suitability or the setting of parole date
for any prisoner shall be given by BPH at least 90 days before
the hearing to any victim of any crime committed by the
prisoner, or the next of kin of the victim if the victim has
died. [Penal Code Section 3043(a).]
6)Provides that an inmate who is released on parole or
postrelease supervision shall be returned to the county that
was the last legal resident of the inmate prior to his or her
incarceration, except as provided. For purposes of this
subdivision, "last legal residence" shall not be construed to
mean the county wherein the inmate committed an offense while
confined in state prison or a local jail facility or while
confined for treatment in a state hospital. [Penal Code
Section 3003(a).]
a) States that notwithstanding the above provision, an
inmate may be returned to another county if that would be
in the best interests of the public, and provides specified
factors for the paroling authority to consider when making
the decision to release an inmate to a county other than
his or her last legal residence. The factors give the most
weight to the protection of the victim and the safety of
the community. [Penal Code Section 3003(b).]
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b) Requires CDCR to release the following information, if
available, to local law enforcement agencies regarding a
paroled inmate or inmate placed on postrelease supervision
who is released in their jurisdictions [Penal Code Section
3003(e)(1)]:
i) Last, first, and middle name.
ii) Birthdate.
iii) Sex, race, height, weight, and hair and eye
color.
iv) Date of parole and discharge.
v) Registration status, if the inmate is required
to register as a result of a controlled substance, sex
or arson offense.
vi) California Criminal Information Number, FBI
Number, social security number, and driver's license
number.
vii) County of commitment.
viii) A description of scars, marks, and tattoos on
the inmate.
ix) Offense or offenses for which the inmate was
convicted that resulted in parole in this instance.
x) Address, as specified.
xi) Contact officer and unit, as specified.
xii) A digitized image of the photograph and at least
s single digit fingerprint of the parolee.
xiii) A geographic coordinate for the parolee's
residence location for use with a Geographical
Information System or comparable computer program.
7)States that whenever any person confined to state prison is
serving a term for the conviction of a violent felony, BPH or
CDCR shall notify the sheriff or chief of police, or both, and
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the district attorney, who has jurisdiction over the community
in which the person was convicted and, in addition, the
sheriff or chief of police, or both, and the district
attorney, having jurisdiction over the community in which the
person is scheduled to be released on parole or rereleased
following a period of confinement pursuant to a parole
revocation without a new commitment. [Penal Code Section
3058.6(a).]
a) Requires that the notification be made by mail at least
60 days prior to the scheduled release date, except as
provided. In all cases, the notification shall include the
name of the person who is scheduled to be released, whether
or not the person is required to register with the local
law enforcement, and the community in which the person will
reside. The notification shall specify the office within
CDCR with the authority to make final determinations and
adjustments regarding parole location decisions. [Penal
Code Section 3058.6(b)(1).]
b) States that when notice cannot be provided at least 60
days prior to release due to circumstances as specified,
CDCR shall provide notification as soon as practicable, but
in no case shall CDCR delay making the notification more
than 24 hours from the time the final decision is made
regarding where the parolee will be released. [Penal Code
Section 3058.6(b)(3).]
c) Allows those agencies receiving this notice to provide
written comment within 45 days prior to the inmate's
scheduled release to BPH or CDCR. Those comments shall be
considered by BPH or CDCR which may, based on those
comments, modify its decision regarding the community in
which the person is scheduled to be released. CDCR shall
respond in writing not less than 15 days prior to the
scheduled release with a final determination as to whether
to adjust the parole location and documenting the basis for
its decision. The comments shall become a part of the
inmate's file. [Penal Code Section 3058.6(b)(4).]
d) States that if a court orders the immediate release of
an inmate, CDCR shall notify the sheriff or chief of
police, or both, and the district attorney, having
jurisdiction over the community in which the person was
convicted and, in addition, the sheriff or chief of police,
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or both, and the district attorney, having jurisdiction
over the community in which the person is scheduled to be
released on parole at the time of release. [Penal Code
Section 3058.6(c).]
8)Provides whenever any sheriff or chief of police is notified
of the pending release of a convicted violent felon, as
specified, that sheriff or chief of police may notify any
person designated by the sheriff or chief of police as an
appropriate recipient of this notice. [Penal Code Section
3058.7(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Due to
Realignment, the State of California is allowed to offer
medical parole to inmates who are permanently medically
incapacitated, are not a threat to public safety, and have not
been sentenced to death or life without the possibility of
parole. These inmates are placed in care facilities in the
community, but are still considered incarcerated.
