BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 126 (Polanco)
As Amended April 15, 1999
Hearing date: April 20, 1999
Penal Code
SH:br
(1) PURPOSE OF INCARCERATION
(2) PRISON INDUSTRY AUTHORITY
HISTORY
Source: Author
Prior Legislation: AB 716 - Chapter 49, Statutes of 1995
AB 1132 (1998) - failed passage, Senate
GO Committee
SB 937 (1998) - provisions deleted in the
Assembly
SB 617 (1995) - held Assembly
Appropriations Suspense File
Support: Little Hoover Commission (all provisions of the
bill); California Attorneys for Criminal Justice (section 3
of the bill); California Public Defenders Association
(section 3 of the bill); Friends Committee on Legislation
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(section 3 of the bill); Los Angeles County Municipal Court
Judges (section 3 of the bill); California Manufacturers
Association (re PIA changes)
Opposition:National Center for the Victims of Crime
(section 4 of the bill)
KEY ISSUES
(1) EXISTING LAW PROVIDES THAT THE LEGISLATURE FINDS AND DECLARES THAT THE
PURPOSE OF IMPRISONMENT FOR CRIME IS PUNISHMENT WHICH "SHALL NOT BE CONSTRUED
TO PRECLUDE PROGRAMS, INCLUDING EDUCATIONAL PROGRAMS, THAT ARE DESIGNED TO
REHABILITATE NONVIOLENT, FIRST-TIME FELONY OFFENDERS AND STATES THAT THE
LEGISLATURE ENCOURAGES THE DEVELOPMENT OF POLICIES AND PROGRAMS DESIGNED TO
EDUCATE AND REHABILITATE NONVIOLENT, FIRST-TIME FELONY OFFENDERS CONSISTENT
WITH THE PURPOSE OF IMPRISONMENT."
SHOULD THOSE FINDINGS AND DECLARATIONS BE FURTHER AMENDED TO INCLUDE THAT
"PUNISHMENT" SHALL NOT BE CONSTRUED TO PRECLUDE "VOCATIONAL AND DRUG TREATMENT
PROGRAMS"; THAT THE LEGISLATURE ENCOURAGES PROGRAMS "DESIGNED TO REDUCE THE
RATE OF RECIDIVISM"; AND THAT THE LEGISLATURE SUPPORTS PROGRAMS WITH THE
INTENT TO REDUCE RECIDIVISM? (SECTION 3 OF THE BILL)
(2) SHOULD THE STATUTES PERTAINING TO THE PRISON INDUSTRY AUTHORITY (PIA) BE
AMENDED TO STATE LEGISLATIVE INTENT; TO PROVIDE THAT STATE AGENCIES MAY
REQUEST WAIVERS FROM THE DIRECTOR OF THE DEPARTMENT OF GENERAL SERVICES FOR
THOSE PRODUCTS THAT DO NOT MEET CRITERIA RELATED TO QUALITY, COST, OR
AVAILABILITY; TO REQUIRE THAT THE PIA APPEAR AS A DISPLAY IN THE GOVERNOR'S
PROPOSED BUDGET EACH YEAR; AND TO MAKE OTHER CHANGES, AS SPECIFIED?
PURPOSE
The purpose of this bill is (1) to add additional language
pertaining to vocational and drug treatment and reducing
the rate of recidivism to the existing purpose of
incarceration provisions of law and (2) to make specified
changes to the Prison Industry Authority.
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(1) Existing law provides that the Legislature finds and
declares that the purpose of imprisonment for crime is
punishment and declares the importance of uniformity in
sentencing and states; there is a further statement that
the general purpose of punishment "shall not be construed
to preclude programs, including educational programs, that
are designed to rehabilitate nonviolent, first-time felony
offenders. The Legislature encourages the development of
policies and programs designed to educate and rehabilitate
nonviolent, first-time felony offenders consistent with the
purpose of imprisonment." (Penal Code section 1170)
This bill additionally includes in the "shall not be
construed" provision "vocational and drug treatment";
programs that are designed to "reduce the rate of
recidivism"; and that the Legislature encourages policies
and programs "with the intent to reduce recidivism."
