BILL ANALYSIS SENATE COMMITTEE ON JUDICIARY David Roberti, Chairman 1993-94 Regular Session AB 87 (Conroy) As amended April 21, 1994 Hearing date: April 26, 1994 Penal Code BAF:rs ILLEGAL ALIENS: INCARCERATION IN MEXICO HISTORY Source: Author Prior Legislation: SB 1258 (1993) - vetoed Support: Alliance of California Taxpayers; Federation for American Immigration Reform; California Correctional Peace Officers Association; Citizens for Responsible Immigration; Doris Tate Crime Victims Bureau. Opposition: Department of Corrections; California Probation, š Parole and Correctional Association; American Civil Liberties Union; Friends Committee on Legislation of California; Prisoners' Rights Union Assembly Floor vote: Ayes 56 - Noes 13 KEY ISSUE SHOULD THE DEPARTMENT OF CORRECTIONS, IN CONSULTATION WITH THE CALIFORNIA ATTORNEY GENERAL, THE MEXICAN GOVERNMENT, AND THE UNITED šSTATES ATTORNEY GENERAL'S OFFICE, BE REQUIRED TO CONDUCT A TWO-YEAR šSTUDY OF WAYS TO REDUCE THE FINANCIAL BURDEN OF INCARCERATING šILLEGAL ALIENS ACCUSED AND CONVICTED OF FELONIES IN THE STATE OF šCALIFORNIA, INCLUDING 1) THE TRANSFER OF UNDOCUMENTED ALIENS FROM šSTATE AND LOCAL LAW ENFORCEMENT AGENCIES TO THE INS OR ANY OTHER šFEDERAL AGENCY AT THE EARLIEST DATE FOLLOWING INITIAL DETENTION AND šPRIOR TO TRIAL OR IMMEDIATELY FOLLOWING SENTENCING, AND 2) šCONSTRUCTING AND MAINTAINING A MEN'S PRISON IN BAJA CALIFORNIA, šMEXICO, RUN BY THE MEXICAN GOVERNMENT AND PURSUANT TO AN AGREEMENT šBETWEEN THE STATE OF CALIFORNIA AND MEXICO, AUTHORIZED BY THE šUNITED STATES GOVERNMENT AND MEXICO? (More) AB 87 (Conroy) Page 2 PURPOSE 1. Existing law Existing law requires the Department of Corrections to implement šand maintain procedures to identify inmates serving terms in state šprison who are illegal aliens subject to deportation, and to refer što the INS the name and location of any inmate for a determination šof whether the inmate is undocumented and subject to deportation. 2. This bill This bill would require the Department of Corrections, in šconsultation with the California Attorney General, the Mexican šGovernment, and the United States Attorney General's Office, to šconduct a two-year study of ways to reduce the financial burden of šincarcerating illegal aliens accused and convicted of felonies in šthe state of California, including 1) the transfer of undocumented šaliens from state and local law enforcement agencies to the INS or šany other federal agency at the earliest date following initial šdetention and prior to trial or immediately following sentencing, šand 2) instructing and maintaining a men's prison in Baja šCalifornia, Mexico, run by the Mexican Government and pursuant to šan agreement between the State of California and Mexico, authorized šby the United States Government and Mexico. The study would include a review of relevant law and procedural šconsiderations, and proposed legislation, identification of funding šsources, and a discussion of the fiscal impact of proposed šmeasures. The Department of Corrections would be required to complete its šstudy on January 1, 1997, and report its findings to the šLegislature no later than July 1, 1997. The purpose of this bill is to require CDC to study the feasibility šof transferring undocumented aliens from state and local law šenforcement agencies to the INS or any other federal agency at the šearliest date following initial detention and prior to trial or šimmediately following sentencing, and constructing and maintaining ša men's prison in Baja California, to be operated by Mexico, to šallow the deportation for incarceration in Mexico of illegal aliens šwho have been convicted of felonies in California. COMMENT 1. This bill was heard before in committee This bill previously failed passage on a vote of 5-1. Recent amendments broaden the scope of the study, and address some of (More) AB 87 (Conroy) Page 3 the constitutional concerns raised in a prior analysis, including California's inability to enter into treaties with šother countries. The bill now requires agreements to be šauthorized by the United States and Mexico. 2. Need for bill The author believes that it costs too much to incarcerate such aliens in California prisons. He has introduced this bill to study ways to address this problem. 