BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1078 (Denham) 8
As Introduced February 17, 2010
Hearing date: April 6, 2010
Penal Code
SM:dl
OUT-OF-STATE PRISONER TRANSFERS
HISTORY
Source: California Correctional Supervisors Organization
Prior Legislation: SB 300 (Karnette) - 2003, died on Assembly
Floor, gutted and amended
SB 1544 (Karnette) - 2002, vetoed
Support: Unknown
Opposition:Taxpayers for Improving Public Safety; California
Public Defenders Association
KEY ISSUES
SHOULD NO INMATE BE COMMITTED OR TRANSFERRED TO AN
INSTITUTION OUTSIDE OF THIS STATE BY ANY COURT OR OTHER
AGENCY OR OFFICER OF THIS STATE UNLESS THE GOVERNOR
PERSONALLY APPROVES THE TRANSFER?
SHOULD IT BE REQUIRED THAT ANY AGREEMENT TO CONFINE AN INMATE
IN AN INSTITUTION OUTSIDE OF THIS STATE REQUIRE THAT AT ALL
TIMES THE INMATE SHALL BE SUBJECT TO THE JURISDICTION OF THE
DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR) AND MAY
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AT ANY TIME BE REMOVED THEREFROM FOR ANY PURPOSE PERMITTED BY
THE LAWS OF THIS STATE?
(CONTINUED)
SHOULD CDCR BE REQUIRED TO ENSURE THAT, IN ANY AGREEMENT TO
TRANSFER AN INMATE OUTSIDE OF THIS STATE, THE RECEIVING STATE OR
COUNTRY SHALL NOT RELEASE THE INMATE BEFORE THE INMATE SERVES HIS
OR HER FULL SENTENCE?
SHOULD IT BE REQUIRED THAT NO AGREEMENT BE MADE TO TRANSFER AN
INMATE OUTSIDE OF THIS STATE IF A CALIFORNIA LAW ENFORCEMENT
AGENCY FROM A JURISDICTION WHERE THE ACTS LEADING TO THE INMATE'S
IMPRISONMENT TOOK PLACE ISSUES A PUBLIC STATEMENT OPPOSING THE
TRANSFER?
PURPOSE
The purpose of this bill is to require that, with respect to
inmates sentenced under the laws of this state; (1) no inmate
could be committed or transferred to an institution outside
of this state by any court or other agency or officer of this
state unless the Governor personally approves the transfer;
(2) any agreement to confine an inmate in an institution
outside of this state must provide that at all times the
inmate shall be subject to the jurisdiction of the Department
of Corrections and Rehabilitation (CDCR) and may at any time
be removed therefrom for any purpose permitted by the laws of
this state; (3) CDCR ensure that in any agreement to transfer
an inmate outside of this state, the receiving state or
country shall not release the inmate before the inmate serves
his or her full sentence; and (4) no agreement shall be made
to transfer an inmate outside of this state if a California
law enforcement agency from a jurisdiction where the acts
leading to the inmate's imprisonment took place issues a
public statement opposing the transfer.
Existing law provides that whenever a treaty is in force
providing for the transfer of offenders between the United
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States and a foreign country, the Governor or his designee is
authorized to give the approval of the state to a transfer as
provided in the treaty, upon the application of a person
under the jurisdiction of the Department of Corrections, the
Department of the Youth Authority, and the State Department
of Health Services. (Gov. Code 12012.1.)
Existing law provides that the Board of Prison Terms shall do
the following:
Under its Foreign Prisoner Transfer Program,
devise a method of notifying each undocumented felon
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 country of origin as provided in federal
treaties.
Actively encourage each eligible undocumented
felon to apply for return to his or her country of
origin as provided in federal treaties and shall
provide quarterly reports outlining its efforts under
this section to the Chairperson of the Joint
Legislative Budget Committee and the chairperson of
each fiscal committee of the Legislature.
Adopt the model program developed by the State of
Texas for encouraging participation in the federal
repatriation program where appropriate.(Penal Code
2912.)
Existing regulations provide:
Any foreign national under the jurisdiction of the
Department of Corrections and Rehabilitation may request
transfer to his country of citizenship to serve his
remaining confinement time if a treaty providing for
such transfer is in force between the United States and
the ward's country of citizenship. To be eligible for
transfer, the foreign national shall:
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o Be a citizen of the foreign country to
which he is requesting transfer.
o Have six or more months of available
confinement time at the time of transfer request.
o Have no pending appeals on the judgment or
sentence.
o Not have been convicted of a political,
military or immigration offense.
