BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 434 (Anderson) 3
As Amended March 24, 2011
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Hearing date: May 3, 2011
Penal Code
MK:mc
UNDOCUMENTED CRIMINAL IMMIGRANTS:
COSTS OF INCARCERATION: COLLECTION OF DATA
HISTORY
Source: Author
Prior Legislation: SB 125 (Benoit) - failed, Senate Public
Safety 2009
AB 713 (Gaines) - held, Assembly Appropriations
Suspense 2009
AB 39 (Benoit) - failed, Assembly Public Safety
2008
SB 1608 (Karnette) - Ch. 924, Stats. 2004
SB 300 (Karnette) - 2003, failed on Assembly Floor,
provisions subsequently deleted
SB 1544 (Karnette) - vetoed, September 29, 2002
AJR (Firebaugh and Aanestad) - Res. Ch. 108, Stats.
2001
SJR 40 (Polanco) - 2000, held in Assembly
SB 1314 (Johannessen) - Ch. 567, Stats. 1994
SB 1878 (Torres) - Ch. 565, Stats. 1994
AB 1874 (Epple) - Ch. 566, Stats. 1994
AB 2519 (Nolan) - Ch. 1322, Stats. 1992
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SB 434 (Anderson)
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Support: Howard Jarvis Taxpayers Association
Opposition:American Civil Liberties Union
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION BE REQUIRED
TO ANNUALLY BILL THE FEDERAL GOVERNMENT IN WRITING FOR THE FULL COST
OF INCARCERATING ANY UNDOCUMENTED CRIMINAL ALIEN WITHIN CALIFORNIA'S
CORRECTIONAL SYSTEM?
SHOULD THE LAW PROVIDE THAT IF THE FEDERAL GOVERNMENT DOES NOT PAY
THE FULL COST OF INCARCERATING UNDOCUMENTED CRIMINAL ALIENS IN
CALIFORNIA, THE ATTORNEY GENERAL SHALL UTILIZE ALL AVAILABLE LEGAL
RESOURCES TO OBTAIN COMPLIANCE WITH PAYMENT OF THE WRITTEN BILL?
SHOULD THE LAW REQUIRE THE DEPARTMENT OF JUSTICE TO COLLECT DATA ON
THE TOTAL NUMBER AND PERCENTAGE OF UNDOCUMENTED ALIEN INMATES IN ALL
STATE AND LOCAL FACILITIES AND PUBLISH THAT DATA ON THE INTERNET WEB
SITE OF THE DEPARTMENT?
PURPOSE
The purpose of this bill is to require the Department of
Corrections and Rehabilitation to bill the federal government
for the incarceration of all undocumented inmates in California
prisons; to require the Attorney General to use all legal means
to obtain compliance with the request for reimbursement; and to
require the Department of Justice to collect data on the number
of incarcerated undocumented aliens in California and publish
that data on the Web site of the DOJ.
Existing law requires that the Department of Corrections and
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Rehabilitation ("CDCR") do the following:
Upon the entry of any person who is currently or was
previously a foreign national into a facility operated by
the CDCR, and at least every year thereafter, the Secretary
of CDCR shall inform the person that he or she may apply to
be transferred to serve the remainder of his or her prison
term in his or her country of origin and that he or she may
contact his or her consulate.
Upon the request of a foreign consulate representing a
nation that requires mandatory notification under the
Vienna Convention, provide the foreign consulate with a
list of the names and locations of all inmates in its
custody that have self-identified that nation as his or her
place of birth.
Implement and maintain procedures to process
applications for the transfer of prisoners to their
countries of origin and forward the applications to the
Board of Parole Hearings for appropriate action. (Penal
Code � 5028.)
Existing law requires that CDCR shall implement and maintain
procedures to identify, within 90 days of assuming custody,
inmates or wards who are undocumented felons subject to
deportation and sets forth specified things that the procedures
must include. (Penal Code � 5025.)
