BILL ANALYSIS SB 1878 Date of Hearing: July 5, 1994 Counsel: Dawn Johnson ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair SB 1878 (Torres) - As Amended: April 4, 1994 ISSUES: I. SHOULD THE CALIFORNIA DEPARTMENT OF CORRECTIONS (CDC) DEVELOP PROCEDURES FOR IDENTIFYING UNDOCUMENTED FELONS, SUBJECT TO DEPORTATION, WITHIN 72 HOURS OF BEING TAKEN INTO CUSTODY? II. SHOULD A SINGLE UNDOCUMENTED FELON, WHO HAS BEEN CONVICTED OF A NON-VIOLENT, NON-SERIOUS CRIME, BE TRANSFERRED FROM CDC TO AN INS HOLDING FACILITY FOR THE SUBSEQUENT TRANSFER TO FEDERAL CUSTODY? III. IF THE FEDERAL GOVERNMENT REFUSES JURISDICTION AND CUSTODY OF A SINGLE UNDOCUMENTED ALIEN FELON, SHOULD THE ATTORNEY GENERAL IMMEDIATELY COMMENCE PROCEEDINGS IN FEDERAL COURT TO DETERMINE THE LEGALITY OF THE FEDERAL GOVERNMENT'S REFUSAL TO ACCEPT CUSTODY? IV. SHOULD $5,000 BE APPROPRIATED TO THE BOARD OF PRISON TERMS (BPT) TO NOTIFY UNDOCUMENTED FELONS, IN CDC INSTITUTIONS, THAT THEY MAY BE ELIGIBLE TO SERVE THEIR SENTENCE IN THEIR COUNTRY OF ORIGIN AND TO ENCOURAGE THEM TO DO SO, AS SPECIFIED? DIGEST Urgency statute. 2/3 vote required. Under current law: 1) On or before July 1, 1993 CDC shall implement procedures to identify inmates serving terms in state prison who are undocumented aliens subject to deportation and shall provide INS with the name and location of such person. (Penal Code section 5025(a).) 2) CDC and the Department of Justice shall report annually the number, race, national origin, national ancestry, the offense or offenses and the disposition of referrals made to the INS. (Penal Code section 5025(d)(e).) 3) CDC is required to cooperate with INS by providing the use of prison facilities, transportation and general support for deportation - continued - SB 1878 Page 1 SB 1878 hearings, holds and placement of undocumented alien inmates. (Penal Code section 5026.) 4) CDC may enter into contracts with United States officials for šconfinement, care, education, treatment and employment of inmates. (Penal Code section 2911(a).) 5) No CDC inmate may be transferred from a state to a federal facility pursuant to a contract unless he or she volunteers to do so. (Penal Code section 2911(c).) 6) A CDC inmate transferred to a federal facility should still be under the jurisdiction of the state, shall be subject to BPT for parole consideration and be released in the state unless other arrangements have been made. (Penal Code section 2911(d)(e)(f).) This bill: 1) Requires CDC to implement procedures, by July 1, 1993, to identify undocumented felons subject to deportation within 72 hours of assuming custody. 2) Provides that upon the effective date of this bill, a single undocumented alien felon, who has been convicted of a non-violent, non- serious crime, be transported from CDC to an INS holding facility located in California for transfer to federal custody. 3) Provides that, if the federal government refuses jurisdiction and custody of a single undocumented alien felon, the Attorney General of California shall immediately commence proceedings in federal court to determine the legality of the federal government's refusal to accept jurisdiction and custody. 4) Requires CDC to report annually to the legislature the number of inmates identified as undocumented. 5) Makes CDC's ability to contract for the confinement, care, education, treatment and employment of undocumented inmates contingent upon federal reimbursement. 6) Requires the Board of Prison Terms (BPT) to devise a method, modeled š after the program developed by the State of Texas, of notifying undocumented felons in a CDC institutions that they may be eligible to serve their sentence in their country of origin and encourage their return to that country. 7) Provides for the BPT to report its efforts to the Legislature on a quarterly basis. 8) Appropriates $5,000 from the General Fund to the BPT for implementation of the provisions of this bill. - continued - SB 1878 Page 2 SB 1878 9) Makes specified legislative findings and declarations. 10) Memorializes the United States Congress to meets its' obligations under the 1986 Immigration Reform and Control Act to reimburse California for its' costs from incarcerating undocumented felons. COMMENTS 1) Purpose. According to the author: The Governor's 1994-95 Budget Summary, by 1994-95 there will be more than 18,000 illegal immigrants in state prison in California. According to the Budget Summary, California taxpayers have spent over a billion dollars in the last five years to keep illegal alien felons in prison, and the cost of incarcerating them in fiscal year 1994-95 as projected to exceed $375 million. The state must look to all means of reducing these expenditures. 