If the foreign national is eligible for transfer and
the documentation has been completed, he shall be
calendared to appear before the Board. The Board may
deny the transfer or order the ward transferred to the
prisoner exchange program for transfer to his county of
citizenship. (Title 15 Cal. Code of Regulations
4621.2.)
Existing regulations provide:
The Chairman of the Board of Prison Terms, as the Governor's
designee, has been given the authority to approve or
disapprove foreign prisoner transfers under the Convention on
the Transfer of Sentenced Persons pursuant to Government Code
section 12012.1. Any prisoner wishing to transfer to his/her
country of citizenship must submit a written request to the
Chairman.
(a) Requests . As a part of the request for transfer,
the prisoner must request that the receiving nation
submit a letter directly to the Chairman stating an
intention to accept the transferred prisoner and
indicating the receiving nation's intentions regarding
the incarceration of the prisoner. These indications
should include such information as the intended duration
of the prisoner's sentence in that country and the
parole programs available for the prisoner upon his
release. Once the Chairman has received the prisoner's
written request and the receiving nation's letter of
intent, the following factors will be considered and a
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decision rendered.
(b) Factors Considered. In making a decision on the
transfer of a sentenced person, factors to be considered
include, but are not limited to, the following:
(1) The possibility of the transfer contributing
to the prisoner's social rehabilitation;
(2) The gravity of the commitment offense;
(3) The prior criminal history of the prisoner;
(4) The health of the prisoner;
(5) The family, social, or other ties of the
prisoner to the sentencing state and the receiving
nation; and
(6) The relevant law within the receiving nation
for the criminal offense committed by the prisoner,
including sentencing guidelines. (Title 15, 2870,
Cal. Code of Regulations.)
Existing treaties, such as the 1983 Council of Europe
Convention on the Transfer of Sentenced Persons, provide for
transfers of persons serving criminal sentences between
signatory nations. The United States is a signatory to 12
multilateral and 2 bilateral prisoner transfer treaties. The
United States has prisoner transfer treaties in effect with
65 foreign countries.
This bill would provide that no inmate sentenced under
California law could be committed or transferred to an
institution outside of this state by any court or other
agency or officer of this state unless the Governor
personally approves the transfer.
This bill would provide that any agreement to confine an
inmate in an institution outside of this state must require
that at all times the inmate shall be subject to the
jurisdiction of the Department of Corrections and
Rehabilitation and may at any time be removed therefrom for
any purpose permitted by the laws of this state. The
Department of Corrections and Rehabilitation shall ensure
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that in any agreement to transfer an inmate outside of this
state the receiving state or country shall not release the
inmate before the inmate serves his or her full sentence.
This bill would provide that no agreement shall be made to
transfer an inmate outside of this state if a California law
enforcement agency from a jurisdiction where the acts leading
to the inmate's imprisonment took place issues a public
statement opposing the transfer.
This bill provides that it applies to inmates sentenced by a
court of this state.
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
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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.)
. . .
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
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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. That appeal, and the final outcome of this
litigation, is not anticipated until later this year or 2011.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
Annika Ostberg Deasy, who was sentenced in 1983 to
life in prison for two brutal murders, was
transferred to a prison in her home country of
Sweden. Swedish officials have announced they will
release her next year. To avoid the death penalty,
Deasy pleaded guilty to two first degree murders,
including the murder of a Lake County Sheriff's
sergeant, and she was sentenced 25 year to life in
prison.
Symbionese Liberation Army (SLA) member Sara Jane
Olson served a minimum seven-year prison for
attempting to kill Los Angeles police officers with
a pipe bomb and participating in an armed bank
robbery that ended in the slaying of Myrna Opsahl,
a Carmichael (Sacramento region) mother of four and
church worker.
-------------------
<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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Olson is a radical, whose crimes were committed in
the 1970s, yet she managed to dodge arrest until
1999. She fled the state, changed her name, and
lived a leisurely life of lies and deception in
Minnesota, while Myrna Opsahl's children were
forced to grow up without their mother. Police
officials in Los Angeles and Minnesota police
leagues publicly opposed Olson's parole and
transfer, but this terrorist was sent back to her
double life in Minnesota, where she lived on the
lam for 24 years. That is not justice for Myrna
and her family.
It is a gross injustice for victims and their
families when criminals transferred out of
California get out of prison before serving their
full sentence, or get to enjoy an easier prison
setting out-of-state.
