BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 171        Hearing Date:    May 12, 2015    
          
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          |Author:    |Gaines                                               |
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          |Version:   |April 15, 2015                                       |
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          |Urgency:   |Yes                    |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                Subject:  County Jail Inmates:  Involuntary Transfer



          HISTORY

          Source:   Author

          Prior Legislation:AB 1512 (Stone) - Chapter 44, Statutes of 2014
                         SB 1021 (Comm. on Budget and Fisc. Rev.)-Chapter  
          41, Statutes of 2012
                         AB 109 (Committee on Budget) - Chapter 15,  
          Statutes of 2011
                         
          Support:  Unknown

          Opposition:AllCare Alliance; American Civil Liberties Union;  
                    Californians United for a Responsible Budget;  
                    California Public Defenders Association; California  
                    Attorneys for Criminal Justice; Courage Campaign; Ella  
                    Baker; Friends Committee on Legislation of California;  
                    Legal Services for Prisoners with Children

                                                


          PURPOSE

          The purpose of this bill is to authorize sheriffs with  








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          overcrowded jails to transfer sentenced inmates to another  
          state, county or private facility with or without the consent of  
          the inmate, and for the state to reimburse the county for all  
          costs to house and transport these transferred inmates, as  
          specified.        

          Existing law authorizes the "board of supervisors of a county  
          where, in the opinion of the sheriff or the director of the  
          county department of corrections, adequate facilities are not  
          available for prisoners who would otherwise be confined in its  
          county adult detention facilities, . . . (to) enter into an  
          agreement with the board or boards of supervisors of one or more  
          counties whose county adult detention facilities are adequate  
          for and accessible to the first county to permit commitment of  
          sentenced misdemeanants, persons sentenced pursuant to  
          subdivision (h) of Section 1170, and any persons required to  
          serve a term of imprisonment in county adult detention  
          facilities as a condition of probation, with the concurrence of  
          that county's sheriff or director of its county department of  
          corrections.  When the agreement is in effect, commitments may  
          be made by the court."  (Penal Code § 4115.5(a).)  



          Existing law provides that a county entering into an agreement  
          with another county pursuant to this section "shall report  
          annually to the Board of State and Community Corrections on the  
          number of offenders who otherwise would be under that county's  
          jurisdiction but who are now being housed in another county's  
          facility pursuant to (this section) and the reason for needing  
          to house the offenders outside the county."  (Penal Code §  
          4115.5(b).)

          Existing law sunsets these provisions on July 1, 2018.   

          This bill would provide that, with "the approval of the county  
          board of supervisors, the sheriff of a county may, if the county  
          jail is over 80 percent capacity, contract with any state,  
          county, or private jail or prison system in the United States  
          for the confinement of inmates on behalf of the county."

          This bill would authorize a sheriff to "transfer any person  
          committed to the county jail upon conviction for a public  
          offense to a facility with which the county has a contract,  









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          pursuant to the provisions of this bill) . . . with or without  
          the inmate's consent.  Transfers shall be at the discretion of  
          the county sheriff."

          This bill would authorize the county to "submit to the  
          Department of Corrections and Rehabilitation an invoice showing  
          the actual cost of housing and transportation of the inmates,  
          including, but not limited to, personnel costs.  The department  
          shall reimburse the county for all costs incurred to house and  
          transport inmates who are relocated pursuant to this section.

          This bill would appropriate an unspecified amount from the  
          General Fund to the Department of Corrections and Rehabilitation  
          to pay the cost of housing and transportation of inmates  
          incurred pursuant to its provisions.

          Existing law provides that a "prisoner committed to the county  
          jail for examination, or upon conviction for a public offense,  
          must be actually confined in the jail until legally discharged;  
          and if the prisoner is permitted to go at large out of the jail,  
          except by virtue of a legal order or process, it is an escape;  
          provided, however, that during the pendency of a criminal  
          proceeding, the court before which said proceeding is pending  
          may make a legal order, good cause appearing therefor, for the  
          removal of the prisoner from the county jail in custody of the  
          sheriff. In courts where there is a marshal, the marshal shall  
          maintain custody of such prisoner while the prisoner is in the  
          court facility pursuant to such court order. The superior court  
          of the county may make a legal order, good cause appearing  
          therefor, for the removal of prisoners confined in the county  
          jail, after conviction, in the custody of the sheriff."  (Penal  
          Code § 4004.)

