California Legislature—2013–14 Regular Session

Assembly Bill No. 2106

Introduced by Assembly Member Quirk

February 20, 2014

An act to amend Section 1170.05 of the Penal Code, relating to inmates.

LEGISLATIVE COUNSEL’S DIGEST

AB 2106, as introduced, Quirk. Inmates: alternative custody.

Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation to offer a program under which female inmates who are committed to state prison may be allowed to participate in a voluntary alternative custody program in lieu of confinement in state prison. Existing law defines an alternative custody program to include confinement to a residential home, a residential drug or treatment program, or a transitional care facility that offers appropriate services. Existing law provides that female inmates sentenced to determinate sentences shall be eligible for participation in the program, subject to certain disqualifying criteria.

This bill would provide that an existing psychiatric or medical condition that requires ongoing care is not a basis for excluding an inmate from eligibility for the program. The bill would provide more specific timeframes for participation in the alternative custody program. The bill would require the Secretary of the Department of Corrections and Rehabilitation or his or her designee to respond to an applicant within two weeks of his or her application to inform the inmate that the application was received, and to notify the inmate of any exclusionary criteria and case-by-case criteria. The bill would require an individualized treatment and rehabilitation plan to be developed during the two weeks following the notice of receipt of the application, in consultation with the inmate, during which time the decision of whether to accept the inmate into the program would be made, and during which time the secretary or his or her designee would provide a written notice to the inmate of acceptance or denial of participation in the program. The bill would require an inmate to be released to the program no later than 5 business days following notice of acceptance into the program. The bill would require a notice of denial to explain the reasons the inmate has been denied participation in the program. The bill would require the secretary or his or her designee to keep a record of the application and notice of denial for participation. The bill would authorize an inmate to, 30 days after the notice of denial, reapply for participation in the program.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1170.05 of the Penal Code is amended
to read:

1170.05.  

(a) Notwithstanding any other law, the Secretary of
the Department of Corrections and Rehabilitation is authorized to
offer a program under which female inmates as specified in
subdivision (c), who are not precluded by subdivision (d), and who
have been committed to state prison may be allowed to participate
in a voluntary alternative custody program as defined in subdivision
(b) in lieu of their confinement in state prison. In order to qualify
for the program an offender need not be confined in an institution
under the jurisdiction of the Department of Corrections and
Rehabilitation. Under this program, one day of participation in an
alternative custody program shall be in lieu of one day of
incarceration in the state prison. Participants in the program shall
receive any sentence reduction credits that they would have
received had they served their sentence in the state prison, and
shall be subject to denial and loss of credit pursuant to subdivision
(a) of Section 2932. The department may enter into contracts with
county agencies, not-for-profit organizations, for-profit
organizations, and others in order to promote alternative custody
placements.

(b) As used in this section, an alternative custody program shall
include, but not be limited to, the following:

(1) Confinement to a residential home during the hours
designated by the department.

(2) Confinement to a residential drug or treatment program
during the hours designated by the department.

(3) Confinement to a transitional care facility that offers
appropriate services.

(c) Except as provided by subdivision (d), female inmates
sentenced to state prison for a determinate term of imprisonment
pursuant to Section 1170, and only those persons, shall be eligible
to participate in the alternative custody program authorized by this
section. begin insert An existing psychiatric or medical condition that requires
ongoing care is not a basis for excluding an inmate from eligibility
to participate in the alternative custody program authorized by
this section. end insert

(d) An inmate committed to the state prison who meets any of
the following criteria shall not be eligible to participate in the
alternative custody program:

(1) The person has a current conviction for a violent felony as
defined in Section 667.5.

(2) The person has a current conviction for a serious felony as
defined in Sections 1192.7 and 1192.8.

(3) The person has a current or prior conviction for an offense
that requires the person to register as a sex offender as provided
in Chapter 5.5 (commencing with Section 290) of Title 9 of Part
1.

(4) The person was screened by the department using a validated
risk assessment tool and determined to pose a high risk to commit
a violent offense.

(5) The person has a history, within the last 10 years, of escape
from a facility while under juvenile or adult custody, including,
but not limited to, any detention facility, camp, jail, or state prison
facility.

(e) An alternative custody program shall include the use of
electronic monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant’s compliance with the rules and regulations of the
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and
the person supervising the participant, in which case the recording
of such a conversation is to be used solely for the purposes of voice
identification.

(f) (1) In order to implement alternative custody for the
population specified in subdivision (c), the department shall create,
and the participant shall agree to and fully participate in, an
individualized treatment and rehabilitation plan. When available
and appropriate for the individualized treatment and rehabilitation
plan, the department shall prioritize the use of evidence-based
programs and services that will aid in the successful reentry into
society while she takes part in alternative custody. Case
management services shall be provided to support rehabilitation
and to track the progress and individualized treatment plan
compliance of the inmate.

(2) For purposes of this section, “evidence-based practices”
means supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease community
supervision.

(g) The secretary shall prescribe reasonable rules and regulations
under which the alternative custody program shall operate. The
department shall adopt regulations necessary to effectuate this
section, including emergency regulations as provided under Section
5058.3 and adopted pursuant to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code). The participant
shall be informed in writing that she shall comply with the rules
and regulations of the program, including, but not limited to, the
following rules:

(1) The participant shall remain within the interior premises of
her residence during the hours designated by the secretary or his
or her designee.