SB 1078 would ensure criminals be required to serve
their full sentences if given the luxury of
transferring out of the state and would give
victims and their families the justice they deserve
and demand from the criminal justice system.
2. The International Prisoner Transfer Program
Authority to approve transfers of foreign citizen inmates to
their native countries to serve the remainder of their prison
terms is delegated to the Executive Officer of the Board of
Parole Hearings (BPH) by the Governor under the provisions of
Government Code section 12012.1. This bill would eliminate
the Governor's ability to delegate that power and require the
Governor to personally approve each transfer.
According to CDCR, upon receiving a request for transfer from
an inmate, BPH evaluates the request and, if approved, a
transfer package is sent to the United States Justice
Department, International Prisoner Transfer Unit (IPTU) to
review for approval or disapproval. If the IPTU approves the
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transfer, the package is sent to the foreign nation for
transfer approval.
The factors listed below are considered when
deciding whether a prisoner should be approved for
transfer:
Treaty restrictions.
Prisoner's family and other social ties to the
sending and receiving countries.
Humanitarian concerns.
Prisoner acceptance of responsibility.
Prisoner criminal ties to the sending and
receiving countries.
Prisoner criminal history.
Seriousness of the offense.
Law enforcement concerns.
Likelihood of the prisoner returning to the
United States.
In order for a transfer to occur, the prisoner, the
State of California, the United States Government,
and the foreign nation must agree to the transfer.
All of the treaties have certain common provisions:
1. The prisoner must be convicted and sentenced.
2. The prisoner must have some minimum period of
time to serve of his or her sentence, usually six
months, two treaties require one year.
3. The judgment and conviction must be final. This
means there must be no pending court proceeding by
way of either a direct appeal or, under most
treaties, a collateral attack against either the
judgment or the sentence.
4. The crime for which the prisoner was convicted
in the United States must be an offense under the
laws of the receiving country had it been committed
there.
5. The sentence cannot be a capital sentence.
6. The prisoner cannot be convicted solely of a
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military or political offense.
Some treaties have restrictions on indeterminate
sentences. Some treaties have restrictions how
long a prisoner has lived in the United States.
( http://www.cdcr.ca.gov/Divisions_Boards/BOPH/docs/Brochure_fo
r_Inmate_Transfer_8-01-07_eng.pdf.pdf )
According to the US Department of Justice, Office of
Enforcement Operations:
In order for a prisoner to be transferred, both the
transferring country and the receiving country must
agree to the transfer; the prisoner must also give
his consent. Additional specific conditions of
eligibility are delineated in the various treaties.
Much of the practice and procedure for prisoner
transfers is governed by 18 U.S.C. 4100 et seq.
A prisoner who is interested in transferring should
apply to the Warden of the facility at which he is
incarcerated, with the advice and assistance, if
necessary, of a consular official of his home
country.
The decision to approve or deny a proposed transfer
is committed to the discretion of the Department of
Justice and is based upon the entire record of the
offender. The factors considered in determining
the appropriateness of transfer include the
seriousness of the offense and the prisoner's role
in it, the existence of outstanding fines or
restitution orders, the offender's prior criminal
record (if any), the strength of the offender's
ties to each country, and the likelihood that
transfer of the prisoner will, in fact, promote his
or her rehabilitation. Occasionally, special
humanitarian concerns -- such as the terminal
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illness of a prisoner or a close family member --
are considered. The Department of Justice collects
information about each proposed transferee from a
variety of sources and deliberates carefully before
deciding. The process usually takes at least three
months.
( http://www.justice.gov/criminal/oeo/links/intlprisoner/progra
m.html )
A detailed description of the federal government's guidelines
for evaluating prisoner applications for transfer can be
viewed on its web page:
http://www.justice.gov/criminal/oeo/links/intlprisoner/guideli
nes.html
3. Retaining Jurisdiction over Prisoners Transferred to
Foreign Countries
This bill would provide that "any agreement to confine an
inmate in an institution outside of this state must require
that at all times the inmate shall be subject to the
jurisdiction of the Department of Corrections and
Rehabilitation and may at any time be removed therefrom for
any purpose permitted by the laws of this state." This would
require the foreign country to waive all territorial
sovereignty and allow agents of the Department of Corrections
and Rehabilitation to at any time enter the foreign country
and remove the inmate. It is hard to imagine any sovereign
country waiving its territorial jurisdiction to that extent.
