BILL ANALYSIS
ACR 140
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Date of Hearing: May 4, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
ACR 140 (Adams) - As Introduced: February 25, 2010
As Proposed to be Amended in Committee
SUMMARY : Urges the Governor to demand that the federal Bureau
of Justice Assistance (BJA) reimburse the State of California
for all costs of incarcerating undocumented foreign aliens.
Specifically, this bill :
1)Declares all of the following:
a) Immigration policy and controlling the nation's borders
are clear, fundamental responsibilities of the federal
government.
b) The federal government has failed to discharge its
fundamental responsibilities, and, as a consequence,
high-impact states such as California face extraordinary
costs associated with incarcerating undocumented foreign
nationals.
c) The federal State Criminal Alien Assistance Program
(SCAAP), governed by the federal Immigration and
Nationality Act, requires the Federal Government to
reimburse the State of California and local governments for
the cost of incarcerating undocumented foreign nationals.
d) SCAAP provides federal payments to states and localities
that incur costs for incarcerating criminals who were born
outside the United States or one of its territories and
have no reported or documented claim to United States
citizenship, who have at least one felony or two
misdemeanor convictions for violations of state or local
law, and who are incarcerated for at least four consecutive
days during the reporting period.
e) The United States Department of Justice (DOJ) through
the federal BJA administers SCAAP, in conjunction with the
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Bureau of Immigration and Customs Enforcement (ICE),
Department of Homeland Security.
f) The annual cost of incarcerating an inmate in state
prison is now $51,670, according to statistics from the
Legislative Analyst's Office (LAO).
g) For the last reporting period by the BJA, the State of
California received $118,030,160 in reimbursement for
32,806 eligible inmates, a return of $3,598 per inmate.
h) Much of the incarcerating costs are borne by counties
and cities, most of which traditionally operate with slim
budgets and staffing.
i) For the last reporting period by the BJA, counties and
cities in California received $43,717,418 in reimbursement
for 66,386 eligible inmates, a return of $659 per inmate.
j) Despite the continued increasing costs associated with
the incarceration of undocumented foreign nationals, no
funds are provided for SCAAP for the purposes of assisting
states, in the President's 2010 budget request.
aa) The Federal Government has not met its national
immigration policy obligations or adequately compensated
the State of California or its local governments for the
costs of incarcerating undocumented foreign nationals in
its prisons and jails.
2)Requires the Chief Clerk of the Assembly transmit copies of
this resolution to the President and Vice President of the
United States, to the Speaker of the House of Representatives,
and to each Senator and Representative from California in the
Congress of the United States.
EXISTING LAW :
1)Defines the term "alien" as "any person not a citizen or
national of the United States". [8 U.S.C. Section
1101(a)(3).]
2)Specifies that the Attorney General (AG) may not remove an
alien who is sentenced to imprisonment until the alien is
released from imprisonment. States that parole, supervised
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release, probation, or the possibility of arrest or further
imprisonment is not a reason to defer removal. [8 U.S.C.
Section 1231(a)(4).]
3)States that no cause or claim may be asserted under 8 U.S.C.
Section 1231(4) against any official of the United States or
of any state to compel the release, removal, or consideration
for release or removal of any alien. [8 U.S.C. Section
1231(a)(4)(D).]
4)States that for purposes of this subsection, "undocumented
criminal alien" is defined as an alien who [8 U.S.C. Section
1231(i)(3)]:
a) Has been convicted of a felony or of two misdemeanors;
and,
b) Entered the United States without inspection at any time
or place other than as designated by the AG;
i) Was the subject of exclusion or deportation
proceedings at the time he or she was taken into custody
by California; or,
ii) Was admitted as a nonimmigrant and at the time he or
she was taken into custody by California has failed to
maintain the nonimmigrant status in which the alien was
admitted or to which it was changed, as specified, or to
comply with the conditions of any such status.
5)Provides for the arrest and detention of an alien pending a
decision on whether the alien is to be removed from the United
States. [8 U.S.C. Section 1226(a).]
6)States that the AG shall take into custody specified
inadmissible and deportable aliens who have committed
specified crimes, when the alien is released, without regard
to whether the alien is released on parole, supervised release
or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense. [8 U.S.C.
Section 1226(c)(1).]
7)Allows the AG to release from custody criminal aliens only
under specific circumstances, and states that a decision to
release such an alien shall take place in accordance with a
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procedure that considers the severity of the offense committed
by the alien. [8 U.S.C. Section 1226(c)(2).]
