BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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6
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AB 760 (Nava)
As Introduced February 18, 2005
Hearing date: June 21, 2005
Penal Code
AA:br
CHILDREN OF INCARCERATED PARENTS
HISTORY
Source: Author
Prior Legislation: AB 1941 (Chan) - 2004; held in Senate
Appropriations Committee
AB 2316 (Mazzoni) - Ch. 965, Stats. 2000
AB 2315 (Mazzoni) - vetoed September 29, 2000
ACR 52 (Mazzoni) - no vote taken in Assembly
Appropriations, 1999-2000
SB 1802 (Schiff) - no vote taken on Assembly Floor,
1998
SB 1221 (Calderon) - Ch. 132, Stats.1996
SB 475 (Presley) - Ch. 820, Stats.1991
ACR 38 (Filante) - Ch. 38, Stats. 1991
AB 4289 (Mojonnier) - no vote taken in Assembly
Judiciary, 1986
AB 836 (Mojonnier) - Ch. 440, Stats.1985
SB 304 (Presley) - Ch. 309, Stats.1983
SB 14 (Presley) - Ch.978, Stats.1982
SB 276 (Garcia) - Ch. 1088, Stats.1977
Support: California Catholic Conference of Bishops; Office of
the Attorney General; California Commission on the
Status of Women; California Public Defenders
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Association; Drug Policy Alliance Network; Friends
Committee on Legislation; Girl Scout Councils of
California; Los Angeles Affiliate of the National
Association of Counsel for Children; National
Association of Social Workers, California Chapter;
Office of the Attorney General; California Judges
Association; Juvenile Court Judges of California
Opposition:None known
Assembly Floor Vote: Ayes 72 - Noes 6
KEY ISSUES
UPON QUESTIONING DURING THE BOOKING PROCESS, SHOULD AN ARRESTED
PERSON WHO IS IDENTIFIED AS A CUSTODIAL PARENT WITH RESPONSIBILITY
FOR A MINOR CHILD BE ENTITLED TO MAKE THREE ADDITIONAL CALLS, AS
SPECIFIED, IF THE CALLS ARE COMPLETED FOR THE PURPOSE OF ARRANGING
FOR THE CARE OF THE MINOR CHILD OR CHILDREN IN THE PARENT'S ABSENCE?
SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING (POST)
BE REQUIRED TO DEVELOP GUIDELINES AND TRAINING, AS SPECIFIED, FOR
USE BY STATE AND LOCAL LAW ENFORCEMENT OFFICERS TO ADDRESS ISSUES
RELATED TO CHILD SAFETY WHEN A CARETAKER PARENT OR GUARDIAN IS
ARRESTED?
SHOULD OTHER PROVISIONS REGARDING THE SENTENCING AND IMPRISONMENT OF
INMATES WHO ARE THE SOLE CUSTODIAL PARENTS OF MINOR CHILDREN BE
ADDED TO THE PENAL CODE, AS SPECIFIED?
SHOULD LEGISLATIVE INTENT BE ENACTED THAT THE LEGISLATURE ENCOURAGES
LAW ENFORCEMENT AND CHILD WELFARE AGENCIES TO DEVELOP PROTOCOLS IN
COLLABORATION WITH OTHER LOCAL ENTITIES, AS SPECIFIED, REGARDING HOW
TO BEST COOPERATE IN THEIR RESPONSE TO THE ARREST OF A CARETAKER
PARENT IN A HOME IN WHICH A MINOR CHILD RESIDES?
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PURPOSE
The purposes of this bill are to 1) state that it is the intent
of the Legislature to encourage law enforcement and child
welfare agencies to develop protocols in collaboration with
other local entities, as specified, regarding how to best
cooperate in their response to the arrest of a caretaker parent
in a home in which a minor child resides; 2) require that if,
during the booking process, an arrested person is identified as
a custodial parent with responsibility for a minor child, the
arrested person shall be entitled to make three additional phone
calls, as specified, for the purpose of arranging for the care
of the minor child or children in the parent's absence; 3) add
inmates who are the sole custodial parents of minor children to
the category of inmates for whom the Legislature encourages the
development of policies and programs designed to educate and
rehabilitate; 4) state that material in probation officer
reports submitted to the court shall include a defendant's
custodial responsibilities for minor children; 5) state that
local correctional administrators should especially consider
low-risk offenders who are the sole custodial parents of minor
children for participation in a home detention program in lieu
of post-sentence confinement in the county jail; and 6) require
the Commission on Peace Officer Standards and Training (POST) to
develop guidelines and training, as specified, for use by state
and local law enforcement officers to address issues related to
child safety when a caretaker parent or guardian is arrested.