Additionally, this bill would require that "the Department of
Corrections and Rehabilitation shall ensure that in any
agreement to transfer an inmate outside of this state the
receiving state or country shall not release the inmate
before the inmate serves his or her full sentence." This
would likely contravene the terms of numerous existing
prisoner transfer treaties to which the United States is a
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signatory. For example, Article 12 of the Counsel of Europe
Convention on the Transfer of Sentenced Persons (the
"Strasbourg Treaty"), to which the United States is a
signatory, provides "Each Party may grant pardon, amnesty or
commutation of the sentence in accordance with its
Constitution or other laws."
The US Department of Justices' Guidelines for Evaluating
Prisoner Applications for Transfer, Section 3 (c) 1 provides:
Where a sentenced person has been convicted by a
state of the United States of crimes under the laws
of that state and is in the custody of authorities
of that state (as opposed to having been convicted
in the federal courts of a crime under the United
States Code), the United States will not approve a
transfer unless the state first gives it consent.
By adopting the provisions of this bill, California would be
creating legal impediments to participation in any prisoner
transfer under the terms of the Strasbourg Treaty and other
treaties with similar provisions. Members may wish to
consider what the effects of this blanket policy of refusing
to participate in existing prisoner transfer treaties with
these countries could mean. At a minimum it would most
likely invite reciprocal actions by the signatories to these
treaties whereby they would refuse all requests by the United
States to transfer US citizens held in their prisons to the
US under these prisoner transfer agreements.
In 2005, the Legislative Analyst's Office recommended that
California increase it's utilization of the Foreign Inmate
Transfer Program:
The Foreign Prisoner Transfer Treaty Program has
the potential to reduce state incarceration costs,
but because of administrative issues, the state
does not obtain the maximum benefit that could be
achieved. We recommend that the Legislature
authorize the expansion of this program to generate
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more cases and process them more quickly. The
resulting incarceration savings would likely offset
program costs, and increase in future years.
* * * * *
California Does Not Transfer Many Inmates. The BPT
estimates that about 6,500 foreign inmates are
eligible for transfer. The BPT has successfully
transferred 15 foreign inmates over the past three
years. By comparison, the federal prison
system-which has approximately the same number of
total inmates (foreign and domestic) as California
-has transferred 857 inmates over the same period.
In part, California has transferred few inmates
because its prisons contain a higher percentage of
inmates who have committed violent crimes and are
permanent residents of the United States, both
factors that make inmates less likely to be
considered suitable for the transfer program by
BPT. However, our analysis indicates that
California 's low transfer rate is also the result
of several administrative issues that result in few
inmate applications for transfer and delays in
processing transfer cases.
LAO concluded that, "While the exact amount of long-run
savings will depend on several factors, an increase of 25
inmate transfers each year, for example, would result in
offsetting savings of about $1 million annually."
(LAO Analysis of the 2005-2006 Budget, Feb. 2005,
http://www.lao.ca.gov/analysis_2005/crim_justice/cj_03_cc_fore
ign_anl05.htm)
WOULD ADOPTING THESE RESTRICTIONS ON PRISONER TRANSFERS
EFFECTIVELY END TRANSFERS OF FOREIGN NATIONALS FROM
CALIFORNIA PRISONS?
IF CALIFORNIA ENDS ALL PARTICIPATION IN TRANSFERS OF FOREIGN
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NATIONALS FROM ITS PRISONS TO THEIR HOME COUNTRIES, WOULD
THIS INVITE OTHER COUNTRIES TO REFUSE ALL TRANSFERS OF US
CITIZENS IN THEIR PRISONS TO THE UNITED STATES?
SHOULD CALIFORNIA ACTUALLY BE INCREASING ITS UTILIZATION OF
THE FOREIGN PRISONER TRANSFER PROGRAM AS A MEANS TO ACHIEVE
BUDGET SAVINGS?
4. Denying Transfers based on Public Statements of Law
Enforcement Agencies
Additionally, this bill would provide that "no agreement
shall be made to transfer an inmate outside of this state if
a California law enforcement agency from a jurisdiction where
the acts leading to the inmate's imprisonment took place
issues a public statement opposing the transfer." Section 2
of the US Department of Justices' Guidelines for Evaluating
Prisoner Applications for Transfer, specifically addresses
the concerns of law enforcement. Subsection (b), entitled
"Public Sensibilities" asks, "Would the return of the
prisoner to a foreign country so outrage public sensibilities
because of the extremely serious nature of the prisoner's
crimes or the circumstances surrounding the prisoner's crimes
as to outweigh the rehabilitation considerations?" Members
may wish to consider whether this issue is adequately
addressed in the US Department of Justice guidelines or
whether a local law enforcement agency should have the
ability to make a final determination of the transfer
decision, regardless of any other considerations.
