BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session C
R
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ACR 140 (Adams) 0
As Amended May 10, 2010
Hearing date: June 22, 1010
Uncodified
MK:mc
UNDOCUMENTED FOREIGN NATIONALS:
INCARCERATION: REIMBURSEMENT
HISTORY
Source: Author
Prior Legislation: ACR 24 (Blakeslee) - Res. Chap. 88, 2008
Support: County of San Diego
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE LEGISLATURE URGE THE GOVERNOR TO DEMAND THAT THE BUREAU
OF JUSTICE ASSISTANCE REIMBURSE THE STATE OF CALIFORNIA FOR ALL
COSTS OF INCARCERATING UNDOCUMENTED FOREIGN NATIONALS?
PURPOSE
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The purpose of this Resolution is to urge the Governor to demand
the Bureau of Justice Assistance (BJA) reimburse the State of
California for all costs of incarcerating undocumented foreign
nationals.
Existing law defines the term "alien" as "any person not a
citizen or national of the United States." (8 U.S.C.
1101(a)(3).)
Existing law specifies that the Attorney General (AG) may not
remove an alien who is sentenced to imprisonment until the alien
is released from imprisonment and states that parole, supervised
release, probation, or the possibility of arrest or further
imprisonment is not a reason to defer removal. (8 U.S.C.
1231(a)(4).)
Existing law 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.
1231(a)(4)(D).)
Existing law states that for purposes of this subsection,
"undocumented criminal alien" is defined as an alien who (8
U.S.C. 1231(i)(3):
has been convicted of a felony or of two
misdemeanors; and,
entered the United States without inspection
at any time or place other than as designated by
the AG;
was the subject of exclusion or deportation
proceedings at the time he or she was taken into
custody by California; or,
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
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conditions of any such status.
Existing law 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. 1226(a).)
Existing law 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. 1226(c)(1).)
Existing law 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 procedure that considers the severity of the
offense committed by the alien. (8 U.S.C. 1226(c)(2).)
Existing law states that the AG's discretionary judgment
regarding the custody of criminal aliens shall not be subject to
review and 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. 1226(e).)
Existing law creates specified exceptions for removal of
nonviolent offenders prior to completion of their sentence of
imprisonment. (8 U.S.C. 1231(a)(4)(B).)
Existing law 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.
1231(4)(A)(ii).)
Existing law states that no cause or claim may be asserted under
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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.
1231(a)(4)(D).)
Existing law 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. 1326(a).)
Existing law provides that the Department of Corrections shall
establish procedures to identify undocumented inmates and
report annually to the Legislature the number of persons
identified as undocumented. (Penal Code 5025.)
Existing law provides that the Department of Corrections
should set up a procedure for the notification of the embassy
of a foreign nation inmate and set up procedures to process
applications for transfer of foreign national inmates to their
country of citizenship. (Penal Code 5028.)
Existing law provides that under its Foreign Prisoner Transfer
Program, the Board of Prison Terms shall devise a method of
notifying each foreign born inmate in a prison or reception
center operated by the Department of Corrections that he or she
may be eligible to serve his or her term of imprisonment in his
or her nation of citizenship as provided in federal treaties.
This Resolution declares all of the following:
Immigration policy and controlling the nation's borders
are clear, fundamental responsibilities of the federal
government.
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
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nationals.
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.
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.
The United States Department of Justice (DOJ) through
the federal BJA administers SCAAP, in conjunction with the
Bureau of Immigration and Customs Enforcement (ICE),
Department of Homeland Security.
The annual cost of incarcerating an inmate in state
prison is now $51,670, according to statistics from the
Legislative Analyst's Office (LAO).
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.
Much of the incarcerating costs are borne by counties and
cities, most of which traditionally operate with slim
budgets and staffing.
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.
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.
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.
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This Resolution provides that it be resolved by the Assembly of
the State of California, the Senate thereof concurring, that the
Legislature hereby urges the Governor to demand the BJA to
reimburse the State of California for all costs of incarcerating
undocumented foreign nationals.
This Resolution further provides it be resolved that 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 form California in the Congress of the United
States.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
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residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
While it is widespread knowledge that the incarceration
of foreign nationals is the responsibility of the
federal government, the federally-funded State Criminal
Alien Assistance Program does not come close to covering
state and local costs of incarcerating these
individuals. According to the Legislative Analyst's
Office, the annual cost to the State of California to
house an inmate is $51,670. For the last reporting
period by the Bureau of Justice Assistance (BJA), the
State of California received $118,030,160 in
reimbursement for 32,806 eligible inmates, a return of
$3,598 per inmate. Counties and cities in California
received $43,717,418 in reimbursement for 66,386
eligible inmates, a return of $659 per inmate. ACR 140
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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urges the Governor to demand that BJA reimburse the
state of California for all costs of incarcerating
foreign nationals through SCAAP.