          Existing law provides that "if facilities are no longer  
          available in the county jail due to crowded conditions, a  
          sheriff may transfer a person committed to the county jail upon  
          conviction for a public offense to facilities which are  
          available in the city jail," as specified.  (Id.)

          This bill would revise this section to include a cross-reference  
          to its provisions.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION










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          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 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. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;









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              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;

              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 

              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and

              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.



          COMMENTS

          1.Stated Need for This Bill

          The author states:

               As a result of the prisoner lawsuit, Plata v. Brown,  
               and a further ruling that California's prison  
               overcrowding directly led to cruel and unusual  
               punishment of CDCR inmates, California is under a  
               federal mandate to reduce its prison population to  
               137.5-percent of design capacity.  

               As part of the solution to this mandate, California  
               implemented a "realignment" plan. Due to this plan,  
               thousands of what would have been CDCR inmates have  
               been effectively transferred to county jails.  



               Much like the prisons themselves, though, the county  
               jails were overcrowded and could not absorb the  
               increased caseload engendered by realignment. In  
               practice, this has led to more criminals being out on  
               the street and communities seeing an increase in  
               crime. 









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               Although increased jail space would mitigate this  
               problem, it is not a solution that provides immediate  
               relief for crime-plagued communities, due to long  
               timelines for new jail construction and the difficulty  
               of securing funding.

          2.Current Law; What This Bill Would Do

          Current law authorizes counties facing jail capacity problems to  
          enter into contracts with other California counties that have  
          jail space to house their inmates.  Prior to the enactment of SB  
          1021 in 2012, counties were allowed to contract with nearby  
          counties for the housing of committed misdemeanants and any  
          persons required to serve a term of imprisonment in a county  
          jail as a condition of probation.  SB 1021 expanded this  
          authority by removing the requirement that the receiving county  
          must be a nearby county, and authorizing any inmate confined to  
          the county jail to be transferred through a county-to-county  
          contract.  By authorizing any inmate confined in a county jail  
          to be transferred to another county, SB 1021 authorized the  
          transfer of inmates sentenced under realignment as well as  
          inmates who are awaiting trial.  

          AB 1512 (Stone), from last year, which was sponsored by the  
          California State Sheriffs' Association,  allowed counties to  
          continue to transfer inmates by extending the sunset date  
          established in SB 1021 from July 1, 2015 to July 1, 2018.  On  
          July 1, 2018, the law will revert back to the statute that  
          existed prior to the version passed by SB 1021.  AB 1512,  
          additionally, excluded pre-trial inmates from being transferred  
          through county-to-county transfers.

          This bill would authorize sheriffs with overcrowded jails to  
          transfer sentenced jail inmates to a far broader array of  
          custodial facilities than is authorized under current law.   
          Specifically, this bill would do the following:

                 With the approval of the county board of supervisors and  
               if the county jail is over 80 percent capacity, authorize  
               the sheriff to contract with any state, county, or private  
               jail or prison system in the United States for the  
               confinement of inmates on behalf of the county;










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                 Authorize the sheriff, at his or her discretion, to  
               transfer any person committed to the county jail upon  
               conviction for a public offense to a facility with or  
               without the inmate's consent;  

                 Authorize the county to submit to the Department of  
               Corrections and Rehabilitation ("CDCR") an invoice showing  
               the actual cost of housing and transportation of the  
               inmates, including, but not limited to, personnel costs;

                 Require CDCR  to reimburse the county for all costs  
               incurred to house and transport inmates who are relocated  
               under this provision; and

                 Appropriate an unspecified amount from the General Fund  
               to CDCR to pay these costs.



