Amended in Senate May 28, 2013

Amended in Senate April 23, 2013

Amended in Senate April 1, 2013

Senate Bill No. 716

Introduced by Senator Lara

February 22, 2013

An act to add Sections begin insert 2635.5, end insert 2644, begin insert 2645, end insert 2646, begin delete and end delete 2647 begin insert , and 2648 end insert to, and to repeal and add Sections 2635, 2636, 2637, 2638, 2639, and 2643 of, the Penal Code, relating to inmates.

LEGISLATIVE COUNSEL’S DIGEST

SB 716, as amended, Lara. Inmates: civil rights.

Existing law requires the Department of Corrections and Rehabilitation to institute certain practices to prevent sexual violence and promote inmate and ward safety in the Department of Corrections and Rehabilitation.

This bill would require the begin delete department, end delete begin insert department and end insert all local corrections agencies begin delete and departments statewide, and all private corrections companies end delete begin insert ; city, county, city and county, and regional juvenile justice facilities; police lockups; and all private confinement companies, as defined, end insert to create a safe environment free from sexual abuse for inmates or arrestees, including those inmates or arrestees subject to a United States Immigration and Customs Enforcement hold, by adopting policies and procedures begin delete equivalent to or stronger than end delete begin insert implementing end insert specified federal regulations. The bill would require the entities to audit, on a 3-year cycle, all facilities operated by the agency, department, or company, as specified. The bill would require the begin delete Attorney General end delete begin insert Board of State and Community Corrections end insert to provide means for members of the public to raise concrete and specific concerns about begin delete the sufficiency end delete begin insert material insufficiency end insert of the published policies or procedures and would require the begin delete Attorney General end delete begin insert board end insert to certify auditors begin insert , create a standard audit report format, end insert and recommend or require the agency, department, or company to audit specified facilities when there is sufficient reason to believe that a pattern and practice of sexual abuse is occurring in the facility. begin insert The bill would specify penalties for agencies, departments, and companies that are delinquent for or fail an audit. end insert

Because this bill would require a higher level of service from county and local correctional facilities, it would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2635 of the Penal Code is repealed.

SEC. 2.  

Section 2635 is added to the Penal Code, to read:

2635.  

The Department of Corrections and Rehabilitation, each
local corrections begin delete agency, end delete begin insert agency; each city, county, city and county,
and regional juvenile justice agency; each city, county, city and
county, and regional police lockup; end insert and each private begin delete corrections end delete
begin insert confinement end insert company shall create a safe environment free from
sexual abuse for inmates or arrestees, including those inmates or
arrestees subject to a United States Immigration and Customs
Enforcement hold, by adopting policies and procedures begin delete equivalent
to or stronger than those in the relevant sections of end delete begin insert implementing end insert
the United States Department of Justice’s National Standards to
Prevent, Detect, and Respond to Prison Rape.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 2635.5 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2635.5. end insert   

For purposes of this article, the following definitions
shall apply:

(a) “Board” shall mean the Board of State and Community
Corrections.

(b) “Detainee” means a person confined in a facility under
government authority, including arrestees, pretrial and post
conviction inmates, prisoners, minors in the juvenile justice system,
and federal detainees held in any city, county, city and county,
regional, or private facility.

(c) “Full implementation” means that every facility of an
agency, department, or company shall be compliant with all
material requirements of the policies and procedures produced
pursuant to this article. Full compliance may be achieved with de
minimus violations or discrete and temporary violations during
otherwise sustained periods of compliance.

(d) “Jail” means a confinement facility of a city, county, city
and county, or regional law enforcement agency that has, as its
primary use, the detention of persons pending adjudication of
criminal charges, persons committed to confinement for a
misdemeanor or pursuant to subdivision (h) of Section 1170,
persons adjudicated guilty who are awaiting transfer to a state
prison, or persons held under the authority of the federal
government.

(e) “Juvenile justice agency” means a city, county, city and
county, or regional government entity that confines juveniles
pursuant to the juvenile justice system, the criminal justice system,
or under the authority of the federal government.

