BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 1266
Author: Liu (D), et al
Amended: 8/18/10
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
SENATE FLOOR : 22-6, 5/28/10
AYES: Alquist, Calderon, Cedillo, Corbett, DeSaulnier,
Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal,
Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian,
Steinberg, Wolk, Wright, Yee
NOES: Dutton, Hollingsworth, Huff, Runner, Strickland,
Wyland
NO VOTE RECORDED: Aanestad, Ashburn, Cogdill, Correa, Cox,
Denham, Harman, Oropeza, Walters, Wiggins, Vacancy,
Vacancy
SENATE FLOOR : 22-14, 8/30/10 (Concurrence)
AYES: Alquist, Calderon, Cedillo, Corbett, DeSaulnier,
Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal,
Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian,
Steinberg, Wolk, Wright, Yee
NOES: Aanestad, Ashburn, Cogdill, Correa, Denham, Dutton,
Emmerson, Harman, Hollingsworth, Huff, Runner,
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Strickland, Walters, Wyland
NO VOTE RECORDED: Blakeslee, Oropeza, Wiggins, Vacancy
ASSEMBLY FLOOR : 42-28, 8/26/10 - See last page for vote
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.
Assembly Amendments make technical and clarifying changes,
and add double-jointing language.
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.
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.
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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.
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
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facility.
This bill explicitly provides that its provisions not be
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." A risk and
needs assessment must be completed on each inmate to
assist in the determination of eligibility for
participation and the type of alternative custody.
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
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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
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 that
offers appropriate services."
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
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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 . ? "
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
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monitoring the impact of an alternative custody program
on the community.
7. Miscellaneous Provisions
This bill authorizes CDCR to enter into contracts with
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.
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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
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.
10. Double-Jointing
This bill is double-jointed with AB 1369 (Davis).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
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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
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 8/26/10)
California Attorneys for Criminal Justice
California Catholic Conference, Inc.
California Coalition for Women Prisoners
California Commission on the Status of Women
California Public Defenders Association
Crossroads, Inc.
Drug Policy Alliance
Fathers and Families
Friends Committee on Legislation
Friends Outside
Little Hoover Commission
Los Angeles Dependency Lawyers, Inc.
Planned Parenthood Advocacy Project
Planned Parenthood Affiliates of California
Taxpayers for Improving Public Safety
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OPPOSITION : (Verified 8/26/10)
California District Attorneys Association
Crime Victims United of California
ARGUMENTS IN SUPPORT : According to the author:
"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.
Alternative custody will allow families to maintain
relationships, and mothers will be less likely to
re-offend.
"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
relatives or in foster care. Approximately, 67% of
incarcerated women are mothers, and many of them are
single parents. In 2005, approximately 19,000
Californian children had mothers in prison. SB 1266 will
lower recidivism rates, encourage community and family
involvement, result in fewer children in the child
welfare system, and reduce the likelihood that inmates'
children will embark on a life of crime."
ARGUMENTS IN OPPOSITION : The California District
Attorneys Association states, "Central to our criminal
justice system is the tenet that criminal activity carries
consequences. Those consequences should not be mitigated
by factors that are irrelevant to the relationship between
the crime and the penalty. As such, we must object to the
policy espoused by this bill inasmuch as it would allow a
large number of offenders to potentially avoid a commitment
to state prison simply by virtue of the fact that they are
female, pregnant, or caregivers. The simple state of being
a female inmate should not make a person any less culpable
for her actions, and yet this bill would allow thousands of
inmates to "serve their time" from their homes or
non-secure facilities instead of state prison. And
notwithstanding the family issues that arise when a primary
caregiver is incarcerated, having a child in and of itself
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should not be enough to excuse a convict from the
punishment of a prison sentence."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huffman, Jones, Lieu, Bonnie Lowenthal,
Ma, Mendoza, Monning, Ruskin, Saldana, Skinner, Swanson,
Torlakson, Torres, Torrico, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Conway, Cook, DeVore, Fletcher, Fuller, Gaines, Garrick,
Gatto, Hagman, Harkey, Huber, Jeffries, Knight, Logue,
Miller, Nestande, Niello, Nielsen, Norby, Portantino,
Silva, Smyth, Audra Strickland, Villines
NO VOTE RECORDED: Block, Caballero, Gilmore, Nava, V.
Manuel Perez, Salas, Solorio, Tran, Vacancy, Vacancy
RJG:mw 8/31/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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