BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1124 (Cannella) 4
As amended April 9, 2012
Hearing date: April 17, 2012
Penal Code
SM:mc
PRISONERS' PAYMENT FOR STATE PRISON COSTS
HISTORY
Source: Author
Prior Legislation: SB 1364 (Harman) - 2010, returned to Sec. of
Senate pursuant to SJR 62(a)
AB 113 (Andal) - Chapter 145, Statutes of 1994
Support: California District Attorneys Association; Crime
Victims United
Opposition:California Judges Association; California Public
Defenders Association; Drug Policy Alliance; Friends
Committee on Legislation; Legal Services for Prisoners
with Children; California Attorneys for Criminal
Justice
KEY ISSUE
SHOULD COURTS BE REQUIRED, IN EVERY CASE IN WHICH A DEFENDANT IS
SENTENCED TO COUNTY JAIL OR STATE PRISON, TO HOLD A HEARING TO
DETERMINE THE DEFENDANT'S ABILITY TO PAY THE COSTS OF THAT
INCARCERATION?
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PURPOSE
The purpose of this bill is to (a) require courts, in every case
in which a defendant is sentenced to county jail or state
prison, to hold a hearing to determine the defendant's ability
to pay the costs of that incarceration; and (b) require the
court to order the defendant, prior to that hearing, to file a
statement with the court setting forth his or her assets,
liabilities, and income.
Current law provides that if a defendant is convicted of an
offense and ordered to serve a period of imprisonment in the
state prison, the court may, after a hearing, make a
determination of the ability of the defendant to pay all or a
portion of the reasonable costs of the imprisonment. The
reasonable costs of imprisonment shall not exceed the amount
determined by the Director of Corrections to be the actual
average cost of imprisonment in the state prison on a per-day
basis. (Penal Code � 1203.1m (a).)
Current law provides that the court may, in its discretion
before any hearing, order the defendant to file a statement
setting forth his or her assets, liability, and income under
penalty of perjury.
Current law provides that at the hearing, the defendant shall
have the opportunity to be heard in person or through counsel to
present witnesses and other evidence and to confront and
cross-examine adverse witnesses. A defendant who is represented
by counsel appointed by the court in the criminal proceeding
shall be entitled to representation at any hearing held pursuant
to this section. If the court determines that the defendant has
the ability to pay all or a part of the costs, the court shall
set the amount to be reimbursed and order the defendant to pay
that sum to the Department of Corrections for deposit in the
General Fund in the manner in which the court believes
reasonable and compatible with the defendant's financial
ability. Execution may be issued on the order in the same
manner as on a judgment in a civil action. The order to pay all
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or part of the costs shall not be enforced by contempt. (Penal
Code � 1203.1m (b).)
Current law provides that, at any time during the pendency of an
order made under this section, a person against whom the order
has been made may petition the court to modify or vacate its
previous order on the grounds of a change of circumstances with
regard to the person's ability to pay. The court shall advise
the person of this right at the time of making the order.
(Penal Code � 1203.1m (c).)
Current law provides that, if the amount paid by the defendant
for imprisonment exceeds the actual average cost of the term of
imprisonment actually served by the defendant, the amount paid
by the defendant in excess of the actual average cost shall be
returned to the defendant within 60 days of his or her release
from the state prison. (Penal Code � 1203.1m (d).)
Current law provides that, in determining a defendant's ability
to pay, the court shall consider the overall ability of the
defendant to reimburse all or a portion of the costs of
imprisonment in light of the defendant's present and foreseeable
financial obligations, including family support obligations,
restitution to the victim, and fines, penalties, and other
obligations to the court, all of which shall take precedence
over a reimbursement order made pursuant to this section.
(Penal Code � 1203.1m (e).)
Current law provides that in determining a defendant's ability
to pay, the court shall not consider the following:
The personal residence of the defendant, if any, up
to a maximum amount of the median home sales price in
the county in which the residence is located.
The personal motor vehicle of the defendant, if
any, up to a maximum amount of ten thousand dollars
($10,000).
Any other assets of the defendant up to a maximum
amount of the median annual income in California.
(Penal Code � 1203.1m (f).)
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This bill would require judges in every case in which a
defendant is sentenced to county jail or state prison, to hold a
hearing to determine the defendant's ability to pay the costs of
that incarceration.
This bill would provide that the reasonable cost of imprisonment
in the county jail shall not exceed the amount determined by the
board of supervisors to be the actual average cost of
imprisonment in the county jail on a per day basis.
This bill would require the judge to order the defendant, prior
to that hearing, to file a statement under penalty of perjury
setting forth his or her assets, liabilities, and income.
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
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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
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.
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:
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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:
Under existing law, the court in a criminal case has
the option to request from a defendant sentenced to a
stay in state prison a statement declaring his or her
assets, liabilities, and income. If the court
determines that the defendant is able to pay for a
portion or all of the costs associated with his or her
incarceration, it will set an amount to be reimbursed
to the Department of Corrections and Rehabilitation.
If it is determined that the person is unable to pay,
then no amount will be charged.
Unfortunately, the court's authority to request a
statement and levy an appropriate charge is utilized
without any regularity. Defendants who have the
ability to pay for their own stays in prison are not
being required to do so.
