BILL ANALYSIS �
AJR 38
Page 1
Date of Hearing: June 12, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AJR 38 (Donnelly) - As Introduced: May 7, 2012
SUMMARY : Urges the President and Congress of the United States
to restore full funding for the State Criminal Alien Assistance
Program (SCAAP) and to fully reimburse states for the cost of
incarcerating undocumented criminals. Specifically, this bill :
1)States that the federal government has a legal and moral
obligation to keep our borders secure and, if it does not, it
should pay the state the full cost of incarcerating
undocumented criminals.
2)States that Federal law states that when a chief executive
officer of a state submits a written request to the United
States Attorney General for reimbursement the Attorney General
will either enter into a contractual arrangement that provides
for compensation to the state to incarcerate the undocumented
criminals or take the undocumented criminals into the custody
of the federal government (8 U.S.C. Sec. 1231).
3)States that the federal State Criminal Alien Assistance
Program was created in 1994 for the purpose of reimbursing
states for the costs of incarcerating undocumented criminals.
4)States that Federal law provides that the State Criminal Alien
Assistance Program provide federal payments to states and
localities that incur costs for incarcerating undocumented
criminals.
5)States that there are almost 16,250 self-reported undocumented
criminals in the California prison system.
6)States that in the 2010-11 fiscal year, the cost per
incarcerated individual in California was $56,000 each year.
7)States that in the 2010-11 fiscal year, it cost the State of
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California over $910 million to house these undocumented
criminals.
8)States that in the 2010-11 fiscal year, the State of
California was reimbursed from the State Criminal Alien
Assistance Program in an amount equal to only 10 cents for
every dollar spent to house these undocumented criminals.
9)Requires that the Speaker of the Assembly to transmit copies
of this resolution to the President and Vice President of the
United States, to the Speaker of the House of Representatives,
to the Majority Leader of the Senate, and to each Senator and
Representative from California in the Congress of the United
States.
EXISTING LAW :
1)Defines the term "alien" as "any person not a citizen or
national of the United States." �8 U.S.C. Section
1101(a)(3).]
2)Specifies that the Attorney General (AG) may not remove an
alien who is sentenced to imprisonment until the alien is
released from imprisonment. Directs that parole, supervised
release, probation, or the possibility of arrest or further
imprisonment is not a reason to defer removal. �8 U.S.C.
Section 1231(a)(4)(A).]
3)States that no cause or claim may be asserted under 8 U.S.C.
Section 1231(a)(4) against an official of the United States or
of a state to compel the release, removal, or consideration
for release or removal of an alien. �8 U.S.C. Section
1231(a)(4)(D).]
4)States that for purposes of this subsection, "undocumented
criminal alien" is defined as an alien who has been convicted
of a felony or two or more misdemeanors; and �8 U.S.C. Section
1231(i)(3)]:
a) Entered the United States without inspection at any time
or place other than as designated by the AG;
b) Was the subject of exclusion or deportation proceedings
at the time he or she was taken into custody by the state;
or,
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c) Was admitted as a nonimmigrant and, at the time he or
she was taken into custody by the state, has failed to
maintain the nonimmigrant status in which the alien was
admitted, or to which it was changed, as specified, or to
comply with the conditions of such a status.
5)Declares that if the chief executive officer of a state, or a
political subdivision of the state, exercising authority with
respect to the incarceration of an undocumented criminal
alien, submits a written request to the AG, the AG shall, as
determined by the AG �8 U.S.C. Section 1231(i)(1)]:
a) Enter into a contractual arrangement that provides for
compensation to the state or political subdivision with
respect to incarceration of the undocumented criminal
alien; or
b) Take the undocumented criminal alien into the custody of
the Federal Government and incarcerate the alien.
6)Directs that the compensation to be provided, as specified,
shall be the average cost of the incarceration of a prisoner
in the relevant state, as determined by the AG. �8 U.S.C.
Section 1231(i)(2).]
7)Provides for the arrest and detention of an alien pending a
decision on whether the alien is to be removed from the United
States. �8 U.S.C. Section 1226(a).]
8)States that the AG shall take into custody specified
inadmissible and deportable aliens who have committed
specified crimes, when the alien is released, without regard
to whether the alien is released on parole, supervised release
or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense. �8 U.S.C.
