BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 9 0 9 AB 909 (Gray) As Amended May 24, 2013 Hearing date: June 25, 2013 Penal Code AA:mc METAL THEFT: TASK FORCE HISTORY Source: California Farm Bureau Federation Prior Legislation: AB 2298 (Ma) - Ch. 823, Stats. 2012 (amended into an unrelated measure) Support: California Association of Joint Powers Authorities; California State Association of Counties; West Coast Chapter of the Institute of Scrap Recycling Industries; Pacific Gas and Electric; Friant Water Authority; California Chamber of Commerce; Association of California Water Agencies; California Business Properties Association; American Pistachio Growers; California Cotton Ginners Association; California Cotton Growers Association; California Grape & Tree Fruit League; Western Agricultural Processors Association; Western Plant Health Association; Metropolitan Water District of Southern California; Eastern Municipal Water District; Lassen County; PacifiCorp; California State Sheriffs' Association Opposition:None known (More) AB 909 (Gray) PageB Assembly Floor Vote: Ayes 77 - Noes 1 KEY ISSUE SHOULD A METAL THEFT TASK FORCE AND FUND BE CREATED, AS SPECIFIED? PURPOSE The purpose of this bill is to establish the Metal Theft Task Force and Fund, as specified. Current law establishes the "Board of State and Community Corrections" ("BSCC"), as specified. (Penal Code § 6024.) Current law provides the following mission for the BSCC: The mission of the board shall include providing statewide leadership, coordination, and technical assistance to promote effective state and local efforts and partnerships in California's adult and juvenile criminal justice system, including addressing gang problems. This mission shall reflect the principle of aligning fiscal policy and correctional practices, including, but not limited to prevention, intervention, suppression, supervision, and incapacitation, to promote a justice investment strategy that fits each county and is consistent with the integrated statewide goal of improved public safety through cost-effective, promising, and evidence-based strategies for managing criminal justice populations. (Penal Code § 6024(b).) Current law enumerates specified duties for the BSCC, including requiring it to do the following: Collect and maintain available information and data about state and community correctional policies, practices, (More) AB 909 (Gray) PageC capacities, and needs, including, but not limited to, prevention, intervention, suppression, supervision, and incapacitation, as they relate to both adult corrections, juvenile justice, and gang problems. The board shall seek to collect and make publicly available up-to-date data and information reflecting the impact of state and community correctional, juvenile justice, and gang-related policies and practices enacted in the state, as was well as information and data concerning promising and evidence-based practices from other jurisdictions. Develop recommendations for the improvement of criminal justice and delinquency and gang prevention activity throughout the state. Identify, promote, and provide technical assistance relating to evidence-based programs, practices, and innovative projects consistent with the mission of the board. Receive and disburse federal funds, and perform all necessary and appropriate services in the performance of its duties as established by federal acts. Develop comprehensive, unified, and orderly procedures to ensure that applications for grants are processed fairly, efficiently, and in a manner consistent with the mission of BSCC. Identify delinquency and gang intervention and prevention grants that have the same or similar program purpose, are allocated to the same entities, serve the same target populations, and have the same desired outcomes for the purpose of consolidating grant funds and programs and moving toward a unified single delinquency intervention and prevention grant application process in adherence with all applicable federal guidelines and mandates. Cooperate with and render technical assistance to the Legislature, state agencies, units of general local government, combinations of those units, or other public or private agencies, organizations, or institutions in matters relating to criminal justice and delinquency prevention. Develop incentives for units of local government to develop comprehensive regional partnerships whereby adjacent jurisdictions pool grant funds in order to deliver (More) AB 909 (Gray) PageD services to a broader target population and maximize the impact of state funds at the local level. Conduct evaluation studies of the programs and activities assisted by the federal acts. Identify and evaluate state, local, and federal gang and youth violence suppression, intervention, and prevention programs and strategies, along with funding for those efforts. The board shall assess and make recommendations for the coordination of the state's programs, strategies, and funding that address gang and youth violence in a manner that maximizes the effectiveness and coordination of those programs, strategies, and resources. By January 1, 2014, the board shall develop funding allocation policies to ensure that within three years no less than 70 percent of funding for gang and youth violence suppression, intervention, and prevention programs and strategies is used in programs that utilize promising and proven