BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session J
R
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SJR 12 (Benoit)
As Amended June 30, 2009
Hearing date: July 7, 2009
Uncodified
MK:br
CRIMINAL ALIENS
HISTORY
Source: Author
Prior Legislation: SB 125 (Benoit) - failed Senate Public Safety
2009
SB 1608 (Karnette) - Ch. 924, Stats. 2004
SB 300 (Karnette) - 2003; failed on Assembly floor,
provisions subsequently deleted
SB 1544 (Karnette) - vetoed September 29, 2002
AJR (Firebaugh and Aanestad) - Res. Ch. 108, Stats.
2001
SJR 40 (Polanco) - held in Assembly, 2000
SB 1314 (Johanessen) - Ch. 567, Stats. 1994
SB 1878 (Torres) - Ch. 565, Stats. 1994
AB 1874 (Epple) - Ch. 566, Stats. 1994
AB 2519 - Ch. 1322, Stats. 1992
Support: California Correctional Peace Officers Association
Opposition:American Civil Liberties Union (concerned);
California Immigrant Policy Center (concerned)
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KEY ISSUES
SHOULD IT BE RESOLVED THAT THE LEGISLATURE URGES CONGRESS AND
THE PRESIDENT TO RESTORE FUNDING FOR THE STATE CRIMINAL ALIEN
ASSISTANCE PROGRAM?
(CONTINUED)
SHOULD IT BE RESOLVED THAT THE LEGISLATURE URGES CONGRESS AND THE
PRESIDENT TO ADEQUATELY FUND THE STATE CRIMINAL ALIEN ASSISTANCE
PROGRAM TO FULLY REIMBURSE THE STATES FOR THE FULL COST OF
INCARCERATING UNDOCUMENTED CRIMINAL ALIENS?
PURPOSE
The purpose of this resolution is to urge Congress and the
President to adequately fund the State Criminal Alien Assistance
Program to fully reimburse the states for the full cost of
incarcerating undocumented criminal aliens.
Existing law requires that the Department of Corrections do the
following:
Upon the entry of any person who is currently or
was previously a foreign national into a facility
operated by the Department of Corrections, and at
least every year thereafter, the Director of
Corrections shall inform the person that he or she
may apply to be transferred to serve the remainder
of his or her prison term in his or her country of
origin and that he or she may contact his or her
consulate.
Upon the request of a foreign consulate
representing a nation that requires mandatory
notification under the Vienna Convention, shall
provide the foreign consulate with a list of the
names and locations of all inmates in its custody
that have self-identified that nation as his or her
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place of birth.
Implement and maintain procedures to process
applications for the transfer of prisoners to their
countries of origin and forward the applications to
the Board of Prison Terms for appropriate action.
(Penal Code 5028.)
Existing law requires that the Department of Corrections and the
California Youth Authority (CYA) shall implement and maintain
procedures to identify, within 90 days of assuming custody,
inmates or wards who are undocumented felons subject to
deportation and sets forth specified things that the procedures
must include. (Penal Code 5025.)
Existing law provides that the Department of Corrections and the
California Youth Authority shall refer to the United States
Immigration and Naturalization Service the name and location of
any inmate or ward who may be an undocumented alien and who may
be subject to deportation for a determination of whether the
inmate or ward is undocumented. The case files should be made
available to the Immigration and Naturalization Service for
purposes of investigation. (Penal Code 5025)
Existing federal law provides that the State Criminal Alien
Assistance Program (SCAAP) provides federal payments to states
and localities that incurred correctional officer salary costs
for incarcerating undocumented criminal aliens with at least
one felony or two misdemeanor convictions for violations of
state or local law, and incarcerated for at least 4
consecutive days during the reporting period. (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, Public Law
103-322.)
This resolution makes the following statements:
WHEREAS, The federal government has a legal and moral
obligation to keep our borders secure and, if it does not,
it should pay the state the full cost of incarcerating
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undocumented criminal aliens; and
WHEREAS, Federal law states that when a chief executive
officer of a state submits a written request to the United
States Attorney General for reimbursement the Attorney
General will either enter into a contractual arrangement
that provides for compensation to the state to incarcerate
the undocumented criminal alien or take the undocumented
criminal alien into the custody of the federal government
(8 U.S.C. Sec. 1231); and
WHEREAS, The State Criminal Alien Assistance Program was
created in 1994 for the purpose of reimbursing states for
the costs of incarcerating undocumented criminal aliens;
and
WHEREAS, Federal law provides that the State Criminal
Alien Assistance Program provide federal payments to states
and localities that incur costs for incarcerating
undocumented criminal aliens; and
WHEREAS, Twelve percent of California's current prison
population is composed of undocumented criminal aliens,
with each inmate costing the state $48,536 each year; and
WHEREAS, In fiscal year 2008-09, it cost the State of
California over $970 million to house undocumented criminal
aliens; and
WHEREAS, In fiscal year 2008-09 the State of California
was reimbursed only $111 million from the State Criminal
Alien Assistance Program, making up only 11 percent of the
total cost to house these undocumented criminal aliens; and
WHEREAS, The President of United States recently
announced his intention to eliminate funding for the
State Criminal Alien Assistance Program in fiscal
year 2010.