Section 1226(c)(1).]
9)Allows the AG to release criminal aliens from custody only
under specific circumstances, and states that a decision to
release such an alien shall take place in accordance with a
procedure that considers the severity of the offense committed
by the alien. �8 U.S.C. Section 1226(c)(2).]
10)Declares that the AG's discretionary judgment regarding
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custody of criminal aliens shall not be subject to review.
Provides that no court may set aside an action or decision by
the AG regarding the detention or release of an alien or the
grant, revocation, or denial of bond or parole. �8 U.S.C.
Section 1226(e).]
11)Creates an exception for removal of nonviolent offenders
prior to completion of a sentence of imprisonment if, in the
case of an alien in the custody of a state or political
subdivision of a state, the chief state official exercising
authority with respect to the incarceration of the alien
determines that the alien is confined for a non-violent
offense (with specified exceptions), that the removal is in
the best interest of the state, and submits a written request
to the AG that such alien be removed. �8 U.S.C. Section
1231(a)(4)(B)(ii).]
12)Provides that an alien who has been denied admission to the
United States, excluded, deported or removed, or who has
departed the United States while an order of exclusion,
deportation or removal is outstanding, and thereafter enters
or attempts to enter the United States, or except as
specified, is found in the United States, shall be fined,
imprisoned for not more than two years or both. �8 U.S.C.
Section 1326(a).]
FISCAL EFFECT : Unknown.
COMMENTS :
1)Author's Statement : According to the author, "AJR 38 would
request that the Federal government restore full funding to
the State Criminal Alien Assistance Program and that the
Federal government fully reimburses the State for all money
spent to incarcerate undocumented criminals within the
California State Prison System."
2)Law Re-Authorizing Appropriations for SCAAP : In Public Law
109-162, January 5, 2006, funds were appropriated to "carry
out this subsection." The subsection included a required
report on whether states or localities that received SCAAP
funds were fully cooperating with the Department of Homeland
Security's (DHS) efforts to remove undocumented criminal
aliens from the United States. The law also required the
Inspector General to include a list of the states, or
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political subdivisions of a state, that are not fully
cooperating or have, in effect, violated the policy of 8
U.S.C. Section 1373 which states, "Notwithstanding any other
provision of Federal, State, or local law, a Federal, State,
or local government entity or official may not prohibit, or in
any way restrict, any government entity or official from
sending to, or receiving from, the Immigration and
Naturalization Service information regarding the citizenship
or immigration status, lawful or unlawful, of any individual."
3)Background - SCAAP : California receives more money under the
SCAAP program than any other applying entity. According to a
report, issued in January 2007 by the Office of the Inspector
General, Audit Division, United States Department of Justice,
Audit Report 07-07, "SCAAP is a payment program administered
by �the United States Department of Justice, Office of Justice
Programs (OJP)], through the Bureau of Justice Assistance
(BJA) and in conjunction with the Immigration and Customs
Enforcement (ICE) bureau within DHS. SCAAP was authorized by
the Violent Crime Control and Law Enforcement Act of 1994 to
provide federal assistance to states and localities for the
costs of incarcerating certain criminal aliens who are in
custody based on state or local charges or convictions."
(United States Department of Justice, Office of the Inspector
General, Audit Division, Cooperation of SCAAP Recipients in
the Removal of Criminal Aliens from the United States, Audit
Report 07-07, January 2007, p. 1-2.)
In the 2005 fiscal year, BJA distributed $287.1 million in SCAAP
payments to 752 state, county and local jurisdictions. The
top 10 SCAAP recipients for 2005 were:
a) State of California - $85,953,191.
b) State of New York - $24,022,356.
c) State of Texas - $18,582,484.
d) City of New York - $15,893,255.
e) State of Florida - $12,806,110.
f) Los Angeles County - $12,530,034.
g) State of Arizona - $12,139,791.
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h) Orange County - $6,562,437.
i) State of Illinois - $4,728,549.
j) State of Massachusetts - $4,728,549.