"Under current law, a notification of pending medical parole is
only provided to the District Attorney in the county where the
inmate was convicted. There are instances where inmates are
medically paroled to counties other than the one they were
convicted in and those counties are not notified that a
medical parolee will be returning to their community. As an
example, in San Diego County, which has highly specialized
skilled nursing home facilities that provide high levels of
care required by some prisoners, several individuals have been
medically paroled without any notice to County officials.
"AB 68 does not alter the procedure for determining whether to
approve an inmate for medical parole, or not. This measure
simply seeks to require the California Department of
Corrections and Rehabilitation (CDCR) to provide notification
to pertinent entities, such as the County, District Attorney
and Sheriff of both the county of commitment and the county
where the medical parolee will receive care, all of whom are
responsible for the public's safety in some capacity.
"AB 68 will fulfill one of our highest priorities, which is
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ensuring the safety of our communities and its residents."
2)Background on Medical Parole : In 2010, the medical parole law
was signed into law. [SB 1399 (Leno), Chapter 405, Statutes
of 2010.] The law only applies to those inmates who have been
declared by the head physician in the institute where they are
housed to be permanently medically incapacitated with a
medical condition that renders him or her permanently unable
to perform activities of basic daily living, and results in
the prisoner requiring 24-hour care. BPH must also make a
determination that the conditions under which the prisoner
would be released would not reasonably pose a threat to public
safety.
According to the background information provided by the author's
office for SB 1399, "SB 1399 will medically parole, the
sickest of the sick. And although this would only apply to a
handful of inmates, these inmates are by far the most costly
in the system. The average cost for an inmate placed in a
correctional treatment center bed is $10,604. When you add
the costs of medical guarding and transportation to that
(patients in this setting normally average one to three
outside medical visits with hospital transportation and two
correctional officers at the hourly rate, plus benefits) the
figure rises to $114,395 dollars per inmate. The Federal
Receiver has identified 11 inmates as extremely incapacitated
and housed within the prison system in correctional treatment
center beds with medical bills averaging over $114,000 each
per year.
"An additional 21 inmates are housed at an even higher rate to
the taxpayer in nursing facilities or hospitals outside of the
prison facility. These type of beds average a cost of $3,500
per day. When you add the guarding costs to that (two
correctional officers per shift, three shifts per day,
straight time plus benefits) the number jumps to $5,406 a day.
So the total cost for a single inmate in this type of
treatment setting is nearly $2 million - $1,973,252. This
means that the state has paid a total of $41.4 million a year
for just 21 individuals who would most likely qualify as
medical parole candidates under this legislation due to their
severe medical condition as evidenced by the exorbitant costs
of their medical care.
"Finally, there is one more type of bed, the hospice bed. For
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inmates dying in this type of medical setting, the costs of a
physician assistant, registered nurse, office assistant, and
clinical social worker total nearly $2 million per hospice bed
- $1,868,232. CDCR has 17 hospice beds currently within the
system at a price of $31,759,944 - nearly $32 million dollars
a year.
"By eliminating the requirement for 24-hour guard care at
health facilities, a medical parole program could save the
state millions just in custody and transportation costs alone.
According to the State Auditor, between 2003 and 2008,
medical guard time accounted for 24% of the prison system's
total guard overtime. Spending for guard costs has increased
by $66 million since 2003. The price for two correctional
officers to guard a single inmate at an outside nursing
facility has been reported to be $2,317 a day. The guard
price for the inmate during a six-month period was $410,000.
That's nearly equal to actual cost of medical care provided to
the inmate during the same timeframe which totaled an
additional $421,000. We can assume that for every inmate we
send out into the community for special treatment, we are
nearly doubling the taxpayer burden for the cost of their
incarceration.
"Incarcerated inmates, regardless of their medical condition,
are not eligible to receive any federally funded medical care.
However, these restrictions do not apply to persons on
parole, meaning that SB 1399 would allow the State to receive
federal reimbursement for a significant portion of the costs
associated with inmates eligible to be placed on medical
parole.
"Currently, prisoners who are suffering from severe medical
incapacitation are treated in correctional treatment center
beds, outside hospital patient beds, or hospice beds; the
price tag for which starts at nearly $115,000 a year for the
lowest level treatment setting of the three options. Now,
taking that into account, imagine the savings that could be
realized given that the average annual cost of Medi-Cal
fee-for-service skilled nursing care is only about $60,000.
