BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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3
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SB 1364 (Harman) 4
As Amended April 12, 2010
Hearing date: April 20, 2010
Penal Code
SM:mc
INMATES: FEES
HISTORY
Source: Author
Prior Legislation: SB 163 (Presley) - Chap. 1070, Stats. 1994
Support: California Peace Officers' Association; California
Police Chiefs Association; County of
Mendocino Office of the Sheriff-Coroner; Inyo County Sheriff;
Peace Officers Research Association of California; Crime
Victims United of California
Opposition: Friends
Committee on Legislation; Legal Services for Prisoners with
Children;
Taxpayers for Improving Public Safety; Life Support Alliance;
California Public Defenders
Association; National Association of Social Workers California
Chapter Women's Council; American Civil Liberties Union; Drug
Policy Alliance; two
individuals
KEY ISSUES
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SHOULD A SHERIFF, CHIEF OR DIRECTOR OF CORRECTIONS, CHIEF OF
POLICE OR THE SECRETARY OF THE CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION (CDCR) BE AUTHORIZED TO ASSESS
FEES UPON INMATES FOR DISCRETIONARY SERVICES, AS SPECIFIED, OR A
PER DIEM FEE FOR ROOM AND BOARD, OR BOTH?
(CONTINUED)
SHOULD THE OFFICIAL ASSESSING THESE FEES BE REQUIRED TO ESTABLISH A
PROCEDURE FOR INMATES TO APPEAL ANY FEES ASSESSED?
SHOULD IT BE REQUIRED THAT THESE FEES WILL BE AUTOMATICALLY DEBITED
FROM THE INMATE'S PERSONAL ACCOUNT AND IF AN INMATE IS INDIGENT, A
NEGATIVE BALANCE ACCRUE IN THE INMATE'S PERSONAL ACCOUNT?
SHOULD IT BE REQUIRED THAT ANY AMOUNT OWED FOR THESE FEES AT THE
TIME THE INMATE IS RELEASED FROM CUSTODY REMAIN DUE AND PAYABLE AS A
CHARGE TO THE INMATE?
SHOULD IT BE REQUIRED THAT THE INMATE HAVE THE OPTION OF DEFERRING
PAYMENT FOR THESE FEES FOR A PERIOD NOT TO EXCEED TWO YEARS FROM THE
DATE OF RELEASE AND IF THE INMATE IS NOT INCARCERATED WITHIN TWO
YEARS OF HIS OR HER RELEASE FROM CUSTODY, THIS DEBT BE FORGIVEN?
SHOULD ANY OFFICIAL THAT ASSESSES THESE FEES UPON INMATES BE
REQUIRED TO ADOPT REGULATIONS FOR THE IMPLEMENTATION OF THIS
SECTION?
SHOULD IT BE REQUIRED THAT, "DISCRETIONARY SERVICES" NOT INCLUDE
SERVICES FOR MEDICAL CARE PROVIDED, AS SPECIFIED, OR SERVICES
OTHERWISE REQUIRED BY THE CONSTITUTION, STATUTE, OR APPLICABLE CASE
LAW?
SHOULD IT BE REQUIRED THAT ALL MONEYS RECEIVED BY A LOCAL OFFICIAL
IMPOSING THESE FEES SHALL BE EXPENDED, UPON APPROVAL BY THE
GOVERNING BOARD OF THE CITY, COUNTY, OR CITY AND COUNTY WITH
JURISDICTION TO REIMBURSE THE FACILITY PROVIDING DISCRETIONARY
SERVICES FOR THE PROVISION OF THOSE SERVICES?
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SHOULD IT BE REQUIRED THAT ALL SUCH FEES RECEIVED BY THE SECRETARY
OF THE CDCR MUST, UPON APPROPRIATION BY THE LEGISLATURE, BE EXPENDED
TO REIMBURSE PRISON FACILITIES FOR PROVIDING DISCRETIONARY SERVICES
IN AN AMOUNT THAT IS PROPORTIONAL TO THE AMOUNT OF MONEYS RECEIVED
FROM THOSE PRISON FACILITIES?
