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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