BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 713 Hearing Date: April 21, 2015
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|Author: |Nielsen |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: State Government: Federal Immigration Policy
Enforcement
HISTORY
Source: Author
Prior Legislation:SB 1664 (Poochigian) Failed Senate Public
Safety, 2006
Support: California State Sheriffs' Association
Opposition:Orange County Immigrant Youth United; Asian
American's Advancing Justice Sacramento; American
Civil Liberties Union; SFOPPIA; Centro Legal de la
Raza; Congregations Building Community; Orange County
Immigrant Youth United; National Day Laborer
Organizing Network Organizing Network; California
immigrant Policy Center; Graton Day Labor Center; Napa
Valley Dream Team
PURPOSE
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The purpose of this bill is to allow for an immigration hold
when a person has been convicted of a felony which formed the
basis upon which the individual was previously deported.
Federal law provides that a person who was deported from the
United States because of specified misdemeanors or felonies and
enters, attempts to enter or is found in the United States shall
be imprisoned not more than 10 years. If he or she had been
deported for specified aggravated felonies then penalty shall be
not more than 20 years. (8 USCS § 1326 (b).)
Existing law provides that a law enforcement official shall have
the discretion to cooperate with federal immigration officials
by detaining an individual on the basis of an immigration hold
after that individual becomes eligible for release from custody
only if the continued detention of the individual on the basis
of the immigration hold would not violate any federal, state or
local policy and only under the following circumstances:
The individual has committed a serious or violent
felony;
The individual has been convicted of a felony punishable
by imprisonment in the state prison;
The individual has been convicted within the past five
years of a misdemeanor for a crime that is punishable as a
wobbler or has been convicted at any time of a felony for
any of the following offenses:
o Assault;
o Battery;
o Use of threats;
o Sexual abuse, sexual exploitation, or crimes
endangering children, as specified;
o Child abuse or endangerment;
o Burglary, robbery, theft, fraud, forgery, and
embezzlement;
o Felony DUI;
o Obstruction of justice;
o Bribery;
o Escape;
o Unlawful possession or use of a weapon,
firearm, explosive device; or weapon of mass
destruction;
o Possession of an unlawfully deadly weapon;
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o Felony possession, sale, distribution,
manufacture or trafficking of controlled substances;
o Vandalism with prior convictions;
o Gang-related offenses;
o An attempt or conspiracy to commit one of the
listed offenses;
o A crime resulting in death or involving great
bodily injury;
o Possession of a firearm in the commission of
an offense;
o A registerable sex offense;
o False imprisonment, slavery, human
trafficking;
o Criminal profiteering and money laundering;
o Torture and mayhem;
o A crime threatening the public safety;
o Elder and dependent adult abuse;
o A hate crime;
o Stalking;
o Soliciting the commission of a crime;
o A crime committed on bail or released on his
or her own recognizance;
o Rape, sodomy, oral copulation or sexual
penetration;
o Kidnapping; or,
o Fleeing the scene of a vehicular
manslaughter.
The individual is a current registrant on the California
Sex and Arson registry;
The individual is arrested and taken before a magistrate
on a charge involving a serious or violent felony, a felony
punishable by imprisonment in the state prison or any of
the listed felonies and the magistrate makes a finding of
probable cause;
The individual has been convicted of a federal crime
that meets the definition of an aggravated felony or is
identified as the subject of an outstanding federal felony
arrest warrant; and,
If none of the conditions are met an individual shall
not be detained on an immigration hold after the individual
becomes eligible for release from custody. (Government
Code § 7282.5)
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This bill provides that a person may also be detained on an
immigration hold for a felony which formed the basis upon which
the individual was previously deported.
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
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
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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 Bill
According to the author:
Existing law prohibits law enforcement from detaining
an individual on the basis of a United States
Immigration and Customs Enforcement (ICE) hold unless
he or she was previously convicted of certain
enumerated felonies.
This bill would expand that list to include the
conviction of a felony for which the individual was
previously deported. If an individual has been
deported following a felony conviction and illegally
re-enters the country he or she is subject to federal
prosecution and imprisonment of between 2 to 20 years
depending upon the gravity of the underlying offense.