2. State Criminal Alien Assistance Program (SCAAP)
According to the Bureau of Justice Assistance (BJA) Web site's
information regarding SCAAP:
The Bureau of Justice Assistance (BJA), Office of Justice
Programs, U.S. Department of Justice, administers SCAAP,
in conjunction with the U.S. Department of Homeland
Security (DHS). SCAAP provides federal payments to states
and localities that incurred correctional officer salary
costs for incarcerating undocumented criminal aliens who
have at least one felony or two misdemeanor convictions
for violations of state or local law, and who are
incarcerated for at least 4 consecutive days during the
reporting period.
SCAAP is governed by Section 241(i) of the Immigration and
Nationality Act, 8 U.S.C. 1231(i), as amended, and Title
II, Subtitle C, Section 20301, Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. 103- 322. In general
terms, if a chief executive officer of a state or a
political subdivision exercises authority over the
incarceration of undocumented criminal aliens and submits
a written request to the U.S. Attorney General, the
Attorney General may provide compensation to that
jurisdiction for those incarceration costs. SCAAP is
subject to additional terms and conditions of yearly
congressional appropriations.
(http://www.ojp.usdoj.gov/BJA/grant/scaap.html)
3. 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
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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 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."
4. Background - SCAAP
California received 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 Department of Justice, 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:
State of California - $85,953,191.
State of New York - $24,022,356.
State of Texas - $18,582,484.
City of New York - $15,893,255.
State of Florida - $12,806,110.
Los Angeles County - $12,530,034.
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State of Arizona - $12,139,791.
Orange County - $6,562,437.
State of Illinois - $4,728,549.
State of Massachusetts - $4,728,549.
(Office of the Inspector General Audit Report, 07-07, Chapter
1, at
http://www.usdoj.gov/oig/reports/OJP/a0707/chapter1.htm)
The top 10 recipients received a total of $197,949,476.
Although 752 jurisdictions received SCAAP payments for 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. (Office of the Inspector General Audit Report,
07-07 Chapter 1 at
http://www.usdoj.gov/oig/reports/OJP/a0707/chapter1.htm)
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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. (Office of
the Inspector General Audit Report, 07-07 Chapter 1 at
http://www.usdoj.gov/oig/reports/OJP/a0707/chapter1.htm )
Some of the 2009 SCAAP awards for California were as follows:
State of California - $112,501,838
County of Los Angeles -$15,436,769
County of Orange - $6,613,526
County of San Diego - $2,877,186
County of San Bernardino - $2,244,462
County of Sacramento - $1,637,116
(http://www.ojp.usdoj.gov/BJA/grant/09SCAAPawards.pdf)
5. Fiscal Year 2010 SCAAP Funding
According to the United States Bureau of Justice Assistance Web
site, applications for FY 2010 SCAAP funds were due May 7, 2008.
Those eligible to apply for SCAAP funds are:
States and local units of government that have
authority over correctional facilities that
incarcerate or detain undocumented criminal aliens
for a minimum of four consecutive days are eligible
to apply for SCAAP funds. States and local units of
general government include the 50 state governments,
the District of Columbia, Guam, Puerto Rico, the U.S.
Virgin Islands, and the more than 3,000 counties and
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cities with correctional facilities.
(http://www.ojp.usdoj.gov/BJA/grant/2010_SCAAP_Guideli
nes.pdf)
According to the BJA site, only eligible persons who were
incarcerated for four or more consecutive days between July 1,
2008, and June 30, 2009, may be included in the FY 2010 SCAAP
application. Inmates that allow jurisdictions to collect funds
are those inmates who:
were born outside the United States or one of
its territories and had no reported or documented
claim to U.S. citizenship.
were in the applicant's custody for four or
more consecutive days during the reporting
period.
were convicted of a felony or second
misdemeanor for violations of state or local law.
were identified and reported as undocumented,
using due diligence.
According to the application guidelines on the BJA Web site, the
method used to calculate SCAAP payments is as follows:
Using financial data from applicants, a per diem
rate is calculated for each jurisdiction. For FY
2007, the average per diem rate was $30.30 per
inmate.
Inmate data is provided to the U.S. Department of
Homeland Security to validate inmate data for
eligible, unknown, and invalid records.
Each jurisdiction's total eligible inmate days
and a percentage of the unknown days are totaled
then multiplied by the applicant's per diem rate to
derive the total correctional officer salary costs
for eligible and unknown inmate days. The
percentage used for unknown days is determined by a
sliding scale: cities 60%; states 65%; and counties
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80% of their total unknown inmate days.
The value of each applicant's correctional
officer salary costs associated with its eligible
and credited unknown inmate days are totaled. This
total value reflects the maximum amount for SCAAP
reimbursement. A percentage factor is used to
reflect the relationship between the maximum
reimbursable salary costs and the appropriation.
For FY 2009, this factor was approximately 35.15%.
(http://www.ojp.usdoj.gov/BJA/grant/2010_SCAAP_Guidel
ines.pdf)
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