evidence-based principles and practices. The board shall communicate with local agencies and programs in an effort to promote the best evidence-based principles and practices for addressing gang and youth violence through suppression, intervention, and prevention. Collect county criminal justice realignment plans within two months of adoption by the county boards of supervisors. Commencing January 1, 2013, and annually thereafter, the board shall collect and analyze available data regarding the implementation of the local plans and other outcome-based measures, as defined by the board in consultation with the Administrative Office of the Courts, the Chief Probation Officers of California, and the California State Sheriffs Association. By July 1, 2013, and annually thereafter, the board shall provide to the Governor and the Legislature a report on the implementation of the plans described above. (Penal Code (More) AB 909 (Gray) PageE § 6027.)<1> Current law also authorizes BSCC to do either of the following: (1) Collect, evaluate, publish, and disseminate statistics and other information on the condition and progress of criminal justice in the state. (2) Perform other functions and duties as required by federal acts, rules, regulations, or guidelines in acting as the administrative office of the state planning agency for distribution of federal grants. (Id.) Establishment of Metal Theft Task Force and Fund This bill would establish a Metal Theft Task Force and Fund, as specified and operative on January 1, 2015, with the following features and requirements: Metal Theft Task Force Fund This bill would establish the Metal Theft Task Force Fund within the State Treasury, as specified. Funds shall, upon appropriation by the Legislature, be available for the purposes set forth in this title: The fund shall consist of moneys deposited into the fund -------------------------- <1> In addition to these duties, BSCC (and its predecessor entities) also is required to establish minimum standards for local correctional facilities (Penal Code § 6030), to inspect local detention facilities biennially (Penal Code §§ 6031 and 6031.1), to conduct biennial inspections of local juvenile facilities, as specified (Welfare and Institutions Code § 209), and to engage in related efforts with respect to standards and conditions in local facilities where minors are detained, as specified. (See WIC §§ 207.1, 210, and 210.2.) In addition to its ongoing duties, CSA/BSCC is statutorily tasked with administering certain programs, such as the AB 900 Local Jail Construction Financing Program, the Juvenile Justice Crime Prevention Act, and the Youthful Offender Block Grant. (More) AB 909 (Gray) PageF from the federal government, industry, and private sources. General Fund moneys shall not be deposited into the fund nor used to implement the provisions of this title. Funds provided under this program are stated in statute to be intended to ensure that law enforcement is equipped with the necessary personnel and tools to successfully combat metal theft and related recycling crimes, which include, but are not limited to, all of the following offenses: o The theft of metals, including, but not limited to, nonferrous metals. o The purchase and recycling of stolen metals, including, but not limited to, recycled metal beverage containers, by recyclers. o The transportation of stolen metals from this state to another state. o The transportation of stolen metals from another state to this state. Administration of the Fund This bill would provide that the fund shall be administered by the BSCC. This bill would authorize the BSCC to adopt regulations as needed to administer this title. This bill would provide that the overall program and the evaluation and monitoring of all grants made pursuant to this title shall be performed by the BSCC. This bill would provide that moneys appropriated to the BSCC for the program shall be expended to fund programs that enhance the capacity of local law enforcement and prosecutors to deter, investigate, and prosecute metal theft and related recycling crimes. This bill would provide that after deduction of the BSCC's actual and necessary administrative costs, the funds shall be (More) AB 909 (Gray) PageG expended to fund programs to enhance the capacity of local law enforcement and prosecutors to deter, investigate, and prosecute metal theft and related recycling crimes. This bill would provide that funds distributed under this program shall be expended for the exclusive purpose of deterring, investigating, and prosecuting metal theft and related recycling crimes. This bill would provide that up to 10 percent of the funds may, upon appropriation, be used for developing and maintaining a statewide database on metal theft and related recycling crimes for use in developing and distributing intelligence information to participating law enforcement agencies. Establishment of a Metal Theft Task Force Program This bill would require the BSCC to establish the Metal Theft Task Force Program. Regional Task Forces This bill would require the BSCC to develop specific guidelines and administrative procedures for the selection of regional task forces to receive funds under this program, as follows: Each regional task force that seeks funds shall submit a written application to the board setting forth in detail the proposed use of funds. Each regional task force shall be