BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 219 Hearing Date: April 7, 2015
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|Author: |Liu |
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|Version: |March 26, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: California Department Of Corrections and
Rehabilitation: Alternative Custody
Program
HISTORY
Source: Justice Now and Californians United for a
Responsible Budget
Prior Legislation:SB 1266 (Lui) - Ch. 644, Stats. of 2010
SB 1021 (Comm. on Budget and Fiscal Review) Ch.
41, Stats. of 2012
Support: A New PATH; California Attorneys for Criminal Justice;
California Catholic Conference; California Families
Against Solitary Confinement; California Partnership;
California Public Defenders Association; Californians
for Safety and Justice; Communities United or
Restorative youth Justice; Friends Committee on
Legislation of California; Western Regional Advocacy
Project; Western Regional Advocacy Project; Women's
Prison Association; 1 individual
Opposition:None Known
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PURPOSE
The purpose of this bill is to: (1) provide that an inmate's
existing psychiatric or medical condition that requires ongoing
care is not a basis for excluding the inmate from eligibility
from the California Department of Corrections and
Rehabilitation's (CDCR) voluntary alternative custody program
(ACP); (2) require CDCR to meet a variety of timeframes in
processing applications for ACP; and, (3) require CDCR to assist
individuals participating in ACP in obtaining health care
coverage, including, but not limited to Medi-Cal benefits.
Current law creates in state government the CDCR, to be headed
by a secretary, who shall be appointed by the Governor, subject
to Senate confirmation, and shall serve at the pleasure of the
Governor. (Government Code § 12838.) CDCR shall consist of
Adult Operations, Adult Programs, Health Care Services, Juvenile
Justice, the Board of Parole Hearings, the State Commission on
Juvenile Justice, the Prison Industry Authority, and the Prison
Industry Board. (Id.) As explained in the Legislative
Analyst's Office Analysis of the Governor's 2015-16 Proposed
Budget:
The CDCR is responsible for the incarceration of adult
felons, including the provision of training,
education, and health care services. As of February
4, 2015, CDCR housed about 132,000 adult inmates in
the state's prison system. Most of these inmates are
housed in the state's 34 prisons and 43 conservation
camps. About 15,000 inmates are housed in either
in-state or out-of-state contracted prisons. The
department also supervises and treats about 44,000
adult parolees
and is responsible for the apprehension of those
parolees who commit new offenses or parole violations.
In addition, about 700 juvenile offenders are housed
in facilities operated by CDCR's Division of Juvenile
Justice, which includes three facilities and one
conservation camp.
The Governor's budget proposes total expenditures of $10.3
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billion ($10 billion General Fund) for CDCR operations in
2015-16.
Existing law authorizes the Secretary of CDCR to offer a program
under which female inmates, as specified, who have been
committed to state prison may be allowed to participate in a
voluntary ACP in lieu of their confinement in state prison. In
order to qualify for the program an offender need not be
confined in an institution under the jurisdiction of CDCR.
Under this program, one day of participation is in lieu of one
day of incarceration. Participants in the program receive any
sentence reduction credits that they would have received had
they served their sentence in the state prison, and shall be
subject to denial and loss of credit, as specified. (Penal Code
§ 1170.05(a).)
Existing law states that an ACP must include, but not be limited
to, the following:
Confinement to a residential home during the hours
designated by the department.
Confinement to a residential drug or treatment program
during the hours designated by the department.
Confinement to a transitional care facility that offers
appropriate services.
(Penal Code § 1170.05 (b).)
Under existing law female inmates sentenced to state prison for
a determinate term of imprisonment pursuant to Section 1170, and
only those persons, must be eligible to participate in an ACP,
except for an inmate who:
Has a current conviction for a violent felony as defined
in Section 667.5.
Has a current conviction for a serious felony as defined
in Sections 1192.7 and 1192.8.
Has a current or prior conviction for an offense that
requires the person to register as a sex offender as
provided in Chapter 5.5 of Title 9 of Part 1.
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Was screened by the department using a validated risk
assessment tool and determined to pose a high risk to
commit a violent offense.
Has a history, within the last 10 years, of escape from
a facility while under juvenile or adult custody,
including, but not limited to, any detention facility,
camp, jail, or state prison facility.
(Penal Code § 1170.05 (c) and (d).)
Existing law requires an ACP to include the use of electronic
monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant's compliance with the rules and regulations of the
program. (Penal Code § 1170.05(e).)
Under existing law CDCR must create, and the participant shall
agree to and fully participate in, an individualized treatment
and rehabilitation plan. When available and appropriate for the
individualized treatment and rehabilitation plan, the department
shall prioritize the use of evidence-based programs and services
that will aid in the successful reentry into society while she
takes part in alternative custody. Case management services
must be provided to support rehabilitation and to track the
progress and individualized treatment plan compliance of the
inmate. (Penal Code § 1170.05(f).)
