BILL NUMBER: SB 1266AMENDED BILL TEXT AMENDED IN SENATE MARCH 23, 2010 INTRODUCED BY Senator Liu ( Principal coauthor: Assembly Member Bonnie Lowenthal ) FEBRUARY 19, 2010 An act to add Section 1170.05 to the Penal Code, relating to inmates. LEGISLATIVE COUNSEL'S DIGEST SB 1266, as amended, Liu. Inmates: alternative custody. Existing law provides a system of prisons under the Department of Corrections and Rehabilitation to house inmates committed to state prison for felonies. This bill would authorize the Secretary of the Department of Corrections and Rehabilitation to offer a program under which female inmates , pregnant individuals, and inmates who, immediately prior to incarceration, were primary caregivers of dependent children, as defined, who are committed to state prison may be allowed to participate in a voluntary alternative custody program in lieu of confinement in state prison. The bill would define an alternative custody program to include confinement to a residential home, a residential drug or treatment program, or a transitional care facility during the hours designated by the Department of Corrections and Rehabilitation. The bill would authorize the department to enter into contracts with county agencies, not-for-profit organizations, for-profit organizations, and others in order to promote alternative custody placements. The bill would, among other things, provide inmate eligibility criteria, authorize the secretary to prescribe rules and regulations for the program, including imposing certain inmate participation requirements, and authorize certain inmate compliance verification procedures. 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. The Legislature finds and declares all of the following:(a) California has incarcerated about 10,000 women, which is more than any other state.(b) According to a November 2009 estimate by the Department of Corrections and Rehabilitation, about 85-90 percent of female inmates are nonviolent offenders.(c) According to a 2004 report from the Little Hoover Commission, two-thirds of female inmates were convicted of property or drug-related crimes.(d) According to a 2004 report from the Little Hoover Commission, more female inmates have been victims of violent crimes than perpetrators. Four in 10 were physically or sexually abused before 18 years of age.(e) According to a 2004 Little Hoover Commission report, the incarceration rate among female offenders for violent crimes has doubled over the last 20 years.(f) According to a 2004 Little Hoover Commission report, at the time of their arrest, half of incarcerated women were taking care of their children and two-thirds of those women were single parents.(g) Experts agree that parental incarceration is a significant risk factor for children. In order to better protect children the Legislature must reconsider policies related to incarceration for primary caregivers.(a) The incarceration rate for female offenders has doubled over the last 20 years. As a result, California now has about 10,000 incarcerated women, which is more than any other state. (b) Nearly 70 percent of female inmates are nonviolent offenders. Two-thirds of female inmates were convicted of property or drug-related crimes. (c) While over half of the men in prison were incarcerated for violent crimes, only 30 percent of women were convicted of violence. (d) Female inmates are more likely to be victims of violent crimes than to be the perpetrators. Four in 10 female inmates were physically or sexually abused before 18 years of age. (e) Over two-thirds of women are classified as low risk by the prison classification system. However, women are often held in more secure environments than their custody classifications would warrant. (f) Approximately 67 percent of incarcerated women are mothers, and many of them are single parents. Most of California's incarcerated mothers are the primary care givers of dependent children and hope to return home to their children. While the vast majority of children of incarcerated men continue to live with their mothers, children of incarcerated women are more likely to end up living with other relatives or in foster care. (g) Separating mothers from children has a substantial impact on their futures. Children of inmates are much more likely than their peers to become incarcerated. Research suggests that mothers who are able to maintain a relationship with their children are less likely to return to prison. (h) To break the cycle of incarceration, California must adopt policies that facilitate parenting and family reunification. SEC. 2. Section 1170.05 is added to the Penal Code, 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 and inmates who were primary caregivers of dependent children immediately prior to incarceration, 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 a state prison. Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentence in a 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 during the hours designated by the department. (c) Except as provided by subdivision (d), female inmates , pregnant individuals, and inmates who were primary caregivers of dependent children immediately prior to incarceration 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. (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 or prior conviction for a violent offense as defined in Section 667.5. (2) 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. (3) The person was screened by the department using a validated risk assessment tool and determined to pose a high risk toreoffendcommit a violent offense . (4) 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,group home, treatment 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) It is the intent of the Legislature that the department shall be allocated in its budget 50 percent of the savings created by Section 1170.5, once savings are achieved, to administer evidence-based practices to participants placed in alternative custody. 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, a plan of evidence-based programs and services that will aid in the successful reentry into society while participating in alternative custody. (2) The department shall collaborate with local law enforcement and community-based programs that administer evidence-based practices in order to prevent recidivism among individuals placed in alternative custody and assist in reentry into society. (3) 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 supervision.(f)(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 he or 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 his or 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 parole officer or other 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 his or 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 his or 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.(g)(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.(h)(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 any participant upon request. (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.(i)(j) 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, or seek medical and dental assistance. 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 he or 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(f) and (g)(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.(j)(k) (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) Any information received by a law enforcement agency pursuant to this subdivision shall be used only for the purpose of monitoring the impact of an alternative custody program on the community.(k)(l) 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.(l)(m) An inmate participating in this program must voluntarily agree to all of the provisions of the program in writing, including that he or she may be returned to confinement at any time with or without cause, and shall not be charged fees or costs for the program.(m)(n) The secretary shall adopt emergency regulations specifically governing participants in this program.(n)(o) For purposes of this section, "primary caregivers of dependent children" means persons who are those primarily responsible for the care and upbringing of one or more children.(o)(p) If any phrase, clause, sentence, or provision of this section or application thereof to any person or circumstance is held invalid, such 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.