Of course, the cost of skilled nursing varies significantly
depending on the acuity level of patients and it's likely that
terminally ill patients on average would have greater care
needs and thus have a higher average cost; nevertheless, the
Medi-Cal cost share is 50-percent state and 50-percent federal
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meaning the state would only pay half one-the costs of caring
for a parolee being treated in the community if he or she
qualified for Medi-Cal. Further, it is conceivable that many
of these inmates will qualify for Medicare which is entirely
funded by the federal government."
3)The Role of CDCR in Parole :
a) Placement of Parolees : CDCR has "exclusive jurisdiction
and full discretion to determine a parolee's placement."
[Penal Code Section 3003; City of Susanville v. Department
of Corrections and Rehabilitation (2012) 204 Cal.App.4th
377, 382 (138 Cal. Rptr. 3d 721); In re Roberts (2005) 36
Cal.4th 575, 588 (31 Cal. Rptr. 3d 458, 115 P.3d 1121);
People v. Stevens (2001) 89 Cal.App.4th 585, 588 (107 Cal.
Rptr. 2d 305).] Penal Code Section 3003 provides that,
whenever possible, an inmate who is released on parole
shall be returned to the county that was the last residence
of the inmate prior to his or her incarceration. If CDCR
determines that the inmate cannot be returned to the county
of his or her last residence, CDCR may return the inmate to
another county, if that would be in the best interests of
the public. Although CDCR has the discretion to decide
where to return the inmate, Penal Code Section 3003
provides the following factors that CDCR must consider when
making this decision: (i) the need to protect the life or
safety of a victim, the parolee, a witness, or any other
person; (ii) public concern that would reduce the chance
that the inmate's parole would be successfully completed;
(iii) the verified existence of a work offer, or an
educational or vocational training program; (iv) the
existence of family in another county with whom the inmate
has maintained strong ties and whose support would increase
the chance that the inmate's parole would be successfully
completed; and (v) the lack of necessary outpatient
treatment programs for parolees receiving treatment. Penal
Code Section 3003 also specifies that the greatest weight
shall be given to the protection of the victim and the
safety of the community.
In a recent case, a city and county filed a petition for a
writ of mandamus to change the placement of a parolee in
their county. CDCR first attempted to place the inmate in
the county of his last residence but because of statutory
restrictions on a parolee's placement near a witness or
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victim, CDCR looked at other counties, including his
sister's residence, and finally decided on the plaintiff
county. In ruling that neither the city, the county, nor
the trial court could interfere with CDCR's exclusive
discretion to determine a parole placement according to the
statutory criteria and notice requirements set forth in the
Penal Code, the court reasoned that "[u]ndoubtedly,
counties throughout the state would object to the placement
of a parolee in their jurisdictions. But the Department
has the unwelcome task of choosing one of those
communities, and absent an abuse of discretion, the
Department's decision must stand." (City of Susanville v.
Department of Corrections and Rehabilitation, supra, 204
Cal.App.4th at p. 386.)
b) Notification Requirements : Under current law, CDCR is
required to provide notification to specified parties of
parole hearings, pending release of inmates, and release of
inmates. Victims or victim next-of-kin who are registered
to receive notification will receive information regarding
the date and location of the hearing, and have the right to
attend and participate in the medical parole hearing. In
the case of parole for an inmate serving a life sentence,
CDCR must provide notice to the judge of the superior court
before whom the prisoner was tried and convicted, the
attorney who represented the defendant at trial, the
district attorney of the county in which the offense was
committed, the law enforcement agency that investigated the
case, and where the prisoner was convicted of the murder of
a peace officer, the law enforcement agency which had
employed that peace officer at the time of the murder.
[Penal Code Section 3042(a).] Generally, when an inmate is
paroled, CDCR must provide certain information to local law
enforcement agencies regarding a paroled inmate or an
inmate placed on postrelease supervision who is released in
their jurisdictions. [Penal Code Section 3003(e)(1).]
When an inmate serving a sentence for a violent felony
conviction is being paroled, CDCR must notify the sheriff
or chief of police, or both, and the district attorney, who
has jurisdiction over the community in which the person was
convicted and, in addition, the sheriff or chief of police,
or both, and the district attorney, having jurisdiction
over the community in which the person is scheduled to be
released on parole. The notification must be made by mail
at least 60 days prior to the scheduled release, or as soon
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as practicable. [Penal Code Section 3058.6(a)-(b).]
Existing law also provides that "whenever any sheriff or
chief of police is notified of the pending release of a
convicted violent felon, that sheriff or chief of police
may notify any person designated by the sheriff or chief of
police as an appropriate recipient of this notice." [Penal
Code Section 3058.7(a), emphasis added.]
