BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 1310 (Lara)                                              
          As Introduced: February 21, 2014 
          Hearing date:  April 1, 2014
          Penal Code
          MK:sl

                            MISDEMEANORS: MAXIMUM SENTENCE  

                                       HISTORY

          Source:  California Attorneys for Criminal Justice

          Prior Legislation: None

          Support: American Civil Liberties Union; Asian Americans  
                   Advancing Justice; California Coalition for Women  
                   Prisoners; California Immigrant Policy Center;  
                   California Partnership; California Public Defenders  
                   Association; Californians for Safety and Justice;  
                   Californians United for a Responsible Budget;  
                   Children's Defense Fund-California; Educators for Fair  
                   Consideration; Ella Baker Center for Human Rights;  
                   Friends Committee on Legislation of California; Latino  
                   Coalition for a Healthy California; Legal Services for  
                   Prisoners with Children; MALDEF; Services, Immigrant  
                   Rights & Education Network (SIREN)

          Opposition:None known


                                         KEY ISSUE
           
          SHOULD THE LAW PROVIDE THAT AN OFFENSE PUNISHABLE BY UP TO ONE YEAR  
          IN THE COUNTY JAIL SHALL BE PUNISHABLE BY IMPRISONMENT IN A COUNTY  
          JAIL FOR A PERIOD NOT TO EXCEED 364 DAYS?


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                                       PURPOSE

          The purpose of this bill is to provide that an offense  
          punishable by up to one year in county jail is punishable by a  
          period not to exceed 364 days.

           Existing law  provides that except in cases where a different  
          punishment is prescribed, the punishment for a felony is 16  
          months, 2 or 3 years in state prison, unless the offense is  
          punishable under Penal Code 1170(h) in which case the punishment  
          when not specified is 16 months, 2 or 3 years in county jail.  
          (Penal Code §18 and 1170(h))

           Existing law  provides that except where a different punishment  
          is prescribed every offense declared to be a misdemeanor is  
          punishable by imprisonment in the county jail not exceeding six  
          months or by a fine not exceeding $1,000 or both fine or both.   
          (Penal Code § 19)

           Existing federal law,  for purposes of deportation, defines an  
          aggravated felony in part as:
                 a crime of violence (as defined in section  16  of title  
                18  , but not including a purely political offense) for which  
               the term of imprisonment is at least one year; or, 
                 a theft offense (including receipt of stolen property)  
               or burglary offense for which the term of imprisonment is  
               at least one year. (8 USD 1101 (a)(43)(F) and (G)).

           Existing federal law  , provides that for purposes of deportation,  
          provides that a crime involving moral turpitude shall be  
          considered when the maximum possible sentence is at least one  
          year. (8USC § 1227(a)(2)(A)(i))

           This bill  provides that every offense which is prescribed by any  
          law of the state to be punishable by imprisonment in a county  
          jail up to or not exceeding one year shall be punishable by  
          imprisonment in a county jail for a period not to exceed 364  
          days.



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                    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.  
            

          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  


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          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:

                 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 February 18, 2014, the  
          state reported that as of February 12, 2014, California's 33  
          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  


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          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.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:


               Legal immigrants have always been subject to  
               deportation, if they commit specified crimes determined  
               by federal statute. In 1996 Congress enacted the  
               Illegal Immigration Reform and Immigration  
               Responsibility Act, which expanded the list of crimes  
               that a legal immigrant can be deported for to include  
               an aggravated felony.  Under immigration law, an  
               aggravated felony is a term of art that can apply to  
               crimes that are neither aggravated or a felony. 



               Under the U.S. Immigration and Nationality Act,  


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               aggravated felonies fall into two categories: specific  
               crimes that federal law has determined trigger  
               deportation and crimes that are deportable if the  
               defendant receives a 365-day sentence, regardless of  
               the time served.  The time imposed by the court,  
               irrespective of whether the time is suspended or not,  
               is considered part of the sentence.  As a result, a  
               legal immigrant convicted of a crime and sentenced to  
               365 days with 362 days suspended, who served only 3  
               days in jail, would have a one year sentence as defined  
               under federal law and face deportation. 

               Prior to 1996, legal immigrants had the opportunity to  
               challenge their deportation before a judge. Currently,  
               those deported have no legal way to reenter the U.S.,  
               even if they were legal residents and have an American  
               spouse.  Washington, Nevada, and Illinois have all  
               passed legislation to address this problem. 

               As a result of the one year sentence deportation  
               policy, thousands of families are torn apart every year  
               due to minor crimes, such as writing a bad check. Those  
               deported often leave behind families and children who  
               depend on them for support. From 2010 through 2012 the  
               U.S. Immigration and Customs Enforcement deported  
               204,000 immigrant parents from the U.S., which  
               accounted for 23 percent of the total number of  
               deportations during that time period. Many of those  
               deported for minor offenses are longtime legal  
               permanent residents of California, with deep  
               connections to their families and communities. 


               SB 1310 will reduce the maximum possible misdemeanor  
               sentence from one year to 364 days, so that deportation  
               eligibility will not be triggered for a legal immigrant  
               who commits a misdemeanor punishable by imprisonment  
               for one year. 