Existing law does the following:
Provides that immediately upon being booked and, except where
physically impossible, no later than three hours after arrest,
an arrested person has a right to make at least three
completed phone calls, as specified. (Penal Code 851.5.)
Finds and declares that it is the Legislature's intent to
develop policies and programs designed to educate and
rehabilitate non-violent, first-time felony offenders
consistent with the purpose of imprisonment. (Penal Code
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1170(a)(2).)
States that the Judicial Council shall seek to promote
uniformity in sentencing by the adoption of rules
standardizing the minimum content and the sequential
presentation of material in probation officer reports
submitted to the court. (Penal Code 1170.3(b).)
Authorizes a county board of supervisors to offer a program
under which minimum security inmates and low-risk offenders
committed to a county jail, granted probation, or
participating in a work furlough program may voluntarily
participate in a home detention program in lieu of
confinement in the county jail. (Penal Code 1203.016(a).)
Establishes POST to develop and implement training programs
to increase the effectiveness of law enforcement agencies.
POST is authorized to do any and all things necessary or
convenient to enable it to fully and adequately perform its
duties and to exercise the power granted to it. POST may
adopt such regulations as deemed necessary. (Penal Code
13500, 13503, and 13506.)
Existing Rules of Court state that facts relating to the
defendant - including the likely effect of imprisonment on the
defendant and his or her dependents, and the adverse collateral
consequences on the defendant's life resulting from the felony
conviction - shall affect the decision to grant or deny
probation. (California Rule of Court 4.414(b)(5)-(6).)
This bill does the following:
States that it is the intent of the Legislature to encourage
law enforcement and child welfare agencies to develop
protocols in collaboration with other local entities, which
may include local educational, judicial, correctional, and
community-based organizations, when appropriate, regarding how
to best cooperate in their response to the arrest of a
caretaker parent in a home in which a minor child resides, to
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ensure the child's safety and well-being.
States that if, upon questioning during the booking process,
an arrested person is identified as a custodial parent with
responsibility for a minor child, the arrested person be shall
be entitled to make three additional phone calls at no expense
if the calls are completed to telephone numbers within the
local calling area to a relative or other person for the
purpose of arranging for the care of the minor child or
children in the parent's absence.
Adds inmates who are the sole custodial parents of minor
children to the category of inmates for whom the Legislature
encourages the development of policies and programs designed
to educate and rehabilitate.
States that material in probation officer reports submitted to
the court shall include a statement about a defendant's
custodial responsibilities for minor children.
States that local correctional administrators should
especially consider low-risk offenders who are the sole
custodial parents of minor children for participation in a
home detention program in lieu of post-sentence confinement in
the county jail.
Requires the Commission on Peace Officer Standards and
Training (POST) to develop guidelines and training for use by
state and local law enforcement officers to address issues
related to child safety when a caretaker parent or guardian is
arrested. The guidelines and training must, at a minimum,
address the following:
Procedures to ensure that officers and custodial
employees inquire whether an arrestee has minor dependent
children without appropriate supervision.
Authorizing additional telephone calls by arrestees so
that they may arrange for the care of minor dependent
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children.
Use of county child welfare services, as appropriate and
other similar service providers to assist in the placement
of dependent children when the parent or guardian is unable
or unwilling to arrange suitable care for the child or
children.
Identification of local governmental or nongovernmental
agencies able to provide appropriate custodial services.
Temporary supervision of minor children to ensure their
safety and well-being.
Sample procedures to assist state and local law
enforcement agencies to develop ways to ensure the safety
and well-being of children when the parent or guardian has
been arrested.
Requiring the commission to use appropriate subject
matter experts, including representatives of law
enforcement and county child welfare agencies, in
developing the guidelines and training required by this
section.