(Section 3 of the bill)
(2) Under existing law , the Prison Industry Authority
(PIA) is under the policy direction of the Prison Industry
Board. This board consists of eleven members which include
the Director of CDC, the Director of the Department of
General Services (DGS), or his or her designee; the
Secretary for the Trade and Commerce Agency, or his or her
designee; two members appointed by the Speaker of the
Assembly; two members appointed by the Senate Rules
Committee; and four members appointed by the Governor.
(Penal Code section 2802)
Under current law, the board shall have all the powers and
do all the things that the board of directors of a private
corporation would do, with certain exceptions, including,
but not limited to: (Penal Code section 2808)
Review and approve the annual budget of the authority in
order to ensure the financial solvency of the
organization.
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Employ a general manager to serve as the chief
administrative officer of the authority. The general
manager shall have a wide and successful experience with
a productive enterprise and have a demonstrative
appreciation of the problems associated with prison
management.
Establish, expand, diminish, or discontinue industrial,
agricultural and service enterprises under its
jurisdiction to enable the authority to operate as a
self-supporting organization, to provide employment, to
provide as much employment for inmates as is feasible,
and to provide diversified work activities to minimize
the impact on existing private industry in the state.
Periodically determine the prices at which activities,
supplies, and services shall be sold.
Report to the Legislature in writing, or before February
1 of each year, regarding: (1) the financial activity
and condition of the each enterprise under its
jurisdiction; (2) any plans of the board proposing
significant changes in existing operations; (3) any
plans for developing new enterprises; and, (4) a
breakdown, by institution, of the number of inmates
working at a PIA enterprise, and the number of said
inmates who are not working full-time.
Existing law authorizes the PIA to only sell its products
and services to the state or federal government, or any
political subdivision thereof, or for any public use.
These products may also be sold to inmates. In addition,
state departments and agencies must purchase any authorized
PIA product or service regardless of price or availability.
In fact, departments, agencies and various state offices
must submit annual reports by January 1 to the Director of
DGS and the Chairperson of the Joint Legislative Budget
Committee on their use of PIA products and services during
the prior year and their comment on their plans for future
use. (Penal Code section 2807)
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Existing law permits the PIA to grant waivers to allow
departments to buy goods and services from the private
sector as specified, for example if the product is not made
by PIA or the PIA cannot produce the required goods or
services in a timely manner. Lower price is not a valid
reason for requesting a waiver. (Item 3505, State
Administrative Manual, PIA)
This bill adds to the PIA provisions in current law that:
The purposes of the PIA are, among other things, to
provide productive employment that offers inmates a
significant real world work experience and competitive
work skills in order to increase their employability upon
release through the development of skills, habits, and
attitudes that employers seek and operate as a
self-supporting prison work program.
The products required to be purchased by the state or
state agencies are substantially similar in either
quality, cost, or availability to those available from
commercial suppliers.
State agencies may request waivers from the Director of
the Department of General Services for those products
that do not meet criteria related to quality, cost, or
availability.
Includes a list of specified additional powers and duties
of the board.
Requires the Department of Finance, in consultation with
the PIA and the Legislative Analyst's Office, to develop
a display in the annual Budget Act of specified projected
expenditures and revenues.
Requires the Bureau of State Audits to conduct a
performance and financial audit of the PIA, as specified,
including an evaluation of the impact on the PIA and the
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Victims of Crime Program of the new authority of state
agencies to seek waivers from the Department of General
Services.
Makes related changes.
COMMENTS
1. Need for This Bill
The author submitted background, which includes the
following:
This bill is designed to address several issues that have
been raised concerning the Prison Industry Authority by
the Legislative Analyst, the Bureau of State Audits and
various private sector entities.