8)States that the AG's discretionary judgment regarding the
custody of criminal aliens shall not be subject to review.
Provides that no court may set aside any action or decision by
the AG regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole. [8 U.S.C.
Section 1226(e).]
9)Creates specified exceptions for removal of nonviolent
offenders prior to completion of their sentence of
imprisonment [8 U.S.C. Section 1231(a)(4)(B)]:
10)States in the case of an alien in the custody of a state, or
a political subdivision of a state, if the chief state
official exercising authority with respect to the
incarceration of the alien determines that the alien is
confined for a non-violent offense, (with specified
exceptions); the removal is in the best interest of the state,
and submits a written request to the AG that such alien be so
removed. [8 U.S.C. Section 1231(4)(A)(ii).]
11)States that no cause or claim may be asserted under 8 U.S.C.
Section 1231(4) against any official of the United States or
of any state to compel the release, removal, or consideration
for release or removal of any alien. [8 U.S.C. Section
1231(a)(4)(D).]
12)Provides that any alien who has been denied admission to the
United States, excluded, deported or removed, or who has
departed the United States while an order of exclusion,
deportation or removal is outstanding, and thereafter enters
or attempts to enter the United States, or except as
specified, is found in the United States, shall be fined,
imprisoned for two years or both. [8 U.S.C. Section 1326(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SCAAP, which is
part of the Immigration and Nationality Act, requires the
Federal Government to reimburse state and local governments
for costs associated with incarcerating undocumented foreign
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nationals. The Federal Government's failure to compensate our
state for these costs has severely exacerbated problems in our
prisons related to funding and overcrowding.
"For the last reporting period, the State of California received
just over $118 million for 32,806 eligible inmates - roughly
$3,600 per inmate - pennies on the dollar when the LAO
estimates that the annual cost of incarcerating an inmate in a
state prison is actually $51,670.
"Counties and cities fare even worse. For the last reporting
period, they received just under $44 million in reimbursement
for 66,386 eligible inmates - which equates to $659 per
inmate.
"Immigration policy and controlling our nation's borders are
clear, fundamental responsibilities of the Federal Government.
The Federal Government has repeatedly failed to discharge its
obligations, and, as a consequence, high impact states like
California face extraordinary costs associated with
incarcerating these inmates.
"California's prison system is in a state of emergency, due in
part to the lack of federal reimbursements. This ACR will
demonstrate the Legislature's genuine interest and
dissatisfaction in the Federal Government's failure to
adequately reimburse our state for the real and significant
costs associated with incarcerating undocumented foreign
nationals - an issue that must be resolved given our current
prison crisis."
2)Law Re-Authorizing Appropriations for the SCAAP : In Public
Law 109-162, January 5, 2006, funds were appropriated to
"carry out this subsection". The subsection included a
required report on whether there were states or localities
receiving SCAAP funds "and are not fully cooperating in the
Department of Homeland Security's efforts to remove from the
United States undocumented criminal aliens, as defined." The
law also required the Inspector General to include a list
identifying each state or political subdivision of a state
that is not fully cooperating or has in effect a policy in
violation of 8 USCS Section 1373 which states,
"Notwithstanding any other provision of Federal, State, or
local law, a Federal, State, or local government entity or
official may not prohibit, or in any way restrict, any
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government entity or official from sending to, or receiving
from, the Immigration and Naturalization Service information
regarding the citizenship or immigration status, lawful or
unlawful, of any individual."
3)Background - SCAAP : California receives more money under the
SCAAP program than any other applying entity. According to
the report, issued in January 2007 by the Office of the
Inspector General, Audit Division, United States DOJ, Audit
Report 07-07, "SCAAP is a payment program administered by the
United States Department of Justice, Office of Justice
Programs (OJP), through its component the Bureau of Justice
Assistance (BJA), in conjunction with the Immigration and
Customs Enforcement (ICE) Bureau within the Department of
Homeland Security (DHS). SCAAP was authorized by the Violent
Crime Control and Law Enforcement Act of 1994 to provide
federal assistance to states and localities for the costs of
incarcerating certain criminal aliens who are in custody based
on state or local charges or convictions. In Fiscal Year (FY)
2005, BJA distributed $287.1 million in SCAAP payments to 752
state, county, and local jurisdictions. The top 10 SCAAP
recipients for FY 2005 were:
a) "State of California - $85,953,191.
b) "State of New York - $24,022,356.
c) "State of Texas - $18,582,484.
d) "City of New York - $15,893,255.
e) "State of Florida - $12,806,110.
f) "Los Angeles County - $12,530,034.
g) "State of Arizona - $12,139,791.
h) "Orange County - $6,562,437.
i) "State of Illinois - $4,728,549.
j) "State of Massachusetts - $4,728,549.
aa) "The top 10 recipients received a total of $197,949,476.
