BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 716|
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THIRD READING
Bill No: SB 716
Author: Lara (D)
Amended: 5/28/13
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/30/13
AYES: Hancock, Anderson, Block, De Le�n, Knight, Liu, Steinberg
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/13
AYES: De Le�n, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Inmates: civil rights
SOURCE : Justice Detention International
DIGEST : This bill requires the Department of Corrections and
Rehabilitation (CDCR) and all local corrections agencies,
cities, counties, regional juvenile justice facilities, police
lockups, and all private confinement companies 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 implementing specified in the federal Prison Rape
Elimination Act (PREA), as specified. Requires the Board of
State and Community Corrections (Board) to provide means for
members of the public to raise concrete and specific concerns
about material insufficiency of the published policies or
procedures and requires the Board to certify auditors, create a
standard audit report format, and recommend or require the
agency, department, or company to audit specified facilities
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when there is sufficient reason to believe that a pattern and
practice of sexual abuse is occurring in the facility.
ANALYSIS :
Existing federal law:
1.Establishes a zero-tolerance standard for prison rape,
requiring all adult prisons and jails, lockups, community
confinement facilities, juvenile facilities and immigrant
detention centers to fully comply with the regulations aimed
at preventing, detecting and responding to all forms of sexual
abuse and sexual harassment.
2.Requires an agency to establish a written policy mandating
zero tolerance toward all forms of sexual abuse and sexual
harassment. The written policy shall outline the agency's
approach to preventing, detecting and responding to such
conduct.
3.Requires an agency to employ or designate an upper-level,
agency-wide PREA coordinator with sufficient time and
authority to develop, implement and oversee agency efforts to
comply with the PREA standards in all of its facilities.
Where an agency operates more than one facility, each facility
shall designate a PREA compliance manager with sufficient time
and authority to coordinate compliance efforts.
4.Provides that a state whose governor does not certify full
compliance with PREA standards is subject to the loss of five
percent of any DOJ grant funds that it would otherwise receive
for prison purposes, unless the governor submits an assurance
that such five percent will be used only for the purpose of
enabling the state to achieve and certify full compliance with
the standards in future years. The final rule specifies that
the Governor's certification applies to all facilities in the
State under the operational control of the State's executive
branch, including facilities operated by private entities on
behalf of the State's executive branch.
5.Requires that the agency shall conduct audits of each facility
operated by the agency, or by a private organization on behalf
of the agency at least once during each three-year period,
beginning on August 20, 2013. During each one-year period
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starting on August 20, 2013, the agency shall ensure that at
least one-third of each facility type operated by the agency,
or by a private organization on behalf of the agency, is
audited.
6.Provides that audits shall be conducted by: (1) a member of a
correctional monitoring body that is not part of, or under the
authority of, the agency (but may be part of or authorized by
the relevant State or local government; (2) a member of an
auditing entity such as an inspector general's or
ombudsperson's office that is external to the agency; or (3)
other outside individuals with relevant experience.
Existing law:
1. Provides that the CDCR shall review informational handbooks
regarding sexual abuse in detention published by outside
organizations. When the CDCR approves of the content
thereof, handbooks shall be made available to inmates and
wards.
2. Provides that the CDCR inmate classification and housing
assignment procedures shall take into account risk factors
that can lead to inmates and wards becoming the target of
sexual victimization or of being sexually aggressive toward
others. Relevant considerations include: (a) age of the
inmate or ward; (b) whether the offender is a violent or
nonviolent offender; (c) whether the inmate or ward has
served a prior term of commitment; and (d) whether the inmate
or ward has a history of mental illness. This section also
requires that the CDCR ensure that staff members intervene
when an inmate or ward appears to be the target of sexual
harassment or intimidation.
3. Establishes requirements for CDCR protocols for responding to
sexual abuse, including (a) immediately and discreetly
ensuring the safety of an inmate or ward who alleges that he
or she has been the victim of sexual abuse; (b) providing the
safest possible housing to inmates and wards who have
experienced repeated abuse; (c) not directly or indirectly
punishing an inmate or ward who files a complaint of sexual
abuse for doing so; (d) not suggesting that an inmate should
fight to avoid sexual violence or suggest that reported
sexual abuse is not significant enough to be addressed by
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staff; (e) not discriminating to inmates and wards who are
gay, bisexual or transgender who experience sexual aggression
or report that they have experienced sexual abuse; and (f)
not retaliating against an inmate or ward for making an
allegation of sexual abuse.
4. Provides that practitioners within the CDCR shall implement
thoughtful, confidential standards of physical and mental
health care to reduce the impact of sexual abuse on inmates
and wards, including (a) victims shall receive appropriate
acute-trauma care for rape victims; (b) health practitioners
shall ask whether patient has experienced sexual abuse when
confronted with specific types of encounters; (c)
practitioners should strike to ask frank, straight-forward
questions about sexual incidents without shaming inmates or
displaying embarrassment about the subject matter; (d)
confidential mental health counseling for those who report
sexual abuse as well as the monitoring of victims for
reactions such as suicidal impulses and post-traumatic stress
disorder; and (e) an entitlement for any adult inmate to
confidentiality.
