BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                                2015 - 2016  Regular 

          SB 219 (Liu) - Prisons:  alternative custody program
          
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          |Version: March 26, 2015         |Policy Vote: PUB. S. 5 - 2      |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: April 20, 2015    |Consultant: Jolie Onodera       |
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          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  







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            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  








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          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  








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          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.








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                 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  








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          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  








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               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. 


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