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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