BILL ANALYSIS
SB 1369
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1369 (Davis)
As Amended August 17, 2010
Majority vote
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|ASSEMBLY: | |(May 26, 2009) |SENATE: |25-9 |(August 23, 2010) |
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(vote not relevant)
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|COMMITTEE VOTE: |4-0 |(August 26, 2010) |RECOMMENDATION: |concur |
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Original Committee Reference: PUB. S.
SUMMARY : Allows the board of supervisors of any county to
authorize the correctional administrator to offer a program under
which bailable inmates may be placed in an electronic monitoring
program (EMP).
The Senate amendments rewrite the Assembly version of this bill:
1)Provide, notwithstanding any other law, this section shall only
apply to inmates being held in lieu of bail and on no other
basis. This section shall only apply if the correctional
administrator of a county makes a determination that conditions
in a jail facility warrant the necessity of releasing inmates
being held in lieu of bail due to a lack of jail space and a
court-ordered jail population cap.
2)Provide, notwithstanding any other law, the board of supervisors
of any county may authorize the correctional administrator to
offer a program under which inmates being held in lieu of bail in
a county jail or other county correctional facility may
voluntarily participate in an EMP if the conditions specified
below are met.
3)State in order to qualify for participation in an EMP pursuant to
this section, the inmate must be a minimum security inmate with
no holds or outstanding warrants and one of the following
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circumstances must exist:
a) A magistrate has approved the electronic monitoring
release;
b) The inmate has been held in custody for at least 30
calendar days from the date of arraignment pending disposition
of only misdemeanor charges; or,
c) The inmate has been held in custody pending disposition of
charges for at least 60 calendar days from the date of
arraignment.
4)Provide all participants shall be subject to discretionary review
by the correctional administrator consistent with this section.
5)Provide the county board of supervisors, after consulting with
the sheriff and district attorney, may prescribe reasonable rules
and regulations under which an EMP pursuant to this section may
operate. As a condition of participation in the EMP, the
participant shall give his or her consent in writing to
participate and shall agree in writing to comply with the rules
and regulations of the program, including, but not limited to,
all of the following:
a) The participant shall remain within the interior premises
of his or her residence during the hours designated by the
correctional administrator;
b) 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;
c) If released, the participant shall post bond prior to being
placed on electronic monitoring;
d) The electronic monitoring may include global positioning
system (GPS) devices or other supervising devices for the
purpose of helping to verify the participant's compliance with
the rules and regulations of the electronic 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 to be used solely
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for the purposes of voice identification; and,
e) 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 designated place of home
detention if the person fails to remain within the place of
home detention as stipulated in the agreement; if the person
willfully fails to pay fees to the provider of electronic home
detention services, as stipulated in the agreement, subsequent
to the written notification of the participant that the
payment has not been received and that return to custody may
result; or if the person for any other reason no longer meets
the established criteria under this section. A copy of the
signed consent to participate and a copy of the agreement to
comply with the rules and regulations shall be provided to the
participant and a copy shall be retained by the correctional
administrator.
6)Require the rules and regulations and administrative policy of
the program shall be reviewed on an annual basis by the county
board of supervisors and the correctional administrator. The
rules and regulations shall be given to every participant.
7)State whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the
electronic monitoring devices are unable to function properly in
the designated place of confinement, the peace officer may, under
general or specific authorization of the correctional
administrator and without a warrant of arrest, retake the person
into custody.
8)Provide nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in
this program if it appears from the record that the person has
not satisfactorily complied with reasonable rules and regulations
while in custody. A person shall be eligible for participation
in an EMP only if the correctional administrator concludes that
the person meets the criteria for release established under this
section and that the person's participation is consistent with
any reasonable rules and regulations prescribed by the board of
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supervisors or the administrative policy of the correctional
administrator.
9)State the correctional administrator, or his or her designee,
shall have discretionary authority consistent with this section
to permit program participation as an alternative to physical
custody. All persons approved by the court to participate in the
EMP, pursuant to #5(c) above, who are denied participation 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.
10)Provide the correctional administrator may permit EMP
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. Willful failure of the program participant to return
to the place of home detention 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 are
punishable as provided under existing law.
11)Allow the board of supervisors to prescribe a program
administrative fee to be paid by each electronic monitoring
participant.
12)Define the following terms as follows:
a) "Correctional administrator" is the sheriff, probation
officer, or director of the county department of corrections;
b) "Electronic monitoring program" includes, but is not
limited to, home detention programs, work furlough programs,
and work release programs; and,
c) "Minimum security inmate" is an inmate who, by established
local classification criteria, would be eligible for placement
in a Type IV local detention facility, as described in Title
15 of the California Code of Regulations.