Key provisions concerning the Prison Industry Authority
are:
1) Revising the statutory mission of the Prison Industry
Authority to reflect recommendations of the Legislative
Analyst in the Analyst's Policy brief entitled: Reforming
the Prison Industry Authority dated April 30, 1996.
In accordance with the Analyst's recommendation that one
of two priority missions of the Authority should be
"achievement of a reduction in recidivism by improvement
of inmate employability," SB 126 requires the Authority
to:
"Provide productive employment that offers inmates a
significant real world work experience and competitive
work skills in order to increase employability of
inmates upon release through development of skills,
habits and attitudes that employees seek."
Further, the measure requires the Prison Industry Board
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to "develop and recommend a strategy for tracking of
inmate recidivism for purpose of identifying the impact
of Prison work programs on sustained inmate
rehabilitation upon release."
The Legislative Analyst's second recommended statutory
mission of the Authority is "achieving financial
self-sufficiency."
In response to that recommendation, SB 126 establishes a
statutory mission for the Authority to "operate a work
program for prisoners that will ultimately be
self-supporting."
2) Increasing legislative oversight over and information
concerning the Prison Industry Authority operations,
expenditures and revenues.
The Prison Industry Authority is currently "off budget"
and, therefore, the Legislature has no direct oversight
over it operations. The Legislative Analyst has
recommended the revenues and expenditures of the Prison
Industry Authority be "displayed in the Annual Budget
Act.
The Annual Budget Act of 1998-99, Chapter 324, Statutes
of 1998 included language requiring the Department of
Finance, in consultation with the Prison Industry
Authority and the Legislative Analyst's Office to develop
a display in the 1999-2000 Governor's Budget of projected
expenditures and revenues for the Prison Industry
Authority, the Prison Industry Board, and the Prison
Industries Revolving Fund. (Reference: Page 396, Item 13
of Chapter 324, Statutes of 1998.) This budget provision
was vetoed by Governor Wilson.
SB 126 requires a display of projected expenditures and
revenues for the Prison Industry Authority, the Prison
Industry Board, and the Prison Industries Revolving Fund
to appear in the annual Budget Act.
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3) Revising the "state use law" which now requires state
agencies to buy goods and services from the Prison
Industry Authority regardless of price or quality.
The Bureau of State Audits, in it's April, 1996 audit of
the Prison Industry Authority, noted "State agencies
purchasing products such as printing services, lens
grinding, license plates, metal products and fabrics, pay
$12 million more than the full cost of making those
products. . . . All of these profits were used by the
PIA to offset losses at less efficient factories."
SB 126 is designed to address the above issue through
creating a strong incentive for the Prison Industry
Authority to offer competitive pricing for their goods
and services by allowing state agency "customers" to seek
waivers if more favorable cost or quality could be
obtained through a commercial vendor."
4) Strengthening the policy authority of the Prison
Industry Board by requiring recommendations to the
Governor and the Legislature on maximizing the capacity
of the PIA to comply with its statutory mission;
requiring increased involvement from labor and the
private sector in designing prison industry activities,
and increasing operational efficiency.
2. History of the Purpose of Incarceration in California .
California adopted an indeterminate sentence law (former
Penal Code section 1168) in 1917. It divested the trial
judge of power to fix the term of imprisonment for offenses
punishable by imprisonment in a State prison, and gave this
power to the Adult Authority (noted in California Criminal
Law 2d Ed. , Witkin and Epstein).
The purposes of the change in the law, and its
constitutionality, were fully considered in the early
leading case of In re Lee (1918) 177 C. 690, 792, 171 p.
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958: "It is generally recognized by the courts and by
modern penologists that the purpose of the indeterminate
sentence law, like other modern laws in relation to the
administration of the criminal law, is to mitigate the
punishment which would otherwise be imposed upon the
offender. These laws place emphasis upon the reformation
of the offender. They seek to make the punishment fit the
criminal rather than the crime. They endeavor to put
before the prisoner great incentive to well-doing in order
that his will to do well should be strengthened and
confirmed by the habit of well-doing. Instead of trying to
break the will of the offender and make him submissive, the
purpose is to strengthen his will to do right and lessen
his temptation to do wrong."
