BILL ANALYSIS �
AB 2083
Page 1
Date of Hearing: April 17, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2083 (Donnelly) - As Amended: April 10, 2012
As Proposed to be Amended in Committee
SUMMARY : Establishes the Foreign Private Prison Commission
(FPPC). Specifically, this bill :
1)States that the FPPC will include 5 members, including the
Secretary of the California Department of Corrections and
Rehabilitation (CDCR), to be appointed by the governor within
60 days of this bill becoming effective. These members shall
serve a term of four years.
2)Prohibits members of the FPPC from receiving compensation, but
are eligible to receive reimbursement for expenses.
3)States that the FPPC shall be responsible for overall
operations and administration of private prison facilities
that are located in Mexico that house foreign nationals who
have been convicted of a criminal offense in this state that
makes the foreign national subject to deportation under
federal immigration law, as specified.
4)Requires CDCR, in cooperation with FPPC, to issue a request
for proposals for the construction and operation of a private
prison facility to be located in Mexico and to house foreign
national prisoners who have been convicted of a criminal
offense in this state that makes the foreign national subject
to deportation under federal immigration law, as specified.
5)Requires that any proposals submitted be provided to the Joint
Legislative Budget Committee for its review.
6)States that to be considered for an award of contract, the
proposer must demonstrate that it has all of the following:
a) The qualifications, operations, management experience,
and experienced personnel to carry out the terms of the
AB 2083
Page 2
contract;
b) The ability to comply with applicable correctional
standards and any specific court order, if required; and,
c) A demonstrated history of successful operation and
management of other secure facilities.
7)Requires the proposer to agree that the state may cancel the
contract at any time after the first year of operation,
without penalty to the state, upon at least 90 days of written
notice.
8)States that the contract may provide for annual contract price
or cost adjustment once per year on the anniversary of the
effective date of the contract. Any adjustment that is made
shall be:
a) Applied to the total payment made to the contractor for
the previous contract year;
b) Shall not exceed the percent change in the average
consumer price index as published by the United States
Department of Labor, Bureau of Labor Statistics between
that figure for the latest calendar year and the next
pervious calendar year; and,
c) Any other price or cost adjustments may only be made if
the Legislature specifically authorizes the adjustments and
appropriates moneys for that purpose.
9)States that an award of a contract will not be made unless an
acceptable proposal is received. "Acceptable proposal" means
a proposal that substantially meets all the requirements or
conditions set forth in this bill, and that meets all the
requirements in the request for proposals.
10)States that a proposal shall not be accepted unless the
proposal offers a cost savings to the state, to be determined
by the standard cost comparison model for privatization
established by the FPPC.
11)States that a proposal will not be accepted unless the
proposal offers a level and quality of services that are at
least functionally equivalent to those that would be provided
AB 2083
Page 3
by this state.
12)States that the contract described by this bill may be for an
initial period of not more than 10 years.
13)States that the initial contract may include an option to
renew for two subsequent periods of not more than five years
each.
14)Requires the FPPC to conduct a biennial comparison of the
services provided by the private contractor to the performance
of this state in operating similar facilities. This
comparison shall be based on professional correctional
standards incorporated into the contract to determine if the
private prison contractor is providing the same or superior
quality of services as this state at a lower cost. In
conducting the comparison, the FPPC will consider security;
inmate management and control; inmate programs and services;
facility safety and sanitation; administration; food service;
personnel practices and training; inmate health services;
inmate discipline; and other matters relating to services
determined by the FPPC.
15)Requires FPPC to conduct a cost comparison of executed
privatization contracts once every five years for each
contract. If the commission determines that the private
prison facility costs are lower than a similar state facility,
half of the difference between the state's cost and the
private prison's costs shall be deposited into the state
General Fund. The remaining half of the savings shall be
deposited into the Correctional Service Fund.
16)Requires the FPPC to provide the most recent service
comparison and cost comparison to the Joint Legislative Budget
Committee.
17)Specifies that a contract for providing correctional services
to foreign nationals in a Mexican private prison facility
shall not be entered into unless the following requirements
are met:
a) The private prison contractor provides audited financial
statements for the previous five years, or for each of the
years the contractor has been in operation if fewer than
five years, and other financial information as requested;
AB 2083
Page 4
and,
b) The private prison contractor provides an adequate plan
of insurance specifically including coverage or insurance
for civil rights claims and liabilities as approved by the
risk management division of the Department of General
Services.
