BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1369 (Davis) 9
As Amended May 26, 2010
Hearing date: June 29, 2010
Penal Code
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ELECTRONIC MONITORING ON HOME DETENTION:
INMATES HELD IN JAIL IN LIEU OF BAIL
HISTORY
Source: Los Angeles County Sheriff
Prior Legislation: SB 959 (Romero) - Ch.252, Stats. 2007
SB 963 (Ashburn) - Ch. 488, Stats. 2005
Support: Los Angeles County Board of Supervisors; Crime Victims
United of California;
California Bail Agents Association (as proposed to be amended);
Golden State Bail Agents Association (as proposed to be amended)
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: No longer relevant
(NOTE: See Comment #4 for explanation of proposed author
amendments to be taken in Committee.)
KEY ISSUES
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SHOULD ANY COUNTY BOARD OF SUPERVISORS BE AUTHORIZED TO ALLOW
THE COUNTY CORRECTIONAL ADMINISTRATOR TO PLACE COUNTY JAIL
INMATES HELD IN LIEU OF BAIL IN A PROGRAM OF HOME DETENTION,
INCLUDING ELECTRONIC MONITORING, AS SPECIFIED?
PURPOSE
The purpose of this bill is to enact home detention programs for
qualified persons held in county jail in lieu of bail, as
specified.
Existing law provides that the board of supervisors of any
county may authorize the correctional administrator, as defined,
to offer a program under which minimum security inmates and
low-risk offenders committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may voluntarily
participate in a home detention program during their sentence in
lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the
probation officer, as specified. (Penal Code 1203.016(a).)
Existing law authorizes counties to participate in
Community-Based Punishment Programs which are partnerships
between the state and local entities to offer alternatives for
nonviolent, prison-bound offenders. Among the intermediate
sanctions allowed is "home detention with electronic
monitoring." A chief correctional administrator (the county
sheriff, chief probation officer, or director of the county
department of corrections) shall be designated to play a lead
role locally. (Pen. Code 8050 et seq.)
Existing law permits a county board of supervisors to authorize a
county correctional administrator to require that county inmates
committed to a county jail or other county correctional facility
or granted probation, or inmates participating in a work furlough
program participate in involuntary home detention, that includes
electronic monitoring, when the administrator has determined that
conditions in a jail facility warrant the necessity of releasing
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sentenced misdemeanor inmates prior to them serving the full
amount of a given sentence due to lack of jail space. (Pen. Code
1203.017, subd. (a).)
Existing law provides that, under this program, one day of
participation shall be in lieu of one day of incarceration and
participants in the program shall receive any sentence reduction
credits that they would have received had they served their
sentences in a county correctional facility. (Pen. Code
1203.017, subd. (a).)
Existing law provides that the board of supervisors may prescribe
reasonable rules and regulations under which an involuntary home
detention program may operate. The inmate shall be informed in
writing that he or she shall comply with the rules and
regulations of the program. (Pen. Code 1203.017, subd. (b).)
Home Detention for Persons held Jail in Lieu of Bail as Defined
by this Bill
This bill permits a county board of supervisors to authorize a
county correctional administrator to place county jail inmates
held in lieu of bail to participate in a program of voluntary or
involuntary home detention when specified conditions are met.
Such a program shall include electronic monitoring, as specified.
This bill provides that the program of home detention for inmates
held in lieu of bail shall only apply if the correctional
administrator makes a determination that conditions in a jail
facility required the release of inmates due to a lack of space,
or due to a current or pending court-ordered population cap.
This bill provides that the programs of voluntary and involuntary
home detention are essentially equivalent, with these major
exceptions:
An involuntary inmate cannot be required to pay a program fee.
A voluntary participant must, in writing, agree to participate
in, and comply with the rules and regulations of the program.
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This bill provides that inmates in home detention programs for
sentenced misdemeanants or persons held in lieu of bail shall be
credited with time served on home detention against any mandatory
term.
