BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1266|
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THIRD READING
Bill No: SB 1266
Author: Liu (D), et al
Amended: 5/19/10
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/13/10
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Cogdill, Huff
SENATE APPROPRIATIONS COMMITTEE : 6-4, 5/17/10
AYES: Kehoe, Alquist, Corbett, Leno, Wolk, Yee
NOES: Cox, Denham, Walters, Wyland
NO VOTE RECORDED: Price
SUBJECT : Inmates: alternative custody
SOURCE : Author
DIGEST : This bill establishes an alternative custody
program within the Department of Corrections and
Rehabilitation under which eligible female inmates,
pregnant inmates, or inmates who were the primary
caregivers of dependent children would be allowed to
participate in lieu of their confinement in state prison,
as specified.
ANALYSIS : Existing law provides a system of prisons
under the Department of Corrections and Rehabilitation
(CDCR) to house inmates committed to state prison for
felonies.
CONTINUED
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This bill provides the Secretary of CDCR with the statutory
authority to offer a program with the following
requirements and features:
1. Eligibility; Statutorily Ineligible Inmates
This bill authorizes the Secretary of CDCR to "offer a
program under which female inmates, pregnant inmates, or
inmates who were primary caregivers of dependent
children immediately prior to incarceration," as
specified and limited.
This bill provides that "primary caregivers of dependent
children" means:
A. The child is the inmate's son, daughter, step
child, adopted child, or foster child.
B. The child is 17 years of age or less at the time
of the inmate's placement into the alternative
custody program.
C. The child resided with the inmate for the majority
of the year preceding the inmate's arrest.
D. At the time the inmate was arrested, the inmate
had physical custody of the child and was primarily
responsible for the care and upbringing of the child.
Factors that may be considered when determining
whether the inmate was primarily responsible for the
care and upbringing of the child include, but are not
limited to, the following, provided that an inmate
may be determined to be primarily responsible for the
care and upbringing of a child without satisfying all
of these factors:
(1) The inmate supervised the child's daily
activities.
(2) The inmate provided the necessities of life
for the child.
(3) The inmate was the person responsible for
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arranging day care for the child, if and when
necessary.
(4) The inmate was responsible for the child's
medical needs and arranging doctor appointments or
hospital visits, if and when necessary.
(5) The inmate was responsible for arranging for
the child's attendance at school.
This bill applies this program to "female inmates,
pregnant inmates, or inmates who were primary caregivers
of dependent children immediately prior to incarceration
sentenced to state prison for a determinate term of
imprisonment ?"
This bill prohibits an inmate who meets any of the
following criteria from being eligible for the program:
A. The person has a current or prior conviction for a
violent felony as defined in Section 667.5 of the
Penal Code.
B. The person has a current or prior conviction for a
serious felony as defined in Section 1192.7 and
1192.8 of the Penal Code.
C. The person has a current or prior conviction for
an offense that requires the person to register as a
sex offender as provided in Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1 of the Penal
Code.
D. The person was screened by the department using a
validated risk assessment tool and determined to pose
a high risk to commit a violent offense.
E. The person has a history, within the last 10
years, of escape from a facility while under juvenile
or adult custody, including, but not limited to, any
detention facility, camp, jail, or state prison
facility.
This bill explicitly provides that its provisions not be
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construed "to require the secretary or his or her
designee to allow an inmate to participate in this
program if it appears from the record that the inmate
has not satisfactorily complied with reasonable rules
and regulations while in custody. An inmate shall be
eligible for participation in an alternative custody
program only if the secretary or his or her designee
concludes that the inmate meets the criteria for program
participation established under this section and that
the inmate's participation is consistent with any
reasonable rules and regulations prescribed by the
secretary."
This bill provides that the "secretary or his or her
designee shall have the sole discretion concerning
whether to permit program participation as an
alternative to custody in state prison."
This bill requires an inmate participating in this
program to "voluntarily agree to all of the provisions
of the program in writing, including that he or she may
be returned to confinement at any time with or without
cause, and shall not be charged fees or costs for the
program."
This bill requires CDCR to retain responsibility for the
medical and mental health needs of individual's
participating in the alternative custody program.