Although 752 jurisdictions received SCAAP payments for
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fiscal year 2005, the vast majority of them received
relatively small amounts. For example, 306 local
jurisdictions received less than $10,000 each, and 230
jurisdictions received between $10,000 and $49,999.
"The SCAAP program reimburses states and localities that incur
correctional officer salary costs for incarcerating
undocumented criminal aliens who: (a) have at least one
felony or two misdemeanor convictions for violations of state
or local law; and (b) are incarcerated for at least four
consecutive days during the established reporting period.
Applicants for funding are required to provide specified
information regarding correctional officer salary costs and
other issues.
"Historically, congressional appropriations for SCAAP have
been less than the total amount sought by all the
jurisdictions applying for SCAAP payments. As a result, BJA
pays a pro rata amount of the jurisdictions' submitted
expenses. In April 2005, the Government Accountability Office
(GAO) issued a report stating that 80% of the SCAAP aliens
were incarcerated in the five states of Arizona, California,
Florida, New York and Texas. GAO found that SCAAP payments to
four of those states were less than 25% of the estimated cost
to incarcerate SCAAP criminal aliens."
4)Level of Cooperation of SCAAP Recipients with ICE : One of the
purposes of the audit was to determine the level of
cooperation of SCAAP recipients with ICE. The report states,
"ICE officials commented favorably with respect to the
entities' cooperation about every jurisdiction except the City
and County of San Francisco. . . . According to an agent
working at ICE Headquarters, the ICE San Francisco Field
Office has encountered difficulties, which they attributed to
a 'bare minimum' of cooperation. Specifically, we were told
that ICE agents are not permitted to access San Francisco
County jail records without the authorization and approval of
the Sheriff . . . . Despite these views expressed by ICE
officials, San Francisco officials believe they are
cooperating sufficiently with ICE."
The audit report details a San Francisco city and county
ordinance, Chapter 12H of the City Administrative Code, which
provides that "no department, agency . . . shall use any City
funds or resources to assist in the enforcement of federal
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immigration law or to gather or disseminate information
regarding the immigration status . . . unless such assistance
is required by federal or state statute, regulation or court
decision." The audit report also indicated that Oregon and
the City of New York, in addition to San Francisco, had
problems freely exchanging information with ICE.
The BJA's annual guidelines alert potential SCAAP applicants of
the deadline for applying for SCAAP funding and describe the
application procedure, which requires the applicants to
furnish detailed information, as required. The audit
disclosed that OJP's compensation methodology was
over-inclusive in the degree to which OJP paid SCAAP
applicants for inmates whose immigration status was "unknown."
In an April 2006 report by the DHS Inspector General, it was
estimated that in Fiscal Year 2007 there will be 605,000
foreign-born individuals admitted to state correctional
facilities and local jails for committing crimes in the United
States. Of this number, it is estimated that one-half
(302,500) will be removable aliens. "Most of these
incarcerated aliens are being released into the United States
at the conclusion of their respective sentences because the
Detention and Removal Operations (DRO) unit does not have the
resources to identify, detain, and remove these aliens under
its Criminal Alien Program (CAP.) It is estimated that DRO
would need an additional 34,653 detention beds, at an
estimated cost of $1.1 billion, to detain and remove them."
The DHS Inspector General further stated, "DRO's ability to
detain and remove illegal aliens with final orders of removal
is impacted by:
a) "The propensity of illegal aliens to disobey orders to
appear in immigration court;
b) "The penchant of released illegal aliens to abscond;
c) "The practice of some countries to block the
repatriation of its citizens; and,
d) "Two recent United States Supreme Court decisions which
mandate the release of criminal and high-risk aliens within
180 days after the final removal order, except in special
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circumstances.
"Collectively, the bed space, personnel and funding shortages
coupled with other factors, has created an unofficial
'mini-amnesty' program for criminal and other high-risk
aliens." [DHS, Office of the Inspector General, Detention and
Removal of Illegal Aliens: United States ICE, OIG-06-033,
April 2006.]