This bill provides that an eligible inmate must be a minimum
security inmate with not outstanding holds or warrants and one of
the following apply:
A magistrate has approved the release following a request by
the inmate or designated person, as specified.
The inmate has been held in custody for at least 30 days from
the day of arraignment on misdemeanor charges.
The inmate has been held in custody for at least 60 days from
the day of arraignment on felony charges.
This bill provides that all participants shall be subject to
discretionary review by the correctional administrator.
This bill provides that the board of supervisors may prescribe
reasonable rules and regulations under which an involuntary home
detention program may operate. The inmate shall comply with the
rules and regulations of the program, including, but not limited
to, the following rules:
A voluntary inmate must, in writing, agree to participate and
to comply with program rules.
The participant shall remain within the interior premises of
his or her residence during the hours designated by the
correctional administrator.
The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any
time for purposes of verifying the participant's compliance
with the conditions of his or her detention.
If the person has been placed on home detention in combination
for such release with greatly reduced bail, the person shall
post bond prior to release.
The use of electronic monitoring may include global positioning
system devices or other supervising devices for the purpose of
helping to verify his or her compliance with the rules and
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regulations of the home detention program. The devices shall
not be used to eavesdrop or record any conversation, except a
conversation between the participant and the person supervising
the participant which is to be used solely for the purposes of
voice identification.
The correctional administrator in charge of the county
correctional facility from which the participant was released
may, without further order of the court, immediately retake the
person into custody if the electronic monitoring or supervising
devices are unable for any reason to properly perform their
function at the place of detention, if the person fails to
remain within the place of home detention as stipulated in the
agreement, or if the person for any other reason no longer
meets the established criteria.
This bill would provide that where the peace officer supervising
a participant has reasonable cause to believe the participant is
not complying with the rules or conditions of the program, or
that the electronic monitoring device is unable to function
properly, the officer may, without an arrest warrant and under
the general or specific authorization of the administrator,
retake the person into custody.
This bill would provide that the correctional administrator need
not allow a person to participate in this program if the record
shows that the person has not satisfactorily complied with rules
and regulations while in custody. A person shall be eligible for
participation only if the administrator concludes that the person
meets the criteria in this section and participation is
consistent with rules and regulations prescribed by the board of
supervisors or the correctional administrator's policies.
This bill provides that the correctional administrator, or his or
her designee, shall have discretionary authority to permit
inmates to participate in the program. All persons approved by
the court to participate in the program under reduced bail, and
all persons removed from program participation shall be notified
in writing of the specific reasons for the denial or removal.
The notice of denial or removal shall include the participant's
appeal rights, as established by program administrative policy.
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This bill provides that the rules and regulations and
administrative policy of the program shall be written and
reviewed on an annual basis by the county board of supervisors
and the correctional administrator. The rules and regulations
shall be given to, or made available to, any participant upon
request.
This bill provides that the correctional administrator may permit
home detention program participants to seek and retain employment
in the community, attend psychological counseling sessions or
educational or vocational training classes, or seek medical and
dental assistance.
This bill provides that willful failure of a program participant
to return to the place of home detention not later than the
expiration of any period of time during which he or she is
authorized to be away from the place of home detention pursuant
to this section and unauthorized departures from the place of
home detention is guilty of a misdemeanor, punishable by a jail
term of up to six months, a fine of up to $1,000 or both.
This bill provides that the board of supervisors may set a
program administrative fee to be paid by each participant or the
designated bail agent, or both, if the release is made pursuant
to a request for greatly reduced bail.
This bill provides the following definitions for purposes of this
program:
"Correctional administrator" means the sheriff, probation
officer, or director of the county department of corrections.
"Electronic monitoring program" includes, but is not limited
to, home detention, work furlough, and work release programs.
"Minimum security inmate" means an inmate who is eligible for
placement in a "Type IV" local detention facility, as described
in Title 15 of the California Code of Regulations.
This bill provides that, upon request of the Corrections
Standards Authority or local law enforcement agency with
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jurisdiction over the location of the participant, the
correctional administrator shall provide the following
information:
The participant's name, address, and date of birth.