SB 1124 ensures that the court is provided with an
accurate assessment of each defendant's ability to
pay, so that it may make an appropriate determination
as to the amount, if any, to be paid. This bill would
not require the court to assess a fee upon a convicted
defendant, nor would it proscribe to the court what
that amount should be.
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2. What This Bill Would Do
Existing law, as detailed above, provides that in cases where
the defendant is convicted of a felony and sentenced to state
prison, the court may, after a hearing, make a determination of
the ability of the defendant to pay all or a portion of the
reasonable costs of the imprisonment. This bill would make such
a hearing mandatory in these cases as well as in every case in
which the defendant is sentenced to county jail. If the court
determines the defendant has the ability to pay all or some of
the costs of their incarceration, the court would order the
defendant to pay that amount to the Department of Corrections
and Rehabilitation to be deposited in the general fund or to the
sheriff for deposit in the county general fund.
One issue this raises is whether the cost of holding these
hearings in every such case would exceed the amount of money the
state or county could ever expect to recover from the number of
defendants that the courts determine could pay any amount of the
cost of their incarceration. Most criminal defendants are
indigent. Therefore, in most cases, requiring a hearing would
simply add to the costs of the case borne by the state.
Additionally, even in those cases where a defendant might have
enough assets for the court to find they could pay some or all
of the costs of their confinement, any such payment would be
subordinate to any restitution payment ordered to the victim.
(Penal Code � 1203.1m(e).) This would further reduce the number
of cases in which the state would actually recover any costs
from the offender.
WOULD REQUIRING COURTS TO ASSESS AN OFFENDER'S ABILITY TO PAY IN
EVERY CASE IN WHICH THE DEFENDANT IS SENTENCED TO PRISON END UP
COSTING MORE MONEY THAN IT RECOVERS FOR TAXPAYERS?
3. Charging Inmates for Room and Board
This bill would not require a court to impose any costs of
incarceration in any given case, but would require that a
hearing be held into the defendant's ability to pay the costs of
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their confinement in every case in which the court sentences the
defendant to imprisonment in either the county jail or state
prison. Currently, it is left to the court's discretion to
determine when it is appropriate to hold such a hearing to
determine if these costs could reasonably be imposed. This
raises the question whether there is any evidence that courts
are currently abusing their discretion in this regard to such a
degree that the Legislature needs to deprive courts of any
discretion in determining when it is warranted to hold such a
hearing.
ARE COURTS ABLE TO EXERCISE APPROPRIATE DISCRETION IN
DETERMINING WHEN SUCH HEARINGS SHOULD BE HELD?
Whether imposing such costs on prisoners is cost-effective and
good for public safety in the long run is debatable. As this
story in the Boston Globe describes, 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. Some that have imposed such fees have discovered that
the cost of collecting the money outweighs the amount they are
able to collect. Others have rejected the idea after
considering long-term costs due to the burden such debt can
place on inmate's families and the obstacle it can be to the
inmates' ability to get back on their feet after they serve
their time.
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
society not only in hard time, but also in cold, hard
cash.
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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
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.
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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.
In some cases, it is prisoners' families who shoulder
the financial burden.
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"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/)
A recent study by the Brennan Center for Justice at the New York
University School of Law found that, while such "user fees" are
proliferating, there are many hidden costs to imposing them:
Many states are imposing new and often onerous "user
fees" on individuals with criminal convictions. Yet
far from being easy money, these fees impose severe -
and often hidden - costs on communities, taxpayers,
and indigent people convicted of crimes. They create
new paths to prison for those unable to pay their
debts and make it harder to find employment and
housing as well to meet child support obligations.
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This report examines practices in the fifteen states
with the highest prison populations, which together
account for more than 60 percent of all state criminal
filings. We focused primarily on the proliferation of
"user fees," financial obligations imposed not for any
traditional criminal justice purpose such as
punishment, deterrence, or rehabilitation but rather
to fund tight state budgets.
Across the board, we found that states are introducing
new user fees, raising the dollar amounts of existing
fees, and intensifying the collection of fees and
other forms of criminal justice debt such as fines and
restitution. But in the rush to collect, made all the
more intense by the fiscal crises in many states, no
one is considering the ways in which the resulting
debt can undermine reentry prospects, pave the way
back to prison or jail, and result in yet more costs
to the public.
(Bannon, Nagrecha, Diller, Criminal Justice Debt: A
Barrier to Reentry, 2010, Brennan Center for Justice
at New York University School of Law, page 1,
http://brennan.3cdn.net/c610802495d901dac3_76m6vqhpy.pd
f)
According to the Legislative Analyst's Office, the average cost
to incarcerate an inmate in a California state prison in 2009-10
was $46,700 per year.<1> Therefore, a state prison inmate who
spent five years in prison could be released from prison owing
the state $233,500. Members may wish to consider whether
imposing this type of debt, or even a small fraction of it,
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
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<1>
http://www.lao.ca.gov/reports/2011/calfacts/calfacts_010511.aspx
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commentator observes:
Foremost among the arguments against pay-to-stay is
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.)
DOES IMPOSING THESE FEES PLACE A FINANCIAL BURDEN ON INMATES AND
THEIR FAMILIES THAT COULD IMPEDE EFFORTS AT REINTEGRATION INTO
SOCIETY?
WOULD ENCOURAGING COURTS TO IMPOSE THESE FEES ON INMATES MORE
OFTEN THAN THEY DO TODAY INCREASE PUBLIC SAFETY?
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