Existing law states that CDCR is not required to allow an inmate
to participate in this program if it appears from the record
that the inmate has not satisfactorily complied with reasonable
rules and regulations while in custody. An inmate is eligible
for participation in an ACP only if it is concluded that the
inmate meets the criteria for program participation and that the
inmate's participation is consistent with any reasonable rules
and regulations prescribed by CDCR. CDCR has the sole
discretion concerning whether to permit program participation as
an alternative to custody in state prison. A risk and needs
assessment must be completed on each inmate to assist in the
determination of eligibility for participation and the type of
alternative custody. (Penal Code § 1170.05 (i).)
Existing law permits the secretary or his or her designee to
permit program participants to seek and retain employment in the
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community, attend psychological counseling sessions or
educational or vocational training classes, participate in life
skills or parenting training, utilize substance abuse treatment
services, or seek medical and dental assistance based upon the
participant's individualized treatment and release plan.
Participation in other rehabilitative services and programs may
be approved by the case manager if it is specified as a
requirement of the inmate's individualized treatment and
rehabilitative case plan. Willful failure of the program
participant to return to the place of detention not later than
the expiration of any period of time during which she is
authorized to be away, unauthorized departures, or tampering
with or disabling, or attempting to tamper with or disable, an
electronic monitoring device subjects the participant to a
return to custody. In addition, participants may be subject to
forfeiture of credits, or to discipline for violation of rules
established by CDCR. (Penal Code § 1170.05 (j).)
Existing law allows CDCR to administer an ACP pursuant to
written contracts with appropriate public agencies or entities
to provide specified program services. The department is
required to determine the recidivism rate of each participant in
an alternative custody program. (Penal Code § 1170.05 (l).)
Existing law states that an inmate participating in an ACP must
voluntarily agree to all of the provisions of the program in
writing, including that she may be returned to confinement at
any time with or without cause, and cannot be charged fees or
costs for the program. (Penal Code § 1170.05 (m).)
Existing law requires the state to retain responsibility for the
medical, dental, and mental health needs of individuals
participating in ACP. (Penal Code § 1170.05 (n).)
This bill would provide that an inmate's existing psychiatric or
medical condition that requires ongoing care is not a basis for
excluding the inmate from eligibility for the program.
The bill would prescribe specific timeframes for, among other
things, the review of an application to participate in the
program and notifying an applicant when a determination has been
made on that application. The bill would require a notice of
denial to specify the reasons the inmate has been denied
participation in the program, and authorize an inmate to reapply
for participation in the program or appeal a denial, as
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specified.
The bill would require CDCR to assist an individual
participating in the alternative custody program in obtaining
health care coverage, including, but not limited to, assistance
with having suspended Medi-Cal benefits reinstated, applying for
Medi-Cal benefits, or obtaining health care coverage under a
private health plan or policy. The bill would require that, to
the extent not covered by a participant's health care coverage,
the state would retain responsibility for the medical, dental,
and mental health needs of individuals participating in ACP.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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;
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. Need for This Legislation
According to the author:
The Alternative Custody Program was established by SB
1266 (Liu) in 2010 and was intended to offer more
appropriate rehabilitative settings to incarcerated
female offenders and inmates who were primary
caregivers. The program, predating AB 109, at its
inception was designed for the approximately 4,500
low-level women offenders then incarcerated that could
be eligible for placement in secure, community-based
programs without risking community safety (National
Council on Crime and delinquency (NCCD), 2006).
After the implementation of AB 109 an additional
program, the Enhance Alternative Custody Program
(EACP) was established and the applications for the
two programs streamlined. This new program includes
women that have committed violent and serious crimes.
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Since ACP was implemented in September of 2011
approximately 7,200 applications have been submitted.
Of those applications, only 460 offenders have been
approved for Alternative Custody.
After three and a half years it is time to update and
clarify the Alternative Custody Program to ensure that
women continue to benefit from its robust offerings.
SB 219 clarifies that an inmate cannot be excluded
from ACP based on an existing medical or psychiatric
condition. Further, it establishes a timeline for
application review, appeal, and release.
Additionally, it requires the Secretary or his/her
designee to assist participants in obtaining Medi-Cal
or private insurance coverage.
2. Effect of the Legislation
According to information provided by CDCR, there are currently
67 offenders in the ACP. As of March 17, 2015, CDCR had
approximately 440 active ACP/EACP applications at various stages
of the process. Applications are generally screened within 3 to
5 days of receipt, and the entire process takes approximately 55
days. According to CDCR, "[i]nmates with mental or medical
conditions are accepted to participate in ACP/EACP on a
case-by-case basis, and are not categorically denied
participation solely based on such a condition. Such inmates
may be denied participation because their condition requires a
level of care not available in an acceptable ACP environment
upon release."