2. Nature of Program
This bill authorizes a program under which eligible
inmates "may be allowed to participate in a voluntary
alternative custody program ? in lieu of their
confinement in state prison."
This bill provides that in "order to qualify for the
program an offender need not be confined in an
institution under the jurisdiction of the CDCR."
This bill provides that an "alternative custody program
shall include, but not be limited to, the following:
(1) Confinement to a residential home during the hours
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designated by the department.
(2) Confinement to a residential drug or treatment
program during the hours designated by the
department.
(3) Confinement to a transitional care facility during
the hours designated by the department."
This bill requires CDCR to "permit program participants
to seek and retain employment in the community, attend
psychological counseling sessions or educational or
vocational training classes, participate in life skills
or parenting training, utilize substance abuse treatment
services, or seek medical and dental assistance.
Participation in other rehabilitative services and
programs may be approved by the case manager if it is
specified as a requirement of the inmate's
individualized treatment and rehabilitative case plan."
3. Supervision of Participants
This bill requires that an alternative custody program
"include the use of electronic monitoring, global
positioning system devices, or other supervising devices
for the purpose of helping to verify a participant's
compliance with the rules and regulations of the
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, in which case the recording of such a
conversation is to be used solely for the purposes of
voice identification."
4. Credits
This bill provides that "one day of participation in an
alternative custody program shall be in lieu of one day
of incarceration in a state prison. Participants in the
program shall receive any sentence reduction credits
that they would have received had they served their
sentence in a state prison, and shall be subject to
denial and loss of credit . ? "
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5. Sanctions
This bill provides that the "(w)illful failure of the
program participant to return to the place of 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 detention pursuant to this bill, unauthorized
departures from the place of detention, or tampering
with or disabling, or attempting to tamper with or
disable, an electronic monitoring device shall subject
the participant to a return to custody . ?" This bill
additionally subjects participants to forfeiture of
credits or to discipline for violation of rules
established by the Secretary.
This bill provides that every inmate who is a
participant in an alternative custody program who
escapes or attempts to escape from the program is guilty
of a misdemeanor.
6. Local Notification
This bill requires CDCR to provide the following
information regarding participants in an alternative
custody program to the law enforcement agencies of the
jurisdiction in which persons participating in an
alternative custody program reside:
A. The participant's name, address, and date of
birth.
B. The offense committed by the participant.
C. The period of time the participant will be subject
to an alternative custody program.
This bill requires that any information received by a
law enforcement agency be used only for the purpose of
monitoring the impact of an alternative custody program
on the community.
7. Miscellaneous Provisions
This bill authorizes CDCR to enter into contracts with
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county agencies, not-for-profit organizations,
for-profit organizations, and others in order to promote
alternative custody placements.
This bill authorizes the Secretary of CDCR to prescribe
reasonable rules and regulations for this program, as
specified.
This bill requires that program participants be informed
in writing of these rules, as specified, but not limited
to the following rules:
A. Remaining within the interior premises of his/her
residence during the hours designated by the
secretary or his/her designee.
B. Being subject to search and seizure by a peace
officer at any time of the day or night, with or
without cause, as specified.
C. Being retaken into custody to serve the balance of
his/her sentence if the electronic monitoring or
supervising devices are unable for any reason to
properly perform their function at the designated
place of detention, if the participant fails to
remain within the place of detention as stipulated in
the agreement, or if the participant for any other
reason no longer meets the established criteria.
This bill provides that whenever a peace officer
supervising a participant has reasonable suspicion 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 take the participant into custody, as
specified.
This bill requires that the rules and regulations and
administrative policies of the program be in writing, as
specified.
This bill states legislative intent that the program
created by this bill "maintain the highest public
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confidence, credibility, and public safety. In the
furtherance of these standards, the secretary may
administer an alternative custody program pursuant to
written contracts with appropriate public agencies or
entities to provide specified program services. No
public agency or entity entering into a contract may
itself employ any person who is in an alternative
custody program."
8. Severability Clause
This bill provides that if "any phrase, clause,
sentence, or provision of this section or application
thereof to any person or circumstance is held invalid,
such invalidity shall not affect any other phrase,
clause, sentence, or provision or application of this
section, which can be given effect without the invalid
phrase, clause, sentence, or provision or application
and to this end the provisions of this section are
declared to be severable."