3. Cost of incarcerating illegal aliens in California According to the Governor's 1994-95 Budget Summary, by 1994-95 there will be more than 18,000 illegal immigrants in state prison in California. According to the Budget Summary, California taxpayers have spent over a billion dollars in the last five years to keep illegal alien felons in prison, and the cost of incarcerating them in fiscal year 1994-95 is projected to exceed $ 375 million. 4. Language unclear According to the bill, the purpose of constructing a prison in Mexico would be to "enable the deportation for incarceration of illegal aliens who have been convicted of felonies in the State of California." It is not clear whether the author intends that all aliens, including those not from Mexico, be incarcerated in a Mexican prison. 5. Due process IF THE ALIEN IS CONVICTED, BUT HAS NOT YET EXHAUSTED HIS APPEALS, IS IT A VIOLATION OF THE ALIEN'S RIGHT TO DUE PROCESS TO INCARCERATE HIM IN A MEXICAN PRISON? The author indicates that one of the purposes of the study would be to study relevant federal law and procedural considerations; presumably this includes constitutional considerations. 6. Equal protection The bill states that "upon conviction of a felony in California, illegal aliens! would be sentenced to serve š their! term in the Baja California prison."š However, federal law provides that: (More) AB 87 (Conroy) Page 4 Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges or immunities secured or protected by the šConstitution or laws of the United States, or to different špunishments, pains, or penalties, on account of such inhabitant šbeing an alien...than are prescribed for the punishment of šcitizens, shall be fined...or imprisoned..." 18 U.S.C. 242 š(emphasis added). For purposes of the above statute, the term "alien" includes illegal aliens. U.S. v. Otherson, C.A.Cal.1980, 637 F.2d 1276, cert. denied 102 S.Ct. 149; U.S. v. Contreras, C.A. 5 (Tex) 1991, 950 F.2d 232. Cert denied, 112 S.Ct. 2276. GIVEN THAT DIFFERENT RIGHTS AND PUNISHMENTS MIGHT EXIST IN A PRISON OPERATED IN MEXICO, COMPARED TO A PRISON OPERATED IN CALIFORNIA, MIGHT IT BE A VIOLATION OF FEDERAL LAW, TO DEPORT AND INCARCERATE A CALIFORNIA INMATE IN A MEXICAN PRISON? Hopefully the study would address such concerns. 7. Federal law precludes deportation until sentence is over Federal law provides that deportation of aliens incarcerated in the United States may occur only "when the sentence is over." 132 Cong. Rec. H9794 (October 9, 1986), as cited in Stoler v. Scott, 942 F.2d 597, 600 (9th Cir. 1991). Federal law additionally provides that the Attorney General shall take into custody any alien convicted of an aggravated felony only "upon release of the alien." 8 U.S.C. 1252(a)(2)(A) (emphasis added). For this reason, the Governor vetoed SB 1258, Torres, 1993, which would have required the California Department of Corrections (CDC) to identify all illegal alien inmates within 72 hours of their reception by the department and to transfer undocumented prisoners to the United States Immigration and Naturalization Service within 48 hours of identification. The Governor's veto message expressed the concern that: ...CDC not only cannot compel USINS to accept such prisoners, but in fact federal law precludes the U.S. Department of Justice from taking custody at all until an illegal immigrant felon has completed serving his sentence in state prison. As a result, this bill could cause the unintended but gravely dangerous travesty that thousands of convicted alien criminals would be released or deported to Tijuana by USINS only to promptly return illegally to California (More) AB 87 (Conroy) Page 5 to harm new victims. This would create an unconscionably dangerous situation for California citizens. 8. Opposition The Department of Corrections opposes the bill "unless the measure is amended to provide an appropriation of at least $175,000 to conduct the required study." SHOULD THIS BE DONE? The California Probation, Parole, and Correctional Association opposes the bill stating that "AB 87 is built on a number of flawed assumptions, not the least of which is that all undocumented people come to this country from Mexico. Why would the government of Mexico feel it necessary to house prisoners who had broken a law in California? Who would operate this California built prison in Mexico?" The American Civil Liberties Union opposes AB 87 because the whole "purpose is constitutionally suspect." Friends Committee on Legislation opposes AB 87 because "in its current fiscal situation, California is in no position to spend money on a study such as this". *********