PURPOSE
The purpose of this bill is to (1) authorize a sheriff, chief or
director of corrections, chief of police or the Secretary of the
Department of Corrections and Rehabilitation (CDCR) to assess
fees upon inmates for discretionary services, as specified, or a
per diem fee for room and board, or both; (2) require the
official assessing these fees to establish a procedure for
inmates to appeal any fees assessed; (3) require that these fees
will be automatically debited from the inmate's personal account
and if an inmate is indigent, a negative balance accrue in the
inmate's personal account; (4) require that any amount owed for
these fees at the time the inmate is released from custody
remain due and payable as a charge to the inmate; (5) require
that the inmate have the option of deferring payment for these
fees for a period not to exceed two years from the date of
release and if the inmate is not incarcerated within two years
of his or her release from custody, this debt be forgiven; (6)
require any official that assesses these fees upon inmates adopt
regulations for the implementation of this section; (7) require
that, "discretionary services" not include services for medical
care provided, as specified, or services otherwise required by
the constitution, statute, or applicable case law; and (8)
require that all moneys received by a local official imposing
these fees shall be expended, upon approval by the governing
board of the city, county, or city and county with jurisdiction
to reimburse the facility providing discretionary services for
the provision of those services and that all such fees received
by the Secretary of the CDCR must, upon appropriation by the
Legislature, be expended to reimburse prison facilities for
providing discretionary services in an amount that is
proportional to the amount of moneys received from those prison
facilities.
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Existing law provides that a sheriff, chief or director of
Corrections, or chief of police is authorized to charge a fee in
the amount of three dollars ($3) for each inmate-initiated
medical visit of an inmate confined in a county or city jail:
The fee shall be charged to the inmate's personal
account at the facility. If the inmate has no money in his
or her personal account, there shall be no charge for the
medical visit.
An inmate shall not be denied medical care because of a
lack of funds in his or her personal account at the
facility.
The medical provider may waive the fee for any
inmate-initiated treatment and shall waive the fee in any
life-threatening or emergency situation, defined as those
health services required for alleviation of severe pain or
for immediate diagnosis and treatment of unforeseen medical
conditions that if not immediately diagnosed and treated
could lead to disability or death.
Follow-up medical visits at the direction of the medical
staff shall not be charged to the inmate.
All moneys received by a sheriff, chief or director of
corrections, or chief of police pursuant to this section
shall be transferred to the county or city general fund.
(Penal Code 4011.2.)
Existing law provides that the Secretary of Corrections is
authorized to charge a fee in the amount of $5 for each
inmate-initiated medical visit of an inmate confined in the
state prison:
The fee shall be charged to the prison account of the
inmate. If the inmate has no money in his or her personal
account, there shall be no charge for the medical visit.
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An inmate shall not be denied medical care because of a
lack of funds in his or her prison account.
The medical provider may waive the fee for any
inmate-initiated treatment and shall waive the fee in any
life-threatening or emergency situation, defined as those
health services required for alleviation of severe pain or
for immediate diagnosis and treatment of unforeseen medical
conditions that if not immediately diagnosed and treated
could lead to disability or death.
Follow-up medical visits at the direction of the medical
staff shall not be charged to the inmate.
All moneys received by the Director of Corrections
pursuant to this section shall, upon appropriation by the
Legislature, be expended to reimburse the Department of
Corrections for direct provision of inmate health care
services. (Penal Code 5007.5.)
This bill would authorize a sheriff, chief or director of
corrections, chief of police or the Secretary of the Department
of Corrections and Rehabilitation to assess fees upon inmates
for discretionary services, as specified, or a per diem fee for
room and board, or both. The amount charged could not exceed
$25-per-day.
This bill would require a sheriff, chief or director of
corrections, or chief of police or the Secretary of the
Department of Corrections and Rehabilitation assessing these
fees to establish a procedure for inmates to appeal fees
assessed pursuant to this section.
This bill provides that these fees will be automatically debited
from the inmate's personal account. If an inmate is indigent, a
negative balance shall accrue in the inmate's personal account.
This bill provides that any amount owed for these fees at the
time the inmate is released from custody shall remain due and
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payable as a charge to the inmate. However, the inmate shall
have the option of deferring payment for those fees for a period
not to exceed two years from the date of release. If the inmate
is not incarcerated within two years of his or her release from
custody, this debt shall be forgiven.
This bill provides that each sheriff, chief or director of
corrections, or chief or police or the Secretary of the
Department of Corrections and Rehabilitation, that assesses fees
upon inmates pursuant to this section shall adopt regulations
for the implementation of this section.
This bill provides that, "discretionary services" shall not
include services for medical care provided, as specified, or
services otherwise required by the constitution, statute, or
applicable case law.
This bill provides that all moneys received by a sheriff, chief
or director of corrections, or chief of police for these fees
shall be expended, upon approval by the governing board of the
city, county, or city and county with jurisdiction to reimburse
the facility providing discretionary services for the provision
of those services.
This bill provides that all such fees received by the Secretary
of the Department of Corrections and Rehabilitation must, upon
appropriation by the Legislature, be expended to reimburse
prison facilities for providing discretionary services in an
amount that is proportional to the amount of moneys received
from those prison facilities.
