BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1876 (Quirk) 6
As Amended June 10, 2014
Hearing date: June 17, 2014
Public Contract Code
JRD:mc
JAILS AND JUVENILE FACILITIES:
TELEPHONE SERVICE CONTRACTS
HISTORY
Source: Community Initiatives for Visiting Immigrants in
Confinement; California Immigrant Policy Center; Ella
Baker Center for Human Rights; Friends Committee on
Legislation of California
Prior Legislation:SB 81 (Comm. on Bud. and Fiscal Rev.) - Ch.
175, Stats. 2007
AB 230 (Leno) - 2003, held in Assembly
Appropriations
Support: Advancing Justice - Asian Law Caucus California; All of
Us or None; American Civil Liberties Union (ACLU);
California Catholic Conference; California Church
IMPACT; California Coalition for Women Prisoners;
Californians for Safety and Justice; California
Immigrant Youth Justice Alliance; Californians United
for a Responsible Budget; Center on Juvenile & Criminal
Justice; Chico Peace and Justice Center; Christ the
Lord Church; Civil Rights Coalition for Jail Reform,
Monterey County; Community Works West; CREDO Mobile;
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Crossroads, Inc.; Detention Watch Network; Drug Policy
Alliance; Faithful Friends - Amigos Fieles; Faith in
Action Commission of the UU Church of Santa Monica;
First Unitarian Church of Oakland, Standing on the Side
of Love; Golden State Bail Agents Association;
Greenlining Institute; Human Rights Defense Center;
Immigrant Legal Resources Center; Immigration Justice
Task Force; Interfaith Coalition for Immigrant Rights;
Interfaith Communities United for Justice and Peace;
Justice Not Jails; Justice Now; La Mesa First United
Methodist Church, Community Outreach Ministry; Legal
Services for Prisoners with Children; Marin Interfaith
Task Force on the Americas; Media Alliance; Monterey
County Coalition for Jail Reform; Monterey Peace &
Justice Center; Mujeres Unidas y Activas; Multicultural
Ministries Committee, Lancaster United Methodist
Church; Neighborhood Church; Orange County Congregation
Community Organization (OCCCO); Orange County Female to
Male; Our Family Coalition; Pangea Legal Services;
Prison Policy Initiative; Richmond Progressive
Alliance; Social Justice Collaborative; St. John's
Presbyterian Church; Strawberry Creek Monthly Meeting
of the Religious Society of Friends; Street Level
Health Project; Transgender Law Center; Unitarian
Universalist Church of Berkeley; Unitarian Universalist
Justice Ministry of California; Women's Foundation;
Youth Justice Coalition
Opposition:California State Sheriffs' Association; Los Angeles
Sheriff's Department; San Bernardino Sheriff's
Department; San Diego County Sheriff's Department;
Imperial County Sheriff's Office
Assembly Floor Vote: Ayes 42 - Noes 21
KEY ISSUE
SHOULD COUNTY, MUNICIPAL OR PRIVATELY-OPERATED JAILS BE PROHIBITED
FROM COLLECTING COMMISSION ON INMATE TELEPHONE CALLS?
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PURPOSE
The purpose of this legislation is to prohibit commissions in
telephone service contracts for juvenile facilities and for
county, municipal or privately-operated jails, and requires such
contracts to be negotiated and awarded to the lowest cost
provider.
Under existing law a sheriff shall deposit any money, refund,
rebate, or commission received from a telephone company or pay
telephone provider when the money, refund, rebate, or commission
is attributable to the use of pay telephones which are primarily
used by inmates while incarcerated in the inmate welfare fund.
(Penal Code, � 4025(d).)
Under existing law the money and property deposited in the
inmate welfare fund shall be expended by the sheriff primarily
for the benefit, education, and welfare of the inmates confined
within the jail. Any funds that are not needed for the welfare
of the inmates may be expended for the maintenance of county
jail facilities. Maintenance of county jail facilities may
include, but is not limited to, the salary and benefits of
personnel used in the programs to benefit the inmates,
including, but not limited to, education, drug and alcohol
treatment, welfare, library, accounting, and other programs
deemed appropriate by the sheriff. Inmate welfare funds shall
not be used to pay required county expenses of confining inmates
in a local detention system, such as meals, clothing, housing,
or medical services or expenses, except that inmate welfare
funds may be used to augment those required county expenses as
determined by the sheriff to be in the best interests of
inmates. An itemized report of these expenditures shall be
submitted annually to the board of supervisors. (Penal Code, �
4025(e).)