18)States that sovereign immunity does not apply to the private
prison contractor, and neither the contractor nor the insurer
of the contract may plead the defense of sovereign immunity in
any action arising out of the performance of the contract.
19)States that the contract for correctional services shall not
authorize, allow, or imply a delegation of authority or
responsibility to a private prison contractor for any of the
following:
a) Developing and implementing procedures for calculating
inmate release dates;
b) Developing and implementing procedures for calculating
and awarding sentence credits;
c) Approving the type of work inmate may perform and the
wages or sentence credits that may be given to inmates
engaging in the work; or,
d) Granting, denying, or revoking sentence credits, placing
an inmate under less restrictive custody or more
restrictive custody or taking any disciplinary actions.
20)Requires that all inmates be fingerprinted daily.
21)Establishes the Correctional Service Fund (CSF), which shall
consist of moneys deposited from savings from the operation of
foreign private prisons. Upon appropriation by the
Legislature, the CSF shall be available for expenditure by
CDCR for purposes of implementing the provisions of this bill.
22)States that moneys from the CSF shall supplement, not
supplant, existing funding for vocational training,
rehabilitation, and parole services.
AB 2083
Page 5
23)States that the provisions of this bill shall not become
effective unless, before July 1, 2017, the United States
agrees to amend the United States-Mexico Treaty on the
Execution of Penal Sentencing, or adopts a new treaty with
Mexico relating to penal sentencing, to allow for the
incarceration of inmates outside the United States in private
prisons.
24)Requires the Attorney General to notify in writing the
Governor, the Secretary of CDCR, the Secretary of the Senate,
and the Chief Clerk of the Assembly of the date on which the
conditions are met.
EXISTING LAW :
1)Establishes CDCR and vests the department with the powers and
duties exercised and performed by previous departments,
boards, bureaus, commissions and officers, as specified.
(Penal Code Section 5002.)
2)Establishes the jurisdiction of CDCR over other institutions
and facilities the department may be authorized by law to
establish. �Penal Code Section 5003(t).]
3)Requires CDCR to implement and maintain procedures to identify
inmates serving time in state prison who are undocumented
aliens subject to deportation. These procedures shall
include, but are not limited to, the following criteria for
determining the country of citizenship of an inmate (Penal
Code Section 5025):
a) Country of citizenship;
b) Place of birth;
c) Inmate's statements;
d) Prior parole records;
e) Prior arrest records;
f) Probation Officer's Report;
g) Information from the Department of Justice's Criminal
Identification and Information Unit; and,
AB 2083
Page 6
h) Other legal documents.
4)States that upon the entry of any current or former foreign
national into a CDCR facility, the secretary may notify that
individual that he or she may apply to be transferred to serve
the remainder of his or her prison term in his or her current
or former nation of citizenship. �Penal Code Section
5028(a).]
5)Defines the term "alien" as "any person not a citizen or
national of the United States." �8 U.S.C. Section
1101(a)(3).]
6)Specifies that the United States Attorney General (USAG) 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).]
7)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).]
8)States that the United States and Mexico desire to render
mutual assistance in combating crime insofar as the effects of
such crime extend beyond their borders and to provide better
administration of justice, including allowing Mexican
nationals sentenced to a penal institution by an American
Court may be served in penal institutions or subject to the
supervision of the authorities of Mexico, as specified. (28
U.S.T Section 7399.)
9)Authorizes CDCR to contract for out-of-state correctional
facilities to effectuate voluntary and involuntary transfers
of California prison inmates to facilities outside of this
state for incarceration consisting of constitutionally
adequate housing, care, and programming. �Governor's Exec.
Order (Oct. 4, 2006).]
10)States that any alien in and admitted to the United States
shall, upon the order of the Attorney General, be removed if
AB 2083
Page 7
the alien is convicted of any of the following �18 U.S.C.