The Indeterminate Sentence Law - and the general policy of
rehabilitation - was repealed and replaced by the
Determinate Sentencing Law, which became operative on July
1, 1977 (SB 42 [Nejedly], Chapter 1139, Statutes of 1976).
Since that time, Penal Code section 1170 has stated that
"the Legislature finds and declares that the purpose of
imprisonment for crime is punishment. This purpose is best
served by terms proportionate to the seriousness of the
offense with provision for uniformity in the sentences of
offenders committing the same offense under similar
circumstances. The Legislature further finds and declares
that the elimination of disparity and the provision of
uniformity of sentences can best be achieved by determinate
sentences fixed by statute in proportion to the seriousness
of the offense as determined by the Legislature to be
imposed by the court with specified discretion."
Effective January 1, 1996, the following addition to
section 1170 took effect: Section 1170 "shall not be
construed to preclude programs, including educational
programs, that are designed to rehabilitate nonviolent,
first-time felony offenders. The Legislature encourages
the development of policies and programs designed to
educate and rehabilitate nonviolent, first-time felony
offenders consistent with the purpose of imprisonment."
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( NOTE: Some inmates are incarcerated for periods, which do
not fit in the determinate sentencing scheme. For example,
life with the possibility of parole, which is an
indeterminate sentence.)
3. Section 3 of This Bill Pertaining to Purpose of
Imprisonment
This bill further incorporates in section 1170 that the
"shall not be construed to exclude" provision includes
"vocational and drug treatment"; programs that are designed
to "reduce the rate of recidivism"; and that the
Legislature encourages policies and programs "with the
intent to reduce recidivism."
4. Proposal in This Bill that PIA Develop Strategy for
Tracking Recidivism Rates
This bill gives the PIA the authority to do the following:
. . . develop and recommend a strategy for
implementation, not later than September 1, 2001, that
provides for tracking of inmate recidivism for purposes
of identifying the impact of prison work programs on
sustained inmate rehabilitation following release.
The Supplemental Report Language for the 1998-99 State
Budget included the following (page 42):
6. Work and Education Program Evaluation . It is the
intent of the Legislature that, during the 1998-99 fiscal
year, the CDC shall expand the scope of its planned study
of the effectiveness of its inmate academic, work, and
Prison Industry Authority (PIA) programs to additionally
conduct a statistical analysis of the impact of those
programs on inmate post-release recidivism and employment
and in-prison disciplinary conduct. To the extent that
it is statistically feasible and practical, this broader
study shall include, but shall not be limited to:
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(a) an evaluation of the overall impact of each program
and subprogram category in regard to post-release
recidivism and employment and in-prison disciplinary
conduct;
(b) an evaluation of the impact of the specific programs
operated within individual prisons in regard to
post-release recidivism and employment and in-prison
disciplinary conduct;
(c) an evaluation of which inmates, according to
commitment offense, length of sentence, classification or
custody level, or other relevant criteria, are affected
most significantly by their participation in education,
work, and PIA programs in terms of their post-release
recidivism and employment and in-prison disciplinary
conduct, as well as which inmates are least affected by
their participation in such programs;
(d) an evaluation as to whether the progressive
participation by inmates in multiple CDC academic,
vocational education, and work programs has an impact on
inmate post-release recidivism and employment and
in-prison disciplinary conduct. It is also the intent of
the Legislature that the CDC may contract for the
statistical analysis services necessary for the study,
and that the expanded study of these programs be
completed by the end of the 1999-00 fiscal year.