This bill adds the county of last legal residence as one of
the counties to receive notice of a medical parole hearing
and a medical parole release. While current law provides
that the county of last legal residence is usually where
the inmate shall be returned [Penal Code Section 3003(a)],
it further provides that an inmate may be returned to
another county if that would be in the best interests of
the public [Penal Code Section 3003(b)]. If an inmate
receiving medical parole consideration is not being
returned to the county of his or her last legal residence,
is there a need to provide notice of his or her medical
parole hearing or medical parole release to his or her
county of last legal residence?
4)Argument in Support : According to the California Police
Chiefs Association , "Existing law requires a physician
employed by the Department of Corrections and Rehabilitation
who is the primary care provider for a prisoner to recommend
that the prisoner be referred to the Board of Parole Hearings
for consideration for medical parole if the physician believes
the prisoner meets the criteria for medical parole. This bill
would require the Department of Corrections and Rehabilitation
to give notice of any medical parole hearing and any medical
parole release to both the county of commitment and the county
of proposed release, at least 30 days prior to a medical
parole hearing or a medical parole release. This bill would
require that the notice include pertinent information
regarding the inmate, including his or her plan for residency
and medical care.
"The California Police Chiefs Association strongly believes that
this notice is appropriate. Last year, we had a very close
call where a triple murderer, convicted of killing a civilian
and two law enforcement officers execution style, nearly
achieved medical parole. This bill will decrease the
likelihood of such an abuse of the Medical Parole process
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occurring again."
5)Argument in Opposition : According to the California Attorneys
for Criminal Justice (CACJ), "The proposed language in AB 68,
affording notice of parole hearings is, although
hypothetically useful, a practice which provides no benefit to
the citizens of California. For a prisoner to gain
eligibility for medical parole, they must qualify as
permanently medically incapacitated. Such prisoners must be
factually established and confirmed by CDCR medical staff,
including the head physician at the prison providing housing.
The Board of Parole Hearings must ratify the recommendation.
It is a satisfactory safeguard, as witnessed by the safe and
effective, selective and spare use of this option since
enactment.
"These prisoners require hideously expensive care as a result of
their incapacitation. Granted this, one must ask whether
advance notice to county of last legal residence is included
for any reason other than to afford an opportunity to object
to the release. Although such objection may be understandable
in the conventional parole setting, for incapacitated
prisoners posing no reasonable risk, no functional purpose is
served by this advance notice. Granted this perspective, CACJ
believes the bill should be withdrawn or amended to limit
notice to concurrent notice with release."
6)Related Legislation : AB 353 (Brown) exempts from medical
parole eligibility a prisoner who was convicted of the murder
of a peace officer, as provided. AB 353 is pending hearing by
this Committee.
7)Prior Legislation :
a) SB 1462 (Leno), Chapter 867, Statutes of 2012,
authorizes a county sheriff to release an inmate from the
county jail who has less than six months to live, and to
request a court to grant medical parole to an inmate that
is physically incapacitated. SB 1462 authorizes the
probation officer or the court to request a medical
examination of the person released on medical parole at any
time, and to return that person to the sheriff's custody if
that person no longer qualifies for release.
b) AB 44 (Logue), Chapter 355, Statutes of 2011, extended
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from 45 to 60 days the period in which CDCR must notify the
sheriff, chief of police, or both, and the district
attorney of the scheduled release date of an inmate who has
been convicted of a "violent" felony
c) SB 1399 (Leno), Chapter 405, Statutes of 2010,
established the medical parole program.
d) AB 2290 (Bradford), 2009-2010 Legislative Session, would
have CDCR, not less than 45 days prior to the release of
such an inmate, or as soon as practicable, to notify, via
the Law Enforcement Automated Data System, the local law
enforcement agency of the jurisdiction to which the inmate
is to be released regarding the scheduled release. AB 2290
was vetoed.
e) AB 1539 (Krekorian), Chapter 740, Statutes of 2007,
established criteria and procedure for which a state
prisoner may have his/her sentence recalled and be
re-sentenced if he/she is diagnosed with a disease that
would produce death within six months or is permanently
medically incapacitated and whose release is deemed not to
threaten public safety.
f) AB 217 (Vargas), Chapter 466, Statutes of 2005, requires
that at least 45 days before a person who is required to
register as a sex offender is released into a long-term
health care facility, CDCR or any other official in charge
of a place of confinement to notify the facility, in
writing, that the sex offender is being released to reside
at the facility.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Police Chiefs Association
California State Association of Counties
California State Sheriffs' Association
Crime Victims United
Urban Counties Caucus
Opposition
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California Attorneys for Criminal Justice
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Justice Now
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744