BILL ANALYSIS �
SB 716
Page 1
Date of Hearing: August 21, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 716 (Lara) - As Amended: May 28, 2013
Policy Committee: Public
SafetyVote:4-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill requires state, local and private correctional
facilities to create a safe environment free from sexual abuse
for inmates or detainees by adopting policies implementing the
U.S. Prison Rape Elimination Act (PREA), which are currently
binding on state and local facilities.
PREA, a lengthy and prescriptive act that establishes a
zero-tolerance standard for prison rape, requires all adult
prisons and jails, lockups, community confinement facilities,
juvenile facilities and immigrant detention centers to fully
comply with regulations crafted to prevent, detect and respond
to all forms of sexual abuse and sexual harassment. PREA
prescribes staffing levels, timelines, training, investigative
procedures, education and surveillance. PREA specifies a state
that does not certify full compliance with PREA standards is
subject to the loss of five percent of any U.S. DOJ grant for
prison purposes.
Specifically, this bill:
1)Repeals several sections in the state's Sexual Abuse in
Detention Elimination Act (AB 550, Goldberg, Statutes of
2005), replacing them with references to federal requirements.
2)Requires full implementation of these policies by July 1,
2015.
3)Provides that on or before July 1, 2015, the agency,
department, or company shall certify in writing to the Board
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of State and Community Corrections (BSCC) that it has adopted
the required policies, and shall transmit its policies and
procedures electronically to BSCC.
4)Requires BSCC to:
a) Make these policies available to the public on a
website, in a timely manner.
b) Provide a way for the public to raise concerns about
these published policies. Upon receipt of concerns from a
member of the public, the board has 90 days to review the
relevant policies. Any concerns by the public shall be
raised by July 1, 2015.
c) Notify any entity if its policies or procedures do not
meet the requirements of this bill and that it intends to
reject the entity's certification. The entity receiving
this notification has 180 days to modify its policies. If,
after the 180-day period, BSCC finds that the policies and
procedures are still inadequate, it shall reject the
certification.
5)Requires audits of all facilities at least once every three
years, and requires BSCC to publish audit procedures
consistent with the requirements under federal regulations.
Requires BSCC to produce a standard audit report format and to
maintain a list of California-certified auditors. Creates a
procedure for expedited audits of facilities suspected of a
pattern and practice of sexual abuse.
6)Requires correctional entities to collect uniform data for
every allegation of sexual abuse, aggregate the data annually,
make it publicly available, and retain it for at least 10
years.
7)Requires an agency or entity that contracts with a facility
not covered under the provisions of this bill to modify its
contract or agreement to incorporate the policies or
procedures implementing the federal standards referenced in
this measure.
8)Establishes the following financial penalties for failure to
provide certification of compliance, failure to perform the
required audits, or failure to address an audit:
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a) Public entities will be subject to a 25% reduction of
BSCC-administered grant renewals or awards in the first
year of noncompliance, a 50% reduction in the second year,
and complete ineligibility in the third year.
b) Private entities will be assessed a $500 penalty by BSCC
on the first day the certification or audit is due or a
failed audit is reported to BSCC, and an additional $1,000
every seven days until it provides a valid certification or
completes successful audits of any facilities that are
delinquent for or have failed an audit.
FISCAL EFFECT
1)Significant one-time GF costs to the BSCC, in the range of
$1.5 million to establish a major new program that includes
(a) reviewing the policies and procedures of hundreds of
custodial facilities statewide and issuing compliance and
non-compliance certification; (b) creating a program to
provide public review and response regarding state and local
policies; and (c) establishing auditing procedures, policies,
and a list of approved auditors.
2)Significant ongoing GF costs to BSCC, in the range of $1
million, to administer the program.
3)Unknown significant ongoing reimbursable state-mandated costs
to counties and cities, in the millions of dollars, for local
custodial facilities to comply with the requirements of this
bill. Just the state-mandated audits of hundreds of county
jails, city jails, temporary holding area, juvenile halls,
camps and ranches, every three years will create costs in the
millions of dollars. Moreover, because this bill creates a
state mandate to create, implement and operate a sex abuse
program, much of which is in process pursuant to federal law,
including written plans, data collection, audits, and
disciplinary sanctions, counties and cities will be able to
file claims with the Commission on State Mandates for millions
of dollars of staffing and program costs.