(United States Department of Justice, Office of the Inspector
General, Audit Division, Cooperation of SCAAP Recipients in
the Removal of Criminal Aliens from the United States, Audit
Report 07-07, January 2007, p. 5.) The top 10 recipients
received a total of $197,949,476. Although 752 jurisdictions
received SCAAP payments for the 2005 fiscal year, the vast
majority received relatively small amounts. For example, 306
local jurisdictions received less than $10,000 each, and 230
jurisdictions received between $10,000 and $49,999.
"The �SCAAP] program reimburses states and localities that
incur correctional officer salary costs for incarcerating
undocumented criminal aliens who: (1) have at least one
felony or two misdemeanor convictions for violations of state
or local law, and (2) are incarcerated for at least four
consecutive days during the established reporting period.
Applicants for funding are required to provide correctional
officer salary costs, the total of all inmate days, and
details about eligible inmates housed in their correctional
facilities during that period." (United States Department of
Justice, Office of the Inspector General, Audit Division,
Cooperation of SCAAP Recipients in the Removal of Criminal
Aliens from the United States, Audit Report 07-07, January
2007, p. 2.)
"Historically, congressional appropriations for SCAAP have
been less than the total amount sought by all the
jurisdictions applying for SCAAP payments. As a result, BJA
pays a pro rata amount of a jurisdiction's submitted expenses.
In April 2005, the Government Accountability Office (GAO)
issued a report stating that 80 percent of the SCAAP aliens
were incarcerated in the 5 states of Arizona, California,
Florida, New York, and Texas in FY 2003, but payments to 4 of
those states were less than 25 percent of the estimated cost
to incarcerate SCAAP criminal aliens." (United States
Department of Justice, Office of the Inspector General, Audit
Division, Cooperation of SCAAP Recipients in the Removal of
Criminal Aliens from the United States, Audit Report 07-07,
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January 2007, p. 2-3.)
4)Level of Cooperation of SCAAP Recipients with ICE : One of the
purposes of the Inspector General's 2007 audit was to
determine SCAAP recipients' level of cooperation with ICE.
The report states, "ICE officials commented favorably with
respect to the entities' cooperation about every jurisdiction
except the City and County of San Francisco. . . . According
to an agent working at ICE Headquarters, the ICE San Francisco
Field Office has encountered difficulties, which they
attributed to a 'bare minimum' of cooperation. Specifically,
we were told that ICE agents are not permitted to access San
Francisco County jail records without the authorization and
approval of the Sheriff. . . . Despite these views expressed
by ICE officials, San Francisco officials believe they are
cooperating sufficiently with ICE." (United States Department
of Justice, Office of the Inspector General, Audit Division,
Cooperation of SCAAP Recipients in the Removal of Criminal
Aliens from the United States, Audit Report 07-07, January
2007, p. iv.)
The audit report details a San Francisco city and county
ordinance, Chapter 12H of the City Administrative Code, which
provides that "no department, agency . . . shall use any City
funds or resources to assist in the enforcement of federal
immigration law or to gather or disseminate information
regarding the immigration status . . . unless such assistance
is required by federal or state statute, regulation, or court
decision." The audit report also indicated that Oregon and
the City of New York, in addition to San Francisco, had
problems freely exchanging information with ICE. (United
States Department of Justice, Office of the Inspector General,
Audit Division, Cooperation of SCAAP Recipients in the Removal
of Criminal Aliens from the United States, Audit Report 07-07,
January 2007, p. x-xi, 23.)
The BJA's annual guidelines alert potential SCAAP applicants of
the deadline to apply for SCAAP funding and describe the
application procedure, which requires applicants to furnish
detailed information, as specified. (United States Department
of Justice, Office of the Inspector General, Audit Division,
Cooperation of SCAAP Recipients in the Removal of Criminal
Aliens from the United States, Audit Report 07-07, January
2007, p. 4.)
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An audit of the 1996 fiscal year found that OJP's compensation
methodology was over-inclusive in the degree to which OJP paid
SCAAP applicants for inmates whose immigration status was
"unknown." (United States Department of Justice, Office of
the Inspector General, Office of Justice Programs State
Criminal Alien Assistance Program, 00-13, May 2000; United
States Department of Justice, Office of the Inspector General,
Audit Division, Cooperation of SCAAP Recipients in the Removal
of Criminal Aliens from the United States, Audit Report 07-07,
January 2007, p. 6.)