This bill would authorize California law enforcement
to detain such an individual on the basis of an ICE
hold.
Luis Enrique Monroy-Bracamonte (A.K.A. Marcelo
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Marquez) was twice deported from the United States,
re-entering the country in each instance. Immigration
authorities say his fingerprints have been matched to
biometric records showing that he was first deported
after being convicted in Arizona for selling drugs in
1997.
Immigration officials say Monroy-Bracamonte was last
deported in 2001 following arrest for drug and weapons
violations. On April 21, 2003 Monroy-Bracamonte using
the name "Marcelo Marquez" was arrested for
misdemeanor hit-and-run and making a false police
report. He pleaded guilty, received a year of
probation and was fined about $500. Utah court
records indicate that Monroy-Bracamonte accumulated 10
misdemeanor vehicle violations between 2003 and 2009.
Under current California law, none of these prior
offenses would be sufficient to permit local law
enforcement to detain Monroy- Bracamonte subject to an
ICE hold.
Last year, Monroy-Bracamonte engaged in a six hour
crime spree during which Placer County Detective
Michael Davis Jr. and Sacramento County Deputy Danny
Oliver were both shot and killed. He has since been
charged with 14 felony counts including the murders of
Officers Davis and Oliver, four car- jackings and the
attempted murder of three deputies and a civilian.
This case exposes impediments in the criminal justice
process that shielded Monroy-Bracamonte from being
returned to federal custody for prosecution prior to
his violent rampage.
SB 713 would simply close a gap in current law so that
local law enforcement would be authorized to honor an
ICE hold if the subject is a previously deported
felon.
2. Immigration Holds
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Existing law permits law enforcement to detain an individual on
an immigration hold upon release from custody only if certain
conditions are met including whether the individual has been
convicted of one of a number of specified offenses. This bill
would add to the list of crimes which allow for an immigration
hold "a felony which formed the basis upon which the individual
was previously deported."
It is not clear how the law enforcement official will be able to
determine whether a felony formed the basis on which the
individual was deported without a transcript of the deportation
proceedings. Evidence of a past felony is not in and of itself
proof that that was the reason for deportation. Will this only
apply when the agency can show the connection between the felony
and the deportation?
3. Support
In support the California State Sheriffs' Association states:
California law prohibits law enforcement from
detaining an individual on the basis of an ICE hold
unless that person was previously convicted of
specified felonies, but fails to include the
conviction of a felony for which the individual was
previously deported. Senate Bill 713 amends
California law to conform to the Policies for
Apprehension, Detention and Removal of Undocumented
Immigrants memorandum as set forth by the Department
of Homeland Security on November 20, 2014.
4. Opposition
A number of groups oppose this bill stating:
Just four months after the law's enactment, a ruling
from a federal district judge in Oregon confirmed this
warning and found that ICE holds violate the United
States Constitution. In Miranda-Olivares vs.
Clackamas, the court held that the detention of a
woman in Clackamas County, Oregon, on an ICE hold
violated the Fourth Amendment's protection against
unreasonable search and seizure and ordered that
damages be paid. Since then, hundreds of jurisdictions
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across the nation have stopped submitting to these
unconstitutional requests altogether.
The TRUST Act and the city and county policies which
have built on its protections are key public safety
tools, helping communities across California gain the
confidence to work with their local law enforcement to
solve crimes. This is particular vital in light of
research demonstrating that local law enforcement's
entanglement with the deportation system has severely
undercut confidence in police and Sheriffs in Latino
and immigrant communities.
We believe it is imperative that the isolated actions
of one individual not be held against entire
communities of people who are part of the fabric of
our state. We express in the strongest terms our
condemnation of the murders of Sacramento County
Sheriff's Deputy Danny Oliver and Placer County
Sheriff's Detective Michael David Davis, Jr.
As the Sacramento Bee Editorial Board powerfully noted
in its October 29, 2014 Editorial, this is "[a] story
about murder, not immigration failure". The editorial
board lamented the response of "anti-immigration
zealots" to this tragic case, who "can hang most any
calamity at the feet of the millions of undocumented
immigrants."
The way forward must be anchored in our values of
accountability, equality, and fairness - not
fear-mongering.
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