9. Legislative Intent Language
This bill contains legislative intent regarding
incarcerated female offenders, and the children of
incarcerated mothers, as specified.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
Alternative custody Potentially substantial
prison cost reduction General
50% allocation to CDCR
Potentially significant cost pressure
General
If the cost of the program is simply calculated as an
average cost per participating inmate and is compared to a
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prison-wide average incarceration cost, the savings
reflected might not be accurate for the specific
individuals being diverted to the program. If the savings
is overestimated, the 50 percent of that calculated number
would also be overestimated and allocated back to CDCR. In
that situation, the actual General Fund savings would be
substantially eroded. The inmate average cost is $26,000
more than residual cost. In combination with potential
cost shifts to other state funded social services, the
possibility exists that the program could result in a net
cost to the state if the costs and savings factors are not
accurately assessed. Additionally, because this language
provides legislative intent, and not an appropriation, the
actual allocation of savings would have to be made in a
future bill, which further confuses the issue of how the
ultimate savings determination will be made.
SUPPORT : (Verified 5/18/10)
California Catholic Conference, Inc.
Drug Policy Alliance
Los Angeles Dependency Lawyers, Inc.
Planned Parenthood Affiliates of California
Taxpayers for Improving Public Safety
ARGUMENTS IN SUPPORT : The author states in part:
"While over half of the men in prison were incarcerated
for violent crimes, just 30% of women were convicted of
violence. In fact, female inmates are more likely to be
victims of violent crimes than to be the perpetrators.
Four in 10 were physically or sexually abused before the
age of 18 (LHC, 2004). Given this, it is not surprising
that over two-thirds of women are classified as low risk
(Level I or II) by the prison classification system (LHC,
2004). However, women often are held in more secure
environments than their custody classifications would
warrant. According to CDCR estimates, approximately
4,500 low-level women offenders who are currently
incarcerated could be eligible for placement in secure,
community-based programs without risking community safety
(National Council on Crime and Delinquency (NCCD), 2006).
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"Incarcerated women are not the only individuals
negatively impacted by incarceration; families and
communities have been devastated by women's imprisonment.
Approximately, 67% of incarcerated women are mothers
(CRB, 2000) and many of them are single parents. NCCD
estimates that in 2005 approximately 19,000 children had
mothers who were incarcerated in California's state
facilities. Most of California's incarcerated mothers
are the primary caregivers of dependent children and hope
to return home to their children. While the vast
majority of children of incarcerated men continue to live
with their mothers, children of incarcerated women are
more likely to end up living with other relatives or in
foster care (Powell & Nolan, 2003).
"Visitation policies and the distance to prisons make it
difficult for children to visit. Seventy-nine percent of
incarcerated mothers in California never receive a visit
during their incarceration (Powell & Nolan, 2003).
Separating mothers from children has a substantial impact
on their futures. Children of inmates are much more
likely than their peers to become incarcerated. Research
suggests that mothers who are able to maintain a
relationship with their children are less likely to
return to prison (WPA, 2009). To break the cycle of
incarceration, California must adopt policies that
facilitate parenting and family reunification.
"Alternative Custody assignments, such as electronic
monitoring, are a significant hindrance to further
criminal activity, however, unlike prison, electronic
monitoring allows prisoners a connection with their
families, communities, and employment (NCCD, 2010).
Electronic monitoring provides the potential for
rehabilitation within the community, whereas,
incarceration reinforces negative interactions in prison
and jail, weaken ties to society, and often increases the
likelihood of reoffending. The aim of this bill is to
lower recidivism rates, encourage community and family
involvement, hold fewer children in Child Welfare System,
and reduce the likelihood that an inmate's children will
embark on a life of crime.
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"Possible concerns raised by other Alternative Custody
proposals are not applicable for this bill. People have
criticized these proposals for lacking inmate transition
plans. This bill requires the department to create, and
the participant to agree to and fully participate in, a
plan of evidence-based programs and services that will
aid in the successful reentry into society while
participating in alternative custody. There have also
been concerns about the ability to treat these
individuals, given current financial constraints. This
bill states that CDCR shall dedicate 50% of the savings
created to administer evidence-based practices to
participants placed in Alternative Custody."
RJG:mw 5/18/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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