An Individual Treatment Rehabilitative Plan (ITRP) is requested
once the application is screened for criteria eligibility. The
ITRP is generally completed within 5 days. CDCR states that, in
most cases, once the inmate is endorsed to ACP by the
Classification Services Representative; the inmate is
transferred within 14 days.
This legislation makes it clear that that an inmate's existing
psychiatric or medical condition that requires ongoing care is
not a basis for excluding the inmate from eligibility for the
program.
It further places specific timeframes on the application process
and release to ACP and requires that an ITRP be done for every
inmate that applies. Specifically CDCR would be required to:
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Respond to an applicant within two weeks to inform the
inmate that the application was received, and to notify the
inmate of the ineligibility criteria of the program.
Develop the ITRP during the two weeks following the
notice of receipt of the application, in consultation with
the inmate, during which time the decision whether to
accept the inmate into the program shall be made, and
requires CDCR to provide a written notice to the inmate of
her acceptance or denial into the program.
Release an offender to ACP no later than five business
days following notice of acceptance into the program.
In cases where the inmate is denied participation, the notice of
denial shall specify the reason the inmate was denied. The
inmate may, 30 days after the notice of denial, reapply for
participation in ACP, or appeal the decision through the normal
grievance process.
This legislation, additionally, would require CDCR to assist
individual's participating in ACP to obtain health care
coverage, including Medi-Cal benefits.
SHOULD THE ITRP BE DONE PRIOR TO CDCR DETERMINING THAT THE
INMATE IS ELIGIBLE FOR ACP?
3. Constitutional Considerations - Equal Protection
Penal Code section 1170.05 is currently being challenged in
federal court. (Sassman v. Brown, 2:14-cv-01679-MCE-KJN,
Eastern District, California.) Plaintiff is claiming that his
exclusion from ACP, as authorized by California Penal Code
section 1170.05, violates the Equal Protection Clause of the
Fourteenth Amendment. This matter is still pending before the
federal court and both parties have filed motions for summary
judgment. While the court has not yet ruled on the motions for
summary judgment, the court, in ruling on Plaintiff's Motion for
Preliminary Injunction, stated:
Defendants claim that Plaintiff cannot succeed on the
merits of his Equal Protection claim because he is not
similarly situated to those female inmates applying
for and being approved to participate in the ACP.
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Plaintiff, on the other hand, claims that he is
similarly situated to female inmates for purposes of
the ACP by referencing the gender-neutral exclusionary
criteria contained within the implementing regulations
that ensure only low-risk, low-level offenders
participate in the program. More specifically,
Plaintiff contends that because he qualifies to submit
an application to the ACP with reference to those
criteria, he is similarly situated to females who
qualify as well. Plaintiff's argument is well taken.
(Sassman v. Brown, 2014 U.S. Dist. LEXIS 146536 (E.D.
Cal., 2014) (Citations Omitted).)
The court goes on to state:
CDCR has repeatedly made clear that the primary
objectives of the ACP are family reunification and
community reintegration. However, since all women are
permitted to participate in the ACP, not just women
with children, it is unclear how the statute furthers
those goals. Moreover, this Court still cannot see
how either goal is advanced by excluding male
prisoners. To the contrary, it seems that permitting
men to participate in the program would actually serve
the State's objectives. Defendants have thus failed
to show how the ACP can be substantially related to
the State's interests of family reunification and
community reintegration when, to apply, women need not
be mothers, nor must they show a need for
rehabilitation or recovery services aimed at substance
abuse or domestic violence, but men, even if they show
all of the foregoing, may not apply at all. Absent a
closer connection between the statute and the goals it
is intended to serve, Plaintiff is likely to succeed
on the merits of his claim. (Id. (Citations and
footnotes omitted).)
4. Enhanced Alternative Custody Program
As discussed above, 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,
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137.5% of design bed capacity by February 28, 2016.
In its most recent status report to the court (February 2015),
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).
Included in the bed capacity are Enhanced Alternative Custody
Program beds. According to the February status report,
On August 4, 2014, the State activated an 82 bed
facility in San Diego, and expects to open a second
facility in Southern California in 2015 for the
expanded alternative custody program for females,
called the Custody to Community Transitional Reentry
Program (CCTRP). As of January 15, 2015, 77 female
inmates are housed at the San Diego facility. An
additional 5 female inmates are scheduled for transfer
to the program on January 23, 2015, filling the
program to its current capacity. Female inmates in
the CCTRP are provided with a range of rehabilitative
services that assist with alcohol and drug recovery,
employment, education, housing, family reunification,
and social support. (Id.)
HOW DOES THIS LEGISLATION IMPACT ONGOING POPULATION REDUCTION
EFFORTS?
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