BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular SB 219 (Liu) - Prisons: alternative custody program ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 26, 2015 |Policy Vote: PUB. S. 5 - 2 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: April 20, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 219 would prohibit the Department of Corrections and Rehabilitation (CDCR) from excluding a female inmate from eligibility for the alternative custody program (ACP) on the basis of an existing psychiatric or medical condition, as specified. This bill would require the CDCR to meet prescribed timeframes for the processing of ACP applications, the development of individualized treatment and rehabilitation plans (ITRPs), the provision of written notifications, and the transition of inmates to ACP. This bill would also require the CDCR to assist ACP participants in obtaining health care coverage, as specified. Fiscal Impact: CDCR administration : increase in administrative costs potentially in excess of $50,000 to $100,000 (General Fund) to develop ITRPs for all applicants, and to meet the specified timelines prescribed for processing applications, completing SB 219 (Liu) Page 1 of ? ITRPs, and transitioning inmates to ACP within five business days of acceptance to the program. ACP caseload impact : potential future cost savings (General Fund) to the extent the number of ACP participants increases as a result of the prohibition on denial due to psychiatric/medical conditions and/or to the extent inmates are transitioned to ACP more expeditiously under the prescribed timeframes. While the caseload impact is not estimated to be significant, additional inmates transitioned to ACP would result in net cost savings in incarceration, medical, dental, and mental health care costs. Background: Existing law authorizes the Secretary of the CDCR to offer a program under which female inmates who meet specified eligibility requirements may be allowed to participate in a voluntary ACP in lieu of confinement in state prison. Under existing law, eligible inmates may be permitted to serve the remainder of their sentences (24 months or less) in a residential home, a residential drug treatment program, or a transitional care facility that offers appropriate services. (Penal Code (PC) § 1170.05.) The following exclusionary criteria preclude an inmate from participation in the ACP: The person has a current conviction for a serious or violent felony. The person has a current or prior conviction for an offense requiring registration as a sex offender. The person was screened by the CDCR using a validated risk assessment tool and determined to pose a high risk to commit a violent offense. The person has a history, within the last 10 years, of escape from a facility while under juvenile or adult custody, as specified. An ACP participant must comply with all rules and regulations as prescribed by the CDCR, including participation in an ITRP, supervision by a parole agent, and electronic monitoring at all times. ACP participants are eligible for sentence reduction SB 219 (Liu) Page 2 of ? credits that they would have received had they served their sentences in state prison. Failure to comply with ACP rules or regulations may result in return to custody to complete the remainder of the original sentence. The Three-Judge Court, in its February 10, 2014, order granting a two-year extension to reduce the in-state adult inmate population to 137.5 percent of design capacity, ordered the CDCR to immediately implement several population reduction measures, including the implementation of an expanded ACP (EACP) for female inmates. According to the CDCR April 2015 Status and Benchmark Report to the Three-Judge Court, "The State's alternative custody program for females, Custody to Community Transitional Reentry Program (CCTRP), provides female inmates with a range of rehabilitative services that assist with alcohol and drug recovery, employment, education, housing, family reunification, and social support. Female inmates in the CCTRP program are housed at one of two facilities located in San Diego and Southern California. The San Diego facility, which is an 82-bed facility, is currently at full capacity. The Southern California facility, which opened on April 9, 2015, and is also an 82-bed facility, had 10 beds filled as of April 14, 2015. The State continues to transfer inmates into the Southern California facility at a rate of 5-7 inmates per week." The CDCR has indicated that since the inception of the ACP in September 2011, approximately 7,200 applications (including duplications, resubmittals, and EACP applications) have been received, of which 460 offenders have been approved and transferred to ACP status. The ACP is currently being challenged in federal court (Sassman v. Brown, 2:14-cv-01679-MCE-KJN). On July 16, 2014, a male prisoner in the custody of the CDCR filed a lawsuit in the U.S. District Court for the Eastern District of California. The plaintiff asked for declaratory and injunctive relief, claiming that California's blanket exclusion of male prisoners from the ACP violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. See Staff Comments for additional information. Proposed Law: This bill would modify the existing eligibility criteria SB 