5. Requires the CDCR to ensure certain procedures are performed
in the investigation and prosecution of sexual abuse
incidents. Procedures include (a) safe housing shall not be
contingent upon the victim's willingness to press charges;
(b) investigations shall include, when appropriate, use of
forensic rape kits, questioning of suspects and witnesses;
(c) physical testimony shall be carefully preserved; (d)
staff attitudes regarding whether an inmate or ward provides
reliable information shall be discouraged; and (e) if an
investigation confirms that any employee has sexually abused
an inmate or ward, that employee shall be terminated and that
administrators shall report criminal sexual abuse by staff to
law enforcement authorities.
This bill:
1.Repeals much of the Sexual Abuse in Detention Elimination Act.
2.Replaces key provisions of the Sexual Abuse in Detention
Elimination Act and requires the CDCR, all local corrections
agencies, cities, counties, regional police lockups, regional
juvenile justice agencies, and all private confinement
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companies to create a safe environment free from sexual abuse
for inmates or arrestees, including those with a United States
Immigration and Customs Enforcement hold by adopting policies
and procedures implementing the United States Department of
Justice's National Standards to Prevent, Detect and Respond to
Prison Rape. Adoption must take place no later than July 1,
2014 (full implementation must be completed no later than July
1, 2015).
3.Requires that on or before July 1, 2015, the agency,
department or company (entity) certify in writing to the Board
that it has adopted policies and procedures as mandated by
this bill, and shall transmit its policies and procedures
electronically to the Board. The Board shall, in a timely
manner, make these policies and procedures of each agency,
department and company available to the public via its Web
site or other accessible means.
4.Requires the Board to provide a means for a member of the
public to raise concrete and specific concerns about the
material insufficiency of the published policies or procedures
of any entity. The Board then has 90 days from receipt to
review the entity's relevant policies or procedures. Any
concerns by the public shall be raised with the Board before
July 1, 2015.
5.Requires the Board, on its own or in response to concerns
raised by a member of the public, to notify the agency,
department, or company whose policies or procedures do not
meet specified requirements 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.
6.Creates new evaluation and enforcement provisions to ensure
California compliance with federal law as follows:
A. Establish the Board as the entity to certify auditors,
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including, but not limited to, auditors who work directly
with the Board, and maintain a publicly available list of
California-certified auditors. At its discretion, the Board
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. For private
confinement companies with facilities that only house
detainees under contract with the United States Department
of Homeland Security (USDHS), the Board may rely on an
auditor's certification by the USDHS as evidence that the
auditor is qualified to perform audits under this section.
B. Create a three-year audit cycle, beginning July 1, 2015.
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 approximately one-third of its
facilities are audited each year.
C. Require the Board to produce a standard audit report
format or identify an existing one prior to July 1, 2015.
Establish that an auditor has 60 days from the completion
of an audit or corrective action plan to complete a written
audit report and send it to the Board, which shall make the
reports available to the public on the Internet Web site.
D. Establish 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.
E. Define "board," "detainee," "full implementation,"
"effective date," "jails," "juvenile justice agencies,"
"lockups," and "private confinement companies."
F. Establish 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
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years after the date of its initial collection unless
Federal, State or local law requires otherwise.
G. Establish that any audit conducted in compliance with
PREA shall suffice for the purposes of this section.
H. Establish that if any provision of this act is held
invalid, that provision is severable.
Background
Many researchers have noted the "lack of credible empirical data
on sexual assault in correctional facilities across the nation,
including in California." However, according to the Bureau of
Justice Statistics' data provided in the Prison Rape Elimination
Act, 13% of inmates experience sexual assault in correctional
facilities. But more recent research suggests less prevalence
today. One report from the Legislative Analyst's Office found
that "California experiences almost twice the number of
officially reported inmate assaults as Texas and nearly triple
the assaults in the Federal system." The report, based on data
from 2003, showed the federal system received 1.7 officially
reported inmate assaults per 100 inmates, Texas received 2.5 and
Florida received 4.0. California received the highest
proportion of reported inmate assaults at 4.4 per 100 inmates
(indicating 7,210 individual reports in California that year).
More recent statewide data from the CDCR identified a decreasing
number of substantiated claims of inmate on inmate nonconsensual
sexual acts each year from 2007 to 2011 (eight in 2007, to two
in 2011) and a relatively low rate of substantiated claims of
inmate on inmate abusive sexual contact, with the exception of
2008, in which there were seven substantiated claims (2012 data
not yet released). In terms of substantiated staff sexual
misconduct, there have been between one and three incidents each
year for the past five years, as well as between a dozen and two
dozen unsubstantiated claims for each year
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
One-time significant costs potentially up to $1 million
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(General Fund) to the BSCC to develop the required auditing
and enforcement database.
Initial year staffing costs of $550,000 (General 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 this 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.
SUPPORT : (Verified 5/28/13)
Justice Detention International (source)
ACLU
Asian Law Alliance
California Attorneys for Criminal Justice
California Immigrant Policy Center
Equality California
Legal Services for Prisoners with Children
California Public Defenders Association
JG:nl 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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