This resolution resolves that the Senate and the Assembly of the
State of California, jointly, that the Legislature respectfully
urges Congress and the President to restore funding for the
State Criminal Alien Assistance Program.
This resolution further resolves that the Legislature urges
Congress and the President to adequately fund the State Criminal
Alien Assistance Program to fully reimburse states for the full
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cost of incarcerating undocumented criminal aliens.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
COMMENTS
1. Need for This Bill
According to the author:
The State Criminal Alien Assistance Program was
initiated in 1994. This program was created in order to
reimburse states and counties for the cost of housing
incarcerated undocumented criminal aliens in their
prisons and jails.
Federal law states that when a chief executive officer
of a state submits a written request to the United
States Attorney General for reimbursement, the Attorney
General will either enter into a contractual arrangement
that provides for compensation to the state to
incarcerate the undocumented criminal alien or take the
undocumented criminal alien into the custody of the
Federal government (Aliens and Nationality 8 USC
1231).
On May 7, 2009 President Obama released his proposed
budget for fiscal year 2010. Within this budget, the
President eliminated or reduced funding for numerous
programs that he felt were under utilized or were no
longer needed. In this budget the President eliminated
the funding for the SCAAP program.
According to statistics obtained from the United States
Department of Justice, undocumented criminal aliens
comprise 12% of California's prison population in 2008.
Each inmate costs California taxpayers an estimated
$48,536. Between 2005 and 2008, there was an 11% spike
in the number of undocumented criminal aliens housed in
our state prisons.
In the 2008-09 fiscal year, California's costs are
estimated to be $970 million. The Federal Government's
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reimbursement of only $111 million does not keep pace
with the state's rising costs.
Since 2000, California has been forced to expend almost
$9 billion out of our state budget to cover federal
shortfalls on their legal obligation to reimburse our
state for housing undocumented criminal aliens.
SJR 12 calls upon Congress and the President of the
United States to restore funding for the State Criminal
Alien Assistance Program (SCAAP) in the 2010 fiscal
year.
Furthermore, SJR 12 calls upon Congress and the
President to adequately fund the SCAAP program to
reimburse states the full cost of housing incarcerated
undocumented criminal aliens.
2. Urging Full Funding of SCAAP
Currently, the Department of Corrections and Rehabilitation
(CDCR) applies yearly to the Federal Government for
reimbursement for the housing of all undocumented immigrant
inmates under the State Criminal Alien Assistance Program
(SCAAP). Under SCAAP, CDCR is actually permitted to apply for
reimbursement for any inmate that is foreign born. Since only
the Federal Government not California can determine whether
someone is in the country illegally, this ability to be over
inclusive gives California the ability to have a greater chance
at higher reimbursement. However, generally the reimbursement
rate runs around 10%. In fiscal year 2008, according to the
SCAAP Web site, the State of California received $118,030,160
from SCAAP. Fifty-two counties in California also received
money ranging from $2,024 for Mariposa County to $14,054,100 for
Los Angeles County. Eleven Counties received in the $1 million
to $3 million range.
(http://www.ojp.usdoj.gov/BJA/grant/scaap.html)
Over the last few years then President Bush and now President
Obama have "zeroed out" the funding for SCAAP in their proposed
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budgets. Congress then restores funding for SCAAP and then that
number is lowered during budget negotiations and eventually
states and locals are rewarded a portion of what they requested
for reimbursement. According to a June 4, 2009 posting on the
Web site for Arizona Congressman Harry Mitchell, a congressional
subcommittee has restored some but not all of the SCAAP funding
for 2010.
This Resolution urges Congress and the President to fully fund
SCAAP to fully reimburse the states for the full cost of
incarcerating undocumented criminal aliens.
SHOULD CONGRESS AND THE PRESIDENT BE URGED TO FULLY FUND SCAAP
AND FULLY REIMBURSE THE STATES FOR THE FULL COST OF
INCARCERATING UNDOCUMENTED CRIMINAL ALIENS?
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