identified by a name that is appropriate to the area that it serves. In order to qualify for funds, a regional task force shall be comprised of local law enforcement and prosecutors from at least two counties. Each task force would be expressly authorized to consult with experts from the United States military, the California Military Department, the Department of Justice, other law enforcement entities, and various other state and private organizations, including pertinent trade associations, as deemed necessary to (More) AB 909 (Gray) PageH maximize the effectiveness of this program. Priority shall be given to regional task forces outside of the 13 counties funded under the rural crime prevention programs, as specified. The guidelines shall include all of the following selection criteria that shall be considered by the board in awarding grant funds: o The number of metal theft or related recycling crime cases filed in the prior year. o The number of metal theft or related recycling crime cases investigated in the prior year. o The number of victims involved in the cases filed. o The total aggregate monetary loss suffered by the victims, including damage caused by the theft. o Local funds available to assist the regional task force. o The number of licensed recycling facilities in the region. Accounting of Funds Received This bill would require that each regional task force awarded funds authorized under the program during the previous grant-funding cycle, upon reapplication for funds to the board in each successive year, submit a detailed accounting of funds received and expended in the prior year in addition to any information required by this title. This bill would require that the accounting include all of the following information: o The amount of funds received and expended. o The use to which those funds were put, including payment of salaries and expenses, purchase of equipment and supplies, and other expenditures by type. (More) AB 909 (Gray) PageI o The number of filed complaints, investigations, arrests, and convictions that resulted from the expenditure of the funds. Evaluation and Reporting This bill would require the BSCC to regularly review the effectiveness of the program in deterring, investigating, and prosecuting metal theft and related recycling crimes and present a report to the Legislature and Governor, as specified. This bill would require that the report be based on information provided by the regional task forces in an annual report to the board which shall detail all of the following: The number of metal theft and recycling crime cases filed in the prior year. The number of metal theft and recycling crime cases investigated in the prior year. The number of victims involved in the cases filed. The number of convictions obtained in the prior year. The total aggregate monetary loss suffered by the victims, including damage caused by the theft. An accounting of funds received and expended in the prior year, which shall include all of the following: o The amount of funds received and expended. o The uses to which those funds were put, including payment of salaries and expenses, purchase of supplies, and other expenditures. o Any other relevant information requested. This bill provides that the program established pursuant to this title shall not be implemented until the Department of Finance determines that sufficient funds have been deposited in the Metal Theft Task Force Fund to implement the provisions of this title and funds have been made available for the purposes of this title upon appropriation by the Legislature as provided above. (More) AB 909 (Gray) PageJ This bill would require the BSCC to implement the provisions of this title only upon the availability of funds appropriated for that purpose, in an amount sufficient to cover all costs relating to the implementation and continuing administration of the provisions of this title. Definitions This bill would provide, for the purposes of this title, the following terms have the following meanings: "Fund" means the Metal Theft Task Force Fund. "Board" means the Board of State and Community Corrections. "Program" means the Metal Theft Task Force Program. Legislative Findings and Declarations This bill would make uncodified legislative findings and declarations concerning metal theft, as specified. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA (More) AB 909 (Gray) PageK was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; (More) AB 909 (Gray) PageL whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Stated Need for This Bill The author states: Farmers and ranchers face numerous challenges in providing California and the world with agricultural products, including metal theft. Recent legislation has improved the record keeping requirements for junk dealers and recyclers and changed the way most payments are made for scrap metal. However, the new law has not been enough to stop the dramatic increase in metal theft. Metal theft impacts California farmers, ranchers, utility providers, construction companies, and municipalities. Thieves strip copper wire from irrigation pumps to sell to scrap metal recyclers. The cost of replacing copper wire on an irrigation pump ranges from $1,500 to $4,000 and this cost does not include crop losses caused by lack of irrigation. Utility lines are cut and stripped of copper wire and construction companies are losing wire and