1227(a)(2).]:
a) Crimes of moral turpitude within five years of
admission, or 10 years in the case of an alien provided
lawful permanent resident status, and that crime has
potential sentence of one year or longer;
b) Multiple convictions of crimes of moral turpitude, any
time after admission, not arising out of a single scheme of
criminal misconduct, regardless of whether confined
therefor and regardless of whether the convictions were in
a single trial;
c) An aggravated felony;
d) High speed flight from an immigration checkpoint;
e) Failure to register as a sex offender;
f) Any offense related to a controlled substance, other
than possession of 30 grams or less of marijuana;
g) Violation of laws related to purchasing, selling,
offering for sale, exchanging, using, owning, possessing,
or carrying, or of attempting or conspiring to purchase,
sell, offer for sale, exchange, use, own, possess, or
carry, any weapon, part, or accessory which is a firearm or
destructive device:
h) Violation of laws related to espionage, sabotage, or
treason and sedition;
i) Threatening the President or the successors to the
President;
j) Expedition against a Friendly nation;
aa) Violation of any provision of the Military Selective
Service Act or the Trading With the Enemy Act;
bb) Violation of laws related to domestic violence,
stalking, or child abuse; or,
cc) Trafficking.
AB 2083
Page 8
FISCAL EFFECT : Unknown.
COMMENTS :
1)Author's Statement : According to the author, "It is the
obligation of any elected representative, when given
jurisdiction over the dollar of the taxpayer, is to spend it
wisely. Legislators are charged to be as creative as necessary
to get the citizens the most for that dollar and not waste
vital funds on old conventions when better options exist. Such
is the case made for a Foreign Private Prison Commission.
"The demographics of the California prison system have undergone
a dramatic transformation in recent years due to the influx of
people entering the state illegally. Because of the cost to
incarcerate these criminal aliens, resources are continually
pulled from already drained programs that actually benefit
legal citizens. Changes must be made to help mitigate the
costs associated with housing this population of prisoners.
"The formation of a Foreign Private Prison Commission would
allow those here illegally and convicted of a deportable
offense, to be held in private foreign prisons, thus reducing
costs to the state, and therefore, taxpayers. Prisoners can be
housed in the same manner that they would be in the United
States, but at a drastically reduced cost to an already
overburdened California prison system."
2)Foreign Nationals in California State Prisons : This bill
would allow for the creation of privately run prisons, built
in Mexico, to imprison foreign nationals convicted of
specified offenses in this state. According to federal law,
a foreign national is a person who is any person who is not a
citizen or national of the United States. �8 U.S.C. Section
1101(a)(3).] This includes individuals who are undocumented
and are present in the United States in violation of federal
immigration law, as well as permanent legal residents,
individuals here on one of many types of visas, and refugees.
According to information provided by CDCR, there are
approximately 22,806 foreign nationals currently incarcerated
within CDCR. Of this number, approximately 15,632 inmates
AB 2083
Page 9
have Immigration and Customs Enforcement (ICE) holds,
indicating that he or she is eligible for deportation upon the
conclusion of his or her sentence. Of that 15,632, a
significant number, approximately 11,287, are Mexican
nationals. The remaining 4,000 foreign nationals in CDCR come
from nearly every country in the world, from Latvia to
Cambodia. It is unclear why incarcerating these foreign
nationals in Mexico is preferable to incarcerating them here,
particularly when 4,000 of these individuals are not Mexican
nationals. Additionally, all 15,632 inmate would have to be
transferred back to the United States at the conclusion of his
or her sentence for deportation proceedings, as there is no US
Immigration courts in Mexico.
3)International Prisoner Transfer Program : Penal code section
5028 allows for any person who is a foreign national, was a
foreign national, who is sentenced to state prison, to apply
to serve his or her sentence in his or her home country. CDCR
has implemented this section by creating the International
Prisoner Transfer Program. In order for this section to apply
to a specific foreign national, the US and the home country of
that individual must have a treaty in effect which allows for
this type of transfer. According to CRCD, these treaties must
also have the following common provisions: the prisoner must
be convicted and sentenced; the prisoner must have some
minimum period of time to serve of his or her sentence; the
judgment and conviction must be final; 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; the sentence cannot be a capital sentence; and prisoner
cannot be convicted solely of a military or political offense.
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. In deciding whether a
prisoner should be approved for transfer, CDCR considers the
following: treaty restrictions, prisoner's family and other
social ties to the sending and receiving countries,
humanitarian concerns, prisoner acceptance of responsibility
for their offense, prisoner criminal ties to the sending and
receiving countries, prisoner criminal history, seriousness of
the offense, law enforcement concerns, correspondence for or
against transfer, public safety, restitution, administration
of the prisoner's sentence in the receiving country, and the
likelihood of the prisoner returning to the United States. It
AB 2083
Page 10
is unclear why building an entire prison to house these
individuals is preferable to the existing transfer program.