The 1999-99 State Budget included the following to help
fund that study:
11. Of the reimbursements in Schedule (f), $250,000
shall be from funds received from the Prison Industry
Authority to provide a match to the General Fund for the
purpose of funding a two-year study of inmate work
incentive programs as described in the Supplemental
Report of the 1998 Budget Act. (Item 5240-001-0001)
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GIVEN THE NUMBER OF FACTORS WHICH MAY AFFECT RECIDIVISM AND
INMATES - INCLUDING A VARIETY OF CDC PROGRAMS - IS THE PIA
AN APPROPRIATE ENTITY TO TRACK OR REPORT ON RECIDIVISM?
As amended, this bill currently makes reference to that
Department of Corrections study and provides the PIA shall
consider the results of that study "as evaluation criteria
are developed."
This bill also gives the PIA Board the power to:
. . . develop skills assessment tools and performance
measures in order to evaluate the extent to which prison
work programs have increased, or are increasing, inmate
employability upon release.
5. Proposed Authority for the Department of General
Services to Grant Waivers .
As noted in the Purpose section, above, the PIA currently
has regulations and policies for granting waivers to state
agencies which would otherwise be required to purchase PIA
items.
This bill now contains the following:
State agencies may request waivers from the Director of
the Department of General Services for those products
that do not meet criteria related to quality, cost, or
availability.
In the analysis of SB 1132 prepared by the Senate Committee
on GO last year, the issue of price or cost competition
with the private sector and the mandatory use by state
agencies provision of the law - which this bill modifies
and which SB 1132 proposed to abolish - and the general
role of PIA elicited the following comment from the PIA:
Eliminating the mandatory use law requires PIA to compete
with private industry for State business on a low price
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basis. Efficiency and cost effectiveness become
paramount. A mission of reducing recidivism by
increasing inmates' employability, however, is
programmatic and increases operating costs making
competing on a low price basis very difficult.
The National Center for Victims of Crimes wrote a letter
dated March 22, 1999, which includes the following:
Current law provides that state agencies must purchase
goods manufactured by the Prison Industry Authority (the
"mandatory use law"). SB 126 would change this statue to
require state agencies to seek a purchasing waiver from
the Director of the Department for General Services if
Prison Industry Authority products are not substantially
similar in either quality, cost or availability as
compared to products available from commercial suppliers.
In effect, SB 126 would eliminate the "mandatory use
law." ...The primary reason this concerns our
organization is that these jobs provide an opportunity
for inmates to earn wages - earnings that can later be
used for the payment of victim restitution. ...Since FY
1992-1993, over $2.4 million dollars has been withheld
from PIA inmate earnings to directly assist crime victims
whether through payment of restitution orders or through
victim compensation.
As currently amended, this bill grants state agencies the
authority to seek waivers from the Department of General
Services and requires the Bureau of State Audits to
evaluate the impact of that authority on both the PIA and
the Victims of Crime Program.
WOULD THIS BILL, AS NOW AMENDED, HAVE THE EFFECT OF
ELIMINATING THE "MANDATORY USE LAW"?
6. Some of the Other Changes to Law Contained in This
Bill .
Current law provides that all authorized PIA items shall be
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purchased by the state, as specified, and may be purchased
by local entities.
This bill adds as a condition on that mandate "provided
these products are substantially similar in either quality,
cost, or availability to those available from commercial
suppliers."
This bill recasts two of the purposes of the PIA, as
follows:
To create and maintain working conditions within the
enterprises as much like those which prevail in private
industry as possible, to assure prisoners employed
therein the opportunity to work productively, to earn
funds, and to acquire or improve effective work habits
and occupational skills To provide productive
employment that offers inmates a significant real world
work experience and competitive work skills in order to
increase the employability of inmates upon release
through the development of skills, habit, and attitudes
that employers seek.
To operate a work program for prisoners which that
will ultimately be self-supporting by generating
sufficient funds from the sale of products and services
to pay all the expenses of the program, and one which
will provide goods and services which are or will be used
by the Department of Corrections, thereby reducing the
cost of its operation .
This bill authorizes the PIA to:
. . . make recommendations to maximize utilization of
prison work programs to defray incarceration costs
through strategies that include, but are not limited to,
facilitating joint ventures and public or private
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partnerships that allow a significant portion of inmate
wages to be used to reduce costs of room and board,
taxes, court fees, fines, and family support.