COMMENTS
1. Need for This Bill
The author states:
AB 760 addresses the fact that state law provides
very limited direction on how the criminal justice
authorities should interact with the families and
children of incarcerated parents. Currently, law
and practice do not require the arresting officer
to inquire of arrestees if they have children who
may need care and supervision in the arrestees'
absence. Especially, when a parent is arrested
without his or her children present, there are no
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established guidelines for ascertaining whether
the children will need supervision while their
parent is detained or incarcerated. AB 760
provides several measures during arrest, jail
intake, probation evaluation, and sentencing that
serve to protect the safety and well-being of
children who have a parent who is arrested or
incarcerated.
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2. Children of Incarcerated Parents
According to the California Research Bureau publication
"California Law and the Children of Prisoners" (February 2003),
nationwide, an estimated 1.5 million children had a parent in
state or federal prison in 1999; 22% of those children were
under five years old. The California sample of this survey
found that two-thirds of the state's male prison inmates and 79%
of female prison inmates were parents with an average of 2.5
children for the men and 2.9 children for the women. This data
closely tracks a 1995 survey of California women prisoners,
which found that 80% of female prison inmates had two or more
children and about two-thirds had minor children (ages 18 and
younger). California jails and prisons held 352,732 adult
prisoners in mid 2002. Women comprise about 12%of the adults in
jail, and 6%of the prison population. Based upon these numbers
and the 1995 California survey data, there are an estimated
846,980 children who have parents in California's jails and
prisons.
3. Parental Arrest Effects on Children
Additionally, according to the above publication, the trauma of
an arrest event and the resulting parent-child separation can
have a profound effect on a child's development, lasting well
into adulthood. Emotional reactions to the arrest can include
denial, anger, anxiety, inability to concentrate, depression,
sadness, grief shame and fear. Often, there are negative
behavioral manifestations that may include difficulty sleeping,
poor school performance, truancy, use of alcohol or drugs, and
delinquency and intergenerational conflict. A study of the
children of 70 mothers awaiting trial in Boston, Massachusetts,
found that 52% suffered from at least one major psychological
disturbance (anxiety, depression, and hyperactivity), making it
difficult to succeed in school. Over one-third of the children
were enrolled in special education classes because of emotional
issues; one-third had repeated a grade. Many of these children
exhibited aggressive and violent behavior, making it ". . .
unlikely they will become successful adults without early
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intervention by social service agencies."
4. Law Enforcement and Children of Prisoners
The California Research Bureau also noted that parents are
sometimes arrested in their children's presence, particularly
young children who are not yet in school. If the child is not
present at the arrest (for instance, the child is at school), he
or she may come home to an empty house and not know what
happened to the parent. Children may be exposed to a repeating
pattern of parental arrest, with the resulting trauma and change
in caregivers. For example, a study of women incarcerated in
three Montana state prisons found that they had previously been
in jail an average of 7.3 times. Thus, law enforcement is
frequently and intensively involved with these families.
California law does not directly address the responsibility of
an arresting officer for a child, whether the child is present
at the time of parental arrest or not, and there are very few
local police guidelines or protocols to guide an officer's
response. The result is a range of ad hoc decisions made by
officers in the field. Law enforcement officers are necessarily
focused on making sure that the arrest is accomplished in a safe
manner. Dealing with children is not part of a law enforcement
officer's primary duty, nor are most law enforcement officers
trained as to an appropriate response.
DOES THE DEVELOPMENT OF GUIDELINES AND TRAINING AS PROVIDED BY
THIS BILL ADEQUATELY EQUIP LAW ENFORCEMENT OFFICERS TO ADDRESS
ISSUES RELATED TO CHILD SAFETY WHEN A CARETAKER PARENT OR
GUARDIAN IS ARRESTED?
5. Children of Incarcerated Parents and Crime
At the February 5, 2004, California Family Impact Seminar
representatives from the Criminal Justice Policy Research
Institute stated that "many of the responses to parental absence
due to incarceration . . . are predictors of later criminal
behavior." An investment of law enforcement services and social
services when a parent is arrested, sentenced, and incarcerated
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arguably could mitigate the prevalence of intergenerational
cycles of crime, thereby potentially preventing future crime.
6. Criteria Affecting Probation
Current Rules of Court require that the criteria affecting the
decision to grant or deny probation include the likely effect of
imprisonment on the defendant and his or her dependents.
(California Rule of Court 4.414(b)(5).) This requirement seems
to assume that information regarding the dependents of the
defendant is included in the probation officer reports submitted
to the court. This bill clarifies, in Penal Code Section
1170.3, that probation officer reports shall include information
regarding a defendant's custodial responsibilities for minor
children.
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