5)Fiscal Year 2008 SCAAP Funding : According to the United
States Department of Justice's Internet Web site, "no funding
is proposed" for the SCAAP program. The Office of Management
and Budget (OMB) conducted a review of this program and found
that the program "lacks performance goals and cannot
demonstrate results as currently designed, earning a rating of
'results not demonstrated'."
On February 26, 2007, Governor Schwarzenegger visited the White
House to lobby the President for California's fair share of
federal funding for the State Criminal Alien Assistance
Program, and sent a letter which stated in part: "I am
disappointed that you have once again proposed to eliminate
SCAAP. SCAAP is necessary to at least partially offset the
costs California taxpayers are bearing as a direct result of
the Federal Government's continued failure to secure the
border. The costs and burden of housing criminal aliens is
growing. California alone spends more than $800 million per
year as a result of this unfunded mandate. Unfortunately,
your Budget undermines the work of Congress and a bipartisan
coalition of governors who recognize the value of SCAAP and
the need for federal leadership. I am committed to working
with the Federal Government to protect our great nation and to
reform our immigration laws. However, until the Federal
Government can achieve control of our borders, every effort
should be made to help states and local governments cover a
greater share of the considerable expense they incur to
incarcerate criminal aliens."
6)Projection of 2010 CA SCAAP Money : "The $90 million California
is expected to receive from the federal government this year
for jailing illegal immigrants convicted of crimes is far
short of the state's roughly $1 billion annual cost, officials
said.
"'The federal government has sole control over the nation's
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borders. The states do not,' said H.D. Palmer, a spokesman for
the state's finance department. 'The incarceration costs
associated are borne disproportionally by states like
California.'
"Los Angeles County officials have not projected how much in
reimbursement funds they could receive this year.
"But in 2009, the county received $15.4 million in federal
money, officials said. That is a fraction of the $100 million
it spends on average to jail illegal immigrants.
"The federal government reimburses us literally pennies on the
dollar what it costs us,' Los Angeles County Sheriff's Lt.
Mark McCorkle said
"The state -- which houses 19,000 illegal immigrants in its
prisons and jails -- receives the federal money through SCAAP.
Obama's proposed budget plan sets aside $330 million for the
incarceration program, down from $400 million last year.
"But with California struggling to balance its budget, Gov.
Arnold Schwarzenegger is continuing to fight for additional
funding, Palmer said.
"Last year, Sheriff Lee Baca wrote a letter to the House
Appropriations Committee urging an increase in funding for the
program.
"'Because SCAAP reimburses previously incurred undocumented
criminal alien incarceration costs, every dollar of
incarceration costs not reimbursed by SCAAP adds a dollar to
state and local budget shortfalls that must be offset by
reductions in other essential services,' Baca wrote.
"Although the county does not know exactly how many undocumented
immigrants are in its jails, McCorkle said about 3,300 inmates
identify themselves as foreign-born.
"Officials from states greatly affected by illegal immigration
long have argued that their taxpayers should not have to bear
the burden for Washington's failure to control the border."
[Gorman, U.S. Funding for Jailing Illegal Immigrants Falls Far
Short of Costs, L.A. Times (Feb. 5, 2010)
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s5-2010feb05> (as of Apr. 21, 2010).]
7)Related Legislation :
a) SB 125 (Benoit) would have required the California
Department of Corrections and Rehabilitation (CDCR) to bill
the Federal Government for the incarceration of all
undocumented inmates in California prisons, would have
required the AG to use all legal means to obtain compliance
with the request for reimbursement, and would have required
the DOJ to collect data on the number of incarcerated
undocumented aliens in California and publish that data on
the Web site of the DOJ. SB 125 failed passage in Senate
Committee on Public Safety.
b) SJR 12 (Benoit) is identical to this resolution. SJR 12
pending hearing by this Committee.
c) SJR 19 (Cedillo) condemns specified policies and
practices of federal agencies regarding the enforcement of
immigration laws, and urges Congress and the President of
the United States to declare an immediate moratorium on
those policies and practices until a comprehensive reform
of immigration laws is enacted and implemented. SJR 19 is
currently at the Assembly Desk.
8)Prior Legislation :
a) ACR 24 (Blakeslee), Resolution Chapter 88, Statutes of
2008, was identical to this resolution.
b) AB 39 (Benoit), of the 2007-08 Legislative Session,
would have required the CDCR Secretary to demand in writing
that the United States AG take federal custody of any
undocumented inmate incarcerated in California's
correctional system. AB 39 failed passage in this
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
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None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744