13)Provide, notwithstanding any other law, upon request of a local
law enforcement agency with jurisdiction over the location where
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a participant in an EMP is placed, the correctional administrator
shall provide the following information regarding participants in
the EMP:
a) The participant's name, address, and date of birth;
b) The offense or offenses alleged to have been committed by
the participant;
c) The period of time the participant will be placed on home
detention;
d) 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 the return;
e) The gender and ethnicity of the participant;
f) If released, the name, address, and contact information of
any bail agent or surety; and,
g) Any information received by a law enforcement agency, as
specified, shall be used only for the purpose of monitoring
the impact of home EMPs on the community.
14)Provide legislative intent that the EMPs established under this
section maintain the highest public confidence, credibility, and
public safety. In the furtherance of these standards, the
following shall apply:
a) The correctional administrator, with the approval of the
board of supervisors, may administer an EMP as provided in
this section pursuant to written contracts with appropriate
public or private agencies or entities to provide specified
program services. No public or private agency or entity may
operate a home detention program pursuant to this section in
any county without a written contract with that county's
correctional administrator. No public or private agency or
entity entering into a contract may itself employ any person
who is in the EMP;
b) Program participants shall undergo the normal booking
process for arrestees entering the jail. All EMP participants
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shall be supervised; and,
c) All privately operated EMPs shall be under the jurisdiction
of, and subject to the terms and conditions of the contract
entered into with, the correctional administrator.
15)Require each contract to include, but not be limited to, all of
the following:
a) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards and all
state and county laws applicable to the operation of EMPs and
the supervision of offenders in an EMP;
b) A provision that clearly defines areas of respective
responsibility and liability of the county and the private
agency or entity;
c) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted to
and approved by the board of supervisors, in amounts and under
conditions sufficient to fully indemnify the county for
reasonably foreseeable public liability, including legal
defense costs that may arise from, or be proximately caused
by, acts or omissions of the contractor;
d) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as
certificates of insurance or copies of insurance policies,
prior to commencing any operations pursuant to the contract or
at any time requested by the board of supervisors or
correctional administrator;
e) A provision that requires an annual review by the
correctional administrator to ensure compliance with
requirements set by the board of supervisors and for
adjustment of the financial responsibility requirements if
warranted by caseload changes or other factors; and,
f) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or
entity at any time that the contractor fails to demonstrate
evidence of financial responsibility.
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16)Mandate the board of supervisors, the correctional
administrator, and the designee of the correctional administrator
to comply with Government Code Section 1090 in the consideration,
making, and execution of contracts pursuant to this section.
17)State the failure of the private agency or entity to comply with
state or county laws or with the standards established by the
contract with the correctional administrator shall constitute
cause to terminate the contract.
18)Provide upon the discovery that a private agency or entity with
which there is a contract is not in compliance with this
paragraph, the correctional administrator shall give 60-days'
notice to the director of the private agency or entity that the
contract may be canceled if the specified deficiencies are not
corrected.
19)Allow shorter notice may be given or the contract may be
canceled without notice whenever a serious threat to public
safety is present because the private agency or entity has failed
to comply with this section.
20)State for purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified
copies of any of the following:
a) A current liability insurance policy;
b) A current errors and omissions insurance policy; or,
c) A surety bond.
21)Define "ability to pay" as the overall capability of the person
to reimburse the costs, or a portion of the costs, of providing
supervision and shall include, but shall not be limited to,
consideration of all of the following factors:
a) Present financial position;
b) Reasonably discernible future financial position. In no
event shall the administrator, or his or her designee,
consider a period of more than six months from the date of
acceptance into the program for purposes of determining
reasonably discernible future financial position;
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c) Likelihood that the person shall be able to obtain
employment within the six-month period from the date of
acceptance into the program; and,
d) Any other factor that may bear upon the person's financial
capability to reimburse the county for the fees fixed.
22)Allow the administrator, or his or her designee, to charge a
person the fee set by the board of supervisors or any portion of
the fee and may determine the method and frequency of payment.
Any fee the administrator, or his or her designee, charges
pursuant to this section shall not in any case be in excess of
the fee set by the board of supervisors and shall be based on the
person's ability to pay. The administrator, or his or her
designee, shall have the option to waive the fees for program
supervision when deemed necessary, justified, or in the interests
of justice. The fees charged for program supervision may be
modified or waived at any time based on the changing financial
position of the person. All fees paid by persons for program
supervision shall be deposited into the general fund of the
county.
23)Prohibit a person from being denied consideration for, or be
removed from, participation in any of the programs to which this
section applies because of an inability to pay all or a portion
of the program supervision fees. At any time during a person's
sentence, the person may request that the administrator, or his
or her designee, modify or suspend the payment of fees on the
grounds of a change in circumstances with regard to the person's
ability to pay.