Under existing law the treasurer may, pursuant to Article 1
(commencing with Section 53600), or Article 2 (commencing with
Section 53630) of Chapter 4 of Part 1 of Division 2 of Title 5
of the Government Code, deposit, invest, or reinvest any part of
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the inmate welfare fund, in excess of that which the treasurer
deems necessary for immediate use. The interest or increment
accruing on these funds shall be deposited in the inmate welfare
fund. (Penal Code, � 4025(h).)
Under existing law the sheriff may expend money from the inmate
welfare fund to provide indigent inmates, prior to release from
the county jail or any other adult detention facility under the
jurisdiction of the sheriff, with essential clothing and
transportation expenses within the county or, at the discretion
of the sheriff, transportation to the inmate's county of
residence, if the county is within the state or within 500 miles
from the county of incarceration. This subdivision does not
authorize expenditure of money from the inmate welfare fund for
the transfer of any inmate to the custody of any other law
enforcement official or jurisdiction. (Penal Code,
� 4025(i).)
This bill requires any contract to provide telephone services to
any person detained or sentenced to a jail or juvenile facility
to be negotiated and awarded to an entity that meets the jail or
juvenile facility's technical and functional requirements for
services, and that provides the lowest cost of service to any
person who pays for the telephone service.
This bill prohibits a contract to provide telephone services to
any person detained or sentenced to a jail or juvenile facility
from including any commission or other payment to the entity
operating the jail or juvenile facility.
This bill would allow a county to require a telephone service
provider to cover all costs related to the installation and
maintenance of the telephone devices and services.
This bill requires telephone rates to be reduced in response to
the elimination of commission fees.
This bill requires that all current telephone contracts that
provide telephone services to any person detained or sentenced
to a jail or juvenile facility to be amended to eliminate
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commissions and other payments on or before January 1, 2016.
This does not apply to fee telephone services.
This bill provides the following definitions:
"Jail" means a county jail, a municipal jail, or a
privately operated jail; and,
"Juvenile facility" means any juvenile hall, camp,
ranch, or other facility where a person is detained as a
result of a petition pursuant to specified provisions of
existing law pertaining to minors who become wards of the
court.
"Commission or other payment" means any payments made to
incentivize procurement of contracts, but does not include
grants and other payments that do not increase the cost of
telephone calls billed to consumers.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
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provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
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2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
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or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the Legislation
The author states, in part:
The ability of Californians who are imprisoned to stay
in touch with family members is essential for
reintegration into the community and helps to reduce
recidivism. Phone calls also provide a crucial way
for inmates to communicate with attorneys and bail
agents which are a vital component to the basic right
of due process.
There are currently about 82,000 people detained in
California's county jail facilitates serving
misdemeanor and low level felony sentences. County
jails also house defendants awaiting trial, immigrant
detainees and youth offenders.
For inmates in county jails, there is no alternative
way of communicating with family, friends, support
groups, attorneys or bail agents. There are three
options for making calls from county jails facilities:
pre-paid calls, collect calls and pre-paid phone
cards. Pre-paid calls deduct money from an account
set up and paid for by family members (or in some
instances attorneys) with the company providing phone
services at the county jail.
There is little incentive for contracting with phone
companies who guarantee great service and low prices.
The Federal Communications Commission (FCC) recently
announced that "some correctional facilities may base
their selection of a contractor largely on the amount
of cash and/or in-kind inducement offered rather than
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being driven by proposals focused on high quality
service at the most affordable rates for consumers"
(FCC 23).
There are three main reasons why the cost of making a
call from a county jail is extremely expensive: (1)
each county enters into an exclusive contract with a
phone company; (2) companies are contractually
obligated to pay commissions to the county for
services rendered; and (3) in order to collect revenue
to make up the money lost to commissions, telephone
companies add hefty charges and extra fees.