(f) “Lockup” means a facility belonging to a state, county, or
local law enforcement agency for the temporary confinement of
individuals who have recently been arrested, detained, or are being
transferred to or from a court, jail, prison, or other agency.

(g) “Private confinement company” means a for-profit or
nonprofit company operating in the state that detains individuals,
or that manages a facility that detains individuals, on behalf of a
federal, city, county, city and county, or regional government.

end insert

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

Section 2636 of the Penal Code is repealed.

begin delete SEC. 4. end delete
begin insert SEC. 5. end insert   

Section 2636 is added to the Penal Code, to read:

2636.  

The Department of begin insert Corrections and end insert Rehabilitation and
each jail facility shall adopt and implement policies and procedures
begin delete at least as strong as those detailed in end delete begin insert consistent with the
requirements of end insert Sections 115.5 to 115.86, inclusive, of Title 28 of
the Code of Federal Regulations for all facilities that house adult
inmates, including pretrial inmates and federal detainees. Adoption
of these policies or procedures shall take place no later than July
1, 2014. Full implementation of the policies or procedures shall
be completed no later than begin delete January 1, 2016 end delete begin insert July 1, 2015 end insert .

begin delete SEC. 5. end delete
begin insert SEC. 6. end insert   

Section 2637 of the Penal Code is repealed.

begin delete SEC. 6. end delete
begin insert SEC. 7. end insert   

Section 2637 is added to the Penal Code, to read:

2637.  

Each begin delete state or local end delete lockup shall adopt and implement
policies or procedures begin delete at least as strong as those detailed in end delete
begin insert consistent with the requirements of end insert Sections 115.5, 115.6, and
115.111 to 115.186, inclusive, of Title 28 of the Code of Federal
Regulations. Adoption of these policies or procedures shall take
place no later than July 1, 2014. Full implementation of the policies
or procedures shall be completed no later than begin delete January 1, 2016 end delete
begin insert July 1, 2015 end insert .

begin delete SEC. 7. end delete
begin insert SEC. 8. end insert   

Section 2638 of the Penal Code is repealed.

begin delete SEC. 8. end delete
begin insert SEC. 9. end insert   

Section 2638 is added to the Penal Code, to read:

2638.  

begin delete State, end delete begin insert A state, end insert county, and local juvenile justice begin delete agencies end delete
begin insert agency end insert shall adopt and implement policies or procedures begin delete at least
as strong as those detailed in end delete begin insert consistent with the requirements of end insert
Sections 115.5, 115.6, and 115.311 to 115.386, inclusive, of Title
28 of the Code of Federal Regulations. Adoption of these policies
or procedures shall take place no later than July 1, 2014. Full
implementation of the policies or procedures shall be completed
no later than begin delete January 1, 2016 end delete begin insert July 1, 2015 end insert .

begin delete SEC. 9. end delete
begin insert SEC. 10. end insert   

Section 2639 of the Penal Code is repealed.

begin delete SEC. 10. end delete
begin insert SEC. 11. end insert   

Section 2639 is added to the Penal Code, to read:

2639.  

begin insert (a) end insert begin insert   end insert Private begin delete corrections end delete begin insert confinement end insert companies shall
adopt and implement the relevant policies or procedures from
Section 2636, 2637, or 2638. Adoption of these policies or
procedures shall take place no later than July 1, 2014. Full
implementation of the policies or procedures shall be completed
no later than begin delete January 1, 2016 end delete begin insert July 1, 2015 end insert .

begin insert

(b) A private confinement company with a facility that only
houses detainees under contract with the United States Department
of Homeland Security is exempt from the requirements of
subdivision (a).

end insert

begin delete SEC. 11. end delete
begin insert SEC. 12. end insert   

Section 2643 of the Penal Code is repealed.

begin delete SEC. 12. end delete
begin insert SEC. 13. end insert   

Section 2643 is added to the Penal Code, to read:

2643.  