DO THE EXISTING GUIDELINES OF THE US DEPARTMENT OF JUSTICE
ADEQUATELY ADDRESS THE PUBLIC SENSIBILITIES ABOUT THE NATURE
OF THE CRIME?
5. The Transfer of Annika Ostberg Deasy
According to the author's office, this bill was inspired, in
part by the transfer of Annika Ostberg Deasy to Sweden.
In a story dated April 7, 2009, UPI reported:
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NEW YORK, April 7 (UPI) -- Convicted accessory to
murder Annika Ostberg Deasy is heading to her
native Sweden after more than 27 years in a
California prison, authorities say.
Deasy, who was found guilty of murder for being
present when her boyfriend killed a police officer
and a Stockton, Calif., restaurant owner, will be
returned to Sweden to complete her sentence of 25
years to life in prison, the Swedish news agency
Tidningarnas Telegrambyra reported.
"She has been released from the prison after an
agreement with the Swedish government. She will be
transferred to Sweden," a prisons representative
said.
Reports in Sweden indicated Deasy spent Monday
night in the Metropolitan Correctional Center in
New York after being transferred from the
California Institution for Women and would be flown
to Stockholm on a private jet chartered by the
Swedish prisons service.
TT said Deasy, 55, moved to California with her
mother in the 1960s, developed a drug problem and
ran away from home as a teenager. She become
involved with drug dealer Brian Cox who in April
1981 killed two people while Deasy was accompanying
him.
(California prisoner deported to Sweden, April 7, 2009, UPI.
http://www.upi.com/Top_News/2009/04/07/California-prisoner-dep
orted-to-Sweden/UPI-41101239113464/)
According to CDCR:
The U.S. Department of Justice administers the
International Prisoner Transfer Program for the
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United States. Although state approval for the
transfer is required before U.S. approval or
disapproval can be given, the process is federally
governed. . . .The United States government is the
controlling administrator of the foreign prisoner
transfer program. Accordingly, individual states
are not permitted to negotiate or make "demands" of
other foreign governments. States are permitted to
seek assurance that a prisoner's transfer would be
consistent with the terms and provisions of the
program. In this case, California officials
confirmed that inmate Deasy would be transferred
and designated as a life term prisoner and that
Sweden would continue to enforce the California
sentence in accordance with the terms of the
treaties.
DOES THE TRANSFER OF ANNIKA OSTBERG DEASY JUSTIFY ENDING
CALIFORNIA'S PARTICIPATION IN ALL INTERNATIONAL PRISONER
TRANSFERS?
6. The Parole Transfer of Sara Jane Olson
Information provided by the author indicates that this bill
is also brought partially in response to the decision to
allow Sara Jane Olson to transfer her parole supervision to
her home state of Minnesota.
The Minneapolis Star-Tribune reported on the transfer:
Ramsey County corrections officials may know as
early as today when the 1970s militant and longtime
fugitive, now 62, is expected to arrive back home
in St. Paul.
Olson was released from a California prison shortly
after midnight Tuesday after serving seven years
for trying to blow up police cars and participating
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in a bank robbery in which a woman was killed. She
will serve her one-year parole in Minnesota, a
situation that sparked sharp public debate and
prompted a protest from Gov. Tim Pawlenty.
Late Tuesday, Ramsey County officials were awaiting
word on when Olson was expected to leave
California. Under an interstate compact, California
correction officials must inform Ramsey County when
Olson expects to leave that state, her expected
arrival time and her mode of transportation to
Minnesota, said Chris Crutchfield, spokesman for
the Ramsey County Community Corrections Department.
That word had not yet been conveyed Tuesday night.
One of Olson's attorneys, David Nickerson, said he
was glad his client had been freed and is being
paroled to Minnesota. "I think that's obviously the
best place for her," he said. "That's where her
family is."
Whether Olson would serve her parole in California,
where her crime took place, or in Minnesota, where
her family and friends live, sparked controversy in
the days before the release of the former
Symbionese Liberation Army (SLA) member.
Police unions in Los Angeles and St. Paul urged
California to keep Olson there. Pawlenty and GOP
legislators made last-ditch efforts to prevent her
return, with the governor arguing that Olson "is
not a typical parolee. She is someone associated
with domestic terrorism."
