BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 219|
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                                UNFINISHED BUSINESS 


          Bill No:  SB 219
          Author:   Liu (D), et al.
          Amended:  7/9/15  
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  5-2, 4/7/15
           AYES:  Hancock, Leno, Liu, McGuire, Monning
           NOES:  Anderson, Stone

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/28/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           SENATE FLOOR:  24-14, 6/2/15
           AYES:  Allen, Beall, Block, De León, Glazer, Hall, Hancock,  
            Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva,  
            Liu, Mendoza, Mitchell, Monning, Pan, Pavley, Roth,  
            Wieckowski, Wolk
           NOES:  Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,  
            Huff, Moorlach, Morrell, Nguyen, Nielsen, Runner, Stone, Vidak
           NO VOTE RECORDED:  Galgiani, McGuire

           ASSEMBLY FLOOR:  61-15, 8/27/15 - See last page for vote

           SUBJECT:   Prisons: alternative custody


          SOURCE:    Californians for a Responsible Budget
                     Justice Now


          DIGEST:  This bill (1) provides that an inmates 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)  








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          voluntary alternative custody program (ACP); (2) requires CDCR  
          to meet a variety of timeframes in processing applications for  
          ACP; and, (3) requires CDCR to assist individuals participating  
          in ACP in obtaining health care coverage, including, but not  
          limited to Medi-Cal benefits.




          Assembly Amendments state that, except as necessary to comply  
          with any release notification requirements, the inmate must be  
          released to the program no later than seven business days  
          following notice of acceptance into the program, or if this is  
          not possible in the case of an inmate to be placed in a  
          residential drug or treatment program or in a transitional care  
          facility, the first day a contracted bed becomes available at  
          the requested location.


          ANALYSIS:   


          Existing law: 


          1)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.)  


          2)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  








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            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).)  


          3)States, in Penal Code Section 1170.05 (b), that an ACP must  
            include, but not be limited to, the following:


             a)   Confinement to a residential home during the hours  
               designated by CDCR.


             b)   Confinement to a residential drug or treatment program  
               during the hours designated by CDCR.


             c)   Confinement to a transitional care facility that offers  
               appropriate services.


          4)States, in Penal Code Section 1170.05 (c) and (d), that 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: 


             a)   Has a current conviction for a violent felony as defined  
               in Section 667.5.


             b)   Has a current conviction for a serious felony as defined  
               in Sections 1192.7 and 1192.8.


             c)   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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             d)   Was screened by CDCR using a validated risk assessment  
               tool and determined to pose a high risk to commit a violent  
               offense.


             e)   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.


          5)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).)


          6)Requires CDCR to create, and the participant must agree to and  
            fully participate in, an individualized treatment and  
            rehabilitation plan.  When available and appropriate for the  
            individualized treatment and rehabilitation plan, CDCR 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).) 


          7)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  








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            the determination of eligibility for participation and the  
            type of alternative custody.  (Penal Code § 1170.05 (i).)


          8)Permits the secretary or his or her designee to permit program  
            participants to seek and retain employment in the 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 he or 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).)


          9)Allows CDCR to administer an ACP pursuant to written contracts  
            with appropriate public agencies or entities to provide  
            specified program services.  CDCR is required to determine the  
            recidivism rate of each participant in an alternative custody  
            program.  (Penal Code § 1170.05 (l).)


          10)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).)


          11)         Requires the state to retain responsibility for the  
            medical, dental, and mental health needs of individuals  
            participating in ACP. (Penal Code § 1170.05 (n).)








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          This bill: 


          1)Provides 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.

          2)Prescribes 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.  Requires a notice of denial to specify the  
            reasons the inmate has been denied participation in the  
            program, and authorizes an inmate to reapply for participation  
            in the program or appeal a denial, as specified.

          3)Requires 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.  Requires 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.
          
          Background

          According to information provided by CDCR, as of March 17, 2015,  
          there were  67 offenders in the ACP.  At that time, CDCR had  
          approximately 440 active ACP/EACP (enhanced ACP) applications at  
          various stages of the process.  Applications are generally  
          screened within three to five 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."  









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          An Individual Treatment Rehabilitative Plan (ITRP) is requested  
          once the application is screened for criteria eligibility.  The  
          ITRP is generally completed within five 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 bill 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 is found eligible for participation in 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 bill, additionally, requires CDCR to assist individual's  
          participating in ACP to obtain health care coverage, including  
          Medi-Cal benefits. 
          
          Comments

          ACP 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: 

               CDCR has repeatedly made clear that the primary  
               objectives of the ACP are family reunification and  
               community reintegration.  However, since all women are  








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               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. (Sassman v. Brown, 2014  
               U.S. Dist. LEXIS 146536 (E.D. Cal., 2014) (Citations  
               Omitted).) 
               
          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Assembly Appropriations Committee, the fiscal  
          impact includes increased administrative costs to CDCR in the  
          $100,000 (General Fund) range to meet the specified timelines  
          and process appeals.   


          SUPPORT:   (Verified8/27/15)


          Californians for a Responsible Budget (co-source)
          Justice Now (co-source)
          A New PATH
          AllCare Alliance
          California Attorneys for Criminal Justice
          California Catholic Conference
          California Coalition for Women Prisoners
          California Families Against Solitary Confinement
          California Partnership
          California Public Defenders Association








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          Californians for Safety and Justice
          Center on Juvenile Justice and Criminal Justice
          Communities United or Restorative Youth Justice
          Courage Campaign 
          Dignity and Power Now
          Ella Baker Center for Human Rights
          Friends Committee on Legislation of California
          Returning Home Foundation
          The Los Angeles Regional Reentry Partnership
          Western Regional Advocacy Project 
          Women's Prison Association
          Two individuals


          OPPOSITION:   (Verified8/27/15)


          None received


          ARGUMENTS IN SUPPORT:     


          According to the Californians for Safety and Justice:


               We write in support of SB 219 (Liu), a bill that would  
               codify and expand access to the existing Alternative  
               Custody Program by enacting a responsible timeline for  
               application review and provide applicants with an  
               opportunity to appeal.  This bill would ensure that all  
               state-incarcerated women eligible for acceptance into ACP  
               are part of a more transparent, informed process, and  
               removes some significant barriers for program entry.  


               The Alternative Custody Program is a great way for women  
               who are the primary caregiver for their children to  
               retain their close family ties, reducing their likelihood  
               of recidivating, reduce foster care placements of their  
               children, and help to end the intergenerational cycle of  
               incarceration.  








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          ASSEMBLY FLOOR:  61-15, 8/27/15
          AYES:  Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown,  
            Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper,  
            Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia,  
            Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger  
            Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine,  
            Lopez, Low, Maienschein, McCarty, Medina, Melendez, Mullin,  
            Nazarian, O'Donnell, Olsen, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  
            Stone, Thurmond, Ting, Waldron, Weber, Williams, Wood, Atkins
          NOES:  Travis Allen, Bigelow, Brough, Chang, Dahle, Beth Gaines,  
            Gallagher, Grove, Harper, Jones, Linder, Mathis, Obernolte,  
            Wagner, Wilk
          NO VOTE RECORDED:  Burke, Frazier, Mayes, Patterson


          Prepared by:Jessica  Devencenzi / PUB. S. / 
          8/28/15 14:08:56


                                   ****  END  ****