Existing law provides that CDCR shall refer to the United States
Immigration and Naturalization Service the name and location of
any inmate or ward who may be an undocumented alien ward who may
be subject to deportation for a determination of whether the
inmate or ward is undocumented. The case files should be made
available to the Immigration and Naturalization Service for
purposes of investigation. (Penal Code � 5025.)
Existing federal law provides that the State Criminal Alien
Assistance Program (SCAAP) provides federal payments to states
and localities that incurred correctional officer salary costs
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for incarcerating undocumented criminal aliens with at least
one felony or two misdemeanor convictions for violations of
state or local law, and incarcerated for at least 4
consecutive days during the reporting period. (Section 241(i)
of the Immigration and Nationality Act, 8 U.S.C. Section
1231(i), as amended, and Title II, Subtitle C, Section 20301,
Violent Crime Control and Law Enforcement Act of 1994, Public
Law 103-322.)
This bill provides that the Secretary of CDCR shall annually
bill the federal government, in writing, for the full cost of
incarcerating any undocumented criminal alien incarcerated
within California's correctional system.
This bill provides that if the federal government does not make
the payment demanded above, the Attorney General shall utilize
all available resources to obtain compliance with payment of the
written bill.
This bill provides that the Department of Justice shall collect
data on the total number and percentage of undocumented alien
inmates in all state and local correctional institutions in the
state and publish this data on the Internet Web site of the
department. This data shall be initially collected and
published on or before July 1, 2012, and thereafter updated and
published annually on or before July 1 of each year.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
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
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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.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 434 would apply pressure on the federal government to
fully compensate California for the actual cost of
incarcerating undocumented immigrant criminals in
California's prisons.
The federal government has continually unfunded what it
owes California for incarceration of undocumented
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criminals, covering less than 11% of the actual costs.
This straight forward approach will help solve
California's budget crisis by holding the federal
government accountable for what it owes to Californians.
SB 434 will send a clear message that lawmakers are
serious about pursuing every possible avenue to recoup
the costs for the incarceration of undocumented
immigrant criminals from the federal government. Our
state should not be footing the bill for a federal
responsibility.
2. Send Bill to the Federal Government for Undocumented Inmates
Currently, the Department of Corrections and Rehabilitation
(CDCR) applies yearly to the federal government for
reimbursement for the housing of all undocumented immigrant
inmates under the State Criminal Alien Assistance Program
(SCAAP). Under SCAAP, CDCR is actually permitted to apply for
reimbursement for any inmate that is foreign born. Since only
the federal government, not California, can determine whether
someone is in the country illegally, this ability to be
overinclusive gives California the ability to have a greater
chance at higher reimbursement. However, generally the
reimbursement rate runs around ten percent. In fiscal year
2008, according to the SCAAP Web site, the State of California
received $118,030,160 from SCAAP. Fifty-two counties in
California also received money ranging in from $2,024 for
Mariposa County to $14,054,100 for Los Angeles County. Eleven
counties received in the
$1 million to $3 million range.
(http://www.ojp.usdoj.gov/BJA/grant/scaap.html)
This bill requires the Secretary of CDCR to annually bill the
federal government, in writing, for the full cost of
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incarcerating any undocumented criminal alien incarcerated
within California's correctional system. As noted above, CDCR
already applies annually for reimbursement by applying for funds
through SCAAP, a process set up for this purpose. Therefore, it
appears that CDCR already is complying with the billing
requirements of this bill. It is unclear that additional
reimbursement from the federal government could be obtained if
an invoice were submitted outside the SCAAP process, and how
such an invoice could be submitted.
The ACLU argues that SCAAP would preempt this new requirement
stating:
While in recent years there has been much political
debate as to whether the federal government is
fulfilling its obligations to fund the states for
costs associated with incarcerating undocumented
immigrants, the federal government's enactment of law
establishing the SCAAP program and its general
regulation and enforcement of immigration matters is
likely to preempt state regulation and enforcement in
this area. See, e.g. League of United Latin American
Citizens v. Wilson 908 F. Supp. 755, 771, 776 (C.D.