(a) On or before begin delete January end delete begin insert July end insert 1, 2015, the agency,
department, or company shall certify in writing to the begin delete Attorney
General end delete begin insert board end insert that it has adopted policies or procedures as
mandated by Section 2636, 2637, 2638, or 2639 begin insert and shall transmit
its policies and procedures electronically to the board end insert .

begin delete

(b) On or before July 1, 2014, every agency, department, or
company shall make the mandated policies and procedures
available to the public via its Internet Web site or other accessible
means.

end delete begin insert

(b) The board shall, in a timely manner, make the policies and
procedures of each agency, department, and company available
to the public on an Internet Web site.

end insert

(c) The begin delete Attorney General end delete begin insert board end insert shall provide a means for an
interested member of the public to raise begin delete concrete end delete begin insert substantial end insert and
specific concerns about the begin delete sufficiency end delete begin insert material insufficiency end insert of
the published policies or procedures of any agency, department,
or company. Upon receipt of these concerns from a member of the
public, the begin delete Attorney General end delete begin insert board end insert shall have 90 days to review
the relevant policies or procedures. begin delete If the Attorney General finds
deficiencies in the published policies or procedures of any agency,
department, or company, the Attorney General shall suggest
appropriate modifications to the agency, department, or company. end delete begin insert end insert
begin insert Any concerns by the public shall be raised with the board before
July 1, 2015. end insert

begin insert

(d) On its own or in response to concerns raised by a member
of the public, the board shall notify the agency, department, or
company whose policies or procedures do not meet the
requirements of Section 2636, 2637, 2638, or 2639 that it intends
to reject the certification. This notice shall be in writing and shall
include a specific recommendation for the manner in which the
agency, department, or company may modify its policies or
procedures to correct the deficiencies. An agency, department, or
company receiving this notification shall have 180 days from the
receipt of the written notice to adequately modify the policies and
procedures. If, after the 180-day period, the board finds that the
policies and procedures are still inadequate, the board shall reject
the certification.

end insert

begin delete SEC. 13. end delete
begin insert SEC. 14. end insert   

Section 2644 is added to the Penal Code, to read:

2644.  

(a) Audits of facilities governed by this article shall be
conducted on a three-year cycle. Beginning begin delete January 1, 2016, end delete begin insert July
1, 2015, end insert each agency, department, or company shall ensure that
each facility operated by the agency, department, or company is
audited at least once every three years. Any agency, department,
or company with three or more facilities shall ensure that begin delete at least end delete
begin insert approximately end insert one-third of its facilities are audited each year of
an audit cycle.

(b) An audit conducted in compliance with Sections begin delete 115.400 end delete
begin insert 115.401 end insert to 115.405, inclusive, of Title 28 of the Code of Federal
Regulations shall suffice for the purposes of this section. begin insert For
private confinement companies with facilities that only house
detainees under contract with the United States Department of
Homeland Security, an audit conducted under Sections 115.401
to 115.405, inclusive, of Title 6 of the Code of Federal Regulations
shall suffice for the purposes of this section. end insert

(c) The begin delete Attorney General end delete begin insert board end insert shall begin delete identify procedures, based
on the principles found in end delete begin insert publish audit procedures consistent with
the requirements of end insert Sections begin delete 115.400 end delete begin insert 115.401 end insert to 115.405,
inclusive, of Title 28 of the Code of Federal begin delete Regulations, end delete
begin insert Regulations end insert that begin delete define all of the following: end delete begin insert will govern all audits
required by subdivision (a). The board shall separately publish
audit procedures consistent with Sections 115.401 to 115.405,
inclusive, of Title 6 of the Code of Federal Regulations for private
confinement companies with facilities that only house detainees
under contract with the United States Department of Homeland
Security. end insert

begin delete

(1) The scope of an audit.

end delete begin delete

(2) Auditor qualifications.

end delete begin delete

(3) Audit contents and findings.

end delete begin delete

(4) Audit corrective action plan.

end delete begin delete

(5) Audit appeals.