2. Inmate Welfare Fund (IWF)
Current law requires any money, refund, rebate, or commission
received from a telephone company providing inmate phone
services to be deposited into the IWF. The use of those funds
is restricted to the benefit, education, and welfare of the
inmates confined within the jail. However, funds that are not
needed for the welfare of the inmates may be expended to
maintain county jail facilities, which can include the salary
and benefits of personnel used in the programs to benefit the
inmates such as education, drug and alcohol treatment, welfare,
library, accounting, and other programs deemed appropriate by
the sheriff.
According to the author:
[T]here is disagreement over how much actually goes to
direct services for inmates and how much is used to
subsidize salary or building retrofits which should be
paid from a different fund. For example, in 2005,
Santa Clara County was sued for how it handled the
IWF. When it was settled in 2007, the County agreed
to abide by certain conditions and limitations,
including the creation of a committee to oversee the
IWF. Additionally, not all annual reports contain
specific information on what the expenditures were,
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but rather opt for using broad and general categories.
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3. Effect of Legislation
In 2007, the Legislature approved as a budget trailer bill SB 81
(Committee on Budget and Fiscal Review), Chapter 175, Statutes
of 2007. Among its many provisions, SB 81 directed a four-year
phase out of concession fees in phone service contracts for
state correctional facilities. In application, SB 81 eliminated
the $26 million concession fee the vendor paid to the State
General Fund - by reducing it by $6.5 million each fiscal year
until it became zero in FY 2010/2011.
According to information provided by the author, after the full
enactment of SB 81, California prison phone rates decreased
drastically. Today, a 15 minute long-distance call from a
California state prison costs $1.44. In comparison, according
to a sample chart provided by the author, the same 15-minute
call from a local correctional facility can cost in the range of
$4.39-$6.75 for a local call, and $9.80-$12.75 for a
long-distance call. Commissions range from 57-72% of gross
revenue, with some contracts containing minimum annual
guarantees and/or bonus payments for contract extensions. This
legislation would eliminate commission for all calls made in a
county juvenile facility, a county jail, a municipal jail, or a
privately operated jail.
4.Argument in Support
The American Civil Liberties Union states, in part:
Making it harder for incarcerated people to stay in
touch with family and friends is a disservice society
as a whole, as it impacts rehabilitation, and
reintegration into the community. Additionally, with
realignment, there is a new group of defendants
serving sentences at county jail and awaiting trial.
For the former group, communication with, and access
to their attorneys or bail agents are affected and
constitutional rights compromised.
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Choice and competition is nearly non-existent in the
awarding of contracts for phone services at county
jails. Phone companies enjoy exclusive contracts due
to the monopolistic nature of the process. As an
incentive to secure these lucrative contracts, phone
companies provide commissions, to the county jail.
These commissions, which can be as high as seventy two
percent of gross phone revenue, result in inflated
phone rates for inmates and their families.
5.Argument in Opposition
The California State Sheriffs' Association states, in part:
[T]his [bill] could eliminate the ability of a county
to recover any costs for the installation or
maintenance of a phone system. In addition, it is
unclear that this restrictive language would allow the
costs of facility security, protection of victims from
calls by inmates, and control of contraband to be
considered when procuring a contract.
Further, precluding a provider from paying a
commission or other payment to the facility operator
will only hurt inmates, the very people this bill
ostensibly seeks to aid. Existing law requires any
money, refund, rebate, or commission received from a
provider of inmate phone services to be deposited in
the inmate welfare fund (IWF). Statute specifies what
may be paid for by the IWF, and as a practical matter,
IWFs typically pay for inmate education, religious
materials, vocational training, recreational
equipment, and clothing and hygiene supplies for
indigent inmates. Additionally, and separate from
commissions, providers often pay for facility upgrades
to accommodate phone systems, but this savings to the
county would be eliminated by AB 1876.
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We understand [the] desire to ensure inmates have
affordable access to telephone usage, but this bill
will likely result in a lower level of phone service
and will cause a reduction in the meaningful programs
and provisions that are funded by the IWF.
Elimination of this funding source will ultimately
harm inmates and the public safety.
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