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
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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 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
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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 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 not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 1364 will give CDCR and county sheriffs the ability
to off set some of the costs incurred for
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<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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incarcerating prisoners at a time when the state is
slashing their budgets by authorizing them to charge
nominal fees for discretionary and a per diem room and
board fee.
SB 1364 is similar to a program set up by the Bristol
County Sheriff in Massachusetts. The Sheriff charged
fees from per diem to hair cuts. In a two year time
frame this one county jail raised over $700,000.
Sheriffs' in other states such as Arizona, Florida
have also instituted inmate fees. Sheriffs' in states
such as Oregon, Utah, Ohio, Missouri, and Virginia
have adopted daily room and board fees ranging from
ten to sixty dollars.
Charging prisoners for discretionary items or daily
fees is not new to California. Jails in Southern
California such as the Beverly Hills Police Department
Jail have set up optional programs which charge
inmates upwards of $110 for star treatment.
2. Charging Inmates for Room and Board
As reported last year in the Boston Globe, in these times of
cash-strapped local and state governments, charging prisoners
for the cost of their incarceration is an idea that has been
proposed in several state legislatures, and the responses have
varied:
A one-night stay? Ninety dollars. Need to see a
doctor? Ten bucks. Want toilet paper? Pay for it
yourself.
In the ever-widening search for extra income during
desperate economic times, states across the nation are
embracing a new idea: making inmates pay their debt to
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society not only in hard time, but also in cold, hard
cash.
In New York, Assemblyman James Tedisco introduced a
bill that would charge wealthy criminals $90 a day for
room and board at state prisons. Dubbed the Madoff
Bill, after Ponzi schemer Bernard Madoff, the
legislation is designed to ease the $1 billion annual
cost of incarcerating prisoners.
Several other states and some cities have gone to
great lengths to squeeze money from inmates.
In Arizona's Maricopa County, which includes Phoenix,
Sheriff Joe Arpaio calls himself America's toughest
sheriff. Earlier this year, he said inmates would be
charged $1.25 per day for meals. His decision
followed months of food strikes staged by convicts who
complained of being fed green bologna and moldy bread.
In Iowa's Des Moines County, where officials faced a
$1.7 million budget hole this year, politicians
considered charging prisoners for toilet paper, at a
savings of $2,300 per year. The idea was ultimately
dropped.
A New Jersey legislator introduced a bill similar to
New York's, this one based on fees charged by the
Camden County Correctional Facility, which bills
prisoners $5 a day for room and board and $10 per day
for infirmary stays, totaling an estimated $300,000
per year.
In Virginia, Richmond's overcrowded city jail has
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begun charging $1 per day, hoping to earn as much as
$200,000 a year. In Missouri's Taney County, home to
Branson, the sheriff says charging inmates $45 a day
will help pay for a new jail.
Prisons and jails took some of the biggest cuts this
summer when legislators took machetes to their state
budgets, trying to slash their way out of an economic
morass exacerbated by dwindling tax revenues. But to
civil rights advocates and some law enforcement
officials, trying to raise money by charging inmates
makes no sense.
"The overwhelming number of people who end up in
prison are poor,'' said Elizabeth Alexander, director
of the American Civil Liberties Union's National
Prison Project. Alexander also says such efforts only
amount to political window dressing.
Collecting the fees covers a wide spectrum. In
Richmond, they are deducted from a prisoner's personal
account, which contains whatever money relatives send
and any cash the suspect had when arrested. In
Arizona, Arpaio, who makes inmates wear pink underwear
to increase the humiliation factor, also taps prisoner
accounts. Inmates who have no money still receive
food, the sheriff says.
Other authorities slap the prisoner with a bill upon
release from prison. But it is often hard to collect.
In Kansas, Overland Park officials acknowledged
collecting only 39 percent of fees. In Jackson
County, Mo., officials discovered they spent more
money trying to collect fees than they received from
inmates.
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In some cases, it is prisoners' families who shoulder
the financial burden.
"It's the spouses, children, and parents who pay the
fees; they are the people who contribute to prisoners'
canteen accounts,'' said Sarah Geraghty of the
Southern Center for Human Rights, which successfully
opposed an effort earlier this year in Georgia to bill
prisoners.
The money was to be collected by seizing cash in their
jail accounts or by filing lawsuits. The proposal
also would have denied parole to those who could not
make payments after being freed. (Some States Are
Charging Inmates Fees For Prison Stay, Deborah
Hastings, Associated Press, August 16, 2009.
http://www.boston.com/news/nation/articles/2009/08/16/s
ome_states_charging_inmates_for_stay/)
3. What This Bill Would Do
This bill would authorize any sheriff, chief or director of
corrections, or chief of police or the secretary of the
Department of Corrections and Rehabilitation to charge jail or
prison inmates' fees for "discretionary services," as well as a
daily fee for room and board. The bill states that
"discretionary services" would not include services for medical
care provided pursuant to state law or services otherwise
required by the constitution, statute, or applicable case law.