The offense committed by the participant.
The period of time the participant will be placed on home
detention.
Whether the participant successfully completed the prescribed
period of home detention or was returned to a county
correctional facility, and if the person was returned to a
county correctional facility, the reason for that return.
The gender and ethnicity of the participant.
Any information received by a police department pursuant to
this provision shall be used only for the purpose of monitoring
the impact of home detention programs on the community. (Pen.
Code 1203.017, subd. (h).)
This bill states that it is the intent of the Legislature that
home detention programs established under this section maintain
the highest public confidence, credibility, and public safety.
In the furtherance of these standards, the correctional
administrator, with the approval of the board of supervisors, may
administer a home detention program pursuant to written contracts
with appropriate public or private agencies, as specified.
This bill provides that the correctional administrator, with
approval from the board of supervisors, may contract with public
or private entities to provide program services.
This bill provides that inmates in the program shall undergo
normal booking procedures.
This bill provides that all private contractors shall be under
the jurisdiction of, and subject to the contract with, the
correctional administrator. The contract shall include the
following:
The contractor must agree to comply with standards promulgated
by state correctional agencies, all statutory provisions
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applicable to the program.
The contract must clearly define responsibilities and
liability of the parties.
The contractor must demonstrate financial responsibility,
approved by the board, sufficient to indemnify the county.
The contract must allow the correctional administrator
authority to terminate the contract if the contractor fails to
demonstrate financial responsibility.
The administrator may terminate the contract if the private
entity does not comply with statutory provisions or contract
standards.
The administrator shall give 60-days' notice of
non-compliance. Shorter notice may be given if non-compliance
presents a serious threat to public safety.
This bill provides that a person who is arrested without a
warrant for a bailable offense may, either personally or through
counsel, a family member or friend, apply for release on bail
reduce up to 75% of the set amount of bail if the person agrees
to be placed on electronic monitoring under this program under
the following circumstances and consequences:
The application can be made 10 or more court days after
arraignment.
The court may reduce a defendant's bail under this provision
only if the defendant is placed on the voluntary electronic
monitoring program created by this bill and the court and
county correctional administrator determine that the defendant
is eligible for the program.
The reduced bail provision shall not affect the provisions of
Penal Code section 1305 (concerning exoneration and forfeiture
of bail).
This bill provides that a person may not be denied entry into
the program because of an inability to pay a fee.
This bill provides that program participants shall receive jail
sentencing credits, as specified.
This bill provides that a person who participates in the home
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detention program created by this bill and who willfully fails
to comply with program rules and regulations is guilty of a
misdemeanor, punishable by a jail term of up to six months, a
fine of up to $1,000 or both.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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.)
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. . .
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
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.
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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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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Based on the lack of space in the Los Angeles County
jail system, the jail operates under court-ordered
mandatory cap on the number of inmates in the system.
To adhere to the cap, the Sheriff's Department has
reduced the percentage of time served by inmates
committed to county jail. The department offered the
voluntary electronic monitoring program and in 2007
sponsored Senate Bill 959 (Romero and Runner) to
create an involuntary home detention electronic
monitoring program, which has been very successful.
Approximately 1,500 inmates are currently on some form
of Home Electronic Monitoring, up from 437 in 2007.
Prior to SB 959, inmates were spending an average of
10% of their sentence in jail before being released
early due to overcrowding. Now, male inmates are
doing approximately 75% of their sentence.
Under current law, California Penal Code Section
1203.017 allows involuntary participation by
qualified, minimum-security, low-risk inmates in a
home detention electronic monitoring program in lieu
of confinement in the county jail. By giving the
Sheriff's Department the discretion and the option to
put an inmate on the involuntary home detention
electronic monitoring program, the Department has been
able to better manage and control the jail population.
If sentenced qualified, low-risk felony county jail
commitments are added to this section, we can better
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control our population and create much needed room for
the more serious offenders.
