BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2490 (Butler) 0
As Amended July 2, 2012
Hearing date: July 3, 2012
Penal Code
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VETERANS SERVICE OFFICERS: STATE PRISONS
HISTORY
Source: American Legion-Department of California;
AMVETS-Department of California (Co-Sponsor); Vietnam
Veterans of America-California State Council
(Co-Sponsor)
Prior Legislation: AB 2671 (Salas) - 2008, vetoed
AB 589 (Cook) - 2009, failed in Senate
Transportation and Housing
Support: American Federation of State County and Municipal
Employees; California Correctional Peace Officers
Association; Legal Services for Prisoners with
Children; California Public Defenders Association
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUES
SHOULD EVERY STATE PRISON ASSIGN A COUNSELOR TO THE DUTY OF ADVISING
INMATES WHO ARE HONORABLY DISCHARGED VETERANS ABOUT BENEFITS,
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PRIVILEGES AND COMPENSATION TO WHICH VETERANS MAY BE ENTITLED?
SHOULD THE COUNSELOR ASSIGNED TO ASSIST VETERANS COORDINATE WITH THE
DEPARTMENT OF VETERANS AFFAIRS AND THE COUNTY VETERANS SERVICE
OFFICER?
PURPOSE
The purposes of this bill are to direct the Department of
Corrections and Rehabilitation to
1) assign a counselor at each prison to advise honorably
discharged veterans of benefits, privileges and compensation to
which veterans are entitled; and 2) direct such counselors to
coordinate services with the Department of Veterans Affairs and
the county veterans service officer.
Relevant Federal Law
Existing law limits the veterans' benefits a veteran may receive
while he or she is incarcerated for a felony, except provides a
60-day grace period where the incarcerated veteran may still
receive full benefits. The withholding of benefits begins on
the 61st day of incarceration. (38 U.S.C. � 5313, subd. (a)(1);
38 C.F.R. � 3.666, subd. (a).)
Existing law states that an incarcerated veteran is entitled to
full benefits while he or she is participating in a work-release
program or is residing in a halfway house. (38 U.S.C. � 5313,
subd. (a)(2).)
Existing law allows the dependents of an incarcerated felon to
receive an apportionment of the benefits to which the
incarcerated veteran would have been entitled, unless the
dependent is incarcerated for a felony. (38 U.S.C. � 5313,
subd. (b).)
Existing law prohibits compensation on behalf of a veteran for
any period during which he or she is a "fugitive felon." (38
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U.S.C. � 5313B; 38 C.F.R. � 3.666, subd. (n).)
Existing law defines a "fugitive felon" as a person who is a
fugitive by reason of:
avoiding prosecution, or custody or confinement after
conviction, for an offense, or an attempt to commit an
offense, which is a felony under the laws of the place from
which the person flees; or
violating a condition of probation or parole imposed for
commission of a felony under Federal or State law. (38
U.S.C. � 5313B, subd. (b).)
Existing law requires restoration of withheld benefits if a
conviction is overturned on appeal. (38 C.F.R. � 3.666, subd.
(m).)
Relevant California Law
Existing law contains a number of provisions aimed at assisting
California veterans, such as farm and home loan assistance (Mil.
and Vet. Code �� 987.50 et seq.), business enterprise
opportunities (Mil. and Vet. Code �� 999 to 999.13), and
educational assistance (Mil. and Vet. Code �� 981 et seq.)
Existing law requires CDCR to "conduct assessments of all
inmates that include, but are not limited to, data regarding the
inmate's history of substance abuse, medical and mental health,
education, family background, criminal activity, and social
functioning. The assessments shall be used to place inmates in
programs that will aid in their reentry to society and that will
most likely reduce the inmate's chances of reoffending." (Pen.
Code � 3020.)
This bill requires that a correctional counselor be assigned at
every state prison that is under CDCR's jurisdiction to assist
inmates who are veterans in pursuing claims for federal
veterans' benefits or in establishing rights to any other
privilege, preference, care, or compensation provided under
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federal or state law due to honorable military service.
This bill requires the assigned correctional counselor to
coordinate with the Department of Veterans Affairs, the county
veterans-service officer, veterans-service organizations, or
both, in the county in which the prison is located for advice
and assistance.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
For many Veterans of the United States Military who
are incarcerated, they are unaware of the benefits
they are rightfully owed for their service to our
country. This bill would create a Veterans Service
Officer (VSO) at all Department of Correction
facilities to help Veterans receive their benefits
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they are entitled to. Though veterans cannot collect
on their benefits while incarcerated, by having a VSO
at each facility they can begin the process and have
their rightful benefits ready for them the day they
are released.
2. Preparing Inmates who are Veterans for Release from Prison
Over the past few decades numerous reports have been published
concerning the need for the state to employ evidence-based
strategies to prepare inmates for release into society.
California has had a very high recidivism rate for former prison
inmates. The Little Hoover Commission and others have stressed
the benefits of education and job training for inmates. Inmates
are often released with few resources. (See, Solving
California's Correction Crisis, Little Hoover Commission, 2007.)
It appears that the intent of this bill is to get veterans any
support and assistance available to them upon release.
3. Veterans Affairs Committee Hearing
This bill was heard by the Veterans Affairs Committee June 26,
2012. The bill passed on a vote of 7-0. The bill was amended
in Veterans Affairs to strike the legislative findings in the
bill and to add cross-references to relevant sections of the
Military and Veterans Code.
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