An April 2006 report by the DHS Inspector General estimated that
in the 2007 fiscal year, 605,000 foreign-born individuals
would be admitted to state correctional facilities and local
jails for committing crimes in the United States. Of this
number, it estimated that one-half (302,500) would be
removable aliens. "Most of these incarcerated aliens are
being released into the U.S. at the conclusion of their
respective sentences because the �Detention and Removal
Operations (DRO)] unit does not have the resources to
identify, detain, and remove these aliens under its Criminal
Alien Program (CAP). It is estimated that DRO would need an
additional 34,653 detention beds, at an estimated cost of $1.1
billion, to detain and remove �them]." (Department of
Homeland Security, Office of the Inspector General, Detention
and Removal of Illegal Aliens: U.S Immigration and Customs
Enforcement (ICE), OIG-06-033, April 2006, p. 2.; United
States Department of Justice, Office of the Inspector General,
Audit Division, Cooperation of SCAAP Recipients in the Removal
of Criminal Aliens from the United States, Audit Report 07-07,
January 2007, p. 32.)
The DHS Inspector General further stated, "DRO's ability to
detain and remove illegal aliens with final orders of removal
is impacted by: (1) the propensity of illegal aliens to
disobey orders to appear in immigration court; (2) the
penchant of released illegal aliens to abscond;
(3) the practice of some countries to block the repatriation of
its citizens; and (4) two recent U.S. Supreme Court decisions
which mandate the release of criminal and high-risk aliens 180
days after the issuance of the final removal order except in
'Special Circumstances.' Collectively, the bed space,
personnel and funding shortages coupled with other factors,
has created an unofficial 'mini-amnesty' program for criminal
and other high-risk aliens." (United States Department of
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Justice, Office of the Inspector General, Audit Division,
Cooperation of SCAAP Recipients in the Removal of Criminal
Aliens from the United States, Audit Report 07-07, January
2007, p. 32.)
5)Projection of Current and Future SCAAP Funding : The
President's 2011 budget allocates $330 million in funds for
SCAAP. As discussed, this will not be sufficient to cover the
entirety of California's costs for imprisoning undocumented
criminal aliens. Furthermore, the President's 2012 budget
proposes to reduce SCAAP funding to $136 million. Thus SCAAP
reimbursements may become even more problematic and inadequate
in the future.
In their 2003 review, the Office of Management and Budget (OMB)
found that SCAAP lacked performance goals and could not
demonstrate results, thus earning a rating of "results not
demonstrated." It does not appear that SCAAP has changed its
goals or design since this review or that OMB has changed
their recommendation that SCAAP be terminated.
(.)
6)Related Legislation :
a) AJR 1 (Donnelly), was substantially similar to this
resolution. AJR 1 failed passage on the Assembly floor.
b) AJR 17 (Solorio), Resolution Chapter 124, Statutes of
2011, urged Congress and the President of the United States
to increase funding for various law enforcement and crime
prevention programs and to fully reimburse states for the
cost of incarcerating undocumented criminals.
7)Previous Legislation :
a) ACR 140 (Adams), Resolution Chapter 49, Statutes of
2010, urged the Governor to demand that BJA reimburse the
State of California for all costs of incarcerating
undocumented foreign nationals.
b) SJR 12 (Benoit), of the 2009-10 Legislative Session,
would have urged Congress and the President to restore
funding for SCAAP. SJR 12 was never heard by this
Committee.
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c) ACR 24 (Blakeslee), Resolution Chapter 88, Statutes of
2008, urged the Governor to demand that BJA reimburse the
State of California for all costs of incarcerating
undocumented foreign nationals.
d) AB 39 (Benoit), of the 2007-08 Legislative Session,
would have required California Department of Corrections
and Rehabilitation to annually bill the Federal Government
for the costs of incarcerating undocumented criminal
aliens. AB 39 would have required the California AG to
utilize all available legal resources to obtain
reimbursement if the Federal Government failed to make
payment. Additionally, AB 39 would have required the
California Department of Justice to collect data on the
total number of and percentage of undocumented alien
inmates in all state and local correctional institutions
and to publish the data on its Web site, providing annual
updates. AB 39 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
None
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744