DOES THIS "AUTHORIZATION" REFLECT THE ROLE OF THE PIA AS
SEPARATE FROM THE EXISTING JOINT VENTURE PROGRAM (SEE
COMMENT #8) AS WELL AS THE DIVISION BETWEEN THE PIA AND
PRIVATE BUSINESSES?
This bill also contains codified legislative findings and
declarations about the PIA.
ARE THE CHANGES PROPOSED BY THIS BILL HELPFUL IN
DETERMINING WHETHER THE PIA IS AN "INMATE PROGRAM" OR A
"BUSINESS" OR BOTH?
7. Author's Amendments since the bill was heard on March
23, 1999.
The following author's amendments are now contained in this
bill:
On page 9, lines 21 and 22, "shall" has been
changed to "may" as mentioned in Comment 5 regarding
the option for state agencies to seek a waiver from
PIA purchasing from the Department of General
Services.
On page 13, lines 1-7, a new sentence has been
added, as follows:
For purposes of this subdivision, findings of the
Department of Corrections study of the effectiveness
of inmate academic, work, and Prison Industry
Authority programs, as authorized by Supplemental
Report Language contained in the 1998 - 1999 Annual
Budget Act, shall be considered by the Prison Industry
Board as evaluation criteria are developed.
(Regarding the PIA authority to develop evaluation of
inmate employability upon release.)
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On page 13, line 17, "July 1, 2000" has been
changed to: "September 1, 2001." (Regarding the PIA
authority to recommend strategy to track recidivism.)
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On page 13, lines 21 to 26, a new sentence has been
added, as follows: "For purposes of this subdivision,
the board's recommendations shall consider the
findings of the Department of Corrections' statistical
analysis of the impact of prison academic and work
programs on inmate post-release recidivism, as
authorized by the 1998-99 Budget Act. (Regarding the
PIA authority to recommend strategy to track
recidivism.)
On page 13, line 32, "1999-2000 Governor's Budget"
has been deleted and replaced by: "Annual Budget Act"
(Technical regarding PIA display in annual budget.
On page 14, lines 8 to 12, including in the PIA
audit an evaluation of the impact of the authority for
state agencies to seek a PIA waiver from the
Department of General Services ". . . on both Prison
Industry Authority work programs and inmate
contributions to the Victims of Crime Program."
On page 14, a new section was added:
Sec. 9: Nothing in this chapter is intended to result
in displacement of current state employees. (Adds
additional language to that already added by the bill
in the intent section that: " It is the intent of the
Legislature that the authority's mission of increasing
employability of inmates shall, to the extent
feasible, be accomplished while avoiding unnecessary
displacement of California citizens gainfully employed
in the private sector.")
8. Other CDC Programs
In addition to the PIA, the CDC does provide vocational
education programs, which involve the development of
specific job skills.
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Existing law also provides that the Director of Corrections
shall establish joint venture programs within state prison
facilities to allow joint venture employers to employ
inmates confined in the state prison system for the purpose
of producing goods or services. The Joint Venture Policy
Advisory Board consists of the Director of Corrections, who
shall serve as chair, the Director of the Employment
Development Department, and five members, to be appointed
by the Governor, three of whom shall be public members, one
of whom shall represent organized labor and one of whom
shall represent industry. Services performed and articles
manufactured by joint venture programs may be sold to the
public. (Penal Code sections 2717.1 - 2717.9, added
November 6, 1990, by initiative Proposition 139)
Last year's Little Hoover Commission "Beyond Bars:
Correctional Reforms to Lower Prison Costs and Reduce Crime
(January 1998)" included that following numbers:
The number of inmates in the Prison Industry Authority
and Joint Venture programs are smaller still: PIA
participants number 6,324 -- 4 percent of the prison
population -- and those in the Joint Venture Program
total 223 -- 14 percent.
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