end delete

(d) The begin delete Attorney General end delete begin insert board end insert shall also certify auditors begin insert ,
including, but not limited to, auditors who work directly with the
board, end insert and maintain a begin insert publicly available end insert list of California-certified
auditors. At its discretion, the begin delete Attorney General end delete begin insert board end insert may rely
on an auditor’s certification by the United States Department of
Justice as evidence that the auditor is qualified to perform audits
under this section. begin insert For private confinement companies with
facilities that only house detainees under contract with the United
States Department of Homeland Security, the board may rely on
an auditor’s certification by the United States Department of
Homeland Security as evidence that the auditor is qualified to
perform audits under this section. end insert

(e)  begin insert The board shall produce a standard audit report format or
identify an existing audit report format prior to July 1, 2015. end insert An
auditor shall, within 60 days of an audit or the completion of a
corrective action plan, complete a written audit report for each
facility audited begin insert using the standard report format end insert . The auditor will
forward the report to the begin delete Attorney General end delete begin insert board end insert , which shall
begin delete maintain a database of facilities that have passed audits and those
that have failed them end delete begin insert make the reports available to the public on
an Internet Web site end insert .

begin delete

(f) An agency, department, or company shall make all audit
reports public through its Internet Web site or by other publicly
available means.

end delete begin delete

(g)

end delete

begin insert (f) end insert  Acting on its own or in response to begin delete concrete end delete begin insert substantial end insert and
specific concerns from an individual, the begin delete Attorney General end delete begin insert board end insert
may recommend or require an agency, department, or company
to undergo an expedited audit for one or more of its facilities. The
begin delete Attorney General end delete begin insert board end insert may only require an expedited audit when
it has sufficient reason to believe that a pattern and practice of
sexual abuse is occurring within a facility. An agency, department,
or company shall be provided with a reasonable opportunity to
respond to evidence before an expedited audit can be required.
The begin delete Attorney General end delete begin insert board end insert shall identify a public means by which
the begin delete office end delete begin insert board end insert can receive an individual’s report of begin delete concrete end delete
begin insert substantial end insert and specific concerns about a facility.

begin delete

SEC. 14.  

Section 2646 is added to the Penal Code, to read:

2646.  

For purposes of this article, the following definitions
shall apply:

(a) “Jail” means any confinement facility of a federal, state, or
local law enforcement agency whose primary use is to hold persons
pending adjudication of criminal charges, persons committed to
confinement after adjudication of criminal charges for sentences
of one year or less, or persons adjudicated guilty who are awaiting
transfer to a correctional facility.

(b) “Juvenile justice agency” means a state, county, or local
government agency with facilities primarily used for the
confinement of juveniles pursuant to the juvenile justice system
or criminal justice system.

(c) “Lockup” means a state, county, and local law enforcement
agency facility for the temporary confinement of individuals who
have recently been arrested, detained, or are being transferred to
or from a court, jail, prison, or other agency.

(d) “Private corrections company” means a for-profit or
nonprofit company operating in the State of California that confines
individuals on behalf of a federal, state, county, or local
government or that manages a facility that confines individuals on
behalf of a federal, state, county, or local government.

SEC. 15.  

Section 2647 is added to the Penal Code, to read:

2647.  

(a) The agency, department, or company shall collect
accurate, uniform data for every allegation of sexual abuse using
a standardized instrument and set of definitions.

(b) The agency, department, or company shall aggregate the
incident-based sexual abuse data at least annually.

(c) The agency, department, or company shall annually review
data collected and aggregated pursuant to this section in order to
assess and improve the effectiveness of its sexual abuse prevention,
detection, and response policies, practices, and training.

(d) The agency, department, or company shall ensure that data
collected pursuant to subdivision (a) are securely retained.

(e) The agency, department, or company shall make all
aggregated sexual abuse data readily available to the public, at
least annually, through its Internet Web site or other publicly
accessible means.

(f) Before making aggregated sexual abuse data publicly
available, the agency, department, or company shall remove all
personal identifiers.

(g) The agency, department, or company shall maintain sexual
abuse data collected pursuant to subdivision (a) for at least 10
years after the date of its initial collection unless federal, state, or
local law requires otherwise.

end delete

begin insert

begin insert SEC. 15. end insert   

end insert

begin insert Section 2645 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2645. end insert   

(a) The agency, department, or company shall collect
accurate, uniform data for every allegation of sexual abuse using
a standardized instrument and set of definitions.