2. This Bill is Modeled on SB 959 (Romero) Chapter 252, Statutes
of 2007
In 2007, a program of home detention was created by SB 959 under
which a county board of supervisors could authorize the county
correctional administrator to place sentenced jail inmates in a
program of home detention. The main purpose of the law was to
reduce overcrowding in jails, particularly in Los Angeles
County. The analysis of SB 959 noted that many jail inmates in
Los Angeles were released after only serving a small fraction of
the sentence imposed by the court. In a letter of support of
this bill, the Los Angeles County Board of Supervisors states
that SB 959 has been helpful in alleviating some of the jail
overcrowding in that county.
This bill addresses similar overcrowding concerns, but the jail
inmates placed on home detention would be persons held in lieu
of bail. Essentially, these inmates are awaiting trial or other
disposition of their cases, but they were unable to post bail.
Representatives of the sponsor and the Los Angeles County
District Attorney have seen a substantial increase the amount of
bail set out in the bail schedules published by the courts.
More inmates than in the past are unable to post bond. This
exacerbates jail overcrowding generally, and specifically
reduces the jail capacity for defendants who have been
sentenced.
The sponsor of this bill - the Los Angeles County Sheriff -
closely modeled this bill on the home detention program created
by SB 959. It would appear that jail authorities would be
familiar with the procedures prescribed by this bill.
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WOULD COUNTIES THAT USE THE HOME DETENTION PROGRAM FOR SENTENCED
INMATES BE ABLE TO READILY IMPLEMENT THE PROGRAM IN THIS BILL
FOR HOME DETENTION OF JAIL INMATES WHO ARE BEING HELD PENDING
RESOLUTION AND DISPOSITION OF THEIR CASES?
3. Ambiguous or Unclear Provision Concerning Payment of Fee -
Additional Amendment Suggestion
According to the sponsor, voluntary participants in the home
detention program shall pay an administrative fee while
involuntary participants will not. (No voluntary participant
would be turned away from the program because of an inability to
pay, however.)
The provision in this bill on the fee payment is somewhat
unclear. The provision can be interpreted to mean that only
jail inmates released on home detention pursuant to Penal Code
Section 1269d must pay the fee. Section 1269d allows a jail
inmate to apply to a judge for release on reduced bail (reduced
up to 75% of the set amount of bail) within the terms of the
home detention program.
The provision states:
The board ? may prescribe a[n] ? administrative fee to
be paid by each electronic monitoring participant or
the designated bail agent, or both, if the release is
authorized pursuant to Section 1269d.
To realize the intent of the sponsor, it is suggested that the
bill be amended as follows:
The board ? may prescribe a[n] ? administrative fee to
be paid by each electronic monitoring participant. If
the participant's release is authorized pursuant to
Section 1269d, the participant or the designated bail
agent, or both, shall pay any authorized fee.
SHOULD THE BILL BE AMENDED TO CLARIFY THE FEE PROVISIONS FOR
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VOLUNTARY PARTICIPANTS?
4. Explanation of Pending, Proposed Amendments
Interested parties have met, discussed, and agreed upon a few
amendments to make the bill consistent with existing law and to
clarify some provisions. This bill is analyzed to reflect the
amendments proposed by the author and to be taken in Committee.
These amendments are described below:
Clarify that the time that must pass before a defendant held in
lieu of bail is eligible for home detention runs from the date
of arraignment. This will provide uniformity and ensure that a
defendant will have a court appearance before release.
Clarify that a defendant may be released on home detention under
greatly reduced bail only where the defendant is placed in the
home detention release program for person held in lieu of bail
and the court and jail administrator determine that the
defendant is eligible for such release. The defendant may make
a request for release under this provision 10 court days
following arraignment.
Clarify that where a defendant, pursuant to request to the
court, is released on home detention under greatly reduced bail,
existing and standard procedures for exoneration and forfeiture
of bail shall apply. These substantive and procedural rules
apply where a defendant fails to appear in court.
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