BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 716 (Lara) - Inmates: civil rights.
Amended: April 23, 2013 Policy Vote: Public Safety 7-0
Urgency: No Mandate: Yes
Hearing Date: May 23, 2013 Consultant: Jolie Onodera
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: SB 716 would require all California prisons,
jails, juvenile halls, and other custodial facilities to operate
pursuant to policies and procedures equivalent to or stronger
than the federal Prison Rape Elimination Act (PREA), as
specified. This bill:
Repeals and replaces key provisions of the Sexual
Abuse in Detention Elimination Act.
Requires adoption of the specified policies and
procedures to take place no later than July 1, 2014,
with full implementation to be completed no later
than January 1, 2016. Each entity must make this
information available to the public via its website
or other accessible means.
Establishes a new evaluation and enforcement
program to be overseen by the Attorney General (AG)
to ensure compliance with PREA provisions, as
specified.
Requires an entity to, on or before January 1,
2015, to certify in writing to the AG that is has
adopted the mandated policies and procedures.
Establishes a system of data collection, review,
and retention for all entities to collect, review,
aggregate, and publicize uniform data for all
allegations of sexual abuse in these facilities.
Fiscal Impact:
One-time significant costs potentially up to $1
million (General Fund) to the BSCC to develop the
required auditing and enforcement database.
Initial year staffing costs of $550,000 (General
SB 716 (Lara)
Page 1
Fund) to accomplish the workload associated with the
audit compliance program. Annual ongoing costs of
$550,000 (General Fund).
One-time costs to the BSCC of $250,000 (General
Fund) to develop and adopt regulations.
Annual state-reimbursable costs potentially in the
millions of dollars (General Fund) for mandated
activities imposed on local facilities.
Potentially significant costs to local and private
companies with regard to the contracting and penalty
provisions outlined in the bill.
Potentially very major liability on local and
private companies by providing that a failure by an
agency or company to provide certification or conduct
timely audits establishes a rebuttable presumption
that an agency, department, or company is
deliberately indifferent to the safety of the people
it is detaining.
Background: Existing federal law established the Prison Rape
Elimination Act (PREA) (Public Law 108-79) in 2003. The purpose
of the act was to "provide for the analysis of the incidence and
effects of prison rape in federal, state, and local institutions
and to provide information, resources, recommendations and
funding to protect individuals from prison rape." PREA
implements national standards for the detection, prevention,
reduction, and punishment of prison rape, increases the
available data and information on the incidence of prison rape,
increases the accountability of prison officials who fail to
detect, prevent, reduce, and punish prison rape, and protects
the Eighth Amendment rights of federal, state, and local
prisoners.
The California Legislature passed the Sexual Abuse in Detention
Elimination Act (the Act) in 2005 to prepare the state for the
federal scrutiny PREA was expected to bring and to raise
awareness on the issue of prisoner rape. The Act contained
several important provisions, creating new duties such as
providing training for current and future corrections staff
regarding sexual abuse of inmates and wards and providing all
inmates and wards with a handbook describing sexual conduct
policies and reporting mechanisms. Additional measures included
taking into account risk factors that may lead to victimization,
assigning at least one female officer per shift to any housing
unit in which female detainees may be observed unclothed and
SB 716 (Lara)
Page 2
establishing the role of Office of Sexual Abuse in Detention
Elimination Ombudsperson to ensure the impartial resolution of
inmate and ward sexual abuse complaints.
PREA standards became applicable to federal facilities
immediately and to state and local facilities on August 20,
2012. The three-year audit cycle is set to begin on August 20,
2013. Governors must certify compliance by the summer of 2013 or
accept a 5 percent reduction in federal grant funding for each
year the state's agencies fail to comply. The U.S. Department of
Justice is scheduled to publish a list of noncompliant grant
recipients on September 30, 2013, and October 1, 2013 (Federal
Fiscal Year 2014) is projected to be the first date on which
federal grant funds may be impacted.
Proposed Law: This bill would require all California prisons,
jails, juvenile halls, and other custodial facilities to operate
pursuant to policies and procedures equivalent to or stronger
than the federal PREA, as specified. This bill requires the
adoption of specified policies and procedures to take place no
later than July 1, 2014, with full implementation to be
completed no later than January 1, 2016. Each entity must, on or
before January 1, 2015, certify in writing to the AG that it has
adopted the mandated policies and procedures. This bill would
also create new evaluation and enforcement provisions to ensure
California compliance with federal law as follows:
Establishes the AG as the entity to (1) define the scope
of an audit, auditor qualifications, audit contents and
findings, audit corrective action plan and audit appeals
based on the principles found in PREA, (2) certify auditors
and maintains a list of those certified, (3) maintain a
database of facilities that have passed and failed audits,
(4) make recommendations and require expedited audits when
possessing sufficient reason to believe that a pattern or
practice of sexual abuse is occurring, (5) and receive
reports of concrete and specific concerns about a facility
by public means.
Creates a three-year audit cycle, beginning January 1,
2016. Each facility must be audited at least once every
three years and make all audit reports public via its
website or other accessible means. Any entity with three or
more facilities shall ensure that at least one-third of its
facilities are audited each year.