pipes to thieves. Cities and counties (More) are seeing copper wiring stripped from traffic lights and municipal facilities raising significant public safety concerns. AB 909 creates a Metal Theft Task Force program, which will ultimately provide resources to local law enforcement to target metal theft regionally. The program would be voluntary and provide grants to regional task forces. This program is modeled after the Central Valley and Central Coast Rural Crime Prevention Programs and the High Technology Crimes Task Force. A 2002 LAO report found the rural crime prevention programs' rates of arrests, prosecutions and convictions were higher than the statewide average. Additionally, efforts to recover stolen equipment were successful in recovering over half of each dollar reported lost. AB 909 builds on the sturdy foundation of these programs to ensure law enforcement has the ability to bring metal thieves to justice. 2. What this Bill Would Do; the BSCC As explained above, this bill would require the Board of State and Community Corrections (BSCC) to administer a new statewide effort to address the problems and challenges of metal theft. In this way, this bill would place substantial new duties on the BSCC, which in its current statutory configuration has existed for about a year. The BSCC would be responsible for the creation and administration of the overall program and the evaluation and monitoring of all grants made pursuant to this title. The BSCC would also be required to develop specific guidelines and administrative procedures for the selection of regional task forces to receive funds under this program and regularly review the effectiveness of the program in deterring, investigating, and prosecuting metal theft and related recycling crimes and present a report to the Legislature and Governor. Earlier this year the Legislative Analyst's Office offered the (More) AB 909 (Gray) PageN following observations concerning the progress of the BSCC in meeting its new missions: The Legislature gave BSCC the mission of providing technical assistance to counties with the goal of encouraging evidence-based programs that improve criminal justice outcomes cost-effectively. Based on reports from BSCC and our conversations with county stakeholders, BSCC has not yet played an active role in facilitating the adoption of evidence-based programs. . . . . We are also concerned that BSCC has not yet developed a longer-term plan to fulfill its data collection mission. . . . <2> Members may wish to discuss the timing and potential impact of adding additional statutory duties and priorities for an entity that faces many challenges relating both to its structural reformation (independence from CDCR), its ongoing duties (for example, implementation of the SB 81 Local Youthful Offender Rehabilitative Facilities Construction Financing Program) and the added duties and expectations surround the BSCC concerning the public safety realignment. In addition, at the request of the administration the Legislature just restructured the BSCC in a budget trailer bill (SB 74) passed on June 14, 2013 to add a full-time chair of the board to serve as an additional member of the now 13-member BSCC. 3. Previous Legislation to Curb Metal Theft This Committee passed a nearly identical bill, AB 2298 (Ma) last year (5-0). That measure was held on Appropriations suspense, amended and, ultimately, amended into an unrelated bill. Last session, this Committee approved SB 1387 (Emmerson), which prohibits junk dealers and recyclers from possessing any fire hydrant, fire department connection, manhole cover or backflow --------------------------- <2> Legislative Analyst's Office, The 2013-14 Budget: Governor's Criminal Justice Proposals (Feb. 15, 2013). AB 909 (Gray) PageO device without a written certification on the letterhead of the agency previously owning the material, and adds fire hydrants, manhole covers and backflow devices to the list of items which, if any person possesses, knowing they were stolen, would receive an additional fine of up to $3,000. (Penal Code § 496e.) In 2011 the Legislature created a separate offense of grand theft of copper material. (AB 316 (Carter), Chapter 317, Statutes of 2011.) In 2009, the Legislature passed the following measures to address the growing problem of metal theft: SB 447 (Maldonado), Chapter 732, Statutes of 2009, assists local law enforcement officials in quickly investigating stolen metal and apprehending thieves by requiring scrap metal dealers and recyclers to report what materials are being scrapped at their facilities and by whom on a daily basis. These rules already apply to pawn shop dealers. SB 691 (Calderon), Chapter 720, Statutes of 2009, requires junk dealers and recyclers to take thumbprints of individuals selling copper, copper alloys, aluminum and stainless steel. Sellers must also show a government identification (ID) and proof of their current address. Recyclers who violate the law face suspension or revocation of their business license and increased fines and jail time. AB 844 (Berryhill), Chapter 731, Statutes of 2009, requires recyclers to hold payment for three days, check a photo ID and take a thumbprint of anyone selling scrap metals. AB 844 also requires any person convicted of metal theft to pay restitution for the materials stolen and for any collateral damage caused during the theft. *************** AB 909 (Gray) PageP