2) Problem. The following problems exist: a) Costs. State and local county costs estimates associated with the problem of criminal aliens is provided as follows: i) Impact on Los Angeles. Testimony provided by a representative of the Los Angeles (L.A.) County Sheriff's Department before the Assembly Select Committee on Statewide Immigration Impact (Select Committee) on September 22, 1993 described two studies done in L.A. County. A one month sample indicated that criminal aliens made up over 11% of L.A. county's jail population. The costs to L.A. County is estimated to exceed $75 million each year for prosecution, defense, incarceration, court proceedings and probation. ii) Revolving Door. The second L.A. County study analyzed rearrest patterns of deportable criminal aliens identified in the original "11% study." Of the 1,933 deportable aliens identified, they found that: o Over 50% of these defendants were returned by federal officials to their country of origin either by voluntary removal or formal deportation. o Over 40% were rearrested an average of two times during the 12 months following the earlier study. o 1,536 defendants accounted for a total of 10,989 arrests throughout the United States between 1958 and February 1992, with documented law enforcement contacts in 24 states outside of California. - continued - SB 1878 Page 3 SB 1878 In short, these studies verified the perceived "revolving door" cycle of illegal immigration and criminal activity. iii) Statewide Applicaion. According to Select Committee testimony L.A. County's figures are consistent with those for the California criminal justice system. A study by the State's Joint Committee on Prison Construction and Operations estimated that criminal aliens make up 12% to 15% of California's prison population, at a cost of $350 million per year. b) State Partnership with the INS. According to the Select Committee, the INS estimates that anywhere from 12 to 16% of inmates in the L.A. County jail system are illegal aliens. These percentages are comparable to the Department of Corrections facilities as well as the Federal Bureau of Prisons system. In 1992 the INS Investigations Branch processed 13,814 criminal aliens for deportation, of which 5,005 were aggravated felons. In 1993, the District processed 12,715 criminal aliens of which 5,182 were aggravated felons. The INS states a strong partnership between the federal government, the states, and local jurisdictions is essential for effective immigration law enforcement. This is particularly true when dealing with criminal aliens and the impact these individuals have on state and federal correctional systems. The identification, location, and removal of criminal aliens from the United States continues to be a priority of the INS. 3) Legislative Findings and Declarations. This bill declares the šfollowing: a) 16,000 (15%) of the 109,000 California prison inmates are undocumented aliens. b) There has been no coordinated legislative approach, in the last five years, to deal with this problem. c) Numerous groups agree that a very small percentage of legal and illegal immigrants commit serious crimes but the result is social and economic costs, particularly in heavily impacted communities. d) Incarceration costs are $22,000 per inmate per year. e) In 1992, CDC reported 3,100 known aliens on parole at a cost of $2,000 per parolee for supervision and 4,700 of these person on inactive parole at a cost of $200 per person. f) The Youth Authority has 800 undocumented aliens as wards at a cost of $30,000 per ward per year. - continued - SB 1878 Page 4 SB 1878 g) Criminal aliens come from over 130 nations. h) INS deportation costs are estimated to be $600 per felon. i) If the federal government has insufficient prison space to incarcerate undocumented felons then it should reimburse the state for incarceration costs. 4) History. SB 1258 (Torres), of 1993, which passed the Senate 35-0 š and was vetoed by the Governor, would have required the California Department of Corrections (CDC) to identify all illegal alien inmates within 72 hours of their reception by the department and to transfer undocumented prisoners to the United States Immigration and Naturalization Service within 48 hours of identification. The Governor's veto message expressed the concern that: "...CDC not only cannot compel USINS to accept such prisoners, but in fact federal law precludes the U.S. Department of Justice from taking custody at all until an illegal immigrant felon has completed serving his sentence in state prison. "As a result, this bill could cause the unintended but gravely dangerous travesty that thousands of convicted alien criminals would be released or deported to Tijuana by USINS only to promptly return illegally to California to harm new victims. This would create an unconscionably dangerous situation for California citizens." 5) Test Case. The purpose of this bill is to create a "test case" involving the transfer of a single non-violent, non-serious alien felon to the Immigration and Naturalization Service, prior to the expiration of the alien's state sentence, in order to clarify the law with respect to the federal government's responsibility to incarcerate and pay for illegal alien felons. The Governor's 1994-95 budget summary notes that "the 1986 Immigration Reform and Control Act directed the U.S. Attorney General to reimburse states for the costs of incarcerating illegal immigrant felons..." (Governor's Budget Summary at 23). It would appear that the federal government therefore has the legal and moral obligation to assume the responsibility for the incarceration of illegal alien felons, if it will