24)State if the person and the administrator, or his or her
designee, are unable to come to an agreement regarding the
person's ability to pay, or the amount which is to be paid, or
the method and frequency with which payment is to be made, the
administrator, or his or her designee, shall advise the
appropriate court of the fact that the person and administrator,
or his or her designee, have not been able to reach agreement and
the court shall then resolve the disagreement by determining the
person's ability to pay, the amount which is to be paid, and the
method and frequency with which payment is to be made.
25)Provide at the time a person is approved for any of the programs
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to which this section applies, the administrator, or his or her
designee, shall furnish the person a written statement of the
person's rights in regard to the program for which the person has
been approved, including, but not limited to, both of the
following:
a) The fact that the person cannot be denied consideration for
or removed from participation in the program because of an
inability to pay; and,
b) The fact that if the person is unable to reach agreement
with the administrator, or his or her designee, regarding the
person's ability to pay, the amount which is to be paid, or
the manner and frequency with which payment is to be made,
that the matter shall be referred to the court to resolve the
differences.
26)Allow in all circumstances where a county board of supervisors
has approved a program administrator to enter into a contract
with a private agency or entity to provide specified program
services, the program administrator shall ensure that the
provisions of this section are contained within any contractual
agreement for this purpose. All privately operated home
detention programs shall comply with all appropriate, applicable
ordinances and regulations as specified.
27)Provide, notwithstanding any other provision of law, if a
defendant is arrested without a warrant for a bailable offense
and meets the criteria specified, he or she may, either
personally or through his or her attorney, friend, or family
member, make an application to the magistrate after 10 court days
from the date of arraignment for release on bail reduced by up to
75% of the amount of the defendant's bail.
28)Allow a court to reduce a defendant's bail by up to 75% pursuant
to this section only if a defendant is placed in an EMP
authorized by a county board of supervisors, and the court and
correctional administrator make determinations that the defendant
is eligible to participate in an EMP.
29)Provide this section shall remain in effect only until January
1, 2015 and as of that date unless a later statute enacted before
January 1, 2015 deletes or extends that date.
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30)Make every prisoner who is a participant in an EMP pursuant who
willfully fails to comply with the prescribed rules and
regulations of that program guilty of a misdemeanor.
31)Make every prisoner arrested and booked for, charged with, or
convicted of a misdemeanor, and every person committed as an
inebriate, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any
county road or other county work, is in the lawful custody of any
officer or person, is employed or continuing in his or her
regular educational program or authorized to secure employment or
education away from the place of confinement, is authorized for
temporary release for family emergencies or for purposes
preparatory to his or her return to the community, or is a
participant in a home detention program, and who thereafter
escapes or attempts to escape from the county or city jail,
prison, industrial farm, or industrial road camp or from the
custody of the officer or person in charge of him or her while
engaged in or going to or returning from the county work or from
the custody of any officer or person in whose lawful custody he
or she is, or from the place of confinement in a home detention
program, is guilty of a felony and, if the escape or attempt to
escape was not by force or violence, is punishable by
imprisonment in the state prison for a determinate term of one
year and one day, or in a county jail not exceeding one year.
32)Provide that if the prisoner arrested and booked for, charged
with, or convicted of a misdemeanor escapes or attempts to escape
described is committed by force or violence, the person is guilty
of a felony, punishable by imprisonment in the state prison for
two, four, or six years to be served consecutively, or in a
county jail not exceeding one year. When the second term of
imprisonment is to be served in a county jail, it shall commence
from the time the prisoner otherwise would have been discharged
from jail.
33)State a conviction of a violation involving a participant of a
home detention program that is not committed by force or violence
shall not be charged as a prior felony conviction in any
subsequent prosecution for a public offense.
34)Make every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail,
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prison, industrial farm, or industrial road camp, is engaged on
any county road or other county work, is in the lawful custody of
any officer or person is a participant in a home detention
program, who escapes or attempts to escape from a county or city
jail, prison, industrial farm, or industrial road camp or from
the custody of the officer or person in charge of him or her
while engaged in or going to or returning from the county work or
from the custody of any officer or person in whose lawful custody
he or she is, or from confinement, or from the place of
confinement in a home detention program, is guilty of a felony
and, if the escape or attempt to escape was not by force or
violence, is punishable by imprisonment in the state prison for
16 months, two years, or three years, to be served consecutively,
or in a county jail not exceeding one year.
35)Provide that if the prisoner arrested and booked for, charged
with, or convicted of a felony escapes or attempts to escape is
committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other
term of imprisonment, commencing from the time the person
otherwise would have been released from imprisonment and the term
shall not be subject to, or in a county jail for a consecutive
term not to exceed one year, that term to commence from the time
the prisoner otherwise would have been discharged from jail.
36)Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted
to escape from a secure main jail facility, from a court
building, or while being transported between the court building
and the jail facility.