219 (Liu) Page 3 of ? and application process of the ACP as follows: Prohibits the CDCR from excluding an inmate from eligibility to participate in ACP due to an inmate's existing psychiatric or medical condition that requires ongoing care. Requires the CDCR to establish a timeline for the ACP application process, as follows: o Requires a response to an applicant within two weeks of application receipt. o Requires notification to the inmate of the ineligibility criteria of the ACP. o Requires an ITRP to be developed during two weeks following notice of receipt of application, in consultation with the inmate, during which time the decision whether to accept the inmate in the ACP shall be made. o A written notice must be provided to the inmate of acceptance or denial. o The inmate must be released to the ACP no later than five business days following notice of acceptance into the program. o The notice of denial must specify the reason for the denial. o CDCR must maintain records of all ACP applications and denial notices. o Authorizes an inmate to reapply to the ACP 30 days after notice of denial, or the decision may be appealed through normal grievance procedures. Requires the CDCR to assist an ACP participant 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. SB 219 (Liu) Page 4 of ? Specifies that to the extent not covered by a participant's health care coverage, the state retains responsibility for the medical, dental, and mental health needs of individuals participating in the ACP. Prior Legislation: SB 1266 (Liu) Chapter 644/2010 established the ACP within the CDCR under which eligible female inmates, pregnant inmates, or inmates (male or female) who were the primary caregivers of dependent children would be allowed to participate in lieu of their confinement in state prison, as specified. SB 1021 (Committee on Budget and Fiscal Review) Chapter 41/2012 modified the ACP to specify that only female inmates are eligible for the program. The bill also required that case management services be provided to support rehabilitation and to track the progress and ITRP compliance of the inmate. Staff Comments: The CDCR has indicated the provisions of this measure would result in increased administrative workload but does not anticipate an impact on participation in the ACP. While the timeframes may be achievable for many cases, the CDCR has indicated concern with the ability to meet the strict timeframes in every case, specifically with the provisions requiring completion of the ITRP and the requirement that the inmate be released into the program within five business days of acceptance to the program. The CDCR has indicated the typical ACP application process takes approximately 55 days from initiation to completion, and an inmate is typically placed into the program within 14 days of being accepted. While additional staff would better enable the CDCR to meet the timeframes imposed by the bill, the CDCR has indicated in specified circumstances it may not be possible to adhere to the specified timeframes, regardless of staff or resources. The provisions of this bill also require the CDCR to develop an ITRP for all applicants, irrespective of acceptance or denial to the ACP, which would create additional workload, as under existing law ITRPs are developed only for applicants that have SB 219 (Liu) Page 5 of ? been screened as eligible and accepted into the program. To the extent the additional administrative workload is not absorbable, increased staffing costs in excess of $50,000 to $100,000 (General Fund) per year could be incurred. The CDCR does not anticipate that the expanded criteria in the bill will impact the number of individuals released onto ACP. According to the CDCR, individuals with a psychiatric or medical condition requiring ongoing care are not currently excluded from eligibility, but are considered on a case-by-case basis. Additionally, the CDCR currently provides participating inmates with insurance and Medi-Cal assistance. As a result, no change to current procedures is anticipated. While the caseload impact is not estimated to be significant, to the extent the number of ACP participants increases and/or inmates are transitioned to ACP more expeditiously under the prescribed timeframes in the bill would result in net cost savings (General Fund) in incarceration, as well as medical, dental, and mental health care costs. Staff notes that the ACP is currently being challenged in federal court (Sassman v. Brown, 2:14-cv-01679-MCE-KJN). On July 16, 2014, a male prisoner in the custody of the CDCR filed a lawsuit requesting declaratory and injunctive relief, claiming that California's blanket exclusion of male prisoners from the ACP violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The plaintiff is a male prisoner with two children and an ailing mother with Stage IV colon cancer whom he wished to care for. He filed the lawsuit and requested a preliminary injunction due to his rejection by CDCR from participating in the program for no other reason than that he is a man. 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. 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 SB 219 (Liu) Page 6 of ? 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. 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. -- END --