not reimburse the states for such incarceration. California law presently allows the Department of Corrections to enter into contracts "with appropriate officials or agencies of the United States for the confinement...of persons convicted in the courts of this state and committed to state prisons..." Penal Code Section 2911. - continued - SB 1878 Page 5 SB 1878 There is therefore some basis in existing law for the transfer of illegal alien felons to the federal government, prior to the expiration of their sentence. Support for that position also comes from 8 U.S.C. 1252(a)(2)(A), which provides that the Attorney General shall take into custody any alien convicted of an aggravated felony "upon release of the alien (regardless of...the possibility of arrest or further confinement in resect of the same offense)." 8 U.S.C. 1252(a)(2)(A) (emphasis added). In addition, by transferring only a single alien, and making sure that the alien has been convicted of a non-violent, non-serious crime, the bill eliminates any possibility that dangerous criminals will be released onto the streets of Tijuana. 6) Timelines. Identification and transfer of undocumented felons is addressed as follows: a) Identification. This bill requires the identification of undocumented persons within 72 hours of being taken into custody. Is this a reasonable amount of time? INS makes the immigration status determination. Is this a reasonable time frame? Will CDC be in violation of state law if they do not get the cooperation of the federal government to adhere to the stated timeline? Is not the reception center process, which lasts between 45-60 days, a more likely place to start the process of identifying undocumented persons given the number of other factors, such as security, that CDC has to consider? b) Transfer to Federal Government. The Senate Floor analysis states: "In response to concerns by CDC about the administrative burden of transferring aliens to the federal government within a short period of time after they are identified, the latest amended version of the bill deletes language that would have required the CDC to transfer undocumented aliens to the INS within 48 hours of identifying such aliens." However, other authors working with CDC have similar bills, (i.e., SB 1314, Johannessen), that provide for the transfer of undocumented inmate within 48 hours of identification. 7) Texas Program. This bill would require BPT to actively encourage each eligible undocumented felon to apply for return to his or her country of origin as provided in federal treaties, and also require BPT to adopt the model program developed by the State of Texas for encouraging participation in the federal repatriation program where appropriate. There is nothing in the bill to describe the Texas program or to support its' effectiveness. According to BPT the Texas program has been besought with problems and may not be an appropriate model to follow. The - continued - SB 1878 Page 6 SB 1878 primary complaint was the return to the U.S. of the bulk of the prisoners transferred to Mexico. 8) Federal Response. The Los Angeles Times reported on April 26, 1994 page 3: t!he Clinton Administration last year responded by fully š funding a program to reimburse the states for some of the costs associated with illegal immigration and now is proposing $350 million to help states pay for prison beds for illegal immigrants convicted of felonies. The federal crime bill that the House of Representatives passed last week would require the federal government to pick up the entire tab . . . 9) Comparison of Similar Legislation. ABX1 134 (Polanco), substantially similar, passed out of Public Safety and is presently waiting to be heard in the Assembly Ways and Means Committee. Also similar is AB 1874 (Polanco) presently pending a hearing before the Senate Appropriations Committee. SB 1314 (Johannessen) passed out of Public Safety, at the last hearing,to conform to ABX1 134. These bills provide for the identification of undocumented felons within 72 hours of completion of the intake process, whereas SB 1878 requires identification within 72 hours of CDC taking custody. SB 1878 does not provide for a set period for transfer following the identification of undocumented felons. Another difference between the bills is the federal authority designated to receive transferred inmates. SB 1878 designates the federal government or the housing within state prisons at federal expense. 10) Related Legislation. On April 12, 1994 this committee passed out AB 2979 (Napolitano) which required every court to cooperate with the INS in identifying and placing a deportation hold on any defendant who is determined to be an undocumented alien subject to deportation. SB 1744 (McCorquodale) requires undocumented felons to be notified in writing that they can apply to serve their sentence in their country of origin as provided by federal treaty. CDC would be required to implement procedures to facilitate the transfer and to pay any foreign country accepting an inmate up to $2,000 a year for each year of imprisonment. SOURCE: Author SUPPORT: None on file OPPOSITION: None on file - continued - SB 1878 Page 7