37)State in any case in which a person is convicted of a violation
of this section designated as a misdemeanor, he or she shall be
confined in a county jail for not less than 90 days nor more than
one year except in unusual cases where the interests of justice
would best be served by the granting of probation.
38)Define "main jail facility" as the facility used for the
detention of persons pending arraignment, after arraignment,
during trial, and upon sentence or commitment. The facility
shall not include an industrial farm, industrial road camp, work
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furlough facility, or any other non-secure facility used
primarily for sentenced prisoners. As used in this subdivision,
"secure" is defined as a facility that contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate
ingress and egress from the facility except through a closely
supervised gate or doorway.
39)Provide if the court grants probation under this subdivision, it
shall specify the reason or reasons for that order on the court
record.
40)Require any sentence imposed under this subdivision shall be
served consecutive to any other sentence in effect or pending.
41)Mandate the willful failure of a prisoner, whether convicted of
a felony or a misdemeanor, to return to his or her place of
confinement no later than the expiration of the period that he or
she was authorized to be away from that place of confinement, is
an escape from that place of confinement. This subdivision
applies to a prisoner who is employed or continuing in his or her
regular educational program, authorized to secure employment or
education pursuant to the Cobey Work Furlough Law (Penal Code
Section 1208), authorized for temporary release for family
emergencies or for purposes preparatory to his or her return to
the, or permitted to participate in a home detention program. A
prisoner convicted of a misdemeanor who willfully fails to return
to his or her place of confinement under this subdivision shall
be punished with a felony and, if the escape or attempt to escape
was not by force or violence, is punishable by imprisonment in
the state prison for a determinate term of one year and one day,
or in a county jail not exceeding one year. A prisoner convicted
of a felony who willfully fails to return to his or her place of
confinement shall be convicted of a felony and, if the escape or
attempt toe escape was not by force or violence, is punishable by
imprisonment in the state prison for 16 months, two years, or
three years, to be served consecutively, or in a county jail not
exceeding one year.
42)Provide these sections shall remain in effect only until January
1, 2015 and as of that date are repealed unless a later statute
enacted before that date deletes or extends that date.
43)Double joins this bill with SB 1266 (Liu).
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AS PASSED BY THE ASSEMBLY , this bill:
1)Provided that notwithstanding any other provision of law, upon
determination by the correctional administrator that conditions
in a jail facility warrant the necessity of releasing sentenced
inmates prior to them serving the full amount of a given sentence
due to lack of jail space, the board of supervisors of any county
may authorize the correctional administrator to offer a program
under which inmates committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may be required to
participate in an involuntary home detention program, which shall
include electronic monitoring, 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.
2)Prescribed that every prisoner arrested and booked for, charged
with, or convicted of a felony, who is a participant in a home
detention program under existing law who escapes is guilty of a
felony; and, if the escape or attempt to escape was not by force
or violence, is punishable by imprisonment in the state prison
for 16 months, 2 or 3 years, to be served consecutively, or in a
county jail, not exceeding one year.
3)Stated that if the escape or attempt to escape is committed by
force or violence, the person is guilty of a felony, punishable
by imprisonment in the state prison for a full term of two, four,
or six years to be served consecutively to any other term of
imprisonment, commencing from the time the person would have been
released from imprisonment and the term shall not be subject to
reduction, or in a county jail for a consecutive term not to
exceed one year, that term to commence from the time the prisoner
otherwise would have been discharged from jail.
4)Excepted in unusual cases where the interests of justice would
best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted
to escape from a home detention program.
5)Mandated that the willful failure of a prisoner, to return to his
or her place of confinement no later than the expiration of the
period that he or she was permitted to participate in a home
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detention program, is an escape. A prisoner convicted of a
felony who willfully fails to return to his or her place of
confinement shall be punished by imprisonment in the state prison
for 16 months, 2 or 3 years, to be served consecutively, or in a
county jail, not exceeding one year.
FISCAL EFFECT : According to the Senate Appropriations Committee,
pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "Based on the lack of space in
the Los Angeles County jail system, a federal court has placed a
mandatory cap on the number of inmates in the system (Rutherford v.
Block). To adhere to the cap, the Sheriff's Department has reduced
the percentage of time served by inmates committed to county jail.
The Sheriff Department offered the voluntary EMP and in 2007 ran SB
959 (Romero and Runner) to create an involuntary home detention
EMP, 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 EMP 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 EMP,
the Department has been able to better manage and control the jail
population. If sentenced qualified, low-risk felony county jail
commitments (currently, there are about 230 eligible inmates in Los
Angeles County) are added to this section, we can better control
our population and create much needed room for the more serious
offenders."
Please see the policy committee for a full discussion of this bill.
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744
FN: 0006807
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