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               This bill will not affect immigration enforcement and  
               people who are in California unlawfully or have  
               committed serious crimes will still face deportation.   
               This bill will preserve judicial discretion and ensure  
               legal residents who have committed minor crimes are not  
               automatically subject to deportation and separated from  
               their families. 

          2.   Felonies for the purposes of deportation under Federal  
          Immigration law

           In California, the maximum sentence for a misdemeanor is one  
          year while the lowest penalty for a felony is generally no less  
          than 16 months.  Because some misdemeanors have a sentence of  
          one year, non-citizens who are in the country legally can face  
          deportation because the definition of aggravated felony under  
          the Immigration and Nationality Act includes sentences of one  
          year, even though these are not considered felonies in  
          California. (INA §101(a)(43)  Individuals who have committed an  
          "aggravated felony" under federal immigration law can face the  
          following consequences:
                 Deportation without a Removal Hearing with no appeal  
               (INA § 238)
                 Deportation even for long-term legal residents with no  
               eligibility for cancellation of removal (INA § 240A(a)(3),  
               (b)(1)(C), (b)(1)(D))
                 Mandatory unreviewable detention following release from  
               criminal custody or upon referral to Immigration Court (INA  
               § 236(c))
                 Ineligibility for Asylum (INA § 208(b)(2)(B)(i); INA §  
               101(a)(42))
                 Ineligibility for waivers of inadmissibility based on  
               extreme hardship to a qualifying USC or LPR spouse or  
               parent (INA § 212(h))
                 Permanent Inadmissibility following  
               departure/deportation from United States (INA §  
               212(a)(9)(ii))
                 Increased criminal penalties for illegally re-entering  
               the United States after deportation for an aggravated  
               felony (INA § 276(b)(2))


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                 Ineligibility for Naturalization (Citizenship) (INA §  
               101(f)(8))

          3.   Redefining a Year
           
          This bill provides that for purposes of any offense for which  
          the punishment is a year or up to a year in county jail the  
          punishment shall be for not more than 364 days.  By changing a  
          "year" to "364 days" this would keep those offenses that  
          California considers to be misdemeanors from being considered  
          "aggravated felonies" for federal immigration purposes.
































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          4.  Human Rights Watch Report  

          Human Rights Watch (HRW) did a report in 2009 on analyzing ICE  
          data on deportation of non-citizens.  While they had some issues  
          with the data they received from ICE, HRW found that  
          "non-citizens who have lived in the United States for decades,  
          including lawful permanent residents (persons with "green  
          cards"), have been summarily deported from the country for  
          criminal conduct, including minor crimes." According to the HRW  
          report:

               Between 1997 and 2007, 897,099 non-citizens were  
               deported from the United States after serving their  
               criminal sentences. Twenty percent were legally in the  
               country, often living legally in the US for decades,  
               before they were deported.  It is this group of legally  
               present non-citizens who experience some of the most  
               egregious human rights violations in being deported  
               from the United States. Legally present non-citizens  
               hold the strongest claims against summary deportation  
               as a violation of their fundamental rights to live as a  
               family, to maintain longstanding ties to their country  
               of primary residence, and refugees' rights to  
               protection from return to persecution.

               Our analysis of the ICE data also disproves the popular  
               belief that the agency focuses almost exclusively on  
               deporting undocumented (or illegally present)  
               non-citizens with violent criminal histories.  In  
               reality, 72 percent of those who were deported between  
               1997 and 2007 for whom we have crime data were expelled  
               from the United States for non-violent offenses.  Of  
               those for whom we have crime data who were legally in  
               the country, the number is even higher: 77 percent of  
               those legally present non-citizens were banished from  
               the United States, often permanently, for non-violent  
               offenses.  Only 23 percent of those legally present  
               non-citizens were deported for a violent or potentially  
               violent offense. 

               When specific crimes are examined, the results are even  
               more telling.  The top four crimes forming the basis  

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               for deportation of all types of non-citizens from the  
               United States were: entering the United States  
               illegally (comprising 24 percent of all deportees for  
               whom we have crime data), driving under the influence  
               of alcohol (7.2 percent), assault (5.5 percent), and  
               immigration crimes (for example, selling false  
               citizenship papers) (5.5 percent).  In addition to  
               these "top four," the relatively minor crimes for which  
               non-citizens were most frequently deported include:  
               marijuana possession (2.2 percent), traffic offenses  
               (1.5 percent), and disorderly conduct (0.4 percent).   
               Of course, non-citizens were also deported for more  
               serious violent crimes, including robbery (2.2 percent)  
               and aggravated assault (1 percent). But contrary to  
               popular belief and fear-mongering about criminal  
               behavior by noncitizens, a tiny minority, just 0.3  
               percent, were deported for any form of intentional  
               homicide. (Human Rights Watch, United States Forced  
               Apart (By the Numbers:  Non-Citizens Deported for  
               Mostly Nonviolent Offenses April 2009)

          5.  Support  

          The Friends Committee on Legislation supports this bill stating:

               By limiting the maximum sentence for all misdemeanors  
               to 364 days, SB 1310 will protect the 27 percent of  
               California's population who are immigrants (the vast  
               majority of who are either naturalized or living here  
               under some form of legal status) from having  
               deportation proceedings triggered for a misdemeanor  
               conviction.  This will keep countless families from  
               being torn apart by deportation.


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