(2) The participant shall be subject to search and seizure by a
peace officer at any time of the day or night, with or without cause.
In addition, the participant shall admit any peace officer designated
by the secretary or his or her designee into the participant’s
residence at any time for purposes of verifying the participant’s
compliance with the conditions of her detention. Prior to
participation in the alternative custody program, all participants
shall agree in writing to these terms and conditions.

(3) The secretary or his or her designee may immediately retake
the participant into custody to serve the balance of her sentence if
the electronic monitoring or supervising devices are unable for
any reason to properly perform their function at the designated
place of detention, if the participant fails to remain within the place
of detention as stipulated in the agreement, or if the participant for
any other reason no longer meets the established criteria under this
section.

(h) Whenever a peace officer supervising a participant has
reasonable suspicion to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the
designated place of confinement, the peace officer may, under
general or specific authorization of the secretary or his or her
designee, and without a warrant of arrest, retake the participant
into custody to complete the remainder of the original sentence.

(i) Nothing in this section shall be construed to require the
secretary or his or her designee to allow an inmate to participate
in this program if it appears from the record that the inmate has
not satisfactorily complied with reasonable rules and regulations
while in custody. An inmate shall be eligible for participation in
an alternative custody program only if the secretary or his or her
designee concludes that the inmate meets the criteria for program
participation established under this section and that the inmate’s
participation is consistent with any reasonable rules and regulations
prescribed by the secretary.

(1) The rules and regulations and administrative policies of the
program shall be written and shall be given or made available to
the participant upon assignment to the alternative custody program.

(2) The secretary or his or her designee shall have the sole
discretion concerning whether to permit program participation as
an alternative to custody in state prison. A risk and needs
assessment shall be completed on each inmate to assist in the
determination of eligibility for participation and the type of
alternative custody.

begin insert

(j) The secretary or his or her designee shall establish a timeline
for the application process. The secretary or his or her designee
shall respond to an applicant within two weeks of his or her
application to inform the inmate that the application was received,
and to notify the inmate of any exclusionary criteria and
case-by-case criteria. The individualized treatment and
rehabilitation plan described in subdivision (f) shall be developed
during the two weeks following the notice of receipt of the
application, in consultation with the inmate, during which time
the decision whether to accept the inmate into the program shall
be made, and the secretary or his or her designee shall provide a
written notice to the inmate of his or her acceptance or denial into
the program. The inmate shall be released to the program no later
than five business days following notice of acceptance into the
program. If the inmate is denied participation in the program, the
notice of denial shall explain the reason the inmate was denied.
The secretary or his or her designee shall keep a record of the
application and notice of denials for participation. The inmate
may, 30 days after the notice of denial, reapply for participation
in the program.

end insert begin delete

(j)

end delete

begin insert (k) end insert  The secretary or his or her designee shall permit program
participants to seek and retain employment in the community,
attend psychological counseling sessions or educational or
vocational training classes, participate in life skills or parenting
training, utilize substance abuse treatment services, or seek medical
and dental assistance based upon the participant’s individualized
treatment and release plan. Participation in other rehabilitative
services and programs may be approved by the case manager if it
is specified as a requirement of the inmate’s individualized
treatment and rehabilitative case plan. Willful failure of the
program participant to return to the place of detention not later
than the expiration of any period of time during which she is
authorized to be away from the place of detention pursuant to this
section, unauthorized departures from the place of detention, or
tampering with or disabling, or attempting to tamper with or
disable, an electronic monitoring device shall subject the participant
to a return to custody pursuant to subdivisions (g) and (h). In
addition, participants may be subject to forfeiture of credits
pursuant to the provisions of Section 2932, or to discipline for
violation of rules established by the secretary.

begin delete

(k)

end delete

begin insert (l) end insert  (1) Notwithstanding any other law, the secretary or his or
her designee shall provide the information specified in paragraph
(2) regarding participants in an alternative custody program to the
law enforcement agencies of the jurisdiction in which persons
participating in an alternative custody program reside.

(2) The information required by paragraph (1) shall consist of
the following:

(A) The participant’s name, address, and date of birth.

(B) The offense committed by the participant.

(C) The period of time the participant will be subject to an
alternative custody program.

(3) The information received by a law enforcement agency
pursuant to this subdivision may be used for the purpose of
monitoring the impact of an alternative custody program on the
community.

begin delete

(l)

end delete

begin insert (m) end insert  It is the intent of the Legislature that the alternative custody
program established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the secretary may administer an alternative custody
program pursuant to written contracts with appropriate public
agencies or entities to provide specified program services. No
public agency or entity entering into a contract may itself employ
any person who is in an alternative custody program. The
department shall determine the recidivism rate of each participant
in an alternative custody program.

begin delete

(m)

end delete

begin insert (n) end insert  An inmate participating in this program begin delete must end delete begin insert shall end insert
voluntarily agree to all of the provisions of the program in writing,
including that she may be returned to confinement at any time with
or without cause, and shall not be charged fees or costs for the
program.

begin delete

(n)

end delete

begin insert (o) end insert  The state shall retain responsibility for the medical, dental,
and mental health needs of individuals participating in the
alternative custody program.

begin delete

(o)

end delete

begin insert (p) end insert  The secretary shall adopt emergency regulations specifically
governing participants in this program.

begin delete

(p)

end delete

begin insert (q) end insert  If a phrase, clause, sentence, or provision of this section or
application thereof to a person or circumstance is held invalid, that
invalidity shall not affect any other phrase, clause, sentence, or
provision or application of this section, which can be given effect
without the invalid phrase, clause, sentence, or provision or
application and to this end the provisions of this section are
declared to be severable.