(b) The agency, department, or company shall aggregate the
incident-based sexual abuse data at least annually.

(c) The agency, department, or company shall annually review
data collected and aggregated pursuant to subdivisions (a) and
(b) in order to assess and improve the effectiveness of its sexual
abuse prevention, detection, and response policies, practices, and
training.

(d)  The agency, department, or company shall ensure that the
data collected pursuant to subdivision (a) are securely retained.

(e)  The agency, department, or company shall make all
aggregated sexual abuse data readily available to the public at
least annually through its Internet Web site or other publicly
accessible means.

(f) Before making aggregated sexual abuse data publicly
available, the agency, department, or company shall remove all
personal identifiers.

(g)  The agency, department, or company shall maintain sexual
abuse data collected pursuant to subdivision (a) for at least 10
years after the date of its initial collection, unless federal, state,
or local law requires otherwise.

end insert

begin insert

begin insert SEC. 16. end insert   

end insert

begin insert Section 2646 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2646. end insert   

(a) An agency or department with an existing contract
or agreement with a facility defined in subdivision (c) shall
probatively modify its contract or agreement to incorporate the
policies or procedures it adopts pursuant to Section 2636, 2637,
2638, or 2639. This modification shall be completed prior to the
submission of the certification required by Section 2643. If an
agency or department is involved in good faith negotiations to
modify a contract or agreement on the date the certification is
required to be submitted to the board, the agency or department
may still submit its certification along with a request for 60
additional days to complete the modification. At the end of those
60 days, the agency or department shall submit a supplemental
certification documenting the successful modification of the
contract or agreement or withdraw its certification.

(b) An agency or department that seeks to enter into a new
contract or agreement with a facility defined in subdivision (c)
after January 1, 2014, shall incorporate the policies and
procedures it adopts pursuant to Section 2636, 2637, 2638, or
2639 into that contract or agreement.

(c) For purposes of this section, “facility” means a city, county,
city and county, or regional agency or department that confines
individuals in a public or private facility not covered by Section
2636, 2637, 2638, or 2639. These facilities shall include, but are
not limited to, mental health facilities and out-of-state private
confinement companies.

end insert

begin insert

begin insert SEC. 17. end insert   

end insert

begin insert Section 2647 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2647. end insert   

(a) A city, county, city and county, or regional agency
or department that fails to provide the certification required by
Section 2643, has its certification rejected by the board, fails to
have its facility or facilities audited in a timely manner as required
by Section 2644, or has one or more facilities fail an audit after
being given an opportunity to correct any deficiencies will have
subsequent board-administered grant renewals or awards reduced
by 25 percent in the first year of noncompliance and by 50 percent
in the second year of noncompliance. An agency or department
that enters into a third year of noncompliance will be ineligible
for any board-administered grant renewals or awards until
compliance is achieved. An agency or department may show
compliance by providing a valid certification or by completing a
successful audit of a facility that is delinquent for or has failed an
audit.

(b) A private confinement company that fails to provide the
certification required by Section 2643, has its certification rejected
by the board, fails to have its facility or facilities audited in a
timely manner as required by Section 2644, or has one or more
facilities fail an audit after being given an opportunity to correct
any deficiencies will be assessed a five-hundred-dollar ($500)
penalty on the first day the certification or audit is due or a failed
audit is reported to the board. The private confinement company
will be assessed an additional one-thousand-dollar ($1,000)
penalty every seven days thereafter until it provides a valid
certification or completes successful audits of any facilities that
are delinquent for or have failed an audit. This penalty shall be
assessed and collected by the board.

end insert

begin insert

begin insert SEC. 18. end insert   

end insert

begin insert Section 2648 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2648. end insert   

The provisions of this article are severable. If any
provision of this article or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.

end insert

begin delete SEC. 16. end delete
begin insert SEC. 19. end insert   

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.