But attempts to put the Legislature on record as
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opposing Olson's return were blocked. And when
Pawlenty asked California Gov. Arnold
Schwarzenegger to make Olson serve her parole
there, Schwarzenegger said he would let his
corrections officials handle the matter.
(Sara Jane Olson freed, headed back to St. Paul, Paul Walsh
and Mary Lynn Smith, Minneapolis Satr-Tribune, March 17,
2009,
http://www.startribune.com/local/41364847.html?elr=KArksLckD8E
QDUoaEyqyP4O:DW3ckUiD3aPc:_Yyc:aUUs.)
Because this bill addresses transfer of inmates as opposed to
parolees, it would have no effect on the transfer of parole
supervision to another state such as that which took place in
the case of Sara Jane Olson.
7. Effect on Interstate Transfers of Prisoners
California currently transfers prisoners out of state to
relieve overcrowding in California Prisons.
In a January 2010 report on California's Out-of State
Correctional Facility Program, the Legislative Analyst's
Office Stated:
The California Out-of-State Correctional Facility
(COCF) program is administered by the California
Department of Corrections and Rehabilitation
(CDCR). Its mission is to transfer inmates out of
state for the purpose of temporarily alleviating
overcrowding within existing state prisons.
Number of Inmates. The department currently has
8,021 male inmates housed in five out-of-state
facilities. Inmates housed in these facilities are
generally higher security level inmates. Most
inmates have been transferred involuntarily.
Inmates with serious medical and mental health
issues are generally excluded from the program.
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* * * * *
In October 2006, the Governor issued a State of
Emergency Proclamation related to prison
overcrowding. This proclamation directed CDCR to
immediately contract with and transfer inmates to
out-of-state correctional facilities. In addition,
the measure (1) suspended statutory restrictions on
the involuntary transfer of inmates, (2) specified
criteria for selecting inmates, and (3) waived
applicable state contract laws, including
requirements for competitive bidding.
Legislature Authorizes Involuntary Transfers. In
May 2007, the Legislature enacted Chapter 7,
Statutes of 2007 (AB 900, Solorio). Among other
provisions, this legislation authorized CDCR to
transfer inmates to out-of- state facilities on an
involuntary basis until July 1, 2011, or until the
department had replaced all "temporary beds" in the
prison system (whichever is later). The
legislation did not specify the total number of
transfers to take place.
(http://www.lao.ca.gov/handouts/crimjust/2010/Out_of_state_Cor
rection_Facility_Program_01_20_10.pdf)
These transfers take place pursuant to the Interstate
Corrections Compact and the Western Interstate Corrections
Compact. Article IV, subdivision (c) of that compact reads:
Inmates confined in an institution pursuant to the
terms of this compact shall at all times be subject
to the jurisdiction of the sending state and may at
any time be removed therefrom for transfer to a
prison or other institution within the sending
state, for transfer to another institution in which
the sending state may have a contractual or other
right to confine inmates, for release on probation
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or parole, for discharge, or for any other purpose
permitted by the laws of the sending state;
provided that the sending state shall continue to
be obligated to such payments as may be required
pursuant to the terms of any contract entered into
under the terms of Article III.
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The Western Interstate Corrections Compact has nearly identical
language. Therefore this bill's provision that the state would
retain jurisdiction over the prisoner while he or she is
transferred to another state does nothing to amend existing law.
However, this bill would give the authority to any law
enforcement agency "from a jurisdiction where the acts leading
to the inmate's imprisonment took place" to veto any prisoner
transfer simply by issuing a public statement opposing the
transfer. Apparently a statewide law enforcement agency, such
as the California Highway Patrol, could object to any prisoner
transfers, because their jurisdiction extends throughout the
state.
COULD ALLOWING LAW ENFORCEMENT AGENCIES VETO POWER OVER PRISONER
TRANSFER DECISIONS FRUSTRATE THE GOALS OF THE POLICY?
SHOULD INDIVIDUAL LAW ENFORCEMENT AGENCIES BE AUTHORIZED TO
OVERTURN THE DECISION BY THE GOVERNOR AND THE LEGISLATURE TO
AUTHORIZE INTERSTATE TRANSFER OF PRISONERS?
8. Argument in Favor
The California Correctional Supervisors Organization states:
The impact of unbridled transfers have negatively
impacted visitation by families of inmates, and have
moved jobs to other states that should have remained
in California. Our organization was not against these
transfers when staff and inmate safety was in
jeopardy, but that is not the case at this time. It
is now time to bring these inmates home in a
controlled manner and expand our ability to maintain
California's custody prisons.
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