          1.Jail Overcrowding and the State's Response

          Some counties have faced jail overcrowding challenges for many  
          years.  These issues pre-dated the public safety realignment of  
          2011, and increased immediately after realignment became law in  
          October of 2011.  The passage of Proposition 47 in November of  
          2014 may reverse this trend and reduce jail populations in some  
          counties.<1>

          Since 2007, the Legislature has approved over $2 billion in  
          lease-revenue bonds to fund jail construction and modification,  
          which is estimated to have added more than 14,000 jail beds  







          ---------------------------

          <1>   Los Angeles County Jail Population Plummets After Passage  
          of Prop. 47 (January 25, 2015)(California County News)(  
          http://californiacountynews.org/news/2015/01/los-angeles-county-j 
          ail-population-plummets-after-passage-prop-47.)
















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          across the state.<2>  In February of 2014 (before the passage of  
          Proposition 47) the Legislative Analyst's Office noted:

               (T)he statewide jail population has increased by  
               11,000 inmates since 2011, nearing the peak population  
               of 82,000 inmates that occurred in 2007.  Realignment  
               is responsible for most of this increase.  

               As of June 2013, 56 jail facilities in 25 counties had  
               average daily populations that exceeded their rated  
               capacities. In total, these facilities had 11,500 more  
               inmates than their rated capacity. However, other  
               jails had more capacity than inmates.  Specifically,  
               65 jail facilities in 45 counties had an average daily  
               population below rated capacity. In total, these  
               facilities had 6,000 inmates less than their rated  
               capacity. We note that there are some counties with  
               multiple facilities where one facility may exceed its  
               capacity while another may have available bed space.  
               This typically occurs where the facilities serve  
               different populations (by gender or security need for  
               example) and the counties cannot move inmates between  
               facilities.  

               We also note that many county jail facilities are  
               under self-imposed or court-imposed population caps.   
               As of June 2013, 39 facilities in 19 counties were  
               operating under either self-imposed caps or  
               court-imposed caps. When such facilities exceed their  
               population caps, they release inmates early.  For  
               example, in the first half of 2013, an average of  
               about 13,000 inmates per month were released early.<3>

           A growing number of alternatives to jail custody are becoming  
          ---------------------------

          <2>   The 2014-15 Budget: A Review of the 2014 California  
          Five-Year Infrastructure Plan (Legislative Analyst's Office  
          (http://www.lao.ca.gov/reports/2014/budget/infrastructure/infrast 
          ructure-plan-021014.pdf.); Corrections Infrastructure Spending  
          in California , Brandon Martin, PPIC, (March 2015)  
          (http://www.ppic.org/ main/publication_show.asp?i=1142.)

          <3>   The 2014-15 Budget: Governor's Criminal Justice Proposals  
          (Legislative Analyst's Office) February 19, 2014  
          (http://www.lao.ca.gov/reports/2014/budget/criminal-justice/crimi 
          nal-justice-021914.pdf.)








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          employed to manage local offenders.  A policy brief released  
          this month by the Public Policy Institute of California  
          explains:

               . . . (T)he overall number of individuals under  
               correctional supervision has decreased in recent  
               years.  Although the shares of offenders in prison or  
               jail versus parole or probation are unchanged, there  
               has been a substantial increase in the percentage of  
               offenders managed by the counties.  These shifts have  
               led many to consider how the state and its counties  
               can make the best use of the scarcest and most  
               expensive resource in the system: a jail or prison  
               bed. . . .

               Counties appear to use a greater range of  
               alternatives. Each county board of supervisors can  
               authorize county correctional administrators to  
               operate voluntary and involuntary alternative custody  
               programs (ACP).  Two of the most common programs,  
               specifically mentioned in state law, are home  
               detention and work release.  Home detention programs  
               require offenders to serve sentences in specific  
               residential locations.  Most home detention programs  
               require participants to be monitored by electronic or  
               GPS devices.  Counties can develop their own program  
               rules and criteria, including charging application and  
               daily fees.

               Counties also run work release programs that allow  
               offenders sentenced to county jail to spend time on  
               community service projects, including picking up  
               roadside trash and repairing public buildings.   
               Program participants receive one day of sentence  
               credit for every day (8 to 10 hours) served in a work  
               program.  As with home detention, each county develops  
               its own rules and criteria for participation in the  
               program, including application and daily fees. . . .