4)Immigration Issues Are Committed to the Absolute Discretion of
the US Attorney General: In State of California v. United
States, 104 F.3d 1086 (9th Circuit 1996), California alleged
that the US Attorney General failed to perform his or her
statutory duties under specified sections of Title 8, United
States Code, by not conducting deportation proceedings
immediately following the conviction of aliens eligible for
deportation and for failing to take into custody aliens
convicted of aggravated felonies upon their release from state
incarceration pending a determination of deportability and
other related issues.
The Ninth Circuit Court of Appeals rejected California's
argument, stating that "agency refusals to institute
investigation or enforcement proceedings fall within the
exception to reviewability provided by 5 U.S.C. Section
701(a)(2) for action 'committed to agency discretion.' The
Court held that an agency's decision not to prosecute or
enforce, whether through civil or criminal process, is a
decision generally committed to the agency's absolute
discretion . . . these issues are not subject to judicial
review." (Id at p. 1094.)
Similarly, the United States Supreme Court has held that "our
cases have long recognized the preeminent role of the Federal
Government with respect to the regulation of aliens within our
borders." �See, e.g., Matthews v. Diaz, 426 U.S. 67 (1976).]
States may not impose auxiliary burdens on aliens. (Toll v.
Moreno, 458 U.S. 1 (1982).)
In Williams v. Williams, 328 F. Supp. 1380 (U.S. District Court
for the District of Virgin Islands), the Court held that
non-compliance with immigration laws was not a reason to deny
the parties the jurisdiction of the civil courts of the United
States. "To deny an alien access to our divorce courts on the
sole ground that he may be in violation of an immigration law
would be to deny both due process and the equal protection of
the laws. Such a denial would attach a civil disability to
some aliens without the prior benefit of the procedures
designed or the purpose of enforcing the immigration laws.
�See 8 U.S.C. � 1251 et seq.; 8 C.F.R. pt. 241-44 (1970).]
The divorce court is patently an inappropriate forum in which
AB 2083
Page 11
to attempt to reproduce these procedures. An exclusion from
court on this ground would also discriminate, without
compelling reason to do so, against persons who violate this
particular immigration law, as distinguished from persons who
violate any other law. The remedy for a violation of 8 U.S.C.
� 1101(a)(15)(H) is deportation or other administrative
sanctions, not withdrawal of access to our divorce courts."
The Williams Court thus rejected using the state court system
to assist federal immigration authorities with the enforcement
of immigration law, a field fully occupied by the Federal
Government.
The Ninth Circuit Court of Appeals has affirmed that "power to
regulate immigration is unquestionably exclusively a federal
power. �T]he United States Constitution provides that
Congress shall have the power to . . . establish a uniform
Rule of Naturalization. U.S. Constitution, article I, � 8."
�Cazarez-Guiterrez v. Ashcroft, 382 F. 3d 905 (2004).] The
Ninth Circuit has repeatedly recognized that the immigration
laws should be applied uniformly across the country, without
regard to the nuances of state law." (Id. at p.913.)
This bill is one of several bills in this Committee that have
attempted to use California State law enforcement resources in
the enforcement of federal immigration laws. As stated in a
long line of federal court cases, enforcement of immigration
laws is a matter entirely committed to the US Attorney
General. �See, e.g., Takahashi v. Fish and Game Commission,
334 U.S. 410, 419 (1948); California v. United States, 104 F.
3d 1086 (9th Circuit 1996); New Jersey v. United States, 91
F. 3d 463 (3rd Circuit 1996).] Individual states may not
enact laws that impose an auxiliary burden upon the entrance
or residence of aliens that was never contemplated by
Congress. This was recently reiterated by the Ninth Circuit,
which upheld the injunction of Arizona's SB 1070, which, in
part, grants immigration enforcement authority to state and
local law enforcement, on grounds of federal preemption of
immigration law. �United States v. Arizona, (9th Cir. 2011)
641 F.3d 339, cert. granted Dec. 12, 2011.]
REGISTERED SUPPORT / OPPOSITION :
Support
None
AB 2083
Page 12
Opposition
California Correctional Peace Officers Association
California Public Defenders Association
Services Employees International Union, Local 1000
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744