BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 2 2 6 AB 2263 (Bradford) 3 As Amended May 23, 2014 Hearing date: June 17, 2014 Penal Code JRD:mc VETERANS SERVICE ADVOCATE: CORRECTIONAL FACILITIES HISTORY Source: Coalition of California Welfare Rights Organization Prior Legislation: None Support: California Correctional Peace Officers Association; California Public Defenders Association; Taxpayers for Improving Public Safety Opposition:None known Assembly Floor Vote: Ayes 77 - Noes 0 KEY ISSUE SHOULD VETERANS SERVICE ORGANIZATIONS BE PERMITTED TO VOLUNTEER IN STATE PRISONS, AS SPECIFIED? (More) AB 2263 (Bradford) Page 2 PURPOSE The purpose of this legislation is to permit a veterans service organization to volunteer as an advocate for inmate veterans in state prisons. Existing federal law limits the veterans' benefits a veteran may receive while he or she is incarcerated for a felony, except provides a 60-day grace period where the incarcerated veteran may still receive full benefits. The withholding of benefits begins on the 61st day of incarceration. (38 U.S.C.S. § 5313(a)(1); 38 C.F.R. § 3.666(a).) Existing federal law states that an incarcerated veteran is entitled to full benefits while he or she is participating in a work-release program or is residing in a halfway house. (38 U.S.C.S. § 5313(a)(2).) Existing federal law allows the dependents of an incarcerated felon to receive an apportionment of the benefits to which the incarcerated veteran would have been entitled, unless the dependent is incarcerated for a felony. (38 U.S.C.S. § 5313(b).) Existing federal law prohibits compensation on behalf of a veteran for any period during which he or she is a "fugitive felon." (38 U.S.C.S. § 5313B; 38 C.F.R. § 3.666(n).) Existing federal law defines a "fugitive felon" as a person who is a fugitive by reason of: a) Avoiding prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or b) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law. (38 (More) AB 2263 (Bradford) Page 3 U.S.C.S. § 5313B(b).) Existing state law requires restoration of withheld benefits if a conviction is overturned on appeal. (38 C.F.R. § 3.666(m).) Existing state law requires the California Department of Corrections and Rehabilitation (CDCR) to develop guidance policies relative to the release of veterans who are inmates. The policies shall be developed with the intent to assist veterans who are inmates in pursuing claims for federal veterans' benefits, or in establishing rights to any other privilege, preference, care, or compensation provided under federal or state law because of honorable service in the military. In developing the policies, the department may coordinate with the Department of Veterans Affairs and the county veterans service officer or veterans service organizations. (Military and Veterans Code § 1840; Penal Code § 2695.) Existing state law authorizes each county board of supervisors to appoint a county veterans service officer to perform specified veterans-related services, including assisting veterans in pursuing claims for federal or state veterans' benefits. (Military and Veterans Code § 972.) Existing state law contains a number of provisions aimed at assisting California veterans, such as farm and home loan assistance (Military and Veterans Code §§ 987.50 et seq.), business enterprise opportunities (Military and Veterans Code §§ 999 to 999.13), and educational assistance (Military and Veterans Code §§ 981 et seq.). This bill would allow a veterans service organization to volunteer at CDCR to serve as a veterans service advocate. This bill would require the veterans' service advocate to be responsible for developing a veterans economic recidivism (More) AB 2263 (Bradford) Page 4 prevention plan within 180 days prior to the inmate's release date. This bill would require the veterans economic recidivism prevention plan to include: Facilitating access of each inmate who is a veteran to county veterans service officers, California Department of Veterans Affairs and United States Department of Veterans Affairs officers and personnel, so that the inmate may pursue claims for federal veterans' benefits or any other privilege, preference, care, or compensation provided under federal or state law because of the inmate's service in the military. Developing a plan for how an inmate who is a veteran will access earned veterans' benefits that he or she may be eligible for upon the inmate's release. This bill would require the CDCR to facilitate access by the advocate to each inmate who is a veteran, subject to those department screening and clearance guidelines and training requirements that are imposed on other visitors and volunteers. This bill would require CDCR to provide the advocate with access to existing resources, including, but not limited to, computer and Internet access, that would assist the advocate in implementing the veterans economic recidivism prevention plan, to the extent it does not pose a threat to the security or safety of the facility, or to inmates and staff. This bill would