Cal. 1995); subsequently reaffirmed, 997 F. Supp.
1244, 1250, 1252, 1261 (C.D. Cal 1997).
SINCE CDCR ALREADY APPLIES ANNUALLY FOR REIMBURSEMENT OF
UNDOCUMENTED PERSONS WHEN IT APPLIES FOR SCAAP MONEY, WHAT IS
CONTEMPLATED BY THIS BILL?
DOES SCAAP PREEMPT ANY STATE LAW REQUIRING A DEMAND FOR
REIMBURSEMENT?
3. Attorney General to Utilize Legal Sources to Obtain Compliance
This bill provides that if the federal government does not fully
reimburse California for the costs requested by CDCR, then the
Attorney General shall utilize all available legal resources to
obtain compliance with payment of the bill. The idea of trying
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to force the federal government to pay for the costs of
undocumented immigrants incurred by California is not new. The
Wilson administration brought a lawsuit to collect not only
costs of incarceration but also costs of education and other
costs. The lawsuit was unsuccessful and the court found that
there was no standing for the state to bring the suit.
Specifically, the court dismissed the argument relating to
incarceration stating:
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California also contends in Count IX that the United
States has violated the Tenth Amendment because
federal immigration policy causes the State to incur
the costs of incarcerating those illegal aliens who
commit crimes within the State. California reasons
that because the United States has failed to
effectively enforce its immigration policies, the
Federal Government has essentially "commandeered" the
State's legislative process by forcing California to
allocate money and human resources to both
incarcerate illegal alien felons and supervise their
parole.
The Court concludes that California has failed to
allege a Tenth Amendment violation because no federal
mandate requires California to pursue a penal policy
resulting in these costs. See Padavan, 82 F.3d at
28-29 (reaching same result); New Jersey, 91 F.3d at
467 (reaching same result). ( California v. United
States, 104 F.3d 1086, 1092-1093 (9th Cir. Cal.
1997) .)
SINCE A LAWSUIT HAS ALREADY BEEN BROUGHT AGAINST THE FEDERAL
GOVERNMENT AND CALIFORNIA LOST, WHAT LEGAL MEANS ARE
INTENDED BY THIS BILL?
4. Data Collection
This bill requires that the Department of Justice collect data
on the total number of, and percentage of, undocumented alien
inmates in all state and local correctional institutions in the
state and publish the data on CDCR's Web site by July 1, 2012.
CDCR cannot determine whether or not a person is an undocumented
immigrant. They can determine that a person is foreign born or
that a person has an Immigration and Customs Enforcement (ICE)
hold but neither of these are determinative on whether a person
is in the country legally or not. As noted above, the SCAAP
application gives CDCR much leeway in their determination so
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they rely solely on the fact that a person is foreign born,
knowing that this is not a final determination of their status.
The ACLU argues that not only are ICE holds an unreliable
determination on a person's legal status, but mistakes based on
reliance can be expensive:
While some people with "ICE holds" are in the United
States without authorization, many others are lawful
permanent residents, and a smaller number are actually
U.S. citizens. The unavoidable mistakes made by
ill-prepared states and local officials in determining
an individual's immigration status can be costly,
resulting in lawsuits and protracted litigation. See,
e.g. Soto-Torres v. Johnson, CIV S-99-16595 WBS/DAD
(E.D. Cal. Filed Aug 30, 1999) (County and federal
officials paid $100,000 to settle the case after the
county probation officer made an erroneous determination
regarding plaintiff's deportability which resulted in
wrongful arrest and detention of plaintiff by
immigration authorities.)
SINCE IT IS NOT POSSIBLE FOR CDCR TO MAKE A DETERMINATION AS TO
SOMEONE'S IMMIGRATION STATUS, WHAT INFORMATION ARE THEY SUPPOSED
TO USE?
SINCE ONLY THE FEDERAL GOVERNMENT CAN DETERMINE IMMIGRATION
STATUS, WHAT RELEVANCE AND HOW USEFUL WOULD ANY DATA CDCR COMES
UP WITH BE?
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