For example, several counties have indicated they will pursue
significant mandate claims for staffing, particularly for PREA
coordinators at each facility, as well as additional deputies
and equipment, such as video cameras.
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4)Costs to CDCR to comply with the federal requirements should
not be significant, as existing state law and practice is
generally compliant with federal requirements for state
prisons.
COMMENTS
1)Rationale . The author's intent is to "update existing state
law" to require custody facilities to conform to federal
standards regarding custodial safety.
2)Current state law includes the Sexual Abuse in Detention
Elimination Act (AB 550, Goldberg, Statutes of 2005), which
was intended to prepare the state for the federal PREA. AB 550
required specific practices designed to prevent sexual
violence, such as inmate classification and housing
procedures, response and investigation protocols, protection
of inmates who file complaints, sexual abuse reporting
recording protocols, creation of the Office of the Sexual
Abuse in Detention Elimination Ombudsperson, and requiring the
Office of the Inspector General to investigate reports of
mishandled sex abuse incidents.
3)Current federal law :
a) Establishes the PREA, a lengthy and prescriptive act
that 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 regulations crafted
to prevent, detect and respond to all forms of sexual abuse
and sexual harassment. PREA prescribes staffing levels,
timelines, training, investigative procedures, education
and surveillance. PREA specifies a state that does not
certify full compliance with PREA standards is subject to
the loss of five percent of any U.S. DOJ grant for prison
purposes.
b) Establishes the National Prison Rape Elimination
Commission to carry out a comprehensive study of prison
rape, and to recommend national standards, and directs the
U.S. Attorney General to publish a final rule adopting
national standards for the detection, prevention,
reduction, and punishment of prison rape.
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c) Requires facilities to develop a written plan to
coordinate actions by first responders, medical and mental
health practitioners, investigators, and facility
leadership.
d) Creates disciplinary sanctions up to and including
termination for staff violating agency sexual abuse or
sexual harassment policies.
e) Requires entities to collect accurate, uniform data for
every allegation of sexual abuse at facilities under its
direct control using a standardized instrument and set of
definitions and to aggregate the incident-based sexual
abuse data at least annually.
f) Requires entities to audit each facility at least once
during each three-year period, beginning on August 20,
2013.
4)PREA targets abuse in federal, state, and local institutions .
In May 2012, the National Prison Rape Elimination Commission
released final standards implementing PREA for adult prisons
and jails, lockups, community confinement facilities, and
juvenile facilities. Each set of standards is designed to
address problems specific to each type of facility.
PREA standards became applicable to federal facilities
immediately and to state and local facilities on August 20,
2012. The three-year audit cycle is scheduled to begin this
month. Governors must certify compliance or accept a 5%
reduction in federal grant funding for each year the state's
agencies fail to comply.
5)Opposition includes the CA State Sheriffs Association, The
L.A. Sheriff's Office, and the Chief Probation Officers of
California, who question why the state needs to redraft
existing standards in favor of federal standards that are
already binding on state and local facilities, when the result
will be a significant state-mandated cost. According to the
State Sheriffs Association:
"Additional regulations in excess of the federal standards are
redundant, as all correctional institutions currently
implement standards for the detection, prevention and
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punishment of rape in correctional facilities. Mandating a
system of data collection, review and retention, and requiring
all agencies to collect accurate, uniform data for at least 10
years after the date of initial collection will create
significant ongoing costs to entities that do not have the
budget or manpower to execute these burdensome requirements."
According to the Chief Probation Officers, "Every probation
department and every juvenile facility in California is
committed to providing each youth under their care a safe,
humane, secure environment, free from sexual misconduct and
victimization. We believe SB 716 is duplicative of existing
federal and state requirements and auditing procedures, and
exacerbates efforts underway in this regard."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081