require the advocate to coordinate with the United States Department of Veterans Affairs in order to provide each inmate who is a veteran with access to earned veterans' benefits. This bill would require the advocate to coordinate with the California Department of Veterans Affairs and the county veterans service officer in the county in which the facility is located for advice, assistance, and training, and to evaluate (More) AB 2263 (Bradford) Page 5 the effectiveness of the veterans economic recidivism prevention plan. This bill provided the following definitions: "Advocate" means a veterans service organization that is federally certified and has volunteered to serve as a veterans service advocate pursuant to this title. "Veteran" means a person who has been discharged from the United States Army, United States Navy, United States Air Force, United States Marine Corps, United States Coast Guard, the Merchant Marine, or the American Red Cross. 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 that 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 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. (More) AB 2263 (Bradford) Page 6 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 requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted 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 opposed the state's motion, arguing 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 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: (More) AB 2263 (Bradford) Page 7 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; 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. (More) AB 2263 (Bradford) Page 8 COMMENTS 1. Need for Legislation According to the author: Recidivism rates among veterans continues to be an issue primarily for economic reasons. Currently the Department of Corrections has been doing a good job of trying to provide veteran inmates with information and forms to apply and receive VA benefits. However, the process for qualifying for VA benefits is often burdensome for even people with a four year college degree. One of the major problems is that facilities do not have a designated person responsible for assuring that veterans are able to have access to VA benefits upon release. AB 2263 allows veteran service organizations that are federally certified to volunteer to serve as a veterans service advocate at prisons under the jurisdiction of CDCR. The advocate would be responsible for developing a veteran's economic recidivism prevention plan within 180 days prior to an inmate's release date. The advocate would also be responsible for assisting veteran inmates by facilitating access to county veteran service officers, United States Department of Veterans Affairs and California Department of Veterans Affairs' personnel. (More) 2. Effect of the Legislation An article appearing in Science Daily on March 13, 2007, discussed a study conducted by the University of California-San Francisco and the San Francisco Veterans Affairs Medical Center finding that approximately one-third of veterans returning from Iraq received one or more mental health or psychosocial diagnoses. (See Mental Illness Appears Common among Veterans Returning from Iraq and Afghanistan, Science Daily (Mar. 13, 2007).) Another study reported in the New England Journal of Medicine in 2004 stated that the rate of post-traumatic stress syndrome (PTSD) among Iraq and Afghanistan veterans increased in a linear manner with increased exposure to combat. (Hoge, Combat Duty in Iraq and Afghanistan, Mental Health Problems, and Barriers to Care (2004) 351 N. Engl. J. Med. 13-22.) Studies also indicate that PTSD may drive or exacerbate drug and alcohol abuse by veterans. (Stress & Substance Abuse: A Special Report, National Institute on Drug Abuse (Sept. 12, 2005).) Mental health and substance abuse problems are linked to future incarceration in veterans. In a Bureau of Justice study, 35% to 45% of incarcerated veterans reported symptoms of mental health disorders in the previous 12 months, including mania, psychotic disorders, and major depressive episodes. (Noonan & Mumola, U.S. Dep't of Justice, Veterans in State and Federal Prison, 2004 (2007).) Three-quarters of veterans in state prisons reported past drug use and one-quarter reported being on drugs at the time of the offense for which they were incarcerated. (Id. at p. 5.) Veterans appear to be disproportionately represented in the prison population. Veterans make up 10% of state prisoners. (Noonan & Mumola, supra, at p. 1.) By 2004, veterans of the current conflicts in Iraq and Afghanistan already comprised 4% of the veterans in state and federal prisons. (Id.) The goal of this legislation is to reduce recidivism among veterans by providing incarcerated veterans with assistance in planning and pursuing claims for federal veterans' benefits or (More) AB 2263 (Bradford) Page 10 any other privilege, preference, care, or compensation provided under federal or state law. IS IT APPROPRIATE TO PLACE SPECIFIC MANDATES ON VOLUNTEER ORGANIZATIONS? ***************