The bill further provides that these fees would be automatically
debited from the inmate's personal account. If the inmate has
no money on the books at the jail or prison, a negative balance
will accrue in the inmate's personal account. The maximum fee
that could be charged would be $25 a day. Any amount owed for
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these fees at the time the inmate is released from custody would
"remain due and payable as a charge to the inmate." However,
the inmate would have the option of deferring payment for those
fees for a period of up to two years from the date of release
and, "if the inmate is not incarcerated within two years of his
or her release from custody, this debt shall be forgiven."
4. Questions Raised by This Bill
The first question this bill raises is which "discretionary
services" would inmates be charged for. This would appear to
include rehabilitation programs such as drug or alcohol
treatment, vocational training, anger management classes and the
like. Presumably, these are programs in which the Legislature
wants to encourage inmates to take part. Members may wish to
consider whether it would be consistent with that objective to
create a financial disincentive to take part in these programs.
WOULD CHARGING INMATES FOR PARTICIPATING IN REHABILITATION
PROGRAMS REDUCE PARTICIPATION ON THESE PROGRAMS?
WOULD THAT PROMOTE PUBLIC SAFETY?
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Additionally, would the cost of administering such a
fee-for-service program exceed any fees generated, as proved to
be the case in Missouri? While CDCR is currently authorized to
collect $5 co-pays for inmate medical visits (Penal Code
5007.5), in 2000, the Bureau of State audits recommended that
this program be dropped because it appeared that the costs of
administering the program far exceeded the amounts collected.
http://www.bsa.ca.gov/pdfs/reports/99027.pdf.) This bill
provides not only for the collection of fees but that an appeal
process be established to contest the fees assessed and that all
moneys received for these fees must be expended, upon approval
by the governing board of the city, county, or city and county
with jurisdiction, or, in the case of the Secretary of the
Department of Corrections and Rehabilitation, upon appropriation
by the Legislature, to reimburse the facility providing
discretionary services for the provision of those services.
WOULD THE COST OF ADMINISTERING THESE FEE-FOR-SERVICE PROGRAMS
EXCEED THE PROCEEDS COLLECTED?
Most inmates are indigent. If they have money on their books,
it is from family members or friends giving them a small amount
to buy canteen items such as toothpaste or a candy bar.
Therefore, in the majority of cases, these fees would result in
a debt to the inmate and their family. If an inmate were
charged $25-per-day for housing costs, he or she could emerge
from jail or prison in debt of thousands of dollars. ($25 x
365= $9,125.) A state prison inmate who spent five years in
prison would be released from prison owing the state $45,625. (5
x $9,125.) Members may wish to consider whether imposing this
type of debt would be an obstacle to an inmate successfully
reintegrating into society, and what implications this might
have for public safety. On the issue of these so-called
"pay-to-stay" laws, one commentator observes:
. . . forceful policy arguments have been made against
this practice.
Foremost among the arguments against pay-to-stay is
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that it places an additional financial burden upon
families already deprived of a wage-earner, especially
where these family members, as taxpayers, are already
subsidizing the cost of incarceration. It is true
that some pay-to-stay programs take inmates' other
financial obligations into account before imposing
incarceration costs. Nevertheless, the result of
saddling prisoners with debt, taken together with the
overall low level of education among the prison
population and the general trend away from providing
job training in prison, means that released inmates
will find it exceedingly difficult to support their
families. The director of an association for inmate
families in Texas described the problem this way:
"When you're taking it from the inmate, how are they
[sic] going to have the job or employment to do it?
Somebody suffers, and it's going to be the families,
the children on welfare, the wife trying to hold down
two jobs." (13 Boston University Pub. Int. L.J. 187,
201.)
WOULD CHARGING THESE FEES TO INMATES PLACE A FINANCIAL BURDEN ON
INMATES AND THEIR FAMILIES THAT COULD IMPEDE EFFORTS AT
REINTEGRATION INTO SOCIETY?
The option to defer payment of this debt creates additional
questions. Because the bill provides that the debt would be
forgiven for avoiding any new incarceration, not a new
conviction, within the next two years, if the person is arrested
in that two-year period and incarcerated but later the charges
are dropped, or the defendant is found not guilty, the debt
would, nonetheless, be enforced. Is it a due process violation
to require repayment of a debt based on someone being arrested
who is later found not guilty?
IS IT CONSISTENT WITH DUE PROCESS GUARANTEES TO IMPOSE A DEBT
BASED ON A NEW CHARGE THAT IS LATER DISMISSED?
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