Establishes that an auditor has 60 days from the
SB 716 (Lara)
Page 3
completion of an audit or corrective action plan to
complete a written audit report and send it to the AG.
Establishes financial penalties. If an entity fails to
provide certification of compliance or fails an audit, the
entity will be ineligible for any new grants or grant
renewals.
Establishes a system of data collection, review and
retention requiring all agencies, departments or companies
to collect accurate, uniform data for every allegation of
sexual abuse. Each entity must aggregate the incident-based
sexual abuse data at least annually, review data collected
to assess effectiveness of existing policies and publish
data, making it readily available to the public, removing
all personal identifiers before doing so. Each entity must
maintain collected data for at least 10 years after the
date of its initial collection unless federal, state or
local law requires otherwise.
Establishes that any audit conducted in compliance with
PREA shall suffice for the purposes of this section.
Related Legislation: AB 382 (Ammiano) 2009 was vetoed by the
Governor with the following message:
I am returning Assembly Bill 382 without my signature. This bill
would add, among other provisions, the sexual orientation and
gender identity of an inmate or ward to the list of risk factors
considered as part of the CDCR inmate and ward classification
and housing assignment procedures. This bill is unnecessary
because CDCR already considers these factors when determining
where to house inmates. For these reasons, I am unable to sign
this bill.
AB 550 (Goldberg) Chapter 303/2005 created the Sexual Abuse in
Detention Elimination Act. See Background section of this
analysis.
Staff Comments: The DOJ would incur significant costs to
establish a new evaluation and enforcement program to ensure
compliance with PREA provisions as specified under the
provisions of this bill. To develop the enforcement database for
all facilities, one-time costs are estimated of about $1 million
(General Fund). To accomplish the ongoing workload associated
with the enforcement program, initial year staffing costs of
$700,000 (General Fund) are estimated to certify auditors,
SB 716 (Lara)
Page 4
maintain and update the database, review and analyze audit
reports for patterns of abuse necessitating expedited audits,
and review/respond to public inquiries/complaints. Annual
ongoing staffing costs are estimated at $1.1 million (General
Fund). In addition, one-time costs to develop and adopt
regulations for the oversight and enforcement program could
potentially cost in excess of $250,000 (General Fund).
To the extent this measure largely codifies current obligations
under the federal PREA, there would not be a significant impact
on state and local facilities. However, as the provisions of the
bill require policies and procedures at least equivalent to or
stronger than the federal PREA standards, it is unclear whether
additional regulations in excess of the federal standards could
be imposed on state and local facilities. As currently drafted,
with the exception of the audit standards, this bill does not
specify compliance with PREA standards would meet the compliance
requirements outlined within the provisions of the bill. To the
extent agencies adopt policies and procedures above the federal
PREA standards, it is unclear whether the costs associated with
implementation of those higher standards could create a
state-reimbursable mandate, resulting in significant ongoing
General Fund costs.
This bill establishes a system of data collection, review and
retention, requiring all agencies, departments or companies to
collect accurate, uniform data for every allegation of sexual
abuse. Each entity must aggregate the incident-based sexual
abuse data at least annually, review data collected to assess
effectiveness of existing policies and publish data, making it
readily available to the public, removing all personal
identifiers before doing so. Each entity must maintain collected
data for at least 10 years after the date of its initial
collection unless federal, state or local law requires
otherwise. As the provisions of this bill supplement existing
Sexual Abuse in Detention Elimination Act sections of current
law, the CDCR could incur significant increased costs to meet
the requirements of this bill.
To fund implementation of PREA, the issuance of federal grants
is authorized to incentivize compliance. Grants may be used for
purposes such as training, hiring new staff for specific
positions, technical assistance, and installation of
surveillance cameras, data collection, additional housing or
SB 716 (Lara)
Page 5
inmate orientation programs. Upon receiving such funding, each
state must submit a report within 90 days describing spending
and the impact spending had on efforts to reduce prison rape in
that state. The CDCR received $500,000 in 2004, but has not
received any grant funds in the last three years. The Office of
Emergency Services indicated receipt of $240,570 in 2012 in
grant funds that was awarded to the City of Los Angeles Police
Department (LAPD) to develop and deliver the first ever PREA
demonstration project within police lockups and jails.
Recommended Amendments: The author may wish to consider
alternative entities such as the Board of State and Community
Corrections (BSCC) or Office of the Inspector General (OIG) that
may be able to more cost-effectively undertake the oversight
role of the audit evaluation and compliance functions proposed
in this measure.
Author amendments would do the following:
Remove oversight responsibilities from the DOJ and
instead provide the BSCC with oversight over the local
facilities' audit evaluation.
Require the BSCC to notify agencies by written
notification of rejected certifications.
Revise the provision requiring standards "equivalent to
or stronger than those" in federal law, to those
"consistent with the requirements of" federal law.
Remove references to state facilities throughout the
provisions of the bill.
Adds contracting and penalty provisions related to
certification requirements that are not adhered to by local
agencies and private companies.
Provides that failure by an agency, department, or
company to provide the required certification or timely
audits establishes a rebuttable presumption that the
agency, department, or company is deliberately indifferent
to the safety of the people it is detaining.