               County alternative custody programs can now include  
               newly realigned offenders - non-serious, non-violent,  
               non-sexual (1170h) felons who previously were eligible  
               for prison but now serve all or part of their  
               sentences in county jail.  Counties now have the  









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               option of placing these 1170h offenders in work  
               release programs, home detention, or electronic  
               monitoring programs at any point during their  
               sentences. Offenders serving local sentences have been  
               eligible for placement in alternative custody programs  
               for years.<4>

          Research suggests that incarceration is an expensive sanction  
          which for many offenders may not be the most effective way of  
          reducing recidivism.  As explained by the PPIC report:

               Would relying less heavily on incarceration have an  
               effect on recidivism? Studies generally find little to  
               no difference in recidivism when comparing outcomes  
               for incarcerated offenders with offenders sentenced to  
               the community.  A few studies show better outcomes for  
               individuals placed in custody, but the effects are  
               surprisingly small. 

               Several studies show worse recidivism outcomes for  
               incarcerated offenders, although this does not emerge  
               as clearly in studies that make extensive adjustments  
               for different groups of offenders. This holds true in  
               recent research that factors the length of  
               incarceration into the calculation of recidivism,  
               which suggests that incarceration may be less  
               beneficial than we might assume.  Given that custodial  
               placements are substantially more expensive than  
               placements in the community, the implication is that  
               widening the use of community-based punishments can  
               conserve resources without necessarily worsening  
               recidivism. . . 

               Would relying less heavily on incarceration have an  
               effect on recidivism? Studies generally find little to  
               no difference in recidivism when comparing outcomes  
               for incarcerated offenders with offenders sentenced to  
               the community.  A few studies show better outcomes for  
               individuals placed in custody, but the effects are  
               ----------------------

          <4>    Alternatives to Incarceration in California (Brandon  
          Martin and Ryken Grattet) (PPIC), April 2016  
          (http://www.ppic.org/content/pubs/report/R_415BMR.pdf)  
          (footnotes omitted).








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               surprisingly small.  Several studies show worse  
               recidivism outcomes for incarcerated offenders,  
               although this does not emerge as clearly in studies  
               that make extensive adjustments for different groups  
               of offenders.  This holds true in recent research that  
               factors the length of incarceration into the  
               calculation of recidivism, which suggests that  
               incarceration may be less beneficial than we might  
               assume.

               Given that custodial placements are substantially more  
               expensive than placements in the community, the  
               implication is that widening the use of  
               community-based punishments can conserve resources  
               without necessarily worsening recidivism.<5>

          The enactment of the 2011 public safety realignment included  
          legislative findings and declarations that included the  
          following:

                 California must reinvest its criminal justice resources  
               to support community-based corrections programs and  
               evidence-based practices that will achieve improved public  
               safety returns on this state's substantial investment in  
               its criminal justice system.

                 Realigning the postrelease supervision of certain felons  
               reentering the community after serving a prison term to  
               local community corrections programs, which are  
               strengthened through community-based punishment,  
               evidence-based practices, and improved supervision  
               strategies, will improve public safety outcomes among adult  
               felon parolees and will facilitate their successful  
               reintegration back into society.<6>

          Members may wish to discuss a number of issues concerning the  
          impact and effectiveness of this bill.

          WOULD THIS BILL IMPROVE OUTCOMES AMONG OFFENDERS SENTENCED TO  
          JAIL?
          ---------------------------

          <5>   Id. (footnotes omitted).

          <6>  Penal Code §§ 17.5, 3450.








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          WOULD THE COSTS OF THIS BILL OUTWEIGH ITS PUBLIC SAFETY  
          BENEFITS?

          WOULD THIS BILL PROVIDE AN EFFECTIVE TOOL FOR COUNTIES FACING  
          OVERCROWDED JAILS?

          HOW WOULD THIS BILL IMPACT AND COMPARE TO THE STATE'S NEED TO  
          CONTRACT FOR OUT-OF-STATE AND PRIVATE CUSTODIAL BEDS FOR PRISON  
          INMATES, AND HOW WOULD THIS IMPACT THE STATE'S ABILITY TO MEET  
          THE PRISON CAPACITY REDUCTIONS ORDERED BY THE FEDERAL COURT?


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